Notice2023-17271
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off New Jersey and New York
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 11, 2023
Effective
August 10, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Atlantic Shores Offshore Wind Bight, LLC (Atlantic Shores) to incidentally harass, by Level B harassment only, marine mammals during marine site characterization survey activities offshore of New Jersey and New York.
Full Text
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<title>Federal Register, Volume 88 Issue 154 (Friday, August 11, 2023)</title>
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[Federal Register Volume 88, Number 154 (Friday, August 11, 2023)]
[Notices]
[Pages 54575-54592]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17271]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD134]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off New Jersey and New York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Atlantic Shores Offshore Wind Bight, LLC (Atlantic Shores) to
incidentally harass, by Level B harassment only, marine mammals during
marine site characterization survey activities offshore of New Jersey
and New York.
DATES: This Authorization is effective from August 10, 2023 through
August 9, 2024.
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
[[Page 54576]]
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 April 8, 2022, NMFS received a request from Atlantic Shores for
an IHA to take marine mammals incidental to marine site
characterization surveys offshore of New Jersey and New York, in the
area of Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf Lease Area (OCS-A 0541) and
the associated ECR area. Atlantic Shores requested authorization to
take small numbers of 15 species of marine mammals by Level B
harassment only. NMFS published a notice of the proposed IHA in the
Federal Register on June 27, 2022 (87 FR 30867). After a 30-day public
comment period and consideration of all public comments received, we
subsequently issued the 2022 IHA, which is effective from August 10,
2022, to August 9, 2023 (87 FR 50293, August 16, 2022).
Atlantic Shores completed a subset of the survey work under the
2022 IHA. Atlantic Shores conducted the required marine mammal
mitigation and monitoring and did not exceed authorized levels of take
under previous IHAs issued for surveys offshore of New York and New
Jersey (see 85 FR 21198, April 16, 2020 and 86 FR 21289, April 22,
2021). These previous monitoring results are available to the public on
our website: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization</a>.
On March 20, 2023, NMFS received a request from Atlantic Shores for
an IHA to take marine mammals incidental to high-resolution geophysical
(HRG) marine site characterization surveys offshore of New Jersey and
New York in the areas of Bureau of Ocean Energy and Management (BOEM)
Commercial Lease of Submerged Lands for Renewable Energy Development on
the OCS Lease Area (OCS A-0541) and associated ECR area. Following
NMFS' review of the application, Atlantic Shores submitted a revised
request on April 7, 2023. The application (the 2023 request) was deemed
adequate and complete on April 20, 2023. Atlantic Shores' request is
for take of 15 species of marine mammals, by Level B harassment only.
Neither Atlantic Shores nor NMFS expect serious injury or mortality to
result from this activity and, therefore, an IHA is appropriate.
The activities described in Atlantic Shores' request, the overall
survey duration, the project location, and the acoustic sources planned
for use are identical to what was previously analyzed in support of the
IHA issued by NMFS to Atlantic Shores for 2022 site characterization
surveys (2022 IHA) (87 FR 38067, June 27, 2022; 87 FR 50293, August 16,
2022). All mitigation, monitoring, and reporting requirements remain
the same. While Atlantic Shores' planned 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">https://seamap.env.duke</a> .edu/models/Duke/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 this
action.
The 2023 request is identical to the 2022 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 38067, June 27, 2022; 87 FR 50293, August 16, 2022).
No changes were made from the proposed IHA to the final IHA.
Description of the Activity and Anticipated Impacts
Overview
Atlantic Shores will conduct HRG marine site characterization
surveys in the BOEM Lease Area OCS-A 0541 and along the export cable
route (ECR) off of New Jersey and New York. The purpose of surveys is
to obtain an assessment of seabed (geophysical, geotechnical, and
geohazard), ecological, and archeological conditions within the
footprint of a planned offshore wind facility development area. Surveys
are also conducted to support engineering design and to map unexploded
ordnance. As many as three survey vessels may operate concurrently as
part of the planned surveys. During survey effort, the vessels would
operate at a maximum speed of 3.5 knots (kn) (6.5 kilometers (km)).
Underwater sound resulting from Atlantic Shores' 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 up to 360 survey days
using a maximum of three vessels operating concurrently over the course
of the 1-year period of effectiveness of the IHA. It is expected that
each vessel would cover approximately 55 km of track line per day based
on Atlantic Shores' data acquisition efficiency expectations.
Underwater sound resulting from Atlantic Shores' 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 Atlantic Shores (87 FR
50293, August 16, 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 the planned surveys is provided in the
Federal Register notice for the proposed IHA (88 FR 41912, June 28,
2023) and 2022 Federal Register notice (87 FR 50293, August 16, 2022).
Since that time, no changes have been made to the planned activities.
Therefore, a detailed description is not provided here. Please refer to
those Federal Register notices for the description of the specific
activity.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Atlantic Shores was
published in the Federal Register on June 28, 2023 (88 FR 41912). That
notice described, in detail, Atlantic Shores' proposed activities, the
marine mammal species that may be affected by these activities, and the
anticipated effects on marine mammals. 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.
[[Page 54577]]
NMFS received 19 public comment letters. Four of these comment
letters were from non-governmental organizations: Clean Ocean Action
(COA), Oceana, Sea Life Conservation (SLC), and Green Oceans. The
remaining 15 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. Seven 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 Atlantic Shores' 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 41912, June 28,
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, SLC, and Green Oceans expressed concern regarding
ocean noise and the interference it has on communication between
whales. In addition, Green Oceans claimed that NMFS failed to
``meaningfully consider'' the potential for Atlantic Shores' HRG survey
activities to mask marine mammal communication. Specifically, Green
Oceans stated that the proposed IHA did not address how increasing
ocean noise will impact masking of ``interspecies cooperation and
communication,'' and their ``survival,'' as a result.
Response: NMFS agrees that noise pollution in marine waters is an
issue with the potential to affect marine mammals, including their
ability to communicate when noise reaches certain levels. NMFS
disagrees that the potential impacts of masking were not properly
considered. NMFS acknowledges our understanding of the scientific
literature that Green Oceans cited but, fundamentally, the masking
effects to any one individual whale from one survey are expected to be
minimal. Masking is referred to as a chronic effect because one of the
key harmful components of masking is its duration--the fact that an
animal would have reduced ability to hear or interpret critical cues
becomes much more likely to cause a problem the longer it is occurring.
Also, inherent in the concept of masking is the fact that the potential
for the effect is only present during the times that the animal and the
source are in close enough proximity for the effect to occur (and
further this time period would need to coincide with a time that the
animal was utilizing sounds at the masked frequency) and, as our
analysis (both quantitative and qualitative components) indicates,
because of the relative movement of whales and vessels, we do not
expect these exposures with the potential for masking to be of a long
duration within a given day. Further, because of the relatively low
density of mysticetes, and relatively large area over which the vessels
travel, we do not expect any individual whales to be exposed to
potentially masking levels from these surveys for more than a few days
in a year.
As noted above, any masking effects of this survey are expected to
be limited and brief, if present. Given the likelihood of significantly
reduced received levels beyond even short distances from the survey
vessel, combined with the short duration of potential masking and the
lower likelihood of extensive additional contributors to background
noise offshore 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.
