Rule2023-22056
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Revolution Wind Offshore Wind Farm Project Offshore Rhode Island
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
October 20, 2023
Effective
November 20, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS promulgates regulations to govern the incidental taking of marine mammals incidental to Revolution Wind, LLC's (Revolution Wind), a subsidiary wholly owned by Orsted Wind Power North America, LLC (Orsted), construction of the Revolution Wind Offshore Wind Energy Project (hereafter known as the "Project") in Federal and State waters offshore Rhode Island, 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-0486 (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 (November 20, 2023 through November 19, 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 202 (Friday, October 20, 2023)]
[Rules and Regulations]
[Pages 72562-72673]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-22056]
[[Page 72561]]
Vol. 88
Friday,
No. 202
October 20, 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 Revolution Wind Offshore Wind Farm
Project Offshore Rhode Island; Final Rule
Federal Register / Vol. 88 , No. 202 / Friday, October 20, 2023 /
Rules and Regulations
[[Page 72562]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
RIN 0648-BL52
[Docket No. 230928-0235]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Revolution Wind Offshore Wind
Farm Project Offshore Rhode Island
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 Revolution Wind, LLC's (Revolution Wind),
a subsidiary wholly owned by Orsted Wind Power North America, LLC
(Orsted), construction of the Revolution Wind Offshore Wind Energy
Project (hereafter known as the ``Project'') in Federal and State
waters offshore Rhode Island, 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-0486 (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 (November 20, 2023 through November
19, 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 November 20,
2023 through November 19, 2028.
FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Revolution Wind's Incidental Take Authorization (ITA)
application and 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 Revolution Wind
to incidentally take individuals of 16 species of marine mammals,
comprising 16 stocks (10 stocks by Level A harassment and Level B
harassment and 6 stocks by Level B harassment), incidental to
Revolution 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 Revolution 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
[[Page 72563]]
the highest presence of North Atlantic right whales (Eubalaena
glacialis) in the Lease Area (December 1-April 30, annually), unless
prior approval from NMFS for pile driving in December;
<bullet> A requirement for unexploded ordnance or munitions and
explosives of concern (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 (PAM) to occur by trained, NOAA Fisheries-approved Protected
Species Observers (PSOs) and PAM operators (where required) before,
during, and after select activities;
<bullet> A requirement for training for all Revolution 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; 50
CFR 216.106(g)).
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)).
Revolution 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/revolution-wind-farm-project">https://www.permits.performance.gov/permitting-projects/revolution-wind-farm-project</a>.
Summary of Request
On October 8, 2021, Revolution 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 16 marine mammal
species (comprising 16 stocks) by Level B harassment (all 16 stocks)
and by Level A harassment (10 species or stocks). Revolution 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 Revolution Wind and NMFS, Revolution Wind
submitted a final version of the revised application on February 23,
2022. NMFS deemed it adequate and complete on February 28, 2022. This
final application is available on NMFS' website at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy">https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy</a>.
On March 21, 2022, NMFS published a notice of receipt (NOR) of
Revolution Wind's adequate and complete application in the Federal
Register (87 FR 15942), requesting public comments and information on
Revolution 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: Oceana and the Rhode
Island Saltwater Anglers Association (RISSA).
On December 23, 2022, NMFS published the proposed rule for the
Revolution Wind Project in the Federal Register (87 FR 79072). In the
proposed rule, NMFS synthesized all of the information provided by
Revolution 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="https://www.regulations.gov">https://www.regulations.gov</a>
starting on December 23, 2022 and closed after February 6, 2023.
Specific details on the public comments received during this 45-day
period are described in the Comments and Responses section.
NMFS has previously issued four Incidental Harassment
Authorizations (IHAs) to Orsted, Revolution Wind's
[[Page 72564]]
parent company, for high resolution geophysical marine site
characterization surveys of Revolution Wind's BOEM Lease Area OCS-A
0486, two other BOEM lease areas (OCS-A 0487, OCS-A 0500), and along
potential export cable routes (see 84 FR 52464, October 2, 2019; 85 FR
63508, October 8, 2020; 87 FR 13975, March 11, 2022; and 87 FR 61575,
October 12, 2022). To date, Orsted has complied with all IHA
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 Revolution
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
Revolution Wind plans to construct and operate the Project, a 704
megawatt (MW) offshore wind farm in the Project Area. The Project will
allow the states of Rhode Island and Connecticut to meet their
renewable energy goals. The Project, which includes the Revolution Wind
Farm (RWF) and Revolution Wind Export Cable corridor (RWEC), will
consist of several different types of permanent offshore
infrastructure, including wind turbine generators (WTGs; e.g., Siemens
Gamesa 11 megawatt (MW)) and associated foundations, offshore
substations (OSS), offshore substation array cables, offshore export
cables, and substation interconnector cables. Overall, Revolution Wind
will conduct the following specified activities: install 79 WTGs and 2
OSS on monopile foundations via impact pile driving; install and
subsequently remove cofferdams to assist in the installation of the
export cable route by vibratory pile driving, or installation of a
casing pipe by pneumatic hammering and goal posts 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 13 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 at Quonset Point in North Kingstown, Rhode
Island. 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 published notice of the
proposed rule (87 FR 79072, December 23, 2022).
Dates and Duration
Revolution Wind anticipates its specified activities will occur
throughout all 5 years of the regulations, beginning on November 20,
2023 and continuing through November 19, 2028. Revolution Wind
anticipates the following construction schedule over the 5 year period
(Table 1). Revolution 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.
BILLING CODE 3510-22-P
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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 79072, December 23, 2022). Since the proposed rule was published, no
changes have been made to the Specified Geographic Region. Generally,
Revolution Wind's specified activities (i.e., impact pile driving of
WTGs and OSS monopile foundations; vibratory pile driving (installation
and removal) of temporary cofferdams, or pneumatic hammering of casing
pipes and vibratory pile driving of goal posts; placement of scour
protection; trenching, laying, and burial activities associated with
the installation of the RWEC and inter-array cables; HRG site
characterization surveys; UXO/MEC detonation; and WTG operation) are
concentrated in the Project Area. Vessel transit from ports in Maryland
and Virginia could also occur; therefore, vessel use could occur in the
Mid-Atlantic Bight.
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[GRAPHIC] [TIFF OMITTED] TR20OC23.001
BILLING CODE 3510-22-C
Comments and Responses
A notice of proposed rulemaking was published in the Federal
Register on December 23, 2022 (87 FR 79072) and a 15-day extension to
the public comment period was published on January 19, 2023 (88 FR
3375). The proposed rulemaking described, in detail, Revolution 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 Revolution 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.
NMFS received 404 comment submissions, including from the Marine
Mammal Commission (Commission), several private organizations, and 396
from private citizens. Most of these comments were out-of-scope or not
applicable to this specific action and location (e.g., specific
opposition to offshore wind development offshore of New Jersey; general
opposition to or support of offshore wind projects;
[[Page 72567]]
concerns for other species outside NMFS' jurisdiction (i.e., birds)),
and are not described herein or discussed further. Four comment letters
were from environmental non-governmental organizations, including one
from the Responsible Offshore Development Alliance (RODA), one from
Oceana, Inc. (Oceana), and two from the Natural Resources Defense
Council (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
January 19, 2023 (88 FR 3375)). We also received one comment letter
from a public organization, the Conservation Law Foundation (CLF).
These six 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. In addition, we received comment
letters from Salty Enterprises, the Washington Dungeness Crab
Association, and a group of Rhode Island fishermen. The 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.
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 Revolution 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 meters (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 Revolution Wind
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 the time-domain finite difference
pile-driving source model (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 microPascal (1[mu]Pa)) from the 7.8-m pile
installed with a double big bubble curtain to be 3,891 m (12,765.75
feet (ft)) when using a hammer operating at a maximum of 550 kilojoules
(kJ) (WaterProof, 2020). JASCO's model prediction for 7/12-m tapered
piles using a 4,000 kJ hammer is 3,833 m (12,575 ft). The Commission
states that, based on the CVOW reported sound levels, it is unrealistic
that an impact hammer with seven times more energy intensity would
result in a smaller harassment zone. 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 Revolution Wind
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 tapered piles (8/10-m or 7/9.5-m) 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 for the
South Fork project 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 Level B harassment threshold during installation of
Revolution Wind monopiles will be approximately 3.8 km in summer, which
is slightly greater than the loudest pile installed during the South
Fork Wind results. We note that 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 Revolution Wind's measured sound
levels do not exceed those modeled, assuming 10 dB, for at least three
consecutively measured monopiles. Based on all these
[[Page 72568]]
reasons, NMFS is not requiring Revolution 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, comparisons between the modeled and measured
results are not as directly applicable as the South Fork Wind results
due to assumptions in the model and operations Therefore, the Vineyard
Wind data are less useful in judging predicted alignment between
modeled and measured zones for the Revolution Wind project.
Based on this discussion and given our consideration of the best
available scientific information, including available interim sound
field verification (SFV) reports from other offshore wind construction
projects in the United States, 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 one 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
monopiles, 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 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 1.
Comment 3: The Commission recommended that NMFS authorize Level A
harassment (permanent threshold shift (PTS)) takes for fin whales,
humpback whales, minke whales, common dolphins, bottlenose dolphins,
and Atlantic white-sided dolphins during UXO/MEC detonations and
increase to group size, if needed, in the final rule.
Response: NMFS concurs with the Commission's general recommendation
and notes that the Commission did not provide specific Level A
harassment (PTS) take numbers NMFS should authorize in the final rule.
As described in the proposed rule, take by Level A harassment is
considered less likely given the required shutdown zones and the
instantaneous duration of the detonation, however, NMFS acknowledges
the large mitigation and monitoring zone size (particularly for heavier
charge weight UXOs/MECs) required for this activity, the cryptic nature
of some marine mammal species (e.g., minke whales, dolphin spp.), and
that the authorized take numbers do not fully account for the
effectiveness of the required mitigation measures other than the 10 dB
noise attenuation incorporated in acoustic and exposure modeling.
Therefore, NMFS is conservatively authorizing the number of model-
estimated takes by Level A harassment (PTS) (increased to group size
when the modeled exposures were less than a single group size)
incidental to UXO/MEC detonations that were included in the exposure
estimate table (Table 23) in the proposed rule: 2 fin whales (modeled
exposures = 1.2), 2 humpback whales (modeled exposure = 0.9), 8 minke
whales (modeled exposures = 7.7), 35 common dolphins (modeled exposure
= 0.4), 8 bottlenose dolphins (Western North Atlantic offshore stock)
(modeled exposure = 0.1), and 28 Atlantic white-sided dolphins (modeled
exposure = 0.1). Consistent with this rationale, NMFS is also
authorizing Level A harassment (PTS) of two sei whales (modeled
exposure = 0.5) based on the result of exposure modeling rounded to
group size.
Comment 4: The Commission recommended that NMFS revise its take
estimates for impact installation of monopiles based on the possibility
that only a single monopile is installed per day over 79 days rather
than three per day over 26 days.
