Rule2023-19351
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Ocean Wind 1 Project Offshore of New Jersey
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
September 13, 2023
Effective
October 13, 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 promulgates regulations to govern the incidental taking of marine mammals incidental to Ocean Wind, LLC (Ocean Wind), a subsidiary wholly owned by Orsted Wind Power North America, LLC (Orsted), construction of the Ocean Wind 1 Offshore Wind Energy Project (hereafter known as the "Project") in Federal and State waters off of New Jersey, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0498 (Lease Area) and along two export cable routes to sea-to-shore transition points (collectively referred to as the "Project Area"), over the course of 5 years (October 13, 2023 through October 12, 2028). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during construction-related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
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[Federal Register Volume 88, Number 176 (Wednesday, September 13, 2023)]
[Rules and Regulations]
[Pages 62898-62991]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19351]
[[Page 62897]]
Vol. 88
Wednesday,
No. 176
September 13, 2023
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Ocean Wind 1 Project Offshore of New
Jersey; Final Rule
Federal Register / Vol. 88 , No. 176 / Wednesday, September 13, 2023
/ Rules and Regulations
[[Page 62898]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 230901-0209]
RIN 0648-BL36
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Ocean Wind 1 Project Offshore
of New Jersey
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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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 promulgates regulations to govern the incidental taking of
marine mammals incidental to Ocean Wind, LLC (Ocean Wind), a subsidiary
wholly owned by Orsted Wind Power North America, LLC (Orsted),
construction of the Ocean Wind 1 Offshore Wind Energy Project
(hereafter known as the ``Project'') in Federal and State waters off of
New Jersey, specifically within the Bureau of Ocean Energy Management
(BOEM) Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0498
(Lease Area) and along two export cable routes to sea-to-shore
transition points (collectively referred to as the ``Project Area''),
over the course of 5 years (October 13, 2023 through October 12, 2028).
These regulations, which allow for the issuance of a Letter of
Authorization (LOA) for the incidental take of marine mammals during
construction-related activities within the Project Area during the
effective dates of the regulations, prescribe the permissible methods
of taking and other means of effecting the least practicable adverse
impact on marine mammal species or stocks and their habitat, as well as
requirements pertaining to the monitoring and reporting of such taking.
DATES: This rulemaking and issued LOA are effective from October 13,
2023 through October 12, 2028.
FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Ocean Wind's Incidental Take Authorization (ITA)
application, supporting documents, received public comments, and the
proposed rulemaking, as well as a list of the references cited in this
document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In case of problems accessing these
documents, please call the contact listed above (see FOR FURTHER
INFORMATION CONTACT).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the
authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to authorize
the take of marine mammals incidental to construction of the Project
within the Project Area. NMFS received a request from Ocean Wind to
incidentally take individuals of 17 species of marine mammals,
comprising 18 stocks (10 stocks by Level A harassment and Level B
harassment and 8 stocks by Level B harassment only), incidental to
Ocean Wind's 5 years of construction activities. No mortality or
serious injury was requested nor is it anticipated or authorized in
this final rulemaking.
Legal Authority for the Final Action
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, regulations are
promulgated (when applicable), and public notice and an opportunity for
public comment are provided.
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). If such findings are made, NMFS must prescribe the
permissible methods of taking; ``other means of effecting the least
practicable adverse impact'' on the affected species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, and on the availability of
the species or stocks for taking for certain subsistence uses (referred
to as ``mitigation''); and requirements pertaining to the monitoring
and reporting of such takings.
As noted above, no serious injury or mortality is anticipated or
authorized in this final rule. Relevant definitions of MMPA statutory
and regulatory terms are included below:
<bullet> U.S. Citizens--individual U.S. citizens or any corporation
or similar entity if it is organized under the laws of the United
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR
216.103);
<bullet> Take--to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13);
50 CFR 216.3);
<bullet> Incidental harassment, incidental taking, and incidental,
but not intentional, taking--an accidental taking. This does not mean
that the taking is unexpected, but rather it includes those takings
that are infrequent, unavoidable or accidental (see 50 CFR 216.103);
<bullet> Serious Injury--any injury that will likely result in
mortality (50 CFR 216.3);
<bullet> Level A harassment--any act of pursuit, torment, or
annoyance which has the potential to injure a marine mammal or marine
mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and
<bullet> Level B harassment--any act of pursuit, torment, or
annoyance which has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (16 U.S.C. 1362(18); 50 CFR 216.3).
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I provide the legal basis for proposing
and, if appropriate, issuing regulations and an associated LOA(s). This
final rule establishes permissible methods of taking and mitigation,
monitoring, and reporting requirements for Ocean Wind's construction
activities.
Summary of Major Provisions Within the Final Rule
The major provisions of this final rule are:
<bullet> The authorized take of marine mammals by Level A
harassment and/or Level B harassment;
<bullet> No authorized take of marine mammals by mortality or
serious injury;
<bullet> The establishment of a seasonal moratorium on impact pile
driving of foundation piles during the months of the highest presence
of North Atlantic right whales (Eubalaena glacialis) in the Lease Area
(December 1-April 30,
[[Page 62899]]
annually), unless prior approval from NMFS for pile driving in
December;
<bullet> The establishment of a seasonal moratorium on unexploded
ordnance or munitions and explosives of concern (UXOs/MECs) detonations
from November 1-April 30, annually;
<bullet> A requirement for UXO/MEC detonations to only occur during
hours of daylight and not during hours of darkness;
<bullet> A requirement for both visual and passive acoustic
monitoring to occur by trained, NOAA Fisheries-approved Protected
Species Observers (PSOs) and Passive Acoustic Monitoring (PAM; where
required) operators before, during, and after select activities;
<bullet> A requirement for training for all Ocean Wind personnel to
ensure marine mammal protocols and procedures are understood;
<bullet> The establishment of clearance and shutdown zones for all
in-water construction activities to prevent or reduce the risk of Level
A harassment and to minimize the risk of Level B harassment;
<bullet> A requirement to use sound attenuation device(s) during
all foundation impact pile driving installation activities and UXO/MEC
detonations to reduce noise levels to those modeled assuming 10
decibels (dB);
<bullet> A delay to the start of foundation installation and UXO/
MEC detonations if a North Atlantic right whale is observed at any
distance by PSOs or acoustically detected within certain distances;
<bullet> A delay to the start of foundation installation and UXO/
MEC detonations if other marine mammals are observed entering or within
their respective clearance zones;
<bullet> A requirement to shut down impact pile driving (if
feasible) if a North Atlantic right whale is observed or if any other
marine mammals are observed entering their respective shut down zones;
<bullet> A requirement to implement sound field verification during
impact pile driving of foundation piles and during UXO/MEC detonations
to measure in-situ noise levels for comparison against the modeled
results;
<bullet> A requirement to implement soft-starts during impact pile
driving using the least amount of hammer energy necessary for
installation;
<bullet> A requirement to implement ramp-up during the use of high-
resolution geophysical (HRG) marine site characterization survey
equipment;
<bullet> A requirement for PSOs to continue to monitor for 30
minutes after any impact pile driving for foundation installation and
after any UXO/MEC detonations;
<bullet> A requirement for the increased awareness of North
Atlantic right whale presence through monitoring of the appropriate
networks and Channel 16, as well as reporting any sightings to the
sighting network;
<bullet> A requirement to implement various vessel strike avoidance
measures;
<bullet> A requirement to implement measures during fisheries
monitoring surveys, such as removing gear from the water if marine
mammals are considered at-risk or are interacting with gear; and
<bullet> A requirement for frequently scheduled and situational
reporting including, but not limited to, information regarding
activities occurring, marine mammal observations and acoustic
detections, and sound field verification monitoring results.
NMFS must withdraw or suspend an LOA issued under these
regulations, after notice and opportunity for public comment, if it
finds the methods of taking or the mitigation, monitoring, or reporting
measures are not being substantially complied with (16 U.S.C.
1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with
the requirements of the LOA may result in civil monetary penalties and
knowing violations may result in criminal penalties (16 U.S.C. 1375).
Fixing America's Surface Transportation Act (FAST-41)
This project is covered under Title 41 of the Fixing America's
Surface Transportation Act or ``FAST-41.'' FAST-41 includes a suite of
provisions designed to expedite the environmental review for covered
infrastructure projects, including enhanced interagency coordination as
well as milestone tracking on the public-facing Permitting Dashboard.
FAST-41 also places a 2-year limitations period on any judicial claim
that challenges the validity of a Federal agency decision to issue or
deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-
6(a)(1)(A)).
Ocean Wind's project is listed on the Permitting Dashboard, where
milestones and schedules related to the environmental review and
permitting for the project can be found at <a href="https://www.permits.performance.gov/permitting-projects/ocean-wind-project">https://www.permits.performance.gov/permitting-projects/ocean-wind-project</a>.
Summary of Request
On October 21, 2021, Ocean Wind submitted a request for the
promulgation of regulations and issuance of an associated LOA to take
marine mammals incidental to construction activities associated with
the Project in the Project Area. The request was for the incidental,
but not intentional, taking of a small number of 17 marine mammal
species (comprising 18 stocks) by Level B harassment (all 18 stocks)
and by Level A harassment (10 species or stocks). Ocean Wind did not
request and NMFS neither expects nor authorizes incidental take by
serious injury or mortality.
In response to our questions and comments and following extensive
information exchange between Ocean Wind and NMFS, Ocean Wind submitted
a final revised application on February 8, 2022. NMFS deemed it
adequate and complete on February 11, 2022. This final application is
available on NMFS' website at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>.
On March 7, 2022, NMFS published a notice of receipt (NOR) of Ocean
Wind's adequate and complete application in the Federal Register (87 FR
12666), requesting public comments and information on Ocean Wind's
request during a 30-day public comment period. During the NOR public
comment period, NMFS received comment letters from two environmental
non-governmental organizations (ENGOs): Clean Ocean Action (COA) and
the Natural Resource Defense Council (NRDC) on behalf of several other
ENGOs.
On October 26, 2022, NMFS published a proposed rule in the Federal
Register for the Ocean Wind 1 Project (87 FR 64868). In the proposed
rule, NMFS synthesized all of the information provided by Ocean Wind,
all best available scientific information and literature relevant to
the proposed project, outlined, in detail, proposed mitigation designed
to effect the least practicable adverse impacts on marine mammal
species and stocks as well as proposed monitoring and reporting
measures, and made preliminary negligible impact and small numbers
determinations. The public comment period on the proposed rule was open
for 45 days on <a href="http://Regulations.gov">Regulations.gov</a> starting on October 26, 2022 and closed
after December 10, 2022. Specific details on the public comments
received during this 45-day period are described in the Comments and
Responses section.
NMFS has previously issued three Incidental Harassment
Authorizations (IHAs) to Ocean Wind for related work regarding high
resolution site characterization surveys (82 FR 31562, July 7, 2017; 86
FR 26465, May 14, 2021; 87 FR 29289, May 13, 2022). To
[[Page 62900]]
date, Ocean Wind has complied with all the requirements (e.g.,
mitigation, monitoring, and reporting) of the previous IHAs and
information regarding their monitoring results may be found in the
Estimated Take section. These monitoring reports can be found on NMFS'
website: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations (87 FR 46921,
August 1, 2022) to further reduce the likelihood of mortalities and
serious injuries to endangered right whales from vessel collisions,
which are a leading cause of the species' decline and a primary factor
in an ongoing Unusual Mortality Event (UME). Should a final vessel
speed rule be issued and become effective during the effective period
of these regulations (or any other MMPA incidental take authorization),
the authorization holder will 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 will be required to comply with the requirements
of the vessel speed 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
will remain in place. The responsibility to comply with the applicable
requirements of any vessel speed rule will become effective immediately
upon the effective date of any final vessel speed rule, and when notice
is published on the effective date, NMFS will also notify Ocean Wind if
the measures in the speed rule were to supersede any of the measures in
the MMPA authorization such that they were no longer required.
Description of the Specified Activities
Overview
Ocean Wind plans to construct and operate the Project, a 1,100-
megawatt (MW) offshore wind farm, in the Project Area. The Project will
allow the State of New Jersey to meet its renewable energy goals under
the New Jersey Offshore Wind Economic Development Act. The Project will
consist of several different types of permanent offshore
infrastructure, including wind turbine generators (WTGs; e.g., the GE
Haliade-X 12 MW) and associated foundations, offshore substations
(OSS), offshore substation array cables, offshore export cables, and
substation interconnector cables. Overall, Ocean Wind will conduct the
following specified activities: install 98 WTGs and 3 OSS on monopile
foundations via impact pile driving; install and subsequently remove
cofferdams and goal posts to assist in the installation of the export
cable route by vibratory pile driving; several types of fishery and
ecological monitoring surveys; placement of scour protection;
trenching, laying, and burial activities associated with the
installation of the export cable route from OSSs to shore-based
converter stations and inter-array cables between turbines; HRG vessel-
based site characterization surveys using active acoustic sources with
frequencies of less than 180 kilohertz (kHz); the detonation of up to
ten UXOs/MECs of different charge weights, as necessary; transit within
the Project Area and between ports and the Lease Area to transport
crew, supplies, and materials to support pile installation via vessels;
and WTG operation. All offshore cables will connect to onshore export
cables, substations, and grid connections, which will be located in
Ocean County, New Jersey and Cape May County, New Jersey. Marine
mammals exposed to elevated noise levels during impact and vibratory
pile driving, detonations of UXOs/MECs, and/or site characterization
surveys may be taken by Level A harassment and/or Level B harassment,
depending on the specified activity.
A detailed description of the Project is provided in the proposed
rule as published in the Federal Register (87 FR 64868, October 26,
2022). Since the proposed rule was published, Ocean Wind has modified
the project start and end dates, changing them from August 2023 to July
2028 to a new effective period of October 13, 2023 to October 12, 2028.
Ocean Wind has also modified its vibratory pile driving activity from
vibratory pile driving of seven temporary cofferdams to vibratory pile
driving of four temporary cofferdams (Barnegat Bay landfall locations)
and three temporary goal posts (two at Island Beach State Park, one at
BL England). This modification neither changes the nature of the
specified activity (i.e., vibratory pile driving), not the potential
impacts to marine mammals associated with the specified activity. As
described in the Estimated Take section below, this modification
reduces the number of takes anticipated from vibratory pile driving.
Ocean Wind has not modified any other activity from what was previously
described in the proposed rule. We hereby incorporate the updated
Project description, as provided by Ocean Wind, by reference;
therefore, a more detailed description is not provided here. Please
refer to the proposed rule and Ocean Wind's supporting information
(e.g., application, memos) for more information on the description of
the specified activities.
Dates and Duration
Ocean Wind anticipates its specified activities to occur throughout
all 5 years of the final rule, beginning on October 13, 2023 and
continuing through October 12, 2028. Ocean Wind anticipates the
following construction schedule over the 5-year period (Table 1). Ocean
Wind has noted that these are the best and conservative estimates for
activity durations but that the schedule may shift due to weather,
mechanical, or other related delays. Additional information on dates
and activity-specific durations can be found in the proposed rule and
are not repeated here.
Table 1--Construction Schedule
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Activity Estimated schedule \a\
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HRG Surveys................................ Q3 2023-Q2 2028.
UXO/MEC Detonation......................... Q4 2023-Q3 2028.
Landfall Cable Installation................ Q4 2023-Q4 2024.
Offshore Export Cable Installation......... Q2 2024-Q1 2025.
Offshore Foundation Installation (WTG and Q2 2024-Q4 2024.
OSS).
Inter-array Cable Installation............. Q3 2024-Q2 2025.
WTG and OSS Installation and Commissioning. Q3 2024-Q1 2026.
[[Page 62901]]
Fishery Monitoring Surveys................. Q2 2022-Q4 2027.
------------------------------------------------------------------------
Note: ``Q1, Q2, Q3, and Q4'' each refer to a quarter of the year,
starting in January and comprising 3 months each. Therefore, Q1
represents January through March, Q2 represents April through June, Q3
represents July through September, and Q4 represents October through
December.
\a\ We acknowledge that the schedule may need to shift, given
unforeseeable circumstances (e.g., inclement weather, mechanical
difficulties) but the dates and durations presented here represent the
most realistic schedule.
Specific Geographic Region
A detailed description of the Specific Geographic Region is
provided in the proposed rule as published in the Federal Register (87
FR 64868, October 26, 2022). Since the proposed rule was published, no
changes have been made to the Specified Geographic Region. Generally,
Ocean Wind's specified activities (i.e., impact pile driving of WTGs
and OSS monopile foundations; vibratory pile driving (installation and
removal) of temporary cofferdams and goal posts; placement of scour
protection; trenching, laying, and burial activities associated with
the installation of the export cable route and inter-array cables; HRG
site characterization surveys; UXOs/MECs detonation; and WTG operation)
are concentrated in the Project Area. A couple of Ocean Wind's
specified activities (i.e., fishery and ecological monitoring surveys
and transport vessels) will occur in the Mid-Atlantic Bight.
BILLING CODE 3510-22-P
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[GRAPHIC] [TIFF OMITTED] TR13SE23.000
BILLING CODE 3510-22-C
Comments and Responses
A notice of proposed rulemaking was published in the Federal
Register on October 26, 2022 (87 FR 64868) and a 15-day extension to
the public comment period was published on November 25, 2022 (87 FR
72447). The proposed
[[Page 62903]]
rulemaking described, in detail, Ocean Wind's specified activities, the
specific geographic region of the specified activities, the marine
mammal species that may be affected by those activities, and the
anticipated effects on marine mammals. In the proposed rule, we
requested that interested persons submit relevant information,
suggestions, and comments on Ocean Wind's request for the promulgation
of regulations and issuance of an associated LOA described therein, our
estimated take analyses, the preliminary determinations, and the
proposed regulations. In total, the proposed rule was available for a
45-day public comment period.