NMFS does not expect that the generally short-term, intermittent,
and transitory marine site characterization survey activities planned
by Atlantic Shores 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 2: Multiple commenters urged NMFS to deny the proposed
project and/or postpone any offshore wind (OSW) activities until NMFS
determines effects of all OSW activities on marine mammals in the
region and determines that the recent whale deaths are not related to
OSW activities. Similarly, some commenters provided general concerns
regarding recent whale stranding events on the Atlantic Coast,
including speculation that the strandings may be related to wind energy
development-related activities and that Atlantic Shores' surveys could
lead to marine mammal mortalities. However, the commenters did not
provide any specific information supporting these concerns.
Response: NMFS authorizes take of marine mammals incidental to
marine site characterization surveys but does not authorize the surveys
themselves. Therefore, while NMFS has the authority to modify, suspend,
or revoke an IHA if the IHA holder fails to abide by the conditions
prescribed therein (including, but not limited to, failure to comply
with monitoring or reporting requirements), or if NMFS determines that
(1) the authorized taking is having or is likely to have more than a
negligible impact on the species or stocks of affected marine mammals,
or (2) the prescribed measures are likely not or are not effecting the
least practicable adverse impact on the affected species or stocks and
their habitat, it is not within NMFS' jurisdiction to impose a
moratorium on offshore wind development or to require surveys to cease
on the basis of unsupported speculation.
NMFS reiterates that there is no evidence that noise resulting from
offshore wind development-related site characterization surveys could
potentially cause marine mammal strandings, 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
[[Page 54578]]
been occurring off New England and the mid-Atlantic coast, HRG devices
have never been implicated or causatively-associated with baleen whale
strandings.'' (Marine Mammal Commission Newsletter, Spring 2023).
There is an ongoing Unusual Mortality Event (UME) for humpback
whales along the Atlantic coast from Maine to Florida, which includes
animals stranded since 2016. Partial or full necropsy examinations were
conducted on approximately half of the whales. Necropsies were not
conducted on other carcasses because they were too decomposed, not
brought to land, or stranded on protected lands (e.g., national and
state parks) with limited or no access. Of the whales examined (roughly
90), about 40 percent had evidence of human interaction, either ship
strike or entanglement. Vessel strikes and entanglement in fishing gear
are the greatest human threats to large whales. The remaining 50
necropsied whales either had an undetermined cause of death (due to a
limited examination or decomposition of the carcass), or had other
causes of death including parasite-caused organ damage and starvation.
Acoustic sources used in these HRG surveys are very different from
seismic airguns used in oil and gas surveys and 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.
The best available science indicates that only Level B harassment,
or disruption of behavioral patterns (e.g., avoidance), may occur as a
result of Atlantic Shores' HRG surveys. 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.
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 Endangered
Species Act (ESA)-listed marine mammal species (i.e., GARFO's analysis
conducted pursuant to the ESA finds that marine mammals are not likely
to be taken at all (as that term is defined under the ESA), much less
be taken by serious injury or mortality). That document is found 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 3: Green Oceans claims that the proposed IHA does not
properly value biodiversity in its assessment of harm and that
``impacts to the abundance or distribution of marine mammals can
disrupt vital systems that regulate the ocean and the climate.'' Green
Oceans further claims that NMFS dismisses the effects of habitat
displacement or abandonment on North Atlantic right whales (NARWs) from
the project.
Response: Green Oceans provides no further development of this
comment, e.g., in what way it believes that the MMPA requires that
``biodiversity'' be accounted for in the analyses required under the
MMPA, how it believes that these surveys would be likely to impact the
abundance or distribution of marine mammals, or how such impacts might
be likely to disrupt unspecified ``vital systems.'' However, we
reiterate that the magnitude of behavioral harassment authorized is
very low and the severity of any behavioral responses are expected to
be primarily limited to temporary displacement and avoidance of the
area when some activities that have the potential to result in
harassment are occurring (see Negligible Impact Determinations section
for our full analysis). NMFS does not anticipate that marine mammals
would be permanently displaced or displaced for extended periods of
time from the area where Atlantic Shores' marine site characterization
surveys would occur, and commenters do not provide evidence that this
effect should be a reasonably anticipated outcome of the specified
activity. We expect temporary avoidance to occur, at worst, but that is
distinctly different from displacement, which suggests longer-term,
reduced usage of habitat. Similarly, NMFS is not aware of any
scientific information suggesting that the survey activity would cause
meaningful shifts in abundance and distribution of marine mammals and
disagrees that this would be a reasonably anticipated effect of the
specified activities. The authorized take of NARWs by Level B
harassment is precautionary but considered unlikely as NMFS' take
estimation analysis does not account for the use of mitigation and
monitoring measures (e.g., the requirement for Atlantic Shores to
implement a shutdown zone for NARWs (500 m) that is more than three
times as large as the estimated harassment zone (141 m)). These
requirements are expected to largely eliminate the actual occurrence of
Level B harassment events and to the extent that harassment does occur,
would minimize the duration and severity of any such events. Level B
harassment authorized by this IHA is not expected to negatively impact
abundance or distribution of other marine mammal species particularly
given that it does not account for the suite of mitigation and
monitoring measures NMFS has prescribed, and would be comprised of
temporary low severity impacts, with no lasting biological
consequences. Therefore, even if marine mammals are in the area of the
specified activities, a displacement impact is not anticipated.
Comment 4: Commenters stated that NMFS was not utilizing the best
available science when assessing impacts to marine mammals. Green
Oceans asserted that NMFS had not fully considered the effect of the
project on NARWs, claiming that ``90% of the population could be
affected'' by the proposed survey.
Response: NMFS relied upon the best scientific evidence available,
including, but not limited to, the most recent Stock Assessment Report
(SAR) data, scientific literature, and Duke University's density models
(Roberts et al., 2023), in analyzing the impacts of Atlantic Shores'
specified activities on marine mammals. While commenters suggest
generally that NMFS consider the best scientific evidence available,
none of the commenters provided additional relevant scientific
information for NMFS to consider.
NMFS determined that Atlantic Shores' surveys have the potential to
take marine mammals by Level B harassment and does not anticipate or
authorize mortality (death), serious injury, or Level A harassment of
any marine mammal species, including NARW. Atlantic Shores requested
and NMFS is authorizing only five takes of NARWs by Level B harassment,
which is less than 2 percent of the population. Further, NMFS does not
expect that the generally short-term, intermittent, and transitory
nature of Atlantic Shores' marine site characterization survey
activities will create conditions of acute or chronic acoustic exposure
leading to
[[Page 54579]]
long-term physiological stress responses in marine mammals.
Comment 5: Green Oceans states that the ``precautionary principle''
does not allow NMFS to authorize the ``introduction of stressors'' to
populations undergoing an UME, that authorization of take for such
species ``violates the spirit and intent of the MMPA,'' and that NMFS
is ``precluded from authorizing wind energy development'' in habitat
utilized by relevant species for which there are active UMEs (i.e.,
humpback, minke, and North Atlantic right whales).
Response: Green Oceans refers to supposed standards that do not
exist in the MMPA, e.g., the MMPA contains no reference to the
``precautionary principle,'' and fails to adequately explain its
supposition that NMFS has violated the ``spirit and intent'' of the
MMPA. As described previously, an IHA does not authorize or allow the
activity itself but authorizes the take of marine mammals incidental to
the ``specified activity'' for which incidental take coverage is being
sought. In this case, NMFS is responding to Atlantic Shores' request to
incidentally take marine mammals while engaged in marine site
characterization surveys and determining whether the necessary findings
can be made based on Atlantic Shores' application. The authorization of
Atlantic Shores' survey activities, or any other activities that
introduce stressors, is not within NMFS' jurisdiction.
