Rule2024-00297
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Coastal Virginia Offshore Wind Commercial Project Offshore of Virginia
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
January 23, 2024
Effective
February 5, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates regulations to govern the incidental taking of marine mammals incidental to the Virginia Electric and Power Company, doing business as Dominion Energy Virginia (Dominion Energy), construction of the Coastal Virginia Offshore Wind Commercial (CVOW-C) Project (hereafter, the CVOW-C Project or the Project) in Federal and State waters offshore of Virginia, 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 0483 (Lease Area) and along export cable routes to sea-to-shore transition points (collectively referred to as the "Project Area"), over the course of 5 years (February 5, 2024 through February 4, 2029). 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.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 15 (Tuesday, January 23, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 15 (Tuesday, January 23, 2024)]
[Rules and Regulations]
[Pages 4370-4471]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00297]
[[Page 4369]]
Vol. 89
Tuesday,
No. 15
January 23, 2024
Part II
Department of Commerce
-----------------------------------------------------------------------
National Oceanic and Atmospheric Administration
-----------------------------------------------------------------------
50 Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Coastal Virginia Offshore Wind
Commercial Project Offshore of Virginia; Final Rule
Federal Register / Vol. 89 , No. 15 / Tuesday, January 23, 2024 /
Rules and Regulations
[[Page 4370]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240104-0001]
RIN 0648-BL74
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Coastal Virginia Offshore Wind
Commercial Project Offshore of Virginia
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates
regulations to govern the incidental taking of marine mammals
incidental to the Virginia Electric and Power Company, doing business
as Dominion Energy Virginia (Dominion Energy), construction of the
Coastal Virginia Offshore Wind Commercial (CVOW-C) Project (hereafter,
the CVOW-C Project or the Project) in Federal and State waters offshore
of Virginia, 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 0483
(Lease Area) and along export cable routes to sea-to-shore transition
points (collectively referred to as the ``Project Area''), over the
course of 5 years (February 5, 2024 through February 4, 2029). 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 is effective from February 5, 2024, through
February 4, 2029.
FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Dominion Energy's Incidental Take Authorization (ITA)
application, supporting documents, received public comments, and the
proposed rulemaking, as well as a list of the references cited in this
document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In case of problems accessing these
documents, please call the contact listed above (see FOR FURTHER
INFORMATION CONTACT).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the
authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to authorize
the take of marine mammals incidental to construction of the Project
within the Project Area. NMFS received a request from Dominion Energy
to incidentally take 21 species of marine mammals, comprising 22 stocks
(7 stocks by Level A harassment and Level B harassment and 15 stocks by
Level B harassment only), incidental to Dominion Energy's 5 years of
construction activities. No mortality or serious injury is anticipated
or authorized in this final rulemaking. Please see the Legal Authority
for the Final Action section below for definitions of harassment,
serious injury, and incidental take.
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 (e.g., ``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 Dominion Energy'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;
[[Page 4371]]
<bullet> The establishment of a seasonal moratorium on pile driving
of foundation piles during the months of the highest presence of North
Atlantic right whales (Eubalaena glacialis) in the Lease Area (November
1st through April 30th, annually);
<bullet> A requirement for both visual and passive acoustic
monitoring to occur by NOAA Fisheries-approved Protected Species
Observers (PSOs) and Passive Acoustic Monitoring (PAM) operators (where
required) before, during, and after select activities;
<bullet> A requirement of training for all Dominion Energy
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 devices during all
foundation pile driving installation activities to reduce noise levels
to those modeled assuming 10 decibels (dB);
<bullet> A delay to the start of foundation installation if a North
Atlantic right whale is observed at any distance by PSOs or
acoustically detected within the PAM Monitoring Zone (10 kilometer
(km));
<bullet> A delay to the start of foundation installation if other
marine mammals are observed entering or within their respective
clearance zones;
<bullet> A requirement to shut down pile driving (if feasible) if a
North Atlantic right whale is observed at any distance or if any other
marine mammals are observed entering their respective shutdown zones;
<bullet> A requirement to conduct sound field verification (SFV)
during foundation pile driving 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 to monitor relevant Right Whale Sightings
Advisory System 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 to submit frequently scheduled and
situational reports 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 any 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 216.206(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)).
Dominion Energy'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-project/fast-41-covered-projects/coastal-virginia-offshore-wind-commercial-project">https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/coastal-virginia-offshore-wind-commercial-project</a>.
Summary of Request
On February 16, 2022, Dominion Energy 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. The request was for the incidental, but not intentional,
taking of a small number of 21 marine mammal species (comprising 22
stocks) by Level B harassment (all 22 stocks) and by Level A harassment
(7 species or stocks). Dominion Energy 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 Dominion Energy and NMFS, Dominion Energy
submitted a final revised application on August 5, 2022. NMFS deemed it
adequate and complete on August 12, 2022. This final application is
available on NMFS' website at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>.
On September 15, 2022, NMFS published a notice of receipt (NOR) of
Dominion Energy's adequate and complete application in the Federal
Register (87 FR 56634), requesting public comments and information on
Dominion Energy's request during a 30-day public comment period. During
the NOR public comment period, NMFS received a single comment letter
from an environmental non-governmental organization: the Southern
Environmental Law Center (SELC). We also received a single comment from
a government agency: the United States Geological Survey. These
comments entailed broader comments very similar to those we received
during the proposed notice's comment period, including, but not limited
to: vessel strike avoidance measures; the use of best available science
when evaluating a seasonal pile driving moratorium; suggestions on
proposed clearance and shutdown (termed ``exclusion'') zones for North
Atlantic right whales; cumulative impacts; and additional suggested
mitigation, monitoring, and reporting measures in a supplemental
attachment provided by the commenter. In June 2022, Duke University's
Marine Spatial Ecology Laboratory released updated habitat-based marine
mammal density models (Roberts et al., 2023). Because Dominion Energy
applied marine mammal densities to their analysis in their application,
Dominion Energy submitted a final Updated Density and Take Estimation
Memo (herein referred to as Updated Density and Take Estimation Memo)
on January 10, 2023 that included marine mammal densities and take
estimates based on these new models which NMFS posted on our website in
May 2023.
In January 2023, BOEM informed NMFS that the proposed activity had
changed from what is presented in the adequate and complete MMPA
application. Specifically, the changed proposed activity involved the
reduction of maximum wind turbine generators (WTGs) built (from 205 to
202 WTGs) as under the original Project Design Envelope (PDE) and the
offshore substations (OSSs) would be located in the vessel transit
routes. Under the 202
[[Page 4372]]
build-out, three WTGs would be removed and the three OSSs would be
shifted into these WTG positions. However, in late January 2023,
Dominion Energy confirmed that their Preferred Layout of 176 WTGs is
the base case for construction, but that they could possibly need up to
7 WTGs re-piled in alternate positions due to unstable sediment
conditions, which could necessitate up to 183 independent piling
events. WTG positions have been removed from consideration for one or
more of the following reasons: impracticable due to foundation
technical design risk, shallow gas presence, commercial shipping and
navigation risk concerns, erosion risk, and presence of a designated
fish haven. Based on the information provided, NMFS carried forward the
analysis assuming a total build-out of 176 WTGs plus seven re-piled
WTGs (a total of 183 independent piling events for WTGs) and the 3
originally planned OSSs. Due to the significant reduction of turbines
from the original proposed action found in the adequate and complete
ITA application (reduction of approximately 14 percent), Dominion
Energy, in consultation with NMFS, provided an updated proposed action
summary, revised exposure estimates, revised take requests, and an
updated piling schedule in mid-February 2023 (hereinafter referred to
as the Revised Proposed Action Memo). NMFS posted this to our website
in May 2023.
On May 4, 2023, NMFS published a proposed rule in the Federal
Register for the CVOW-C Project (88 FR 28656). In the proposed rule,
NMFS synthesized all of the information provided by Dominion Energy,
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 30 days on <a href="https://www.regulations.gov">https://www.regulations.gov</a> starting on May 4, 2023 and
closed after June 5, 2023. The public comments can be viewed at <a href="https://www.regulations.gov/docket/NOAA-NMFS-2023-0030">https://www.regulations.gov/docket/NOAA-NMFS-2023-0030</a>; a summary of public
comments received during this 30-day period and NMFS responses are
described in the Comments and Responses section.
NMFS has previously issued six Incidental Harassment Authorizations
(IHAs) to Dominion Energy. Two of those IHAs, issued in 2018 (83 FR
39062, August 8, 2018) and 2020 (85 FR 30930, May 21, 2020) supported
the development of the Coastal Virginia Offshore Wind project, known as
the CVOW Pilot Project (wherein two turbines were constructed). The
remaining four IHAs (two of which were modified IHAs) were high
resolution site characterization surveys within and around the CVOW-C
Lease Area (see 85 FR 55415, September 8, 2020; 85 FR 81879, December
17, 2020; 86 FR 21298, April 22, 2021; and 87 FR 33730, June 3, 2022).
To date, Dominion Energy has complied with all the requirements (e.g.,
mitigation, monitoring, and reporting) of the previous IHAs and
information regarding their monitoring results may be found in the
Estimated Take section. These monitoring reports can be found on NMFS'
website: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations (87 FR 46921,
August 1, 2022) to further reduce the likelihood of mortalities and
serious injuries to endangered right whales from vessel collisions,
which are a leading cause of the species' decline and a primary factor
in an ongoing Unusual Mortality Event (UME). Should a final vessel
speed rule be issued and become effective during the effective period
of these regulations (or any other MMPA incidental take authorization),
the authorization holder will be required to comply with any and all
applicable requirements contained within the final vessel speed 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 Dominion Energy if the measures in the vessel
speed rule were to supersede any of the measures in the MMPA
authorization.
Description of the Specified Activities
Overview
Dominion Energy plans to construct and operate the Project, a 2,500
to 3,000-megawatt (MW) offshore wind farm, in the Project Area. The
Project will allow the Commonwealth of Virginia to meet its renewable
energy goals under the Virginia Clean Economy Act (HB 1526/SB 851).
Dominion Energy's precursor pilot project (i.e., CVOW Pilot
Project) was a 12 MW, two-turbine test project and the first to be
installed in Federal waters. Designed as a research/test project, the
two turbines associated with the CVOW Pilot Project became operational
in October 2020 approximately 27 miles (mi; 43.45 kilometers (km)) off
of Virginia Beach, Virginia. Information on this Pilot Project was used
to inform the CVOW-C project. More information on the Pilot Project can
be found on BOEM's website (<a href="https://www.boem.gov/renewable-energy/state-activities/coastal-virginia-offshore-wind-project-cvow">https://www.boem.gov/renewable-energy/state-activities/coastal-virginia-offshore-wind-project-cvow</a>) and in
the IHA authorized by NMFS in May 2020 for BOEM Lease Area OCS-A-0497
(<a href="https://www.bfisheries.bnoaa.bgov/action/incidental-take-authorization-dominion-energy-virginia-offshore-wind-construction-activities">https://www.bfisheries.bnoaa.bgov/action/incidental-take-authorization-dominion-energy-virginia-offshore-wind-construction-activities</a>).
The Project will consist of several different types of permanent
offshore infrastructure, including 176 WTGs (e.g., the Siemens Gamesa
SG-14-222 DD 14-MW model with power boost technology potentially
allowing up to 14.7-MW, equating to a total of 2,587.2-MW for full
build-out) and associated foundations, three OSSs, offshore substation
array cables, offshore export cables, and substation interconnector
cables. Overall, Dominion Energy will conduct the following specified
activities: install 176 WTGs and 3 OSS on monopile foundations via
vibratory and impact pile driving; install and subsequently remove up
to 9 cofferdams, by vibratory pile driving, and install up to 108 goal
posts (12 goal posts for each of 9 Direct Pipe locations), by impact
pile driving, to assist in the installation of the export cable;
conduct several types of fishery and ecological monitoring surveys;
place scour protection; trenching, laying, and burial activities
associated with the installation of the export cable from OSSs to
shore-based converter stations and inter-array cables between turbines;
conduct HRG vessel-based site characterization surveys using active
acoustic sources with frequencies of less than 180 kilohertz (kHz);
transit within the Project Area and between ports and the Lease Area to
transport crew,
[[Page 4373]]
supplies, and materials to support construction activities; and WTG
operation. From the sea-to-shore transition point, onshore underground
export cables are then connected in series to switching stations/
substations, overhead transmission lines, and ultimately to the grid
connection, which will be located in a parking lot found west of the
firing range at the State Military Reservation located in Virginia
Beach, Virginia.
Marine mammals exposed to elevated noise levels during vibratory
and impact pile driving and site characterization surveys may be taken
by Level A harassment and/or Level B harassment, depending on the
specified activity and species.
A detailed description of the specified activities is provided in
the proposed rule as published in the Federal Register (88 FR 28656,
May 4, 2023). Since the proposed rule was published, Dominion Energy
has not modified the specified activities. Please refer to the proposed
rule for more information on the description of the specified
activities.
Dates and Duration
Dominion Energy anticipates its specified activities to occur
throughout all 5 years of the effective period of the regulations,
beginning on February 5, 2024 and continuing through February 4, 2029.
Dominion Energy's anticipated construction schedule can be found in
Table 1. Dominion Energy 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.
Table 1--Construction Schedule a
----------------------------------------------------------------------------------------------------------------
Project activity Expected timing Expected duration (approximate)
----------------------------------------------------------------------------------------------------------------
Scour Protection Pre-Installation........ Q2 through Q4 of 2024....... 9 months.
Q2 through Q4 of 2025....... 9 months.
WTG Foundation Installation b e.......... Q2 through Q4 of 2024....... 6 months.
Q2 through Q4 of 2025....... 6 months.
Scour Protection Post-installation....... Q2 through Q4 of 2024....... 9 months.
Q2 through Q4 of 2025....... 9 months.
OSS Foundation Installation b e.......... Q2 through Q4 of 2024....... 6 months.
Q2 through Q4 of 2025....... 6 months.
Cable Landfall Construction (Goal Posts Q1 through Q4 of 2024....... 6 months.
and Cofferdams) \h\.
HRG Surveys c d.......................... Q1 2024 through Q4 2028..... Any time of year.
Site Preparation......................... Q1 2024 through Q2 2024..... 6 months.
Inter-array Cable Installation........... Q2 2025 through Q4 2026..... 19 months.
Export Cable Installation................ Q3 2024 through Q3 2025..... 14 months.
Fishery Monitoring Surveys: f g
Surf Clam............................ Q2 2023..................... 1 week.
Whelk................................ Q2 2023 through Q1 2025..... 24 months.
Black Sea Bass....................... Q2 2023 through Q1 2025..... 24 months.
----------------------------------------------------------------------------------------------------------------
Note: ``Q1, Q2, Q3, and Q4'' each refer to a quarter of the year, starting in January and comprising 3 months
each. Therefore, Q1 represents January through March, Q2 represents April through June, Q3 represents July
through September, and Q4 represents October through December.
\a\ While the effective period of the final regulations would extend a few months into 2029, no activities are
planned to occur in 2029 by Dominion Energy, so these were not included in this table.
\b\ Activities would only occur from May 1st through October 31st annually.
\c\ Activities would begin in February 2024, upon the issuance of an associated LOA, and continue through
construction and post-construction.