Response: The Commission asserted that JASCO should have conducted
single-day simulations adjusted by the respective density and
multiplied by the number of days of each activity (29 days of the
highest mean density month). Further, as addressed in Comment 2, the
Commission suggested that single-day simulations run 30 or 50 times per
activity, species, and season are more consistent with other entities'
methods for conducting exposure modeling and would reduce the variance
and standard error in the predictions as compared to single seven-day
simulations. Regarding density seeding, the Commission did not provide
a justification for the claim that JASCO's assumptions used to seed its
exposure modeling were inappropriate. Additionally, the Commission did
not provide references for the other ``entities'' that have conducted
exposure modeling using single-day simulations, so we are unable to
make direct comparisons. We can, however, further explain and address
the use of seven-day simulations. JASCO ran JASCO's Animal Simulation
Model Including Noise Exposure (JASMINE) simulations for seven days,
assuming piling every day. Separate simulations were run for each
scenario (e.g., pile diameter/number of piles per day/season
combination). The average number of exposures for a 24-hour window for
the scenario in question was then multiplied by the number of days
planned for that scenario. For example, if the scenario includes
installation of three 7/15-m WTG monopiles per day in the summer, JASCO
ran the simulation for 7 days, resetting exposures each day. If the
daily counts were 20, 19, 21, 20, 19, 22, and 20 the average number of
exposures per day would be 20.14. If Revolution Wind plans to install
that particular configuration for 5 days, the exposure estimate would
be 20.14 x 5 = 100.71.
JASCO conducted 7-day simulations because there is some variation
in the exposure estimates due to the statistical nature of the exposure
model and the approach captures installation conditions in multiple
possible pile locations across the wind farm area. Modeling every pile
location in the area
[[Page 72569]]
is not practicable due to computational limitations. For sequential
piling simulations, where more than one pile is installed per day, the
sound fields may overlap but are temporally separated. Whether or not a
particular animat is exposed to sound from installation of one or the
other, both, or all piles is dependent on the spacing of the locations
and the swimming behaviors of the animats. JASCO modeled all other
scenarios (e.g., one pile per day, 7/12-m monopile, summer) completely
separately and multiplied the resulting average number of exposures per
day for a given scenario by the number of days Revolution Wind plans to
conduct the scenario.
The Commission cited an assumption in the take estimate methodology
for installation of monopiles 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 estimation model and
methodology to produce the maximum take that could occur incidental to
the specified activity.
While Revolution Wind acknowledged that it may not install three
piles every day, it indicated it is capable of installing up to three
piles per day with the goal is to complete installation as quickly as
possible. Hence, to assume only one monopile per day everyday (as
recommended by the Commission) would not be consistent with what
Revolution Wind, a company with offshore wind farm installation
experience, indicated is possible or is planned.
The exposure estimates contained within the proposed rule are a
product of modeling that assumes three piles are driven per day. This
assumption is most influential when estimating the number of Level B
harassment exposures but provides minimal influence over the number of
Level A harassment exposures modeled. There are several conservative
assumptions that offset the potential to underestimate take should
Revolution Wind not be able to install three piles per day every day,
including, but not limited to, all piles are installed during 29 days
of the highest density month for each species from May-December. This
is conservative because 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 in which marine mammal species'
densities are lower. For example, for North Atlantic right whales,
December is the highest density month (from May-December); this maximum
density value was thus conservatively incorporated in take estimation
even though NMFS added a requirement in the final rule that Revolution
Wind must not plan to impact pile drive monopiles during December,
unless NMFS gives approval due to unforeseen circumstances. Further,
for some species, group size or PSO data adjustments were made that
increased the amount of take authorized compared to the modeled
exposure estimates. In addition, the modeled exposure estimates on
which the amount of take authorized is based for some species (versus
group size or PSO data adjustments) 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).
NMFS has retained the exposure estimate methodology from the
proposed rule despite the potential for less pile driving per day
(equating to more days of pile driving) for the reasons provided above.
In some cases, as described in this final rule, we have increased the
amount of take authorized from that proposed for some species (e.g.,
increased Level A harassment for marine mammals with modeled Level A
harassment exposures) (see Comments 3, 5, and 6). Furthermore, as
described above, there are numerous other conservative assumptions in
the model such that, when considered together, support NMFS assessment
that the number of take authorized represents the number of take
expected to occur incidental to the impact installation of monopiles.
For these reasons, NMFS disagrees with the Commission's assessment
that the number of take is underestimated for monopile installation and
has not adjusted take based on the possibility that only a single
monopile is installed per day.
Comment 5: The Commission recommended that NMFS should authorize
the model-estimated Level A harassment takes of fin whales, minke
whales, sei whales, harbor porpoises, gray seals, and harbor seals
during impact installation of monopiles.
Response: NMFS agrees with the Commission that some Level A take of
the species referenced may occur; however, NMFS disagrees that the full
number of modeled Level A exposures should equate to the number of take
authorized for all species. The exposure modeling resulted in the
following estimated number of Level A harassment (PTS) exposures
incidental to impact installation of monopiles: 7 humpback whales, 7
fin whales, 3 sei whales, 61 minke whales, 321 harbor porpoises, 5 gray
seals, and 32 harbor seals. Revolution Wind requested and NMFS proposed
to authorize in the proposed rule 7 Level A harassment (PTS) takes of
humpback whales because the size of the large whale shutdown zone
(summer 2.3 km; winter 4.4 km) is smaller than the distance to the PTS
Level A harassment isopleth (summer 2.66 km; winter 6.29 km) for this
species. NMFS did not propose Level A harassment of other marine
mammals because Revolution Wind did not request it and in consideration
of mitigation measures, such as a prescribed shutdown zone that is
larger than the 95 percent exposure range (ER<INF>95</INF><not-eq>)
Level A harassment (PTS) zone for all species except, as noted,
humpback whales. While NMFS carried this analysis forward in the
proposed rule, in making the final decision to authorize Level A
harassment of the additional species indicated above, NMFS considered
the impracticality of implementing shutdown measures under certain pile
installation circumstances (i.e., pile instability or pile refusal) for
safety concerns, and the cryptic nature of minke whales, harbor
porpoises, gray seals, and harbor seals (particularly in higher sea
states or reduced visibility conditions). Although the combination of
visual and acoustic monitoring is designed to reliably detect marine
mammals such that effective mitigation can be implemented, NMFS
acknowledges PTS may not be entirely avoidable.
Density-based exposure modeling results indicate there is potential
for 7 fin whale, 3 sei whale, 61 minke whale, 321 harbor porpoise, 32
harbor seal, and 5 gray seal PTS exposures. These numbers represent the
potential for PTS absent consideration of any mitigation or natural
aversion that would prevent them from approaching at the closer
distances associated with PTS and are based on the assumption that all
piles would be driven in the highest density month (May through
December) for any given species. Hence, based on modeling assumptions
alone, these values can be considered a conservative.
[[Page 72570]]
As described above, in the proposed rule, based on Revolution Wind's
request, we considered the potential for shutdown measures to alleviate
potential for PTS except for humpback whales. In consideration of the
Commission's comment, we re-evaluated the potential for marine mammals
of the aforementioned species to remain undetected and remain close
enough and for long enough duration to accumulate energy levels
necessary to elicit PTS. NMFS has determined that where PTS density-
based exposure estimates are very low (i.e., three sei whales, five
gray seals), exposures could occur. However, where exposure estimates
are higher, it would be overly conservative to assume that all
exposures would occur given the required mitigation and monitoring
measures, natural avoidance responses, and that piles will be installed
during lower density months. Therefore, NMFS is authorizing Level A
harassment to sei and gray seals equal to the exposure estimates (three
sei whale, five gray seal). However, for other species, in order to
appropriately consider the likelihood of aversion in the closer
vicinity of the source and the likely effectiveness of the mitigation
measures, we estimate that 20 percent of the calculated exposure
estimates could occur (rounded to the nearest whole number), which is
equal to 2 fin whale exposures, 13 minke whale exposures, 65 harbor
porpoise exposures, and 7 harbor seal exposures. This adjustment is
consistent with the adjustment used in the Gulf of Mexico incidental
take regulations (86 FR 5354, January 19, 2021), which was informed by
the associated relative risk assessment framework developed by an
expert working group to support the analyses and findings in those
regulations. The risk assessment framework referenced Ellison et al.
(2016), in which modeled scenarios using animal movement models were
used to evaluate predicted PTS in which no aversion was assumed
relative to scenarios where reasonable assumptions were made about
aversion, in line with historical response probability assumptions and
that existing scientific literature suggest are appropriate. Scenarios
where no aversion probability was used overestimated the potential for
high levels of exposure required for PTS by about five times.
Accordingly, total modeled injurious exposures calculated without
accounting for behavioral aversion were multiplied by 0.2 as part of
the Expert Working Group (EWG) risk analysis for the Gulf of Mexico,
and we have determined that this adjustment is similarly appropriate
for this analysis.
Comment 6: The Commission recommended that NMFS include in the
final rule a small number of Level A harassment takes of harbor
porpoises incidental to cable landfall construction, specifically
installation and removal of casing pipes.
Response: NMFS concurs with the Commission's general recommendation
and notes the Commission did not recommend a number of takes by Level A
harassment. NMFS has added a small number of Level A harassment takes
of harbor porpoises during pneumatic hammering installation and removal
of casing pipes should this landfall construction activity occur
(rather than installation of a cofferdam). Since publication of the
proposed rule, Revolution Wind determined that it will be impracticable
to monitor a 4-km shutdown zone. Based on NOAA shipboard observations
of harbor porpoises used in habitat-based density modeling conducted by
Roberts et al. (2016, 2023), the detection probability for harbor
porpoises drops off substantially in the 750-1,000 m range when sea
states are a Beaufort Sea State of 2 or less. Therefore, Revolution
concluded that 750 m is the maximum practicable extent within which
they could effectively monitor for harbor porpoise during casing pipe
installation and removal. NMFS has adjusted the shutdown zone in this
final rule to 750 m. Given this new information, similar to our
approach to responding to Comments 3 and 5, we reconsidered the
available information on this species' habitat distribution, the
distance to the Level A harassment threshold, and the potential for
harbor porpoise, a small, fast moving species that can be difficult to
see, to be exposed to sound energy levels necessary to induce PTS. As
described in the proposed rule, modeling results estimate that a harbor
porpoise would have to remain at approximately 4 km for 3 hours of
hammering per day to experience PTS (or some lesser duration if the
animal approaches closer). Harbor porpoises are one of the few marine
mammals known to occur regularly in Narragansett Bay (e.g., Kenney and
Vigness-Raposa, 2010) and are most frequently observed in winter and
spring during which casing pipe installation and removal would occur
(Q4 2023-Q1 2024). The potential temporal and spatial overlap of harbor
porpoise occurrence with the PTS Level A harassment acoustic footprint
resulting from pneumatic hammering, the size of the PTS Level A
harassment zone (3,950 m), and the cryptic nature of harbor porpoises
(particularly at a distance) support authorization of Level A
harassment. Revolution Wind expects that it will require 8 days of
pneumatic hammering to install the casing pipes. Because Revolution
Wind has not specified exactly which 8 days in Q4 2023-Q1 2024 casing
pipe installation would occur, it is possible that they would complete
this activity in December or January, when harbor porpoise densities
near the landfall construction site are an order of magnitude higher
than in the other months in which the species consistently utilizes
habitat in/near Narragansett Bay (March-May), and the potential for
acoustic impacts from pneumatic hammering is highest. Given that there
are no modeled results for takes by Level A harassment, NMFS
conservatively assumes that one group (group size = 2.7 rounded to 3;
Kraus et al., 2016) may be taken by Level A harassment per day of
pneumatic hammering (n=8). Therefore, NMFS is authorizing 24 takes by
Level A harassment zone of harbor porpoises incidental to casing pipe
installation.
