Rule2024-01363
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Empire Wind Project, Offshore New York
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 14, 2024
Effective
February 22, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS promulgates regulations to govern the incidental taking of marine mammals incidental to Empire Offshore Wind, LLC (Empire Wind), a 50-50 partnership between Equinor, ASA (Equinor) and BP p.l.c., during the construction of an offshore wind energy project (the Project) in Federal and State waters off of New York, 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-512) (referred to as the Lease Area) and along two export cable routes to sea-to-shore transition points (collectively, the Project Area), over the course of 5 years (February 22, 2024, through February 21, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during specific 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. Upon publication of this final rule and within 30 days, NMFS will issue a LOA to Empire Wind for the effective period of the final rule.
Full Text
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<title>Federal Register, Volume 89 Issue 31 (Wednesday, February 14, 2024)</title>
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[Federal Register Volume 89, Number 31 (Wednesday, February 14, 2024)]
[Rules and Regulations]
[Pages 11342-11431]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01363]
[[Page 11341]]
Vol. 89
Wednesday,
No. 31
February 14, 2024
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Empire Wind Project, Offshore New
York; Final Rule
Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 /
Rules and Regulations
[[Page 11342]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240118-0017]
RIN 0648-BL97
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Empire Wind Project, Offshore
New York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of issuance of letter of
authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, notification is hereby given
that NMFS promulgates regulations to govern the incidental taking of
marine mammals incidental to Empire Offshore Wind, LLC (Empire Wind), a
50-50 partnership between Equinor, ASA (Equinor) and BP p.l.c., during
the construction of an offshore wind energy project (the Project) in
Federal and State waters off of New York, 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-512) (referred to as the Lease Area) and along
two export cable routes to sea-to-shore transition points
(collectively, the Project Area), over the course of 5 years (February
22, 2024, through February 21, 2029). These regulations, which allow
for the issuance of a Letter of Authorization (LOA) for the incidental
take of marine mammals during specific 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. Upon publication of this final
rule and within 30 days, NMFS will issue a LOA to Empire Wind for the
effective period of the final rule.
DATES: This rulemaking and issued LOA are effective from February 22,
2024, through February 21, 2029.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Empire Wind's application and supporting documents, 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.) to allow for the
authorization of take of marine mammals incidental to construction of
the Empire Wind project within the Lease Area and along export cable
corridors to landfall locations in New York. To allow this to occur,
NMFS received a request from Empire Wind for 5-year regulations and a
LOA that would authorize take of individuals of 17 species of marine
mammals, comprising 18 stocks (two species by Level A harassment and
Level B harassment and 17 species by Level B harassment only)
incidental to Empire Wind's construction activities. No mortality or
serious injury was requested, nor is it 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
As noted in the Changes from the Proposed to Final Rule section, we
have added regulatory definitions for terms used in this final rule.
These changes are described, in detail, in the sections below and,
otherwise, the description of the legal authority has not changed since
the proposed rule.
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). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to as ``mitigation'');
and requirements pertaining to the mitigation, monitoring and reporting
of the takings are set forth.
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> Citizen--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);
<bullet> Incidental 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; 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).
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 this rule containing 5-year regulations
and associated LOA. This final rule also establishes required
mitigation, monitoring, and reporting requirements for Empire Wind's
construction activities.
