Notice2023-13990
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 30, 2023
Effective
July 1, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an IHA to Community Offshore Wind, LLC (COSW) to incidentally harass marine mammals during marine site characterization surveys in coastal waters off of New Jersey and New York in the New York Bight.
Full Text
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<title>Federal Register, Volume 88 Issue 125 (Friday, June 30, 2023)</title>
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[Federal Register Volume 88, Number 125 (Friday, June 30, 2023)]
[Notices]
[Pages 42322-42341]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13990]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD006]
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 IHA to Community Offshore Wind, LLC (COSW) to
incidentally harass marine mammals during marine site characterization
surveys in coastal waters off of New Jersey and New York in the New
York Bight.
DATES: This authorization is effective from July 1, 2023, through June
30, 2024.
FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, 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 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 incidental harassment authorization (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 November 17, 2022, NMFS received a request from COSW for an IHA
to take marine mammals incidental to conducting marine site
characterization surveys in coastal waters off of New Jersey and New
York 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 (OCS) Lease
Area OCS-A 0539 (Lease Area) and associated Export Cable Route survey
area (ECR Area). Following NMFS' review of the application, COSW
submitted a revised request on February 27, 2023. NMFS deemed the
application adequate and complete on March 1, 2023. COSW's request is
for take of small numbers of 15 species (16 stocks) of marine mammals
by Level B harassment only. Neither COSW nor NMFS expect serious injury
or mortality to result from this activity and, therefore, an IHA is
appropriate.
Description of Specified Activity
Overview
COSW 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 BOEM Lease Area OCS-A 0539 and associated ECR Area, collectively
considered the Survey 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 Survey Area. Up to three
vessels may conduct survey efforts concurrently. Underwater sound
resulting from COSW'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 surveys are planned to begin as soon as practicable and
estimated to require 293 survey days within a single year across a
maximum of three vessels operating concurrently, which includes up to
two vessels operating offshore (>20 meters (m) depth) and one vessel
operating nearshore (<20 m depth). The survey days will occur any month
throughout the year as the exact timing of the surveys during the year
is not certain. A ``survey day'' is defined as a 24-hour (hr) activity
period in which active acoustic sound sources are used offshore and a
12-hr activity period when a vessel is operating nearshore. It is
expected that each offshore vessel would cover approximately 170
kilometers (km) of trackline per day surveyed at a speed of
approximately 3.8 knots (kn; 7.04 km/h), based on COSW's expectations
regarding data acquisition efficiency. There is up to 30,467 km of
trackline survey effort planned: a maximum trackline length of 28,290
km is planned for the Lease Area
[[Page 42323]]
and 2,177 km for the ECR Area. The IHA would be effective for 1 year
from the date of issuance.
Specific Geographic Region
COSW's survey activities will occur in coastal waters off of New
Jersey and New York in the New York Bight, specifically within BOEM
Lease Area OCS-A 0539 and associated ECR Area (Figures 1, 2). The
Survey Area (14,759 km\2\) includes both the Lease Area (859 km\2\; 30-
51 m depth) and ECR Area (13,900 km\2\; 3-65 m depth).
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN30JN23.050
[[Page 42324]]
[GRAPHIC] [TIFF OMITTED] TN30JN23.051
BILLING CODE 3510-22-C
Detailed Description of the Specified Activity
COSW's marine site characterization surveys within the Survey Area
include geotechnical and geophysical surveys, including depth sounding
to determine water depth, site bathymetry, and general seafloor
topography using a multibeam echosounder (MBES); and medium penetration
sub-bottom profilers (SBP; sparkers) in a single (2-dimensional (2D))
or triple (3-dimensional (3D)) configuration.
Within the Lease Area and across a 500-m buffer around the Lease
Area (30-51 m depth), COSW will acquire MBES data and ultra-high
resolution seismic (UHRS) data in either 2D (single sparker) or 3D
(triple sparker) scenario. Within the ECR Area (3-65 m depth), the
survey will consist of MBES and UHRS data collection within up to 900-m
wide corridors. A centerline of UHRS data will be collected with 500-m
tielines. COSW would acquire MBES data at a line spacing controlled by
water depth to meet coverage and resolution requirements. MBES are used
to determine water depths and general bottom topography. The MBES have
operating frequencies greater than 180 kilohertz (kHz) and are
therefore outside the general hearing range of marine mammals. NMFS
does not expect MBES survey activities to present a reasonably
anticipated risk of causing incidental take of marine mammals, so these
activities are not discussed further in this notice.
COSW plans two scenarios: the 2D scenario and the 3D scenario. The
total survey trackline length differs between the 2D and 3D scenarios
but both scenarios include a maximum of two concurrently-operating
vessels in the Lease Area with the potential for a third vessel
operating concurrently in the ECR Area. For the 2D scenario, a
trackline length of 5,370 km (1,515 km\2\ ensonified area) is planned
for the Lease Area and 2,177 km (615 km\2\ ensonified area) for the ECR
Area. Each vessel will operate one sparker in the 2D scenario. Under
the 3D scenario, a trackline length of 28,290 km (8,923 km\2\
ensonified area) is planned for the Lease Area and 2,177 km (688 km\2\
ensonified
[[Page 42325]]
area) for the ECR Area. Each vessel will operate three sparkers in the
3D scenario. The ECR Area trackline length remains the same across both
scenarios. Only one vessel will operate in nearshore waters <20 m depth
and will adhere to a 12-hr survey day.