Comment 7: The Commission is concerned the number of take of common
dolphin proposed to be authorized (3,913 common dolphins across all
activities) is an underestimate considering the size of the Level B
harassment zones, the potential number of days of activities, and the
known presence of delphinids in the area, and recommended that NMFS
ensure that the number of Level B harassment takes of common dolphins
is sufficient for impact driving of monopiles or other activities
(landfall construction, HRG surveys, and UXO/MEC detonations) and
increase the total number, as necessary, for the final rule. The
Commission notes that other wind-energy operators have had to revise
their HRG survey incidental harassment authorization mid-authorization
and in some cases, twice when the authorized number of takes had been
met (e.g., 86 FR 13695, March 10, 2021), thus, there is the potential
for this to occur for Revolution Wind given the frequency of common
dolphin occurrence in the Project Area. The Commission notes 4,644
common dolphins were observed in the lease areas during combined HRG
surveys (i.e., site assessment surveys) for Revolution Wind and two
other wind projects from September 2019 to September 2020 (Smultea
Environmental Sciences, LLC, 2020).
Response: NMFS acknowledges the importance of accurate take
estimates. NMFS notes that the IHA referenced by the Commission that
required multiple revisions to increase the authorized take numbers for
delphinids, including
[[Page 72571]]
common dolphins, was associated with HRG surveys occurring off the
coast of Virginia and therefore, is not representative of occurrence
patterns in the Project Area. Regarding the cited monitoring results
from Smultea Environmental Sciences, LLC (Smultea) (2020) from Orsted
Wind Power, LLC's HRG surveys (84 FR 52464, October 2, 2019), NMFS also
notes that this survey covered 103,186 km while Revolution Wind only
plans to survey 29 percent of that distance (30,345 km). However, the
common dolphin sighting data in the Smultea (2020) monitoring report
can inform estimates of take within the Project Area, given that the
area surveyed included the Revolution Wind and surrounding leases.
Importantly, the common dolphin take numbers Revolution Wind
requested and NMFS proposed for authorization were based on the best
scientific information available and a conservative methodology,
including that the number of takes was the largest estimate among
multiple take estimation methods (i.e., modeled density-based
exposures, PSO data-derived estimates, and published group size value)
and the data used to estimate take incidental to cofferdam installation
were collected outside Narragansett Bay, where common dolphin occur
more frequently.
NMFS disagrees that authorization of additional take of common
dolphins incidental for landfall construction activities and WTG
foundation installation is warranted. While common dolphins are known
to occur near the landfall construction location in Narragansett Bay,
the frequency of occurrence is expected to be significantly less than
that in open water; thus, the number of takes is conservative as it is
based on oceanic PSO data. In addition, common dolphins are rarely
sighted in Narragansett Bay in the winter months (Kenney and Vigness-
Raposa, 2010) when cable landfall construction will take place. The
proposed common dolphin density-based Level B harassment take estimate
for impact foundation installation incorporated the maximum monthly
average density, which occurs in December. However, the final rule
specifies that Revolution Wind must not plan to install foundations in
December and may only do so with NMFS-explicit approval. Thus the take
estimate for landfall construction activities is conservative.
NMFS agrees with the Commission's recommendation to increase the
number of Level B harassment take of common dolphins incidental to UXO/
MEC detonation given the prevalence of the species in southern New
England; however, the Commission did not provide any suggested number
of takes NMFS should authorize and, as described previously, based
their recommendation partially on PSO sighting data that include
observations of common dolphins over a much larger spatial scale than
the Project Area. While there is no new information to consider,
similar to our approach to responding to Comments 3, 5 and 6, we
reconsidered the available information on this species' monthly
densities, which NMFS considers the best available science for this
purpose, and the currently unpredictable timing of UXO/MEC detonations.
Given the timing of UXO/MEC detonations is unknown, it's equally
possible that detonations could occur when common dolphin densities are
highest or lowest in the Project Area, although take estimation did
conservatively incorporate the maximum average monthly common dolphin
density from May-December in the Lease Area (November) and export cable
route (September). In addition, Revolution Wind assumed six and seven
detonations would occur in the export cable corridor and Lease Area,
respectively. However, it is possible that more than the estimated
number of UXO/MECs could be located and detonated in either area. The
maximum average monthly density used to estimate take in the export
cable corridor (0.0389 individuals/km\2\) is approximately half of the
Lease Area maximum average monthly density. (0.0762 individuals/km\2\).
Thus, should more than seven detonations (if required) occur in the
Lease Area, the estimated Level B harassment take incidental to UXO/MEC
detonation could be underestimated. Based on these factors, NMFS
assumed that one group (group size = 34.9, rounded to 35) could be
taken by Level B harassment incidental to approximately half (n=7) of
all UXO/MEC detonations, and is, therefore, authorizing a total of 632
common dolphin Level B harassment takes due to UXO/MEC detonations; a
change from the proposed rule of 211 as the corrected number of Level B
harassment takes of common dolphin which Revolution Wind requested was
387 and the addition of 245 takes by Level B harassment as a result of
a comment from the Commission.
Please note that Revolution Wind is required to implement the As
Low as Reasonably Practicable (ALARP) process, which indicates that
detonation would occur as a last resort after all other methods (e.g.,
lift-and-shift) are exhausted.
NMFS agrees with the Commission's recommendation to increase take
of common dolphins incidental to HRG surveys and is authorizing an
additional number of common dolphin takes based on data in the PSO
monitoring report cited in their comment, which NMFS considers to be
the best available science for this purpose. The total number of common
dolphins sighted by PSOs is highly variable, depending on the survey
timing (which may align more or less with peaks in expected common
dolphin occurrence), the number of kilometers surveyed, and survey
conditions, among other factors. As described above, Revolution Wind
anticipates that they may conduct HRG surveys at any time of year
throughout construction and non-construction years. Given common
dolphins are one of the most frequently sighted species during HRG
surveys (as reported by PSOs in the monitoring reports cited here) and
the number of dolphins sighted is highly variable and dependent on
multiple influencing factors (e.g., time of year), NMFS is
conservatively authorizing 4,457 common dolphin Level B harassment
takes incidental to HRG surveys during the year of construction, which
is equivalent to the number of common dolphins taken by Level B
harassment during the HRG surveys the Commission refers to in their
comment (Smultea Environmental Sciences, LLC, 2020). This is an 89
percent increase from the 2,354 common dolphin Level B harassment takes
proposed for authorization (87 FR 79072, December 23, 2022).
Accordingly, NMFS is authorizing 1,094 takes per year (89 percent
increase from 579 per year, as presented in the proposed rule) of
common dolphins, by Level B harassment, incidental to HRG surveys for
each of the 4 years following construction (4,376 total in the years
following construction).
Comment 8: The Commission recommended that NMFS determine if the
2017 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 (see Borcuk et al., 2017).
If so, the Commission suggested the take numbers be amended in the
final rule for all of Revolution Wind's activities.
Response: We appreciate the Commission's suggestion to review the
2017 Department of the Navy's (2017) group size estimates to see if
they are more applicable for the Project (see Borcuk et al., 2017).
Based on our review, we disagree that the Navy's group size estimates
are the most
[[Page 72572]]
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 in Kraus et al. (2016) (used
for 10 species in our analysis) are derived from data gathered
specifically in the Massachusetts and Rhode Island/Massachusetts Wind
Energy Areas (MA and RI/MA WEAs), where Revolution Wind's Project will
occur. The group sizes in the Navy (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. Furthermore, Atlantic Marine Assessment
Program for Protected Species (AMAPPS) data (Palka et al., 2017; which
was used as a group size reference for six species in our analyses)
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 Navy (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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable#expired-authorizations">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable#expired-authorizations</a>), 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 Revolution Wind,
any adjustments using Kraus et al. (2016) or AMAPPS data, and any group
sizes used in the proposed and final rules are based on the best
available scientific information.
Comment 9: The Commission disagrees with NMFS that the potential
for non-auditory injury and mortality during UXO/MEC detonations are
considered de minimis. They 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 went further
to state 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 Revolution Wind (i.e., 100 grams (g), 5 kilograms (kg),
10 kg compared to 454 kg). The Commission also adds 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 recommended that NMFS estimate and authorize
Level B harassment behavior takes of marine mammals, in addition to
takes from temporary threshold shift (TTS), for UXO/MEC detonations in
the final rule. Finally, the Commission recommended that, because of
the reasons already explained regarding attenuating UXO/MEC
detonations, NMFS should require that Revolution Wind utilize a double
big bubble curtain (DBBC) during all detonations and that NMFS not
allow Revolution Wind to detonate UXOs/MECs when currents are moving
faster than 2 knots (kn; 2.3 miles per hour (mph)).
Response: NMFS appreciates the Commission's recognition that
European waters offer a different environment than the Atlantic Ocean
and that the conditions and size of explosives potentially encountered
in the Revolution 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 big bubble curtains (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 based on the best scientific information
available and thus is 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 ``deployment'' and ``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 shock wave produced by the detonation
event, we acknowledge that this would require the bubble curtain to be
placed in the area outside of the non-linear zone.
NMFS is requiring Revolution Wind to meet the noise levels modeled
assuming 10-dB attenuation, which
[[Page 72573]]
must be verified by SFV and, as recommended by the Commission, is
requiring Revolution Wind deploy a double big bubble curtain (DBBC)
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 (2.3 mph) or less but, as described above, is requiring Revolution
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
this final rule where appropriate.
NMFS agrees with the Commission that 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. The current take estimation 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 TTS threshold, which is 5-dB
higher than the explosive behavioral harassment threshold. The
behavioral threshold for underwater detonations (i.e., 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 final rule, we have clarified that (1) Revolution Wind will
be limited to detonating one UXO/MEC per day, and (2) that the TTS
thresholds provided in Table 5 are used to estimate the potential for
Level B (behavioral) harassment. In both the proposed and this final
rule, NMFS applied the TTS thresholds 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 are
necessary.
Comment 10: Citing the dire situation of North Atlantic right
whales, the 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 whales 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 27 and 28 show 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.
Mitigation
Comment 11: Commenters recommended that NMFS require Revolution
Wind to implement the best commercially available combined noise
attenuation system (NAS) technology to achieve the greatest level of
noise reduction and attenuation possible for pile driving. One
commenter recommended that NMFS require, at a minimum, a 10-dB
reduction in sound exposure level (SEL), but other commenters
recommended that NMFS require a minimum of 15-dB or greater reductions,
citing 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 Revolution 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 that underwater noise levels should be
reduced to the greatest degree practicable to reduce impacts on marine
mammals as required by the MMPA. As described in both the proposed and
final rule, NMFS has included requirements for sound attenuation
methods that successfully (evidenced by required sound field
verification measurements) reduce real-world noise levels produced by
impact pile driving of foundation installation to, at a minimum, the
levels provided by JASCO modeled assuming 10 dB reduction, as analyzed
in the proposed rule. Preliminary sound measurements from South Fork
Wind, another 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 Revolution
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
[[Page 72574]]
below those modeled assuming a 10-dB reduction.