\d\ For HRG surveys, Dominion Energy anticipates up to 65 days of surveys would occur during the pre-
construction period (2024), up to 307 days during the primary construction years (2025 and 2026), and up to
736 days would be needed during the post-construction years (2027 and 2028) with a 50/50 split of 368 days
each year. No surveys are planned for 2029.
\e\ Dominion Energy anticipates that all WTGs and OSS foundations will be installed by October 31, 2025;
however, unanticipated delays may require some foundation pile driving to occur in 2026 and/or 2027.
\f\ Some fishery monitoring survey activities are planned prior to February 2024 but are not included here as
they would not occur during the effective dates of the rule and an associated LOA.
\g\ Dates displayed here are for field work, as that would be the only component that could impact marine
mammals.
\h\ Although cable landfall activities are anticipated to occur over 9-12 months total, activities capable of
harassing marine mammals would only occur for the specified duration described here as other activities
necessary for landfall construction (i.e., area preparation, material transportation, etc.) would also occur.
Specified Geographic Region
A detailed description of the Specified Geographic Region is
provided in the proposed rule as published in the Federal Register (88
FR 28656, May 4, 2023). Since the proposed rule was published, no
changes have been made to the Specified Geographic Region. Generally,
Dominion Energy's specified activities (i.e., vibratory and impact pile
driving of WTGs on monopile and OSS on jacket foundations; vibratory
pile driving (installation and removal) of temporary cofferdams; impact
pile driving (installation) of goal posts; placement of scour
protection; trenching, laying, and burial activities associated with
the installation of the export cable and inter-array cables; HRG site
characterization surveys; and WTG operation) are concentrated in the
Project Area (Figure 1). A couple of Dominion Energy's specified
activities (i.e., fishery and ecological monitoring surveys and
transport vessels) will occur in the Mid-Atlantic Bight.
BILLING CODE 3510-22-P
[[Page 4374]]
Figure 1--Project Area
[GRAPHIC] [TIFF OMITTED] TR23JA24.000
BILLING CODE 3510-22-C
Comments and Responses
A notice of proposed rulemaking was published in the Federal
Register on May 4, 2023 (88 FR 28656). The proposed rulemaking
described, in detail, Dominion Energy's specified activities, the
specified geographic region of the specified activities, the
[[Page 4375]]
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 Dominion Energy'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. The proposed rule was available for a 30-
day public comment period.
In total, NMFS received 169 comment submissions, comprising 161
individual comments from private citizens and 6 comment letters from
organizations or public groups including, but not limited to: the
Marine Mammal Commission (the Commission), Oceana, Inc. (Oceana), SELC,
Responsible Offshore Development Alliance (RODA), West Coast Pelagic
Conservation Group (WCPCG); and the Virginia Department of Wildlife
Resources (VDWR). Some of the comments received are considered out-of-
scope, including, but not limited to, comments related to the non-
offshore wind farm development; concerns for other species outside of
NMFS' jurisdiction (i.e., birds, tortoises, bats, insects); costs
associated with offshore wind development; recycling of turbine
components; national security concerns; other projects that are not the
CVOW-C Project; and project decommissioning, which would occur outside
the effective period of this rule. These comments are not described
herein or discussed further. Moreover, where comments recommended that
the final rule include mitigation, monitoring, or reporting measures
that were already included in the proposed rule and such measures are
carried forward in this final rule, they are not included here, as
those comments did not raise significant points for NMFS to consider.
Furthermore, if a comment received was unclear, we do not include it
here as we could not determine whether it raised a significant point
for NMFS to consider. NMFS also received a comment letter from Gatzke
Dillion & Ballance LLP on behalf of the Committee for a Constructive
Tomorrow (CFACT), the American Coalition for Ocean Protection (ACOP),
and the Heartland Institute after the close of the public comment
period.
The six letters (i.e., Oceana, RODA, WCPCG, SELC, VDWR, and the
Commission), as well as individual comments, received during the public
comment period contained significant points that NMFS considered in its
estimated take analysis, including: required mitigation, monitoring,
and reporting measures; final determinations; and final regulations.
These are described and responded to below. All substantive comments
and letters are available on NMFS' website: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. Please review the corresponding public
comment link for full details regarding the comments and letters.
Modeling and Take Estimates
Comment 1: The Commission claimed NMFS ``underestimated the numbers
of Level A harassment and Level B harassment takes (including failing
to round up to group size) . . .'' Specifically, the Commission claimed
NMFS underestimated the number of takes for harbor seals because harbor
seals occur in much greater numbers than gray seals off Virginia (see
Jones and Rees, 2022).
Response: NMFS incorporated group size into the estimated take
analysis (see the Estimated Take of Marine Mammals section in the
proposed rule (88 FR 28656, May 4, 2023) and Estimated Take section of
this final rule). The Commission did not provide specific
recommendations to adjust any take estimates other than for harbor and
gray seals. NMFS has reviewed the number of takes by Level A harassment
and Level B harassment for all species and disagrees it is an
underestimate.
While the Commission does indeed cite a relevant paper, Jones and
Rees (2022), as the basis for their observation, NMFS does not believe
this paper alone is enough justification for adjusting take. The study
sites in Jones and Rees (2022) are not applicable to Dominion Energy's
activities (i.e., they are located in estuarine habitat) as NMFS does
not expect these specific areas to be impacted by the construction work
for CVOW-C.
Specifically in addressing the Commission's concerns with the 50/50
allocation of take for pinnipeds between each species, NMFS disagrees
that this method is incorrect and that this approach over- or under-
estimates take. The Duke University density models (Roberts et al.,
2023) group some species together (including phocid seals) to provide a
single density estimate. While we acknowledge that more harbor seals
have been observed in inland Chesapeake Bay waters than gray seals,
there is not sufficient at-sea data to better proportion the number of
takes by species; therefore, we assumed a 50/50 split consistent with
Roberts et al. (2023). Importantly, for each species, we believe the
maximum number of takes authorized in any given year (n=84 for each
species) is a reasonable estimate of the number of harassment takes
that may occur incidental to the specified activities given the
majority of work that may result in marine mammal harassment would be
occurring during times (May 1st through October 31st) when seals are
less likely to be present in Virginia waters. For these reasons, we
disagree with the Commission's claim and have not modified the take
estimate approach in this final rule.
Comment 2: A commenter disagreed with NMFS' preliminary small
numbers determination based on the sum of takes for all species.
Response: Under the MMPA, the Secretary of Commerce, as delegated
to NMFS, shall allow the incidental taking of ``small numbers of marine
mammals of a species or population stock'' if specific findings are
made (16 U.S.C. 1371(a)(5)(a)(i)). Thus, the small numbers finding is
done at the species or population level. In practice, where estimated
numbers are available, NMFS compares the number of individuals
estimated to be taken to the most appropriate estimation of abundance
of the relevant species or stock in our determination of whether an
authorization is limited to small numbers of marine mammals. NMFS has
made the necessary small numbers finding for all affected species and
stocks.
Comment 3: A commenter stated that there is the potential for
repeated exposures to adversely affect species' or stocks' annual rates
of recruitment or survival.
Response: NMFS fully considered the potential for repeated
exposures in the proposed rule and this final rule when determining if
the specified activities would result in a negligible impact to the
affected species and stocks. The Negligible Impact Analysis and
Determination section in both the proposed and final rules discusses
the potential for repeated exposures and the potential related impacts.
As described in those sections, NMFS has determined that the impacts
resulting from the specified activities (recognizing that the potential
for repeated exposures varies with the species due to habitat use
(e.g., migrating whales versus species that may remain in the area over
longer periods of time)), will have a negligible impact on the affected
species and stocks.
Comment 4: Commenters stated that there is no evidence or research
proving that the CVOW-C Project would not cause the mortality or
serious injury of marine mammals. The commenters further stated that
there is no evidence proving that the estimated take
[[Page 4376]]
proposed by NMFS in the proposed rule is accurate or the maximum total.
Response: Regarding take by serious injury or mortality, the
proposed rule clearly states that no serious injury and/or mortality is
expected or proposed for authorization, and the same carries into the
final rule for which no take by serious injury or mortality has been
authorized (see also 50 CFR 217.292(c)).
Regarding the claim that there is no evidence proving the take
estimates are accurate, the take numbers, as shown in the proposed and
final rule, are based on the best available marine mammal density data,
published and peer reviewed scientific literature, on-the-water reports
from other nearby projects or past MMPA actions, and highly complex
statistical models of which real-world assumptions and inputs have been
incorporated to estimate on a project-by-project basis. In the
Estimated Take section, NMFS has provided detailed rationale for why
the number and manner of takes authorized in this final rule are
reasonable and based on the best available science. The commenter did
not provide any information to support their claim that take estimates
are not representative of the take that may occur incidental to the
project. NMFS disagrees with the commenter and expects that the take
numbers authorized for this action are sufficient given the activity
proposed and planned by Dominion Energy.
Mitigation
Comment 5: The commenter stated that the LOA must include
conditions for the survey and construction activities that will first
avoid adverse effects on North Atlantic right whales in and around the
area and then minimize and mitigate the effects that cannot be avoided.
This should include a full assessment of which activities, technologies
and strategies are truly necessary to achieve site characterization and
construction to inform development of the offshore wind projects and
which are not critical, asserting that NMFS should prescribe the most
appropriate techniques that would produce the lowest impact while
achieving the same goals while prohibiting those other tools/techniques
that would cause more frequent, intense, or long-lasting effects.
Response: 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 relevant, 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 Dominion Energy'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 if the requestor's specified activities are
truly necessary or critical; however, NMFS does identify and has
required in this final rule mitigation measures the effect the least
practicable adverse impact on marine mammals.
Comment 6: The commenter stated that the LOA should use buffer
zones to avoid any effects of turbine presence on North Atlantic right
whales and foraging.
Response: Buffer zones have been suggested to mitigate impacts from
offshore wind related activities near areas of significance (e.g.,
known feeding grounds). As described in the proposed rule and herein,
the project area, located offshore Virginia, is not considered foraging
habitat and while some opportunistic foraging may occur, it is
primarily a migratory corridor. Therefore, NMFS disagrees that a new
mitigation measure creating a buffer zone is necessary to effect the
least practicable adverse impact on North Atlantic right whales.
Comment 7: One commenter recommended that NMFS require clearance
and shutdown zones for all protected species that included (1) a
minimum of 5,000 m (3.1 mi) for the visual and acoustic clearance
zones; 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.
Commenters also 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 required shutdown and clearance zones (equally sized)
for large whales (other than North Atlantic right whale) are based on
the largest Level A harassment exposure range calculated for a
mysticete, other than humpback whales, rounded up to the nearest
hundred for PSO clarity. For all other species (e.g., dolphins, harbor
porpoise, seals), clearance and shutdown zones have been developed in
consideration of modeled distances to relevant PTS thresholds with
respect to minimizing the potential for take by Level A harassment,
which were rounded up for PSO clarity. NMFS has determined that these
zone sizes effect the least practicable adverse impact on marine
mammals. Further, delaying the project unnecessarily due to very large
clearance and shutdown zones could have unintended adverse impacts on
marine mammals by extending the construction schedule. The commenters
do not provide additional scientific information to support their
suggestion to expand clearance and shutdown zones to the distances
recommended. NMFS has not incorporated this recommendation into this
final rule.
NMFS agrees that mitigation measures should be designed to avoid
and minimize the potential for PTS and has included such measures in
this rulemaking to effect the least practicable adverse impact on
marine mammals. Specifically, in addition to requiring shutdown of pile
driving if North Atlantic right whales are detected at any distance,
NMFS has identified and required reasonable mitigation measures to
avoid or minimize adverse impacts to marine mammals, such as setting
this Project's impact pile driving clearance zones to be larger than
the Level A harassment (PTS) zones for all other large whale species.
NMFS believes that these measures are effective and would result in
avoiding (North Atlantic right whale) or minimizing (other large
whales) the takes by Level A harassment. We anticipate that where there
is potential for Level A harassment, any auditory injury will be
minimized through the implementation of noise abatement, soft starts,
and clearance and shutdown zones. NMFS has made its required negligible
impact finding based on the amount of take that may be authorized in
the LOA.
NMFS agrees with the commenter that impacts should be minimized to
the maximum extent practicable and we have done so with the required
[[Page 4377]]
mitigation measures. Enlargement of these zones is not practicable as
it could interrupt and delay the project such that construction
activities would occur over longer timeframes, which would incur
additional costs but, importantly, also potentially increase the number
of days that marine mammals are exposed to the disturbance. Conducting
activities as expeditiously as possible when large whales are less
likely to occur in the area is a means by which to minimize harassment.
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 8: A commenter recommended that, to protect all protected
species, NMFS should restrict pile driving at night while another
recommended pile driving should only be allowed to continue after dark
if the activity was started during daylight hours and must continue due
to human safety or installation feasibility (i.e., stability) concerns,
but that nighttime monitoring protocols be required. A commenter
suggested that if pile driving must continue after dark, Dominion
Energy should be required to notify NMFS with these reasons and an
explanation for exemption and 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: Dominion Energy did not request, and NMFS did not
evaluate, nighttime pile driving except in the following circumstance.
In the proposed rule, we indicated that Dominion Energy must initiate
pile driving prior to 1.5 hours before civil sunset and not before 1
hour after civil sunrise unless they submit to NMFS, for approval, an
Alternative Monitoring Plan for nighttime pile driving activities.
Within the final regulations and consistent with the commenter's
recommendation, Dominion Energy will be allowed, due to safety and
stability concerns, to finish piles at night when the pile has been
started during daylight hours, in which they still must provide an
Alternative Monitoring Plan for NMFS review and approval to ensure that
they can appropriately monitor and mitigate for marine mammals in
reduced visibility conditions. This Plan will describe the alternative
monitoring technologies that would be used to observe for marine
mammals, which as described in the proposed rule and carried over into
the final rule, includes technologies such as infrared or thermal
cameras, that are considered practical in low-light conditions and
other periods of reduced visibility to allow for the continuation of
monitoring the applicable clearance and shutdown zones. This
Alternative Monitoring Plan is also applicable to reduced visibility
conditions.
Regarding the reporting requirement specified by the commenter,
required weekly and monthly reports during foundation installation must
contain information that would inform how long and when pile driving
occurred, as Dominion Energy is required to document the daily start
and stop times of all pile-driving activities. At minimum, a final
annual report with this information will be made available to the
public, as recommended by the commenter.
Comment 9: Given the potential of the project to increase the
vessel traffic in and around the project area, a commenter suggests
that the regulations include a vessel traffic plan to minimize the
effects of service vessels on marine wildlife and include the following
requirements for all project vessels, regardless of their function,
ownership, or operator, to further reduce impacts to marine mammals:
(1) all vessels associated with the proposed construction should be
required to carry and use PSOs at all times when under way; and (2)
limit all vessels, regardless of size, to speeds less than 10 knots
(kn) at all times with no exceptions allowed. 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 or less and must follow a scientific
study design. One commenter further suggested that if the Adaptive Plan
is scientifically proven to be equally or more effective than a 10-kn
speed restriction, that the Adaptive Plan could be used as an
alternative to the 10-kn speed restriction. Identical or similar vessel
mitigation measures were suggested by others.