The only acoustic sources planned for use during COSW's HRG survey
activities with the potential to cause incidental take of marine
mammals are the sparkers. There are two sparker systems planned for
use: Applied Acoustics Dura-Spark UHD 400+400 Seismic Sound Source (400
tip/300-1,000 joules (J)) and the Geo-Source 200-400 Marine Multi-Tip
Sparker System (400 tip/300-1,000 J).
A detailed description of COSW's planned HRG surveys is provided in
the Federal Register notice for the proposed IHA (88 FR 24574, 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 specified activity.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to COSW was published in
the Federal Register on April 21, 2023 (88 FR 24574). That notice
described, in detail, COSW'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 13 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 ten 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' action 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. Several commenters suggested,
without evidence, that issuance of the proposed IHA could result in the
death of whales. We reiterate here that no mortality is anticipated or
authorized. Many of the comments requested 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
24574), 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-community-offshore-wind-llc-marine-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-community-offshore-wind-llc-marine-site-characterization</a>. Please review the
comment letters for full details regarding the comments and associated
rationale.
Comment: Multiple commenters expressed concern that negative
impacts to the local fishing industry and coastal communities as a
result of a potentially adverse impact to marine mammals (e.g., vessel
strike resulting in death or severe injury) were not mentioned or
evaluated in this IHA. RODA specifically noted concern regarding
existing fishery restrictions as a result of other North Atlantic right
whale (NARW) protections.
Response: Neither the MMPA nor our implementing regulations require
NMFS to analyze impacts to other industries (e.g., fisheries) or
coastal communities from issuance of an incidental take authorization
(ITA). Moreover, NMFS has determined that no serious injury or
mortality is anticipated to result from COSW's specified activities and
as discussed in the Negligible Impact Analysis and Determination
section in this notice, only low-level behavioral harassment is
expected for any affected species. For NARW in particular, it is
considered unlikely, as a result of the required precautionary shutdown
zone (i.e., 500 m versus the estimated maximum Level B harassment zone
of 158 m), that the authorized take would occur at all.
Comment: 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 marine mammal 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 MMPA
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 50 CFR 216.104(a)(1) require
applicants to include in their request a detailed description of the
specified activity or class of activities that can be expected to
result in incidental taking of marine mammals. 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, COSW was the applicant for the IHA, and we are
responding to the specified activity as described in that application
and making the necessary findings on that basis.
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated (1) that we would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis,
and (2) that reasonably foreseeable cumulative effects would also be
considered under section 7 of the Endangered Species Act (ESA) for ESA-
listed species, as appropriate. Accordingly, NMFS has written
[[Page 42326]]
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 COSW 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 COSW'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 COSW under
this current IHA request. This Biological Opinion (BiOp) 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: 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
marine site characterization 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 of 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: Several commenters expressed a concern that the proposed
IHA and its associated specified activities would lead to mortality
(death) of marine mammals.
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. Additionally, NMFS
cannot authorize mortality or serious injury via an IHA, and 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 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 COSW'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
https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/
section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-
site-
[[Page 42327]]
assessment-and-site-characterization-activities-programmatic-
consultation.
Comment: COA states that there is no legal authority for permitting
offshore geotechnical and geophysical survey activities under BOEM,
based on text from the proposed BOEM Renewable Energy Modernization
proposed rule (88 FR 5968, January 30, 2023; 88 FR 19578, April 3,
2023). They further state that this has allowed for no oversight with
regards to surveys off New Jersey and New York and that they do not
understand how BOEM can make assertions without regulations/guidance
for HRG survey work.
Response: NMFS' statutory authority for this particular action is
limited to authorizing incidental take of marine mammals. NMFS
respectfully refers the commenter to BOEM, the agency with
responsibility for managing development of U.S. Outer Continental Shelf
energy and mineral resources in an environmentally and economically
responsible way.
Comment: RODA expressed concern regarding increased vessel traffic
associated with OSW development generally and asserted that vessel
speed restrictions are not ``fully mandated or enforced for OSW
vessels.''
Response: NMFS appreciates the commenter's concern regarding the
potential for an overall increase in vessel traffic at the regional
scale. However, we also note that concerns regarding the potential
impacts of wind energy development in general are outside the scope of
this specific action (i.e., issuance of an IHA associated with a
specific HRG survey). NMFS takes seriously the risk of vessel strike
and has prescribed measures to avoid the potential for vessel strike,
despite a very low likelihood, to the extent practicable. The full list
of mitigation measures can be found in Condition 4(m) of the IHA and in
the Mitigation section of this notice. In addition, vessels towing
survey gear travel at very slow speeds (4-5 kn) (reducing the already
low likelihood of strike), and vessels associated with the survey
activity will add a discountable amount of vessel traffic to the
specific geographic region. We have determined that the IHA's vessel
strike avoidance measures are sufficient to ensure the least
practicable adverse impact on species or stocks and their habitat.