Regarding the recommendation that Revolution 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 12: To minimize the risk of vessel strikes for all whales,
especially in recognition of the imperiled state of North Atlantic
right whales, commenters recommended that NMFS require a mandatory 10-
kn (11.5 mph) speed restriction for all project vessels (including PSO
survey vessels) at all times, except for reasons of safety, and in all
places except in limited circumstances where the best available
scientific information demonstrates that whales do not occur in the
area. Another commenter made the same recommendation but suggested no
exceptions. Alternatively, commenters suggest that project proponents
could work with NMFS to develop an ``Adaptive Plan'' that modifies
vessel speed restrictions if the monitoring methods informing the
Adaptive Plan are proven as effective when for vessels traveling 10 kn
(11.5 mph) or less and must follow a scientific study design. One
commenter suggests 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. Commenters also recommend that NMFS (1) require all
offshore personnel to be trained to identify North Atlantic right
whales and other large whales, (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, (3) 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, and (4) that NMFS require vessels to
maintain a separation distance from North Atlantic right whales at all
times.
Response: NMFS acknowledges that vessel strikes pose a risk to all
large whales, including North Atlantic right whales. Based on the
density information provided by Roberts et al. (2023), many large whale
species are less frequently found within the Revolution Wind Project
Area during the months when foundation installation, which requires the
use of multiple vessels, would occur (i.e., May through November and
possibly December, if approved by NMFS). Furthermore, while we
acknowledge that North Atlantic right whales can be found year round in
the Project Area, NMFS, as described in the proposed rule and included
in this final rule, is requiring Revolution Wind to reduce speeds to 10
kn (11.5 mph) or less in 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), when traveling between ports in New
Jersey, New York, Maryland, or Virginia from November 1-April 30, and
if a North Atlantic right whale is detected visually or acoustically at
any distance or reported within 10 km. Vessels are also required to
slow and maintain separation distances if other species of large whales
are observed. Additionally, aside from any requirements of this rule,
Revolution Wind is required to comply with all spatial and temporal
speed restrictions outlined in existing regulations. Together, these
speed requirements align with the commenters' recommendations.
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
Section 217.274(b) of the regulatory text. 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. At least 180 days prior to the start of
vessel operations commencing, Revolution Wind must submit both a Vessel
Strike Avoidance Plan, including plans for conducting PAM in the
transit corridors should Revolution Wind determine they wish to travel
over 10 kn (11.5 mph) in the transit corridors, to NMFS for review and
approval.
While NMFS acknowledges that vessel strikes can result in injury or
mortality, we have analyzed the potential for vessel strike resulting
from Revolution Wind's activity and have determined that based on the
required mitigation measures specific to vessel strike avoidance
included in the final rule, the potential for vessel strike is so low
as to be discountable and thus, no vessel strikes are expected or
authorized to occur. These measures also ensure the least practicable
adverse impact on species or stocks and their habitat. Therefore, we
are not requiring project-related vessels to travel 10 kn (11.5 mph) or
less at all times.
Comment 13: 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. A commenter recommends 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.
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.
Revolution Wind has indicated that to complete the project, pile
driving in December will be avoided as much as possible but may be
required. In this final rule, NMFS has included an additional measure
wherein impact pile driving must be avoided to the maximum extent
practicable in December; however, with prior approval by NMFS, it may
occur if necessary to complete the project. In any time of year when
foundation installation is occurring, a visual or acoustic detection of
a North Atlantic right whale at any distance triggers a pile driving
delay or shutdown. We also reiterate that Revolution Wind is required
to implement a larger minimum visibility zone in December (4.4 km (2.7
mi)) as compared to other project months (2.3 km), 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 Project
Area.
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 shifting due to climate
[[Page 72575]]
change and other factors, and they are now present year round in the
vicinity of the project (e.g., Quintana-Rizzo et al., 2021), with
observations of feeding behavior and some detections of mothers with
calves. However, as shown in Roberts et al. (2023), which is considered
the best available science 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 extensive feeding behaviors in the Project
Area, in November, relative to the extent of foraging in habitat to the
east (e.g., in and around Nantucket Shoals). For these reasons and
given the inclusion of December in the pile driving temporal
restrictions, except with NMFS prior approval, NMFS finds that further
expansion of the pile driving restrictions (beyond December-April) is
unwarranted.
Inasmuch as commenters may be suggesting prohibiting 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. The measures prescribed in this final rule
ensure the least practicable adverse impact on species or stocks and
their habitat.
Comment 14: Commenters recommended that NMFS increase the size of
the clearance and shutdown zones for HRG surveys, require a delay in
the start and resumption of HRG surveys and pile driving if a large
whale is visually or acoustically detected in the clearance and
shutdown zones, require soft start for pile driving and ramp up for HRG
surveys, and require PAM during HRG surveys. In addition, a commenter
acknowledges the purpose of an exemption from shutdown for safety
reasons for pile driving but recommends that, if this exemption occurs,
Revolution Wind must immediately notify NMFS and provide justification
for using the exemption. Additionally, a commenter stated that a
summary of the frequency of these exceptions must be made publicly
available.
Response: NMFS disagrees with the commenters' recommendation to
increase HRG survey clearance and shutdown zone sizes, and the
commenters' do not provide additional scientific information for NMFS
to consider to support their recommendation. As described in the
proposed rule and this final rule, 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 during this activity. For other Endangered Species Act
(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.
NMFS notes that the recommended requirement that any detection of a
North Atlantic right whale (visually, and acoustically for pile
driving) in the associated clearance zone during the clearance period
would trigger a delay to the onset of HRG surveys and pile driving was
included in the proposed rule and is included in this final rule.
Similarly, NMFS notes that 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 or acoustically detected at
any distance within the PAM monitoring zone.
Regarding the resumption of pile driving and HRG surveys following
a shutdown, NMFS notes that the following requirements were included in
the proposed rule and in this final rule: (1) PSOs must monitor
clearance zones prior to impact pile driving or use of survey equipment
starting, (2) impact pile driving and survey activities must 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 (for pile driving), and (3) soft-start to pile driving or
ramp-up to HRG surveys are required.
The commenters do not provide additional scientific information for
NMFS to consider to support their recommendation to require PAM during
HRG surveys. NMFS disagrees that this measure is warranted because it
is not expected to be effective for use in detecting the species of
concern given 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 dB re 1
[mu]Pa 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 do not agree
that use of PAM is warranted for HRG surveys. 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. 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 (particularly because of flow
noise masking vocalizations). 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,
[[Page 72576]]
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 specific activity), and the cost and impracticability of
implementing a full-time PAM program, we have determined the current
requirements for visual monitoring are sufficient to effect the least
practicable adverse impact on the affected species or stocks and their
habitat during HRG surveys.
Regarding the recommendation that Revolution Wind should be
required to notify NMFS in the event that mitigation actions are not
undertaken based on specific exceptions (e.g., unable to shutdown pile
driving for safety reasons), NMFS notes that both the proposed and
final rules require weekly, monthly, and annual reports where
Revolution 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
available to the public given the amount of total reports that would be
obtained over a 5-year period.
NMFS has determined that the prescribed mitigation requirements are
sufficient to effect the least practicable adverse impact on all
affected species or stocks.
Comment 15: 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 minimize 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 shutdown and clearance
zones (equally sized) for large whales (other than North Atlantic right
whale) are based on the largest exposure range calculated for any
mysticete, other than humpback whales, that represents the distance to
the Level A harassment (isopleth for the low frequency hearing group,
rounded up to the nearest hundred for PSO clarity. Required monitoring
and mitigation for these zones will minimize Level A harassment and
Level B harassment to the extent practicable and avoid most Level A
harassment of large whales (note that for all but minke whales (n =
21), other species of large whales have 9 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 16: Commenters recommended that NMFS require clearance and
shutdown zones for North Atlantic right whales specifically, including
(1) a minimum of 5,000 m (3.1 mi) 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 (1.2 mi) 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 concludes 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 17: For all large whale species, commenters recommended
that NMFS require real-time PAM during 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 29 to clearly specify this 10-km PAM monitoring
zone. Revolution 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, Revolution
Wind may launch PAM drones from shore; hence, NMFS is not requiring
that Revolution Wind deploy any monitoring systems from a vessel.
Comment 18: 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''
by the commenter) cannot be visually monitored, as determined by the
Lead PSO.
[[Page 72577]]
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 in order to maximize
monitoring capabilities during hours of optimal visibility/daylight.
The commenters also recommended that 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.
Commenters caveat this 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.
Commenters suggested that if pile driving must continue after dark
due to safety reasons, Revolution Wind should be required to notify
NMFS with these reasons and an explanation for exemption. Additionally,
a commenter states 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 acknowledges the limitations inherent in visual
detection of marine mammals at night and that these could potentially
result in some limited number of marine mammals being exposed to higher
levels of sound for a longer duration before a shutdown was
implemented. However, there are offsetting benefits to completing the
pile driving in a shorter total amount of time, in that some number of
marine mammals (those that might intersect the much larger Level B
harassment zone) would be exposed to fewer overall days of pile driving
noise, and potentially a smaller magnitude or severity of behavioral
disturbance as a result given repeated exposures would be minimized.
Further, Revolution Wind submitted a final draft Alternative Monitoring
Plan (AMP) on August 4, 2023. NMFS will review the AMP to determine
sufficiency in maximizing nighttime detection to support the required
mitigation measures. Should NMFS approve the AMP, nighttime pile
driving may occur given Revolution Wind adherence to the AMP.
NMFS disagrees with the recommendation to require Revolution Wind
to notify NMFS each time that pile(s) must be finished after dark due
to safety and/or stability concerns and note that the rule already
requires weekly reports during foundation installation, which must
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 Revolution Wind must submit to NMFS; however, as
described in Comment 39, we do plan to make the final reports
available, which must summarize all of the information contained in the
weekly and monthly reports. Accordingly, NMFS has determined requiring
additional reporting beyond that described in the proposed rule is not
warranted and that the existing reporting requirements support a suite
of measures that will effect the least practicable adverse impact on
marine mammals and their habitat.
Comment 19: Commenters recommended that NMFS implement diel
restrictions for HRG surveys 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'' by the commenter) cannot be
visually monitored by the Lead PSO.
Response: NMFS acknowledges the limitations inherent in visual
detection of marine mammals at night. As proposed, 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 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 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 20: Commenters recommended that NMFS prohibit HRG surveys
during times of highest risk for North Atlantic right whales (foraging
and migration and times when mother-calf pairs, pregnant females,
surface active groups, or aggregations of three or more whales
(indicative of feeding or social behavior), using the best available
science to define high-risk timeframes. Commenters stated that the
Project is sited in critically important year round North Atlantic
right whale foraging and socializing habitat; thus, NMFS should require
corresponding year-round protections and critical mitigation measures.
Commenters recommended that NMFS develop a real-time mitigation and
monitoring protocol to dynamically manage the timing of HRG surveys to
ensure those activities are undertaken during times of lowest risk for
all relevant large whale species.
Response: NMFS neither anticipates nor authorizes take of North
Atlantic right whales by Level A harassment (PTS) from this activity.
While NMFS is authorizing a total 22 Level B harassment takes of North
Atlantic right whales incidental to HRG surveys over the 5-year
effective period of this rulemaking, the required mitigation will
[[Page 72578]]
affect the least practicable adverse impact on the species from this
activity. 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 must be treated as if it
were a North Atlantic right whale, triggering associated mitigation.