Regarding UMEs, the MMPA does not preclude authorization of take
for species or stocks with ongoing UMEs. Rather, NMFS considers the
ongoing UME as part of the environmental baseline for the affected
species or stock as part of its negligible impact analyses. Elevated
NARW mortalities began in June 2017 and there is an active UME.
Overall, preliminary findings support human interactions, specifically
vessel strikes and entanglements, as the cause of death for the
majority of NARWs. As noted previously, the survey area overlaps a
migratory corridor for NARWs. Due to the fact that the survey
activities are temporary and the spatial extent of sound produced by
the survey would be very small relative to the spatial extent of the
available migratory habitat in the biologically important area (BIA),
NARW migration is not expected to be impacted by the survey. Given the
relatively small size of the ensonified area, it is unlikely that prey
availability would be adversely affected by HRG survey operations.
Required vessel strike avoidance measures will also decrease risk of
ship strike during migration; no ship strike is expected to occur
during Atlantic Shores' planned activities. Additionally, only very
limited take by Level B harassment of NARWs has been requested and has
been authorized by NMFS as HRG survey operations are required to
maintain a 500 m shutdown zone for NARWs. The 500 m shutdown zone for
NARWs is conservative, considering the Level B harassment isopleth for
the most impactful acoustic source (i.e., sparker) is estimated to be
141 m, and thereby minimizes the potential for behavioral harassment of
this species. As noted previously, Level A harassment is not expected
due to the small permanent threshold shift (PTS) zones associated with
HRG equipment types proposed for use. NMFS does not anticipate NARW
takes that would result from Atlantic Shores' activities would impact
annual rates of recruitment or survival. Thus, any takes that occur
would not result in population level impacts.
Elevated humpback whale mortalities have occurred along the
Atlantic coast from Maine through Florida since January 2016. Of the
cases examined, approximately half had evidence of human interaction
(ship strike or entanglement). The UME does not yet provide cause for
concern regarding population-level impacts. Despite the UME, the
relevant population of humpback whales (the West Indies breeding
population, or distinct population segment (DPS)) remains stable at
approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales. The
minke whale UME is currently non-active, with closure pending.
The required mitigation measures are expected to reduce the number
and/or severity of takes for all species in Table 2, including those
with active UMEs, to the level of least practicable adverse impact. In
particular they would provide animals the opportunity to move away from
the sound source throughout the survey area before HRG survey equipment
reaches full energy, thus preventing them from being exposed to sound
levels that have the potential to cause injury (Level A harassment) or
more severe Level B harassment. No Level A harassment is anticipated,
even in the absence of mitigation measures, or authorized.
NMFS expects that takes would be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging (if such activity
was occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures would
further reduce exposure to sound that could result in more severe
behavioral harassment.
Comment 6: Some commenters objected to NMFS' small numbers and
negligible impact determinations for the numbers of marine mammals,
particularly NARWs, taken by Level B harassment under Atlantic Shores'
planned activities. Green Oceans claims that NMFS' determination is
``arbitrary and capricious,'' in part because it fails to account for
the total amount of take for a given species across all current wind
development activities for which NMFS has issued incidental take
authorizations (ITAs). Green Oceans also claims that, for Atlantic
Shores, NMFS is violating the ``intent of the MMPA'' by proposing to
authorize incidental take for ``over 12 percent of the stock for over 8
species.'' Green Oceans also states that NMFS' small numbers finding
``fails to consider the conservation status of the [NARW].''
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 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 38067, April 27, 2022; 87 FR
50293, August 16, 2022) 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
[[Page 54580]]
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, for an individual incidental
take authorization, 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)). As noted above, there is no biological significance associated
with ``small numbers'' and, as such, NMFS appropriately does not
consider ``conservation status'' or other issues related to the status
of a species or stock in making its small numbers finding. Instead,
these concepts are appropriately considered as part of the negligible
impact analysis--consideration of ``conservation status'' as part of
the small numbers finding, as Green Oceans suggests, would
inappropriately conflate these two independent findings.
Atlantic Shores requested, and NMFS proposed to authorize,
incidental take that amounts to less than 2 percent of the Western
Atlantic stock of NARWs, Gulf of Maine stock of humpback whales, and
Western North Atlantic stock of gray seals, and less than 1 percent of
all other stocks, values which do not align with those presented by
Green Oceans--which do not appear to relate to the proposed action.
NMFS has made the necessary small numbers finding for all affected
species and stocks, specifically for the issuance of the Atlantic
Shores IHA.
Comment 7: Oceana and Green Oceans noted that chronic stressors are
an emerging concern for NARW conservation and recovery, and stated that
chronic stress may result in energetic effects for North Atlantic right
whales. Oceana and Green Oceans 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 North Atlantic right
whales, as disturbance responses in North Atlantic right whales could
lead to chronic stress or habitat displacement, leading to an overall
decline in their health and fitness.
Response: NMFS agrees with Oceana and Green Oceans that both acute
and chronic stressors are of concern for NARW conservation and
recovery. We recognize that acute stress from acoustic exposure is one
potential impact of these surveys, and that chronic stress can have
fitness, reproductive, etc. impacts at the population-level scale. NMFS
has carefully reviewed the best available scientific information in
assessing impacts to marine mammals, and recognizes that Atlantic
Shores' 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
Atlantic Shores will create conditions of acute or chronic acoustic
exposure leading to long-term physiological stress responses in marine
mammals. NMFS has prescribed a robust suite of mitigation measures,
including extended distance shutdowns for NARW that are expected to
further reduce the duration and intensity of acoustic exposure, while
limiting the potential severity of any possible behavioral disruption,
and may prevent any actual harassment from occurring under this IHA.
The potential for chronic stress was evaluated in making the
determinations presented in NMFS' negligible impact analyses. Although
Green Oceans correctly states that Atlantic Shores' surveys would occur
in the NARW migratory corridor, they incorrectly claim that the project
area is a known feeding habitat for NARWs and that any displacement
would have ``devastating effects on the species.'' NMFS does not
anticipate that NARWs would be displaced from the area where Atlantic
Shores' marine site characterization surveys would occur, and neither
comment provides evidence that this effect should be a reasonably
anticipated outcome of the specified activity.
Similarly, NMFS is not aware of any scientific information
suggesting that the survey activity would drive marine mammals out of
the survey area, and disagrees that this would be a reasonably
anticipated effect of the specified activities. The take by Level B
harassment authorized by NMFS is precautionary and also considered
unlikely to actually occur, as NMFS' take estimation process does not
account for the use of extremely precautionary mitigation measures,
e.g., the requirement for Atlantic Shores to implement a Shutdown Zone
that is more than 3 times as large as the estimated harassment zone.
These requirements are expected to largely eliminate the actual
occurrence of Level B harassment events and, to the extent that
harassment does occur, would minimize the duration and severity of any
such events. Therefore, even if a NARW was in the area of Atlantic
Shores' surveys, a displacement impact is not anticipated.