[[Page 11343]]
Summary of Major Provisions Within the Final Rule
The major provisions within this final rule include:
<bullet> The authorized take of marine mammals by Level A
harassment and/or Level B harassment;
<bullet> No mortality or serious injury of any marine mammal is
authorized;
<bullet> The establishment of a seasonal moratorium on impact pile
driving foundation piles during the months of the highest presence of
North Atlantic right whales (Eubalaena glacialis) in the Project Area
(January 1 to April 30 annually);
<bullet> A requirement for both visual and passive acoustic
monitoring (PAM) to occur by trained, NOAA Fisheries-approved Protected
Species Observers (PSOs) and PAM (where required) operators before,
during, and after select activities;
<bullet> The establishment of clearance and shutdown zones for all
in-water construction activities to prevent or reduce the risk of Level
A harassment and to minimize the risk of Level B harassment;
<bullet> A requirement to use sound attenuation device(s) during
all impact pile driving installation activities to reduce noise levels;
<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;
<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 or if other marine mammals are
observed entering their respective shutdown zones;
<bullet> A requirement to implement sound field verification (SFV)
requirements during impact pile driving of foundation piles 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 hammer energy necessary for installation;
<bullet> A requirement to implement ramp-up during the use of high-
resolution geophysical (HRG) marine site characterization survey
equipment;
<bullet> A requirement for PSOs to continue to monitor for 30
minutes after any impact pile driving for foundation installation;
<bullet> A requirement for the increased awareness of North
Atlantic right whale presence through monitoring of the appropriate
networks and Channel 16, as well as reporting any sightings to the
sighting network;
<bullet> A requirement to implement various vessel strike avoidance
measures;
<bullet> A requirement to implement measures during fisheries
monitoring surveys, such as removing gear from the water if marine
mammals are considered at-risk or are interacting with gear; and
<bullet> A requirement for frequently scheduled and situational
reporting including, but not limited to, information regarding
activities occurring, marine mammal observations and acoustic
detections, and SFV monitoring results.
Under section 105(a)(1) of the MMPA, failure to comply with these
requirements or any other requirements in a regulation or permit
implementing the MMPA may result in civil monetary penalties. Pursuant
to 50 CFR 216.106, violations may also result in suspension or
withdrawal of the LOA for the Project. Knowing violations may result in
criminal penalties, under section 105(b) of the MMPA.
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)).
The 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/empire-wind-energy-project">https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/empire-wind-energy-project</a>.
Summary of Request
On December 7, 2021, Empire Wind submitted a request for the
promulgation of regulations and issuance of an associated 5-year LOA to
take marine mammals incidental to construction activities associated
with implementation of the Project (offshore of New York in BOEM Lease
Area OCS-A-0512. The request was for the incidental, but not
intentional, taking of a small number of 17 marine mammal species
(comprising 18 stocks). Neither Empire Wind nor NMFS expects any
serious injury or mortality to result from the specified activities,
nor has NMFS authorized any.
In response to our questions and comments, and following extensive
information exchange between Empire Wind and NMFS, Empire Wind
submitted a final, revised application on August 8, 2022. NMFS deemed
it adequate and complete on August 11, 2022. This final application is
available on NMFS' website at <a href="https://www.fisheries.noaa.gov/protected-resource-regulations">https://www.fisheries.noaa.gov/protected-resource-regulations</a>.
On September 9, 2022, NMFS published a notice of receipt (NOR) of
Empire Wind's adequate and complete application in the Federal Register
(87 FR 55409), requesting public comments and information on Empire
Wind's request during a 30-day public comment period. During the NOR
public comment period, NMFS received comment letters from an
environmental non-governmental organization (Responsible Offshore
Development Alliance) and a corporate entity (Allco Renewable Energy
Limited). NMFS has reviewed all submitted material and has taken these
into consideration during the drafting of this final rule.
In June 2022, new scientific information was released regarding
marine mammal densities (Roberts et al., 2023). In response, Empire
submitted a final addendum to the application on January 25, 2023,
which included revised marine mammal densities and take estimates based
on Roberts et al. (2023). The addendum also identified a revision to
the density calculation methodology. Both of these revisions were
recommended by NMFS. Empire requests the regulations and subsequent LOA
be valid for 5 years beginning in the first quarter of 2024 (February
22) through the first quarter of 2029 (February 21). Neither Empire
Wind nor NMFS expects serious injury or mortality to result from the
specified activities. Empire's complete application and associated
addendum are available on NMFS' website at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1">https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1</a>.
On April 13, 2023, NMFS published a proposed rule in the Federal
Register for the Project (88 FR 22696). In the proposed rule, NMFS
synthesized all of the information provided by Empire Wind, all best
available scientific findings and literature relevant to the proposed
project, and outlined, in detail, proposed mitigation, monitoring, and
reporting measures designed to effect the least practicable adverse
impacts on marine mammal species and
[[Page 11344]]
stocks. 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 April 13, 2023, and
closed after May 13, 2023. Specific details on the public comments
received during this 30-day period are described in the Comments and
Responses section.