Furthermore, NMFS is unaware of any vessel strikes related to marine
site characterization surveys.
RODA's reference to vessel speed restrictions being ``not fully
mandated'' is unclear. NMFS refers again to its required vessel strike
avoidance measures (see Condition 4(m)(ii) of the issued IHA), which
requires that all vessels, regardless of size, observe a 10-knot speed
restriction in SMAs, DMAs, and Slow Zones. Similarly, RODA does not
provide a rationale for its suggestion that vessel speed restrictions
are not enforced. We note that NMFS maintains an Enforcement Hotline
for members of the public to report violations of vessel speed
restrictions. Further, the IHA states that the IHA may be modified,
suspended, or revoked if the holder fails to abide by the conditions
prescribed therein.
Comment: Several commenters expressed concern about the use of
multiple vessels concurrently performing the survey work.
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.
Comment: One commenter stated that the review process for this IHA
was too rapid and NMFS' due diligence was lacking.
Response: Section 101(a)(5)(D)(iii) of the MMPA and NMFS
implementing regulations (50 CFR 216.104) specify the procedural
requirements for IHA issuance. Additionally, NMFS' internal ITA
application and review process includes numerous steps to ensure due
diligence occurs for all ITA requests. In this case, NMFS received
COSW's initial application on November 17, 2022, and completed several
rounds of agency review and analysis before NMFS considered the
application adequate and complete on March 1, 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 24574) and was open for a 30-day comment period (i.e., through
May 22, 2023). NMFS reviewed all within-scope comments received for
consideration in the final decisional process.
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>.
Comment: Commenters stated that NMFS was not utilizing the best
available science when assessing impacts to marine mammals.
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 COSW's specified
activities on marine mammals. While commenters suggest generally that
NMFS consider the best scientific evidence available, none of the
commenters provided additional scientific information for NMFS to
consider.
Comment: RODA stated 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 requested 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 COSW'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 COSW's
application. The authorization of COSW'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>.
[[Page 42328]]
A list of all proposed and issued IHAs for renewable energy
activities, such as COSW'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: RODA expressed concern regarding the potential for
increased uncertainty in estimates of marine mammal abundance resulting
from wind turbine presence during aerial surveys and potential effects
of NMFS' ability to continue using current aerial survey methods to
fulfill its mission of precisely and accurately assessing protected
species.
Response: NMFS has determined that 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 COSW's specified activity under the
MMPA.
Comment: RODA commented that additional clarification should be
added to the IHA that explicitly states if weather or other conditions
that limit the range of observation of shutdown zones will be
initiated. RODA and COA also questioned the feasibility of the shutdown
mitigation requirements in real-world conditions and what would occur
if the authorized take levels were exceeded. COA stated concerns 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 COSW 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 COSW, 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), COSW 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 COSW'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: Some comments objected to NMFS' ``small numbers''
determination for the numbers of marine mammals taken by Level B
harassment under COSW'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: 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 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 COSW'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 COSW'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: COA expressed concern regarding ocean noise and the
interference it has on communication between whales.
Response: NMFS has carefully reviewed the best available scientific
information in assessing impacts to marine mammals and determined that
the surveys have the potential to impact marine mammals through
behavioral effects and auditory masking. NMFS agrees that noise
pollution in marine waters is an issue and is affecting marine mammals,
including their ability to communicate when noise reaches certain
thresholds. However, NMFS does not expect that the generally short-
term, intermittent, and transitory marine site characterization survey
activities planned by COSW will create conditions of acute or chronic
acoustic exposure leading to long-term physiological impacts in marine
mammals. NMFS' prescribed mitigation measures are expected to further
reduce the duration and intensity of acoustic exposure, while limiting
the potential severity of any possible behavioral disruption. NMFS has
determined
[[Page 42329]]
COSW's activities will not result in injury or mortality (death) of any
marine mammal species.
Changes From the Proposed IHA to Final IHA
One change was made from the proposed IHA as a result of
consultation with GARFO: an addition to the Monitoring and Reporting
section specifying requirements relating to the use of a ``trained
lookout'' in lieu of a PSO during required breaks for the approved PSO
on duty on space-limited nearshore 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, incorporated here by reference, instead of
reprinting the information. Additional information regarding population
trends and threats may be found in NMFS' SARs (<a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 1 lists all species or stocks for which take is authorized
for this activity, and summarizes information related to the species or
stock, including regulatory status under the MMPA and 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
(including from the draft 2022 SARs) and are available online at:
<a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.
Table 1--Species and Stocks Likely Impacted by the Specified Activities \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale..... Eubalaena glacialis... Western North Atlantic E/D; Y 338 (0; 332; 2020).... 0.7 8.1
Family Balaenopteridae (rorquals):
Fin whale...................... Balaenoptera physalus. Western North Atlantic E/D; Y 6,802 (0.24; 5,573, 11 1.8
2016).