Because NARW generally use this location in a transitory manner,
specifically for migration, any potential impacts from these surveys
are lessened for other behaviors due to the brief periods where
exposure is possible. Thus, the transitory nature of occurrence of
NARWs as they migrate means it is unlikely for any exposure to cause
chronic effects, as Atlantic Shores' planned survey area and ensonified
zones are small relative to the overall migratory corridor. As such,
NMFS does not expect acute or cumulative stress to be a detrimental
factor to NARWs from Atlantic Shores' described survey activities. The
potential for impacts related to an overall increase in the amount of
other OSW development activities is separate from the aforementioned
analysis of potential for impacts from the specified survey activities
and is not discussed further as it is outside the scope of this
specific action.
Comment 8: Green Oceans criticized NMFS's use of the 160-decibel
(dB) root mean square (rms) Level B harassment threshold, stating that
the threshold is based on outdated information and that the best
available science shows that behavioral impacts can occur at levels
below the threshold. Criticism of our use of this threshold also
focused on its nature as a step function, i.e., it assumes animals
don't respond to received noise levels below the threshold but always
do respond at higher received levels. Green Oceans also suggests that
reliance on this threshold results in consistent underestimation of
impacts because it is ``not sufficiently conservative'' and that any
determination that relies on this threshold is ``arbitrary and
capricious.'' Green Oceans implied that NMFS should revise its
generalized behavioral take thresholds to mirror linear risk functions
to account for intraspecific and contextual variability, and potential
impacts at lower received levels (particularly for baleen whales).
Response: NMFS acknowledges that the 160-dB rms step-function
approach is simplistic, and that an approach reflecting a more complex
probabilistic function may more effectively represent
[[Page 54581]]
the known variation in responses at different levels due to differences
in the receivers, the context of the exposure, and other factors. Green
Oceans suggested that our use of the 160-dB threshold implies that we
do not recognize the science indicating that animals may react in ways
constituting behavioral harassment when exposed to lower received
levels. However, we do recognize the potential for Level B harassment
at exposures to received levels below 160 dB rms, in addition to the
potential that animals exposed to received levels above 160 dB rms will
not respond in ways constituting behavioral harassment. These comments
appear to evidence a misconception regarding the concept of the 160-dB
threshold. While it is correct that in practice it works as a step-
function, i.e., animals exposed to received levels above the threshold
are considered to be ``taken'' and those exposed to levels below the
threshold are not, it is in fact intended as a sort of mid-point of
likely behavioral responses (which are extremely complex depending on
many factors including species, noise source, individual experience,
and behavioral context). What this means is that, conceptually, the
function recognizes that some animals exposed to levels below the
threshold will in fact react in ways that are appropriately considered
take, while others that are exposed to levels above the threshold will
not. Use of the 160-dB threshold allows for a simple quantitative
estimate of take, while we can qualitatively address the variation in
responses across different received levels in our discussion and
analysis.
We also note Green Oceans' statement that the 160-dB threshold is
``not sufficiently conservative.'' Green Oceans does not further
describe the standard of conservatism that it believes NMFS must
attain, or how that standard relates to the legal requirements of the
MMPA. Green Oceans goes on to imply that use of the 160-dB threshold is
inappropriate because it addresses only exposures that cause
disturbance, versus those exposures that present the potential to
disturb through disruption of behavioral patterns. Green Oceans does
not further develop this comment or offer any justification for this
contention. NMFS affirms that use of the 160-dB criterion is expected
to be inclusive of acoustic exposures presenting the potential to
disturb through disruption of behavioral patterns, as required through
the MMPA's definition.
Green Oceans cites reports of changes in vocalization, typically
for baleen whales, as evidence in support of a lower threshold than the
160-dB threshold currently in use. A mere reaction to noise exposure
does not, however, mean that a take by Level B harassment, as defined
by the MMPA, has occurred. For a take to occur requires that an act
have ``the potential to disturb by causing disruption of behavioral
patterns,'' not simply result in a detectable change in motion or
vocalization. Even a moderate cessation or modification of vocalization
might not appropriately be considered as being of sufficient severity
to result in take (Ellison et al., 2012). Green Oceans claims these
reactions result in biological consequences indicating that the
reaction was indeed a take but does not provide a well-supported link
between the reported reactions at lower received levels and the claimed
consequences.
Overall, there is a lack of scientific consensus regarding what
criteria might be more appropriate. Defining sound levels that disrupt
behavioral patterns is difficult because responses depend on the
context in which the animal receives the sound, including an animal's
behavioral mode when it hears sounds (e.g., feeding, resting, or
migrating), prior experience, and biological factors (e.g., age and
sex). Other contextual factors, such as signal characteristics,
distance from the source, and signal to noise ratio, may also help
determine response to a given received level of sound. Therefore,
levels at which responses occur are not necessarily consistent and can
be difficult to predict (Southall et al., 2007, 2019; Ellison et al.,
2012; Bain and Williams, 2006; Gomez et al., 2016).
Green Ocean references linear risk functions developed for use
specifically in evaluating the potential impacts of Navy tactical
sonar. However, Green Oceans provides no suggestion regarding a risk
function that it believes would be appropriate for use in this case.
There is currently no agreement on these complex issues, and this
threshold has remained in use in part because of the practical need to
use a relatively simple threshold based on available information that
is both predictable and measurable for most activities.
Comment 9: Oceana raised objections to NMFS' proposed renewal
process for potential extension of the 1-year IHA with an abbreviated
15-day public comment period. Oceana recommended that an additional 30-
day public comment period is necessary for any IHA renewal request.
Response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about IHA renewals (e.g.,
84 FR 52464, October 2, 2019; 85 FR 53342, August 28, 2020), NMFS
explained the IHA renewal process is consistent with the statutory
requirements contained in section 101(a)(5)(D) of the MMPA, and
further, promotes NMFS' goals of improving conservation of marine
mammals and increasing efficiency in the MMPA compliance process.
Therefore, we intend to continue to implement the existing renewal
process.
All IHAs issued, whether an initial IHA or a renewal, are valid for
a period of not more than 1 year. The public has 30 days to comment on
proposed IHAs, with a cumulative total of 45 days for IHA renewals. The
notice of the proposed IHA published in the Federal Register on June
28, 2023 (88 FR 41912) provided a 30-day public comment period and made
clear that NMFS was seeking comment on the proposed IHA and the
potential issuance of a renewal for this survey. As detailed in the
Federal Register notice for the proposed IHA and on the agency's
website, eligibility for renewal is determined on a case-by-case basis,
renewals are subject to an additional 15-day public comment period, and
the renewal is limited to up to another year of identical or nearly
identical activities as described in the Description of Proposed
Activities section of the proposed IHA notice or the activities
described in the Description of Proposed Activities section of the
proposed IHA notice would not be completed by the time the IHA expires
and a renewal would allow for completion of the activities beyond that
described in the Dates and Duration section of this notice of the
proposed IHA (88 FR 41912, June 28, 2023). NMFS' analysis of the
anticipated impacts on marine mammals caused by the applicant's
activities covers both the initial IHA period and the possibility of a
1-year renewal. Therefore, a member of the public considering
commenting on a proposed initial IHA also knows exactly what activities
(or subset of activities) would be included in a proposed renewal IHA,
the potential impacts of those activities, the maximum amount and type
of take that could be caused by those activities, the mitigation and
monitoring measures that would be required, and the basis for the
agency's negligible impact determinations, least practicable adverse
impact findings, small numbers findings, and (if applicable) the no
unmitigable adverse impact on subsistence use finding--all the
information needed to provide complete and meaningful comments on a
possible renewal at the time of considering the
[[Page 54582]]
proposed initial IHA. Reviewers have the information needed to
meaningfully comment on both the immediate proposed IHA and a possible
1-year renewal, should the IHA holder choose to request one.