Response: Dominion Energy is required to abide by a suite of vessel
strike avoidance measures that include, for example, seasonal and
dynamic vessel speed restrictions to 10 kn (18.5 km/hour) or less;
required use of dedicated observers (i.e., visual PSOs during
construction activities or trained lookouts during vessel transit) on
all transiting vessels; and a requirement to maintain awareness of
North Atlantic right whale presence and occurrence through monitoring
of North Atlantic right whale sighting systems (i.e., RWSAS, U.S. Coast
Guard Channel 16, the establishment of any Dynamic Management Areas
(DMAs)). Additionally, as included in the proposed rule and required in
this final rule, Dominion Energy is required to submit a North Atlantic
Right Whale Vessel Strike Avoidance Plan to NMFS for review and
approval (see Sec. 217.294(b)(16)). While a year-round 10-kn
requirement could potentially fractionally reduce the already
discountable probability of a vessel strike, this theoretical reduction
is not expected to manifest in measurable real-world differences in
impact. Further, additional limitations on speed have significant
practicability impacts on applicants, in that, given the distance of
CVOW-C's Lease Area offshore of Virginia, vessels trips to and from
shore would significantly increase in duration to the extent that
delays to the project and planned construction schedule would be likely
to occur resulting in impracticable economic and resource (e.g., vessel
availability) constraints. Additionally, requiring a PSO on all
transiting vessels (in lieu of trained crew members) also contribute to
unnecessary and impracticable economic and resources issues (as space
on vessels is limited), which could also extend the number of days
necessary to complete all pile driving of foundations. While NMFS is
requiring a dedicated observer to be aboard all transiting vessels, we
find a dedicated trained crew member is sufficient to observe for
marine mammals, particularly large whales, to further reduce risk of
vessel strike. Furthermore, Dominion Energy has committed to the use of
PAM within the vessel transit corridor to further aid in the detection
of marine mammals. NMFS has determined that these and other included
measures 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 or less at all times.
Regarding an ``Adaptive Plan'', the proposed rule and this final
rule contain adaptive management provisions that allows NMFS to modify
mitigation, monitoring, or reporting measures if doing so creates a
reasonable likelihood of more effectively accomplishing the goal(s) of
the measure (see Sec. 217.297(c)). Dominion Energy may also request
modifications to the mitigation and monitoring measures (see Sec.
217.297(a)-(b)). Therefore, NMFS disagrees that an Adaptive Plan is
necessary to affect the least practicable adverse impact on marine
mammals.
Comment 10: Commenters recommended that NMFS require
[[Page 4378]]
Dominion Energy to implement the best, commercially available combined
NAS technology to achieve the greatest level of noise reduction and
attenuation possible for pile driving, with a specific recommendation
that NMFS require, at a minimum, a 10-dB reduction in SEL. The
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.
Response: NMFS agrees with the suggestion made by the commenters
that underwater noise levels should be reduced to the greatest degree
practicable to reduce impacts on marine mammals. As described in both
the proposed and final rule, NMFS has included requirements for sound
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 modeled assuming 10-dB reduction, as analyzed in
this rulemaking. Preliminary sound measurements from South Fork Wind
indicate that with multiple NAS systems, measured sound levels during
impact driving foundation piles using a 4,000 kilojoules (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 Dominion Energy reduce
sound levels to at or below the model outputs analyzed (assuming a
reduction of 10 dB), we are not requiring greater reduction as it is
currently unclear (based on measurements to date) whether greater
reductions are consistently practicable for these activities, even if
multiple NAS systems are used.
In response to the recommendation by the commenters for NMFS to
confirm that a 10-dB reduction is achieved, NMFS clarifies that,
because no unattenuated piles would be driven, there is no way to
confirm a 10-dB reduction; rather, in-situ SFV measurements will be
required to confirm that sound levels are at or below those modeled
assuming a 10-dB reduction.
In addition to the SFV requirements in the proposed rule, we added
to this final rule the requirement that Dominion Energy must conduct
abbreviated SFV monitoring (consisting of a single acoustic recorder
placed at an appropriate distance from the pile) on all foundation
installations for which the complete SFV monitoring, as required in the
proposed rule, is not carried out consistent with the Biological
Opinion. NMFS is requiring that these SFV results must be included in
the weekly reports. Any indications that distances to the identified
Level A harassment and Level B harassment thresholds for whales must be
addressed by Dominion Energy, including an explanation of factors that
contributed to the exceedance and corrective actions that were taken to
avoid exceedance on subsequent piles.
Comment 11: Commenters recommended that, for HRG surveys, NMFS
require the use of PAM and include a 1,000-m (0.62-mi) acoustic
clearance zone for North Atlantic right whales and also increase the
visual clearance zone to 1,000 m for right whales. Another commenter
recommended that NMFS increase the size of the visual clearance and
shutdown zones during HRG surveys to 500 m (0.31 mi) for all other
large whales. They also suggested that HRG surveys should be halted or
shut down if North Atlantic right whales or other large whales are
acoustically detected.
One commenter who also supported PAM during HRG surveys, stated
that the real-time PAM system should be capable of detecting protected
species at least 10,000 m (6.2 mi) and would be undertaken by a vessel
other than the pile driving vessel or from a stationary unit to avoid
masking effects of the hydrophone. The commenter also suggested that
PAM be used during all impact pile driving, during vibratory pile
driving of the cofferdams, and during HRG surveys.
Response: NMFS disagrees PAM is necessary during HRG surveys. While
NMFS agrees that PAM can be an important tool for augmenting detection
capabilities in certain circumstances, its utility in further reducing
impacts during HRG survey activities is limited. First, it is generally
accepted that, even in the absence of additional acoustic sources,
using a towed passive acoustic sensor to detect baleen whales
(including North Atlantic right whales) is not typically effective
because the noise from the vessel, the flow noise, and the cable noise
are in the same frequency band and will mask the vast majority of
baleen whale calls. Vessels produce low-frequency noise, primarily
through propeller cavitation, with main energy in the 5-300 Hertz (Hz)
frequency range. Source levels range from about 140 to 195 decibel (dB)
re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003; Hildebrand, 2009),
depending on factors such as ship type, load, and speed, and ship hull
and propeller design. Studies of vessel noise show that it appears to
increase background noise levels in the 71-224 Hz range by 10-13 dB
(Hatch et al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM
systems employ hydrophones towed in streamer cables approximately 500 m
behind a vessel. Noise from water flow around the cables and from
strumming of the cables themselves is also low-frequency and typically
masks signals in the same range. Experienced PAM operators
participating in a recent workshop (Thode et al., 2017) emphasized that
a PAM operation could easily report no acoustic encounters, depending
on species present, simply because background noise levels rendered any
acoustic detection impossible. The same workshop report stated that a
typical eight-element array towed 500 m behind a vessel could be
expected to detect delphinids, sperm whales, and beaked whales at the
required range, but not baleen whales, due to expected background noise
levels (including seismic noise, vessel noise, and flow noise).
Second, for HRG surveys, the area expected to be ensonified above
the Level B harassment threshold is relatively small (a maximum of 100
m via the GeoMarine Dual 400 Sparker at 800 joules); this reflects the
fact that the source level is comparatively low and the intensity of
any resulting impacts would be lower level. Further, the small
harassment zone (and 500 m clearance and shutdown zones) are likely to
be effectively monitored via visual means and PAM will only detect a
portion of any animals exposed within these small zones. Together these
factors support the limited value of PAM for use in reducing take with
smaller zones.
NMFS also disagrees that the zones for North Atlantic right whales
and other large whales should be expanded. As described in the proposed
and final rules, the required 500-m clearance zone for North Atlantic
right whales exceeds the modeled distance to the largest 160-dB Level B
harassment isopleth (100 m (0.06 mi) during sparker use) by a large
margin, minimizing the likelihood that they will be harassed in any
manner by this activity. The 500-m distance is five times the estimated
isopleth for the largest 160-dB Level B harassment threshold and we do
not see a need to increase this further. Further, the commenters do not
provide scientific information for NMFS to consider to support their
recommendation to expand the clearance zone. As such, NMFS recognizes
that requiring zones beyond those that meet the least practicable
adverse impact standard could delay the project such that construction
activities are extended to
[[Page 4379]]
the point that it is actually less beneficial for the species. Given
that these surveys are relatively low impact, and that NMFS has
prescribed a precautionary North Atlantic right whale clearance zone
that is larger (500 m) than the largest estimated harassment zone (100
m), NMFS has determined that an increase in the size of the clearance
and shutdown zones for North Atlantic right whales to 1,000 m is not
warranted or practicable and the commenter does not provide new
information supporting this comment. Similarly, increasing the size of
the clearance and shutdown zones for other large whales to 500 m during
HRG surveys is also not warranted or practicable and the commenter does
not provide new information supporting this comment.
Regarding the use of PAM during cable landfall construction,
although distances above the Level B harassment threshold are larger
than for HRG surveys (3,100 m for temporary cofferdams and 1,450 m for
temporary goal posts), the effects are not expected to rise to the
level that would constitute Level A harassment (injurious take). Noise
generated during cable landfall construction is of relatively short
duration, low level, and in nearshore waters (which tend to be calmer
than offshore) where PSO monitoring will be sufficient for detecting
marine mammals to implement mitigation that effects the least
practicable adverse impact on marine mammals. Similar to HRG surveys,
given that the effects to marine mammals from cable landfall
construction are expected to be limited to low level behavioral
harassment (Level B harassment) even in the absence of mitigation
(i.e., no Level A harassment is expected or authorized), the limited
additional benefit anticipated by adding this detection method for the
short term cable landfall pile driving is not warranted or necessary to
ensure the least practicable adverse impact on the affected species or
stocks and their habitat.
Regarding the use of passive acoustic monitoring to implement the
clearance and shutdown zones during foundation installation, 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. In this
final rule, Tables 25 and 26 clearly specify this 10-km PAM monitoring
zone. Dominion Energy is required to submit a PAM Plan to NMFS for
approval at least 180 days prior to the planned foundation 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.
As described in the Mitigation section, NMFS has determined that
the prescribed mitigation requirements are sufficient to effect the
least practicable adverse impact on all affected species or stocks.
Comment 12: The Commission suggested that NMFS' proposed minimum
visibility zone (2 km) during foundation pile driving is insufficient
given that the Level A harassment zone for impact pile driving ranges
from 3.2 to 5.7 km and that the Level B harassment zones range from 5.5
to 6.2 km for North Atlantic right whales.
Response: NMFS appreciates the suggestion by the Commission but
does not agree that an increase of the minimum visibility zone is
warranted. When modeling the PTS threshold zone sizes, Tetra Tech
produced acoustic ranges (R<INF>95</INF><not-eq>). Acoustic ranges
represent the distance to a harassment threshold based on sound
propagation through the environment independent of any receiver. That
is, the R<INF>95</INF><not-eq> values represent the distance at which
an animal would have to remain from a pile for the entire duration of
exposure within a 24 hours period (in this case up to 2 monopiles per
day or 2 pin piles per day). This assumption is unrealistic as we
anticipate animals will move away from the source upon exposure as the
area is primarily a North Atlantic right whale migration corridor and
we do not anticipate whales to remain in the area for extended periods
of time throughout the days. Further, the acoustic ranges are
conservative in that they are calculated from 3D sound fields and then,
at each horizontal sampling range, the maximum received level that
occurs within the water column is used as the received level at that
range. These maximum-over-depth (R<INF>max</INF>) values are then
compared to predetermined threshold levels to determine acoustic and
exposure ranges to Level A harassment and Level B harassment zone
isopleths. However, the ranges to a threshold typically differ among
radii from a source, and also might not be continuous along a radii
because sound levels may drop below threshold at some ranges and then
exceed threshold at farther ranges. To minimize the influence of these
inconsistencies, 5 percent of the farthest such footprints are
typically excluded from the model data. The resulting range,
R<INF>95</INF><not-eq>, is then chosen to identify the area over which
marine mammals may be exposed above a given threshold, because,
regardless of the shape of the maximum-over-depth footprint, the
predicted range encompasses at least 95 percent of the horizontal area
that would be exposed to sound at or above the specified threshold.
R<INF>95</INF><not-eq> excludes ends of protruding areas or small
isolated acoustic foci not representative of the nominal ensonified
zone. Finally, pile driving would occur during times when North
Atlantic right whales are least likely to be in the Project Area.
Creating a large minimum visibility distance despite the rarity of
whales would unnecessarily delay the project such that work would be
extended; thereby increasing the timeframe over which marine mammals
may be exposed to construction activities.
For these reasons, NMFS does not believe it necessary to increase
this zone size. Furthermore, even with the larger acoustic ranges
produced from the conservative modeling, the minimum visibility zone
does not differ greatly from those presented for other nearby projects
which calculated distances to thresholds in consideration of animal
movement (off of New Jersey, final Ocean Wind 1-1.65 km in the summer
and 2.5 km in the winter; proposed Atlantic Shores South--1.9 km).
Comment 13: A commenter questioned why there was a depth
restriction in Dominion Energy's Protected Species Mitigation and
Monitoring Plan (PSMMP) when vessel speeds apply and recommended
additional vessel restrictions regarding 10 kn or less within specific
areas to reduce the risk of vessel strike on cetaceans.
Response: NMFS did not restrict any of the vessel speed measures to
apply at specific depths; instead the measures are designed to apply to
any and all vessel usage by Dominion Energy. Dominion Energy's project
vessels would be restricted to 10 kn or less in certain circumstances,
which include and in cases, go beyond existing vessel speed
regulations. NMFS has included several measures in both the proposed
and final rules that are sufficient to reasonably avoid vessel strike
(see response to Comment 9 above for additional information). NMFS
disagrees with the commenter that additional measures are necessary to
avoid vessel strike.
Comment 14: A commenter suggested the NMFS should require Dominion
to deploy additional noise attenuation technologies that, together with
the double bubble curtain, reach a 15-
[[Page 4380]]
decibel (dB) reduction or greater in sound exposure level (``SEL'').
Response: NMFS acknowledges that underwater noise levels should be
reduced to the greatest degree practicable to reduce impacts on marine
mammals. As described in both the proposed and final rules, NMFS has
included requirements for sound noise attenuation methods that
successfully reduce foundation installation noise levels to, at a
minimum, the levels modeled assuming 10-dB reduction. While NMFS is
requiring that Dominion Energy reduce sound levels to equal or be below
the model outputs analyzed (assuming a reduction of 10 dB), we are not
assuming 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. Preliminary sound measurements from South Fork Wind indicate that
with multiple NAS systems, measured sound levels during impact driving
foundation piles using a 4,000-kJ hammer are at or 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. In
response to the recommendation by the commenters for NMFS to confirm
that a 10-dB reduction is achieved, NMFS clarifies that, because no
unattenuated piles would be driven, there is no way to confirm a 10-dB
reduction; rather, in-situ SFV measurements will be required to confirm
that sound levels are at or below those modeled assuming a 10-dB
reduction. To further clarify, Dominion Energy must achieve an
activity's modeled sound reduction during foundation installation. If
the modeled sound reduction is not achieved, additional measures are
required to reduce those noise levels.
Comment 15: A commenter expresses concern that NMFS' enhanced
measures for North Atlantic right whales are not broadly applied to
other ESA-listed large whale species. They also expressed concern over
the Potential Biological Removal (PBR) for each stock not being
assessed cumulatively based on the take authorized for CVOW-C and other
threats to large whales.