Humpback whale................. Megaptera novaeangliae Gulf of Maine......... -/-; Y 1,396 (0; 1,380; 2016) 22 12.15
Minke whale.................... Balaenoptera Canadian East Coastal. -/-; N 21,968 (0.31; 17,002; 170 10.6
acutrostrata. 2016).
Sei whale...................... Balaenoptera borealis. Nova Scotia........... E/D; Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale.................... Physeter macrocephalus North Atlantic........ E/D; Y 4,349 (0.28; 3,451; 3.9 0
2016).
Family Delphinidae:
Atlantic spotted dolphin....... Stenella frontalis.... Western North Atlantic -/-; N 39,921 (0.27; 32,032; 320 0
2016).
Atlantic white-sided dolphin... Lagenorhynchus acutus. Western North Atlantic -/-; N 93,233 (0.71;54,443; 544 27
2016).
Bottlenose dolphin............. Tursiops truncatus.... Western North -/-; N 62,851 (0.23; 51,914; 519 28
Atlantic, Offshore. 2016).
Bottlenose dolphin............. Tursiops truncatus.... Western North -/D; Y 6,639 (0.41; 4,759; 48 12.2-21.5
Atlantic, Northern 2016).
Migratory Coastal.
Long-finned pilot whale........ Globicephala melas.... Western North Atlantic -/-; N 39,215 (0.3; 30,627; 306 9
2016).
Risso's dolphin................ Grampus griseus....... Western North Atlantic -/-; N 35,215 (0.19; 30,051; 301 34
2016).
Common dolphin................. Delphinus delphis..... Western North Atlantic -/-; N 172,974 (0.21; 1,452 390
145,216; 2016).
Family Phocoenidae (porpoises):
Harbor porpoise................ Phocoena phocoena..... Gulf of Maine/Bay of -/-; N 95,543 (0.31; 74,034; 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \5\.................. Halichoerus grypus.... Western North Atlantic -/-; N 27,300 (0.22; 22,785; 1,389 4,453
2016).
[[Page 42330]]
Harbor seal.................... Phoca vitulina........ Western North Atlantic -/-; N 61,336 (0.08; 57,637; 1,729 329
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>; Committee on Taxonomy (2022)).
\2\ 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.
\3\ 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 coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (M/SI; e.g.,
commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A
CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ NMFS's 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 M/SI given is for the total stock.
A detailed description of the species likely to be affected by this
project, including brief introductions to the species and relevant
stocks, population trends and threats, and local occurrence, were
provided in the Federal Register notice for the proposed IHA (88 FR
24574, 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 the 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., 2005, Wartzok and
Ketten, 1999, Au and Hastings, 2008). To reflect this, Southall et al.
(2007), Southall et al. (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 approximately 65 dB threshold from
normalized composite audiogram, with the exception for lower limits
for LF cetaceans (Southall et al. 2007) and PW pinniped
(approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006, Kastelein et al., 2009, Reichmuth et al.,
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 24574, 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
24574, 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
[[Page 42331]]
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 sparkers. 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 authorized take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Ellison et al., 2012, Southall et al., 2007, Southall et
al., 2021). 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 (RMS) SPL of 120 dB (referenced to 1
microPascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources.
Generally speaking, Level B harassment take estimates based on
these behavioral harassment thresholds are expected to include any
likely takes by TTS as, in most cases, the likelihood of TTS occurs at
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.
COSW's marine site characterization surveys include the use of
impulsive (i.e., sparker) sources, and therefore the RMS SPL threshold
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; NMFS, 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>.
COSW's marine site characterization surveys include the use of
impulsive (i.e., 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 COSW's application for
details of a quantitative exposure analysis exercise (i.e., calculated
Level A harassment isopleths and estimated Level A harassment
exposures). COSW did not request authorization of take by Level A
harassment, and no take by Level A harassment is authorized by NMFS.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
NMFS has developed a user-friendly methodology for estimating the
extent of the Level B harassment isopleths associated with relevant HRG
survey equipment (NMFS, 2020). This methodology incorporates frequency
and directionality (when relevant) to refine estimated ensonified
zones. For acoustic sources that operate with different beamwidths, the
maximum beamwidth was used, and the lowest frequency of the source was
used when calculating the frequency-dependent absorption coefficient.
COSW 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 24574, April 21, 2023) shows the HRG equipment type
used during the
[[Page 42332]]
planned surveys and the source levels associated with those HRG
equipment types.
COSW plans to use the Applied Acoustics Dura-Spark UHD 400+400 (400
tip/300-1000 J) and the Geo-Source 200-400 Marine Multi-tip Sparker
System (400 tip/300-1000 J). For all source configurations (Table 1 in
the Federal Register notice for the proposed IHA (88 FR 24574, April
21, 2023)), the maximum power expected to be discharged from the
sparker source is 1,000 J. However, Crocker and Fratantonio (2016) did
not measure the Dura-Spark with an energy of 1,000 J, only 500 J, 2,000
J, and 2,400 J, so the source level values for 500 J (provided in Table
10 of Crocker and Fratantonio, 2016) were used as a proxy, as this
setting was anticipated to be more representative of the application of
the equipment than the next level reported for 2,000 J. The Applied
Acoustics Dura-Spark was also used as a proxy for the Geo-Source 200-
400 Marine Multi-tip Sparker System (400 tip/300-1000 J). Using the
measured source level of 203 dB RMS SPL of the proxy, results of
modeling indicated that both sparkers would produce an estimated
distance of 141 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
(Table 1 in the Federal Register notice for the proposed IHA (88 FR
24574, April 21, 2023)) that has the potential to result in Level B
harassment of marine mammals, both systems would produce the same
distance to the Level B harassment isopleth (141 m). More detail is
provided on the acoustic sources and methodology in the Federal
Register notice for the proposed IHA; please refer to the Federal
Register notice (88 FR 24574, April 21, 2023).
