Notice2023-16292
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys Offshore From Massachusetts to New Jersey for Vineyard Northeast, LLC
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
August 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 incidental harassment authorization (IHA) to Vineyard Northeast, LLC (Vineyard Northeast) to incidentally harass, by Level B harassment only, marine mammals during marine site characterization surveys offshore from Massachusetts to New Jersey.
Full Text
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<title>Federal Register, Volume 88 Issue 146 (Tuesday, August 1, 2023)</title>
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[Federal Register Volume 88, Number 146 (Tuesday, August 1, 2023)]
[Notices]
[Pages 50117-50130]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16292]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD107]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Site Characterization Surveys
Offshore From Massachusetts to New Jersey for Vineyard Northeast, LLC
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Vineyard Northeast, LLC (Vineyard Northeast) to incidentally harass, by
Level B harassment only, marine mammals during marine site
characterization surveys offshore from Massachusetts to New Jersey.
DATES: This Authorization is effective for 1 year from date of
issuance.
ADDRESSES: Electronic copies of the original application and supporting
documents (including NMFS Federal Register notices of the original
proposed and final authorizations, and the previous IHA), as well as a
list of the references cited in this document, may be obtained online
at: <a href="https://www.fisheries.noaa.gov/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 below.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.
History of Request
On December 17, 2021, NMFS received a request from Vineyard
Northeast for an IHA to take marine mammals incidental to high-
resolution geophysical (HRG) marine site characterization surveys
offshore from Massachusetts to New Jersey, in the area of Commercial
Lease of Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf Lease Areas OCS-A 0522 and OCS-A 0544 (Lease Areas)
and potential offshore export cable corridor (OECC) routes to landfall
locations. Vineyard Northeast requested authorization to take small
numbers of 19 species (comprising 20 stocks) of marine mammals by Level
B harassment only. NMFS published a notice of the proposed IHA in the
Federal Register on May 20, 2022 (87 FR 30872). After a 30-day public
comment period and consideration of all public comments received, we
subsequently issued the 2022 IHA, which was effective from July 27,
2022, to July 26, 2023 (87 FR 52913, August 30, 2022).
Vineyard Northeast completed a subset of the survey work under the
2022 IHA and submitted a preliminary monitoring report, which
demonstrates that they conducted the required marine mammal mitigation
and monitoring, and did not exceed the authorized levels of take under
the previous IHA issued for surveys offshore from Massachusetts to New
Jersey (See 87 FR 52913, August 30, 2022). These monitoring results are
available to the public on our website: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
On April 17, 2023, NMFS received a request from Vineyard Northeast
for an IHA to take marine mammals incidental to HRG marine site
characterization surveys offshore from Massachusetts to New Jersey in
the areas of Bureau of Ocean Energy Management (BOEM) Commercial Lease
of Submerged Lands for Renewable Energy Development on the OCS-A 0522
(Lease Area), OCS-A 0544 (Lease Area), and associated OECC routes.
Following NMFS' review of the application, Vineyard Northeast submitted
a revised request on May 25, 2023. The application (the 2023 request)
was deemed adequate and complete on May 25, 2023. Vineyard Northeast's
request is for take of 19 species (comprising 20 stocks) of marine
mammals, by Level B harassment only. Neither Vineyard Northeast nor
NMFS expect serious injury or mortality to result from this activity
and, therefore, an IHA is appropriate.
The activities described in Vineyard Northeast's request and the
acoustic sources authorized for use are identical to what was
previously analyzed in support of the IHA issued by NMFS to Vineyard
Northeast for 2022 site characterization surveys (2022 IHA) (87 FR
30872, May 20, 2022; 87 FR 52913, August 30, 2022), although the survey
duration and project area will be a subset of the survey effort
authorized for the 2022 IHA as a portion of this effort has been
completed. All mitigation, monitoring, and reporting requirements
remain the same. While Vineyard Northeast's activity would have
qualified for renewal of the 2022 IHA, due to the availability of
updated marine mammal density data (<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a> EC/), which NMFS has determined represents the best available
scientific data, NMFS determined to proceed with a new IHA process
rather than a renewal, providing a 30-day period for the public to
comment on the proposed action.
The 2023 request is nearly identical to the 2022 IHA, with the
exception that the survey effort is a subset of the original effort
authorized for the 2022
[[Page 50118]]
IHA. In evaluating the 2023 request and to the extent deemed
appropriate, NMFS also relied on the information presented in notices
associated with issuance of the 2022 IHA (87 FR 30872, May 30 2022; 87
FR 52913, August 30, 2022).
No changes were made from the proposed to the final IHA.
Description of the Activity and Anticipated Impacts
Overview
Vineyard Northeast will conduct HRG marine site characterization
surveys in the BOEM Lease Areas OCS-A 0522 and 0544 and along potential
submarine OECC's from southern Massachusetts to southern New Jersey.
The purpose of the surveys is to obtain an assessment of seabed
(geophysical, geotechnical, and geohazard), ecological, and
archeological conditions within the footprint of the planned offshore
wind facility development area. Surveys are also conducted to inform
and support engineering design and to map unexploded ordnance. Survey
equipment will be deployed from multiple vessels during site
characterization activities in the project area, and up to two vessels
will operate at a time in the lease areas and along the OECCs. During
survey effort, the vessel will operate at a maximum speed of 4 knots
(4.6 miles or 7.4 kilometers (km) per hour). Underwater sound,
resulting from Vineyard Northeast's activities, has the potential to
result in incidental take of marine mammals in the form of Level B
harassment.
The planned activity is estimated to require 467 survey days
(37,360 km of trackline) using a maximum of four concurrently operating
survey vessels, and is expected to be carried out over the course of
the 1-year period beginning from the date of issuance of this IHA.
Underwater sound resulting from Vineyard Northeast's survey
activities during use of specific active acoustic sources has the
potential to result in incidental take of marine mammals in the form of
behavioral harassment (Level B harassment). Geophysical activities were
discussed previously for the 2022 IHA NMFS issued to Vineyard Northeast
(87 FR 52913, August 30, 2022) and, as no new information has been
presented that changed our determinations on these activities, this
information will not be reiterated here. The mitigation, monitoring,
and reporting measures are described in more detail later in this
document (please see Description of Mitigation, Monitoring, and
Reporting).
A detailed description of Vineyard Northeast's planned surveys is
provided in the Federal Register notice of the proposed IHA (88 FR
40212, June 21, 2023) and the 2022 Federal Register notice (87 FR
30872, May 30 2022; 87 FR 52913, August 30, 2022). Since that time, no
changes have been made to the survey activities. Therefore, a detailed
description is not provided here. Please refer to those Federal
Register notices for the description of the specified activities.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Vineyard Northeast
was published in the Federal Register on June 21, 2023 (88 FR 40212).
That notice described, in detail, Vineyard Northeast's proposed
activities, the marine mammal species that may be affected by these
activities, and the anticipated effects on marine mammals. We requested
public input on the request for authorization described therein, our
analyses, the proposed authorization, and requested that interested
persons submit relevant information, suggestions, and comments.
NMFS received 39 public comment letters. Three of these comment
letters were from non-governmental organizations: Oceana, Clean Ocean
Action (COA), and Sea Life Conservation (SLC). The remaining 36 comment
letters were from private citizens. The majority of these expressed
general opposition to issuance of the IHA or to the underlying
associated activities, but without providing specific information
relevant to NMFS' request for public comment. Three of the letters from
private citizens provided substantive comments that are addressed
below.
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. 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 to
authorize take incidental to Vineyard Northeast's survey activities. We
do not specifically address comments expressing general opposition to
activities related to wind energy development or respond to comments
not relevant to the scope of the proposed IHA (88 FR 40212, June 21,
2023), such as comments on other Federal agency processes and
activities not authorized under this IHA (e.g., seismic surveys,
offshore wind construction, installation of wind turbines, other marine
site characterization surveys).
All substantive comments and NMFS' responses are provided below,
and all substantive comments are available on NMFS' website: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. Please see the comment letters for full
details regarding the comments and associated rationale.
Comment 1: COA states that BOEM has no legal authority for
permitting offshore geotechnical and geophysical survey activities,
based on text from the proposed BOEM Renewable Energy Modernization
proposed rule (88 FR 5968, January 30, 2023; 88 FR 19578, April 3,
2023). They further state that this has allowed for no oversight with
regards to surveys off New Jersey and New York and that they do not
understand how BOEM can make assertions without regulations/guidance
for HRG survey work.