Response: The commenter inappropriately conflates Level A
harassment (e.g., auditory injury, PTS) and Level B harassment (i.e.,
behavioral disturbance) with mortality and serious injury through their
reference to PBR levels. A stock's PBR level is ``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.'' PBR is not an appropriate metric to
evaluate the take allowed under the CVOW regulations in the manner
suggested by the commenter, which is take by Level A harassment or
Level B harassment, not mortality or serious injury (i.e., removals
from the population). NMFS has described and used an analytical
framework that is appropriate. We consider levels of ongoing
anthropogenic mortality from other sources, such as commercial
fisheries, in relation to calculated PBR levels as part of the
environmental baseline in our negligible impact analysis.
Regarding cumulative impacts, NMFS refers the commenter to the
response found in Comment 28 as the same information applies here.
Furthermore, while the commenter is correct that enhanced mitigation
and monitoring measures are required for North Atlantic right whales
specifically, given their unique and precarious position, and that some
of these measures will have beneficial effects on other species as
well. For example, while PAM detections of a North Atlantic right
whale, at any distance, would necessitate a shutdown/delay to any
specified activity, we expect that other low-frequency specialists will
benefit from the use of PAM (i.e., detections) as these will provide
additional awareness to complement PSOs on visual observation. While we
do acknowledge that the ``at any distance'' provision is not a blanket
requirement across all species, we believe that the additional
awareness provided by PAM, in addition to the conservative zone sizes
will also reduce negative impacts to these other species. Requiring
shutdowns/delays ``at any distance'' for all large whale species,
regardless of status, could potentially extend the duration project
activities would be necessary, as more frequent shutdowns/delays would
otherwise be needed. There are offsetting benefits to completing the
project activities (specifically foundation installation) in a shorter
amount of time, as extending these construction periods due to more
frequent shutdowns runs the risk of extending activities into months
where species densities are higher in the Project Area.
Comment 16: A commenter recommended that NMFS work more to
encourage the use of gravity-based and suction bucket foundations
rather than piled foundations, as these foundations have demonstrated a
potential for reduced impacts to marine mammals while providing
potentially more flexibility to developers. They further suggested
that, if this isn't possible for CVOW-C or other future projects, which
NMFS works with BOEM to encourage measures that could lead to greater
levels of noise reduction during pile driving.
Response: NMFS agrees that there are sound minimization benefits to
marine mammals when using non-pile driven foundations, such as the
results shown in recent publications (e.g., Potlock et al., 2023).
However, it is not within NMFS' authority to determine the applicant's
specified activities. 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 relevant, 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 mammals from all of the
specified activities combined will have a negligible impact on all
affected marine mammal species or stocks.
NMFS continually supports efforts to reduce ocean noise across
various industries, including OSW. For example, NOAA's Ocean Noise
Strategy (<a href="https://oceannoise.noaa.gov/">https://oceannoise.noaa.gov/</a>) articulates the agency's vision
for addressing ocean noise impacts to marine species, and NMFS supports
BOEM's Recommendations for Offshore Wind Project Pile Driving Sound
Exposure Modeling and Sound Field Measurement document and BOEM's
Nationwide Recommendations for Impact Pile Driving Sound Exposure
Modeling and Sound Field Measurement for Offshore Wind Construction and
Operations Plans (<a href="https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/FINAL%20Nationwide%20Recommendations%20for%20Impact%20Pile%20Driving%20Sound%20Exposure%20Modeling%20and%20Sound%20Field%20Measurement%20%28Acoustic%20Modeling%20Guidance%29.pdf">https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/FINAL%20Nationwide%20Recommendations%20for%20Impact%20Pile%20Driving%20Sound%20Exposure%20Modeling%20and%20Sound%20Field%20Measurement%20%28Acoustic%20Modeling%20Guidance%29.pdf</a>). NMFS and BOEM also are jointly
working on the North Atlantic Right Whale and Offshore Wind Strategy
(<a href="https://www.noaa.gov/news-release/noaa-and-boem-announce-draft-offshore-wind-north-atlantic-right-whale-strategy">https://www.noaa.gov/news-release/noaa-and-boem-announce-draft-offshore-wind-north-atlantic-right-whale-strategy</a>). All of these
documents encourage reducing ocean noise,
[[Page 4381]]
including BOEM's establishment of quieting performance standards for
OSW and conducting some level of SFVs on every pile installed, which
NMFS has provided feedback on and supports. Finally, NMFS is
collaborating with BOEM and the Department of Energy (DOE) on a recent
funding notice focused on installation noise reduction and reliable
moorings for offshore wind and marine energy (found here at: <a href="https://www.energy.gov/eere/wind/articles/funding-notice-installation-noise-reduction-and-reliable-moorings-offshore-wind?utm_medium=email&utm_source=govdelivery">https://www.energy.gov/eere/wind/articles/funding-notice-installation-noise-reduction-and-reliable-moorings-offshore-wind?utm_medium=email&utm_source=govdelivery</a>).
Comment 17: The commenters recommend that NMFS prohibit site
assessment and site characterization activities during times of highest
risk to North Atlantic right whales, using the best available science
to define high-risk timeframes. In addition, the commenters suggest
that NMFS should develop a real-time mitigation and monitoring protocol
to dynamically manage the timing of site assessment and
characterization activities to ensure those activities are undertaken
during times of lowest risk for all relevant large whale species.
Response: As discussed in Comment 9, given the required vessel
strike avoidance mitigation measures and small Level A harassment and
Level B harassment isopleths for HRG surveys (54.2 m and 100 m,
respectively), no Level A harassment, serious injury, or mortality is
anticipated or authorized for this activity for any species, and the
comparatively limited number of authorized takes by Level B harassment
is expected to result in low-level impacts. The largest modeled Level B
harassment zone size for the GeoMarine Dual 400 sparker (100 m) is
already much smaller than the required separation and shutdown
distances for North Atlantic right whale (500 m) and any unidentified
large whale that would be treated as if it were a North Atlantic right
whale. Furthermore, the proposed rule and this final rule include a
framework of mitigation and monitoring measures designed to effect the
least practicable adverse impact on marine mammals (see 50 CFR
217.294(e), 217.295). Therefore, NMFS disagrees there is a need to
prohibit such surveys during ``high-risk timeframes'' and develop a
dynamic management system.
Comment 18: One commenter recommended that all vessels responsible
for crew transport (i.e., service operating vessels) should use
automated thermal detection systems to assist monitoring efforts while
vessels are in transit.
Response: NMFS is requiring that all vessels, when transiting, must
utilize trained, dedicated observers and, in the case of reduced
visibility, use alternate technology to maintain visual monitoring,
which may include infrared technologies (a type of thermal detection
system). Dominion Energy is required to submit a Vessel Strike
Avoidance Plan which will describe the type of technologies they
propose to use to monitor for marine mammals. NMFS will evaluate that
plan and determine if different or additional technology is required.
Comment 19: The commenter asserted that to minimize the impacts of
underwater noise from HRG surveys to the fullest extent feasible,
project proponents should select and operate sub-bottom profiling
systems at power settings that achieve the lowest practicable source
level for the objective.
Response: NMFS agrees with the suggestion made by the commenters
that underwater noise levels should be reduced to the greatest degree
practicable to reduce impacts on marine mammals. NMFS also agrees with
the suggestion that Dominion Energy should utilize its HRG acoustic
sources at the lowest practicable source level to meet the survey
objective and has incorporated this requirement into the final rule
(see Sec. 217.294(e)(4)).
Comment 20: A commenter suggested that NMFS require: (1) at least
15 dB of sound attenuation from pile driving, with a minimum of 10 dB
to be required; (2) field measurements be conducted on the first pile
installed and the data must be collected from a random sample of piles
through the construction period, although the commenter specifically
notes that they do not support field testing of unmitigated piles; and
(3) that all sound source validation reports of field measurements be
evaluated by both NMFS and BOEM prior to additional piles being
installed and that these reports be made publicly available. Another
commenter has suggested that NMFS strengthen its requirement to
maximize the level of noise reduction possible for the CVOW-C Project,
utilizing 10 dB as the minimum only but meeting upwards of 20 dB of
noise reduction. To support their assertion, they cited datasets by
Bellmann et al. (2020 and 2022). They also recommended that NMFS
require the ``best commercially available combined NAS technology'' to
achieve noise reduction and attenuation.
Response: NMFS acknowledges that previous measurements (see
Bellmann, 2019; Bellmann et al., 2020) indicate that the deployment of
double big bubble curtains should result in noise reductions beyond the
assumed 10 dB. However, when sound field verifications (SFV)
measurements are conducted during construction, several factors come
into play in determining how well modeled levels/isopleths correspond
to those measured in the field, such as the level at the source, how
well the noise travels in the environment, and the effectiveness of the
deployed NAS across a broad range of frequencies. For these reasons,
NMFS conservatively assumes only a 10-dB noise reduction. Furthermore,
if SFV measurements consistently demonstrate that distances to
harassment thresholds are less than those modeled assuming 10 dB
attenuation, adjustments in monitoring and mitigation can be made by
NMFS, upon request by Dominion Energy. We reiterate that there is no
requirement to achieve 10-dB attenuation as no unattenuated piles would
be driven; therefore, it is not possible to collect the data necessary
to enforce this requirement. However, as described in Comments 10 and
14, we are requiring the developer to meet the noise levels modeled,
assuming 10-dB attenuation. NMFS is also actively engaged with other
agencies and offshore wind developers on furthering quieting
technologies.
It is important to note that the assumed 10-dB reduction is not a
limit, it is a conservative estimate of the likely achievable noise
reduction, which along with all other modeling assumptions, allows for
estimation of marine mammal impacts and informs monitoring and
mitigation. However, we have incorporated requirements to add or modify
NAS in the event that noise levels exceed those modeled.
NMFS notes that Dominion Energy must conduct SFV on three monopiles
and on all OSS foundations (n=12 pin piles total) and, at this time,
NMFS does not support unmitigated field testing for pile installation.
If SFV acoustic measurements indicate that ranges to isopleths
corresponding to the Level A harassment and Level B harassment
thresholds are less than the ranges predicted by modeling (assuming 10
dB attenuation), Dominion Energy may request a modification of the
clearance and shutdown zones for foundation pile driving of monopiles.
If requested and upon receipt of an interim SFV report, NMFS may adjust
zones (i.e., Level A harassment, Level B harassment, clearance,
shutdown, and/or minimum visibility zone) to reflect SFV measurements.
As part of the updates to the final rule, NMFS also requires
maintenance checks and testing of NAS
[[Page 4382]]
systems before each use to ensure the NAS is usable and the system is
able to achieve the modeled reduction, this information would be
required to be reported to NMFS within 72 hours of an installation but
before the next installation occurs.
Lastly, NMFS agrees that SFV reports (sound source validation
reports) to NMFS should be required and evaluated by the agencies prior
to further work commencing. NMFS agrees that the final SFV reports that
have undergone quality assurance/quality control (QA/QC) by the
agencies and include all of the required information to support full
understanding of the results will be made publicly available; however,
interim results without full review and all of the other supporting
information are not ripe or appropriate for public availability.
Comment 21: A commenter stated that the seasonal restriction put
into place for foundation pile driving for North Atlantic right whales
should be assessed with regards to other marine mammal species, such as
humpback whales, which may be present in higher numbers in the summer.
They further suggested that additional protective approaches are needed
for other species that may be present, such as the use of a real-time
monitoring and mitigation system. Other commenters suggested dynamic
management of activity temporal restrictions during project
construction based on near real-time monitoring.
Response: 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 Virginia during summer months. For example, humpback
whales, based on the Duke University density models (Roberts et al.,
2023), have higher occurrences in the late winter/early spring period
(January through April) and reach their highest numbers within May and/
or June. Subsequent declines in densities are noted after peak summer.
Fin whales demonstrate a fairly year-round presence off of Virginia,
with the highest densities occurring from November through May. We note
that the highest densities are located in more offshore waters than the
CVOW-C Project would be located and generally more northern in
distribution. Harbor porpoises are primarily located off of Virginia
from November through April, per Roberts et al. (2023). These durations
almost all fall within the large seasonal restriction required by NMFS
(November through April), which would reduce much of the impact to
animals transiting through the area. Furthermore, Dominion Energy's
analysis and take numbers were run assuming average seasonal densities,
which may be slightly higher given increased densities when averaged
with lower ones. Given that we expect marine mammals to actively be
transiting through the area, rather than residing, impacts should be
further lessened. While we acknowledge that some whales, such as the
North Atlantic right whale, are acoustically detected year-round off of
Virginia (Salisbury et al., 2015), no scientific information or data
supports the offshore Virginia waters as a Biologically Important Area
for any other protected marine mammal species (besides the North
Atlantic right whale migratory corridor). However, this is not to say
that these species do not occur in these waters, but simply that the
Virginia offshore waters are not primary habitat for essential life
functions, such as foraging or calving, for other protected species.
Instead, marine mammals primarily utilize these waters to transit to or
from a more viable/important habitat.
Lastly, NMFS agrees that a near real-time monitoring system and
protocols for North Atlantic right whales and other large whale species
is a prudent and practicable measure and, as such, included real-time
PSO monitoring and near real-time PAM (where practicable and effective
(i.e., foundation pile driving) in the proposed rule and the final rule
(see Comments 21 and 22). Monitoring will inform whether other
mitigation measures, such as delaying or shutting down a source, are
triggered.
Monitoring, Reporting, and Adaptive Management
Comment 22: Commenters recommended that NMFS require real-time
notifications of project activities (e.g., HRG surveys, pile driving,
etc.) and immediate notifications of any strandings or sightings of
North Atlantic right whales or other protected species. Commenters also
recommended NMFS make reports publicly available.
Response: The commenter did not identify why real-time notification
to NMFS regarding project activities is necessary and NMFS does not
agree this is necessary or practicable. Dominion Energy is required to
submit weekly reports to NMFS during foundation installation, which
includes project activities. It is not necessary for NMFS to track, in
real-time, project activities.
NMFS agrees with the commenter that North Atlantic right whale
reporting should be done in a timely manner. The proposed and final
rule each contain situational reporting requirements for every North
Atlantic right whale sighting or acoustic detection immediately but
also recognizes the potential for immediate communication to be
challenging. In both of the proposed and final rules, NMFS has included
a requirement that if a North Atlantic right whale is observed at any
time by PSOs or project personnel, Dominion Energy must ensure the
sighting is immediately (if not feasible, as soon as possible and no
longer than 24 hours after the sighting) reported to NMFS, the U.S.
Coast Guard, and the Right Whale Sightings Advisory System (RWSAS).
This includes stranded animals. If the North Atlantic right whale is
stranded, the report (via phone or email) must include contact (name,
phone number, etc.), the time, date, and location of the first
discovery (and updated location information if known and applicable);
species identification (if known) or description of the animal(s)
involved; condition of the animal(s) (including carcass condition if
the animal is dead); observed behaviors of the animal(s), if alive; if
available, photographs or video footage of the animal(s); and general
circumstances under which the animal was discovered. Any acoustic
detection of a North Atlantic right whale would be reported to NMFS as
soon as possible, but no longer than 24 hours after the detection via
the 24-hour North Atlantic right whale Detection Template (<a href="https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates">https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates</a>).