While there would be additional documents submitted with a renewal
request, for a qualifying renewal these would be limited to
documentation that NMFS would make available and use to verify that the
activities are identical to those in the initial IHA, are nearly
identical such that the changes would have either no effect on impacts
to marine mammals or decrease those impacts, or are a subset of
activities already analyzed and authorized but not completed under the
initial IHA. NMFS would also need to confirm, among other things, that
the activities would occur in the same location; involve the same
species and stocks; provide for continuation of the same mitigation,
monitoring, and reporting requirements; and that no new information has
been received that would alter the prior analysis. The renewal request
would also contain a preliminary monitoring report, in order to verify
that effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. The additional 15-day public comment
period, which includes NMFS' direct notice to anyone who commented on
the proposed initial IHA, provides the public an opportunity to review
these few documents, provide any additional pertinent information, and
comment on whether they think the criteria for a renewal have been met.
Combined together, the 30-day public comment period on the initial IHA
and the additional 15-day public comment period on the renewal of the
same or nearly identical activities, provides the public with a total
of 45 days to comment on the potential for renewal of the IHA.
In addition to the IHA renewal process being consistent with all
requirements under section 101(a)(5)(D) of the MMPA, it is also
consistent with Congress' intent for issuance of IHAs to the extent
reflected in statements in the legislative history of the MMPA. Through
the description of the process and express invitation to comment on
specific potential renewals in the Request for Public Comments section
of each proposed IHA, the description of the process on NMFS' website,
further elaboration on the process through responses to comments such
as these, posting of substantive documents on the agency's website, and
provision of 30 or 45 days for public review and comment on all
proposed initial IHAs and renewals respectively, NMFS has ensured that
the public is ``invited and encouraged to participate fully in the
agency's decision-making process,'' as Congress intended.
Comment 10: Several commenters asserted that NMFS must fully
consider the discrete effects of each activity and the cumulative
effects of the suite of approved, proposed and potential activities on
marine mammals and North Atlantic right whales in particular and ensure
that the cumulative effects are not excessive before issuing or
renewing an IHA.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of other unrelated activities and
their impacts on marine mammal populations. The preamble for NMFS'
implementing regulations (54 FR 40338, September 29, 1989) states in
response to comments that the impacts from other past and ongoing
anthropogenic activities are to be incorporated into the negligible
impact analysis via their impacts on the baseline. Consistent with that
direction, NMFS has factored into its negligible impact analysis the
impacts of other past and ongoing anthropogenic activities via their
impacts on the baseline, e.g., as reflected in the density,
distribution and status of the species, population size and growth
rate, and other relevant stressors. The 1989 final rule for the MMPA
implementing regulations also addressed public comments regarding
cumulative effects from future, unrelated activities. There, NMFS
stated that such effects are not considered in making findings under
MMPA section 101(a)(5) concerning negligible impact. In this case, this
IHA, as well as other IHAs currently in effect or proposed within the
specified geographic region, are appropriately considered an unrelated
activity relative to the others. The IHAs are unrelated in the sense
that they are discrete actions under section 101(a)(5)(D), issued to
discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations at 50 CFR 216.104(a)(1) require
applicants to include in their request a detailed description of the
specified activity or class of activities that can be expected to
result in incidental taking of marine mammals. Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, Atlantic Shores was the applicant for the IHA, and we
are responding to the specified activity as described in that
application and making the necessary findings on that basis.
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated (1) that we would consider cumulative
effects that are reasonably foreseeable when preparing a National
Environmental Policy Act (NEPA) analysis, and (2) that reasonably
foreseeable cumulative effects would also be considered under section 7
of the ESA for 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 Atlantic
Shores have been adequately addressed under NEPA in prior environmental
analyses that support NMFS' determination that this action is
appropriately categorically excluded from further NEPA analysis. NMFS
independently evaluated the use of a categorical exclusion (CE) for
issuance of Atlantic Shores' IHA, which included consideration of
extraordinary circumstances.
Separately, the cumulative effects of substantially similar
activities in the northwest Atlantic Ocean have been analyzed in the
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New
York, and New Jersey Wind Energy Areas (<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed activities
include those for which NMFS issued previous IHAs (82 FR 31562, July 7,
2017; 85 FR 21198, April 16, 2020; 86 FR 26465, May 10, 2021), which
are similar to those planned by Atlantic Shores under this current IHA
request. This Biological Opinion (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.
[[Page 54583]]
Comment 11: SLC states its opposition to the use of a categorical
exclusion under NEPA, asserting that, at minimum, an Environmental
Assessment is the appropriate level of review.
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 Impact (FONSIs) and, in
particular, EAs prepared in support of issuance of IHAs related to
similar survey actions are part of NMFS' administrative record
supporting CE B4. These EAs demonstrate the issuance of a given
incidental harassment authorization does not affect other aspects of
the human environment because the action only affects the marine
mammals that are the subject of the incidental harassment
authorization. These EAs also addressed factors in 40 CFR 1508.27
regarding the potential for significant impacts and demonstrate the
issuance of incidental harassment authorization for the categories of
activities encompassed by CE B4 do not individually or cumulatively
have a significant effect on the human environment.
Specifically for this action, NMFS independently evaluated the use
of the CE for issuance of Atlantic Shores' IHA, which included
consideration of extraordinary circumstances. As part of that analysis,
NMFS considered whether this IHA issuance would result in cumulative
impacts that could be significant. In particular, the issuance of an
IHA to Atlantic Shores is expected to result in minor, short-term
behavioral effects on marine mammal species due to exposure to
underwater sound from site characterization survey activities.
Behavioral disturbance is possible to occur intermittently in the
vicinity of Atlantic Shores' survey area during the 1-year timeframe.
Level B harassment will be reduced through use of mitigation measures
described herein. Additionally, as discussed elsewhere, NMFS has
determined that Atlantic Shores' activities fall within the scope of
activities analyzed in GARFO's programmatic consultation regarding
geophysical surveys along the U.S. Atlantic coast in the three Atlantic
Renewable Energy Regions (completed June 29, 2021; revised September
2021), which concluded surveys such as those planned by Atlantic Shores
are not likely to adversely affect ESA-listed species or adversely
modify or destroy critical habitat. Accordingly, NMFS has determined
that the issuance of this IHA will result in no more than negligible
(as that term is defined by the Companion Manual for NAO 216-6A)
adverse effects on species protected by the ESA and the MMPA.
Further, the issuance of this IHA will not result in highly
controversial environmental effects or result in environmental effects
that are uncertain, 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 12: 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 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 13: Oceana states that NMFS must make an assessment of
which activities, technologies and strategies are truly necessary to
achieve site characterization to inform development of the offshore
wind projects and which are not critical, asserting that NMFS should
prescribe the appropriate survey techniques. In general, Oceana stated
that NMFS must require the IHA applicant to avoid
[[Page 54584]]
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 sought under section 101(a)(5)(D) is
defined and described by the applicant, not by NMFS.
Comment 14: 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. In addition, COA noted a lack of
standardization for PSOs which could result in differences in recorded
take responses, and urged NMFS to incorporate updated guidance on
national standards for PSOs and data management into the take
authorization process.