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 2: COA expressed concerns with the high amount of increased
vessel traffic associated with the offshore wind projects in the two
lease areas transited or utilized by certain protected resources, as
well as concern for vessel noise.
Response: Vineyard Northeast did not request authorization for take
incidental to vessel traffic during their marine site characterization
survey. Nevertheless, NMFS analyzed the potential for vessel strikes to
occur during the survey, and determined that the potential for vessel
strike is so low as to be discountable. NMFS does not authorize any
take of marine mammals incidental to vessel strike resulting from the
survey. If Vineyard Northeast were to strike a marine mammal with a
vessel, this would be an unauthorized take in violation of the MMPA.
This gives Vineyard Northeast a strong incentive to operate its vessels
with all due caution and to effectively implement the suite of vessel
strike avoidance measures required by the IHA. Vineyard Northeast
proposed a very conservative suite of mitigation measures related to
vessel
[[Page 50119]]
strike avoidance, including measures specifically designed to avoid
impacts to North Atlantic right whale (NARWs). Section 4(f) in the IHA
contains a suite of non-discretionary requirements pertaining to vessel
strike avoidance, including vessel operation protocols and monitoring.
To date, NMFS is not aware of any site characterization vessel from
surveys reporting a vessel strike within the United States. When
considered in the context of low overall probability of any vessel
strike by Vineyard Northeast vessels, given the limited additional
survey-related vessel traffic relative to existing traffic in the
survey area, the comprehensive visual monitoring, and other additional
mitigation measures described herein, NMFS believes these measures are
sufficiently protective to avoid vessel strike. These measures are
described fully in the Description of Mitigation, Monitoring, and
Reporting section below, and include, but are not limited to: training
for all vessel observers and captains, daily monitoring of NARW
Sighting Advisory System, WhaleAlert app, and USCG Channel 16 for
situational awareness regarding NARW presence in the survey area,
communication protocols if whales are observed by any Vineyard
Northeast personnel, vessel operational protocol should any marine
mammal be observed, and visual monitoring.
The potential for impacts related to an overall increase in the
amount of vessel traffic due to offshore wind development is separate
from the aforementioned analysis of potential for vessel strike during
Vineyard Northeast's specified survey activities. For more information,
please see the response to comment 5 discussing cumulative impacts.
Comment 3: Oceana and COA stated that NMFS must utilize the best
available science and suggested that NMFS has not done so, specifically
referencing information regarding the NARW such as updated population
estimates, habitat usage in the survey area, and seasonality
information. Oceana and COA specifically assert that NMFS is not using
the best available science with regards to the NARW population
estimate.
Response: NMFS agrees that the best available science must be used
in determining whether a request for incidental take of marine mammals
will have a negligible impact on species or stocks of marine mammals
and, where appropriate, will not have an unmitigable adverse impact on
the availability of such species or stock for subsistence uses. NMFS
considered all relevant information regarding NARW abundance estimates,
including the commenter's cited information, and determined that the
abundance estimate (338; 95 percent with a confidence interval of 325-
350) included in the 2022 draft Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>)), is the best available NARW abundance
estimate (88 FR 32735, May 22, 2023).
NMFS also considered the best available science regarding both
recent habitat usage patterns for the study area and up-to-date
seasonality information in the notice of the proposed IHA, including
consideration of existing Biologically Important Areas (BIAs) and
densities provided by Roberts et al. (2023). While the commenter
suggested that NMFS consider best available information for recent
habitat usage patterns and seasonality, they did not offer any
additional information for NMFS to consider in place of what NMFS
considered the best available science in its notice of proposed IHA (88
FR 40212, June 21, 2023).
Comment 4: Oceana noted that chronic stressors are an emerging
concern for NARW conservation and recovery and stated that chronic
stress may result in energetic effects for NARW. Oceana suggested that
NMFS has not fully considered both the use of the area and the effects
of both acute and chronic stressors on the health and fitness of NARW,
as disturbance responses in NARW could lead to chronic stress or
habitat displacement, leading to an overall decline in their health and
fitness.
Response: NMFS agrees with Oceana that both acute and chronic
stressors are of concern for NARW conservation and recovery. We
recognize that acute stress from acoustic exposure is one potential
impact of these surveys, and that chronic stress can have fitness and
reproductive impacts at the population-level scale. NMFS has carefully
reviewed the best available scientific information in assessing impacts
to marine mammals and recognizes that the surveys have the potential to
impact marine mammals through behavioral effects, stress responses, and
auditory masking. However, NMFS does not expect that the generally
short-term, intermittent, and transitory marine site characterization
survey activities planned by Vineyard Northeast will create conditions
of acute or chronic acoustic exposure leading to long-term
physiological stress responses in marine mammals. NMFS has also
prescribed a robust suite of mitigation measures, including extended
distance shutdowns for NARW, that are expected to further reduce the
duration and intensity of acoustic exposure while limiting the
potential severity of any possible behavioral disruption. The potential
for chronic stress was evaluated in making the determinations presented
in NMFS' negligible impact analyses. NARW generally use this location
in a transitory manner, specifically for migration, and any potential
impacts from these surveys are lessened for other behaviors due to the
brief periods where exposure is possible. In context of these expected
low-level impacts, which are not expected to meaningfully affect
important behavior, we refer to the large size of the migratory
corridor (269,488 km\2\) compared with the approximately 33,814 km\2\
survey area. Thus, the transitory nature of NARW at this location means
it is unlikely for any exposure to cause chronic effects, as Vineyard
Northeast's planned survey area and ensonified zones are much smaller
than the overall migratory corridor. As such, NMFS does not expect
acute or cumulative stress to be a detrimental factor to NARW from
Vineyard Northeast's described survey activities.
Comment 5: Several commenters asserted that NMFS must deny all
actions until the cumulative impacts of every incidental take
authorization on marine mammals are considered. Oceana and COA asserted
that NMFS must fully consider the discrete effects of each activity and
the cumulative effects of the suite of approved, proposed, and
potential offshore wind activities on marine mammals and NARW, in
particular, and ensure that the cumulative effects are not excessive
before issuing or renewing an IHA.
Response: NMFS is required to authorize the requested incidental
take if it finds the incidental take by harassment of small numbers of
marine mammals by U.S. citizens ``while engaging in that [specified]
activity'' within a specified geographic region will have a negligible
impact on such species or stock and where appropriate, will not have an
unmitigable adverse impact on the availability of such species or stock
for subsistence uses. 16 U.S.C. 1371(a)(5)(D). Negligible impact is
defined 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). Neither the MMPA nor
NMFS' implementing regulations require consideration of other unrelated
activities and their impacts on marine mammal populations in the
negligible
[[Page 50120]]
impact determination. Additionally, NMFS' implementing regulations
require applicants to include in their request a detailed description
of the specified activity or class of activities that can be expected
to result in incidental taking of marine mammals (50 CFR
216.104(a)(1)). Thus, the ``specified activity'' for which incidental
take coverage is being sought under Section 101(a)(5)(D) is generally
defined and described by the applicant. Consistent with the preamble of
NMFS' implementing regulations (54 FR 40338, September 29, 1989), the
impacts from other past and ongoing anthropogenic activities are
factored into the baseline, which is used in the negligible impact
analysis. Here, 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 preamble of NMFS' implementing regulations (54 FR 40338,
September 29, 1989) also addresses cumulative effects from future,
unrelated activities. Such effects are not considered in making the
negligible impact determination under MMPA Section 101(a)(5). NMFS
considers (1) cumulative effects that are reasonably foreseeable when
preparing a National Environmental Policy Act (NEPA) analysis, and (2)
reasonably foreseeable cumulative effects under section 7 of the
Endangered Species Act (ESA) for ESA-listed species, as appropriate.
Accordingly, NMFS has written Environmental Assessments (EA) that
addressed cumulative impacts related to substantially similar
activities in similar locations (e.g., the 2019 Avangrid EA for survey
activities offshore North Carolina and Virginia; the 2017 Ocean Wind,
LLC EA for site characterization surveys off New Jersey; and the 2018
Deepwater Wind EA for survey activities offshore Delaware,
Massachusetts, and Rhode Island). Cumulative impacts regarding issuance
of IHAs for site characterization survey activities such as those
planned by Vineyard Northeast 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 Vineyard Northeast'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 Vineyard
Northeast 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 6: COA is concerned regarding the number of species that
could be impacted by the activities, as well as a lack of baseline data
available for species in the area, specifically for harbor seals.