Any Level B harassment that is not avoided is not expected to impact
important feeding or other behaviors that may occur throughout the year
in the Project Area in a manner that poses energetic or reproductive
risks for any individuals. NMFS also notes that North Atlantic right
whale presence, while not completely absent, decreases significantly
during summer months as compared to winter when the majority of
foundation installation would occur. Given the minimal anticipated
impacts of the HRG survey, NMFS disagrees that additional mitigation
measures, including dynamic management of HRG surveys timing, are
warranted.
Comment 21: Commenters 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 suggest that visual
monitoring must continue for 30 minutes after pile driving has ceased.
Response: The recommended requirements were included in the
proposed rule and are carried forward in this final rule. Also, as
proposed, this final rule includes a requirement that Revolution Wind
review PAM data collected for at least 24 hours immediately prior to
pile driving, for situational awareness. NMFS notes that if PAM
continues throughout any pauses in pile driving, Revolution Wind is not
required to begin the clearance process again (i.e., monitor for 60
minutes, ensuring the clearance zone is free of marine mammals for 30
minutes immediately prior to recommencing pile driving). However, pile
driving would not be allowed to recommence until the clearance zones
are confirmed to be visually and acoustically clear of marine mammals.
Comment 22: Commenter recommends that UXOs/MECs must first be
evaluated to see if they can be moved without detonation. If detonation
must occur, the commenter states that the mitigation measures for pile
driving should be the same with regards to 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 proposed, this final rule requires Revolution Wind to
use the ALARP approach such that detonation would be the last resort to
removing a UXO/MEC. That is, Revolution Wind is required to use
detonation as a means of removing UXO/MECs only if all other options of
removal have been exhausted. The following proposed mitigation measures
are also required by this final rule: Revolution Wind will be required
to implement visual monitoring using PSOs and PAM prior to detonation;
these PSOs and PAM operators will be required to clear the appropriate
zones prior to Revolution Wind detonating any UXO/MEC; SFV must be
conducted on every UXO/MEC; and 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 retains 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 23: Commenter asserts 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 state that exceptions and
exemptions will create enforcement uncertainty and incentives to evade
regulations through reclassification and redesignation. They recommend
that NMFS simplify this by requiring all vessels to abide by the same
requirements, regardless of size, ownership, function, contract or
other specifics.
Response: NMFS agrees and notes, as described in the proposed rule
and this final rule, that the regulations apply to Revolution Wind and
those persons it authorizes or funds to conduct the specified
activities on its behalf; a copy of the LOA must be in the possession
of Revolution Wind, its designees, all vessel operators, PSOs/PAM
operators; and Revolution 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 24: A commenter raised concerns about offshore wind
activities leading to increases in vessel traffic and vessel noise,
which may increase the risk of North Atlantic right whales being struck
by a vessel and may disrupt normal North Atlantic right whale behavior.
Another commenter recommends that NMFS restrict vessels of all sizes
associated with the projects to travel at 10 kn (11.5 mph) or less at
all times to avoid vessel strikes to North Atlantic right whales. Other
commenters recommend that NMFS require management measures of all boats
that reduces the risk of lethal vessel strikes to a level approaching
zero. They suggest implementing a mandatory 10 kn (11.5 mph) speed
restriction for all project-associated vessels at all times, except in
limited circumstances where the best available scientific information
demonstrates that whales do not use an area. In addition, a commenter
claims that vessel speed restrictions are not `fully mandated' or
enforced for offshore wind vessels.
Response: While NMFS acknowledges that vessel strikes can result in
injury or mortality, we have analyzed the potential for vessel strike
resulting from Revolution Wind's activities and have determined that
based on the nature of the activity and the required mitigation
measures specific to vessel strike avoidance included in the
rulemaking, the potential for vessel strike is so low as to be
discountable. All of the mitigation measures that were included in the
proposed rulemaking are now required in the final regulations (see
Sec. 217.274(b)). Based on our analysis, 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.
Furthermore, we contend that the commenter who raised concerns
about offshore wind activities leading to increases in vessel traffic
and vessel noise is conflating two different points: there is a
difference between vessel strike risks and impacts to marine mammals
due to noise from construction. NMFS acknowledges the aggregate impacts
of Revolution Wind's vessel operations on the acoustic habitat of
marine mammals and has considered it in the analysis (see responses to
Comments 14 and 42). Another commenter's reference to vessel speed
restrictions being ``not fully mandated'' is unclear. NMFS refers again
to the required vessel strike avoidance measures described above. The
commenter does not provide a rationale for its suggestion that vessel
speed restrictions are not enforced for offshore
[[Page 72579]]
wind vessels. We note that all vessels associated with Revolution
Wind's activities must be equipped with a properly installed,
operational Automatic Identification System (AIS) device and Revolution
Wind must report all Maritime Mobile Service Identify (MMSI) numbers to
NMFS Office of Protected Resources, thus facilitating monitoring of
vessel speeds. In addition, NMFS maintains an Enforcement Hotline for
members of the public to report violations of vessel speed
restrictions. Further, the LOA states that the authorization may be
modified, suspended, or revoked if the holder fails to abide by the
conditions prescribed therein.
Comment 25: A commenter states 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: The MMPA requires that we include measures that will
effect the least practicable adverse impact on the affected species and
stocks and, 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 this
requirement to effect the least practicable adverse impact. The
commenter does not make any specific recommendations of measures to add
to the rulemaking. 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
Revolution 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.
Comment 26: 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 gear
boxes.
Response: The commenter's reference to a ``preferred alternative''
suggests this comment is specific to the Environmental Impact Statement
(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 Revolution Wind's MMPA application, which includes
installation of monopiles. 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. Revolution Wind has confirmed with NMFS that direct drive
turbines will be used for the Revolution Wind project.
Monitoring, Reporting, and Adaptive Management
Comment 27: 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: Regarding the recommendation that NMFS have a mechanism
in place to undertake review and adaptive management on an ad hoc basis
if a serious issue is identified, there are no timing restrictions in
the adaptive management provisions and, therefore, NMFS may undertake
review and adaptive management actions at any time under the
regulations, as written. Regarding the recommendation to increase the
frequency of information review, Revolution 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: Commenters recommended that NMFS require robust
monitoring protocols during pre-clearance and when HRG surveys 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 two on-duty PSOs each scanning
180 degrees and with another two PSOs stationed on the vessel (for a
total of four PSOs on the survey vessel), 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 14, 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 before HRG surveys begin;
hence, this recommendation has already been satisfied.
Comment 29: Commenters 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 the commenter's recommendations were included
in the proposed rule and are 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. Moreover, since
publication of the proposed rule, Revolution Wind has
[[Page 72580]]
submitted an Alternative Monitoring Plan that includes details about
advanced technologies for monitoring marine mammals at night for both
trained crew observers and PSOs. As for the recommendation to
specifically require drones, NMFS would evaluate any proposal including
drones on a case-by-case basis but is not requiring use of this
technology. The commenter did not provide data indicating drones would
be more effective than other monitoring technology already required.
Comment 30: 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 another commenter
suggesting that human observation be supplemented with infrared (IR)
technology and drones.
Response: NMFS notes the proposed rule aligned with the
recommendation, requiring a total of four PSOs on each monitoring
vessel, two on-duty and two off-duty, working in rotation. On-duty PSOs
on the pile driving vessel and the secondary PSO vessel, circling at a
distance from the pile, would each monitor 180 degrees. To ensure
marine mammal detection is maximized, and in response to public
comments, NMFS is now requiring monitoring for marine mammals before,
during, and after foundation installation and is requiring in this
final rule three on-duty PSOs on both platforms such that each PSO is
responsible for 120 degree coverage. In addition, as proposed, this
final rule requires that visual observers must be equipped with
alternative monitoring technology (e.g., night vision devices, infrared
cameras) to monitor clearance and shutdown zones during periods of low
visibility (e.g., darkness, rain, fog, etc.).
Comment 31: Commenters recommended that NMFS should require sound
field verification 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. Finally, the Commission
recommended that NMFS require wind farm applicants to include
monitoring of operational sound in their SFV plans in all future
proposed rules.
Response: NMFS notes that, as proposed, this final rule requires
that no unmitigated piles can be installed and that SFV is required for
the first three piles and additional piles where conditions suggest
noise levels may be higher or propagate farther than those piles
previously measured. Furthermore, under this final rule, Revolution
Wind must ensure that measured sound levels do not exceed those modeled
assuming 10 dB of attenuation, which will be validated through SFV.
Revolution Wind has the Lease Area data to identify if a pile would be
more difficult to drive than the initial piles measured, and the
requirement that they would have to conduct SFV on such piles where
information suggests a pile may be more difficult to drive. Given these
requirements, NMFS does not believe random sampling is necessary.
NMFS acknowledges the importance of transparency in the reporting
process (see Comment 39) and plans to make all final SFV reports on our
website. Regarding the Commission's suggestion that NMFS require SFV
during operations, NMFS notes this requirement was included in the
proposed rule and in this final rule
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 2.3 to 4.4 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 Revolution Wind would be conducting
the majority of pile driving is when North Atlantic right whale density
in the Project Area is relatively low, given that pile driving is
seasonally restricted from December 1-April 30, unless Revolution Wind
receives NMFS' prior approval to conduct activities in December.
Although modeling predicts 17.5 Level A harassment North Atlantic right
whale exposures (Table 12 in final rule), this estimate does not
consider any mitigation measures, other than 10 dB of sound
attenuation, or natural avoidance of the animal to loud sounds.
Revolution Wind must delay or shutdown impact pile driving if a North
Atlantic right whale is visually detected at any distance or
acoustically detected at any distance within the PAM monitoring zone, a
measure that is more conservative than the finite clearance and
shutdown zones determined for other large whale species. 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
claim 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 regulatory text
at Section 217.275(a)). NMFS disagrees that the statistics generated
from that report are equivalent to the effectiveness of monitoring for
the Revolution Wind project. 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 (11.5 mph)) for a total of nine PSOs. Concurrently, real-time PAM
is required to supplement visual monitoring during impact pile driving
and UXO/MEC detonation. Further, Revolution Wind must monitor several
times daily supplemental marine mammal detection information systems
(e.g., the Right Whale Sighting Advisory System) to increase
situational awareness. 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 Revolution
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 recommendation and have
incorporated it into the final rule.
[[Page 72581]]
Comment 34: A commenter stated that Revolution Wind should be
required to use PSOs at all times when underway.
Response: NMFS is not requiring PSOs to be onboard every transiting
vessel. However, as described in the proposed rule and carried forward
in this final rule, Revolution Wind must have trained observers onboard
all vessels. The dedicated observer may be a PSO or a crew member with
no other concurrent duties. NMFS is also requiring Revolution Wind to
provide a Vessel Strike Avoidance Plan to NMFS 180 days prior to the
onset of vessel use. Revolution Wind submitted that plan on July 13,
2023, and a revised version on August 25, 2023. Once approved, all
plans will be made available on NMFS' website.
Comment 35: A commenter recommended that the LOA should require all
vessels supporting site characterization to be equipped with and to use
Class A Automatic Identification System (AIS) devices at all times
while on the water. The commenter suggested this requirement should
apply to all vessels, regardless of size, associated with the survey.
Response: NMFS agrees and has included an AIS requirement in more
recently issued IHAs and wind construction proposed rules. This final
rule includes a requirement that all vessels associated with the
project be equipped with AIS.