PSOs and PAM operators are required to follow strict reporting
requirements (i.e., weekly and monthly (during foundation
installation), and annually and situationally (all activities)) to
document the sighting, behavior, species, etc. NMFS does not consider
real-time reporting necessary, nor have we required it. ``Real-time''
reporting constitutes immediate or instantaneous notifications at the
time of the sighting or observation. Instead, NMFS does, in the
Monitoring and Reporting section, require ``near real-time'', which
allows the notification to happen in a timely manner but after a
reasonable delay when on the water. Weekly and monthly reports would be
required for the duration of foundation installation. The final rule
requires annual reports on sightings, activities, and take resulting
from the project, and a 5-year report on all visual and acoustic
monitoring. Situational reporting is required for any event that might
need more direct NMFS-intervention (such as an adaptive
[[Page 4383]]
management need), due to the sighting of a large whale species, or an
unexpected marine mammal interaction occurred or was detected. We also
note that the commenter does not provide justification regarding what
actions NMFS would be expected to undertake for real-time reporting, or
why that would be necessary. In the event of sighting a dead or injured
marine mammal, NMFS has included specific situational reporting
requirements that would need to be undertaken as soon as feasible but
within 24 hours. This feasibility requirement is necessary as there are
many different situations that could occur on the water that could
reduce communication potential, so NMFS allows the developer some time
to maintain or recover communication if necessary. Because of this,
NMFS does not see any issues with its requirements for situational
reporting and feasibility and has opted not to change anything herein.
The only circumstance wherein immediate reporting is required is in the
unforeseen instance that a Project vessel strikes a marine mammal. The
non-auditory injury or death of a marine mammal caused by vessel strike
must be immediately reported to NMFS, and Dominion Energy must
immediately cease all on-water activities until the NMFS Office of
Protected Resources is able to review the circumstances of the incident
and determine what, if any, additional measures are appropriate to
ensure compliance with the terms of the LOA. All final reports
submitted to NMFS will be included on the website for availability to
the public.
Comment 23: The commenter expressed concern regarding the PAM
details and protocol as there is some variation on the ``target''
frequencies detectable based on the type of equipment chosen. The
commenter stated that because of this ambiguity, ``it is not possible
to assess what the detection capabilities will be based on the
information.''
The commenter suggested that the use of a PAM system with
localization capabilities, if available, should provide sufficient
information regarding presence within the clearance/shutdown zone, but
also recommended the use of other technologies (e.g., semi-automated
infrared systems, drones) to aid in marine mammal observation.
Response: As described in the proposed rule (88 FR 28656, May 4,
2023), Dominion Energy is required to submit a detailed PAM Plan to
NMFS for approval that describes the PAM system(s) proposed for use.
While the systems are not yet finalized (hence the variability noted by
the commenter), NMFS has established criteria in the proposed and final
rules (e.g., the system must be capable of detecting baleen whales out
to 10 km from the pile being installed). NMFS will evaluate if the
bandwidth capabilities of the PAM system proposed meet these criteria.
Furthermore, our Adaptive Management provision within the final rule
allows us to adapt to new technology and information, which allows us,
in discussions with Dominion Energy, to modify the PAM monitoring, as
determined to be applicable.
NMFS disagrees that PAM alone should be used to monitor marine
mammals and is requiring both visual and acoustic monitoring for
specific specified activities. As described in the proposed rule, NMFS
requires that Dominion Energy employ both visual and PAM methods as
both approaches aid and complement each other (Van Parijs et al.,
2021). NMFS has also considered the use of semi-automated infrared
systems to support visual monitoring. While Dominion Energy is free to
propose using such systems, we are not requiring Dominion Energy to use
such systems at this time (see Comment 23). Similar to the PAM Plan,
NMFS requires Dominion Energy to submit, for approval, a Pile Driving
Monitoring Plan that meets the criteria required in this final rule
(e.g., visually observe for marine mammals to select distances).
Similar to PAM, the Adaptive Management provision in the final rule
allows for technological developments in monitoring or mitigation to be
implemented, in coordination with Dominion Energy.
Comment 24: Commenter suggested that NMFS require tracking and
monitoring for ``unusual patterns'' in protected species strandings
specifically related to HRG surveys and other construction activities.
Response: As NMFS has explained in the proposed rule and in this
final rule, strandings (e.g., mortality) are not an anticipated outcome
of the specified activities, including HRG surveys, and there is no
evidence to suggest otherwise. Further, marine mammal strandings are
fully tracked and monitored via NMFS' Marine Mammal Health and
Stranding Response Program (<a href="https://www.fisheries.noaa.gov/national/marine-life-distress/marine-mammal-health-and-stranding-response-program">https://www.fisheries.noaa.gov/national/marine-life-distress/marine-mammal-health-and-stranding-response-program</a>). As such, NMFS disagrees that Dominion Energy should be
required to track strandings.
Comment 25: A commenter requested NMFS define the frequency at
which we would review any new information for modifications to the LOA
via the Adaptive Management provision. A commenter recommended this
occur once a quarter, while allowing for a mechanism to undertake
review and adaptive management on an ad hoc basis if a serious issue is
identified (e.g., if unauthorized takes by Level A harassment are
reported or if serious injury or mortality occurs). They have also
recommended that NMFS incorporate review by independent subject-matter
experts to increase transparency, to provide an opportunity to share
information, and to allow for the input of additional scientific
expertise.
Response: We disagree that the frequency at which information is
reviewed should be defined in the Adaptive Management provision. The
purpose of the Adaptive Management is to allow for the incorporation of
new information as it becomes available, which could mean advancements
and new information becomes available quickly (i.e., days or weeks)
that would necessitate NMFS to consider adapting the issued LOA, or
over long periods of time as robust and conclusive information becomes
available (i.e., months or years). NMFS will be reviewing interim
reports as they are submitted; hence, the quarterly review, as
suggested by the commenter, is not necessary. NMFS retains the ability
to make decisions as information becomes available, and after
discussions with Dominion Energy about feasibility and practicability.
Regarding the suggestion for ad hoc changes in the event that
additional take by Level A harassment or take via serious injury/
mortality of a marine mammal occurs, we do not agree with the
suggestion by the commenter. NMFS has included two relevant provisions
in its final rule that state that ``[t]ake by mortality or serious
injury of any marine mammal species is not authorized'' and that ``it
is unlawful for any person to . . . take any marine mammal specified in
the LOA in any manner other than as specified in the LOA.'' We refer
the commenter to the ``Prohibitions'' portion of the regulatory text
(see Sec. 217.293). In the event Dominion Energy's project takes any
marine mammals in a manner that has not been authorized in the final
rule (see Sec. 217.293) these would be in violation of the MMPA and
regulations and NMFS would undertake appropriate actions, as determined
to be necessary (see 16 U.S.C. 1371(a)(5)(B)).
Lastly, regarding independent review, NMFS disagrees that such
reviews should be incorporated into the adaptive management process.
The MMPA and its implementing regulations require that incidental take
[[Page 4384]]
regulations be established based on the best available information and
the MMPA does not proscribe use of independent, subject matter expert
review of NMFS' determinations outside of the public comment process.
Comment 26: Commenters stated that the regulations must include a
requirement for all phases of the CVOW-C 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 Sec. 217.295(g)(13), (15)(i)-(v) of the
regulations for more information on situational reporting. NMFS
requires North Atlantic right whale sightings to be reported
immediately (if not feasible, as soon as possible and no longer than 24
hours after the sighting). Similarly, if a North Atlantic right whale
is acoustically detected at any time by a project-related PAM system,
Dominion Energy must report the detection as soon as possible to NMFS,
but no longer than 24 hours after the detection. 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 refer the commenters to Sec.
217.295(g) for more information on reporting requirements in the
regulations.
Effects Assessment
Comment 27: Commenters stated that NMFS must use the more recent
and best available science, including population estimates, in
evaluating impacts to North Atlantic right whales, given its critically
endangered status. This includes using updated population estimates,
recent habitat usage patterns for the project area, and a revised
discussion of the acute, chronic, and cumulative stress on North
Atlantic right whales in the region.
Response: NMFS has used the best available science in its analysis.
Since issuance of the proposed rule, NMFS has finalized the 2022 Stock
Assessment Report (SAR) indicating the North Atlantic right whale
population abundance is estimated as 338 individuals (confidence
interval: 325-350; 88 FR 4162, January 24, 2023). NMFS has used this
most recent best available 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 draft and final 2022 Stock Assessment Reports
(<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment</a> reports) and provides the most recent
and best available estimate, including improvements to NMFS' right
whale abundance model. More recently, in October 2023, NMFS released a
technical report identifying that the North Atlantic right whale
population size based on sighting history through 2022 was 356 whales,
with a 95 percent credible interval ranging from 346 to 363 (Linden,
2023). NMFS conservatively relies on the lower SAR abundance estimate
in this final rule. The finalization of the draft to final 2022 SAR did
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 Dominion Energy's construction activities.
NMFS cannot require applicants to utilize specific models for the
purposes of estimating take incidental to offshore wind construction
activities, but we do require use of the Roberts et al. (2016, 2023)
density data for all species, which represents the best available
science regarding marine mammal occurrence.
The proposed rule includes discussion of North Atlantic right whale
habitat use in the Project Area, which is located off of Virginia (NMFS
notes the comments provided incorrectly reference southern New
England). The proposed rule also includes a discussion of the effects
of stress on marine mammals from exposure to noise from the project;
the discussion is informed by the best available science. NMFS has
carefully reviewed the best available scientific information in
assessing impacts to marine mammals and recognizes that Dominion
Energy's activities have the potential to impact marine mammals through
behavioral effects, stress responses, and temporary auditory masking.
However, and specifically given the predicted exposures and number of
authorized takes, NMFS does not expect that the generally short-term,
intermittent, and transitory marine site characterization survey
activities planned by Dominion Energy will create conditions of acute
or chronic acoustic exposure leading to long-term physiological stress
responses in marine mammals. For pile driving activities, and also
specifically given the predicted exposures and amount of authorized
take, we do not expect that the impacts from these activities would
result in acute or chronic acoustic exposure that would lead to long-
term physiological stress responses as these activities will all be
localized and performed for limited durations. Additionally, for all
activities, NMFS has prescribed a robust suite of mitigation and
monitoring measures, including extended distance shutdowns for North
Atlantic right whales, seasonal restrictions, dual-PSO and PAM usage,
and NAS use that are expected to further reduce the duration and
intensity of acoustic exposure, while limiting the potential severity
of any possible behavioral disruption. The potential for chronic stress
was evaluated in making the determinations presented in NMFS'
negligible impact analyses. Furthermore, the area in which CVOW-C is
located is not a known feeding habitat for North Atlantic right whales,
although it is found within the migratory corridor BIA for North
Atlantic right whales. NMFS does not anticipate that North Atlantic
right whales would be displaced from the area where Dominion Energy's
activities would occur, and the commenter does not provide evidence
that this effect should be a reasonably anticipated outcome of the
specified activity.
With respect to cumulative impacts, please see response to Comment
28.
Comment 28: Several commenters raised concerns regarding the
cumulative impacts of the multiple offshore wind projects being
developed
[[Page 4385]]
throughout the range of marine mammals, including North Atlantic right
whales, and specifically recommended that NMFS carefully consider the
discrete effects of each activity and the cumulative effects of the
suite of approved, proposed, and potential activities on marine mammals
to ensure that the cumulative effects are not ``excessive'' before the
promulgation of the final rule.
Another member of the public expressed concerns over the number of
North Atlantic right whales that have ``already been killed'' when
combined with other offshore wind projects along the East Coast.
A member of the public has asked how NOAA is tracking the takes of
several species, including marine mammals, and where this list can be
found for the public. They have also asked how NOAA will determine an
``acceptable'' number of possible harassment/injuries/deaths for each
species, annually, could occur.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of the take resulting from other
activities in the negligible impact analysis. The preamble for NMFS'
implementing regulations (54 FR 40338, September 29, 1989) states, in
response to comments, that the impacts from other past and ongoing
anthropogenic activities are to be incorporated into the negligible
impact analysis via their impacts on the baseline. Consistent with that
direction, NMFS has factored into its negligible impact analysis the
impacts of other past and ongoing anthropogenic activities via their
impacts on the baseline (e.g., as reflected in the density/distribution
and status of the species, population size and growth rate, and other
relevant stressors).
The 1989 final rule for the MMPA implementing regulations also
addressed public comments regarding cumulative effects from future,
unrelated activities. There, NMFS stated that such effects are not
considered in making findings under section 101(a)(5) concerning
negligible impact. In this case, this 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 (see 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, Dominion Energy 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 Environmental Impact
Statement (EIS) written by BOEM and reviewed by NMFS as part of its
inter-agency coordination. This EIS addresses cumulative impacts
related to Dominion Energy 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 Dominion Energy, 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 Dominion Energy 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 the ESA
Interagency Cooperation Division within the Office of Protected
Resources. The Biological Opinion for CVOW-C 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.
Given that each project is considered its own discrete action, for
final marine mammal sightings recorded during each relevant project,
NMFS directs the public to the relevant Project web page, where annual
and final reports will be published describing the number of marine
mammals detected within specific harassment zones to date and across
the entire effective period of the Project.
Regarding the number of North Atlantic right whales for which take
has been authorized--NMFS reiterates that only Level B harassment
(behavioral) is anticipated and has been authorized for this species.
In looking at the maximum annual authorized number, Dominion Energy is
authorized to harass no more than 7 North Atlantic right whales
(assuming each instance of harassment occurs to a different
individual), representing 2.04 percent of the total population. Over
the course of 5 years, Dominion Energy would be authorized to harass up
to 17 individual North Atlantic right whales. We expect that any
instance of harassment would result in short-term impacts such as
avoidance of the project area but not abandonment of their migratory
habitat. Further, as described in the Negligible Impact Analysis and
Determination Section, the location of the least area (44 km offshore)
and seasonal restriction on foundation installation pile driving (the
most impactful activity) provides high conservation benefit and greatly
minimizes impacts on North Atlantic right whales (as evidenced by the
very small amount of take authorized despite the size of the project).
We reiterate that we do not anticipate, nor have we proposed or
authorized, mortality or serious injury for any marine mammal species
for the CVOW-C Project. This includes for North Atlantic right whales,
where no Level A harassment is anticipated or authorized due to the
mitigation measures required to be implemented by Dominion Energy.
Comment 29: Several commenters stated that more time and research
is needed to understand what the impacts of offshore wind may be on the
ocean and marine life.
Response: NMFS is required to authorize the requested incidental
take if it finds the total incidental take of small numbers of marine
mammals by U.S. citizens while engaging in a specified activity within
a specified geographic region during a five-year period (or less) will
have a negligible impact on such species or stock and where
appropriate, will not have an unmitigable adverse impact on the
availability of such species or stock for subsistence uses (16 U.S.C.
1371(a)(5)(A)). While the incidental take authorization must be based
on the best scientific information available, the MMPA does not allow
NMFS to delay issuance of the requested authorization on the
presumption that new information will become available in the future.
NMFS has made the required findings, based on the best scientific
[[Page 4386]]
information available and has included mitigation measures to effect
the least practicable adverse impacts on marine mammals.
Other
Comment 30: Two commenters have 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, as well as to account for the
quickly evolving situation for the North Atlantic right whale.
Response: NMFS appreciates the commenter regarding our ITA process.