Marine Mammal Occurrence
In this section, we provide information about the occurrence of
marine mammals, including density or other relevant information that
will inform the take calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016; Roberts et al.,
2022) represent the best available information regarding marine mammal
densities in the planned 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 in 2016
and models for all taxa were updated in 2022 (Roberts et al., 2016;
Roberts et al., 2022). 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 et al. (2022)
were mapped using a geographic information system (GIS). For the survey
area, the monthly densities of each species as reported by Roberts et
al. (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 COSW's IHA application. Below, we discuss how
densities were assumed to apply to specific species for which the
Roberts et al. (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 Western North Atlantic Offshore Stock (Offshore
Stock)); however, Roberts et al. (2022) do not differentiate by stock.
The Coastal Stock is assumed to generally occur in waters <20 m (65 ft)
and the Offshore Stock in waters deeper than 20 m (65 ft) isobath. The
Lease Area is in waters >20 m (65 ft) depth and only the Offshore Stock
would occur and potentially be taken by survey effort in that area.
Both stocks could occur in the ECR Area, so COSW calculated separate
mean seasonal densities for the portion that is <20 m depth and for the
portion that is >20 m depth to use for estimating take of the Coastal
and Offshore Stocks of bottlenose dolphins, respectively.
Furthermore, the Roberts et al. (2022) density model does not
differentiate between the different pinniped species. For seals, given
their size and behavior when in the water, seasonality, and feeding
preferences, there is limited information available on species-specific
distribution. Density estimates from Roberts et al. (2022) include all
seal species that may occur in the Western North Atlantic combined
(i.e., gray, harbor, harp, hooded). For this IHA, only gray seals and
harbor seals are reasonably expected to occur in the survey area;
densities of seals were split evenly between these two species.
Finally, the Roberts et al. (2022) density model does not
differentiate between 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). We assume that all pilot whales near the project area would
be long-finned pilot whales due to their range overlapping and short-
finned pilot whales are not anticipated to occur as far north as the
survey area (Garrison and Rosel, 2017). For this IHA, densities of
pilot whales are assumed to be only long-finned pilot whale.
Take Estimation
Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and 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 were calculated, as described above. The distance (i.e., 141
m distance associated with both sparker systems) to the Level B
harassment criterion and the total length of the survey trackline were
then used to calculate the total ensonified area, or harassment zone,
around the survey vessel.
COSW proposes to conduct HRG surveys for a maximum total of 30,467
km trackline length, of which a maximum of 28,290 km are in the Lease
Area and 2,177 km are in the ECR Area. Of the ECR Area trackline, 400
km are in waters <20 m depth. COSW is requesting take based on the 3D
scenario as it results in the largest estimated harassment zone based
on the planned equipment configuration, trackline distance, and
resulting ensonified area. The 3D scenario would use a three sparker
array with 400 tips (either Geo-Source 200-400 or Applied Acoustics
Dura-Spark UHD) activating
[[Page 42333]]
sequentially 750 milliseconds apart, so the Harassment Zone was modeled
for each sparker and allowed for up to the maximum proposed 16.7 m
spacing between each sparker (see Figure 6-2 in the application). Based
on this, the distance to Level B harassment threshold from the center
line of the 3D scenario survey was estimated to be 157.7 m (R). Based
on the maximum estimated distance to the Level B harassment threshold
and maximum total survey length, the total ensonified area is 9,611
km\2\ (8,923 km\2\ Lease Area and 688 km\2\ ECR Area), based on the
following formula, where the total estimated trackline length (L) in
each area was used and buffered with the horizontal distance to the
Level B harassment threshold (R) for the 3D scenario to determine the
total area ensonified to 160 dB RMS SPL.
Harassment Zone = (L x 2R) + [pi]R\2\
This is a conservative estimate as it assumes the scenario that
results in the greatest distance to the Level B harassment threshold
(3D scenario) would be operated at all times during the entire survey,
which may not ultimately occur.
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 (up to 293 days). A
summary of this method is illustrated in the following formula, where
the Harassment Zone is multiplied by the highest seasonal mean density
(D) of each species or stock (animals/km\2\; except for pilot whales
where annual density was used based on data availability).
Estimated Take = Harassment Zone x D
The resulting take of marine mammals (Level B harassment) shown in
Table 3.