Comment 36: The Commission recommended that NMFS require Revolution
Wind to submit a PAM plan and to allow for public comments to occur
prior to the issuance of the final rule. The Commission specifies 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 recommend that Revolution 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 that the Commission's recommendation for
Revolution Wind to submit a PAM Plan to NMFS for approval is consistent
with the proposed rule and this final rule. As proposed, under this
final rule a PAM plan must be submitted to NMFS at least 180 days prior
to the start of the activity. Further, NMFS identified the requirements
that Revolution Wind must meet in its PAM plan in the proposed rule,
which was made available for public comment, and those requirements are
included in 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 37: 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 R<INF>max</INF>, flat R<INF>95</INF><not-eq>) 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 agree with the Commission about the importance of
specifying quantities to be compared following SFV and have required in
the final rule that calculations of the R<INF>95</INF><not-eq> SEL and
R<INF>95</INF><not-eq> SPL<INF>rms</INF> acoustic ranges for Level A
harassment and Level B harassment, respectively, based on in situ
measurements must be compared to the same modeled metrics.
Regarding the Commission's third suggestion, NMFS notes that, under
the proposed rule, if a monopile installation site or construction
scenario was determined to be not representative of the rest of the
monopile installation sites, Revolution 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 agree with
the Commission that this information is important and include the same
requirement in the final rule. However, we do not agree with 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 the maximum number of piles installed per day, maximum
strikes predicted, and maximum hammer energies. Because of this,
Revolution 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 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 38: The Commission recommended that NMFS require Revolution
Wind to include in the pile driving SFV report additional metrics not
identified in the proposed rule, including 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. In addition, the Commission recommended that NMFS require
Revolution Wind to deploy a minimum of three hydrophones for SFV during
impact pile driving
Response: NMFS partially concurs with the Commission's
recommendations. This final rule requires the interim report to include
peak, sound pressure level (SPL), and cumulative sound exposure level
(SEL<INF>cum</INF>) metrics for all hydrophones, estimated distances to
NMFS Level A harassment and Level B harassment threshold isopleths,
types and locations of sound attenuation systems. 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 modeled distances
to isopleths corresponding 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,
cumulative SEL, and SPL<INF>rms</INF>) be included in the final SFV
report. Regarding the hydrophones for SFV during pile driving, NMFS is
requiring that Revolution Wind place two hydrophones at four locations
at an azimuth of least propagation loss and
[[Page 72582]]
two at 750 m and 90 degrees from this azimuth (total = 10 hydrophones).
Comment 39: Commenters stated that the LOA must include a
requirement for all phases of the Revolution Wind 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 stated that to foster stakeholder relationships and allow
public engagement and oversight of the permitting, the ITA should
require all reports and data to be accessible on a publicly available
website. Another commenter also suggested that all quarterly reports of
PSO sightings must be made publicly 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 section 217.275(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
Section 217.275(g) for more information on reporting requirements in
the regulations.
Effects Assessment
Comment 40: Commenters stated that NMFS must utilize the best
available science in their 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.
Another commenter further added that NMFS should use the most
comprehensive models for estimating marine mammal take and developing
robust mitigation measures.
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 Marine Mammal Stock Assessments Report
(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 (Nbest; 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 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 Revolution Wind's construction activities.
While NMFS cannot require applicants to utilize specific models for
the purposes of estimating take incidental to offshore wind
construction activities, we evaluate the models used to support take
estimates to ensure that they are methodologically sound and
incorporate the best available science. NMFS does require use of the
Roberts et al. (2016, 2023) density data and SARs abundance estimates
for all species, both of which represent the best available science
regarding marine mammal occurrence.
Comment 41: Several commenters raised concerns regarding the
cumulative impacts of the multiple offshore wind projects being
developed throughout the range of North Atlantic right whales and other
marine mammal species and specifically recommend that we carefully
consider the take from all of these projects in combination when
conducting the negligible impact analysis for Revolution Wind. One
commenter recommended NMFS establish an ``IHA threshold'' for offshore
wind activities regionally and across project phases. Another commenter
suggests NMFS' issuance of ITAs for offshore wind construction projects
should be based on a Programmatic Environmental Impact Statement that
assesses cumulative impacts analyses of individual projects as well as
the cumulative impacts from the consequent multiple project
developments rather than separate EISs for each project. Another
commenter suggested that NMFS should analyze the cumulative impacts of
the multiple concurrent phases of offshore wind energy development on
right whales and other marine mammal species in southern New England
waters prior to proceeding with permitting the Revolution Wind Project.
Response: Neither the MMPA nor NMFS' implementing regulations call
for consideration of the take resulting from other specified activities
in the negligible impact analysis. The preamble to NMFS' implementing
regulations (54 FR 40338, September 29,
[[Page 72583]]
1989) states, in response to comments, that the impacts from other past
and ongoing anthropogenic activities are to be incorporated into the
negligible impact analysis via their impacts on the baseline.
Consistent with that direction, NMFS has factored into its negligible
impact analysis the impacts of other past and ongoing anthropogenic
activities via their impacts on the baseline (e.g., as reflected in the
density/distribution and status of the species, population size and
growth rate, and other relevant stressors). The 1989 final rule for the
MMPA implementing regulations also addressed public comments regarding
cumulative effects from future, unrelated activities. There, NMFS
stated that such effects are not considered in making findings under
section 101(a)(5) concerning negligible impact. In this case, this
incidental take regulation (ITR), as well as other ITRs currently in
effect or proposed within the specified geographic region, are
appropriately considered an unrelated activity relative to the others.
The ITRs are unrelated in the sense that they are discrete actions
under section 101(a)(5)(A) issued to discrete applicants. Section
101(a)(5)(A) of the MMPA requires NMFS to make a determination that the
take incidental to a ``specified activity'' will have a negligible
impact on the affected species or stocks of marine mammals.
NMFS' implementing regulations require applicants to include in
their request a detailed description of 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,
Revolution Wind was the applicant for the ITR, and we are responding to
the specified activity as described in that application and making the
necessary findings on that basis.
Through the response to public comments in the 1989 implementing
regulations (54 FR 40338, September 29, 1989), NMFS also indicated (1)
that we would consider cumulative effects that are reasonably
foreseeable when preparing a National Environmental Policy Act (NEPA)
analysis and (2) that reasonably foreseeable cumulative effects would
also be considered under Section 7 of the ESA for listed species, as
appropriate. Accordingly, NMFS has adopted an EIS written by BOEM and
reviewed by NMFS as part of its inter-agency coordination. This EIS
addresses cumulative impacts related to Revolution Wind 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 Revolution
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 Revolution
Wind on ESA-listed species, including North Atlantic right whales, was
analyzed under Section 7 of the ESA when NMFS engaged in formal inter-
agency consultation with GARFO. The Biological Opinion for Revolution
Wind 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.
Comment 42: Commenters stated that (1) NMFS' reliance on the 160 dB
(re 1 [mu]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) an assertion the monitoring
protocols prescribed for the clearance zones are under-protective.
Response: For the reasons described below, NMFS disagrees that the
160-dB threshold for behavioral harassment is not supported by the best
available science. The potential for behavioral response to an
anthropogenic source can be highly variable and context-specific
(Ellison et al., 2012). While NMFS acknowledges the potential for Level
B harassment at exposures to received levels below 160 dB rms, it
should also be acknowledged 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 and 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
[mu]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 loud 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 received sound pressure level for
estimating the onset of Level B behavioral harassment takes and is
currently considered the best available science while acknowledging
that the 160 dB<INF>rms</INF> 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
[[Page 72584]]
in responses across different received levels in our discussion and
analysis.
Overall, we reiterate the lack of scientific consensus regarding
what criteria might be more appropriate. Defining sound levels that
disrupt behavioral patterns is difficult because responses depend on
the context in which the animal receives the sound, including an
animal's behavioral mode when it hears sounds (e.g., feeding, resting,
or migrating), prior experience, and biological factors (e.g., age and
sex). Other contextual factors, such as signal characteristics,
distance from the source, and signal to noise ratio, may also help
determine response to a given received level of sound. Therefore,
levels at which responses occur are not necessarily consistent and can
be difficult to predict (Southall et al., 2007; Ellison et al., 2012;
Southall et al., 2021). For example, Gomez et al. (2016) reported that
RL was not an appropriate indicator of behavioral response.
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 the best 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, as suggested by Tyack and Thomas
(2019), is complex. The 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 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.
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 13, 14,
22, 30.
Comment 43: Commenters 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 find that the total taking from the
specified activities will have a negligible impact on species and
stocks among other requirements, and subsequently prescribe 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 specified activities will have a negligible
impact on species and stock and the mitigation measures will affect 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 large
whale species that occur off of Massachusetts during winter months. For
example, fin whales are the second-most commonly occurring baleen whale
species, based on density (Roberts et al., 2023), in the Project Area
from December through February and the fin whale feeding Biological
Important Area (BIA) (March through October) overlaps the seasonal
restriction period (March and April). Harbor porpoises, as another
example, are also more 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 and a small feeding BIA for fin whales.
Comment 44: A commenter claimed that the analyses supporting the
proposed rule did not comprehensively consider potential indirect
negative impacts to fishermen and coastal communities that could result
from cumulative offshore wind activities, particularly as those
activities impact North Atlantic right whales (i.e., vessel strike). In
addition, a commenter requested an explanation of how the offshore wind
industry will be held accountable for their impacts and asserts that
the offshore wind industry must be accountable for incidental takes
from construction and operations separately from the take
authorizations for managed commercial fish stocks.
Commenters expressed concern about the potential impacts of
offshore wind development on marine species, particularly the North
Atlantic right whale, and the potential that any disturbance, added
distress, and mortality of North Atlantic right whales will be
attributed to the commercial, charter, and recreational fishers who
frequently access these same areas in which offshore wind development
is occurring. They requested a moratorium on new incidental harassment
authorizations until more is known about the potential impacts of
offshore wind development on marine species.
Response: NMFS has determined that no serious injury or mortality
is anticipated to result from Revolution Wind's specified activities,
and as discussed in the Negligible Impact Analysis and Determination
section in this final rule, NMFS has determined that Revolution Wind's
specified activities will have a negligible impact on marine mammal
species or stocks. Furthermore, NMFS has determined that the mitigation
measures will effect the least practicable adverse impact on marine
mammals and their habitat. Neither the MMPA nor our implementing
regulations require NMFS to analyze impacts to other industries (e.g.,
fisheries) or coastal communities from issuance of an ITA pursuant to
section 101(a)(5)(A). We note that the Revolution Wind Final EIS
assesses the impacts of both BOEM and NMFS' actions (permitting
Revolution Wind's activities and authorizing the associated take of
marine mammals, respectively) on the human environment, including to
fishermen and coastal communities, and NMFS considered the analysis, as
appropriate, in the final decisions under the MMPA.
Regarding accountability, Revolution Wind would be required to
submit frequent monitoring reports, which would include accounts of any
takes by Level A harassment or Level B harassment. NMFS must withdraw
or suspend any LOA, if 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
[[Page 72585]]
(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). NMFS notes the anticipated impacts from Revolution Wind's
activities (e.g., behavioral harassment, acoustic disturbance,
temporary hearing loss) are different from those anticipated from
fishing activities (e.g., entanglement).
Other
Comment 45: 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. Both commenters also state that due
to the precarious nature of the North Atlantic right whale, this annual
approach is necessary to implement flexible protections.