Response: We appreciate the concern expressed by COA. NMFS utilizes
the best available science when analyzing which species may be impacted
by an applicant's proposed activities. Based on information found in
the scientific literature, as well as based on density models developed
by Duke University, all marine mammal species included in the proposed
Federal Register Notice have some likelihood of occurring in Vineyard
Northeast's survey areas. Furthermore, the MMPA requires us to evaluate
the effects of the specified activities in consideration of the best
scientific evidence available and, if the necessary findings are made,
to issue the requested take authorization. The MMPA does not allow us
to delay decision making in hopes that additional information may
become available in the future.
Regarding the lack of baseline information cited by COA, with
specific concern pointed out for harbor seals, NMFS points to two
sources of information for marine mammal baseline information: the
Ocean/Wind Power Ecological Baseline Studies, January 2008--December
2009 completed by the New Jersey Department of Environmental Protection
in July 2010 (<a href="https://dspace.njstatelib.org/xmlui/handle/10929/68435">https://dspace.njstatelib.org/xmlui/handle/10929/68435</a>)
and the Atlantic Marine Assessment Program for Protected Species
(AMAPPS; <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected">https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected</a>)
with annual reports available from 2010 to 2020 (<a href="https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species">https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species</a>) that cover the areas across the
Atlantic Ocean. NMFS has duly considered this and all available
information.
Based on the information presented, NMFS has determined that no new
information has become available, nor do the commenters present
additional information, that would change our determinations since the
publication of the proposed notice.
Comment 7: Several commenters expressed 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 Vineyard Northeast'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 marine mammal species listed under the ESA (i.e., GARFO's
analysis conducted pursuant to the ESA finds that marine mammals are
not likely to be taken at all (as that term is defined under the ESA),
much less be taken by serious injury or mortality). That document is
found at <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>.
Comment 8: Oceana states that NMFS must make an assessment of which
activities, technologies and strategies are truly necessary to achieve
site characterization to inform development of the offshore wind
projects and which are not critical, asserting that NMFS
[[Page 50121]]
should prescribe the appropriate survey techniques. In general, Oceana
stated that NMFS must require the IHA applicant to avoid adverse
effects on NARWs in and around the survey site, and then minimize and
mitigate the impacts of underwater noise to the fullest extent
feasible, including through the use of best available technology and
methods to minimize sound levels from geophysical surveys such as
through the use of technically and commercially feasible and effective
noise reduction and attenuation measures.
Response: The MMPA requires that an IHA include measures that will
effect the least practicable adverse impact on the affected species and
stocks and, in practice, NMFS agrees that the IHA should include
conditions for the survey activities that will first avoid adverse
effects on NARWs in and around the survey site, where practicable, and
then minimize the effects that cannot be avoided. NMFS has determined
that the IHA meets this requirement to effect the least practicable
adverse impact. As part of the analysis for all marine site
characterization survey IHAs, NMFS evaluated the effects expected as a
result of the specified activity, made the necessary findings, and
prescribed mitigation requirements sufficient to achieve the least
practicable adverse impact on the affected species and stocks of marine
mammals. It is not within NMFS' purview to set the activities,
technologies, and strategies that applicants may employ to meet their
objectives. As explained above, the ``specified activity'' for which
incidental take coverage is being south under section 101(a)(5)(D) is
generally defined and described by the applicant, not by NMFS.
Comment 9: Oceana suggests that NMFS require the use of Protected
Species Observers (PSOs) and that PSOs complement their survey efforts
using additional technologies, such as infrared detection devices when
in low-light conditions.
Response: NMFS agrees with Oceana regarding these suggestions and
requirements to utilize PSOs for monitoring and for PSOs to use a
thermal (infrared) device during low-light conditions were included in
the proposed Federal Register Notice. That requirement is included in
the issued IHA.
Comment 10: Oceana recommended that NMFS restrict all vessels of
all sizes associated with the proposed survey activities to speeds less
than 10 knots (kn) (18.5 kilometers (km)/hour) at all times due to the
risk of vessel strikes to NARWs and other large whales.
Response: While NMFS acknowledges that vessel strikes can result in
injury or mortality, we have analyzed the potential for vessel strike
resulting from Vineyard Northeast's activity and have determined that
based on the nature of the activity and the required mitigation
measures specific to vessel strike avoidance included in the IHA,
potential for vessel strike is so low as to be discountable. The
required mitigation measures, all of which were included in the
proposed IHA and are now required in the final IHA, include: A
requirement that all vessel operators comply with 10 kn (18.5 km/hour)
or less speed restrictions in any Seasonal Management Area (SMA),
Dynamic Management Area (DMA), or Slow Zone while underway, and check
daily for information regarding the establishment of mandatory or
voluntary vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and
information regarding NARW sighting locations; a requirement that all
vessels greater than or equal to 19.8 meters (m) in overall length
operating from November 1 through April 30 operate at speeds of 10 kn
(18.5 km/hour) or less; a requirement that all vessel operators reduce
vessel speed to 10 kn (18.5 km/hour) or less when any large whale, any
mother/calf pairs, pods, or large assemblages of non-delphinid
cetaceans are observed near the vessel; a requirement that all survey
vessels maintain a separation distance of 500 m or greater from any
ESA-listed whales or other unidentified large marine mammals visible at
the surface while underway; a requirement that, if underway, vessels
must steer a course away from any sighted ESA-listed whale at 10 kn
(18.5 km/hour) or less until the 500 m minimum separation distance has
been established; a requirement that, if an ESA-listed whale is sighted
in a vessel's path, or within 500 m of an underway vessel, the underway
vessel must reduce speed and shift the engine to neutral; a requirement
that all vessels underway must maintain a minimum separation distance
of 100 m from all non-ESA-listed baleen whales; and a requirement that
all vessels underway must, to the maximum extent practicable, attempt
to maintain a minimum separation distance of 50 m from all other marine
mammals, with an understanding that at times this may not be possible
(e.g., for animals that approach the vessel). We have determined that
the vessel strike avoidance measures in the IHA are sufficient to
ensure the least practicable adverse impact on species or stocks and
their habitat. Furthermore, no documented vessel strikes have occurred
for any marine site characterization surveys which were issued IHAs
from NMFS during the survey activities themselves or while transiting
to and from survey sites.
Comment 11: Oceana suggests that NMFS require vessels maintain a
separation distance of at least 500 m from NARWs at all times.
Response: NMFS agrees with Oceana regarding this suggestion and a
requirement to maintain a separation distance of at least 500 m from
NARWs at all times was included in the proposed Federal Register Notice
and was included as a requirement in the issued IHA.
Comment 12: Oceana recommended that the IHA should require all
vessels supporting site characterization to be equipped with and using
Class A Automatic Identification System (AIS) devices at all times
while on the water. Oceana suggested this requirement should apply to
all vessels, regardless of size, associated with the survey.
Response: NMFS is generally supportive of the idea that vessels
involved with survey activities be equipped with and using Class A
Automatic Identification System (devices) at all times while on the
water. Indeed, there is a precedent for NMFS requiring such a
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268,
December 7, 2018); however, these activities carried the potential for
much more significant impacts than the marine site characterization
surveys to be carried out by Vineyard Northeast, with the potential for
both Level A and Level B harassment take. Given the small isopleths and
small numbers of take authorized by this IHA, NMFS does not agree that
the benefits of requiring AIS on all vessels associated with the survey
activities outweighs and warrants the cost and practicability issues
associated with this requirement and therefore the agency has not
included this within the issued IHA.
Comment 13: Oceana asserts that the IHA must include requirements
to hold all vessels associated with site characterization surveys
accountable to the IHA requirements, including vessels owned by the
developer, contractors, employees, and others regardless of ownership,
operator, and contract. They state that exceptions and exemptions will
create enforcement uncertainty and incentives to evade regulations
through reclassification and redesignation. They recommend that NMFS
simplify this by requiring all vessels to abide by the same
requirements, regardless of size, ownership, function, contract or
other specifics.