Table 3--Estimated Take Numbers and Total Take Authorized
----------------------------------------------------------------------------------------------------------------
Estimated take -- Estimated take -- Total take Percent of
Species lease area ECR area authorized abundance \1\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale.......... 23 1 24 6.8
Humpback whale...................... 44 2 46 0.4
Fin whale........................... 73 3 76 1.1
Sei whale........................... 23 1 24 0.4
Minke whale......................... 286 18 304 1.4
Sperm whale......................... 10 0 10 0.1
Risso's dolphin..................... 57 2 59 0.2
Long-finned pilot whale............. 77 1 78 0.2
Atlantic white-sided dolphin........ 409 18 427 0.5
Common dolphin...................... 5,431 141 5,572 3.2
Atlantic spotted dolphin............ 315 5 320 0.8
Harbor porpoise..................... 1,807 105 1,912 2
Common bottlenose dolphin (Offshore 1,212 104 1,316 2.1
Stock).............................
Common bottlenose dolphin (Northern 0 115 115 1.7
Migratory Coastal Stock)...........
Gray seal........................... 1,764 191 1,955 \2\ 0.4
Harbor seal......................... 1,764 191 1,955 2.1
----------------------------------------------------------------------------------------------------------------
Note: take requests are all greater than average group size (see Appendix C of application).
\1\ Based on the 2022 draft marine mammal SARs.
\2\ This abundance estimate is based on the total stock abundance (including animals in Canada). The NMFS stock
abundance estimate for U.S. population is only 27,300.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, NMFS considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and,
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
The following mitigation measures must be implemented during COSW's
planned marine site characterization surveys. Pursuant to section 7 of
the ESA, COSW would also be required to adhere to relevant Project
Design Criteria (PDC) of the NMFS' 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
COSW must employ independent, dedicated, trained PSOs, meaning that
the PSOs must (1) be employed by a third-party observer provider, (2)
have
[[Page 42334]]
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 in which use of the sparker
source is planned to occur, and whenever the sparker source is in the
water, whether activated or not), a minimum of one visual PSO must be
on duty on each source vessel and conducting visual observations at all
times during daylight hours (i.e., from 30 minutes (min) prior to
sunrise through 30 min 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 min prior to ramp-up (described below) and
must continue until 1 hr after use of the sparker 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 source (rather than being based around the vessel itself).
Two shutdown zones are defined, depending on the species and
context. Here, an extended shutdown zone encompassing the area at and
below the sea surface out to a radius of 500 m from the sparker 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. 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 hr between watches and may conduct a
maximum of 12 hr of observation per 24-hr period.
Pre-Start Clearance and Ramp-Up Procedures
A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
sparker sources when technically feasible. Operators should ramp up
sparker to half power for 5 min and then proceed to full power. A 30
min 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 min) 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 min prior to the planned ramp-up in
order to allow the PSOs time to monitor the shutdown zones for 30 min
prior to the initiation of ramp-up (pre-start clearance). During this
30 min 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; and
<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.
<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 min 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 min for all
baleen whale species and sperm whales, 15 min for all other species).
<bullet> PSOs must monitor the shutdown zones 30 min 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 min prior to beginning ramp-up.
Sparker 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., <30
min) for reasons other than implementation of prescribed mitigation
(e.g., mechanical difficulty), it may be activated again without ramp-
up if PSOs have maintained constant visual observation and no
detections of marine mammals have occurred within the applicable
shutdown zone. For any longer shutdown, pre-start clearance observation
and ramp-up are required.
Shutdown Procedures
All operators must adhere to the following shutdown requirements:
<bullet> Any PSO on duty has the authority to call for shutdown of
the sparker 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 source is active and a marine mammal
appears within or enters the applicable shutdown zone, the source must
be shut down. When
[[Page 42335]]
shutdown is instructed by a PSO, the sparker source must be immediately
deactivated and any dispute resolved only following deactivation; and
<bullet> Two 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 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.
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 min for all baleen
whale species and sperm whales, 15 min 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 (158 m), shutdown must occur.
Vessel Strike Avoidance
Crew and supply vessel personnel must 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-kn
(18.52-km/h) speed restriction in specific areas designated by NMFS for
the protection of NARWs from vessel strikes. These include all SMAs
established under 50 CFR 224.105 (when in effect), any DMAs (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 kn (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), sperm whale, and any 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 minke whales.
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m from all
other marine mammals, with an understanding that at times this may not
be possible (e.g., for animals that approach the vessel).
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel must take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area, reduce speed and shift
the engine to neutral). This does not apply to any vessel towing gear
or any vessel that is navigationally constrained.
Members of the PSO team will consult NMFS 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 COSW'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 kn (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 Area
----------------------------------------------------------------------------------------------------------------
Survey area Species DMA restrictions Slow zones SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area...................... North Atlantic If established by If established by N/A.
right whale. NMFS, all of NMFS, all of
COSW's vessel COSW's vessel
will abide by the will abide by the
described described
restrictions. restrictions.
[[Page 42336]]
ECR Area (within SMA)........... North Atlantic If established by If established by November 1 through
right whale. NMFS, all of NMFS, all of April 31 (Ports
COSW's vessel COSW's vessel of New York/New
will abide by the will abide by the Jersey).
described described
restrictions. restrictions.