In total, NMFS received 20 comment submissions, including 14
comments from private individuals. Some of these comments were out-of-
scope or not applicable to this specific action (e.g., general support/
opposition to the Project itself; concerns for other species outside of
NMFS' jurisdiction (i.e., birds); maintenance of the permanent
structures; Internal Revenue Service tax filing information), and are
not described herein or discussed further. Four comment letters were
from ENGOs, including one from COA, one from Oceana, Inc. (Oceana), and
two from the NRDC, of which one was a comment letter with an attachment
and the other was a request to extend the comment period an additional
15 days (hence, the extension published in the Federal Register on
November 25, 2022 (87 FR 72447)). We also received one comment letter
from a governmental organization, the Marine Mammal Commission
(Commission), and one comment letter from a public organization, the
Conservation Law Foundation (CLF). These five letters (excluding the
NRDC request for a 15-day comment period extension on the proposed
regulations) contained substantive information that NMFS considered in
its estimated take analysis, final determinations, and final
regulations. These comments are described below, along with NMFS'
responses. All substantive comments and letters 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 review the
corresponding public comment link for full details regarding the
comments and letters.
Modeling and Take Estimates
Comment 1: The Commission recommended that, until JASCO Applied
Sciences' (hereafter, ``JASCO'') model has been validated with in-situ
measurements from the impact installation of monopiles and pin piles in
the northwest Atlantic, NMFS should require Ocean Wind and thus JASCO
to re-estimate the various Level A harassment and Level B harassment
zones for the final rule using source levels that are at a minimum 3 dB
greater than those currently used.
Response: The Commission has expressed concerns about the lack of
validation of JASCO's models in previous Commission letters for
Orsted's other wind projects. JASCO has compared their source model
predictions to an empirical model prediction by the Institute of
Technical and Applied Physics (ITAP). The empirical model is based on a
large data set of pile driving sounds measured at 750 m from the source
collected during installation of large-diameter piles (up to 8 m)
during wind farm installation in the North Sea (Bellmann, 2020). As no
noise measurements exist for tapered 8/11-m monopile at this time (yet
to be installed offshore), the ITAP prediction facilitates a way of
validating the source levels of the numerical finite difference (FD)
model. The ITAP data are averaged across different scenarios; pile
sizes are grouped, which includes different hammers, water depths,
depths of penetration, and environmental conditions; and the 95th
percentile level is reported, whereas the aim of JASCO's modeling is to
estimate the median value. While the ITAP forecast and the FD source
predictions were comparable (see Appendix I of the Ocean Wind 1
Underwater Acoustic and Exposure Modeling report (K[uuml]sel et al.,
2022)), there is variance in the underlying ITAP data and there are
parametric choices for the FD model in the different environments, so
an exact match is not expected. As part of the comparison, it was found
that different (but reasonable) parametric input choices in the FD
modeling can result in output differences on the order of the variance
in the ITAP data so it was concluded that the FD modeling approach
performed as well as can be discernible given the available data. While
adding 3 dB to the JASCO predictions at 750 m may bring JASCO's source
predictions into line with the finite-element (FE) predictions for the
portmanteau combining computation, comparison, and pile (COMPILE)
scenario but it is not clear that this would be more accurate. This
approach assumes that the FE models are correct but Lippert et al.
(2016) also state ``a drawback of (the FE) approach is that it
simulates the energy loss due to friction in an indirect and rather
nonphysical way.'' The Commission also suggested that NMFS could have
used damped cylindrical spreading model (DCSM; Lippert et al., 2018)
and the source levels provided by TDFD PDSM; however, for reasons
described herein, NMFS has determined JASCO's model results are
reliable and achievable.
Recent measurements taken during the Coastal Virginia Offshore Wind
(CVOW) Pilot Project reported the range to the marine mammal Level B
threshold (160 dB re 1[mu]Pa) from the 7.8-m pile installed with a
double big bubble curtain to be 3,891 m (12,765.75 ft) when using a
hammer operating at a maximum of 550 kJ (WaterProof, 2020). JASCO's
model prediction for 11-m piles using a 4,000 kJ hammer is 4,684 m
(15,367.45 ft). The Commission states that, based on the CVOW reported
sound levels, JASCO's modeled predicted range should be more than
double instead of only an approximate 20 percent increase because Ocean
Wind's hammer has up to approximately five times more energy (550 kJ vs
4,000 kJ). NMFS disagrees. The 3,891-m distance to the Level B
harassment threshold measured during the CVOW Pilot Project cited by
the Commission was obtained based on the maximum measured sound
pressure level (RMS SPL), which is not an ideal statistic to base
estimates of Level B harassment isopleths, as it is not representative
of average operating conditions and represents one hammer strike.
Further, small differences in the propagation environment could account
for the ranges being more comparable than expected. Importantly, as
described below, NMFS is also now in receipt of measurements from the
South Fork project which indicate JASCO's predicted distance to the
Level B harassment threshold is realistic and attainable. Based on the
expected variance between the Ocean Wind 1 and CVOW projects and
measurement data from South Fork (see below), it cannot be concluded
that the CVOW measured results (using the maximum RMS SPL reported)
indicate that JASCO's 4,684 m modeled distance to Level B harassment
threshold should be increased.
Importantly, since the proposed rule phase, NMFS has received
interim sound field verification reports from the South Fork Wind
project, which used JASCO's modeling. In all but one case, and out of
six 7-8/9.5-m tapered piles installed, the measured distances to NMFS'
Level B harassment threshold were lower than JASCO's model predicted.
The distance to NMFS Level B harassment threshold was modeled as 4,684
m while in-situ measurements identified distances, excluding the one
aforementioned pile, ranging from 1.84 kilometers (km) to 3.25 km.
JASCO's modeling predicts the distances to the
[[Page 62904]]
Level B harassment threshold installation of Ocean Wind 1 monopiles
will be approximately 3.3 km in summer, which aligns with the South
Fork Wind results. South Fork Wind determined that the one pile
generating noise levels above those predicted (the first pile) did so
due to a malfunctioning noise attenuation system which was quickly
rectified and deployed appropriately on all future piles. Further, in
this final rule, we are requiring Ocean Wind's measured sound levels do
not exceed those modeled, assuming 10 dB, for at least three
consecutively measured monopiles. Based on all these reasons, NMFS is
not requiring Ocean Wind to remodel the harassment zone sizes by adding
3 dB to the source levels and is, instead, carrying forward the
modeling results as presented in the proposed rule.
Of note, NMFS has also received interim sound field reports from
Vineyard Wind. However, some of the assumptions used in the modeling
(e.g., maximum hammer energy) do not align with the construction
parameters Vineyard Wind is currently using in the field, so
comparisons between the modeled and measured results are not as
directly applicable and, therefore, are less useful in judging
predicted alignment between modeled and measured zones.
Based on this discussion and given our consideration of the
available SFV reports from other projects, we disagree with the
suggestions made by the Commission. NMFS has incorporated the best
available scientific information into this final rule, using recent
measurements as well as estimates obtained through JASCO's modeling.
Comment 2: The Commission suggested that JASCO should consider
revising its exposure modeling to include single-day simulations for
stationary, discrete sound sources and numerous Monte Carlo simulations
(e.g., at least 30) for modeling reports for future rules.
Response: JASCO typically uses 7-day simulations to get a
representative sample of the installation process (e.g., impact piling
every day or every other day). From those 7-day simulations, several
24-hour windows within the 7-day simulations are used to find the
average exposure expected in a 24-hour period that includes impact pile
driving. The average 24-hour estimates are then scaled by the number of
days of impact pile driving. The use of the 7-day simulation allows for
a robust probability calculation. The Commission recommends that,
instead, JASCO run 30 single-day simulations to generate an average
daily exposure. While NMFS makes recommendations, as appropriate,
regarding the inputs, assumptions, and methods used by applicants to
model and estimate marine mammal take, there is no single correct
overall methodology. The Commission does not provide any information to
support an assertion that the method used by JASCO is not appropriate
or sufficient, and NMFS supports the use of this methodology.
Furthermore, it is unclear what the Commission means by
``stationary, discrete sound sources.'' If the sources referred to are
the monopiles or pin piles, then JASCO's modeling approach does use a
Monte Carlo approach for sampling the expected sound fields. With the
typical modeling density of 0.5 simulated animals (animats)/km\2\,
there are usually tens of thousands of animats meaning there are tens
of thousands of Monte Carlo samples. If the suggestion is to run the
simulations (with tens of thousands of animats) 30 times, that is
equivalent to increasing the modeling density by 30. Previous work,
such as the work done by Houser (2006), has indicated that such high
modeling densities are not necessary. Please refer to NMFS' related
response to Comment 5.
Comment 3: Citing the dire situation of North Atlantic right
whales, a commenter stated that NMFS should clearly describe in the
regulations or LOA for wind projects that the activities cannot result
in any Level A harassment, serious injury, or mortality of North
Atlantic right whales.
Response: The proposed rule clearly states that no take of North
Atlantic right whale by Level A harassment, mortality, or serious
injury was requested or proposed for authorization (see the Estimated
Take and Negligible Impact Analysis and Determination sections in the
proposed rule), and those statements are also included in this final
rule. In this final rule, for example, Tables 33 and 34 shows that only
Level B harassment is authorized for North Atlantic right whales, and
the North Atlantic right whale sub-section in the Negligible Impact
Analysis and Determination section also states that no take of North
Atlantic right whale by Level A harassment, mortality, or serious
injury is anticipated or authorized and any take that is authorized is
limited to Level B harassment only.
Comment 4: The Commission recommended that NMFS authorize Level A
harassment takes for group size for minke whales and both bottlenose
dolphin stocks from UXO/MEC detonations in the final rule.
Response: We agree that there is some small potential for these
smaller species to be exposed to noise levels that may cause PTS.
Therefore, in this final rule, NMFS has conservatively authorized
additional takes by Level A harassment of both bottlenose dolphins
stocks and minke whales from UXO/MEC detonation. Using Ocean Wind's
group size information. NMFS has increased the amount of take by Level
A harassment from UXO/MEC detonations from 0 in the proposed rule to 11
for each stock of bottlenose dolphins, and from 0 in the proposed rule
to 2 for minke whales.
Comment 5: The Commission recommends that NMFS: (1) require Ocean
Wind to revise its take estimates for impact installation of monopiles
and pin piles based on an animat density that is greater than any
species specific, real-world density and the possibility that only a
single monopile is installed per day rather than two per day, and (2)
increase the takes by Level A harassment of humpback whales to mean
group size for OSS impact installation.
Response: The Commission cites two of the assumptions in the take
estimate methodology that could push the take estimate in the direction
of less than the maximum expected takes. However, there are multiple
other assumptions in the take estimate methodology that consider
conditions that would result in the maximum possible takes, or even an
overestimate of possible takes. When all of these assumptions are
considered together, NMFS expects the take estimate model and
methodology to produce the maximum take that is expected to occur
incidental to the specified activities.
While Ocean Wind has acknowledged that it may not install two piles
every day, it has indicated it is capable of installing up to two piles
per day with the goal to complete installation as quickly as possible.
Hence, to assume only one monopile per day every day would not be
consistent with what Ocean Wind, a company with offshore wind farm
installation experience, has indicated is possible or is planned. The
exposure estimates contained within the proposed rule are a product of
modeling that assumes two piles are driven per day. There are several
conservative assumptions that offset the potential to underestimate
take should Ocean Wind not be able to install two piles per day every
day, including, but not limited to, all piles are installed during 30
days of the highest density month and 19 days (38 piles) of the second-
highest density month for each species from May to December. This is
conservative because
[[Page 62905]]
pile driving every day within a given month is not possible due to
historical weather patterns and potential technical issues that may be
encountered and the highest density of every species does not occur in
the same month. It is more likely that pile driving will occur over
several months which have lower marine mammals species density.
Additionally, for some species, group size or PSO data adjustments were
made that increased the number of takes authorized compared to the
modeled exposure estimates. Furthermore, the exposure estimates modeled
and number of takes authorized do not consider natural avoidance of
marine mammals to noise levels that could elicit PTS or the use of
mitigation such as shutdown or clearance zones, which are designed to
effect the least practicable adverse impact on marine mammals,
including North Atlantic right whales (e.g., pile driving may not
commence and must shut down if a North Atlantic right whale is observed
at any distance). Finally, while Ocean Wind may use monopiles for OSS
foundations, NMFS has used the pin pile take estimates in the total
take authorized. The exposure estimates for pin piles is greater for
all species than the exposures estimated for monopiles installation.
Regarding density seeding, the Commission asserts that when a
model's density seeding is lower than the real-world density and, as
here, 7-day simulations are used (as opposed to using 1-day simulations
that are run 30-50 times, as is the case in other models), there is a
chance that the model could miss consideration of a rarer event,
resulting in a lower than maximum take estimate. As noted by the
Commission, for common bottlenose dolphins, the real-world density
(0.51) is higher than the density seeded (0.50) in the model. The use
of the 0.5 animats/km\2\ for all species is to robustly sample (with
tens of thousands of animats) the expected sound fields, providing
statistically reliable results. Typically the real-world density is
much lower than this modeled density and the number of real-world
individual animals is found by scaling the number of animats exceeding
a threshold by the ratio: real-world density/modeled density. That,
rarely, the real-world density may exceed the modeled density, in this
case 0.51 versus 0.50 animats/km\2\, does not change the process or the
statistical reliability of the results. While the Commission's
assertion that, if this were the only factor considered, the fact that
the actual density is higher than the seeded density could result in a
lesser likelihood that the model would capture circumstances
representing a rare event that might result in higher take may be
true--in this case, the degree of difference is a real-world density of
0.51 versus a seeded density of 0.50. Additionally, as described above,
there are numerous other conservative assumptions in the model such
that, when considered together, support NMFS assessment that the number
of takes authorized represents the maximum number of takes expected to
occur incidental to the specified activities.
For these reasons, NMFS disagrees with the Commission's assessment
that the take is underestimated and believes that the Commission's
suggestion to double the number of takes authorized as a simplistic
solution to their perceived issue would unnecessarily overestimate
take. Please see NMFS related response to Comment 2.
NMFS agrees with the Commission's recommendation to increase the
amount of Level A harassment of humpback whales to a group size during
OSS foundation installation given the more frequent sightings of the
species recently off of New Jersey. Based on the 2021-2022 monitoring
report the Commission referenced, we have increased the amount of take
by Level B harassment of humpback whales to 46 for OSS foundation
installation. However, we emphasize that the majority of humpback whale
sightings described by the Commission occurred in winter and this
rulemaking includes a prohibition on foundation installation January 1
through April 30 (as impact pile driving may only occur in December
with prior NMFS approval). All other foundation installation take
estimates follow the approach as described in the proposed rule.
Comment 6: The Commission recommended that NMFS increase the Level
B harassment takes for common dolphins and Atlantic white-sided
dolphins incidental to cable landfall construction to a mean group
size.
Response: Despite the nearshore location of cable landfall
construction, vibratory installation and removal versus the more
offshore distribution of these species, as well the short duration of
vibratory pile driving, which suggests take of these species is very
low, NMFS has accepted the Commission's recommendation as a
conservative approach. The final rule includes 30 takes by Level B
harassment of common dolphins and 12 takes by Level B harassment of
Atlantic white-sided dolphins from cable landfall activities, based on
group size information from AMAPPS.
Comment 7: The Commission recommended that NMFS determine if the
Department of the Navy's (2017) group size estimates are more
appropriate or reflective of the expected group size estimates for the
Project than those used in the proposed rule. If so, the Commission
suggests the take numbers be amended in the final rule for all Ocean
Wind's activities.
Response: We appreciate the suggestion by the Commission to review
the Department of the Navy's (2017) group size estimates to see if they
are more applicable for the Project. Based on our review, we disagree
that the Navy's group size estimates are the most applicable in this
case. First, the Navy only provides group size estimates for
odontocetes, which means we would still need to find applicable
estimates for non-odontocete species found in the Atlantic Ocean.
Second, the group sizes provided by Ocean Wind used information by Toth
et al. (2011) for coastal bottlenose dolphins; Kenny and Vigness-Raposa
(2010) for sei whales, minke whales, Atlantic spotted dolphins, and
pilot whale spp.; CeTAP (1982) for humpback whales; and Barkaszi and
Kelly (2019) for sperm whales and Risso's dolphin, which are derived
from data gathered specifically in the mid- and north-Atlantic, where
the Project will occur, whereas the group sizes in the Department of
the Navy's (2017) report are based on data collected more broadly
across the entire East Coast of the United States and Canada, including
the Gulf of Mexico, Sargasso Sea, Labrador Sea, and Labrador Basin. Any
additional takes that NMFS has opted to authorize, per recommendations
by the Commission, is based on either the group size literature already
provided by Ocean Wind (e.g., from Toth et al., 2011 for corrections to
bottlenose dolphins) or based on group size information from AMAPPS,
which derived data for its annual reports from specific transects
undertaken in specific regions (New Jersey through Maine, per Figure 1-
1 in the 2021 Annual Report, <a href="https://repository.library.noaa.gov/view/noaa/41734">https://repository.library.noaa.gov/view/noaa/41734</a>). Furthermore, AMAPPS uses more recent information, as
demonstrated in the 2010-2021 annual reports found on NMFS' web page
(<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>). The
Department of the Navy's (2017) group sizes are based on data from 1990
through 2013 (see Table 3-1 in the report). Lastly, based on monitoring
reports received from PSOs in the field (and found on NMFS' website:
https://
[[Page 62906]]
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-
take-authorizations-other-energy-activities-renewable#expired-
authorizations), the group sizes observed align more with estimates
found in Kraus et al. (2016) and AMAPPS (Palka et al., 2017). For these
reasons, the group sizes proposed by Ocean Wind, any adjustments using
AMAPPS data, and any group sizes used in the proposed and final rules
are based on the best available scientific information.
Comment 8: The Commission recommended that NMFS include in the
final rule Level B harassment takes of the coastal stock of bottlenose
dolphins during impact installation of monopiles and pin piles, if any
pile will be installed in 20 m of water or less or if any Level B
harassment zone extends into 20 m or less of water.