Response: NMFS agrees with the commenters regarding these
suggestions and requirements to utilize PSOs for monitoring, for PSOs
to use a thermal (infrared) device during low-light conditions, and to
include updated standardization of PSO requirements and data
management. These requirements were included in the proposed Federal
Register Notice as well as in the issued IHA.
The report that COA references, National Standards for a Protected
Species Observer and Data Management Program: A Model Using Geological
and Geophysical Surveys (Baker et al., 2013), currently serves as a
basis for NMFS' current standardized PSO requirements, specifically
review of PSO qualifications as well as collecting and reporting data.
Comment 15: 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 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 Atlantic Shores' 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 16: 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 as a requirement in the issued IHA.
Comment 17: 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 Atlantic Shores, 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 outweigh and warrant the cost and practicability issues
associated with this requirement and therefore the agency has not
included this within the issued IHA.
Comment 18: Oceana asserts that the IHA must include requirements
to hold
[[Page 54585]]
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.
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 Atlantic Shores, the vessel operators, the
lead PSO, and any other relevant designees of Atlantic Shores operating
under the authority of this IHA. The IHA also states that Atlantic
Shores 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 19: Oceana stated that the IHA must include a requirement
for all phases of 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. Atlantic Shores 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, and 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, Atlantic Shores 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. Atlantic Shores may also report the sighting to the U.S.
Coast Guard. Additionally, Atlantic Shores must report any discoveries
of injured or dead marine mammals to the NMFS Office of Protected
Resources 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 20: Oceana recommended that for site characterization
activities that have the potential to injure or harass NARWs, NMFS
require a visual clearance and exclusion zone of at least 1,000 m for
NARWs around each vessel conducting activities with noise levels that
could result in injury to or harassment of large whales, and also
require an acoustic clearance and exclusion zone of at least 1,000 m
for NARWs around each vessel conducting activities with noise levels
that could harass NARWs.
Response: NMFS notes that the 500 m clearance Zone for NARWs
exceeds the modeled distance to the largest 160 dB Level B harassment
isopleth (141 m during sparker use) by a substantial margin. Oceana
does not provide a compelling rationale for why the clearance zone
should be even larger. Given that these surveys are relatively low
impact and that, regardless, NMFS has prescribed a NARW clearance zone
that is significantly larger (500 m) than the conservatively estimated
largest harassment zone (141 m), NMFS has determined that the clearance
zone is appropriate.
Comment 21: Oceana recommends a shutdown requirement if a NARW or
other ESA-listed species are 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 Description of
Mitigation, Monitoring, and Reporting Measures 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 41912, June 28, 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.
Atlantic Shores 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, Atlantic Shores must notify NMFS if a NARW
is observed at any time by any survey vessels during surveys or during
vessel transit. Additionally, Atlantic Shores 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
[[Page 54586]]
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 Atlantic Shores' final monitoring report and
made publicly available on NMFS' website. Atlantic Shores 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.
Comment 22: Oceana recommended that NMFS should require Passive
Acoustic Monitoring (PAM) to establish a clearance zone and maximize
the probability of detection for NARWs.
Response: NMFS does not agree that a measure to require PAM 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 23: Oceana recommended that when HRG surveys are allowed to
resume after a shutdown event, the surveys should be required to use a
ramp-up procedure to encourage any nearby marine life to leave the
area.
Response: NMFS agrees with this recommendation and included this
requirement in the Federal Register notice of the proposed IHA (88 FR
41912, June 28, 2023) and the final IHA as a stipulation that when
technically feasible, survey equipment must be ramped up at the start
or restart of survey activities. Ramp-up must begin with the power of
the smallest acoustic equipment at its lowest practical power output
appropriate for the survey. When technically feasible the power must
then be gradually turned up and other acoustic sources added in a way
such that the source level would increase gradually. NMFS notes that
ramp-up is not required for short periods where acoustic sources were
shut down (i.e., less than 30 minutes) if PSOs have maintained constant
visual observation and no detections of marine mammals occurred within
the applicable Shutdown Zones.
Comment 24: COA states that there is no legal authority for
permitting offshore geotechnical and geophysical survey activities
under BOEM, based on text from the proposed BOEM Renewable Energy
Modernization proposed rule (88 FR 5968, January 30, 2023; 88 FR 19578,
April 3, 2023). They further state that this has allowed for no
oversight with regards to surveys off New Jersey and New York and that
they do not understand how BOEM can make assertions without
regulations/guidance for HRG survey work.
Response: NMFS' statutory authority for this particular action is
limited to authorizing incidental take of marine mammals. NMFS
respectfully refers the commenter to BOEM, the agency with
responsibility for managing development of U.S. Outer Continental Shelf
energy and mineral resources in an environmentally and economically
responsible way.
Comment 25: 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 Atlantic
Shores' survey areas. Furthermore, the MMPA requires us to evaluate the
effects of the specified activities in consideration of the best
scientific evidence available and, if the necessary findings are made,
to issue the requested take authorization. The MMPA does not allow us
to delay decision making in hopes that additional information may
become available in the future.
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 26: COA and SLC assert that Level A harassment may occur,
and that this was not accounted for by NMFS.
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 Atlantic
Shores' 2022 Federal Register notice (87 FR 50293, August 16, 2022) and
carried through to the 2023 IHA (88 FR 41912,
[[Page 54587]]
June 28, 2023). Furthermore, the commenter does not provide any support
for the apparent contention that Level A harassment is a potential
outcome of these activities.
As discussed in the notice of proposed IHA, 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 27: COA and Green Oceans expressed concerns regarding the
increased amount of vessel traffic associated with the offshore wind
project and its impacts on protected resources, as well as concern for
vessel noise.
Response: Atlantic Shores 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 Atlantic Shores were to strike a marine mammal with a
vessel, this would be an unauthorized take in violation of the MMPA.
This gives Atlantic Shores a strong incentive to operate its vessels
with all due caution and to effectively implement the suite of vessel
strike avoidance measures required by the IHA. Atlantic Shores proposed
a very conservative suite of mitigation measures related to vessel
strike avoidance, including measures specifically designed to avoid
impacts to NARWs. Section 4(g) 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 Atlantic Shores
vessels, given the limited additional survey-related vessel traffic
relative to existing traffic in the survey area, the comprehensive
visual monitoring, and other additional mitigation measures described
herein, NMFS believes these measures are sufficiently protective to
avoid 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 Atlantic Shores personnel, vessel operational protocol
should any marine mammal be observed, and visual monitoring.
The potential for impacts related to an overall increase in the
amount of vessel traffic due to offshore wind development is separate
from the aforementioned analysis of potential for vessel strike during
Atlantic Shores' specified survey activities. For more information,
please see the response to comment 11 discussing cumulative impacts.
Comment 28: SLC asserts that NMFS' assessment of sound propagation
from the proposed activities does 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 that NMFS'
analysis of sound propagation is insufficient. While the transmission
loss model (i.e., spherical spreading) used for HRG sources is fairly
simplistic and does not directly account for reflections at the
surface, it adequately accounts for how sound would propagate through
the environment (note that NMFS' isopleth estimates also account for
frequency-dependent absorption), and thus provides a realistic
approximation 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.
Comment 29: SLC claims that the weighting curves for low frequency
(LF) cetaceans do not align with mysticetes' infrasonic hearing, and
urged NMFS to incorporate better estimations for low frequency
cetaceans and corresponding thresholds based upon the best available
data.