[[Page 50122]]
Response: NMFS agrees with Oceana and required these measures in
the proposed IHA and final IHA. The IHA requires that a copy of the IHA
must be in the possession of Vineyard Northeast, the vessel operators,
the lead PSO, and any other relevant designees of Vineyard Northeast
operating under the authority of this IHA. The IHA also states that
Vineyard Northeast must ensure that the vessel operator and other
relevant vessel personnel, including the PSO team, are briefed on all
responsibilities, communication procedures, marine mammal monitoring
protocols, operational procedures, and IHA requirements prior to the
start of survey activity, and when relevant new personnel join the
survey operations.
Comment 14: Oceana stated that the IHA must include a requirement
for all phases of the site characterization to subscribe to the highest
level of transparency, including frequent reporting to Federal
agencies. Oceana recommended requirements to report all visual and
acoustic detections of NARWs and any dead, injured, or entangled marine
mammals to NMFS or the Coast Guard as soon as possible and no later
than the end of the PSO shift. Oceana states that to foster stakeholder
relationships and allow public engagement and oversight of the
permitting, the IHA should require all reports and data to be
accessible on a publicly available website.
Response: NMFS agrees with the need for reporting and indeed, the
MMPA calls for IHAs to incorporate reporting requirements. As included
in the proposed IHA, the final IHA includes requirements for reporting
that supports Oceana's recommendations. Vineyard Northeast is required
to submit a monitoring report to NMFS within 90 days after completion
of survey activities that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring. PSO
datasheets or raw sightings data must also be provided with the draft
and final monitoring report.
Further, the draft IHA and final IHA stipulate that if a NARW is
observed at any time by any survey vessels, during surveys or during
vessel transit, Vineyard Northeast must immediately report sighting
information to the NMFS NARW Sighting Advisory System within 2 hours of
occurrence, when practicable, or no later than 24 hours after
occurrence. Vineyard Northeast may also report the sighting to the U.S.
Coast Guard. Additionally, Vineyard Northeast must report any
discoveries of injured or dead marine mammals to the Office of
Protected Resources, NMFS, and to the New England/Mid-Atlantic Regional
Stranding Coordinator as soon as feasible. This includes entangled
animals. All reports and associated data submitted to NMFS are included
on the website for public inspection.
Daily visual and acoustic detections of NARWs and other large whale
species along the Eastern Seaboard, as well as Slow Zone locations, are
publicly available on WhaleMap (<a href="https://whalemap.org/WhaleMap/">https://whalemap.org/WhaleMap/</a>).
Further, recent acoustic detections of NARWs and other large whale
species are available to the public on NOAA's Passive Acoustic Cetacean
Map website <a href="https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw">https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw</a>.
Comment 15: Oceana recommends a shutdown requirement if a NARW or
other ESA-listed species is detected in the clearance zone as well as a
publicly available explanation of any exemptions allowing the applicant
not to shut down in these situations.
Response: NMFS reiterates that use of the planned sources is not
expected to have any potential to cause injury of any species,
including NARW, even in the absence of mitigation. Consideration of the
anticipated effectiveness of the mitigation measures (i.e., clearance
zones and shutdown measures) discussed below and in the Mitigation
section of this notice further strengthens the conclusion that injury
is not a reasonably anticipated outcome of the survey activity.
Nevertheless, there are several shutdown requirements described in the
Federal Register notice of the proposed IHA (88 FR 40212, June 21,
2023), and which are included in the final IHA, including the
stipulation that geophysical survey equipment must be immediately shut
down if any marine mammal is observed within or entering the relevant
Clearance Zone while geophysical survey equipment is operational. There
is no exemption for the shutdown requirement for NARW and ESA-listed
species.
Vineyard Northeast is required to implement a 30-minute pre-start
clearance period prior to the initiation of ramp-up of specified HRG
equipment. During this period, clearance zones will be monitored by the
PSOs using the appropriate visual technology. Ramp-up may not be
initiated if any marine mammal(s) is within its respective clearance
zone. If a marine mammal is observed within a clearance zone during the
pre-start clearance period, ramp-up may not begin until the animal(s)
has been observed exiting its respective exclusion zone or until an
additional time period has elapsed with no further sighting (i.e., 15
minutes for small odontocetes and seals, and 30 minutes for all other
species). If the acoustic source is shut down for reasons other than
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it
may be activated again without ramp-up if PSOs have maintained constant
observation and no detections of any marine mammal have occurred within
the respective clearance zones.
In regards to reporting, Vineyard Northeast must notify NMFS if a
NARW is observed at any time by any survey vessels during surveys or
during vessel transit. Additionally, Vineyard Northeast is required to
report the relevant survey activity information, such as the type of
survey equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-clearance
survey, ramp-up, shutdown, end of operations, etc.) as well as the
estimated distance to an animal and its heading relative to the survey
vessel at the initial sighting and survey activity information. We note
that if a NARW is detected within the Clearance Zone before a shutdown
is implemented, the NARW and its distance from the sound source,
including if it is within the Level B harassment zone, would be
reported in Vineyard Northeast's final monitoring report and made
publicly available on NMFS' website. Vineyard Northeast is required to
immediately notify NMFS of any sightings of NARWs and report upon
survey activity information. NMFS believes that these requirements
address the commenter's concerns.
NMFS does not require acoustic monitoring for the reasons stated in
our response to Comment 23.
Comment 16: COA asserts that Level A harassment may occur, and that
this was not accounted for in the proposed Notice.
Response: NMFS acknowledges the concerns brought up regarding the
potential for Level A harassment of marine mammals. However, no Level A
harassment is expected to result, even in the absence of mitigation,
given the characteristics of the sources planned for use. This is
additionally supported by the required mitigation, which further
reduces the unlikely potential for any Level A harassment to occur, and
very small estimated Level A harassment zones described in Vineyard
Northeast's 2022 Federal Register notice (87 FR 52913, August 30, 2022)
and carried through to the 2023 IHA (88 FR 40212, June 21, 2023).
Furthermore, the commenter does not provide any support for the
apparent contention that Level A harassment is a potential outcome of
these activities.
[[Page 50123]]
As discussed in the notice of proposed IHA, NMFS considers this
category of survey operations to be near de minimis, with the potential
for Level A harassment for any species to be discountable.
Comment 17: 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 Vineyard Northeast 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.
Comment 18: COA and SLC do not agree with NMFS' small numbers and
negligible impact determination for the numbers of marine mammals taken
by Level B harassment under Vineyard Northeast's planned activities.
Response: NMFS disagrees with the commenters' arguments on the
topic of small numbers and negligible impact findings, and the
commenters do not provide a reasoned basis for finding that the effects
of the specified activity would be greater than negligible on any
species or stock. The Negligible Impact Analysis and Determination
section of the proposed and final 2022 IHA (87 FR 30872, 87 FR 52913)
provides a detailed qualitative discussion supporting NMFS'
determination that any anticipated impacts from this action would be
negligible. The section contains a number of factors that were
considered by NMFS based on the best available scientific data and why
we concluded that impacts resulting from the specified activity are not
reasonably expected to, or reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
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 19: SLC states its opposition to the use of a categorical
exclusion under NEPA.
Response: NMFS does not agree with SLC's comment. A CE is a
category of actions that an agency has determined does not individually
or cumulatively have a significant effect on the quality of the human
environment, and is appropriately applied for such categories of
actions so long as there are no extraordinary circumstances present
that would indicate that the effects of the action may be significant.
Extraordinary circumstances are situations for which NOAA has
determined further NEPA analysis is required because they are
circumstances in which a normally excluded action may have significant
effects. A determination of whether an action that is normally excluded
requires additional evaluation because of extraordinary circumstances
focuses on the action's potential effects and considers the
significance of those effects in terms of both context (consideration
of the affected region, interests, and resources) and intensity
(severity of impacts). Potential extraordinary circumstances relevant
to this action include (1) adverse effects on species or habitats
protected by the MMPA that are not negligible; (2) highly controversial
environmental effects; (3) environmental effects that are uncertain,
unique, or unknown; and (4) the potential for significant cumulative
impacts when the proposed action is combined with other past, present,
and reasonably foreseeable future actions.