Response: Based on the recommendation by the Commission, JASCO has
seeded the coastal bottlenose dolphin stock only in shallow water
(defined here as any area less than 20-m water depth). In consultation
with Ocean Wind, NMFS has reallocated a conservative 10 percent of the
offshore bottlenose dolphin Level B harassment take request to the
coastal stock, which revises the authorized take from impact pile
driving of permanent foundations to 842 takes by Level B harassment for
the offshore stock and 94 takes by Level B harassment for the coastal
stock.
We note that no take by Level A harassment of this coastal
bottlenose dolphin stock has been authorized as, based on Figure 1 of
the Underwater Acoustic and Exposure Modeling Report, all project
foundations in the Lease Area will be installed beyond the 20-m
isobath. The largest 10-dB attenuation exposure range for the project
is approximately 3.5 km. The distance between the shallowest foundation
position and shallow water is about this distance or less; thus, it is
unlikely that the coastal stock would approach the piles during impact
pile driving for the duration necessary to experience Level A
harassment.
Comment 9: The Commission disagreed that non-auditory injury and
mortality during UXO/MEC detonations are considered de minimis. It
stated that although non-auditory injury and mortality could be
unlikely, these outcomes are not de minimis because these assumptions
were based off Bellmann et al. (2020) and Bellmann (2021) and their
reports of bubble curtain effectiveness, which are based on information
obtained from mitigating UXO/MECs in European waters using a big bubble
curtain. The Commission further stated that these results from Bellmann
are only potentially possible if the single or double bubble curtain
was optimized for the environmental conditions and that these results
are specific to European charges, which may not be representative of
charges in the United States as charges in Europe have been degrading
in the water for approximately 75 years, which compromises the
integrity of the trinitrotoluene (TNT)-equivalent material.
Additionally, the charge weights described in Bellmann (2021) are much
smaller than those described for the Project (i.e., 100 grams (g), 5
kilograms (kg), and 10 kg, compared to 454 kg). The Commission also
added that the shockwave from the UXO/MEC detonations may displace or
disrupt the bubble curtains due to the speed the shockwave travels
(i.e., supersonic). Because of these reasons, the Commission
recommended that NMFS re-estimate the distances to threshold and the
mitigation and monitoring zones for mortality, Level A harassment, and
Level B harassment based on 0-dB of sound attenuation.
The Commission also stated that it does not make sense to say that
behavioral harassment will not result from exposure to single
detonations of UXO. The Commission also recommended that NMFS re-
estimate the number of takes from UXO/MEC detonation while increasing
to the relevant group sizes, when necessary. Finally, the Commission
recommended that because of the reasons already explained regarding
attenuating UXO/MEC detonations, NMFS should require that Ocean Wind
utilize a double big bubble curtain (DBBC) during all detonations and
that NMFS not allow Ocean Wind to detonate UXOs/MECs when currents are
moving faster than 2 knots (kn).
Response: NMFS appreciates the Commission's recognition that
European waters offer a different environment than the Atlantic Ocean,
and then the conditions and size of explosives potentially encountered
in the Ocean Wind project area. Bellmann (2021) summarized findings
from Bellmann et al. (2021) that showed use of a single big bubble
curtain during UXO/MEC detonation reduced noise levels by 11 dB for
broadband sound exposure levels and up to 18 dB for peak sound pressure
(L<INF>pk</INF>). While NMFS agrees with the Commission's comment that
BBCs attenuate high-frequency (HF) sound (<1 kHz) more efficiently than
low-frequency (LF) sound (Bellmann et al., 2020) that corresponds to
most of the UXO/MEC energy, the broadband attenuation is expected to be
similar, if the bubble curtain radius is large enough to avoid
nearfield effects of the explosive detonations. While it is true that
theoretical explosive spectra are flat at low frequencies and decay at
high-frequencies, there remains significant energy at frequencies at
which bubble curtains have been shown to be effective (Bellmann et al.,
2020). A recent study of UXO/MEC detonations in the North Sea (Robinson
et al., 2022) showed that measured spectra at 5.1 km had the majority
of its energy between 32 and 250 Hz, in this range, the insertion loss
data from Bellman (2021) has a minimum attenuation of approximately
16.8 dB in the 50-hertz (Hz) band, and is greater than 20 dB for all
other bands. Further, Verfuss et al. (2019) summarize the effectiveness
of bubble curtains on UXO/MEC detonations beyond those sizes considered
in Bellman et al. (2021) which, while variable, provide support for the
10-dB broadband assumption when bubble curtains are deployed correctly
(i.e., with a sufficiently large diameter, to suppress the flow of
displaced water). Therefore, the choice of 10 dB as a broadband
attenuation for UXO/MEC detonations in our analysis is expected to be
appropriate.
In addressing the Commission's additional comments regarding
mitigating pile driving and UXO/MEC detonations and the efficacy, the
physical principles of inserting an impedance change between the source
and farther receivers is the same whether the source is an explosive or
a pile. It is important, however, that the bubble curtain be placed
outside of the region where the explosive causes nonlinear changes in
the medium. While we do agree that ``the deployment'' and the
``efficacy'' are not synonymous terms, there will be a deployed bubble
curtain on each of the piles driven for the project so an understanding
of bubble curtain deployment strategies, maintenance, and use will be
understood by the operations team. As above, the mechanism of sound
attenuation, while frequency dependent, does not change for the source
as long as the bubble curtain is deployed at distance where the
acoustics is linear. For UXOs/MECs, the distances to thresholds for
different sized charges likely to be encountered were calculated by
JASCO assuming the sources were full strength and not degraded due to
time. While the Commission has also accurately stated that the bubble
curtain could be displaced due to the supersonic shockwave produced by
the detonation event, we acknowledge that this would require the bubble
curtain to be placed
[[Page 62907]]
in the area outside of the non-linear zone.
NMFS is requiring Ocean Wind to meet the noise levels modeled
assuming 10-dB attenuation, which must be verified by SFV, and, as
recommended by the Commission, is requiring Ocean Wind deploy a double
big bubble curtain during all UXO/MEC detonations. Further, we are
requiring that the bubble curtain be placed at a distance such that the
nozzle hose remains undamaged. Given the best available science
suggests 10-dB attenuation is achievable, the additional information
provided above by JASCO, the requirement to meet the noise levels
modeled assuming 10 dB, and the requirement to use a double big bubble
curtain, as well as the extensive monitoring requirements associated
with the clearance requirements (including aerial surveys if the
clearance zone is greater than 5 km), NMFS has not adjusted any
distances to thresholds or take estimates assuming no noise
attenuation. At this time, NMFS is not requiring UXO/MEC detonation be
limited to times when current speed is 2 kn or less but, as described
above, is requiring Ocean Wind to meet the noise levels modeled. Should
SFV identify that noise levels are not being met, NMFS will consider
the current conditions during detonation and determine if such a
measure is necessary to meet the noise levels modeled assuming 10-dB
attenuation. Nonetheless, regarding the Commission's comment about use
of the term ``de minimis'' to describe the likelihood of non-auditory
injury or mortality, we concur that ``unlikely'' is a better descriptor
and have changed it in the text where appropriate.
Regarding the Commission's comments regarding behavioral
disturbance resulting from single detonations from UXO/MEC, NMFS agrees
there is potential for behavioral disturbance from a single detonation
per day and this impact is accounted for with the Level B harassment
takes authorized from UXO/MEC detonations. NMFS acknowledges the
possibility that single underwater detonations can cause a behavioral
response. The current take estimate framework allows for the
consideration of animals exhibiting behavioral disturbance during
single explosions as they are counted as ``taken by Level B
harassment'' if they are exposed above the temporary threshold shift
(TTS) threshold, which is 5-dB higher than the explosive behavioral
harassment threshold. The behavior threshold for underwater detonations
of 5 dB less than the TTS thresholds for each functional hearing group
that the Commission identifies in its comment is only applicable to
multiple detonations per day. We acknowledge in our analysis that
individuals exposed above the TTS threshold may also be harassed by
behavioral disruption and those potential impacts are considered in the
negligible impact determination. NMFS is not aware of evidence to
support the assertion that animals will have behavioral responses that
would qualify as take to temporally and spatially isolated explosions
at received levels below the TTS threshold. However, if any such
responses were to occur, they would be expected to be few and to result
from exposure to the somewhat higher received levels bounded by the TTS
thresholds and would thereby be accounted for in the take estimates.
The derivation of the explosive injury criteria is provided in the 2017
technical report titled ``Criteria and Thresholds for U.S. Navy
Acoustic and Explosive Effects Analysis (Phase III).''
In the proposed rule, we did inadvertently include UXO/MEC
detonations as an example impulsive source in one location when
referencing the 160-dB Level B harassment threshold, which has been
removed in this final rule. We have also clarified that given Ocean
Wind would be limited to detonating one UXO/MEC per day, the TTS
thresholds provided in Table 5 are used to estimate the potential for
Level B (behavioral) harassment. In both the proposed rule and this
final rule, NMFS applied the TTS threshold to determine the received
level at which Level B harassment (which includes both behavioral
responses and TTS) may occur. Hence, no adjustments to take estimates
is necessary.
Mitigation
Comment 10: Commenters recommended that NMFS require Ocean Wind to
implement the best commercially available combined NAS technology to
achieve the greatest level of noise reduction and attenuation possible
for pile driving. A commenter recommended that NMFS require, at a
minimum, a 10-dB reduction in SEL, but other commenters recommended
that NMFS require a minimum of 15-dB or greater reductions, citing to
successes described in Bellman et al. (2020 and 2022) and recommended
``state-of-the art'' methods using a combination of two NAS systems
simultaneously. A commenter further stated that NMFS should require
field measurements to be taken throughout the construction process,
including on the first pile installed, to ensure compliance with noise
reduction requirements. A commenter also suggested that NMFS require
Ocean Wind to use HRG acoustic sources at the lowest practicable source
levels needed to meet the objectives of the site characterization
surveys.
Response: NMFS agrees with the suggestion made by the commenters
that underwater noise levels should be reduced to the greatest degree
practicable to reduce impacts on marine mammals. As described in both
the proposed and final rule, NMFS has included requirements for sound
noise attenuation methods that successfully (as evidenced by required
sound field verification measurements) reduce real-world noise levels
produced from impact pile driving of foundation installation to, at a
minimum, the levels provided by JASCO modeled for 10-dB reduction, as
analyzed in the proposed rule. Preliminary sound measurements from
South Fork Wind, also an Orsted project, indicate that with multiple
NAS systems, measured sound levels during impact driving foundation
piles using a 4,000 kJ hammer are below those modeled assuming a 10-dB
reduction and suggest, in fact, that two systems may sometimes be
necessary to reach the targeted 10-dB reductions. While NMFS is
requiring that Ocean Wind reduce sound levels to match the model
outputs analyzed (assuming a reduction of 10 dB), we are not requiring
greater reduction as it is currently unclear (based on measurements to
date) whether greater reductions are consistently practicable for these
activities, even if multiple NAS systems are used.
In response to the recommendation by the commenters for NMFS to
confirm that a 10-dB reduction is achieved, NMFS clarifies that,
because no unattenuated piles would be driven, there is no way to
confirm a 10-dB reduction; rather, in-situ SFV measurements will be
required to confirm that sound levels are at or below those modeled
assuming a 10-dB reduction.
Regarding the recommendation that Ocean Wind should utilize its HRG
acoustic sources at the lowest practicable source level to meet the
survey objective, NMFS agrees with this suggestion and has incorporated
this requirement into the final rule.
Comment 11: To minimize the risk of vessel strikes for all whales,
and especially in recognition of the imperiled state of North Atlantic
right whales, commenters recommended that NMFS require a mandatory 10-
kn speed restriction for all project vessels (including PSO survey
vessels) at all times, except for reasons of safety, and
[[Page 62908]]
in all places except in limited circumstances where the best available
scientific information demonstrates that whales do not occur in the
area. Other commenters made the same recommendation but suggested no
exceptions. Alternatively, some suggested that project proponents could
work with NMFS to develop an ``Adaptive Plan'' that modifies vessel
speed restrictions if the monitoring methods are proven to be effective
when vessels are traveling 10 kn or less. Commenters stated that this
Adaptive Plan must follow a scientific study design. A commenter
suggested that if the Adaptive Plan is scientifically proven to be
equally or more effective than a 10-kn speed restriction, that the
Adaptive Plan could be used as an alternative to the 10-kn speed
restriction.
Response: NMFS agrees with the commenters that vessel strikes pose
a risk to North Atlantic right whales (and all large whales broadly).
Based on the density information provided by Roberts et al. (2023),
most large whale species are less frequently found within the project
area during the months when foundation installation, which requires the
use of multiple vessels, would occur (i.e., May through November, and
December, if approved by NMFS). Specifically in the New Jersey region,
there is no ESA critical habitat or areas wherein large whales are
expected to congregate or remain in the area for extended periods of
time (e.g., no foraging biologically important areas (BIAs) are located
within the project area; thereby, decreasing the time over which they
are available to interact with vessels). Furthermore, while we do
acknowledge that there is no time of year when North Atlantic right
whales are not found within the Project area at all, NMFS, as described
in the proposed rule and included in this final rule, is requiring
Ocean Wind to reduce speeds to 10 kn or less in several circumstances
when North Atlantic right whales are known to be present or more likely
to be in the area, which include, but are not limited to, all Slow
Zones (Dynamic Management Area or acoustic Slow Zone), from November 1-
April 30 in the specified geographical region, and if a North Atlantic
right whale is detected visually or acoustically in the project area.
Additionally, aside from any requirements of this rule, Ocean Wind is
required to comply with all spatial and temporal speed restrictions
outlined in applicable regulations. Altogether, these speed
requirements align with the commenter's recommendation.
The required mitigation measures, all of which were included in the
proposed rule and are now required in the final rule, can be found in
Sec. 217.264(b) of the regulatory text. These contain speed
restriction requirements, vessel actions in the event mothers and
calves/pods approach the vessel (e.g., shifting into neutral, etc.),
separation distances for specific species, and actions to take in the
event marine mammal(s) are sighted, among other requirements. For the
final rule, NMFS has also included a requirement that all vessels be
equipped with automatic identification system (AIS) to facilitate
compliance checks with the speed limit requirements. Per the proposed
rule, on July 19, 2023, Ocean Wind submitted a draft Vessel Strike
Avoidance Plan to NMFS for review and approval. At least 180 days prior
to when the Project would seek to travel above 10 knots and deploy PAM
buoys (anticipated in spring 2024), Ocean Wind must submit a PAM plan
to NMFS for review and approval. Without an approved PAM Plan for the
transit corridor in place, Ocean Wind would not be able to travel over
10 kn.
While NMFS acknowledges that vessel strikes can result in injury or
mortality of marine mammals, we have analyzed the potential for vessel
strike resulting from Ocean Wind's activity and have determined that
based on the required mitigation measures specific to vessel strike
avoidance included in the final rule and issued LOA, which are designed
to effect the least practicable adverse impact on marine mammals, the
potential for vessel strike is so low as to be discountable and no
vessel strikes are expected or authorized.
Additionally, based on this information, we have determined no
blanket 10-kn vessel-speed restriction is necessary.
Comment 12: Commenters recommended that NMFS should prohibit pile
driving during periods of highest risk for North Atlantic right whales,
which they defined as times of the highest relative density of animals
during foraging and migration, and times where cow-calf pairs, pregnant
females, surface active groups (that are foraging or socializing), or
aggregations of three or more whales, are not expected to be present.
Citing multiple information sources, commenters further specifically
recommended the seasonal restriction for pile driving be expanded to
November 1 through April 30 to reflect the period of highest detections
of vocal activity, sightings, and abundance estimates of North Atlantic
right whales. Commenters recommended prohibiting pile driving during
seasons when protected species are known to be present or migrating in
the Project area, in addition to any dynamic restrictions due to the
presence of North Atlantic right whale or other endangered species.
Also, for UXO/MEC detonations, a commenter implied that the seasonal
restrictions from January 1 through April 30, annually, are not enough
to protect North Atlantic right whales but did not recommend specific
times of year when pile driving and UXO/MEC detonation should not
occur.
Response: NMFS has restricted foundation installation pile driving
from January through April, which represent the times of year when
North Atlantic right whales are most likely to be in the project area.
We recognize that the density of whales begins to elevate in December;
however, it is not until January when density greatly increases. Ocean
Wind has indicated that to complete the project, pile driving in
December may be required. In this final rule, NMFS has included an
additional measure wherein pile driving in December must be avoided to
the maximum extent practicable but may occur if necessary, provided
NMFS prior approval. In any time of year when foundation installation
is occurring, a sighting or acoustic detection of a North Atlantic
right whale at any distance triggers a pile driving delay or shutdown.
We also reiterate that Ocean Wind is required to implement a minimum
visibility zone in December (2,500 m) as compared to other project
months (1,650 m), reflecting the results of JASCO's underwater sound
propagation modeling. With the application of these enhanced mitigation
and monitoring measures in December, impacts to the North Atlantic
right whale will be further reduced, if any are encountered when
transiting through the Migratory Corridor.
Regarding further restrictions on pile driving in the month of
November, as noted in the comments and supporting information, and
acknowledged by NMFS in both the proposed and final rules, North
Atlantic right whale distribution is changing due to climate change and
other factors, and they are present year round in the vicinity of the
project, with some detections of mothers with calves or feeding
behaviors in the vicinity of the project. However, as shown in Roberts
et al. (2023), which NMFS considers the best available scientific
information regarding marine mammal densities in the Atlantic Ocean, it
is not until January that densities begin to significantly increase.
Further, North Atlantic right whales are not likely to be engaged in
feeding behaviors in the project area, from May to November or
otherwise, as the project area is primarily a migratory corridor for
North Atlantic right whales and, while
[[Page 62909]]
some opportunistic foraging may occur, the waters off of New Jersey do
not include known foraging habitat for North Atlantic right whales. As
described in the Marine Mammal section, foraging habitat is located in
colder, more northern waters including southern New England, the Gulf
and Maine, and Canada. For these reasons, and given the inclusion of
December in the seasonal impact pile driving restriction, except with
NMFS prior approval, NMFS finds that further expansion of the seasonal
impact pile driving restrictions (beyond December-April) is
unwarranted.