Response: NMFS disagrees that the current low-frequency (LF)
cetacean weighting functions are not based on the best available
science. While there are very limited data to inform our understanding
of mysticete hearing, the generalized hearing range used by NMFS for
mysticetes extends from 7 Hz up to 35 kHz, which reflects
recommendations made by Southall et al. 2007 and Southall et al. 2019.
Hearing predictions for mysticetes are based on other methods
including: anatomical studies and modeling (Houser et al., 2001; Parks
et al., 2007; Tubelli et al., 2012; Cranford and Krysl, 2015);
vocalizations (see reviews in Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008); taxonomy; and behavioral
responses to sound (Dahlheim and Ljungblad, 1990; see review in
Reichmuth, 2007). The existing weighting functions reflect LF cetacean
infrasonic hearing capabilities to the greatest extent allowed by
available data.
Comment 30: Green Oceans suggests that the surveys may result in
acute injury of whales as a result of rectified diffusion, i.e., bubble
growth caused by acoustic exposure.
Response: With regard to Green Oceans' suggestion that acute injury
of whales could occur as a result of bubble formation, this effect is
extremely unlikely to occur in the circumstances considered here, i.e.,
relatively low-level sound exposure in shallow waters. We acknowledge
that non-auditory physiological effects or injuries can theoretically
occur in marine mammals exposed to high level underwater sound or as a
secondary effect of extreme behavioral reactions (e.g., change in dive
profile as a result of an avoidance reaction) caused by exposure to
sound. These include neurological effects, resonance effects, and other
types of organ or tissue damage (Cox et al., 2006; Southall et al.,
2007; Zimmer and Tyack, 2007). The bubble formation, or rectified
diffusion, referenced by Green Oceans is another such effect (e.g.,
Houser et al., 2001; Tal et al., 2015). However, the survey activities
considered here do not involve the use of devices such as explosives or
mid-frequency tactical sonar that produce the high-intensity sounds
that are associated with these types of effects. While these bubble
formation effects remain a theoretical potential cause of marine mammal
stranding, it is important to note that theoretical analysis of this
potential considers as necessary precedent the condition of deep diving
and slow ascent/descent speed, which contributes to increased gas-
tissue saturation, prior to high-intensity sound exposure. The survey
conditions here, aside from the absence of the high-intensity sound
that would be expected to be necessary to cause this effect, preclude
the deep diving conditions in which gas supersaturation and the
potential for bubble growth might occur--as noted previously, the
maximum survey depth is 38 meter (m). Houser et al. (2001) emphasize
the importance of dive depth to the rectified diffusion concept in
marine mammals, stating that beaked whales and sperm whales (species
not expected to be
[[Page 54588]]
impacted by the proposed survey) may be at greatest risk, with other
odontocete species at lesser potential risk. Green Oceans focused its
concern on ``whales,'' which we presume to mean mysticete species,
which would be at even lower risk due to typically shallow dive
patterns. In summary, the concern raised by Green Oceans regarding
potential injury resulting from rectified diffusion is unwarranted due
to the shallow survey depths, which preclude the gas-tissue saturation
conditions necessary to potentially lead to bubble formation, and the
lack of high-intensity sounds necessary to cause bubble expansion.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
can be found in the previous documents and notices for the 2022 IHA (87
FR 38067, June 27, 2022; 87 FR 50293, August 16, 2022), which remain
applicable to this IHA. NMFS reviewed the most recent draft Stock
Assessment Reports (SARs, found on NMFS' website at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>), up-to-date information on relevant Unusual
Mortality Events (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 is
available for the NARW. We note that the estimated abundance for the
species declined from 368 to 338. However, this change does not affect
our analysis of impacts, as described under the 2022 IHA.
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.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in the documents
supporting the 2022 IHA (87 FR 38067, June 27, 2022; 87 FR 50293,
August 16, 2022). NMFS has determined that there is no new information
on potential effects that would impact our analysis.
Estimated Take
A detailed description of the methods used to estimate take
anticipated to occur incidental to the project is found in the previous
Federal Register notices (87 FR 38067, June 27, 2022; 87 FR 50293,
August 16, 2022). The methods of estimating take are identical to those
used in the 2022 IHA. Atlantic Shores 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">https://seamap.env.duke</a>.edu/models/
Duke/EC/. We refer the reader to Table 6 in Atlantic Shores' 2023 IHA
request for 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 Atlantic Shores' density-based calculations for
the survey area. For comparative purposes, we have provided the 2022
IHA authorized take (87 FR 50293, August 16, 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
[[Page 54589]]
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale........... Eubalaena glacialis..... Western Atlantic....... 338 24 5 1.5
Humpback whale....................... Megaptera novaeangliae.. Gulf of Maine.......... 1,396 8 \6\ 8 (16) 1.2
Fin whale............................ Balaenoptera physalus... Western North Atlantic. 6,802 16 9 <1
Sei whale \2\........................ Balaenoptera borealis... Nova Scotia............ 6,292 2 4 <1
Minke whale.......................... Balaenoptera Canadian East Coastal.. 21,968 8 46 <1
acutorostrata.
Sperm whale \2\...................... Physeter macrocephalus.. Western Atlantic....... 4,349 3 2 <1
Long-finned pilot whale \3\.......... Globicephala melas...... Western North Atlantic. 39,215 20 8 (20) <1
Bottlenose dolphin................... Tursiops truncatus...... Western North Atlantic 62,851 232 179 <1
Offshore Stock.
Common dolphin....................... Delphinus delphis....... Western North Atlantic. 172,974 911 588 <1
Atlantic white-sided dolphin......... Lagenorhynchus acutus... Western North Atlantic. 93,233 108 63 <1
Atlantic spotted dolphin............. Stenella frontalis...... Western North Atlantic. 39,921 100 42 (100) <1
Risso's dolphin...................... Grampus griseus......... Western North Atlantic. 35,215 30 7 (30) <1
Harbor porpoise...................... Phocoena phocoena....... Gulf of Maine/Bay of 95,543 357 281 <1
Fundy.
Harbor seal \4\...................... Phoca vitulina.......... Western North Atlantic. 61,336 263 374 <1
Gray seal \4\ \5\.................... Halichoerus grypus...... Western North Atlantic. 27,300 263 374 1.37
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Parentheses denote take authorization where different from calculated take estimates. Increases from calculated values are based on average group
size for the following species: humpback whale, King et al., 2021; long-finned pilot whale and Risso's dolphin, NOAA, 2022; and Atlantic spotted
dolphin, Jefferson et al., 2008.
\2\ Where calculated takes for a species in a given survey area were less than 1 individual, the number was rounded up to 1 take in each survey area.
\3\ 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.
\4\ Roberts et al. (2023) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to occur
equally in the survey area; therefore, density values were split evenly between the 2 species, i.e., total estimated take for ``seals'' is 748.
\5\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
approximately 451,600.
\6\ According to recent findings that humpback whales were the most commonly sighted species in the New York Bight (King et al., 2021), the number of
modeled exposures (4) for each of the lease area and ECR is multiplied by an average whale size of two for a total of eight estimated takes in the
lease area and eight estimated takes in the ECR. The total request (16) represents the sum of estimated take in the lease area (8) and ECR (8).
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.