The relevant NOAA CE associated with issuance of incidental take
authorizations is CE B4, ``Issuance of incidental harassment
authorizations under Section 101(a)(5)(A) and (D) of the MMPA for the
incidental, but not intentional, take by harassment of marine mammals
during specified activities and for which no serious injury or
mortality is anticipated.'' This action falls within CE B4. In
determining whether a CE is appropriate for a given incidental take
authorization, NMFS considers the applicant's specified activity and
the potential extent and magnitude of takes of marine mammals
associated with that activity along with the extraordinary
circumstances listed in the Companion Manual for NOAA Administrative
Order (NAO) 216-6A and summarized above. The evaluation of whether
extraordinary circumstances (if present) have the potential for
significant environmental effects is limited to the decision NMFS is
responsible for, which is issuance of the incidental take
authorization. While there may be environmental effects associated with
the underlying action, potential effects of NMFS' action are limited to
those that would occur due to the authorization of incidental take of
marine mammals. NMFS prepared numerous EAs analyzing the environmental
impacts of the categories of activities encompassed by CE B4 which
resulted in Findings of No Significant Impacts (FONSIs) and, in
particular, numerous EAs prepared in support of issuance of IHAs
related to similar survey actions are part of NMFS' administrative
record supporting CE B4. These EAs demonstrate the issuance of a given
incidental harassment authorization does not affect other aspects of
the human environment because the action only affects the marine
mammals that are the subject of the incidental harassment
authorization. These EAs also addressed factors in 40 CFR 1508.27
regarding the potential for significant impacts and demonstrate the
issuance of incidental harassment authorization for the categories of
activities encompassed by CE B4 do not individually or cumulatively
have a significant effect on the human environment.
Specifically for this action, NMFS independently evaluated the use
of the CE for issuance of Vineyard Northeast's IHA, which included
consideration of extraordinary circumstances. As part of that analysis,
NMFS considered whether this IHA issuance would result in cumulative
impacts that could be significant. In particular, the issuance of an
IHA to Vineyard Northeast is
[[Page 50124]]
expected to result in minor, short-term behavioral effects on marine
mammal species due to exposure to underwater sound from site
characterization survey activities. Behavioral disturbance is possible
to occur intermittently in the vicinity of Vineyard Northeast's survey
area during the 1-year timeframe. Level B harassment will be reduced
through use of mitigation measures described herein. Additionally, as
discussed elsewhere, NMFS has determined that Vineyard Northeast's
activities fall within the scope of activities analyzed in GARFO's
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021), which concluded
surveys such as those planned by Vineyard Northeast are not likely to
adversely affect endangered listed species or adversely modify or
destroy critical habitat. Accordingly, NMFS has determined that the
issuance of this IHA will result in no more than negligible (as that
term is defined by the Companion Manual for NAO 216-6A) adverse effects
on species protected by the ESA and the MMPA.
Further, the issuance of this IHA will not result in highly
controversial environmental effects or result in environmental effects
that are uncertain, unique, or unknown because numerous entities have
been engaged in site characterization surveys that result in Level B
harassment of marine mammals in the United States. This type of
activity is well documented; prior authorizations and analysis
demonstrates issuance of an IHA for this type of action only affects
the marine mammals that are the subject of the specific authorization
and, thus, no potential for significant cumulative impacts are
expected, regardless of past, present, or reasonably foreseeable
actions, even though the impacts of the action may not be significant
by itself. Based on this evaluation, we concluded that the issuance of
the IHA qualifies to be categorically excluded from further NEPA
review.
Comment 20: SLC asserts that NMFS is permitting the proposed
activities without any empirically-determined benchmark for what is the
injury-causing sound pressure level (``SPL'') against which to measure
the proposed activities. In addition, SLC indicates that basing the
shutdown and clearance distances on permanent threshold shift (PTS)
thresholds is insufficient as PTS thresholds are modeled from temporary
threshold shift (TTS) data and threshold for tissue injury may occur at
a lower level than TTS.
Response: NMFS does not agree with the commenter that shutdown and
clearance distances based upon PTS thresholds are insufficient due to
thresholds being modeled from TTS data. Marine mammal PTS thresholds
are appropriately extrapolated from marine mammal TTS data and data
from terrestrial mammals, as described in NMFS' 2018 Technical
Guidance. We refer the commenter to that guidance. Further, TTS is not
considered injury, as defined for Level A harassment under the MMPA,
because it is fully recoverable.
Comment 21: SLC asserts that the spreading models used for
assessing noise levels from the proposed activities do not adequately
account for sound bouncing off the underside of the water's surface and
other surface reflection.
Response: NMFS does not agree with the commenter regarding the use
of spreading models for assessing noise levels. While the transmission
loss models used for HRG sources are fairly simplistic and do not
directly account for reflections at the surface, the models are
designed to account for how sound would propagate through the
environment, including accounting for beamwidth and frequency
absorption, and thus provide realistic approximations of how sounds
from these sources are believed to travel through the environment.
Accounting for scattering at the surface is heavily dependent on the
roughness of the sea surface, with rougher surfaces resulting in more
propagation loss (dB) per bounce as the sound hits the water surface
(i.e., this additional dB loss is not accounted for in more simple
models). Only flat surfaces would allow for complete reflection of
sound. In addition, most HRG sources are designed to focus sound
downwards towards the bottom, thus, accounting for surface reflections
associated with these sources is unnecessary.
Comment 22: SLC asserted that the ability for a developer to detect
and report whether it has exceeded the levels of take authorized by
NMFS is limited as not all marine mammals may be detected and
recommended additional reporting requirements.
Response: NMFS reviews required reporting (see Description of
Mitigation, Monitoring, and Reporting) and uses the information to
evaluate the mitigation measure effectiveness. Additionally, the
mitigation measures included in Vineyard Northeast'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 23: SLC recommended that NMFS should require Passive
Acoustic Monitoring (PAM) at all times, both day and night, to maximize
the probability of detection for North Atlantic right whales.
Response: NMFS does not agree that a measure to require PAM at all
times is warranted, as it is not expected to be effective for use in
detecting the species of concern. It is generally accepted that, even
in the absence of additional acoustic sources, using a towed passive
acoustic sensor to detect baleen whales (including NARWs) is not
typically effective because the noise from the vessel, the flow noise,
and the cable noise are in the same frequency band and will mask the
vast majority of baleen whale calls. Vessels produce low-frequency
noise, primarily through propeller cavitation, with main energy in the
5-300 Hertz (Hz) frequency range. Source levels range from about 140 to
195 decibel (dB) re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003;
Hildebrand, 2009), depending on factors such as ship type, load, and
speed, and ship hull and propeller design. Studies of vessel noise show
that it appears to increase background noise levels in the 71-224 Hz
range by 10-13 dB (Hatch et al., 2012; McKenna et al., 2012; Rolland et
al., 2012). PAM systems employ hydrophones towed in streamer cables
approximately 500 m behind a vessel. Noise from water flow around the
cables and from strumming of the cables themselves is also low-
frequency and typically masks signals in the same range. Experienced
PAM operators participating in a recent workshop (Thode et al., 2017)
emphasized that a PAM operation could easily report no acoustic
encounters, depending on species present, simply because background
noise levels rendered any acoustic detection impossible. The same
workshop report stated that a typical eight-element array towed 500 m
behind a vessel could be expected to detect delphinids, sperm whales,
and beaked whales at the required range, but not baleen whales, due to
expected background noise levels (including seismic noise, vessel
noise, and flow noise).
Comment 24: SLC asserts that NMFS' assessment of the potential for,
and the impacts of, masking is insufficient.
Response: NMFS disagrees that the potential impacts of masking were
not properly considered. NMFS acknowledges our understanding of the
scientific literature that SLC cited but, fundamentally, the masking
effects to
[[Page 50125]]
any one individual whale from one survey are expected to be minimal.
Masking is referred to as a chronic effect because one of the key
harmful components of masking is its duration--the fact that an animal
would have reduced ability to hear or interpret critical cues becomes
much more likely to cause a problem the longer it is occurring. Also,
inherent in the concept of masking is the fact that the potential for
the effect is only present during the times that the animal and the
source are in close enough proximity for the effect to occur (and
further this time period would need to coincide with a time that the
animal was utilizing sounds at the masked frequency) and, as our
analysis (both quantitative and qualitative components) indicates,
because of the relative movement of whales and vessels, we do not
expect these exposures with the potential for masking to be of a long
duration within a given day. Further, because of the relatively low
density of mysticetes, and relatively large area over which the vessels
travel, we do not expect any individual whales to be exposed to
potentially masking levels from these surveys for more than a few days
in a year.