Inasmuch as comments may be suggesting that NMFS prohibit pile
driving when any protected species are present, it would not be
practicable to implement, as there is no time of year when some species
of marine mammals are not present.
Regarding a commenter's assertion that the January to April pile
driving and UXO/MEC detonation moratorium is insufficient, the
commenter did not propose a different time period or moratorium for
NMFS to evaluate and consider for this final rule. In the proposed
rule, we acknowledged that Ocean Wind had committed to not detonating
UXOs/MECs from November 1 through April 30, annually, to reduce impacts
to the North Atlantic right whale, and we have carried that requirement
forward here in the final rule.
Comment 13: A commenter recommended that, for site assessment
surveys, NMFS: (1) increase the size of the clearance and shutdown
zones for site assessment surveys to 500 m for all large whales and
1,000 m for North Atlantic right whales, respectively; (2) require a
1,000-m acoustic clearance zone (i.e., necessitating the use of PAM for
HRG surveys); and (3) require that any unidentified large whale within
1,000 m of the vessel be considered a North Atlantic right whale.
Response: As described in the proposed and final rules, the
required 500-m Shutdown Zone for North Atlantic right whales exceeds
the modeled distance to the largest 160-dB Level B harassment isopleth
(141 m during sparker use) by a large margin, minimizing the likelihood
that they will be harassed in any manner by this activity. For other
ESA-listed species (e.g., fin and sei whales), the NMFS Greater
Atlantic Regional Fisheries Office (GARFO) 2021 Offshore Wind Site
Assessment Survey Programmatic ESA consultation (see <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic</a>) determined that a 100-
m shutdown zone is sufficient to minimize exposure to noise that could
be disturbing. Accordingly, NMFS has adopted this shutdown zone size
for all baleen whale species, other than the North Atlantic right
whale. Commenters do not provide additional scientific information for
NMFS to consider to support their recommendation to expand the Shutdown
Zone. Given that these surveys are relatively low impact and that NMFS
has prescribed a precautionary North Atlantic right whale Shutdown Zone
that is larger (500 m) than the largest estimated harassment zone (141
m), NMFS has determined that an increase in the size of the Shutdown
Zone during HRG surveys is not warranted.
Regarding the use of acoustic monitoring to implement the shutdown
zones, NMFS does not consider acoustic monitoring an effective tool for
use with HRG surveys for the reasons discussed below and therefore has
not required it in this final rule. As described in the Mitigation
section, NMFS has determined that the prescribed mitigation
requirements are sufficient to effect the least practicable adverse
impact on all affected species or stocks.
The commenters do not provide additional scientific information for
NMFS to consider to support their recommendation to require PAM during
site assessment surveys. NMFS disagrees that this measure is warranted
because 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 North Atlantic right whales) 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 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 (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 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).
Further, there are several additional reasons why we disagree that
use of PAM is warranted for HRG surveys, specifically. While NMFS
agrees that PAM can be an important tool for augmenting detection
capabilities in certain circumstances (e.g., foundation installation),
its utility in further reducing impacts during HRG survey activities is
limited. First, for this activity, the area expected to be ensonified
above the Level B harassment threshold is relatively small (a maximum
of 141 m); this reflects the fact that the source level is
comparatively low and the intensity of any resulting impacts would be
lower level and, further, it means that inasmuch as PAM will only
detect a portion of any animals exposed within a zone, the overall
probability of PAM detecting an animal in the harassment zone is low.
Together, these factors support the limited value of PAM for use in
reducing take for activities/sources with smaller zones. Also, PAM is
only capable of detecting animals that are actively vocalizing, while
many marine mammal species vocalize infrequently or during certain
activities, which means that only a subset of the animals within the
range of the PAM would be detected (and potentially have reduced
impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of HRG
surveys authorized in this final rulemaking are expected to be limited
to low level behavioral harassment even in the absence of mitigation,
the limited additional benefit anticipated by adding this detection
method (especially for North Atlantic right whales and other low
frequency cetaceans, species for which PAM has limited efficacy during
this activity), and the cost and impracticability of implementing a
full-
[[Page 62910]]
time PAM program, we have determined the current requirements for
visual monitoring are sufficient to ensure the least practicable
adverse impact on the affected species or stocks and their habitat
during HRG surveys.
Comment 14: Commenters recommended that NMFS require pile-driving
clearance and shutdown zones for large whales (other than North
Atlantic right whale) that are large enough to avoid all take by Level
A harassment and minimizes Level B harassment to the most practicable
extent.
Response: The commenters do not provide additional scientific
information for NMFS to consider to support their recommendation to
expand clearance and shutdown zones to effect the least practicable
adverse impact on marine mammals, particularly large whales, excluding
the North Atlantic right whale. The required clearance zone for large
whales (other than North Atlantic right whale) equates to the largest
modeled distance to the largest Level A harassment threshold, plus 20
percent, for the low frequency hearing group, assuming 10 dB of sound
attenuation. The shutdown zone represents the largest distance to the
cumulative sound exposure level (SEL<INF>cum</INF>) for the Level A
harassment isopleth. Both of these zones are typically rounded up for
PSO clarity. These requirements minimize Level B harassment and avoid
almost all Level A harassment of large whales (note that for all but
minke whales (n=22), all other species of large whales have 6 or fewer
takes by Level A harassment across all 5 years of the rule). Further
enlargement of these zones could interrupt and delay the project such
that a substantially higher number of days would be needed to complete
the construction activities, which would incur additional costs, but
importantly also potentially increase the number of days that marine
mammals are exposed to the disturbance. Accordingly, NMFS has
determined that enlargement of these zones is not warranted, and that
the existing required clearance and shutdown zones support a suite of
measures that will effect the least practicable adverse impact on other
large whales.
Comment 15: Commenters recommended that NMFS require clearance and
shutdown zones for North Atlantic right whales specifically, including:
(1) a minimum of 5,000 m for the visual clearance, acoustic clearance,
and shutdown zones in all directions from the driven pile location; and
(2) an acoustic shutdown zone that would extend at least 2,000 m in all
directions from the driven pile location.
Response: The Commenters do not provide additional scientific
information for NMFS to consider to support their recommendation to
expand clearance and shutdown zones for impact pile driving to effect
the least practicable adverse impact on North Atlantic right whales.
The proposed rule and this final rule require impact pile driving to be
delayed or shutdown if a North Atlantic right whale is visually or
acoustically detected at any distance. Given NMFS neither anticipates
nor authorizes any take by Level A harassment of North Atlantic right
whales, NMFS believes that these measures will effect the least
practicable adverse impact on the species. Delaying the project due to
overly enlarged zone sizes would result in longer construction time
frames, prolonging the time periods over which marine mammals may be
exposed to construction-related stressors. Accordingly, NMFS has
determined that enlargement of these zones is not warranted, and that
the existing required clearance and shutdown zones support a suite of
measures that will effect the least practicable adverse impact on North
Atlantic right whales and other affected species.
Comment 16: For all large whale species, commenters recommended
that NMFS require real-time PAM during impact pile driving to monitor
the acoustic clearance and acoustic shutdown zones, and must assume a
detection range of at least 10 km. They stated that this monitoring
must be undertaken from a vessel other than the pile driving vessel or
from a stationary unit to avoid masking of the hydrophone from the pile
driving vessel or other development-related noise.
Response: As described in the proposed rule, NMFS is requiring the
use of PAM to monitor 10-km zones around the piles, and that the
systems be capable of detecting marine mammals during pile driving
within this zone. However, NMFS acknowledges that this could be made
clearer and has modified Table 36 to clearly describe this 10 km PAM
monitoring zone. Ocean Wind is required to submit a PAM Plan to NMFS
for approval at least 180 days prior to the planned impact pile driving
start date. NMFS will not approve a Plan where hydrophones used for PAM
would be deployed from the pile driving vessel as this would result in
hydrophones inside the bubble curtains, which would clearly be
ineffective for monitoring; therefore, there is no need to explicitly
state in this rule that this would not be allowed. Further, Ocean Wind
may launch PAM drones from shore; hence, NMFS is not requiring that
Ocean Wind deploy any monitoring systems from a vessel.
Comment 17: Comments recommended that NMFS: (1) require all
offshore personnel to be trained to identify North Atlantic right
whales and other large whales, and (2) that all vessels maintain a 500-
m separation distance from North Atlantic right whale, 100 m for other
large whale species while also maintaining a vigilant watch for North
Atlantic right whale and other large whale species. Commenter(s) also
recommended that NMFS require vessels to slow down or maneuver their
vessels appropriately to avoid a potential interaction with a North
Atlantic right whale and other large whale species. Commenter(s) also
suggested that NMFS require that vessels maintain a separation distance
from North Atlantic right whales.
Response: NMFS notes that these requirements were included in the
proposed rule (87 FR 64868, October 26, 2022) and are carried forward
into this final rule.
Comment 18: Commenters recommended that NMFS implement diel
restrictions for site assessment and characterization activities within
1.5 hours of civil sunset and in low-visibility conditions when the
visual clearance zone and shutdown zone (referred to as the ``exclusion
zone'' in Appendix A) cannot be visually monitored by the Lead PSO.
Response: NMFS acknowledges the limitations inherent in visual
detection of marine mammals at night. The proposed rule and this final
rule requires that visual PSOs use alternative technology (i.e.,
infrared or thermal cameras) during periods of low visibility to
monitor the clearance and shutdown zones. We note that no Level A
harassment is expected to result from exposure to HRG equipment, even
in the absence of mitigation, given the characteristics of the sources
planned for use (supported by the very small estimated Level A
harassment zones; i.e., <36.5 m (119.8 feet (ft)) for all sources).
Regarding Level B harassment, any potential impacts are limited to
short-term behavioral responses. Given these factors combined with
other mitigation measures, NMFS has determined that more restrictive
mitigation requirements are not warranted.
Restricting surveys in the manner suggested by the commenters may
reduce marine mammal exposures by some degree at night if, in fact,
detectability is less at night and animals
[[Page 62911]]
do approach within the small harassment zone, but would not result in
any significant reduction in either intensity or duration of noise
exposure over the course of the surveys. In fact, the restrictions
recommended by the commenters could result in the surveys spending
increased total time (number of days) on the water introducing noise
into the marine environment, which may result in greater overall
impacts to marine mammals; thus, the commenters have not demonstrated
that such a requirement would result in a net benefit. Furthermore,
restricting the ability of the applicant to begin operations only
during daylight hours, which could result in the applicant failing to
collect the data they have determined is necessary within the specific
timeframe and, subsequently, may necessitate the need to conduct
additional surveys in the future across additional days. This would
result in significantly increased costs incurred by the applicant.
Thus, the restriction suggested by the commenters would not be
practicable for the applicant to implement. In consideration of the
likely effects of the activity on marine mammals absent mitigation,
potential unintended consequences of the measures as proposed by the
commenters, and practicability of the recommended measures for the
applicant, NMFS has determined that restricting operations as
recommended is not warranted or practicable in this case.
Comment 19: Commenter recommended that NMFS prohibit site
assessment and site characterization activities during times of highest
North Atlantic right whale risk (foraging and migration, and times when
mother-calf pairs, pregnant females, surface active groups, or
aggregations of three or more whales, which is indicative of feeding or
social behavior), using the best available science to define high-risk
timeframes.
Response: NMFS neither anticipates, nor authorizes, take of North
Atlantic right whales by Level A harassment from this activity.
Furthermore, NMFS expects that the required Vessel Strike Avoidance and
HRG mitigation measures will affect the least practicable adverse
impact on the species from this activity. While NMFS is authorizing
three total takes of three North Atlantic right whales by Level B
harassment from HRG surveys over the 5-year effective period of this
rulemaking, the required mitigation measures will affect the least
practicable adverse impact on North Atlantic right whales.
Specifically, the largest modeled Level B harassment zone size for the
sparker (141 m) is already much smaller than the required separation,
clearance, and shutdown distances for North Atlantic right whale (500
m) and any unidentified large whale that would be treated as if it were
a North Atlantic right whale. Any Level B harassment that is not
avoided is not expected to impact feeding or other behaviors in a
manner that poses energetic or reproductive risks for any individuals.
Given the minimal anticipated impacts of the HRG survey, NMFS disagrees
that additional mitigation measures are warranted.
Comment 20: A commenter suggested that all acoustic and visual
monitoring must begin at least 60 minutes prior to the start of or re-
start of pile driving and must be conducted throughout the entire
duration of the pile-driving event. They also suggested that visual
monitoring must continue for 30 minutes after pile driving has ceased.
Response: NMFS notes that the commenter's recommended mitigation
measures were included in the proposed rule and carried forward in this
final rule. The proposed rule also included a requirement that Ocean
Wind review PAM data at least 24 hours immediately prior to pile
driving for situational awareness, which has also been included in this
final rule. NMFS notes that if monitoring continues throughout any
pauses in pile driving after it commences, monitoring would not have to
occur for 60 minutes; however, the clearance zones measures regarding
not starting pile driving until the zones are clear would become
applicable.
Comment 21: Commenters recommended that NMFS should restrict pile
driving at night and during periods of low visibility to protect all
large whale species. This would include no pile driving being allowed
to begin after 1.5 hours before civil sunset or during times where the
visual clearance zone and shutdown zone (called the ``exclusion zone''
in the Appendix) cannot be visually monitored, as determined by the
Lead PSO.
If nighttime pile driving is to be allowed, the commenters
recommended that NMFS require that pile driving be initiated no later
than 1.5 hours prior to civil sunset at the latest, rather than 1.5
hours after civil sunset as stated in the proposed rule, in order to
maximize monitoring activities during hours of optimal visibility/
daylight. Impact pile driving started at least 1.5 hours prior to civil
sunset during good visibility conditions can then continue after dark,
as necessary providing the best available infrared technologies are
used to support visual monitoring of the clearance and exclusion zones
during periods of darkness (see Attachment 1).
A commenter did caveat this recommendation by stating that NMFS
should only allow pile driving to continue after dark if the activity
began during daylight hours and must continue for human safety or due
to installation feasibility (i.e., instability or pile refusal) but
only if required nighttime monitoring protocols are followed.
A commenter suggested that if pile driving must continue after dark
due to safety reasons, Ocean Wind should be required to notify NMFS
with these reasons and an explanation for exemption. Additionally, a
commenter stated that a summary of the frequency of these exceptions
must be made publicly available to ensure that these are indeed
exceptions, rather than the norm, for the project.
Response: NMFS recognizes the need to protect marine mammals that
may be exposed to pile-driving noise, as well as the challenges of
detecting marine mammals in low-light conditions. However, we note that
while it may be more difficult to detect marine mammals at night, there
are benefits to completing the pile driving in a shorter total amount
of time, and exposing marine mammals to fewer days of pile-driving
noise. On July 19, 2023, Ocean Wind submitted to NMFS a final Nighttime
Pile Driving Plan. This plan includes use of multiple Electro-Optical/
Infra-Red (E.O./IR) cameras with cooled sensors and 32-channel
hydrophone arrays to conduct PAM for marine mammal detection at night
which will maximize marine mammal detection during nighttime pile
driving. With the implementation of this plan, Ocean Wind may conduct
pile driving at night from June 1 through October 31, annually, as this
is the period, based on the Roberts et al. (2023) data, where North
Atlantic right whale densities are the lowest. We note that Ocean Wind
will not be performing nighttime pile driving for every pile, nor even
every day as pile driving will not occur every day. Further, some piles
will be finished before hours of darkness and some piles may
necessitate completion after dark due to safety and/or stability
concerns. NMFS will continue to review reports submitted by Ocean Wind
and will maintain the provision to implement adaptive management, if
needed. Given the requirements of the nighttime plan, which increase
the likelihood of detection and the effective implementation of the
required mitigation, NMFS has determined that allowing nighttime pile
driving in the identified months is appropriate. For those months when
nighttime pile driving is not allowed, the requirement
[[Page 62912]]
has been corrected to indicate that initiation of pile driving must
begin 1.5 hours prior to (not after) civil sunset, as we agree with the
commenter and that was the intention in the proposed rule.
Regarding a commenter's suggestion for additional and specific
reporting in the event that piles must be finished after dark due to
safety and/or stability concerns, we do not agree that this measure
would be either beneficial or necessary. This is a blanket provision
necessary for the safety of the crew and vessels and do not see what
benefit tracking this available provision would be. As described in the
rule, Ocean Wind only intends to install a maximum of 2 piles per day,
but may only install 1 pile on many days. Because of the limited
duration of pile driving predicted, we do not expect that Ocean Wind
finishing pile driving after civil sunset would be a common occurrence,
necessitating the need for additional restrictions or specific
reporting. Regarding the reporting requirement specified by the
commenter, we note that we are already requiring weekly reports during
foundation installation, which would contain information that would
inform on how long impact pile driving occurred and if it was necessary
for this activity to occur during hours of darkness (i.e., information
that would document the daily start and stop of all pile-driving
activities). These weekly reports would be combined into monthly and
annual reports. We do not plan to make the weekly or monthly reports
publicly available, due to the number or reports that would become
available; however, as described in Comment 25, we do plan to make the
final reports available, which would summarize all of the information
contained in the weekly and monthly reports.
Comment 22: A commenter recommended that NMFS not allow pile
driving to begin if monitoring results in either an acoustic detection
within the acoustic clearance zone or a visual detection within the
visual clearance zone of one or more North Atlantic right whales. They
also stated that pile driving should not be initiated or must be shut
down if underway (with an exception noted due to pile stability and
human safety) if monitoring results in an acoustic detection within the
acoustic shutdown zone or a visual detection within the visual shutdown
zone of one or more North Atlantic right whales. They added that if
pile driving is underway and a North Atlantic right whale is visually
detected at any distance from the pile by a PSO, pile driving must be
shut down. A commenter also recommended NMFS include a condition for
resumption of pile driving after the Lead PSO confirms that no North
Atlantic right whale or other protected species have been detected
within the acoustical and visual clearance zones. Finally, a commenter
acknowledged the exemption for safety from shutdown but recommends that
if this exemption occurs, the project must immediately notify the NMFS
with reasons and explanation for exemption and a summary of the
frequency of these exceptions must be publicly available to ensure that
these are the exception rather than the norm for the project. Some
commenters also recommended that HRG surveys should be required to use
a soft start, ramp-up procedure to encourage any nearby marine life to
leave the area.