Response: While NMFS acknowledges the commenters' rationale, we do
not think it is necessary to issue annual LOAs as: (1) the final rule
includes requirements for annual reports (in addition to weekly and
monthly requirements) to support annual evaluation of the activities
and monitoring results, and (2) the final rule includes an Adaptive
Management provision (see Sec. 217.277(c)) that allows NMFS to make
modifications to the mitigation, monitoring, and reporting measures
found in the LOA if new information supports the modifications and
doing so creates a reasonable likelihood of more effectively
accomplishing the goals of the measures.
Comment 46: The Commission recommended that NMFS specify in section
217.275(d)(9)(ii) of the final rule that the final SFV report must
include source levels at 10 m during wind turbine operations, received
levels at 50 m, 100 m, and 250 m from the wind turbine, operational
parameters (i.e., direct drive/gearbox information, turbine rotation
rate), sea state conditions, and any nearby anthropogenic activities.
In addition, the Commission recommends that NMFS rectify in the final
rule the following proposed rule omissions and errors: (1) Proposed
section 217.272(a) should also specify impact pile driving and removal
of casing pipes and vibratory pile installation or removal of goal
posts, (2) Proposed section 217.272(b) omitted impact removal of casing
pipes, (3) Proposed section 217.274(d)(3)(vii) contradicts proposed
section 217.274(f)(5)(1), which specifies that SFV must be conducted
for each UXO/MEC detonation, (4) Proposed section 217.274(f)(2)
specified that seasonal restrictions for UXO/MEC detonations would be
in place from 1 December through 31 April; however, April has only 30
days, (5) Bellmann (2021) was cited incorrectly as Bellmann and Betke
(2021) in the preamble to the final rule. (6) The terms `small
odontocetes', `delphinids and harbor porpoises', and `dolphins and
porpoises' were used interchangeably throughout the various mitigation
measures in proposed section 217.274, and the terms `seals' and
`pinnipeds' were used interchangeably or omitted altogether from the
various mitigation measures in proposed section 217.274.
Response: We appreciate the specific suggestions provided by the
Commission here. We have rectified all of the concerns described in the
Commission's list, except for those found in (6) above. Please note
that the Section references for each of the items noted by the
Commission have changed from those in the proposed rule due to
reorganization. We have not made adjustments with respect to the
suggestions regarding the intermixed use of ``seals'' versus
``pinnipeds,'' and ``small odontocetes'' (which we now refer to as
``odontocetes''), ``delphinids and harbor porpoises'', and ``dolphins
and porpoises,'' as those terms 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 47: A commenter claimed that NMFS, and BOEM should have
conducted more public outreach for the Revolution Wind project and
sought public comments from parties outside of the states in which the
project's land-based operations will occur, given that marine mammals
have migratory patterns that range the entire East Coast.
Response: NMFS disagrees that public outreach regarding the
Revolution Wind project was limited to individuals in particular
states. Both NMFS and BOEM provided all members of the general public
from any location opportunities to comment on and provide information
pertaining to Revolution Wind's potential impacts on marine mammals and
the environment. BOEM published a Notice of Intent to prepare an EIS on
April 30, 2021 (86 FR 22972) in the Federal Register, followed by a 30-
day public comment period and three virtual scoping meetings (May 13,
18, and 20, 2021) to facilitate public engagement in development of an
assessment of potential impacts from Revolution Wind's planned
activities. Additionally, BOEM's draft EIS (Revolution Wind Draft
Environmental Impact Statement (DEIS) for Commercial Wind Lease OCS-A
0486) was made available for public comment on September 2, 2022 (87 FR
54248), which included a 45-day comment period. Finally, BOEM held
three in-person public hearings on October 4, 2022, in Aquinnah, MA,
October 5, 2022, in East Greenwich, CT, and October 6, 2022, in New
Bedford, MA, and two virtual public hearings (again, open to all
members of the public from any location) on September 29 and October
11, 2022. On March 21, 2022, NMFS published a Notice of Receipt (NOR)
of Revolution Wind's adequate and complete MMPA ITA application in the
Federal Register (87 FR 15942), which included a 30-day public comment
period and access to the full application, which was posted on NMFS'
publicly available website (<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy">https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy</a>). NMFS considered all of this information when
developing the proposed rule, which was published in the Federal
Register on December 23, 2022 (87 FR 79072). A 45-day public comment
period followed publication of the proposed rule, during which NMFS
received 404 comment submissions. NMFS carefully considered each of the
received comments when developing this final rule. Comments submitted
on the NOI, DEIS, NOR, and proposed rule were submitted by individuals
from a variety of states, rather than the select few in Revolution
Wind's Project Area. Thus, all members of the public had notice and
opportunity to comment on multiple occasions and had access to relevant
documents via NMFS' and BOEM's websites.
Comment 48: A commenter claimed that recent whale strandings are
the result of offshore wind pre-construction activities. Another
commenter suggested that NMFS should consider whether or not
authorizing Level A harassment or Level B harassment should be
permissible given the recent elevated public concern about potential
impacts on marine mammals from offshore wind activities.
Response: NMFS emphasizes that there is no evidence that noise
resulting from offshore wind development-related marine site
characterization surveys, cause marine mammal strandings, and there is
no evidence linking recent large whale mortalities and currently
ongoing surveys. The commenters offer no such
[[Page 72586]]
evidence or other scientific information to substantiate their claim.
The best scientific information available indicates that only Level B
harassment, or disruption of behavioral patterns (e.g., avoidance), may
occur as a result of Revolution Wind's HRG surveys. NMFS will continue
to gather data to help us determine the cause of these strandings. NMFS
notes the Commission's statement: ``There continues to be no evidence
to link these large whale strandings to offshore wind energy
development, including no evidence to link them to sound emitted during
wind development-related site characterization surveys, known as HRG
surveys. Although HRG surveys have been occurring off New England and
the mid-Atlantic coast, HRG devices have never been implicated or
causatively-associated with baleen whale strandings'' (Marine Mammal
Commission Newsletter, Spring 2023). There is an ongoing UME for
humpback whales along the Atlantic coast from Maine to Florida, which
includes animals stranded since 2016, and we provide further
information on the humpback UME in the humpback whale subsection in the
Description of Marine Mammals in the Specific Geographic Region section
of this final rule.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
(87 FR 79072, December 23, 2022), NMFS has made changes, where
appropriate, that are reflected in the preamble text of this final rule
and the final regulatory text. These changes are briefly identified
below, with more information included in the indicated sections of the
preamble to this final rule.
Changes to 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 Specific 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 North Atlantic right whales, humpback whales,
minke whales, and phocid seals (pinnipeds).
The following changes are reflected in the Estimated Take section
the preamble to this final rule:
Seal take estimates were previously calculated by scaling the take
estimates derived from a single ``seal'' guild density using
proportions calculated from the range-wide abundance values in the NMFS
stock assessment reports. To more accurately estimate take for each
species for all activities in the final rule, Revolution Wind scaled
the single seal guild exposure estimate using proportions calculated
from the relative occurrence of each species reported in PSO monitoring
reports for HRG surveys conducted in the Project Area from 2018-2021
(AIS-Inc., 2019; Bennett, 2021; Stevens et al., 2021; Stevens and
Mills, 2021) and more recent data collected in 2023 during construction
of the South Fork Wind Farm (South Fork Wind 2023, unpublished data).
Based on a recommendation by the Commission, we have increased the
number of takes by Level A harassment of harbor porpoises incidental to
cable landfall construction, specifically pneumatic hammering, from 0
to 24, should Revolution Wind choose to install casing pipes.
Based on a recommendation by the Commission, we have increased the
number of common dolphin takes by Level B harassment for UXO/MEC
detonations (from 211 to 632); HRG surveys during construction (from
2,354 to 4,457); and HRG surveys during operations (from 2,312 to
4,376).
Based on our consideration of the Commission's recommendation, we
are authorizing the number of model-estimated Level A harassment (PTS)
take (increased to group size where applicable) incidental to UXO/MEC
detonations: fin whales (n=2), sei whales (n=2), humpback whales (n=2),
minke whales (n=8), common dolphins (n=35), bottlenose dolphins
(Western North Atlantic offshore stock) (n=8), and Atlantic white-sided
dolphins (n=28). The proposed rule did not authorize Level A harassment
(PTS) of these species incidental to UXO/MEC detonations.
Based on consideration of comments from the Commission, we are now
also authorizing the amount of model-estimated Level A harassment (PTS)
take of sei whales (n=3) and 5 gray seals (n=5), as well 20 percent of
the model-estimated Level A harassment (PTS) for the other species,
including fin whales (2), minke whales (13), harbor porpoises (65), and
harbor seals (7) during impact installation of monopiles. The proposed
rule did not authorize Level A harassment (PTS) of these species
incidental to impact pile driving monopiles.
In Tables 27 and 28, we have corrected mathematical errors
reflected in Tables 32 and 33 of the proposed rule resulting from
transcription errors and incorrect summation of take numbers for a
given species across all activities (i.e., foundation installation,
landfall construction, UXO/MEC detonations, and HRG surveys). The
corrections do not change NMFS' findings.
In the proposed rule, NMFS proposed to authorize take by Level B
harassment of sperm whales (n=2) incidental to cofferdam installation.
In this final rule, NMFS is not authorizing Level B harassment of sperm
whales incidental to this specified activity because the sperm whale
exposure estimate is 0.1 and the species exhibits a preference for deep
oceanic habitat rather than the shallow waters in Narragansett Bay,
thus, the probability of take is de minimis.
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.
217.270 Specified activity and specified geographical region of the
regulatory text to fully describe the specified activity and specified
geographical region.
The following changes are reflected in Sec. 217.272 Permissible
Methods of Taking.
NMFS added vibratory pile driving of goal posts to the list of
permissible methods of taking by Level B harassment as ``goal posts''
was inadvertently excluded;
Based on the Commission's recommendation to authorize take by Level
A harassment from pneumatic hammering and NMFS' concurrence, NMFS added
pneumatic hammering of casing pipes to the list of permissible methods
of taking by Level A harassment.
The following changes are reflected in Sec. 217.274 Mitigation
Requirements and the associated Mitigation section of the preamble to
this final rule.
Based on a recommendation by a commenter, NMFS added a requirement
that all project vessels must utilize AIS.
[[Page 72587]]
Given that North Atlantic right whale density in the Project Area
increases by an order of magnitude from November to December, NMFS
expanded the seasonal restriction for impact pile driving to include
December, during which impact pile driving must be avoided, although,
with prior approval by NMFS, it may occur if necessary to complete the
project.
NMFS 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.
We now specify that the mitigation measure restricts all Project
vessels, rather than only crew transfer vessels, from traveling over 10
kn (11.5 mph) in the transit corridor unless Revolution Wind conducts
real-time acoustic monitoring to detect large whales (including North
Atlantic right whales) in and near the transit corridor, and that this
measure applies only when other speed restrictions are not in place.
We now specify that an acoustic detection of any large whale
(rather than only North Atlantic right whales) via the PAM system
within the transit corridor will trigger a 10 kn (11.5 mph) or less
speed restriction for all Project vessels until the whale can be
confirmed visually beyond 500m of the vessel or 24 hours following the
detection and any re-detection has passed.
The following changes are reflected in the Sec. 217.275 Monitoring
and Reporting requirements and the associated Monitoring and Reporting
section of the preamble to this final rule:
NMFS 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.
NMFS 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.