As noted above, any masking effects of this survey are expected to
be limited and brief, if present. Given the likelihood of significantly
reduced received levels beyond even short distances from the survey
vessel, combined with the short duration of potential masking and the
lower likelihood of extensive additional contributors to background
noise offshore and within these short exposure periods, we believe that
the incremental addition of the survey vessel is unlikely to result in
more than minor and short-term masking effects, likely occurring to
some small number of the same individuals captured in the estimate of
behavioral harassment.
Comment 25: COA and SLC urged NMFS to deny the proposed project
and/or postpone any offshore wind activities until NMFS determines
effects of all offshore wind-related activities on marine mammals in
the region and determines that the recent whale deaths are not related
to offshore wind activities. 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 activities. In addition, SLC urged NMFS to investigate
whether wind energy development activities may have physiological or
mortality-inducing effects on whales.
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). Furthermore, NMFS
does not expect that the generally short-term, intermittent, and
transitory marine site characterization survey activities planned by
Vineyard Northeast will create conditions of acute or chronic acoustic
exposure leading to long-term physiological impacts in whales.
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 vessel
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.
Description of Marine Mammals
A description of the marine mammals in the survey area can be found
in the previous documents and notices for the 2022 IHA (87 FR 30872,
May 20, 2022; 87 FR 52913, August 30, 2022), which remains applicable
to this IHA. NMFS reviewed the most recent draft SARs, found on NMFS'
website at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>, up-to-date information on
relevant UMEs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events</a>), and recent
scientific literature and determined that no new information affects
our original analysis of impacts under the 2022 IHA. More general
information about these species (e.g., physical and behavioral
descriptions) may be found on NMFS's website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
NMFS notes that, since issuance of the 2022 IHA, a new SAR was made
available with new information presented for the NARW (see <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>). We note that the estimated abundance for the
species declined from 368 to 338.
[[Page 50126]]
However, this change does not affect our analysis of impacts, as
described under the 2022 IHA.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 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 1.
Table 1--Marine Mammal Hearing Groups
(NMFS, 2018)
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013). For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Nineteen marine mammal species (comprising 20 total stocks; 17
cetacean (18 stocks) and 2 pinniped (both phocid) species) have the
reasonable potential to co-occur with the survey activities. Of the
cetacean species that may be present, 6 are classified as low-frequency
cetaceans (i.e., all mysticete species), 10 are classified as mid-
frequency cetaceans (i.e., all delphinid species and the sperm whale),
and 1 is classified as a high-frequency cetacean (i.e., harbor
porpoise).
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat can be found in the documents
supporting the 2022 IHA (87 FR 30872, May 20, 2022; 87 FR 52913, August
30, 2022). At present, there is no new information on potential effects
that would influence our analysis.
Estimated Take
A detailed description of the methods used to estimate take
anticipated to occur incidental to the project is found in the previous
Federal Register notices (87 FR 30872, May 20, 2022; 87 FR 52913,
August 30, 2022). The methods of estimating take are identical to those
used in the 2022 IHA. Vineyard Northeast updated the marine mammal
densities based on new information (Roberts et al., 2016; Roberts et
al., 2023), available online at: <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a> EC/. We refer the reader to Table 8 in Vineyard Northeast's 2023
IHA request for the specific density values used in the analysis. The
IHA request is available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
The take that NMFS has authorized can be found in Table 2, which
presents the results of Vineyard Northeast's density-based calculations
for the survey area. For comparative purposes, we have provided the
2022 IHA authorized Level B harassment take (87 FR 52913, August 30,
2022). NMFS notes that take by Level A harassment was not requested,
nor does NMFS anticipate that it could occur. Therefore, NMFS has not
authorized any take by Level A harassment. Mortality or serious injury
is neither anticipated to occur nor authorized.
Table 2--Total Authorized Take, by Level B Harassment Only, Relative to Population Size
--------------------------------------------------------------------------------------------------------------------------------------------------------
2023 IHA
2022 IHA -------------------------------
Species Scientific name Stock Abundance authorized Authorized Max percent
take take \1\ population
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale........................... Balaenoptera musculus... Western North Atlantic. 402 1 1 0.25
North Atlantic Right Whale........... Eubalaena glacialis..... Western North Atlantic. 338 40 12 3.6
Humpback Whale....................... Megaptera novaeangliae.. Gulf of Maine.......... 1,396 47 12 0.86
Fin Whale............................ Balaenoptera physalus... Western North Atlantic. 6,802 77 20 0.29
Sei Whale............................ Balaenoptera borealis... Nova Scotia............ 6,292 5 5 0.08
[[Page 50127]]
Minke whale.......................... Balaenoptera Canadian Eastern 21,968 42 46 0.21
acutorostrata. Coastal.
Sperm whale.......................... Physeter macrocephalus.. North Atlantic......... 4,349 12 2 0.05
Long-finned pilot whale \1\.......... Globicephala melas...... Western North Atlantic. 39,215 405 17 0.04
Killer whale \2\..................... Orcinus orca............ Western North Atlantic. UNK 2 \3\ 4 \4\5.9
False killer whale \2\............... Pseudorca crassidens.... Western North Atlantic. 1,791 5 5 0.28
Atlantic spotted dolphin \3\......... Stenella frontalis...... Western North Atlantic. 39,921 29 29 0.07
Atlantic white-sided dolphin......... Lagenorhynchus acutus... Western North Atlantic. 93,233 1,124 129 0.14
Bottlenose dolphin................... Tursiops truncatus...... Western North Atlantic 6,639 151 45 0.68
Northern Migratory
Coastal.
Western North Atlantic 62,851 569 169 0.27
Offshore.
Common dolphin....................... Delphinus delphis....... Western North Atlantic. 172,974 13,904 7,472 4.3
Risso's dolphin...................... Grampus griseus......... Western North Atlantic. 35,215 101 9 0.03
White-beaked dolphin................. Lagenorhynchus Western North Atlantic. 536,016 30 30 0.006
albirostris.
Harbor porpoise...................... Phocoena phocoena....... Gulf of Maine/Bay of 95,543 2,033 347 0.36
Fundy.
Harbor seal \5\...................... Phoca vitulina.......... Western North Atlantic. 61,336 939 939 1.5
Gray seal \5\........................ Halichoerus grypus...... Western North Atlantic. \6\ 27,300 418 418 1.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Roberts et al. (2023) only provides density estimates for pilot whales as a guild. Given the project's location, NMFS assumes that all take will be
of long-finned pilot whales.
\2\ Rare (or unlikely to occur) species.
\3\ Adjusted according to average group size (Kraus et al., 2016; Palka et al., 2017).
\4\ Based upon minimum population estimate of 67 individual killer whales identified in the Northwestern Atlantic Ocean (Lawson and Stevens, 2014).
\5\ Roberts et al. (2023) only provides density estimates for seals without differentiating by species. In order to determine the species-specific
density-based exposure estimates for seals, Vineyard Northeast used the following approach. Vineyard Northeast summed the SAR Nbest abundance
estimates (Hayes et al., 2022) for the 2 seal species and divided the total by the estimate for each species to get the proportion of the total for
each species. Vineyard Northeast then multiplied these proportions by the total estimated exposure for the seal guild density (Roberts et al., 2023)
to get the species-specific density-based exposure estimates. NMFS accepts this approach.
\6\ NMFS' stock abundance estimate (and associated potential biological removal (PBR) value) applies to U.S. population only. Total stock abundance
(including animals in Canada) is approximately 451,600.
Description of Mitigation, Monitoring and Reporting Measures
The required mitigation, monitoring, and reporting measures are
identical to those included in the Federal Register notice announcing
the final 2022 IHA and the discussion of the least practicable adverse
impact included in that document remains accurate. The measures are
found below.
Vineyard Northeast must also abide by all the marine mammal
relevant conditions in the NOAA Fisheries GARFO programmatic
consultation (specifically Project Design Criteria (PDC) 4, 5, and 7)
regarding geophysical surveys along the U.S. Atlantic coast in the
three Atlantic Renewable Energy Regions (NOAA GARFO, 2021; <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>), pursuant to Section 7 of the Endangered Species Act.