Response: The recommended requirement that any detection of a North
Atlantic right whale (visually or acoustically in the associated
clearance zone) during the clearance period would trigger a delay to
the onset of pile driving was included in the proposed rule and is
included in this final rule. Similarly, the recommended requirement
that any detection of a North Atlantic right whale (visually or
acoustically in the associated exclusion zone) while pile driving is
occurring would trigger a shutdown of pile driving (with the noted
safety exception) was included in the proposed rule and is included in
this final rule. In this final rule, NMFS has also added the
requirement that shutdown of pile driving must occur if a North
Atlantic right whale is visually detected at ``any distance.''
Regarding the resumption of pile driving following a shutdown, PSOs
would be required to monitor clearance zones prior to impact pile
driving starting. Impact pile driving would be allowed to begin only
when the Lead PSO confirms that no North Atlantic right whales or other
marine mammal species have been detected in the applicable clearance
zones and the PAM operator confirms no detection of North Atlantic
right whales. A soft-start to pile driving or ramp-up to HRG surveys
would be required, as described in the proposed rule and also included
in this final rule.
Regarding a commenter's suggestion that in the event that
mitigation actions are not undertaken based on specific exemptions,
both the proposed and final rules require reporting weekly, monthly,
and annual reports where Ocean Wind must provide reasons why mitigation
actions could not occur (including for this exception). We acknowledge
the importance of transparency in the reporting process and plan to
make all final annual and 5-year marine mammal monitoring reports and
final SFV report on our website, however, NMFS will not be making the
weekly or monthly reports final given the amount of total reports that
would be obtained over a 5-year period.
Comment 23: A commenter expressed concern regarding 8 hours of pile
driving, daily, for monopile foundations as they state that there are
``no clear provisions for enforcement of these and other restrictions''
given the close proximity of other projects within the region.
Response: Specific to the Project, NMFS notes that this comment is
unfounded, as no other projects will begin impact pile driving off New
Jersey during the same period Ocean Wind would begin. However, in
discussing the concern more broadly, it is not clear what the commenter
means by stating that there are ``no clear provisions for enforcement
of these and other restrictions.'' The MMPA has a prohibition on the
take of marine mammals and if Ocean Wind does not comply with the
requirements of any issued LOA and their activities result in the take
of marine mammals, then they will be subject to law enforcement.
Violating the regulations and LOAs can result in civil and criminal
penalties. More specifically, the developer is required to submit
weekly and monthly reports to NMFS for review, that would detail
exactly what was installed, what parameters of the impact hammer were
used, and when piling began and ceased, among other things.
Additionally, the applicant would provide SFV reports for NMFS' review
to allow for a clear understanding as to the effectiveness of the sound
attenuation measures and if additional action (e.g., modification to
clearance or shutdown zones) is needed.
Comment 24: A commenter stated that at first, UXOs/MECs must be
evaluated to see if they can be moved without detonation. If detonation
must occur, the commenter stated that the mitigation measures for pile
driving should be observed the same with regards to including noise
abatement technology, clearance zones, and the use of PSOs. If the
impact area is larger than predicted after detonation, the commenter
suggests that expanded mitigation measures should be implemented.
Response: As described in the proposed rule and included in this
final rule, Ocean Wind would use the As Low As Reasonably Practical
(ALARP) approach such that detonation would be the last resort to
removing a UXO/MEC. That is, Ocean Wind is required to use detonation
as a means of removing
[[Page 62913]]
UXO/MECs only if all other options of removal have been exhausted. Also
as described in the proposed rule and included in this final rule,
Ocean Wind would be required to implement visual monitoring using PSOs
and PAM prior to detonation. These PSOs and PAM operators would be
required to clear the appropriate zones prior to Ocean Wind detonating
any UXO/MEC. The proposed rule also included the measure that SFV must
be conducted on every UXO/MEC, which has been carried forward in this
final rule. Additionally, NMFS requires that a double big bubble
curtain must be used that is positioned far enough away from the blast
such that the hose nozzles are not damaged.
Furthermore, NMFS notes that we retain the ability to modify
existing mitigation measures through adaptive mitigation in the event
new information becomes available and if doing so creates a reasonable
likelihood of more effectively accomplishing the goal(s) of the
measure.
Comment 25: A commenter asserted that the LOA must include
requirements to hold all vessels associated with site characterization
surveys accountable to the ITA requirements, including vessels owned by
the developer, contractors, employees, and others regardless of
ownership, operator, and contract. They stated that exceptions and
exemptions will create enforcement uncertainty and incentives to evade
regulations through reclassification and redesignation. They
recommended 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 notes the proposed rule and this final rule includes
a general condition that extends the requirements imposed on Ocean Wind
to persons it authorizes or funds to conduct activities on its behalf
e.g., vessel operators) while conducting the specified activities. The
rule also states that Ocean Wind 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 rule
requirements prior to the start of survey activity, and when relevant
new personnel join the survey operations.
Comment 26: A commenter stated that the LOA must include conditions
for the survey and construction activities that will first avoid
adverse effects on North Atlantic right whales in and around the area
and then minimize and mitigate the effects that cannot be avoided. This
should include a full assessment of which activities, technologies and
strategies are truly necessary to achieve site characterization and
construction to inform development of the offshore wind projects and
which are not critical, asserting that NMFS should prescribe the most
appropriate techniques that would produce the lowest impact while
achieving the same goals while prohibiting those other tools/techniques
that would cause more frequent, intense, or long-lasting effects.
Response: NMFS is required to authorize the requested incidental
take if it finds such incidental take of small numbers of marine
mammals by the requestor while engaging in the specified activities
within the specified geographic region will have a negligible impact on
such species or stock and where appropriate, will not have an
unmitigable adverse impact on the availability of such species or stock
for subsistence uses. As described in this notice of final rulemaking,
NMFS finds that small numbers of marine mammals may be taken relative
to the population size of the affected species or stocks and that the
incidental take of marine mammal from all of Ocean Wind's specified
activities combined will have a negligible impact on all affected
marine mammal species or stocks. It is not within NMFS' authority to
determine the requestor's specified activities.
The MMPA requires that we include mitigation measures that will
effect the least practicable adverse impact on the affected species and
stocks. In practice, NMFS agrees that the rule should include
conditions for the construction activities that will first avoid
adverse effects on North Atlantic right whales in and around the
project area, where practicable, and then minimize the effects that
cannot be avoided. NMFS has determined that this final rule meets the
requirement to effect the least practicable adverse impact on the
affected marine mammal stocks and their habitat. The commenter does not
make any specific recommendations regarding mitigation measures.
Monitoring, Reporting, and Adaptive Management
Comment 27: Several commenters recommended that NMFS increase the
frequency of information review for adaptive management to at least
once a quarter and also have a mechanism in place to undertake review
and adaptive management on an ad hoc basis if a serious issue is
identified (e.g., if unauthorized levels of Level A take of marine
mammals are reported or if serious injury or mortality of an animal
occurs).
Response: NMFS may undertake review and adaptive management actions
at any time under the regulations, as written. Ocean Wind is required
to submit weekly, monthly, and annual reports that NMFS will review in
a timely manner and may act on pursuant to the adaptive management
provisions at any time, and therefore, a separate specific quarterly
review is unnecessary.
Comment 28: A commenter recommended that NMFS require robust
monitoring protocols during pre-clearance and when site assessment and
characterization activities are underway, including: (1) passive
acoustic monitoring from a nearby vessel (other than the survey vessel)
or a stationary unit to avoid masking; (2) visual monitoring of the
clearance zone for North Atlantic right whales and other large whales
by four on-duty PSOs on each survey vessel scanning 180 degrees); and
(3) visual and acoustic monitoring beginning 30 minutes prior to
commencement or re-initiation of survey activities through the duration
of the survey.
Response: Regarding the recommendation to require acoustic
monitoring (in any form) to support clearance and shutdown requirements
for HRG surveys, please see NMFS response to Comment 13, which
describes why PAM is not warranted for HRG surveys. With respect to the
number of PSOs, NMFS is not requiring four on-duty PSOs given the very
small harassment zone sizes associated with HRG surveys. In the
proposed rule, and in this final rule, PSOs are required to commence
monitoring for marine mammals 30 minutes prior to the activity before
HRG surveys begin; hence, this recommendation has already been
satisfied.
Comment 29: A commenter recommended that NMFS require infrared
technology to support visual monitoring for all vessels responsible for
crew transport and during any pile-driving activities that occur in
periods of darkness or nighttime to supplement the visual monitoring
efforts for marine mammals. They additionally included a suggestion
that additional observers and monitoring approaches (i.e., infrared,
drones, hydrophones) must be used, as determined to be necessary, to
ensure that monitoring efforts for the clearance and shutdown zones are
effective during daytime, nighttime, and during periods of poor
visibility.
Response: NMFS notes that most of the proposed recommendations were
already included in the proposed rule
[[Page 62914]]
and have been carried forward here. Specifically, NMFS described in the
proposed rule, and is requiring in the final rule, that infrared
technologies and PAM hydrophone deployments be available and used
before, during, and after pile driving. NMFS concurs with a suggestion
by the commenter and has added a new requirement in the final rule to
allow Ocean Wind to deploy drones to aid PAM efforts. Moreover, since
publication of the proposed rule, Ocean Wind has submitted a nighttime
pile driving plan (referred to as the Alternative Monitoring Plan) on
July 19, 2023 that includes advanced technologies for monitoring marine
mammals at night for both trained crew observers and PSOs. Once
approved, NMFS will make the plan available on our website at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility">https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility</a>.
Comment 30: Some commenters recommended that additional monitoring
of the visual clearance and shutdown zones must be undertaken by PSOs
located on the pile-driving vessel and on an additional vessel that
would circle the pile-driving site. They specified that a minimum of
four PSOs must be on each vessel and must have two PSOs monitoring per
shift operating on a two on, two off rotation, with the commenter
suggesting that human observation be supplemented with IR technology
and drones.
Response: In the proposed rule, NMFS proposed to require two on-
duty PSOs on the pile-driving vessel and two on-duty PSOs on the
secondary vessel, each covering 180 degrees, as proposed by a
commenter. However, since that time, NMFS has determined that there are
too few observers and is now requiring three on-duty PSOs on both
platforms such that each PSO is responsible for 120-degree coverage,
increasing detection effectiveness.
Comment 31: A commenter recommended that NMFS should require SFV
during installation of WTG and OSS foundations on the first monopile
installed and then on a random sample of monopiles throughout the
installation process. They also noted that they do not support the
installation of unmitigated piles. They added that all sound source
validation reports for field measurements must be made publicly
available after being evaluated by both NMFS and BOEM prior to the
installation of any additional monopiles being installed.
Response: NMFS notes that the proposed rule and this final rule
require noise abatement systems to be deployed during all impact pile
driving activities to reduce noise levels to the modeled harassment
isopleths, which will be validated through SFV. Additionally, the
proposed rule and this final rule require SFV for the first three piles
and additional piles where conditions suggest noise levels may be
higher or propagate farther than those piles previously measured. Ocean
Wind has the Lease Area data to identify if a pile would be more
difficult to drive than the initial piles measured. Given these
mitigation measures, NMFS disagrees that random sampling is necessary.
As we describe above for Comment 22, we acknowledge the importance
of transparency in the reporting process and plan to make all final SFV
report on our website, however, NMFS will not be making any weekly or
monthly final reports available, given the amount of total reports that
would be obtained over a 5-year period. The SFV reports and information
gleaned would be available in these final reports.
Comment 32: The Commission suggested that the monitoring measures
included in the proposed rule may not be sufficient in reducing the
potential for Level A harassment of North Atlantic right whales,
specifically indicating that visually monitoring a 3.5- to 3.8-km would
prove difficult and cited literature (Oedekoven and Thomas, 2022)
estimating effectiveness of marine mammal observers (MMOs) to be 54
percent for detecting rorquals at 914 m or more, 31 percent for small
cetaceans in pods of more than six, and 14 percent for small cetaceans
in pods of six or fewer. The Commission did not provide any
recommendations to increase visual detection capabilities.
Response: The time of year when Ocean Wind would be conducting the
majority of pile driving is when North Atlantic right whale density in
the project area is very low. As provided in Table 17 and 18, one North
Atlantic right whale Level A harassment exposure was estimated (0.9
from WTG installation and 0.1 from OSS foundation installation). These
estimates were derived without consideration of any mitigation (except
10-dB of sound attenuation) or natural avoidance of marine mammals to
avoid loud sounds. Hence, even without any monitoring or mitigation
(with exception of 10-dB of sound attenuation from the modeling), the
potential for PTS to occur is low. As described in response to Comment
4, the Commission cites information from a paper related to the use of
trained lookouts and a team of two on-duty MMOs on moving Navy military
vessels actively engaged in sonar training (Oedekoven and Thomas, 2022)
to support its argument that visual monitoring would prove difficult.
We note that these ``trained lookouts'' are Navy personnel who are
specifically trained as lookouts in contrast to NMFS-approved PSOs who
are required to have specific education backgrounds, trainings, and
experience before undertaking PSO duties (see requirements found in the
regulations text at Section 217.265(a)). NMFS disagrees that the
statistics generated from that report are relevant to the effectiveness
of monitoring for the Project. Independent, NMFS-approved PSOs are
required during all impact pile driving (see requirements found in
217.265). At least three PSOs would be placed on the stationary pile
driving platform and three PSOs would also be placed on each of two
dedicated PSO vessels traveling at slow speeds (less than 10 kn) for a
total of nine PSOs. Concurrently, real-time PAM is required to
supplement visual monitoring during impact pile driving, UXO/MEC
detonation, and select vessel transport. Further, Ocean Wind must
monitor several times daily supplemental marine mammal detection
information systems (e.g., the Right Whale Sighting Advisory System) to
increase situational awareness. Hence, it is reasonable to assume that
the effectiveness of marine mammal monitoring during the project is
much greater than the two-person MMO team reported in Oedekoven and
Thomas (2022). We note that the MMO team in Oedekoven and Thomas
(2022), was not always using PAM in that study, and had significantly
more Balaenoptera spp. sightings than the lookout team (see Table 2 in
Oedekoven and Thomas (2022)). Given the monitoring measures that are
required for the Project in combination with the mitigation measures
(i.e., clearance and shutdown zones), NMFS disagrees that the
monitoring measures will be insufficient to avoid Level A harassment
(PTS) of North Atlantic right whales.
Comment 33: The Commission recommended that NMFS require Ocean Wind
to have PAM operators also review acoustic data for at least 24 hours
prior to UXO/MEC detonations, when available.
Response: We appreciate the Commission's suggestion and have
incorporated it into the final rule.
Comment 34: The Commission recommended that NMFS include a
provision that the Lead PSO must have a minimum of 90 days of at-sea
experience and must have had this experience within the last 18 months.
[[Page 62915]]
Response: We appreciate the Commission's suggestion and have
incorporated it into the final rule.
Comment 35: A commenter stated that Ocean Wind should be required
to use PSOs at all times when under way. They also suggested that PSOs
complement their survey efforts using additional technologies, such as
infrared detection devices when in low-light conditions.
Response: NMFS is not requiring PSOs to be onboard every transiting
vessel. However, as described in the proposed rule, as well as the
final rule, Ocean Wind must have trained observers onboard all vessels.
This observer may be a PSO or a crew member with no other duties if the
vessel is operating above 10 kn. NMFS is also requiring Ocean Wind to
provide a North Atlantic Right Whale Vessel Strike Avoidance Plan to
NMFS 90 days prior to the onset of vessel use. Ocean Wind submitted
that plan on July 19, 2023. Once approved, this plan will be made
available on NMFS' website at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility">https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility</a>.
Comment 36: A commenter recommended that the LOA 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. A commenter suggested this requirement should apply
to all vessels, regardless of size, associated with the survey.
Response: NMFS agrees that AIS should be required. This final rule
includes a requirement that all vessels associated with the project be
equipped with AIS.
Comment 37: A commenter stated that monitoring reports are not
enough to evaluate impacts to marine mammals from offshore wind impacts
and instead suggests that on-the-ground, independent scientists and
response teams be located in the area during activities conducted under
incidental take authorizations to monitor for impacts and to respond
immediately or investigate if anything occurs. The commenter suggested
that an organization charged specifically with responding to endangered
marine mammal incidents (which NMFS notes, the commenter did not choose
to define or specify further), be fully funded by the State and Federal
agencies to collect the animal and conduct an independent and thorough/
immediate investigation to determine the cause of death.
Response: NMFS disagrees with the commenter's recommendations. NMFS
emphasizes that this final rule authorizes incidental take by Level A
and Level B harassment from auditory injury and behavioral disturbance.
Moreover, no mortality or serious injury is anticipated or authorized
in this final rule. During the specified activities identified for the
Project, NMFS is requiring third-party, independent visual PSOs and PAM
operators be present to provide monitoring support and to instigate
mitigative actions, if they are needed, such as shutdowns or delays to
activities. These specific personnel are also tasked to record
instances of marine mammal observations (both visually or acoustically)
while also providing additional information of the distance to approach
(i.e., how close was the sighting/detected marine mammal to the
activity), the behavior of the animal(s), and any actions determined to
be necessary to be undertaken, among other requirements. While the
commenter suggests an independent team be funded to monitor and respond
to events if they occur, it is unclear what action(s) the commenter
recommends these individual undertake if a large whale is exposed to
noise levels that would cause TTS or PTS nor were any suggestions made
for NMFS to consider for this final rule. To the commenter's other
suggestion, we note that the MMPA established the Marine Mammal Health
and Stranding Response Program (MMHSRP), a national program that
coordinates emergency responses to sick, injured, distressed, or dead
marine mammals. In the event Ocean Wind discovers a stranded,
entangled, injured, or dead marine mammal, it must report the
observation to either the NMFS Greater Atlantic Stranding Hotline or
the NMFS Southeast Stranding Hotline, depending on exact location, as
soon as possible but within 24 hours. We reference the commenter to the
Reporting section of the regulations (217.265(g)) for more information.