Atlantic Shores 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, August 1, 2023). Should a final vessel speed rule be issued and
become effective during the effective period of this IHA (or any other
MMPA incidental take authorization), the authorization holder would be
required to comply with any and all applicable requirements contained
within the final rule. Specifically, where measures in any final vessel
speed rule are more protective or restrictive than those in this or any
other MMPA authorization, authorization holders would be required to
comply with the requirements of the rule. Alternatively, where measures
in this or any other MMPA authorization are more restrictive or
protective than those in any final vessel speed rule, the measures in
the MMPA authorization would remain in place. The responsibility to
comply with the applicable requirements of any vessel speed rule would
become effective immediately upon the effective date of any final
vessel speed rule and, when notice is published of the effective date,
NMFS would also notify Atlantic Shores if the measures in the speed
rule were to supersede any of the measures in the MMPA authorization
such that they were no longer applicable.
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; non-impulsive: Non-parametric sub-bottom
profilers); and,
<bullet> 100-m SZ for all other marine mammals (excluding NARWs)
during use of specified acoustic sources (except as specified below).
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 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 38067, June
27, 2022; 87 FR 50293,
[[Page 54590]]
August 16, 2022). Atlantic Shores 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 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 38067, June 27, 2022; 87 FR 50293, August 16,
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 CZs will be established around
the HRG survey equipment and monitored by NMFS-approved PSOs prior to
use of sparkers and non-parametric sub-bottom profilers as follows:
<bullet> 500-m CZ for all ESA-listed species; and,
<bullet> 100-m CZ for all other marine mammals.
Prior to initiating HRG survey activities, Atlantic Shores will
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,
Atlantic Shores will 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. Acoustic
source activation must only occur at night where operational planning
cannot reasonably avoid such circumstances.
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
clearance zone, 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 and seals 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 re-activated 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 acoustic source(s) must be deactivated when not
acquiring data or preparing to acquire data, except as necessary for
testing. Unnecessary use of the acoustic source shall be avoided.
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 would
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 (141 m), shutdown
must occur.
Vessel Strike Avoidance--Atlantic Shores must comply with vessel
strike avoidance measures as described in the Federal Register notice
for the 2022 IHA (87 FR 50293, August 16, 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
[[Page 54591]]
to animal's course, etc.); and monitoring of the NMFS NARW reporting
system and WhaleAlert daily.
Throughout all phases of the survey activities, Atlantic Shores
must monitor NOAA Fisheries NARW reporting systems for the
establishment of a DMA. If NMFS establishes a DMA in the surrounding
area, including the project area or export cable routes being surveyed,
Atlantic Shores is required to abide by the 10-kn (18.5 km/hour) speed
restriction.
Seasonal Operating Requirements--Atlantic Shores will conduct HRG
survey activities in the vicinity of a NARW Mid-Atlantic SMA.
Activities must comply with the seasonal mandatory speed restriction
period for this SMA (November 1 through April 30) for any survey work
or transit within this area.
Training--Project-specific training is required for all vessel crew
prior to the start of survey activities.
Reporting--PSOs must record specific information as described in
the Federal Register notice of the issuance of the 2022 IHA (87 FR
50293, August 16, 2022). Within 90 days after completion of survey
activities, Atlantic Shores 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, Atlantic Shores 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 50293, August 16, 2022).
Determinations
Atlantic Shores' HRG survey activities are 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 increases in estimated take for two marine
mammal species (humpback whale and minke whale). NMFS expects that all
potential takes would be short-term Level B behavioral harassment in
the form of temporary avoidance of the area or decreased foraging (if
such activity was occurring), reactions that are considered to be of
low severity and with no lasting biological consequences (e.g.,
Southall et al., 2007). In addition to being temporary, the maximum
expected harassment zone around a survey vessel is 141 m from use of
the AA Dura-spark sparker. Although this distance is assumed for all
survey activity evaluated here and in estimating authorized take
numbers, in reality, much of the survey activity would involve use of
non-impulsive acoustic sources with a reduced acoustic harassment zone
of up to 56 m, producing expected effects of particularly low severity.
The ensonified area surrounding each vessel is extremely small compared
to the overall distribution of the animals in the area and the
available habitat.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the survey
area; therefore, marine mammals that may be temporarily displaced
during survey activities are expected to be able to resume foraging
once they have moved away from areas with disturbing levels of
underwater noise. Because of the temporary nature of the disturbance
and the availability of similar habitat and resources in the
surrounding area, the impacts to marine mammals and the food sources
that they utilize are not expected to cause significant or long-term
consequences for individual marine mammals or their populations. Even
considering the increased estimated take for some species, the impacts
of these lower severity exposures are not expected to accrue to a
degree that the fitness of any individuals would be impacted and,
therefore, no impacts on the annual rates of recruitment or survival
would result.
As previously discussed in the 2022 IHA (87 FR 50293, August 16,
2022), impacts from the survey are expected to be localized to the
specific area of activity and only during periods when Atlantic Shores'
acoustic sources are active. There are no rookeries, mating or calving
grounds, or any feeding areas known to be biologically important to
marine mammals within the survey area. There is no designated critical
habitat for any marine mammals listed under the ESA in the survey area.
As noted for the 2022 IHA (87 FR 50293, August 16, 2022), the
survey area overlaps a migratory corridor BIA and migratory route SMA
(Port of New Jersey/New York) for NARWs. As the survey activities would
be temporary and the spatial acoustic footprint produced by the survey
would 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 would also decrease risk of ship strike during
migration; no ship strike is expected to occur during Atlantic Shores'
activities. Atlantic Shores would 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, Atlantic Shores
requested, and NMFS has authorized, only five takes by Level B
harassment of NARWs. This amount is less than the 24 Level B harassment
takes authorized in the 2022 IHA due to the updated Duke University
density data (Roberts et al., 2023).
Although take by Level B harassment of NARWs has been authorized by
NMFS, we anticipate such take may not actually occur, and should it
occur, we anticipate a very low level of harassment because Atlantic
Shores is required to maintain a shutdown zone of 500 m if a NARW is
observed. The authorized takes account for any missed animals wherein
the survey equipment is not shut down immediately. As shutdown would be
called for immediately upon detection (if the whale is within 500 m),
it is likely the exposure time would be very limited and received
levels would not be much above the harassment threshold. Further, the
500-m SZ for NARWs is conservative, considering the Level B harassment
isopleth for the most impactful acoustic source (i.e., AA Dura-spark
sparker) is estimated to be 141 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 would result from Atlantic Shores' activities would impact
annual rates of recruitment or survival. Thus, any takes that occur
would 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 remain applicable to
this project. 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 would effect the least practicable impact on marine
mammal species or stocks and their habitat; (2) the authorized takes
would have a negligible impact on the affected marine mammal species or
stocks; (3) the authorized takes represent small numbers of marine
[[Page 54592]]
mammals relative to the affected stock abundances; (4) Atlantic Shores'
activities would 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 consults internally whenever we propose to authorize take for
endangered or threatened species.
NMFS has authorized the incidental take of four species of marine
mammals which are listed under the ESA, the North Atlantic right, fin,
sei, and sperm whale, and has determined that this activity falls
within the scope of activities analyzed in NMFS Greater Atlantic
Regional Fisheries Office'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 Atlantic Shores for the potential
harassment of small numbers of 15 marine mammal species incidental to
marine site characterization surveys offshore of New Jersey and New
York, provided the previously mentioned mitigation, monitoring, and
reporting requirements are followed.
Dated: August 8, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-17271 Filed 8-10-23; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on August 11, 2023.
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