Additionally, on August 1, 2022, NMFS announced proposed changes to
the existing NARW vessel speed regulations to further reduce the
likelihood of mortalities and serious injuries to endangered NARWs from
vessel collisions, which are a leading cause of the species' decline
and a primary factor in an ongoing Unusual Mortality Event (87 FR
46921). Should a final vessel speed rule be issued and become effective
during the effective period of this IHA (or any other MMPA incidental
take authorization), the authorization holder would be required to
comply with any and all applicable requirements contained within the
final rule. Specifically, where measures in any final vessel speed rule
are more protective or restrictive than those in this or any other MMPA
authorization, authorization holders would be required to comply with
the requirements of the rule. Alternatively, where measures in this or
any other MMPA authorization are more restrictive or protective than
those in any final vessel speed rule, the measures in the MMPA
authorization must be followed. The responsibility to comply with the
applicable requirements of any vessel speed rule would become effective
immediately upon the effective date of any final vessel speed rule and,
when notice is published of the effective date, NMFS would also notify
Vineyard Northeast if the measures in the speed rule were to supersede
any of the measures in the MMPA authorization.
Establishment of Shutdown Zones (SZ)--Marine mammal SZs must be
established around the HRG survey equipment and monitored by NMFS-
approved PSOs as follows:
<bullet> 500-m SZ for NARWs during use of specified acoustic
sources (impulsive: sparkers and boomers; non-impulsive: non-parametric
sub-bottom profilers); and,
<bullet> 100-m SZ for all other marine mammals (excluding NARWs)
during operation of the sparker and boomer. The only exception for this
is for pinnipeds (seals) and small delphinids (i.e., those from the
genera Delphinus, Lagenorhynchus, Stenella or Tursiops).
If a marine mammal is detected approaching or entering the SZs
during the HRG survey, the vessel operator will adhere to the shutdown
procedures described below to minimize noise impacts on the animals.
During use of acoustic sources with the potential to result in marine
mammal harassment (sparkers, boomers, and non-parametric sub-bottom
profilers; i.e., anytime the acoustic source is active, including ramp-
up), occurrences of marine mammals within the monitoring zone (but
outside the SZs) must be communicated to the vessel operator to prepare
for potential shutdown of the acoustic source.
Visual Monitoring--Monitoring must be conducted by qualified PSOs
who are trained biologists, with minimum qualifications described in
the Federal Register notices for the 2022 project (87 FR 30872, May 20,
2022; 87 FR 52913, August 30, 2022). Vineyard Northeast must have one
PSO on duty during the day and a minimum of two NMFS-approved PSOs must
be on duty and conducting visual observations when HRG equipment is in
use at night. Visual monitoring must begin no less than 30 minutes
prior to ramp-up of
[[Page 50128]]
HRG equipment and continue until 30 minutes after use of the acoustic
source. PSOs must establish and monitor the applicable clearance zones,
SZs, and vessel separation distances as described in the 2022 IHA (87
FR 52913, August 30, 2022). PSOs must coordinate to ensure 360-degree
visual coverage around the vessel from the most appropriate observation
posts, and must conduct observations while free from distractions and
in a consistent, systematic, and diligent manner. PSOs are required to
estimate distances to observed marine mammals. It is the responsibility
of the Lead PSO on duty to communicate the presence of marine mammals
as well as to communicate action(s) that are necessary to ensure
mitigation and monitoring requirements are implemented as appropriate.
Pre-Start Clearance--Marine mammal clearance zones (CZs) must be
established around the HRG survey equipment and monitored by NMFS-
approved PSOs prior to use of boomers, sparkers, and non-parametric
sub-bottom profilers as follows:
<bullet> 500-m CZ for all Endangered Species Act-listed species;
and
<bullet> 100-m CZ for all other marine mammals.
Prior to initiating HRG survey activities, Vineyard Northeast must
implement a 30-minute pre-start clearance period. The operator must
notify a designated PSO of the planned start of ramp-up where the
notification time should not be less than 60 minutes prior to the
planned ramp-up to allow the PSOs to monitor the CZs for 30 minutes
prior to the initiation of ramp-up. Prior to ramp-up beginning,
Vineyard Northeast must receive confirmation from the PSO that the CZs
are clear prior to preceding. Any PSO on duty has the authority to
delay the start of survey operations if a marine mammal is detected
within the applicable pre-start clearance zones.
During this 30-minute period, the entire CZ must be visible. The
exception to this would be in situations where ramp-up must occur
during periods of poor visibility (inclusive of nighttime) as long as
appropriate visual monitoring has occurred with no detections of marine
mammals in 30 minutes prior to the beginning of ramp-up.
If a marine mammal is observed within the relevant CZs during the
pre-start clearance period, initiation of HRG survey equipment must not
begin until the animal(s) has been observed exiting the respective CZ,
or, until an additional period has elapsed with no further sighting
(i.e., minimum 15 minutes for small odontocetes and seals; 30 minutes
for all other species). The pre-start clearance requirement includes
small delphinids. PSOs must also continue to monitor the zone for 30
minutes after survey equipment is shut down or survey activity has
concluded.
Ramp-Up of Survey Equipment--When technically feasible, a ramp-up
procedure must be used for geophysical survey equipment capable of
adjusting energy levels at the start or re-start of survey activities.
The ramp-up procedure must be used at the beginning of HRG survey
activities in order to provide additional protection to marine mammals
near the project area by allowing them to detect the presence of the
survey and vacate the area prior to the commencement of survey
equipment operation at full power. Ramp-up of the survey equipment must
not begin until the relevant SZs have been cleared by the PSOs, as
described above. HRG equipment operators must ramp up acoustic sources
to half power for 5 minutes and then proceed to full power. If any
marine mammals are detected within the SZs prior to or during ramp-up,
the HRG equipment must be shut down (as described below).
Shutdown Procedures--If an HRG source is active and a marine mammal
is observed within or entering a relevant SZ (as described above), an
immediate shutdown of the HRG survey equipment is required. When
shutdown is called for by a PSO, the acoustic source must be
immediately deactivated and any dispute resolved only following
deactivation. Any PSO on duty has the authority to delay the start of
survey operations or to call for shutdown of the acoustic source if a
marine mammal is detected within the applicable SZ. The vessel operator
must establish and maintain clear lines of communication directly
between PSOs on duty and crew controlling the HRG source(s) to ensure
that shutdown commands are conveyed swiftly while allowing PSOs to
maintain watch. Subsequent restart of the HRG equipment may only occur
after the marine mammal has been observed exiting the relevant SZ, or,
until an additional period has elapsed with no further sighting of the
animal within the relevant SZ.
Upon implementation of shutdown, the HRG source may be reactivated
after the marine mammal that triggered the shutdown has been observed
exiting the applicable SZ or, following a clearance period of 15
minutes for small odontocetes (i.e., harbor porpoise) and 30 minutes
for all other species with no further observation of the marine
mammal(s) within the relevant SZ. If the HRG equipment is shut down for
brief periods (i.e., less than 30 minutes) for reasons other than
mitigation (e.g., mechanical or electronic failure) the equipment may
be reactivated as soon as is practicable at full operational level,
without 30 minutes of pre-clearance, only if PSOs have maintained
constant visual observation during the shutdown and no visual
detections of marine mammals occurred within the applicable SZs during
that time. For a shutdown of 30 minutes or longer, or if visual
observation was not continued diligently during the pause, pre-
clearance observation is required, as described above.
The shutdown requirement is waived for pinnipeds (seals) and
certain genera of small delphinids (i.e., Delphinus, Lagenorhynchus,
Stenella, or Tursiops) under certain circumstances. If a delphinid(s)
from these genera is visually detected within the SZ, shutdown will not
be 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),
PSOs must use best professional judgment in making the decision to call
for a shutdown.
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
area encompassing the Level B harassment isopleth (178 m), shutdown
must occur.
Vessel Strike Avoidance-- Vineyard Northeast must comply with
vessel strike avoidance measures as described in the Federal Register
notice for the 2022 IHA (87 FR 52913, August 30, 2022). This includes
speed restrictions (10 kn (18.5 km/hour) or less) when mother/calf
pairs, pods, or large assemblages of cetaceans are spotted near a
vessel; species-specific vessel separation distances; appropriate
vessel actions when a marine mammal is sighted (e.g., avoid excessive
speed, remain parallel to animal's course, etc.); and monitoring of the
NMFS NARW reporting system and WhaleAlert daily.