Comment 38: The Commission recommended that NMFS require Ocean Wind
to submit a PAM plan and to allow for public comments to occur prior to
the issuance of the final rule. The Commission specified that this plan
should include the number, type(s) (e.g., moored, towed, drifting,
autonomous), deployment location(s), bandwidth/sampling rate,
sensitivity of the hydrophones, estimated detection range(s) for
ambient conditions and during pile driving, and the detection software
to be used. They also recommended that Ocean Wind and other wind
developers consider whether vector sensors should be used in addition
to deployed hydrophones to enhance detection capabilities, with a
particular focus on ``those vocalizations that may be drowned out by
the hammer strikes and resulting reverberation.''
Response: NMFS notes the Commission's recommendation for Ocean Wind
to submit a PAM Plan to NMFS for approval is consistent with the
proposed rule and this final rule. However, for the PAM Plan, this
final rule requires the lead time for plan submission 180 days prior to
the start of foundation installation activities. In order to meet the
Commission's recommendation and the FAST-41 timeline, Ocean Wind would
have had to submit a plan almost concurrently or shortly after the
public comment period on the proposed rule which is not logistically
feasible. Further, NMFS has identified the requirements that Ocean Wind
must meet in its PAM plan in both the proposed rule, which was made
available for public comment, and this final rule. Given NMFS'
extensive expertise with passive acoustic monitoring and the fact that
we are coordinating with BOEM's Center for Marine Acoustics (CMA), NMFS
has determined that approval of the plan does not warrant public input.
However, NMFS will share the plan with the Commission for review prior
to approval of the plan. NMFS has included the Commission's
recommendations, among other things, of what would be required in the
PAM plan.
Comment 39: The Commission recommended that in the final rule NMFS:
(1) specify which model-estimated zones (i.e., acoustic ranges,
exposure ranges, mitigation zones, monitoring zones) and which metrics
(i.e., flat maximum-over-depth (R<INF>max</INF>), flat model-estimated
acoustic ranges (R<INF>95</INF><INF>%</INF>)) should be compared to the
in-situ Level A and B harassment zones, (2) specify which type of in-
situ Level A harassment zone (i.e., acoustic or exposure ranges) should
be calculated, and, (3) require that in-situ measurements be conducted
for monopiles that are not represented by the previous three locations
(i.e., substrate composition, water depth) or by the hammer energies
and numbers of strikes needed or number of piles installed in a given
day.
Response: We have required, in the final rule, that the model-
estimated acoustic ranges (R<INF>95</INF><INF>%</INF>) be compared with
the real-world sound field measurements as exposure ranges
(ER<INF>95</INF><INF>%</INF>) cannot be measured in the field. The
acoustic ranges NMFS incorporated into the final rule are found in
[[Page 62916]]
Appendix H of Ocean Wind's ITA application and use the flat
R<INF>95</INF><INF>%</INF> metric.
Regarding the Commission's second suggestions, the in-situ analysis
for Level A harassment compared to acoustic range which will indicate
if ERs modeled are acceptable, because if the acoustic range to the
Level A harassment threshold is louder than acoustic range modeled by
JASCO, one can assume the ER modeled is too small as animals move
through a sound field.
Regarding the Commission's third suggestion, NMFS notes the
proposed rule included language where if in the case that a monopile
installation site or construction scenario was determined to be not
representative of the rest of the monopile installation sites, Ocean
Wind would be required to provide information on how additional sites
and construction scenarios would be selected for SFV measurements, as
would be described in their Foundation Installation Pile Driving SFV
Plan. This plan would also be required to describe the methodology for
collecting, analyzing, and preparing SFV measurement data for
submission to NMFS. We acknowledge that this information is important
and have carried over the same requirement into the final rule.
However, we do not agree regarding the suggestion to require additional
SFV based on variations in the hammer energies, number of strikes used
for installation, or number of piles installed per day. NMFS applied
the largest distances modeled, which represents maximum number of piles
installed per day, maximum strikes predicted, and maximum hammer
energies. Because of this, Ocean Wind is required to stay within the
bounds of the analysis. We also note that any variation assuming less
hammer strikes, less piles installed per day, or lower hammer energies
would most likely result in less anticipated take per day, as the take
authorized in the final rule is based on the highest bounds of the
analysis. For all these reasons, we are not requiring additional SFV
based on variations specific to the hammer energy, number of piles
installed, or the total number of strikes.
Comment 40: The Commission recommended that NMFS require Ocean Wind
to report on additional metrics not included in the proposed rule,
including sound pressure level (SPL<INF>rms</INF>) source levels,
cumulative SEL, ranges to Level A harassment and Level B harassment
thresholds, and types and locations of sound attenuation systems. The
Commission also recommended the ranges to Level B harassment thresholds
be based on the behavioral thresholds, not TTS thresholds. Lastly, the
Commission recommended that NMFS require that Ocean Wind deploys a
minimum of three hydrophones for SFV during impact pile driving and a
minimum of two hydrophones and one pressure transducer for SFV during
UXO/MEC detonations.
Response: NMFS partially concurs with the Commission's
recommendations. The interim report must now include peak, SPL, and
SEL<INF>cum</INF> metrics for all hydrophones, estimated distances to
NMFS Level A harassment and Level B harassment thresholds, types and
locations of sound attenuation systems. We also removed reference to
the TTS thresholds. This information is also required in the final
report. NMFS is not requiring source levels be estimated in interim
reports given the quick turnaround time (48 hours) and amount of data
needing to be analyzed in that time. The purpose of the interim reports
are to determine that distances to Level A harassment and Level B
harassment thresholds are not being exceeded and to determine if any
mitigative action needs to be taken. Hence knowing source levels is not
required at this stage. However, NMFS is requiring source levels (peak,
SEL<INF>cum,</INF> and SPL<INF>rms</INF>) be included in the final SFV
report. Regarding the hydrophones for SFV during pile driving, NMFS is
requiring Ocean Wind place two hydrophones at four locations at an
azimuth of least propagation loss and two at 750 m and 90 degrees from
this azimuth. This results in a total of 10 hydrophones during SFV.
Additionally, we have added a requirement to deploy a pressure
transducer for UXO/MEC detonations, as suggested by the Commission.
Comment 41: Commenters stated that the LOA must include a
requirement for all phases of the Ocean Wind 1 site characterization to
subscribe to the highest level of transparency, including frequent
reporting to Federal agencies, requirements to report all visual and
acoustic detections of North Atlantic right whales and any dead,
injured, or entangled marine mammals to NMFS or the U.S. Coast Guard as
soon as possible and no later than the end of the PSO shift. A
commenter states that to foster stakeholder relationships and allow
public engagement and oversight of the permitting, the LOA should
require all reports and data to be accessible on a publicly available
website. A commenter also suggested that all quarterly reports of PSO
sightings must be made publically available to continue to inform
marine mammal science and protection.
Response: NMFS notes the commenters' recommendations to report all
visual and acoustic detections of North Atlantic right whales and any
dead, injured, or entangled marine mammals to NMFS are consistent with
the proposed rule and this final rule (see Situational Reporting). We
refer the reader to 217.265(g)(13)(i)-(vi) of the regulations for more
information on situational reporting.
Daily visual and acoustic detections of North Atlantic right whales
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.html">https://whalemap.org/whalemap.html</a>). Further, recent acoustic detections of
North Atlantic right whales and other large whale species are available
to the public on NOAA's Passive Acoustic Cetacean Map website (<a href="https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map">https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map</a>).
Given the open access to the resources described above, NMFS does not
concur that public access to quarterly PSO reports is warranted and we
have not included this measure in the authorization. However, NMFS will
post all final reports to our website. We reference the commenters to
217.265(g) for more information on reporting requirements in the
regulations.
Comment 42: A commenter recommended that the use of quieter
foundations be given full consideration when selecting a ``preferred
alternative'' and that direct-drive turbines be used in lieu of
gearboxes.
Response: The commenter refers to a ``preferred alternative''
suggests this comment is specific to the EIS BOEM developed for the
project. NMFS agrees with the commenter that full consideration of
various turbine foundations should be evaluated in an EIS but also
recognizes that there are technological challenges and that the
ultimate foundation type chosen must be practicable. Regardless, this
rule evaluates the specified activities as described in Ocean Wind's
MMPA application which includes installation of monopile and jacket
foundations. With respect to direct-drive, NMFS agrees that the best
available science indicates that these are known to be less noisy than
gearboxes and we understand gearboxes are older technology. Ocean Wind
has confirmed with NMFS that direct drive turbines will be used for the
Ocean Wind project.
Effects Assessment
Comment 43: A commenter stated that there is a lack of basic
research about the impacts of offshore wind energy development on large
whales. They also asserted that the current application
[[Page 62917]]
does not adequately assess the impact to prey from construction and
operation and suggest that any permits and authorizations (i.e., any
IHAs, regulations) for offshore wind development should not be issued
until scientific baseline assessments for what harms may occur to
whales are available. Prior to issuing any IHAs or regulations, the
commenter recommended that an independent pilot project investigating
the potential and real marine ecosystem impacts, including assessments
for what harms may or could occur to whales, be conducted and sound
science supported by planned or currently begun robust scientific
baseline assessments and independent and peer-reviewed studies are
complete.
Response: The MMPA requires NMFS to evaluate the effects of the
specified activities in consideration of the best scientific evidence
available and to issue the requested incidental take authorization if
it makes the necessary findings. The MMPA does not allow NMFS to delay
issuance of the requested authorization on the presumption that new
information will become available in the future. If new information
becomes available in the future, NMFS may modify the mitigation and
monitoring measures in an LOA issued under these regulations through
the adaptive management provisions. Furthermore, NMFS is required to
withdraw or suspend an LOA if, after notice and public comment unless
an emergency exists, it determines the authorized incidental take may
be having more than a negligible impact on a species or stock.
NMFS has duly considered the best scientific evidence available in
its effects analysis. The Potential Effects of Underwater Sound on
Marine Mammals section of the proposed rule included a broad overview
of the potential impacts on marine mammals from anthropogenic noise and
provided summaries of several studies regarding the impacts of noise
from several different types of sources (e.g., airguns, Navy sonar,
vessels) on large whales, including North Atlantic right whales.
Offshore wind farm construction generates noise that is similar, or, in
the case of vessel noise, identical, to noise sources included in these
studies (e.g., impact pile driving and airguns both produce impulsive,
broadband sounds where the majority of energy is concentrated in low
frequency ranges), and the breadth of the data from these studies helps
us predict the impacts from wind activities. In addition, as described
in the proposed rule, it is general scientific consensus that
behavioral responses to sound are highly variable and context-specific
and are impacted by multiple factors including, but not limited to,
behavioral state, proximity to the source, and the nature and novelty
of the sound. Overall, the ecological assessments from offshore wind
farm development in Europe and peer-reviewed literature on the impacts
of noise on marine mammals both in the U.S. and worldwide provides the
information necessary to conduct an adequate analysis of the impacts of
offshore wind construction and operation on marine mammals in the
Atlantic OCS. NMFS acknowledges that studies in Europe typically focus
on smaller porpoise and pinniped species, as those are more prevalent
in the North Sea and other areas where offshore wind farms have been
constructed, and notes that the commenter did not provide additional
scientific information for NMFS to consider.
With respect to adequately assessing impacts to prey from
construction and operation, NMFS considered the information in Ocean
Wind's application but greatly expanded on the analysis in the proposed
rule. Hence, it is not relevant that Ocean Wind's application did not
fully address potential impacts to prey, as NMFS conducted its own
analysis for the proposed rule, which is incorporated by reference into
this final rulemaking, based on the best scientific information
available. Further, the Biological Opinion provides a robust analysis
on the impacts on ESA-listed marine mammal prey, many of which (e.g.,
fish, invertebrates) serve as prey for all marine mammals that we have
summarized in this final rule. NMFS notes that the commenter did not
provide additional scientific information on impacts on prey for NMFS
to consider.
Furthermore, a commenter specifically points out a lack of baseline
data available on harbor seals in the New Jersey area. NMFS points the
commenter towards two sources of information for marine mammal baseline
information: The Ocean/Wind Power Ecological Baseline Studies, January
2008-December 2009, completed by the New Jersey Department of
Environmental Protection in July 2010 (<a href="https://tethys.pnnl.gov/sites/default/files/publications/Ocean-Wind-Power-Baseline-Volume1.pdf">https://tethys.pnnl.gov/sites/default/files/publications/Ocean-Wind-Power-Baseline-Volume1.pdf</a>) and
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 that cover the areas
across the Atlantic Ocean.
Comment 44: Some commenters questioned whether NMFS met its
requirement to utilize the best available science in its analysis. A
commenter stated that NMFS must use the more recent and best available
science in evaluating impacts to North Atlantic right whales, including
updated population estimates, recent habitat usage patterns for the
project area, and a revised discussion of the acute and cumulative
stress on whales in the region. A commenter identified that the North
Atlantic right whale population abundance is less than that cited in
the proposed rule. A commenter stated that NMFS did not use the best
available science for the proposed rule (NMFS originally used n = 368)
for the population estimate of North Atlantic right whales when NMFS'
website stated that ``there are fewer than 350 remaining'' and that the
North Atlantic right whale Consortium stated that 336 individuals
remained in their 2021 Annual Report Card. A commenter also objected to
NMFS' determination that no change was needed in the number of takes in
the Applicant's request when NMFS acknowledged a revision in the
density of the North Atlantic right whale population. A commenter then
cited information about North Atlantic right whale population abundance
to support this claim.
Response: The MMPA and its implementing regulations require that
incidental take regulations be established based on the best available
information, which does not always mean the most recent information.
NMFS generally considers the information in the most recent U.S.
Atlantic and Gulf of Mexico SAR (Hayes et al., 2023) to be the best
available information for a particular marine mammal stock because of
the MMPA's rigorous SAR procedural requirements, which includes peer
review by a statutorily established Scientific Review Group.
Regarding the comment related to the North Atlantic right whale
population abundance that was cited in the proposed rule, since
publication of the proposed rule, NMFS has finalized the 2022 Stock
Assessment Report indicating the North Atlantic right whale population
abundance is estimated as 338 individuals (N<INF>est</INF>; 95 percent
confidence interval: 325-350; 88 FR 54592, August 11, 2023). NMFS has
used this most recent best available scientific information in the
analysis of this final rule. This new estimate, which is based off the
analysis from Pace et al. (2017) and subsequent refinements
[[Page 62918]]
found in Pace (2021), is included by reference in the final 2022 SARs
(<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>) and provides the most recent
and best available estimate, including improvements to NMFS' right
whale abundance model. Specifically, Pace (2021) looked at a different
way of characterizing annual estimates of age-specific survival. The
results from the Pace (2021) paper that informed the final 2022 SARs
strengthened the case for a change in mean survival rates after 2010
through 2011, but did not significantly change other current estimates
(population size, number of new animals, adult female survival) derived
from the model. Furthermore, NMFS notes that the SARs are peer reviewed
by other scientific review groups prior to being finalized and
published and that the North Atlantic Right Whale Report Card (Pettis
et al., 2022) does not undertake this process. Based on this, NMFS has
considered all relevant information regarding North Atlantic right
whale, including the information cited by the commenters. However, NMFS
has relied on the final 2022 SAR in this final rule as it reflects the
best available scientific information.
We note that this change in abundance estimate does not change the
estimated take of North Atlantic right whales or authorized take
numbers, nor affect our ability to make the required findings under the
MMPA for Ocean Wind's construction activities.
Comment 45: Commenters raised concerns regarding the cumulative
impacts of the multiple offshore wind projects being developed
throughout the range of North Atlantic right (which they state as from
North Carolina to Maine), and specifically recommended that we
carefully consider the take from all of these projects in combination
when conducting the negligible impact analysis for Ocean Wind.
Relatedly, they emphasized the total take of bottlenose dolphins by
Ocean Wind across multiple years, especially in combination with
multiple projects. Commenters also objected to NMFS's conclusion that
the application's take limit of 14 North Atlantic right whales for
construction activities in the coastal waters between off New Jersey
and New York will have a ``negligible impact'' on the species,
especially in light of the North Atlantic right whale's critically
endangered status, the ongoing Unusual Mortality Event that this
species is experiencing and, consequently, the asserted existential
threat posed to the species by obstacles to even one individual's
survival--and they emphasize this comment in combination with the need
to consider the take from multiple projects.
Response: NMFS is required to authorize the requested incidental
take if it finds the total incidental take of small numbers of marine
mammals by U.S. citizens ``while engaging in that (specified)
activity'' within a specified geographic region during the five-year
period (or less) will have a negligible impact on such species or stock
and where appropriate, will not have an unmitigable adverse impact on
the availability of such species or stock for subsistence uses (16
U.S.C. 1371(a)(5)(A)). Negligible impact is defined as ``an impact
resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effect on annual rates of recruitment or
survival'' (50 CFR 216.103). Neither the MMPA nor its implementing
regulations require consideration of unrelated activities and their
impacts on marine mammal populations in the negligible impact
determination. Additionally, NMFS' implementing regulations require
applicants to include in their request a detailed description of the
specified activity or class of activities that can be expected to
result in incidental taking of marine mammals (50 CFR 216.104(a)(1)).
Thus, the ``specified activity'' for which incidental take coverage is
being sought under section 101(a)(5)(A) is generally defined and
described by the applicant. Here, Ocean Wind is the applicant, and we
analyzed the impact of its specified activity described in its
application and made the necessary determinations on that basis.
Consistent with the preamble of NMFS' implementing regulations (54
FR 40338, September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are factored into the baseline, which is used
in the negligible impact analysis. Here, NMFS has factored into its
negligible impact analysis the impacts of other past and ongoing
anthropogenic activities via their impacts on the baseline (e.g., as
reflected in the density/distribution and status of the species,
population size and growth rate, and other relevant stressors).