While NMFS acknowledges the commenter's 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. 217.297(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 31: Several commenters have expressed concern regarding the
recent whale deaths, which they claim are the result of offshore wind
activities and pre-construction survey activities. Another commenter
has 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.
Another commenter has stated that NMFS cannot determine the cause
of the recent whale deaths accurately without doing necropsies. Because
of this, the commenter states that NMFS cannot determine that recent
whale mortalities were not related to ``the whales' diminished ability
to determine its location due to acoustic damage to its echolocation
systems'' from offshore wind-related surveys (i.e., HRG and site
assessment surveys).
Lastly, another commenter stated that funding should be made
available to: (1) train PSOs; (2) stranding network organizations to
carry out necessary carcass recovery, examination, and diagnostic tests
to exclude acoustic injuries as reasons for strandings associated with
HRG surveys and/or construction activities; and (3) understand how
strandings of protected species in unusual patterns during or around
times where HRG surveys/construction activities occur so that costs can
be calculated for the relevant response (e.g., offshore whale carcass
towing, heavy equipment rentals, etc.) as well as to provide
accountability on the cause of the stranding.
Response: There is no evidence that noise resulting from offshore
wind development-related site characterization surveys, which are
conducted prior to construction, could potentially cause marine mammal
strandings, and there is no evidence linking recent large whale
mortalities and currently ongoing surveys. This point has been well
supported by other agencies, including BOEM and the Marine Mammal
Commission. The commenters offer no such evidence or other scientific
information to substantiate their claim. NMFS will continue to gather
data to help us determine the cause of death for these stranded whales.
The Marine Mammal Commission's recent statement supports NMFS'
analysis: ``There continues to be no evidence to link these large whale
strandings to offshore wind energy development, including no evidence
to link them to sound emitted during wind development-related site
characterization surveys, known as HRG surveys. Although HRG surveys
have been occurring off New England and the mid-Atlantic coast, HRG
devices have never been implicated or causatively associated with
baleen whale strandings.'' (Marine Mammal Commission Newsletter, Spring
2023). There is an ongoing Unusual Mortality Event (UME) for humpback
whales along the Atlantic coast from Maine to Florida, which includes
animals stranded since 2016. Partial or full necropsy examinations were
conducted on approximately half of the whales. Necropsies were not
conducted on other carcasses because they were too decomposed, not
brought to land, or stranded on protected lands (e.g., national and
state parks) with limited or no access. Of the whales examined (roughly
90), about 40 percent had evidence of human interaction, either ship
strike or entanglement. Vessel strikes and entanglement in fishing gear
are the greatest human threats to large whales. The remaining 50
necropsied whales either had an undetermined cause of death (due to a
limited examination or decomposition of the carcass) or had other
causes of death including parasite-caused organ damage and starvation.
The best available science indicates that only Level B harassment, or
disruption of behavioral patterns (e.g., avoidance), may occur as a
result of Dominion Energy's HRG surveys. NMFS emphasizes that there is
no credible scientific evidence available suggesting that mortality
and/or serious injury is a potential outcome of the planned survey
activity.
Additionally, NMFS has not authorized mortality or serious injury
in this final rule, and such taking is prohibited under Sec.
217.292(c) of the regulations and may result in modification,
suspension, or revocation of an LOA issued under these regulations.
NMFS notes there has never been a report of any serious injuries or
mortalities of a marine mammal associated with site characterization
surveys.
Furthermore, while NMFS agrees in the value of necropsies in
determining the cause of death of a stranded marine mammal, NMFS
stranding partners cannot perform necropsies on every dead animal as
some of the carcasses were either too decomposed, not brought to land,
or stranded on protected lands (e.g., national and state parks) with
limited or no access. Furthermore, and as described on our website,
large whale necropsies are very complicated, requiring many people and
typically heavy equipment (e.g., front loaders, etc.). Some whales are
found dead floating offshore and need to be towed to land for an
examination. There can be limitations for access and using heavy
equipment depending on the location where the whale stranded, including
protected lands (parks or concerns for other endangered species) and
accessibility (remote areas, tides that prevent access at times of
day). Also, necropsies are the most informative when the animal died
relatively recently. Some whales are not found until they are already
decomposed, which limits the amount of information that can be
obtained. Finally, funding is limited, and varies by location and
stranding network partner. For more information on offshore wind and
whales, we reference the commenter to our website: <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales">https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales</a>.
Additionally, a commenter raised a concern regarding potential
injury to ``echolocation systems''. All large whales that have stranded
since December 2011, with the exception of three sperm whales, have
been mysticete (baleen) whales (e.g., humpback whales, minke whales),
[[Page 4387]]
which do not have the ability to echolocate, a process by which toothed
whales (e.g., sperm whales) and dolphins emit high-frequency sounds
from their melon to obtain information about objects (typically prey)
in the water. Because baleen whales do not echolocate like toothed
whales and dolphins, there is no concern over impeding such ability.
Additionally, several species of delphinids and beaked whales have
stranded off Virginia since 2011; however, there is no evidence that
the acoustic sources used during HRG surveys contributed to these
events.
Regarding available funding, as suggested by another commenter,
Dominion Energy is responsible for acquiring NMFS-approved PSOs to
conduct marine mammal monitoring as prescribed in its rule. PSOs
working on the CVOW-C Project would not be involved in stranding
response beyond the required reporting measures (i.e., reporting
sightings of dead or injured marine mammals to the Stranding Response
Network. The Marine Mammal Health and Stranding Response Program
(MMHSRP) coordinates emergency responses to sick, injured, distressed,
or dead seals, sea lions, dolphins, porpoises, and whales. The MMHSRP
works with volunteer stranding and entanglement networks as well as
local, tribal, State, and Federal government agencies to coordinate and
conduct emergency responses to stranded or entangled marine mammals.
The Prescott Grant Program (<a href="https://www.fisheries.noaa.gov/grant/john-h-prescott-marine-mammal-rescue-assistance-grant-program">https://www.fisheries.noaa.gov/grant/john-h-prescott-marine-mammal-rescue-assistance-grant-program</a>) provides
funding for members of the national marine mammal stranding network
through a competitive grant process for (1) recovery and treatment
(i.e., rehabilitation) of stranded marine mammals; (2) data collection
from living or dead stranded marine mammals; and (3) facility upgrades,
operation costs, and staffing needs directly related to the recovery
and treatment of stranded marine mammals and the collection of data
from living or dead stranded marine mammals. From 2001 through 2023,
the Program awarded more than $75.4 million in funding through 893
competitive grants to Stranding Network members in 26 states, the
District of Columbia, two territories, and three tribes.
Comment 32: A commenter has stated that there is a data need for
information related to vessel density as it relates to changes in
vessel routing and traffic patterns. The commenter further stated that
the acquisition of this information would be beneficial when compared
to species distribution and habitat data. They also stated that this
data would provide context to any observed changes in rates of vessel
strikes, fishing gear, entanglements, and impacts on fisheries in terms
of gear loss and protected species interactions. They also suggested
that NMFS should require vessels to maintain a specific transit (east
and northeast of the Lease Area) to avoid nearshore areas.
Response: NMFS provided information related to the amount and types
of vessels to be used for CVOW-C and is requiring that that all of
Dominion Energy's vessels must be equipped with properly installed and
operational AIS devices and that Dominion Energy must report all
Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of
Protected Resources. This will allow for an evaluation of Dominion
Energy vessel traffic movement. NMFS is not requiring Dominion Energy
vessels to maintain a specific transit (East and Northeast of the Lease
Area) to avoid nearshore areas as Dominion Energy must use ports and
some aspects of work are located in nearshore waters requiring vessel
use in that area. Therefore, restricting Dominion Energy vessels waters
outside of the nearshore area (which is undefined by the commenter) is
not practicable.
Comment 33: A commenter insisted that NOAA Marine Mammal Health and
Stranding Program staff be guaranteed site access for response to and
rescue of stranded animals. The commenter also expressed a desire for
clarification on the photographs that could be taken during a sighting
of a stranding, and that specific parameters should be discussed for
these photos to allow for the appropriate response to be taken.
Response: NMFS cannot require access be given in all cases for
stranded animals, as sometimes the carcass never returns to shore or
strands on protected lands, such as national or state parks, with
limited access. Given these instances are situational and the
appropriate actions are determined by trained specialists, we defer to
their knowledge and expertise instead.
Regarding the comment on the photographs in the event of a
stranding or dead animal, NMFS does not see a reason to require very
specific parameters for these photographs, as all observations would be
taken in the offshore environment where conditions are typically
difficult. Additionally, we expect that few, if any, of the crew would
be trained in proper necropsy technique to know which photographs to
take or what to look for; instead, we ask the developer and their crew
(alongside the NMFS-approved PSOs and PAM operators) to collect any
evidence, information, and photographs they are capable of and have
access to, instead of providing additional restrictions that may
complicate the acquisition of important data. If a decision is made to
retrieve or tow a carcass to shore, we expect that trained stranding
specialists would be on hand to handle the specifics the commenter is
referring to. Because of this, we do not see the need to require the
suggestion by the commenter.
Comment 34: The commenter has stated that an oil spill contingency
plan should be created in the event of an oil spill from CVOW-C.
Response: NMFS agrees with the commenter that this is an important
consideration for the CVOW-C Project. We direct the commenter to BOEM,
as an oil spill response plan was included in Appendix Q of the CVOW-C
COP (<a href="https://www.boem.gov/renewable-energy/state-activities/cvow-construction-and-operations-plan">https://www.boem.gov/renewable-energy/state-activities/cvow-construction-and-operations-plan</a>) and within the final EIS developed
for the project (<a href="https://www.boem.gov/renewable-energy/state-activities/CVOW-C">https://www.boem.gov/renewable-energy/state-activities/CVOW-C</a>). Given NMFS is not authorizing incidental take from
oil spills, we do not analyze this directly in our MMPA ITA and this is
not discussed further.
Comment 35: A commenter recommended that Dominion Energy test and
deploy an all-weather, semi-, or fully-automated whale detection system
in the mouth of the Chesapeake Bay to reduce the risk of vessel strike.
[[Page 4388]]
Response: NMFS does not agree with the commenter that Dominion
Energy must deploy an all-weather, semi-, or fully-automated whale
detection system in the mouth of the Chesapeake Bay to reduce the risk
of vessel strike. The commenter did not provide a description of
additional benefits this type of system would achieve compared to the
dual-PAM and visual observation requirements NMFS proposed and requires
for vessel transit. Furthermore, the Woods Hole Oceanographic
Institution, in collaboration with the CMA CGM Group, have deployed an
acoustic monitoring buoy approximately 33 miles (53.12 km) off Norfolk,
Virginia (see the press release at: <a href="https://www.whoi.edu/press-room/news-release/whoi-and-cma-cgm-group-deploy-acoustic-monitoring-buoy-near-norfolk-virginia/">https://www.whoi.edu/press-room/news-release/whoi-and-cma-cgm-group-deploy-acoustic-monitoring-buoy-near-norfolk-virginia/</a>). While not located in the mouth of the Bay,
this buoy provides near real-time detection for North Atlantic right
whale calls, that will be publicly displayed on a website called
Roborts4Whales (<a href="http://robots4whales.whoi.edu/">http://robots4whales.whoi.edu/</a>) and shared with
mariners, including vessel captains. Based on the parameters suggested
by the commenter along with the publicly available data from existing
systems, we disagree with the commenter's recommendation.
Comment 36: The commenter has stated that nowhere in Dominion
Energy's PSMMP does it describe a need for baseline information on
species presence, distribution, and behavior. They further compound
that while short-term impacts from surveys and construction activities
are likely, long-term impacts from operation would be challenging to
assess without baseline information. Because of this, the commenter has
suggested that additional investments into gathering baseline
information should occur, which would allow for increased monitoring
during the construction and operation phases and that it should be
mandated that baseline data is collected for all projects before
approvals are given.
Response: NMFS notes to the commenter that this information would
not be found in Dominion Energy's PSMMP, but information regarding
species and baseline/known information is found in the ITA application
itself (see NMFS' web page at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-dominion-energy-virginia-construction-coastal-virginia">https://www.fisheries.noaa.gov/action/incidental-take-authorization-dominion-energy-virginia-construction-coastal-virginia</a>). NMFS also included some information about species
that have established BIAs or known UMEs in the proposed rule (see 88
FR 28656, 28672), with updates included where applicable in the final
rule. We additionally point the commenter to our website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) and to the 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>) for more information.
The MMPA requires NMFS to evaluate the effects of the specified
activities based on the best scientific evidence available and to issue
the requested incidental take authorization if it makes the necessary
findings. The MMPA does not allow NMFS to delay issuance of the
requested authorization on the presumption that new information will
become available in the future. If new information becomes available in
the future, NMFS may modify the mitigation and monitoring measures in
an LOA issued under these regulations through the adaptive management
provisions. Furthermore, NMFS is required to withdraw or suspend an LOA
if it determines that the authorized incidental take may be having more
than a negligible impact on a species or stock. This determination is
made following notice and opportunity for public comment, unless and
emergency exists that poses a significant risk to the well-being of the
marine mammal species or stock.
NMFS has duly considered the best scientific evidence available in
its effects analysis. The Potential Effects of Underwater Sound on
Marine Mammals section of the proposed rule included a broad overview
of the potential impacts on marine mammals from anthropogenic noise and
provided summaries of several studies regarding the impacts of noise
from several different types of sources (e.g., airguns, Navy sonar,
vessels) on large whales, including North Atlantic right whales.
Offshore wind farm construction generates noise that is similar, or, in
the case of vessel noise, identical, to noise sources included in these
studies (e.g., impact pile driving and airguns both produce impulsive,
broadband sounds where the majority of energy is concentrated in low
frequency ranges), and the breadth of the data from these studies helps
us predict the impacts from wind activities. In addition, as described
in the proposed rule, it is general scientific consensus that
behavioral responses to sound are highly variable and context-specific
and are impacted by multiple factors including, but not limited to,
behavioral state, proximity to the source, and the nature and novelty
of the sound. Overall, the ecological assessments from offshore wind
farm development in Europe and peer-reviewed literature on the impacts
of noise on marine mammals both in the U.S. and worldwide provides the
information necessary to conduct an adequate analysis of the impacts of
offshore wind construction and operation on marine mammals in the
Atlantic Outer Continental Shelf. NMFS acknowledges that studies in
Europe typically focus on smaller porpoise and pinniped species, as
those are more prevalent in the North Sea and other areas where
offshore wind farms have been constructed. The commenter did not
provide additional scientific information for NMFS to consider.
Comment 37: A commenter asserts that the ITR and LOA process lacks
transparency and there are no resources easily accessible to the public
to understand what authorizations are required for each of these
activities (pre-construction surveys, construction, operations,
monitoring surveys, etc.). They requested NMFS improve the transparency
of this process and move away from a ``segmented phase-by-phase and
project-by-project approach'' for authorization. In addition, they
requested NMFS provide a comprehensive list/table of all takes by Level
A harassment and Level B harassment under currently approved and
requested authorizations per project.
Response: The MMPA, and its implementing regulations allow, upon
request, the incidental take of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographic region. NMFS authorizes the
requested incidental take of marine mammals if it finds that the taking
would be of small numbers, have no more than a ``negligible impact' on
the marine mammal species or stock, and not have an ``unmitigable
adverse impact'' on the availability of the species or stock for
subsistence use. NMFS refers the public to its website for more
information on the marine mammal incidental take authorization process
and timelines (<a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>).