NMFS increased the PAM shutdown zone from 3.9 km (summer) and 4.4
km (winter) by now requiring Revolution Wind to delay or shutdown if a
North Atlantic right whale is acoustically detected at any distance
within the PAM monitoring zone.
Based on a recommendation by the Marine Mammal Commission, NMFS
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).
NMFS added a requirement that a double big bubble curtain must be
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, NMFS
added a requirement that a pressure transducer must be used during all
UXO/MEC detonations.
NMFS added a requirement stating that Revolution Wind must use two
NAS to ensure that measured sound levels do not exceed the levels
modeled for a 10-dB sound level reduction for foundation installation
(e.g., double BBC (DBBC), hydro-sound damper, an AdBm Helmholz
resonator). A single bubble curtain must not be used;
NMFS 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 that SFV
is required for each UXO/MEC detonation.
NMFS added a requirement that Revolution 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 is now requiring Revolution Wind deploy two dedicated PSOs
vessels to monitor the clearance and shutdown zones prior to and during
impact pile driving installation of monopile foundations. In addition
to the three PSOs on the pile driving platform, three PSOs must be
deployed on each of the dedicated PSO vessels to monitor for marine
mammals.
NMFS is now requiring that Revolution Wind must deploy at least
three PSOs on each observation platform for all detonations with
clearance zones less than 5 km (3.1 mi). If the clearance zone is
larger than 5 km, at least one dedicated PSO vessel (with at least
three on-duty PSOs) and an aerial platform (with at least two on-duty
PSOs) must be used.
NMFS added a requirement that Revolution Wind submit a UXO/MEC PAM
plan for NMFS' approval 180 days prior to the start of any UXO/MEC
detonation.
NMFS now specifies that, for SFV during monopile installations,
calculations of the R<INF>95%</INF> SEL and R<INF>95%</INF>
SPL<INF>rms</INF> acoustic ranges for Level A harassment and Level B
harassment, respectively, based on in situ measurements must be
compared to the same modeled metrics.
Based on consideration of the Commission recommendation, NMFS has
added additional specified reporting requirements for SFV conducted
during operations, and clarified the general SFV reporting metrics to
align with the Commission's comments;
NMFS updated the North Atlantic right whale detection (visual and
acoustic) reporting guidance.
NMFS 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 publication of the proposed rule (87 FR 79092, December 23,
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 Specific Geographic Region section
has not changed since the publication of the proposed rule in the
Federal Register (87 FR 79072, December 23, 2022).
Sections 3 and 4 of Revolution Wind's application summarize
available information regarding status and trends, distribution and
habitat preferences, and behavior and life history of the potentially
affected species (Revolution Wind, 2022). 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'
[[Page 72588]]
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 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>.
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BILLING CODE 3510-22-C
All species that could potentially occur in the Project Area are
included in Table 5 in Revolution Wind ITA application and discussed
therein. While the majority of these species have been documented or
sighted in southern New England (including off the coast of Rhode
Island) in the past, for the species and stocks not listed in Table 2,
NMFS considers it unlikely that their occurrence would overlap the
activity in a manner that would result in harassment, due to their
spatial distribution (i.e., more northern or southern ranges) and/or
the geomorphological characteristics of the underwater environment
(i.e., water depth in the development area). There are two pilot whale
species, long-finned (Globicephala melas) and short-finned
(Globicephala macrorhynchus), with distributions that overlap in the
latitudinal range of the Project Area (Hayes et al., 2023; Roberts et
al., 2016; Roberts et al., 2023). Because it is difficult to
differentiate between the two species at sea, sightings, and thus the
densities calculated from them, are generally reported together as
Globicephala spp. (Roberts et al., 2016; Hayes et al., 2023). However,
based on the best available information, short-finned pilot whales
occur in habitat that is both further offshore on the shelf break and
further south than the project area (Hayes et al., 2020). Therefore,
NMFS assumes that any take of pilot whales would be of long-finned
pilot whales. Similarly, in the Western North Atlantic, there are two
morphologically and genetically distinct common bottlenose morphotypes,
the Western North Atlantic Northern Migratory Coastal stock and the
Western North Atlantic Offshore stock. The western North Atlantic
offshore stock is primarily distributed along the outer shelf and slope
from Georges Bank to Florida during spring and summer and has been
observed in the Gulf of Maine during late summer and fall (Hayes et al.
2020), whereas the northern migratory coastal stock is distributed
along the coast between southern Long Island, New York, and Florida
(Hayes et al. 2018). Given their distribution, only the offshore stock
is likely to occur in the Project Area and is the only stock included
in this application.
A detailed description of the species likely to be affected by the
Project, including brief introductions to the species and relevant
stocks as well as available information regarding population trends and
threats, and information regarding local occurrence, were provided in
the proposed rule (87 FR 79072, December 23, 2022). Since that time, a
new SAR (Hayes et al., 2023) has become available for the North
Atlantic right whale. Estimated abundance for the species declined from
368 to 338 and annual M/SI increased from 8.1 to 31.2. This large
increase in annual serious injury/mortality is a result of NMFS
including undetected annual M/SI in the total annual serious injury/
mortality. The North Atlantic right whale population remains in
decline, as described in the North Atlantic Right Whale species section
below. We are not aware of any additional changes in the status of the
species and stocks listed in Table 2; therefore, detailed descriptions
are not provided here. Please refer to the proposed rule for these
descriptions (87 FR 79072, December 23, 2022). Please also refer to
NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for
generalized species accounts.
Since the publication of the proposed rule, the following updates
have occurred to the below species in regards to general information or
their active UMEs.
North Atlantic Right Whale
In August 2023, NMFS released its final 2022 SARs, which updated
the population estimate (N<INF>best</INF>) of North Atlantic right
whales from 368 to 338 individuals and the annual M/SI value from 8.1
to 31.2 due to the addition of estimated undetected mortality and
serious injury, as described above, which had not been previously
included in the SAR. The population estimate is slightly lower than the
North Atlantic Right Whale Consortium's 2022 Report Card, which
identifies the population estimate as 340 individuals (Pettis et al.,
2023). Elevated North Atlantic right whale mortalities have occurred
since June 7, 2017, along the U.S. and Canadian coast, with the leading
category for the cause of death for this UME determined to be ``human
interaction,'' specifically from entanglements or vessel strikes. Since
publication of the proposed rule, the number of animals considered part
of the UME has increased. As of September 11, 2023, there have been 36
confirmed mortalities (dead, stranded, or floaters), 0 pending
mortalities, and 34 seriously injured free-swimming whales for a total
of 70 whales. As of October 14, 2022, the UME also considers animals
(n=45) with sublethal injury or illness (called ``morbidity'') bringing
the total number of whales in the UME to 115. More information about
the North Atlantic right whale UME is available online at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event</a>.
Humpback Whale
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. This event was
declared a UME in April 2017. Partial or full necropsy examinations
have been conducted on approximately half of the 208 known cases (as of
September 2023). Of the whales examined (approximately 90), about 40
percent had evidence of human interaction either from vessel strike or
entanglement (refer to <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>). While a portion of the whales have shown evidence of
pre-mortem vessel strike, this finding is not consistent across all
whales examined and more research is needed. NOAA is consulting with
researchers that are conducting studies on the humpback whale
populations, and these efforts may provide information on changes in
whale distribution and habitat use that could provide additional
insight into how these vessel interactions occurred. More information
is available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>.
Since December 1, 2022, the number of humpback strandings along the
mid-Atlantic coast, from North Carolina to New York, has been elevated.
In some cases, the cause of death is not yet
[[Page 72592]]
known; in others, vessel strike has been deemed the cause of death. As
the humpback whale population has grown, they are seen more often in
the Mid-Atlantic. These whales may be following their prey (small fish)
which were reportedly close to shore in the 2022-2033 winter. Changing
distributions of prey impact larger marine species that depend on them,
and result in changing distribution of whales and other marine life.
These prey also attract fish that are targeted by recreational and
commercial fishermen, which increases the number of boats and amount of
fishing gear in these areas. This nearshore movement increases the
potential for anthropogenic interactions, particularly as the increased
presence of whales in areas traveled by boats of all sizes increases
the risk of vessel strikes.
Minke Whale
Since January 2017, a UME has been declared based on elevated minke
whale mortalities detected along the Atlantic coast from Maine through
South Carolina. As of September, 2023, a total of 158 minke whales have
stranded during this UME. Full or partial necropsy examinations were
conducted on more than 60 percent of the whales. Preliminary findings
have shown evidence of human interactions or infectious disease in
several of the whales, but these findings are not consistent across all
of the whales examined, so more research is needed. This UME has been
declared non-active and is pending closure. More information is
available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast</a>.
Phocid Seals
Since June 2022, elevated numbers of harbor seal and gray seal
mortalities have occurred across the southern and central coast of
Maine. This event was declared a UME in July 2022. Preliminary testing
of samples has found some harbor and gray seals positive for highly
pathogenic avian influenza. While the UME is not occurring in the
Project Area, the populations affected by the UME are the same as those
potentially affected by the Project. Information on this UME is
available online at: <a href="https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast">https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast</a>.
The above event was preceded by a different UME, occurring from
2018-2020 (closure of the 2018-2020 UME is pending). Beginning in July
2018, elevated numbers of harbor seal and gray seal mortalities
occurred across Maine, New Hampshire, and Massachusetts. Additionally,
stranded seals have shown clinical signs as far south as Virginia,
although not in elevated numbers, therefore the UME investigation
encompassed all seal strandings from Maine to Virginia. A total of
3,152 reported strandings (of all species) occurred from July 1, 2018,
through March 13, 2020. Full or partial necropsy examinations have been
conducted on some of the seals and samples have been collected for
testing. Based on tests conducted thus far, the main pathogen found in
the seals is phocine distemper virus. NMFS is performing additional
testing to identify any other factors that may be involved in this UME.
Information on this UME is available online at: <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along">https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along</a>.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 dB
threshold from the normalized composite audiograms, with the exception
for lower limits for low-frequency cetaceans where the lower bound was
deemed to be biologically implausible and the lower bound from Southall
et al. (2007) retained. Marine mammal hearing groups and their
associated hearing ranges are provided in Table 3.
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The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013). For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
NMFS notes that in 2019a, Southall et al. recommended new names for
hearing groups that are widely recognized. However, this new hearing
group classification does not change the weighting functions or
acoustic thresholds (i.e., the weighting functions and thresholds in
Southall et al. (2019a) are identical to NMFS 2018 Revised Technical
Guidance). When NMFS updates our Technical Guidance, we will be
adopting the updated Southall et al. (2019a) hearing group
classification.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the Project's specified
activities have the potential to result in the harassment of marine
mammals in the specified geographic region. The proposed rule (87 FR
79072, December 23, 2022) included a discussion of the effects of
anthropogenic noise on marine mammals and the potential effects of
underwater noise from the Revolution Wind's project activities on
marine mammals and their habitat. While some new literature has been
published since publication of the proposed rule (e.g., Meyer-Gutbrod
et al., 2023), there is no new information that NMFS is aware of that
changes the analysis in the proposed rule. The information and analysis
included in the proposed rule is incorporated by reference into this
final rule and is not repeated here; please refer to the notice of the
proposed rule (87 FR79072, December 23, 2022).
Estimated Take
As noted in the Changes From the Proposed to Final Rule section,
NMFS has revised take estimates f
[…truncated; see source link]Indexed from Federal Register on October 20, 2023.
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