The preamble of NMFS' implementing regulations also addresses
cumulative effects from future, unrelated activities. Such effects are
not considered in making negligible impact determination under section
101(a)(5) of the MMPA. Rather, NMFS considers: (1) cumulative effects
that are reasonably foreseeable when preparing a National Environmental
Policy Act (NEPA) analysis, and (2) reasonably foreseeable cumulative
effects under section 7 of the ESA for ESA-listed species, as
appropriate. Accordingly, NMFS has adopted BOEM's Environmental Impact
Statement (EIS) and reviewed by NMFS as part of its inter-agency
coordination. This EIS addresses cumulative impacts related to the
Project and substantially similar activities in similar locations.
Cumulative impacts regarding the promulgation of the regulations and
issuance of a LOA for construction activities, such as those planned by
Ocean Wind, have been adequately addressed under NEPA in the adopted
EIS that supports NMFS' determination that this action has been
appropriately analyzed under NEPA. Separately, the cumulative effects
of the Project on ESA-listed species, including the North Atlantic
right whale, was analyzed under section 7 of the ESA when NMFS engaged
in formal inter-agency consultation with the NOAA Greater Atlantic
Regional Fisheries Office (GARFO). The Biological Opinion for the
Project determined that NMFS' promulgation of the rulemaking and
issuance of a LOA for construction activities associated with leasing,
individually and cumulatively, are likely to adversely affect, but not
jeopardize, listed marine mammals.
NMFS disagrees that the authorized take of 14 North Atlantic right
whales by Level B harassment incidental to the Project will have a non-
negligible impact on the species and notes that the commenter did not
provide additional scientific information for NMFS to consider to
support this claim. No take by injury, serious injury, or mortality is
authorized. NMFS emphasizes that the authorized incidental take is
limited to Level B harassment (i.e., behavioral disturbance). As
described in the proposed rule and this final rule (see Negligible
Impact Analysis and Determination section), NMFS has determined that
the Level B harassment of North Atlantic right will not result in
impacts to the population through effects on annual rates or
recruitment or survival. The project area occurs offshore of New
Jersey, which does not include habitat where North Atlantic right
whales are known to concentrate in foraging or reproductive behaviors.
The project area is a known migratory corridor. Hence, it is likely
that most of the authorized takes represent an exposure to a different
individual, which means that the behavioral impacts to North Atlantic
right whales are limited to behavioral disturbance occurring on 1 or 2
days within a year--
[[Page 62919]]
an amount that would not be expected to impact reproduction or
survival. Across all years, while it is possible an animal migrating
through could have been exposed during a previous year, the low amount
of take authorized during the 5-year period (n=14) of the rule makes
this scenario unlikely. Any disturbance to North Atlantic right whales
due to Ocean Wind's activities is expected to result in temporary
avoidance of the immediate area of construction but not abandonment of
its migratory path. Slight displacement (but not abandonment) of a
migratory pathway is unlikely to result in energetic consequences that
could affect reproduction or survival of any individuals. Other impacts
such as masking, TTS, and temporary communication and foraging
disruption may occur (again noting that North Atlantic right whales
concentrate foraging far north of the project area (e.g., southern New
England, Gulf of Maine, and Canada)); however, these impacts would also
be temporary and unlikely to lead to survival or reproduction impacts
of any individual, especially when the extensive suite of mitigation,
including numerous measures targeted specifically towards minimizing
impacts to North Atlantic right whales, are considered.
Comment 46: Commenters asserted that: (1) NMFS' reliance on the
160-dB (1 micropascal squared seconds (re 1 [micro]Pa\2\s)) threshold
for behavioral harassment is not supported by the best available
scientific information and grossly underestimates takes by Level B
harassment; and (2) the monitoring protocols prescribed for the
clearance zones are under-protective.
Response: Regarding the appropriateness of the 160-dB behavioral
harassment threshold, NMFS notes that the potential for behavioral
response to an anthropogenic source is highly variable and context-
specific and acknowledges the potential for Level B harassment at
exposures to received levels below 160 dB rms. Alternatively, NMFS
acknowledges the potential that not every animal exposed to received
levels above 160 dB rms will respond in ways constituting behavioral
harassment. There are a variety of studies indicating that contextual
variables play a very important role in response to anthropogenic
noise, and the severity of effects are not necessarily linear when
compared to a received level (RL). Several studies (e.g., Nowacek et
al., 2004; Kastelein et al., 2012 and 2015) showed there were
behavioral responses to sources below the 160-dB threshold, but also
acknowledged the importance of context in these responses. For example,
Nowacek et al. (2004) reported the behavior of five out of six North
Atlantic right whales was disrupted at RLs of only 133-148 dB re 1
[micro]Pa (returning to normal behavior within minutes) when exposed to
an alert signal. However, the authors also reported that none of the
whales responded to noise from transiting vessels or playbacks of ship
noise even though the RLs were at least as strong, and contained
similar frequencies, to those of the alert signal. The authors state
that a possible explanation for whales responding to the alert signal
and not responding to vessel noise is due to the whales having been
habituated to vessel noise, while the alert signal was a novel sound.
In addition, the authors noted differences between the characteristics
of the vessel noise and alert signal which may also have played a part
in the differences in responses to the two noise types. Therefore, it
was concluded that the signal itself, as opposed to the RL, was
responsible for the response. DeRuiter et al. (2012) also indicate that
variability of responses to acoustic stimuli depends not only on the
species receiving the sound and the sound source, but also on the
social, behavioral, or environmental contexts of exposure. Finally,
Gong et al. (2014) highlighted that behavioral responses depend on many
contextual factors, including range to source, RL above background
noise, novelty of the signal, and differences in behavioral state.
Similarly, Kastelein et al. (2015) examined behavioral responses of a
harbor porpoise to sonar signals in a quiet pool, but stated behavioral
responses of harbor porpoises at sea would vary with context such as
social situation, sound propagation, and background noise levels.
NMFS uses 160 dB (rms) as the exposure level for estimating Level B
harassment takes and is currently considered the best available
science, while acknowledging that the 160-dB rms step-function approach
is a simplistic approach. However, there appears to be 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
appropriately considered take, while others that are exposed to levels
above the threshold will not. Use of the 160-dB threshold allows for a
simplistic quantitative estimate of take, while we can qualitatively
address the variation in responses across different received levels in
our discussion and analysis.
Overall, we reiterate the lack of scientific consensus regarding
appropriate criteria. 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; Ellison et al., 2012; Southall et al., 2021).
There is currently no concurrence on these complex issues, and NMFS
followed its practice at the time of submission and review of this
application in assessing the likelihood of disruption of behavioral
patterns by using the 160-dB threshold. 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. We note that the seminal reviews
presented by Southall et al. (2007), Gomez et al. (2016), and Southall
et al. (2021) did not suggest any specific new criteria due to lack of
convergence in the data. NMFS is currently evaluating available
information towards development of updated guidance for assessing the
effects of anthropogenic sound on marine mammal behavior. However,
undertaking a process to derive defensible exposure-response
relationships is complex. A recent systematic review by Gomez et al.
(2016) was unable to derive criteria expressing these types of
exposure-response relationships based on currently available data.
NMFS acknowledges that there may be methods of assessing likely
behavioral responses to acoustic stimuli that better capture the
variation and context-dependency of those responses than the simple 160
dB step-function used here; there is no agreement on what that method
should be or how
[[Page 62920]]
more complicated methods may be implemented by applicants. NMFS is
committed to continuing its work in developing updated guidance with
regard to acoustic thresholds, but pending additional consideration and
process is reliant upon an established threshold that is reasonably
reflective of available science. We also note the commenters did not
provide additional information for NMFS to consider to support their
claim that the 160 dB behavioral harassment threshold is not the best
available scientific information.
Regarding the assertion that monitoring protocols prescribed for
the clearance and shutdown zones (called ``exclusion zones'' in the
comment letter) are under-protective, please refer to Comments 12, 14,
15, 16, and 18.
Comment 47: In general, a commenter expressed concern that noise
pollution from offshore wind activities would interfere with North
Atlantic right whale's social communication and prey detection. They
are concerned with the low-frequency noise from large vessels involved
in the construction activities overlapping North Atlantic right whale
communication.
Response: As discussed in the Negligible Impact Analysis and
Determination section (specifically the Auditory Masking or
Communication Impairment sections) of both the proposed and final rule,
the level of masking that could occur from Ocean Wind's activities will
have a negligible impact on marine mammals, including North Atlantic
right whales. 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 sound 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, as well as the stationary nature of a majority of the
activities, 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 during months where most of
Ocean Wind's activities would be occurring (May through November in
most cases), and relatively large area over which the vessels will
travel and where the activities will occur, we do not expect any
individual North Atlantic right whales to be exposed to potentially
masking levels from these surveys for more than a few days in a year.
Furthermore, as many of the activities are occurring in clusters and
specific areas rather than sporadically dispersed in the project area
(i.e., foundation installation all occurs in the same general area,
nearshore cable installation activities occur in relatively similar and
nearby areas), animals are likely to temporarily avoid these locations
during periods where activities are occurring but are expected to
return once activities have ceased.
As noted above, any masking effects of Ocean Wind's activities are
expected to be limited in duration, if present. For HRG surveys, given
the likelihood of significantly reduced received levels beyond short
distances from the transiting survey vessel, the short duration of
potential exposure, the lower likelihood of extensive additional
contributors to background noise offshore and within these short
exposure periods, and the fact that the frequency of HRG signals are
primarily above those used in social communication or for detection of
other important clues, we believe that the incremental addition of the
survey vessel is unlikely to result in more than minor and short-term
masking effects. Masking is not a concern for UXO/MEC detonations,
given the instantaneous nature of the signal. For pile driving, and
especially foundation installation, masking effects are more likely
given the larger zones and longer durations, and animals that approach
the source could experience temporary masking of some lower frequency
cues. However, any such effects would be localized to the areas around
these stationary activities, which means that whales transiting through
the area could adjust their transit away from the construction location
and return once the activity has completed. For the activity as a
whole, any masking that might potentially occur would be expected to
likely be incurred by the same animals predicted to be exposed above
the behavioral harassment threshold, and thereby accounted for in the
Level B harassment numbers. NMFS notes that the commenter did not
provide additional scientific information for NMFS to consider to
support its concern.
Comment 48: A commenter was concerned that limiting construction to
occur during summer and fall months (due to the seasonal moratorium for
foundation installation), construction activities would be concentrated
into months where other marine mammal species (i.e., dolphins and
whales) are using the region for foraging, birthing, nursing,
migrating, etc. A commenter recommended that NMFS fully account for the
consequences of any other proposed North Atlantic right whale seasonal
restriction on other protected species and evaluate alternative risk
reduction strategies that would protect multiple species.
Response: In order to promulgate a rulemaking under section
101(a)(5)(A) of the MMPA, NMFS must set forth, among other
requirements, means of effecting the least practicable adverse impact
on affected species or stock and its habitat. In the proposed rule and
in this final rule, NMFS has determined the mitigation measures will
effect the least practicable adverse impact on all of the affected
species or stocks and their habitat. NMFS acknowledges that the
seasonal restriction for impact pile driving is to effect the least
practicable adverse impact on North Atlantic right whales; however,
NMFS notes that this seasonal restriction provides additional
protections to many other large whale species that tend to concentrate
off of New Jersey during winter months. For example, humpback whales
are located in higher numbers nearshore in the project area from
October through February, with a clear offshore shift starting in March
(Roberts et al., 2023). Harbor porpoises, as another example, are also
likely to be more present when foundation installation and UXO/MEC
detonation would not be occurring. As described in this final rule,
there is no habitat of significance in the specified geographic region
other than the seasonal migratory BIA for North Atlantic right whales.
Comment 49: A commenter stated that some of the specified
activities will increase the number of vessels in the ocean in the
project area, which will lead to an increased threat of harm by vessel
strikes to marine mammals, specifically North Atlantic right whales.
Response: NMFS acknowledges that vessel strikes can result in
injury or mortality of marine mammals. We analyzed the potential for
vessel strike resulting from Ocean Wind's activities and determined
that based on the nature of the activity and the required mitigation
measures specific to vessel strike avoidance included in this
rulemaking, the potential for vessel strike is so low as to be
discountable. The required mitigation measures, all of which were
included in the proposed rulemaking and are now required in the final
regulations, include: a requirement that all vessel operators comply
with 10 kn (18.5 km/hour) or less speed restrictions in any SMA, 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 North Atlantic
[[Page 62921]]
right whale sighting locations; a requirement that all vessels,
regardless of size, 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 project vessels maintain a separation distance of 500 m or
greater from North Atlantic right whales; a requirement that, if
underway, vessels must steer a course away from any sighted North
Atlantic right whale at 10 kn or less until the 500-m minimum
separation distance has been established; a requirement that, if a
North Atlantic right 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; and, a requirement that all vessels
underway must maintain a minimum separation distance of 100 m or 50 m
from all other marine mammals (species-dependent and excluding North
Atlantic right whales), with an understanding that at times this may
not be possible (e.g., for animals that approach the vessel). Based on
these, we have determined that the vessel strike avoidance measures in
the rulemaking are sufficient to ensure the least practicable adverse
impact on species or stocks and their habitat.
Separately, NMFS notes that the commenter's comment appears to
conflate vessel strike risks and impacts to marine mammals due to noise
from construction vessels.
Comment 50: A commenter stated that the vessel strike avoidance
measures in the proposed rule are insufficient and clearly are directed
at vessels specifically engaging in the construction activities for the
applicant. They stated that the application never accounted for vessel
strikes from non-project-related vessels if North Atlantic right whales
are displaced outside of the project area.
Response: Under the MMPA, NMFS must prescribe regulations setting
forth other means of effecting the least practicable adverse impact of
the requestor's specified activities on species or stocks and its
habitat. NMFS cannot require non-project related vessels to implement
mitigation through this rulemaking. NMFS acknowledges that North
Atlantic right whales may temporarily avoid the area where the
specified activities occur. However, NMFS does not anticipate that
North Atlantic right whales will be permanently displaced or displaced
for extended periods, and the commenter does not provide evidence that
this effect should be a reasonably anticipated outcome of the specified
activity.
Furthermore, as described in the Biological Opinion issued by GARFO
on April 3, 2023, NMFS does not expect that ESA-listed whales would
experience a higher risk of vessel strike due to avoidance of pile
driving. Any whale that would be exposed to vibratory pile driving
noise from landfall activities (i.e., temporary cofferdams, temporary
goal posts) would already be located in the part of the Wind
Development Area with the heaviest amount of vessel traffic due to the
nearshore coastal transit routes used by vessels that would move north
and south along the coast and from vessels moving from port-to-port.
Similarly, if pile-driving noise causes the whale to move further
offshore, given the concentration of nearshore vessel activity, we
expect that the whale would actually experience lower levels of vessel
traffic. During impact pile driving we expect that any whales disturbed
would only need to shift their position between 1.72-3.35 km to avoid
pile-driving noise above the threshold for Level B harassment. This
temporary avoidance/displacement would still mean that the whale is far
from the heaviest vessel traffic routes, which are located
approximately 10 nautical miles (nmi; 18.5 km) away from the Lease
Area.
NMFS takes the risk of vessel strike seriously and has prescribed
measures sufficient to avoid the potential for vessel strike to the
extent practicable. NMFS has required these measures despite a very low
likelihood of vessel strike; vessels associated with the construction
activities will add a discountable amount of vessel traffic to the
specific geographic region and furthermore, vessels towing survey gear
travel at very slow speeds (e.g., roughly 4-5 kn (7.4-9.3 km/hour)) and
any vessels engaged in construction activities would be primarily
stationary during the pile-driving event.
Other
Comment 51: Commenters encouraged NMFS to issue LOAs on an annual
basis, rather than a single 5-year LOA, to allow for the continuous
incorporation of the best available scientific and commercial
information and to modify mitigation and monitoring measures as
necessary and in a timely manner. Commenters also stated that due to
the precarious nature of the North Atlantic right whale, this annual
approach is necessary to implement flexible protections.
Response: While NMFS understands the reasoning behind the
commenters' suggestion, we do not think this is necessary as: (1) the
final rule includes requirements for annual reports (in addition to
weekly and monthly requirements) to support frequent evaluation of the
activities and monitoring results; and (2) the final rule includes an
Adaptive Management provision that allows NMFS to make modifications
and adjustments to the measures found in the issued LOA if and when new
information that supports necessary modifications becomes available.
Because of this, NMFS will issue a single 5-year LOA and modify it, if
and when necessary, at any point during the lifetime of the
regulations.
Comment 52: The Commission recommended that NMFS rectify the
following omissions and errors in the final rule: (1) Section
217.260(c)(2) should also specify ``removal'' of cofferdams; (2)
Section 217.264(a)(4) omitted ``UXO/MEC detonations'' in the list of
specified activities; (3) The duration that PSOs must monitor the area
around each foundation pile (monopiles or pin piles) after pile driving
has stopped should be specified as 30 minutes in section 217.264(d)(4)
or (d)(5), as noted in the preamble to the proposed rule; (4) The terms
``small odontocetes'', ``delphinids and harbor porpoises'', and
``dolphins and porpoises'' were used interchangeably throughout the
various mitigation measures in section 217.264; and (5) The terms
``seals'' and ``pinnipeds'' were used interchangeably or omitted
altogether from the various mitigation measures in section 217.264.
Response: We appreciate the Commission's specific suggestions. We
have rectified the first three concerns described in the Commission's
list. We have not made adjustments with respect to the final two
suggestions as the intermixed use of ``seals'' versus ``pinnipeds'' and
``small odontocetes'', ``delphinids and harbor porpoises'', and
``dolphins and porpoises'' are clearly describing the species at hand.
Furthermore, this variation in language does not affect the clarity or
understanding of the final rule or its provisions.
Comment 53: A commenter recommended that NMFS deny and rescind all
ITAs for offshore wind construction, including this authorization to
Ocean Wind, until the Draft North Atlantic Right Whale and Offshore
Wind Strategy (Draft Strategy) is finalized. Referencing the low
Potential Biological Removal (PBR) for North Atlantic right whales, the
[[Page 62922]]
commenter also stated that all industrial full-scale construction for
offshore wind energy should be paused until the Federal agencies
determine how best to eliminate or avoid all impacts, Level A
harassment, and Level B harassment on the North Atlantic right whale.