ECR Area (outside SMA).......... North Atlantic If established by If established by N/A.
right whale. NMFS, all of NMFS, all of
COSW's vessel COSW's vessel
will abide by the will abide by the
described described
restrictions. restrictions.
----------------------------------------------------------------------------------------------------------------
More information on vessel 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
planned 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. COSW 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 operator. To the maximum extent practicable, the
duty schedule shall be planned such that unconditionally-approved PSOs
are on duty with conditionally-approved PSOs.
A ``trained lookout'' may be used on a space-limited nearshore
vessel (generally operating in water less than 20 m depth for no more
than 12 hr/day) during required breaks for the approved PSO on duty.
Project-specific training must be conducted for all vessel crew with
``lookout'' responsibilities prior to the start of a survey and during
any changes in crew such that all relevant survey personnel are fully
aware and understand the mitigation, monitoring, and reporting
requirements. All vessel crew members operating as a trained lookout
must be briefed in the identification of protected species that may
occur in the survey area and in relevant mitigation requirements.
Reference materials must be available aboard all project vessels for
identification of protected species. Should a mitigation action be
taken, the Trained Lookout will immediately notify the off-watch PSO to
ensure that the appropriate response was taken and sightings and
mitigation measures are properly documented (i.e., if shutdown was
called for or avoidance measures for large whales/vessel strike
avoidance taken, the Trained Lookout immediately notifies the off-watch
PSO). If the survey is operating within a DMA or Slow Zone, the survey
may only operate with a PSO on-watch.
[[Page 42337]]
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 more)
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).
COSW 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 (GPSs) (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, also known as
an 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 COSW 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
COSW 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
<a href="/cdn-cgi/l/email-protection#1e4e4c30574a4e30537170776a716c7770794c7b6e716c6a6d5e70717f7f30797168"><span class="__cf_email__" data-cfemail="d28280fc9b8682fc9fbdbcbba6bda0bbbcb580b7a2bda0a6a192bcbdb3b3fcb5bda4">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#0c62616a7f226b6d7e2265626f65686962786d6021786d67694c62636d6d226b637a"><span class="__cf_email__" data-cfemail="0a64676c79246d6b7824636469636e6f647e6b66277e6b616f4a64656b6b246d657c">[email protected]</span></a>
and <a href="/cdn-cgi/l/email-protection#327b66621c515e5744575c41465b5c57725c5d53531c555d44"><span class="__cf_email__" data-cfemail="723b26225c111e1704171c01061b1c17321c1d13135c151d04">[email protected]</span></a>.
PSOs must use standardized electronic data forms to record data.
PSOs shall record detailed information
[[Page 42338]]
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 (GMT)) of survey on/off
effort and times corresponding with PSO on/off effort;
8. Vessel location (decimal degrees) when survey effort begins and
ends and vessel location at beginning and end of visual PSO duty
shifts;
9. Vessel location at 30-second intervals if obtainable from data
collection software, otherwise at practical regular interval;
10. Vessel heading and speed at beginning and end of visual PSO
duty shifts and upon any change;
11. Water depth (if obtainable from data collection software);
12. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including BSS and any other relevant weather conditions including cloud
cover, fog, sun glare, and overall visibility to the horizon;
13. Factors that may contribute to impaired observations during
each PSO shift change or as needed as environmental conditions change
(e.g., vessel traffic, equipment malfunctions);
14. Survey activity information (and changes thereof), such as
acoustic source power output while in operation, number and volume of
airguns operating in an array, tow depth of an acoustic source, and any
other notes of significance (i.e., pre-start clearance, ramp-up,
shutdown, testing, shooting, ramp-up completion, end of operations,
streamers, etc.); and
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, COSW must
report the sighting information to the NMFS NARW Sighting Advisory
System (866-755-6622) within 2 hr of occurrence, when practicable, or
no later than 24 hr after occurrence. NARW sightings in any location
may also be reported to the U.S. Coast Guard via channel 16 and through
the Whale Alert app (<a href="http://www.whalealert.org">http://www.whalealert.org</a>).