Throughout all phases of the survey activities, Vineyard Northeast
must monitor NOAA Fisheries NARW reporting systems for the
establishment of a dynamic management area (DMA). If NMFS establishes a
DMA in the surrounding area, including the project area or export cable
routes being surveyed, Vineyard Northeast is required to abide by the
10-kn (5.14 m/s) speed restriction.
Training--Project-specific training is required for all vessel crew
prior to the start of survey activities.
[[Page 50129]]
Reporting--PSOs must record specific information as described in
the Federal Register notice of the issuance of the 2022 IHA (87 FR
52913, August 30, 2022). Within 90 days after completion of survey
activities, Vineyard Northeast must provide NMFS with a monitoring
report, which must include summaries of recorded takes and estimates of
the number of marine mammals that may have been harassed.
In the event of a ship strike or discovery of an injured or dead
marine mammal, Vineyard Northeast must report the incident to the
Office of Protected Resources (OPR), NMFS and to the New England/Mid-
Atlantic Regional Stranding Coordinator as soon as feasible. The report
must include the information listed in the Federal Register notice of
the issuance of the initial IHA (87 FR 52913, August 30, 2022).
Determinations
Vineyard Northeast's HRG survey activities are a subset but
otherwise unchanged from those analyzed in support of the 2022 IHA. The
effects of the activity, taking into consideration the mitigation and
related monitoring measures, remain unchanged from those evaluated in
support of the 2022 IHA, regardless of the minor increase in estimated
take for one species (minke whale). NMFS expects that all potential
takes will be short-term Level B behavioral harassment in the form of
temporary avoidance of the area or decreased foraging, reactions that
are considered to be of low severity and with no lasting biological
consequences (e.g., Southall et al., 2007). In addition to being
temporary, the maximum harassment zone around a survey vessel is 178 m
from use of the Applied Acoustics AA251 Boomer. Although this distance
is assumed for all survey activity evaluated here and in estimating
take numbers authorized, in reality, much of the survey activity will
involve use of acoustic sources with a reduced acoustic harassment zone
(4 m for the Edge Tech Chirp 216 or 141 m for the GeoMarine Geo Spark
2000), producing expected effects of particularly low severity.
Therefore, the ensonified area surrounding each vessel is relatively
small compared to the overall distribution of the animals in the area
and the available habitat.
The survey area overlaps or is in close proximity to feeding BIAs
for NARWs (Cape Cod Bay and Massachusetts Bay BIA, February-April/Great
South Channel and Georges Bank Shelf Break BIA, April-June), humpback
whales (March-December), fin whales (year-round/March-October), sei
whales (May-November), and minke whales (March-November), as well as
overlaps the migratory BIA for NARWs (November 1-April 30) (LaBrecque
et al., 2015). In addition, the survey area overlaps with the area
south of Martha's Vineyard and Nantucket, referred to as ``South of the
Islands,'' which has been identified as relatively new year-round core
NARW foraging habitat (Oleson et al., 2020; Quintana-Rizzo et al.,
2021). As prey species are mobile and broadly distributed throughout
the survey area, marine mammals that are 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,
thus we do not expect biologically significant impacts to feeding
behavior. In addition, most of these feeding BIAs are extensive and
sufficiently large (e.g., 3,149 km\2\ and 12,247 km\2\ for NARWs;
47,701 km\2\ for humpback whales; 18,015 km\2\ and 2,933 km\2\ for fin
whales; 56,609 km\2\ for sei whales; 54,341 km\2\ for minke whales),
and the acoustic footprint of the survey is sufficiently small that
feeding opportunities for these species will not be reduced
appreciably. Due to 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. Even considering the
increased estimated take for one species (minke whales), the impacts of
these lower severity exposures are not expected to accrue to a degree
that the fitness of any individuals will be impacted and, therefore, no
impacts on the annual rates of recruitment or survival will result.
As previously discussed in the 2022 IHA (87 FR 52913, August 30,
2022), impacts from the survey are expected to be localized to the
specific area of activity and only during periods when Vineyard
Northeast's acoustic sources are active. There are no rookeries, mating
or calving grounds known to be biologically important to marine mammals
within the survey area.
As noted for the 2022 IHA (87 FR 52913, August 30, 2022), the
survey area overlaps a migratory corridor BIA and migratory route SMAs
(Port of New Jersey/New York and Block Island) for NARWs. As the survey
activities will be temporary and the spatial acoustic footprint
produced by the survey will be very small relative to the spatial
extent of the available migratory habitat in the BIA (269,448 km\2\),
NMFS does not expect NARW migration to be impacted by the survey.
Required vessel strike avoidance measures will also decrease risk of
ship strike during migration; no ship strike is expected to occur
during Vineyard Northeast's planned activities. Vineyard Northeast will
be required to comply with seasonal speed restrictions of these SMAs,
and in any DMA, should NMFS establish one (or more) in the survey area.
Additionally, Vineyard Northeast requested and NMFS has authorized only
12 takes by Level B harassment of NARWs. This amount is less than the
40 Level B harassment takes authorized in the 2022 IHA due to the
updated Duke University density data (Roberts et al., 2023) and reduced
survey area.
Although take by Level B harassment of NARWs has been authorized by
NMFS, we anticipate a very low level of harassment, should it occur at
all, because Vineyard Northeast is required to maintain a shutdown zone
of 500 m if a NARW is observed. The takes that are authorized account
for any missed animals wherein the survey equipment is not shut down
immediately. As shutdown will be called for immediately upon detection
(if the whale is within 500 m), it is likely the exposure time will be
very limited and received levels will not be much above the harassment
threshold. Further, the 500-m shutdown zone for right whales is
conservative, considering the distance to the Level B harassment
isopleth for the most impactful acoustic source (i.e., Applied
Acoustics AA251 Boomer--which may not be used on all survey days) is
estimated to be 178 m, and thereby minimizes the potential for
behavioral harassment of this species. As noted previously, Level A
harassment is not expected due to the small PTS zones associated with
HRG equipment types planned for use. NMFS does not anticipate NARW
takes that will result from Vineyard Northeast's activities will impact
annual rates of recruitment or survival. Thus, any takes that occur
will not result in population level impacts.
We also note that our findings for other species with active UMEs
that were previously described for the 2022 IHA (87 FR 52913, August
30, 2022) remain applicable to this project. In addition, our analysis
of survey effects on species with BIAs that overlap with the survey
area remains unchanged. Therefore, in conclusion, there is no new
information suggesting that our analysis or findings should change.
Based on the information contained here and in the referenced
documents, NMFS has determined the following: (1) the required
mitigation measures will
[[Page 50130]]
effect the least practicable impact on marine mammal species or stocks
and their habitat; (2) the authorized takes will have a negligible
impact on the affected marine mammal species or stocks; (3) the
authorized takes represent small numbers of marine mammals relative to
the affected stock abundances; (4) Vineyard Northeast's activities will
not have an unmitigable adverse impact on taking for subsistence
purposes as no relevant subsistence uses of marine mammals are
implicated by this action, and (5) appropriate monitoring and reporting
requirements are included.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS OPR consults internally whenever we propose to authorize take for
endangered or threatened species.
NMFS has authorized the incidental take of five species of marine
mammals which are listed under the ESA, including the North Atlantic
right, fin, sei, blue, and sperm whale, and has determined that this
activity falls within the scope of activities analyzed in NMFS GARFO's
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021).
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment. This action
is consistent with categories of activities identified in Categorical
Exclusion B4 (IHAs with no anticipated serious injury or mortality) of
the Companion Manual for NOAA Administrative Order 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has determined that the
issuance of the IHA qualifies to be categorically excluded from further
NEPA review.
Authorization
NMFS has issued an IHA to Vineyard Northeast for the potential
harassment of small numbers of 19 marine mammal species incidental to
marine site characterization surveys offshore of Massachusetts to
southern New Jersey provided the previously mentioned mitigation,
monitoring, and reporting requirements are followed.
Dated: July 27, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-16292 Filed 7-31-23; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on August 1, 2023.
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