NMFS emphasizes that an IHA or rulemaking/LOA does not authorize
the activity itself but authorizes the take of marine mammals
incidental to the ``specified activity'' for which incidental take
coverage is being sought. In this case, NMFS is responding to Dominion
Energy's request to incidentally take marine mammals in the course of
constructing the CVOW-C Project. The authorization of the specified
activities is not within NMFS' jurisdiction; instead, this falls under
BOEM's
[[Page 4389]]
purview and NMFS refers the public to BOEM's website: <a href="https://www.boem.gov/renewable-energy">https://www.boem.gov/renewable-energy</a>. Additionally, for the commenter's
awareness, NMFS maintains a list of all proposed and issued
authorizations for renewable energy activities, including the
requested, proposed, and/or authorized take is available on the agency
website at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
Lastly, regarding the commenter's concern about assessing all
offshore wind projects cumulatively, NMFS will not repeat the response
but instead refers the commenter to Comment 28, where we explain why
each project is considered discrete and as its own separate action.
Comment 38: A commenter stated that the presence of wind turbines
will impact NMFS' ability to conduct low-altitude (1,000 m) marine
mammal assessment aerial surveys, thus impacting NMFS' ability to
continue using current methods to fulfill its mission of precisely and
accurately assessing and managing protected species.
Response: NMFS and BOEM have collaborated to establish the Federal
Survey Mitigation Strategy for the Northeast U.S. Region (Hare et al.,
2022). This interagency effort is intended to guide the development and
implementation of a program to mitigate impacts of wind energy
development on fisheries surveys. For more information on this effort,
please see <a href="https://repository.library.noaa.gov/view/noaa/47925">https://repository.library.noaa.gov/view/noaa/47925</a>.
Comment 39: Expressing concerns regarding enforcement, commenters
expressed interest in understanding the outcome if the number of actual
takes exceeds the number authorized during construction of an offshore
wind project (i.e., if the project would be stopped mid-construction or
operation), and how offshore wind developers will be held accountable
for impacts to protected species such that impacts are not
inadvertently assigned to fishermen, should they occur.
Another member of the public recommended that if a marine mammal is
killed during the specified construction activities for CVOW-C, then
Dominion Energy should ``be fined a considerable sum.''
Response: NMFS carefully reviews models and take estimate
methodology to authorize a number of takes, by species and manner of
take, which is a likely outcome of the project. There are several
conservative assumptions built into the models to ensure the number of
takes authorized is sufficient based on the description of the project.
Dominion Energy would be required to submit frequent reports which
would identify the number of takes applied to the project.
In the unexpected event that Dominion Energy exceeds the number of
takes authorized for a given species, the MMPA and its implementing
regulations state that NMFS shall withdraw or suspend the 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, or the taking allowed is having, or may have, more than a
negligible impact on the species or stock concerned (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 216.206(g)).
Moreover, as noted previously, fishing impacts (and NMFS'
assessment of them) generally center on entanglement in fishing gear,
which is a very acute, visible, and severe impact (mortality or serious
injury). In contrast, the impacts incidental to the specified
activities are primarily acoustic in nature and limited to Level A
harassment and Level B harassment, there is no anticipated or
authorized serious injury or mortality that the fishing industry could
theoretically be held accountable for. Any take resulting from the
specified activities would not be associated with take authorizations
related to commercial fish stocks. The impacts of commercial fisheries
on marine mammals and incidental take for said fishing activities are
managed separately from those of non-commercial fishing activities such
as offshore wind site characterization surveys, under MMPA section 118.
Comment 40: A commenter suggested that NMFS require Dominion Energy
to utilize direct-drive turbines instead of gearboxes.
Response: Dominion Energy has indicated they intend to use direct
drive turbines for the CVOW-C Project, based on Section 3.3.1.1 of
their COP, specifically the Siemens Gamesa SG 14-222 DD WTG model (see
<a href="https://www.boem.gov/renewable-energy/state-activities/cvow-construction-and-operations-plan">https://www.boem.gov/renewable-energy/state-activities/cvow-construction-and-operations-plan</a>). Furthermore, as already described
above in Comment 37, the applicant is the one to determine the project
(i.e., the Proposed Action), not NMFS.
Comment 41: A commenter suggested various mitigation and monitoring
measures in the event that gravity-based and/or suction-bucket
foundations are used instead of impact/vibratory-driven foundations
(i.e., clearance and shutdown zones at distances that they assert would
eliminate all take by Level A harassment of North Atlantic right whales
and other large whales; visual and acoustic monitoring for large
whales; shutdown for large whale visual observations or acoustic
detections; restart of construction after shutdown; use of near-real
time PAM for vessel(s); alternative monitoring technologies for
monitoring (infrared drones, hydrophones); mandatory vessel speed
restrictions; and required reporting).
Response: NMFS appreciates the suggestions by the commenter and
refers to Comment 16 above where we discuss gravity-based and other
foundation types for the CVOW-C Project. However, Dominion Energy did
not include the potential to use gravity-based and/or suction-bucket
foundations in their MMPA application; therefore, NMFS has not
analyzed, authorized incidental take, or promulgated mitigation,
monitoring, or reporting measures for gravity-based or suction-bucket
foundations.
Comment 42: Commenters expressed concern that whales would be
displaced from the Project Area into shipping lanes or areas of higher
vessel traffic, which could result in higher risks of vessel strike and
that NMFS has not accounted for this impact in its analysis.
Response: NMFS acknowledges that whales may temporarily avoid the
area where the specified activities occur. However, NMFS does not
anticipate that whales will be displaced in a manner that would result
in a higher risk of vessel strike, and the commenter does not provide
evidence that either of these effects should be a reasonably
anticipated outcome of the specified activity. Vessel traffic is
concentrated closer to shore as vessels leave and return to ports such
as the Port of Virginia, most notably within designated shipping lanes
and as they enter the Chesapeake Bay. The density of vessel traffic
dissipates as one moves offshore.
NMFS disagrees with the commenter that the risk of vessel strike
was not considered in the analysis. NMFS takes the risk of vessel
strike seriously and while we acknowledge that vessel strikes can
result in injury or mortality, we have analyzed and determined that the
potential for vessel strike is so low as to be discountable. Dominion
Energy must abide by a suite of vessel strike avoidance measures that
include, for
[[Page 4390]]
example, seasonal and dynamic vessel speed restrictions to 10 kn (18.5
km/hour) or less; required use of dedicated observers on all transiting
vessels; maintaining awareness of North Atlantic right whale presence
through monitoring of North Atlantic right whale sighting systems.
Further, any observations of a North Atlantic right whale by project-
related personnel would be reported to sighting networks, alerting
other mariners to North Atlantic right whale presence. Both Dominion
Energy and other mariners are required to abide by all existing
approach and speed regulations designed to minimize the risk of vessel
strike. Notably, Dominion Energy is restricted from installing
foundations during the time of year when North Atlantic right whales
are expected to be present in greatest abundance (November 1st through
April 30th). Therefore, the potential for this activity to result in
harassment is very small, as indicated by the low amount of take
authorized. Further, NMFS has determined that any harassment from any
specified activity is anticipated to, at most, result in some avoidance
that would be limited spatially and temporally. It is unlikely that any
impacts from the project would increase the risk of vessel strike from
non-Dominion Energy vessels. The commenter has presented no information
supporting the speculation that whales would be displaced from the
Project Area into shipping lanes or areas of higher vessel traffic in a
manner that would be expected to result in higher risks of vessel
strike.
Comment 43: Commenters stated that it is ``against the law to
knowingly interfere with an endangered species and depletion of an
entire population,'' and they cited the Endangered Species Act (ESA) in
support of this claim. They further state that the CVOW-C Project would
``disrupt'' the migration path of the North Atlantic right whale and,
therefore, result in the extinction of this species.
Response: Under Section 7(a)(2) of the ESA, Federal agencies are
required to consult with NMFS or the U.S. Fish and Wildlife Service, as
appropriate, to ensure that the actions they fund, permit, authorize,
or otherwise carry out will not jeopardize the continued existence of
any listed species or result in the destruction or adverse modification
of designated critical habitats. For the CVOW-C Project, our office
(i.e., the Office of Protected Resources) requested initiation of a
Section 7 consultation for ESA-listed species with the NMFS Greater
Atlantic Regional Fisheries Office on April 4, 2023. A Biological
Opinion was completed on September 19, 2023 (found here: <a href="https://repository.library.noaa.gov/view/noaa/55495">https://repository.library.noaa.gov/view/noaa/55495</a>), which concluded that the
promulgation of the rule and issuance of LOAs thereunder is not likely
to jeopardize the continued existence of threatened and endangered
species under NMFS' jurisdiction and is not likely to result in the
destruction or adverse modification of designated or proposed critical
habitat. Because of this, NMFS' action of finalizing the rulemaking and
issuing LOAs for the CVOW-C Project is consistent with the ESA.
Furthermore, NMFS disagrees that the CVOW-C Project would
``completely disrupt and destroy the North Atlantic Right Whale
population and migration path,'' as suggested by the commenters. NMFS
is aware of no evidence to support this claim, nor did the commenters
provide any. In total, the CVOW-C Project Area consists of
approximately 456.5 km\2\ of the entire 269,448 km\2\ migratory BIA. No
take by injury, serious injury, or mortality is authorized for the
species. NMFS emphasizes that the authorized incidental take of North
Atlantic right whales is limited to Level B harassment (i.e.,
behavioral disturbance). As described in the proposed rule and this
final rule (see Negligible Impact Analysis and Determination section),
NMFS has determined that the Level B harassment of North Atlantic right
will not result in impacts to the population through effects on annual
rates or recruitment or survival.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
(88 FR 28656, May 4, 2023), NMFS has made changes, where appropriate,
that are reflected in the final regulatory text and preamble text of
this final rule. These changes are briefly identified below, with more
information included in the indicated sections of the preamble to this
final rule.
Changes 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 and has been incorporated into this final rule, as discussed
below.
The following changes are reflected in the Description of Marine
Mammals in the Specified 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 North Atlantic right whale 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. We have also updated the North Atlantic right whale
abundance estimate based on Linden (2023).
Given the availability of new information, we have made updates to
the UME summaries for multiple species (i.e., North Atlantic right
whale, humpback whale, minke whale).
The following changes are reflected in the Mitigation section of
the preamble to this final rule:
We have added a general requirement that noise levels must not
exceed those modeled, assuming 10 dB attenuation.
Because Dominion Energy has informed NMFS that the soft-start
procedure in the proposed rule raises engineering feasibility and
practicability concerns, we have removed the specific soft-start
procedure identified in the proposed rule (i.e., ``four to six strikes
per minute at 10 to 20 percent of the maximum hammer energy, for a
minimum of 20 minutes''). This final rule still requires a soft-start
for each WTG and OSS impact pile driving event.
In Tables 25 and 26, we have added the requirement for clearance
and shutdown of pile driving based on PAM detections at 10 km (6.2 mi)
that applies to all species except North Atlantic right whales, which
would still require shutdown at any distance upon a detection.
We have added a requirement in the Reporting section for Dominion
Energy to report operational sound levels from all installed piles, in
alignment with a requirement from the Biological Opinion.
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.
217.290 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. 217.294 Mitigation
Requirements and the associated Mitigation section of the preamble to
this final rule:
For clarity and consistency, we have reorganized and revised, as
applicable,
[[Page 4391]]
the paragraphs in Sec. 217.294 Mitigation requirements.
We have clarified the requirement that Dominion Energy deploy at
least two functional noise abatement systems requires at least a double
bubble curtain.
As described above, we updated the WTG and OSS impact pile driving
soft-start procedural requirements.
The following changes are reflected in Sec. 217.295 Monitoring and
Reporting Requirements and the associated Monitoring and Reporting
section of the preamble of this final rule:
For clarity and consistency, we have reorganized and revised, as
applicable, the paragraphs in Sec. 217.295 Monitoring and reporting
requirements.
We have updated the process for obtaining NMFS approval for PSO and
PAM operators to be similar to requirements typically included for
seismic (e.g., airgun) surveys and have clarified education, training,
and experience necessary to obtain NMFS' approval.
We have added a requirement that the Lead PSO must have a minimum
of 90 days of at-sea experience and must have obtained this experience
within the last 18 months.
We have added a requirement to have at least three PSOs on pile
driving vessels rather than two PSOs, as was originally described in
the proposed rule.
We have added requirements that SFV must be conducted on every pile
until measured noise levels are at or below the modeled noise levels,
assuming 10 dB, for at least three consecutive monopiles.
We have removed the requirement to include HRG survey activities in
the weekly report. This requirement is inconsistent with previously
promulgated and issued incidental take authorizations for HRG survey
activities and a rationale was not included in the preamble of proposed
rule to support this change. Consistent with previous authorizations,
HRG survey activities are to be included in the annual report (see
Sec. 217.295(g)(7)).
We have removed the requirements for reviewing data on an annual
and biennial basis for adaptive management and instead will make
adaptive management decisions as new information warrants it.
Description of Marine Mammals in the Specified Geographic Region
As noted in the Changes From the Proposed to Final Rule section,
updates have been made to the UME summaries of multiple species. These
changes are described in detail in the sections below. We have also
included new data on North Atlantic right whale abundance information
(Linden, 2023) and updated the annual M/SI value presented in Table 2,
based upon updates found in the final SARs (see Hayes et al., 2023).
Otherwise, this section has not changed since the publication of the
proposed rule in the Federal Register (88 FR 28656, May 4, 2023).
Several marine mammal species occur within the specified geographic
region. Sections 3 and 4 of Dominion Energy's ITA application summarize
available information regarding status and trends, distribution and
habitat preferences, and behavior and life history of the potentially
affected species (Dominion Energy, 2023). NMFS fully considered all of
this information, and we refer the reader to these descriptions in the
application, adopted here by reference, instead of reprinting the
information. Additional information regarding population trends and
threats may be found in NMFS' SARs (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which take is authorized
under this final rule and summarizes information related to the species
or stock, including regulatory status under the MMPA, ESA, and 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. 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">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment</a>-reports.
Table 2--Marine Mammal Species \e\ That May Occur in the Project Area and Be Taken, by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\a\ abundance survey) \b\ SI \c\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western Atlantic....... E, D, Y 338 (0, 332, 2020); 0.7 \i\ 31.2
356 (346-363, 2022)
\j\.
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24; 5,573; 11 1.8
2016).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, Y 1,396 (0; 1,380; 2016) 22 12.15
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Coastal. 2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Family Kogiidae:
Pygmy sperm whale g h........... Kogia breviceps........ Western North Atlantic. -, -, N 7,750 (0.38; 5,689; 46 0
2016).
[[Page 4392]]
Family Delphinidae:
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 39,921 (0.27; 32,032; 320 0
2016).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71; 54,433; 544 27
2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic-- -, -, N 62,851 (0.23; 51,914; 519 28
Offshore. 2016).
Southern Migratory -, -, Y 3,751 (0.6; 185; See 23 0-18.3
Coastal. SAR).
Clymene dolphin \g\............. Stenella clymene....... Western North Atlantic. -, -, N 4,237 (1.03; 2,071; 21 0
2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 172,974 (0.21; 1,452 390
145,216; 2016).