In the event that personnel involved in the survey activities
discover an injured or dead marine mammal, the incident must be
reported to NMFS as soon as feasible by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#afc1c2c9dc81c8cedd81c6c1ccc6cbcac1dbcec382dbcec4caefc1c0cece81c8c0d9"><span class="__cf_email__" data-cfemail="157b7873663b7274673b7c7b767c71707b6174793861747e70557b7a74743b727a63">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#4414166a0d10146a092b2a2d302b362d2a231621342b363037042a2b25256a232b32"><span class="__cf_email__" data-cfemail="b3e3e19dfae7e39dfedcdddac7dcc1daddd4e1d6c3dcc1c7c0f3dddcd2d29dd4dcc5">[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 vessel strike of a marine mammal by any vessel
involved in the activities, COSW must report the incident to NMFS by
phone (866-755-6622) and by email (<a href="/cdn-cgi/l/email-protection#0e6063687d20696f7c2067606d676a6b607a6f62237a6f656b4e60616f6f20696178"><span class="__cf_email__" data-cfemail="fe9093988dd0999f8cd097909d979a9b908a9f92d38a9f959bbe90919f9fd0999188">[email protected]</span></a>
and <a href="/cdn-cgi/l/email-protection#3e6e6c10776a6e10735150574a514c5750596c5b4e514c4a4d7e50515f5f10595148"><span class="__cf_email__" data-cfemail="065654284f5256284b69686f7269746f686154637669747275466869676728616970">[email protected]</span></a>) as soon as feasible. The report
would include the following information:
1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
11. Estimated fate of the animal (e.g., dead, injured but alive,
injured and
[[Page 42339]]
moving, blood or tissue observed in the water, status unknown,
disappeared); and
12. To the extent practicable, photographs or video footage of the
animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338,
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
To avoid repetition, the majority of our analysis applies to all
the species listed in Table 1, given that some of the anticipated
effects of this project on different marine mammal stocks are expected
to be relatively similar in nature. Where there are meaningful
differences between species or stocks, or groups of species, in
anticipated individual responses to activities, impact of expected take
on the population due to differences in population status, or impacts
on habitat, they are included as separate sub-sections 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 158 m (rounded up from the 157.7 m Level
B harassment isopleth). 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 9,611 km\2\ of total estimated Level B harassment
ensonified area associated with the Survey Area) 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 vessel strike during migration; no vessel strike is
expected to occur during COSW's planned activities. Additionally, only
very limited take by Level B harassment of NARWs has been requested and
is 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 zone for the most
impactful acoustic source (i.e., sparker) is estimated to be 158 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 NARW takes that would result from COSW'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 COSW'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 (i.e., vessel strike, entanglement). The UME does not
yet provide cause for concern regarding population-level impacts.
Despite the
[[Page 42340]]
UME, the relevant population of humpback whales (the West Indies
breeding population, or distinct population segment) remains stable at
approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales.
Elevated numbers of harbor seal and gray seal mortalities were
first observed between 2018-2020 and, as part of a separate UME, again
in 2022. These have occurred across Maine, New Hampshire, and
Massachusetts. Based on tests conducted so far, the main pathogen found
in the seals is phocine distemper virus (2018-2020) and avian influenza
(2022), although additional testing to identify other factors that may
be involved in the UMEs is underway. The UMEs do not provide cause for
concern regarding population-level impacts to any of these stocks. For
harbor seals, the population abundance is over 60,000 and annual M/SI
(339) is well below PBR (1,729) (Hayes et al., 2022). 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., 2022).
The required mitigation measures are expected to reduce the number
and/or severity of takes for all species listed in Table 1, including
those with active UMEs, to the level of least practicable adverse
impact. In particular, they would provide animals the opportunity to
move away from the sound source before HRG survey equipment reaches
full energy, thus preventing them from being exposed to sound levels
that have the potential to cause injury. No Level A harassment is
anticipated, even in the absence of mitigation measures, or authorized.
NMFS expects that takes would be in the form of short-term Level B
harassment by way of brief startling reactions and/or temporary
vacating of the area, or decreased foraging (if such activity was
occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures would
further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect any of the species or stocks
through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or authorized;
<bullet> Foraging success is not likely to be significantly
impacted as effects on species that serve as prey species for marine
mammals from the survey are expected to be minimal;
<bullet> The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the ensonified areas
during the planned survey to avoid exposure to sounds from the
activity;
<bullet> Take is anticipated to be by Level B harassment only
consisting of brief startling reactions and/or temporary avoidance of
the ensonified area;
<bullet> Survey activities 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 (over three times the
size of the Level B harassment zone of 158 m) to minimize the effects
of any Level B harassment take of the species; and,
<bullet> The planned 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 planned 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 relative to the best available population abundance is less
than 7 percent for any of the 16 managed stocks (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 planned 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 ESA (16 U.S.C. 1531 et seq.) requires that
each Federal agency insure that any action it authorizes, funds, or
carries out is not likely to jeopardize the continued existence of any
endangered or threatened species or result in the destruction or
adverse modification of designated critical habitat. To ensure ESA
compliance for the issuance of IHAs, NMFS consults internally whenever
we propose to authorize take for endangered or threatened species.
NMFS Office of Protected Resources (OPR) has authorized take of
four species of marine mammals which are listed under the ESA,
including NARW,
[[Page 42341]]
fin whale, sei whale, and sperm whale, and determined these activities
fall within the scope of activities analyzed in the NMFS 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) and
alternatives 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 this IHA qualifies to be categorically excluded
from further NEPA review.
Authorization
NMFS has issued an IHA to COSW for the potential harassment of
small numbers of 15 marine mammal species (16 stocks) incidental to
conducting marine site characterization surveys in coastal waters off
of New Jersey and New York in the New York Bight for a period of 1 year
that includes the previously explained mitigation, monitoring, and
reporting requirements. The IHA can be found at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-community-offshore-wind-llc-marine-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-community-offshore-wind-llc-marine-site-characterization</a>.
Dated: June 27, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-13990 Filed 6-29-23; 8:45 am]
BILLING CODE 3510-22-P
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