Response: As identified by a commenter, in October 2022, NMFS and
BOEM released a draft joint strategy to protect and promote the
recovery of North Atlantic right whales while responsibly developing
offshore wind energy. The draft strategy identifies three main goals:
(1) mitigation and decision-support tools; (2) research and monitoring;
and (3) collaboration, communication and outreach. It focuses on
improving the body of science and integrating past, present and future
efforts related to North Atlantic right whales and offshore wind
development.
NMFS is required to authorize the requested incidental take if it
finds the total incidental take of small numbers of marine mammals by
U.S. citizens while engaging in a specified activity within a specified
geographic region during a five-year period (or less) will have a
negligible impact on such species or stock and where appropriate, will
not have an unmitigable adverse impact on the availability of such
species or stock for subsistence uses (16 U.S.C. 1371(a)(5)(A)). While
the incidental take authorization must be based on the best scientific
information available, the MMPA does not allow NMFS to delay issuance
of the requested authorization on the presumption that new information
will become available in the future. NMFS has made the required
findings, based on the best scientific information available and has
included mitigation measures to effect the least practicable adverse
impacts on North Atlantic right whales. Many of these mitigation
measures are found in the Draft Strategy, as appropriate, for
construction activities. While NMFS continues to work together with
BOEM towards the goals identified in the Strategy, finalizing the
Strategy (or similar efforts) or completing specific goals identified
in the strategy are not a prerequisite for the issuance of an ITA.
While NMFS agrees that the North Atlantic right whale population
abundance is alarmingly low (with entanglement in fishing gear and
vessel strikes being the leading causes of North Atlantic right whale
mortality), NMFS disagrees that the type of harassment authorized in
this rulemaking will have a non-negligible impact (i.e., adversely
affect the species through effects on annual rates of recruitment or
survival). NMFS emphasizes that no mortality, serious injury, or Level
A harassment is anticipated or authorized for North Atlantic right
whales from Ocean Wind's specified activities. Further, the impacts of
Level B harassment (i.e., behavioral disturbance) are expected to have
a negligible impact on the North Atlantic right whale population. The
magnitude of behavioral harassment authorized is very low and the
severity of any behavioral responses is 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 the Negligible Impact Analysis and Determination section
for our full analysis). No impacts to the reproductive success or
survival of any individual North Atlantic right whales are expected to
result from these disturbances and as such, no impacts to the
population are expected to result. In its comment, the commenter
conflates PBR level and Level B harassment and suggests that Level B
harassment can have population level impacts. The PBR level is defined
as the maximum number of animals, not including natural mortalities,
that may be removed from a stock while allowing that stock to reach or
maintain its optimum sustainable population (16 U.S.C. 1362(20)). Thus,
PBR is only germane in the discussion of ``removals'' of individual
North Atlantic right whales from the population and, therefore, PBR is
not applicable in this discussion since no impact to reproduction or
survival of any individuals is anticipated or authorized. Further, the
commenter did not suggest mitigation measures to eliminate and avoid
all impacts to North Atlantic right whales for NMFS to evaluate or
consider.
NMFS notes that BOEM is the lead agency permitting the construction
of offshore wind farms. NMFS' action authorizes take of marine mammals
incidental to BOEM's permitted action (i.e., offshore wind farm
construction). Hence, the commenter's request is more relevant to
BOEM's permitting authority. The commenter's comments regarding other
offshore wind construction activities are outside the scope of this
authorization.
Comment 54: A commenter questioned NMFS ability to consider an
application wherein the applicant has not finalized design plans at the
time of the proposed rule stage.
Response: NMFS acknowledges that at the time when the proposed rule
was published in the Federal Register, Ocean Wind had not yet finalized
its construction plan for the full buildout of permanent WTG and OSS
foundations. Hence, NMFS conservatively carried forward the buildout
scenario estimated to have the greater number of takes into the total
estimated take analysis and small numbers and negligible impact
determination. There is no requirement in the MMPA that all project
design plans must be finalized prior to NMFS evaluating an ITA request.
NMFS further notes that these large-scale construction projects require
flexibility throughout the permitting process as supply lines are
established, contractors are hired, and communications with other
Federal and state agencies occur. In its comment, the commenter implies
that the applicant had not ``disclosed the activity'' in its entirety,
which is not accurate. Ocean Wind presented an analysis for two
potential buildout scenarios assuming either a full monopile foundation
buildout or a dual monopile-jacket foundation buildout.
Comment 55: A commenter expressed concern for the accountability,
fairness, and transparency regarding how and who will determine which
vessel struck a North Atlantic right whale or any other marine mammal
species, if it occurs.
Response: NMFS directs the commenter to language found in both the
proposed and final rules regarding reporting in the event of a vessel
strike by one of Ocean Wind's project vessels. This reporting
requirement necessitates that the strike be reported to NMFS Office of
Protected Resources and GARFO within and no later than 24 hours from
the time of the strike occurred. In the event of a strike, all
construction activities are required to cease until NMFS Office of
Protected Resources is able to review the circumstances of the strike
and determine if any additional measures are necessary to ensure LOA
compliance. Ocean Wind must also provide a report including provisions
such as, but not limited to: the time, date, and location of the
strike; the species struck; the vessel speed at the time of the strike;
the vessels course and heading; what operations the vessel was engaged
in; information regarding what vessel strike reduction measures were in
effect to avoid a strike; information on the behavior of the animal
struck; the fate of the animal; as well as photographs and/or video, as
practicable. Given the precarious nature of the North Atlantic right
whale, as indicated in the commenter's comment, NMFS has also required
a suite of vessel strike avoidance measures that are described both in
other comments and within this final rule.
It is not clear what the commenter means by ``fairness'' in
determining how or which vessel struck a North Atlantic right whale or
other species if it occurs,
[[Page 62923]]
nor has the commenter provided specific suggestions for NMFS to
evaluate as means by which to conduct the actions they suggest. Ocean
Wind is the responsible party for activities specifically pertaining to
their action (i.e., the construction of the Project). Any strike would
be unlawful. In the unforeseen circumstance that a vessel strike does
occur, the relevant authorities (i.e., NMFS, BOEM, the Bureau of Safety
and Environmental Enforcement (BSEE)) will investigate and take
appropriate action.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
(87 FR 64868, October 26, 2022), NMFS has made changes, where
appropriate, that are reflected in the final regulatory text and
preamble text of this final rule. These changes are briefly identified
below, with more information included in the indicated sections of the
preamble to this final rule.
Changes in Information Provided in the Preamble
The information found in the preamble of the Proposed Rule was
based on the best available information at the time of publication.
Since publication of the Proposed Rule, new information has become
available, which has been incorporated into this final rule as
discussed below.
The following changes are reflected in the Description of Marine
Mammals in the Geographic Region section of the preamble to this final
rule:
Given the release of NMFS' final 2022 SARs (Hayes et al., 2023), we
have updated the population estimate for the North Atlantic right whale
(Eubalaena glacialis) from 368 to 338 and the total mortality/serious
injury (M/SI) amount from 8.1 to 31.2. This increase is due to the
inclusion of undetected annual M/SI in the total annual serious injury/
mortality.
Given the availability of new information, we have made updates to
the UME summaries for multiple species.
The following changes are reflected in the Estimated Take section
of the preamble to this final rule:
We have increased the amount of take authorized for humpback
whales, by Level A harassment, from 1 to 2 (based on a single group
size from the Atlantic Marine Assessment Program for Protected Species
(AMAPPS) dataset) and the amount of take authorized, by Level B
harassment, from 4 to 46, based on a recommendation by the Marine
Mammal Commission to consider a previous Ocean Wind monitoring report
(2021-2022) for activities offshore of New Jersey.
Based on a recommendation by the Marine Mammal Commission, NMFS has
allocated takes by Level B harassment to the coastal stock of
bottlenose dolphins (n = 94), which is 10 percent of the total takes
for the offshore stock of bottlenose dolphins from foundation
installation activities. This reduces the authorized take for the
offshore stock to 90 percent of its original proposed value (n = 842).
Based on Ocean Wind replacing three cofferdams with goal posts, the
take for several species (i.e., fin whales (Balaenoptera physalus),
minke whale (Balaenoptera acutorostrata), humpback whale (Megaptera
novaeangliae), both stocks of bottlenose dolphins (Tursiops truncatus),
common dolphins (Delphinus delphis), harbor porpoises (Phocoena
phocoena), gray seals (Halichoerus grypus), and harbor seals (Phoca
vitulina)) decreased slightly compared to what was originally proposed.
Based on a recommendation by the Marine Mammal Commission, we have
increased the amount of take by Level B harassment of common dolphins
and Atlantic white-sided dolphins (Lagenorhynchus acutus) from
vibratory pile installation and removal associated with cable landfall
construction from 10 to 30 and 5 to 12, respectively, based on a single
group size each from the AMAPPS dataset.
Based on a recommendation by the Marine Mammal Commission, we have
added additional take from UXO/MEC detonations, by Level A harassment,
for minke whales (n = 1) and both stocks of bottlenose dolphins (n = 11
per stock), assuming a single group size each using information
provided by Ocean Wind.
NMFS has corrected a mathematical error for sperm whales where the
value presented in Table 33 was incorrectly labeled as six rather than
nine during Year 2.
Changes in the Regulatory Text
We have made the following changes to the regulatory text, which
are reflected, as appropriate, throughout this final rule and
described, as appropriate, in the preamble.
For clarity and consistency, we revised two paragraphs in Sec.
217.260 Specified activity and specified geographical region of the
regulatory text to fully describe the specified activity and specified
geographical region.
In Sec. 217.261 Effective Dates, NMFS has changed the effective
date from August 1, 2023 through July 31, 2028 to October 13, 2023
through October 12, 2028. The associated SUMMARY and DATES sections of
this final rule reflect this change.
The following change is reflected in Sec. 217.262 Permissible
Methods of Taking: adding vibratory pile driving of goal post to the
list of permissible methods of taking by Level B harassment.
The following changes are reflected in the Description of the
Specified Activities section of the preamble to this final rule:
Ocean Wind has modified their vibratory pile driving activities
from vibratory pile driving seven temporary cofferdams to vibratory
pile driving four temporary cofferdams (Barnegat Bay landfall
locations) and three temporary goal posts (two at Island Beach State
Park, one at BL England). The modification from goal posts to
cofferdams at three nearshore locations neither changes the nature of
the specified activity (i.e., vibratory pile driving), nor the
potential impacts to marine mammals associated with the specified
activity. This modification reduces the total amount of vibratory
driving time to complete all cable landfall construction work (by
approximately 90 hours total (30 hours at each of three sites)).
The following changes are reflected in Sec. 217.264 Mitigation
Requirements and the associated Mitigation section of the preamble to
this final rule:
Based on a recommendation by a commenter, NMFS has added a
requirement that all project vessels must utilize AIS.
This final rule indicates that Ocean Wind is required to construct
the project as expeditiously as possible to avoid foundation
installation in December and that NMFS must approve foundation pile
driving in December in consideration of the data available should Ocean
Wind request to drive piles in December.
At the time of the proposed rule, NMFS had not approved nighttime
pile driving as Ocean Wind had yet to prove the efficacy of their
monitoring approaches during hours of darkness. However, given
additional information provided by Ocean Wind, these final regulations
allow Ocean Wind to initiate impact pile driving during hours of
darkness only from June 1 to October 31, annually, in accordance with
their Alternative Monitoring Plan (when approved, will be available on
NMFS' website at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility">https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility</a>).
[[Page 62924]]
NMFS has increased the size of the winter impact pile driving
clearance zones for large whales (2,500 m to 3,000 m) and harbor
porpoises (1,450 m to 1,750 m) and has removed the PAM clearance zone
and PAM shutdown zone for North Atlantic right whales and added a
single PAM monitoring zone (10 km) for all species (see Table 36) for
clarity and to be consistent with the regulatory text in the proposed
rule and in this final rule. Additionally, NMFS has clarified that the
shutdown and clearance zones in Table 36 apply to both visual and
auditory detections.
NMFS has added a requirement for a 10-m (32.8-ft) shutdown zone for
all other in-water activities that are not expected to cause take of
marine mammals (e.g., trenching, dredging), which may be monitored by
any individual on watch (approved PSO not specifically required).
NMFS has included mitigation and monitoring zones specific to the
different UXO/MEC charge weights, rather than a single zone size
assuming only the largest charge weight, as Orsted has since provided
evidence to NMFS that they can reliably identify UXO/MEC charge weights
in the field.
The following changes are reflected in Sec. 217.265 Monitoring and
Reporting Requirements and the associated Monitoring and Reporting
section of the preamble of this final rule:
We have updated the process for obtaining NMFS approval for PSO and
PAM Operators to be similar to requirements typically included for
seismic (e.g., airgun) surveys and have clarified education, training,
and experience necessary to obtain NMFS' approval.
Based on a recommendation by the Marine Mammal Commission, we have
added a requirement that the Lead PSO must have a minimum of 90 days of
at-sea experience and must have obtained this experience within the
last 18 months.
We have added a requirement to have at least three PSOs on pile
driving vessels rather than two PSOs, as was originally described in
the proposed rule.
Based on a recommendation by the Marine Mammal Commission, we have
added a requirement that increases the time that PAM data must be
reviewed prior to all UXO/MEC detonations from 1 to 24 hours (except in
emergency cases where the 24-hour delay before the detonation occurred
would create risk to human safety).
We have added a requirement for a double big bubble curtain placed
at a distance that would avoid damage to the nozzle holes during all
UXO/MEC detonations.
Based on a recommendation by the Marine Mammal Commission, we have
added a requirement that a pressure transducer must be used during all
UXO/MEC detonations.
We have added a requirement stating that Ocean Wind must use at
least one additional noise attenuation system (NAS) in addition to a
single bubble curtain and other devices for noise attenuation.
We have added requirements that SFV must be conducted on every pile
until measured noise levels are at or below the modeled noise levels,
assuming 10 dB, for at least three consecutive monopiles and for each
UXO/MEC detonation.
We have added a requirement that Ocean Wind must deploy at least
eight hydrophones at four locations (one bottom and one mid-water
column at each location) along an azimuth that is likely to see lowest
propagation loss and two hydrophones (one bottom and one mid-water) at
750 m, 90 degrees from the primary azimuth during installation of all
piles where SFV monitoring is required and equivalent requirements
during all UXO/MEC detonations.
NMFS has changed the submission date from 90 to 180 days prior to
the start of pile driving or UXO/MEC detonation commencement for the
Pile Driving and UXO/MEC Marine Mammal Monitoring Plan and the PAM Plan
(noting the Vessel Strike Avoidance and Vibratory Pile Driving Plans
retain the 90-day requirement as these activities are very nearshore).
We have removed the requirements for reviewing data on an annual
and biennial basis for adaptive management and instead will make
adaptive management decisions as new information warrants it.
Description of Marine Mammals in the Specific Geographic Region
As noted in the Changes From the Proposed to Final Rule section,
since the publication of the proposed rule (87 FR 64868, October 26,
2022), updates have been made to the abundance estimate for North
Atlantic right whales and the UME summaries of multiple species. These
changes are described in detail in the sections below. Otherwise, the
Description of Marine Mammals in the Geographic Area section has not
changed since the publication of the proposed rule in the Federal
Register (87 FR 64868, October 26, 2022).
Several marine mammal species occur within the specific geographic
region. Sections 3 and 4 of Ocean Wind's ITA application summarize
available information regarding status and trends, distribution and
habitat preferences, and behavior and life history of the potentially
affected species (Ocean Wind, 2022b). NMFS fully considered all of this
information, and we refer the reader to these descriptions in the
application, incorporated here by reference, instead of reprinting the
information. Additional information regarding population trends and
threats may be found in NMFS' SARs (<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>) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which take is authorized
under this final rule and summarizes information related to the species
or stock, including regulatory status under the MMPA and Endangered
Species Act (ESA) and potential biological removal (PBR), where known.
PBR is defined as the maximum number of animals, not including natural
mortalities, that may be removed from a marine mammal stock while
allowing that stock to reach or maintain its optimum sustainable
population (as described in NMFS' SARs; (16 U.S.C. 1362(20))). While no
mortality is anticipated or authorized here, PBR and annual serious
injury and mortality from anthropogenic sources are included here as
gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in
Table 2 are the most recent available data at the time of publication
which can be found in NMFS' 2022 final SARs (Hayes et al., 2023),
available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>.
[[Page 62925]]
Table 2--Marine Mammal Species \e\ That May Occur in the Project Area and Be Taken, by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\a\ abundance survey) \b\ SI \c\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western Atlantic....... E, D, Y 338 (0; 332; 2020) \f\ 0.7 \f\ 31.2
Family Balaenopteridae (rorquals):
Blue whale...................... Balaenoptera musculus.. Western North Atlantic. E, D, Y UNK (UNK; 402; 1980- 0.8 0
2008).
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24; 5,573; 11 1.8
2016).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, N 1,396 (0; 1,380; 2016) 22 12.15
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Coastal. 2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Family Delphinidae:
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 39,921 (0.27; 32,032; 320 0
2016).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71; 54,433; 544 27
2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic-- -, -, N 62,851 (0.23; 51,914; 519 28
Offshore. 2016).
Northern Migratory -, -, Y 6,639 (0.41; 4,759; 48 12.2-21.5
Coastal. 2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 172,974 (0.21; 1,452 390
145,216; 2016).
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.30; 30,627; 306 9
2016).
Short-finned pilot whale........ Globicephala Western North Atlantic. -, -, N 28,924 (0.24, 23,637, 236 136
macrorhynchus. 2016).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 35,215 (0.19; 30,051; 301 34
2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31; 74,034; 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \d\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,300 (0.22; 22,785; 1,458 4,453
2016).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08; 57,637; 1,729 339
[…truncated; see source link]Indexed from Federal Register on September 13, 2023.
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