False killer whale \g\.......... Pseudorca crassidens... Western North Atlantic. -, -, N 1,791 (0.56; 1,154; 12 0
2016).
Melon-headed whale \g\.......... Peponocephala electra.. Western North Atlantic. -, -, N UNK (UNK; UNK; 2016).. UNK 0
Long-finned pilot whale \f\..... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3; 30,627; 306 29
2016).
Short-finned pilot whale \f\.... Globicephala Western North Atlantic. -, -, Y 28,924 (0.24, 23,637, 236 136
macrorhynchus. See SAR).
Pantropical spotted dolphin..... Stenella attenuata..... Western North Atlantic. -, D, N 6,593 (0.52, 4,367, 44 0
See SAR).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 35,215 (0.19; 30,051; 301 34
2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31; 74,034; 851 16
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \d\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,300 (0.22; 22,785; 1,389 4,453
2016).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08; 57,637; 1,729 339
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR, or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\b\ NMFS' marine mammal stock assessment reports can be found online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\c\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike).
\d\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 451,431. The annual M/SI value given is for the total stock.
\e\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>; Committee on Taxonomy (2023)).
\f\ Although both species are described here, the authorized take for both short-finned and long-finned pilot whales has been summarized into a single
group (pilot whales spp.).
\g\ While these species were not originally included in Dominion Energy's request, given recorded sightings/detections of these species during previous
Dominion Energy IHAs in the same general area, NMFS included Level B harassment of these species both in the proposed rule and this final rulemaking.
\h\ Estimate is for Kogia spp. only.
\i\ In the proposed rule (88 FR 28656, May 4, 2023), the best available science (i.e., the NMFS draft 2022 SARs) included a North Atlantic right whale M/
SI value of 8.1 which accounted for detected mortality/serious injury. In the final 2022 SAR, released in June 2023, the total annual average observed
North Atlantic right whale mortality was updated from 8.1 to 31.2. Numbers presented in this table (31.2 total mortality (22 of which are attributed
to fishery-induced mortality) are 2015-2019 estimated annual means, accounting for both detected and undetected mortality and serious injury (Hayes et
al., 2023).
\j\ The current SAR includes an estimated population (Nbest 338) based on sighting history through November 2020 (Hayes et al., 2023). In October 2023,
NMFS released a technical report identifying that, based on sighting data through December 2022 (versus the SAR which includes sighting data through
November 2020), the North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95 percent credible
interval ranging from 346 to 363 (Linden, 2023).
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 Federal Register notice for the proposed rule (88 FR 28656, May 4,
2023). Since that time, a new SAR (Hayes et al., 2023) has become
available for the North Atlantic right whale. 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 M/SI. Additionally, NMFS released a technical report,
which includes a recently released population estimate of 356 (Linden,
2023). 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 Federal
Register notice for these descriptions (88 FR 28656, May 4, 2023).
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.
North Atlantic Right Whale
In June 2023, NMFS released its final 2022 SARs, which updated 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
[[Page 4393]]
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 December 19, 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=51) with
sublethal injury or illness (called ``morbidity'') bringing the total
number of whales in the UME to 121. 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 212 known cases (as of
December 19, 2023). Of the whales examined (approximately 90), about 40
percent had evidence of human interaction, either 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, including Virginia, has been elevated. In some
cases, the cause of death is not yet 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 are reportedly close to
shore in the winter. These prey also attract fish that are of interest
to recreational and commercial fishermen. This increases the number of
boats and fishing gear in these areas. More whales in the vicinity of
areas traveled by boats of all sizes increases the risk of vessel
strikes. Vessel strikes and entanglement in fishing gear are the
greatest human threats to large whales.
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 December 19, 2023, a total of 160 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 are 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. However, due to the two states
being approximately 677.6 km (421 mi) apart, by water (from the most
northern point of Virginia to the most southern point of Maine), NMFS
does not expect that this UME would be further conflated by the
activities related to 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
[[Page 4394]]
associated hearing ranges are provided in Table 3.
Table 3--Marine Mammal Hearing Groups
(NMFS, 2018)
------------------------------------------------------------------------
Hearing group Generalized [hearing range] *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013). For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
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 (88 FR
28656, May 4, 2023) included a discussion of the effects of
anthropogenic noise on marine mammals and the potential effects of
underwater noise from Dominion Energy's project activities on marine
mammals and their habitat. That information and analysis is adopted by
reference into this final rule and is not repeated here; please refer
to the notice of the proposed rule (88 FR 28656, May 4, 2023).
Since publication of the proposed rule, new scientific information
has become available that provides additional insight into the sound
fields produced by turbine operation. Recently, Holme et al. (2023)
stated that Tougaard et al. (2020) and St[ouml]ber and Thomsen (2021)
extrapolated levels for larger turbines and should be interpreted with
caution since both studies relied on data from smaller turbines (0.45
to 6.15 MW) collected over a variety of environmental conditions. They
demonstrated that the model presented in Tougaard et al. (2020) tends
to overestimate levels (up to approximately 8 dB) measured to those in
the field, especially with measurements closer to the turbine for
larger turbines. Holme et al. (2023) measured operational noise from
larger turbines (6.3 and 8.3 MW) associated with three wind farms in
Europe and found no relationship between turbine activity (power
production, which is proportional to the blade's revolutions per
minute) and noise level, although it was noted that this missing
relationship may have been masked by the area's relatively high ambient
noise sound levels. Sound levels (root-mean-square (RMS)) of a 6.3 MW
direct-drive turbine were measured to be 117.3 dB at a distance of 70
meters. However, measurements from 8.3 MW turbines were inconclusive as
turbine noise was deemed to have been largely masked by ambient noise.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through this rulemaking, which will inform both NMFS'
consideration of ``small numbers'' and the negligible impact
determination.
Authorized takes would be primarily by Level B harassment, as use
of the acoustic sources (i.e., impact and vibratory pile driving and
site characterization surveys) have the potential to result in
disruption of marine mammal behavioral patterns due to exposure to
elevated noise levels. Impacts such as masking and TTS can contribute
to behavioral disturbances. There is also some potential for auditory
injury (Level A harassment) to occur in select marine mammal species
incidental to the specified activities (i.e., WTG and OSS foundation
pile driving). For this action, this potential for PTS is limited to
mysticetes, high-frequency cetaceans, and phocids due to their hearing
sensitivities and the nature of the activities. The required mitigation
and monitoring measures are expected to minimize the severity and
magnitude of the taking to the extent practicable. As described
previously, no serious injury or mortality is anticipated or authorized
for this project. Below we describe how the take numbers were
estimated.
Generally speaking, we estimate take by considering: (1) acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and (4) and
the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the authorized take
estimates.
Marine Mammal Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
[[Page 4395]]
A summary of all NMFS' thresholds can be found at (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>).
Level B Harassment
Though significantly driven by received level, the onset of
behavioral disturbance from anthropogenic noise exposure is also
informed to varying degrees by other factors related to the source or
exposure context (e.g., frequency, predictability, duty cycle, duration
of the exposure, signal-to-noise ratio, distance to the source), the
environment (e.g., other noises in the area, ambient noise), and the
receiving animals (e.g., hearing, motivation, experience, demography,
behavior at time of exposure, life stage, depth) and can be difficult
to predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above the
received root-mean-square sound pressure levels (RMS SPL) of 120 dB
(referenced to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g.,
vibratory pile-driving, drilling) and above the received RMS SPL 160 dB
re: 1 [mu]Pa for non-explosive impulsive (e.g., seismic airguns) or
intermittent (e.g., scientific sonar) sources. Generally speaking,
Level B harassment take estimates based on these behavioral harassment
thresholds are expected to include any likely takes by TTS as, in most
cases, the likelihood of TTS occurs at distances from the source less
than those at which behavioral harassment is likely. TTS of a
sufficient degree can manifest as behavioral harassment, as reduced
hearing sensitivity and the potential reduced opportunities to detect
important signals (conspecific communication, predators, prey) may
result in changes in behavior patterns that would not otherwise occur.
Dominion Energy's construction activities include the use of
continuous (i.e., vibratory pile driving) and intermittent (i.e.,
impact pile driving, HRG acoustic sources) sources, and therefore, the
120 and 160 dB re 1 [mu]Pa (rms) thresholds are applicable.
Level A Harassment
NMFS' Technical Guidance for Assessing the Effects of Anthropogenic
Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018)
identifies dual criteria to assess auditory injury (Level A harassment)
to five different marine mammal groups (based on hearing sensitivity)
as a result of exposure to noise from two different types of sources
(impulsive or non-impulsive). As dual metrics, NMFS considers onset of
PTS (Level A harassment) to have occurred when either one of the two
metrics is exceeded (i.e., metric resulting in the largest isopleth).
Dominion Energy's planned activities include the use of non-impulsive
sources.
These thresholds are provided in Table 4 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Table 4--Onset of Permanent Threshold Shift (PTS)
[NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
PTS onset thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lp,0-pk,flat: 219 Cell 2: LE,p, LF,24h: 199 dB.
dB; LE,p, LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lp,0-pk,flat: 230 Cell 4: LE,p, MF,24h: 198 dB.
dB; LE,p, MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lp,0-pk,flat: 202 Cell 4: LE,p, HF,24h: 198 dB.
dB; LE,p,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lp,0-pk.flat: 218 Cell 8: LE,p,PW,24h: 201 dB.
dB; LE,p,PW,24h: 185 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
exposure level (LE,p) has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to be
more reflective of International Organization for Standardization (ISO) standards (ISO, 2017). The subscript
``flat'' is included to indicate peak sound pressure are flat weighted or unweighted within the generalized
hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative sound
exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF
cetaceans, and PW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted cumulative
sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and
durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under
which these thresholds will be exceeded.
Dominion Energy would not conduct high-order detonation of
unexploded ordnances or munitions and explosives of concern (UXOs/MECs)
as part of the Project. As Dominion Energy has not requested, and NMFS
has not authorized, any take related to the detonation of UXOs/MECs,
the acoustic (i.e., PTS onset and TTS onset for underwater explosives)
and the pressure thresholds (i.e., lung and gastrointestinal tract
injuries) are not discussed or included in this action.
Acoustic and Exposure Modeling Methods
As described above, underwater noise associated with the
construction of offshore components of CVOW-C would predominantly
result from installation of the WTG monopile and the OSS jacket
foundations using a dual-vibratory and impact pile driving approach
while noise from cable landfall construction activities (i.e.,
temporary cofferdam and temporary goal post installation and removal)
will primarily result from either impact pile driving (for the
temporary goal posts) or vibratory pile driving (for the temporary
cofferdams). Acoustic modeling was performed for some activities for
which there was a pile driving component, including WTG and OSS
foundation installation and temporary cofferdam installation and
removal. The basic modeling approach is to characterize the sounds
produced by the source, determine how the sounds propagate within the
surrounding water column,
[[Page 4396]]
and then estimate species-specific exposure probability by considering
the range- and depth-dependent sound fields in relation to animal
movement in simulated representative construction scenarios.
Animat exposure modeling was only performed for foundation
installation. For other activities planned by Dominion Energy (i.e.,
temporary cofferdam installation and removal, temporary goal post
installation and removal, HRG surveys), take was estimated using a
``static'' approach for representing animal distribution and density,
as detailed later in the Static Take Estimate Method section.
Dominion Energy employed Tetra Tech, Inc. (Tetra Tech) to conduct
the acoustic modeling and Marine Acoustics, Inc. (MAI) for the animal
movement modeling to better understand both the sound fields produced
during foundation and cofferdam installation and to estimate any
potential exposures (see the Acoustic Modeling report in Appendix A of
Dominion Energy's ITA application). Dominion Energy also collaborated
with the Institute for Technical and Applied Physics (iTAP) for
information related to vibratory pile driving of foundation piles.
Tetra Tech also performed the acoustic analysis related to temporary
cofferdam installation and removal via vibratory pile driving. Acoustic
source modeling of vibratory pile driving related to cofferdam
installation and removal was incorporated into the static method to
yield estimated and requested take values. Tetra Tech applied the
source modeling methods from the CVOW Pilot Project with modifications
based on newly available data and the additional availability of
research studies. The approach is summarized here; more detail can be
found in the Acoustic Modeling report in Appendix A of Dominion
Energy's ITA application.
Acoustic Source Modeling
Based on a literature review of pile driving measurement reports,
theoretical modeling reports, and peer-reviewed research papers (see
the references in Attachment Z-2 in Appendix A of Dominion Energy's COP
(2023)), Tetra Tech developed an empirical modeling approach for
calculating the acoustic source of impact pile driving foundation
installation activities for the CVOW-C Project. A collaboration between
Dominion Energy and iTAP assessed the estimated acoustic source levels
produced from vibratory pile driving of foundation piles based on
empirical data collected and assessed from the CVOW Pilot Project and
other European offshore wind farms. These two modeling approaches are
discussed separately here.
Foundation Impact Pile Driving Source Level Empirical Model
An empirical model developed by Tetra Tech was used to determine
the peak sound level (L<INF>pk</INF>) and sound exposure level (SEL) at
the source for the foundation pile driving scenarios. To feed into the
model, Tetra Tech obtained sound levels from relevant scenarios for a
variety of pile diameter sizes, driven with hammers of varying
energies, and collected or analyzed at different ranges from the
impacted pile. This empirical model was implemented by using the
following steps:
1. Normalizing the received sound pressure levels to a common
received range, assuming a transmission loss of 15LogR (i.e., practical
spreading), where R is the distance ratio;
2. Scaling the source levels to an energy of 4,000 kJ, assuming a
relationship between the hammer energy and radiated sound as 10 times
the base 10 logarithm of the ratio of hammer energy to the referenced
hammer energy (as in the scaling laws outlined in von Pein et al.,
2022); and
3. Calculating a linear regression of the adjusted source levels
(which has been normalized for range and hammer energy) as a function
of the base 10 logarithm of the pile diameters, which is then used to
predict the broadband SEL and peak sound levels for the planned energy
and diameter.
The above empirical model was used in determining L<INF>pk</INF>
and SEL, however, a similar technique for sound pressure level (SPL)
was not possible due to a lack of data. For this reason, SPL was
derived from SEL using the average pulse duration of measurements used
in the empirical model. One-third octave band levels from 12.5 Hz to 20
kHz were derived from surrogate spectra taken from published data for
piles of similar diameters and adjusted based on the empirical model
above. For the L<INF>pk</INF> underwater acoustic modeling scenario
(evaluating a single pile-driving strike), the pile driving sound
source was represented as a point source at a mid-water depth. To
estimate SEL, the monopile and pin pile driving scenarios were modeled
using a vertical array of point sources spaced at 1 m intervals and
assuming a specific number of strikes for each type of pile (see
Formula 2 in Attachment Z-1 of Appendix A in the application). The SPL
scenario was set up in an identical manner to the SEL scenario, with
the primary difference being that the model did not incorporate the
total number of pile driving strikes needed for each of the monopile
and pin pile scenarios within a 24-hour period. Instead, only a single
pile driving strike was incorporated.
Information on the impact pile driving scenarios and source levels
for WTGs, OSSs, and goal posts can be found in Table Z-7 of Appendix A
of Dominion Energy's ITA application. These impact modeling scenarios
assumed no sound attenuation. For all WTG monopile modeling (i.e.,
Scenarios
[…truncated; see source link]Indexed from Federal Register on January 23, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.