NMFS previously issued three Incidental Harassment Authorizations
(IHAs) to Equinor and its predecessors for related work regarding high
resolution site characterization surveys (see 83 FR 19532, May 3, 2018;
84 FR 18801, May 2, 2019 (renewal); 85 FR 60424, September 25, 2020).
To date, Equinor 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 this incidental take regulation (ITR)--or any other MMPA incidental
take authorization (ITA)--the authorization holder will be required to
comply with any and all applicable requirements contained within the
final rule. Specifically, where measures in any final vessel speed rule
are more protective or restrictive than those in this or any other MMPA
authorization, authorization holders will be required to comply with
the requirements of the 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 Empire Wind if the measures in the speed rule were to
supersede any of the measures in the MMPA authorization such that they
were no longer required.
Description of the Specified Activity
Overview
Empire Wind plans to construct and operate two offshore wind
projects within OCS-A 0512: Empire Wind 1 (western portion of Lease
Area) and Empire Wind 2 (eastern portion of Lease Area). The two
projects combined will produce a total of approximately 2,076 megawatts
(MW) of renewable energy to New York. Empire Wind 1 (816 MW) and Empire
Wind 2 (1,260 MW) will be electrically isolated and independent of each
other and each will be connected to their own points of interconnection
via individual submarine export cable routes.
The Project will consist of several different types of permanent
offshore infrastructure, including wind turbine generators (WTGs) and
associated foundations, offshore substations (OSSs), inter-array
cables, submarine export cables and scour protection. Specifically,
activities to construct the Project include the installation of up to
147 WTGs and two OSSs by impact pile driving (total of 149
foundations). Additional activities will include cable installation,
site preparation activities (e.g., dredging), HRG surveys, installation
of cofferdams or casing pipes supported by goal post piles, removal of
berthing piles and performing marina bulkhead work; and conducting
several types of fishery and ecological monitoring surveys. Multiple
vessels will transit within the Project Area and between ports and the
wind farm to perform the work and transport crew, supplies, and
materials. All offshore cables will connect to onshore export cables,
substations, and grid connections on Long Island and Brooklyn, New
York. Marine mammals exposed to elevated noise levels during impact and
vibratory pile driving or site characterization surveys may be taken by
Level A harassment and/or Level B harassment, depending on the
specified activity. A detailed description of the construction project
is provided in the proposed rule as published in the Federal Register
(88 FR 22696, April 13, 2023).
Activities Not Considered in Empire Wind's Request for Authorization
During construction, Empire will receive equipment and materials to
be staged and loaded onto installation vessels at one or more existing
third-party port facilities. Empire has not yet finalized the selection
of all facilities, although they will include the South Brooklyn Marine
Terminal (SBMT) in Brooklyn, New York. SBMT has been selected as the
location for export cable landfall and the onshore substation for
Empire Wind 1. Empire also has leased portions of SBMT for Empire Wind
1 and Empire Wind 2 for laydown and staging of wind turbine blades,
turbines, and nacelles; foundation transition pieces; or other facility
parts during construction of the offshore wind farm.
The final port selection(s) for staging and construction will be
determined based upon whether the ports are able to accommodate Empire
Wind's schedule, workforce, and equipment needs. Any port improvement
construction activities to facilitate laydown and staging would be
conducted by a separate entity, would serve the broader offshore wind
industry in addition to the Project, and are not addressed further.
Empire Wind is not planning on detonating any unexploded ordnance
(UXO) or munitions and explosives of concern (MEC) during the effective
period of the rule. Hence, Empire Wind did not analyze or request, and
NMFS is not authorizing, take associated with this activity. Other
means of removing UXO/MEC may occur (e.g., lift and shift). As UXO/MEC
detonation will not occur, it is not discussed further in this
analysis.
Dates and Duration
Empire Wind anticipates activities resulting in harassment to
marine mammals occurring throughout all 5 years of the final rule
(table 1). Offshore Project activities are expected to begin in March
2024, after issuance of the 5-year LOA, and continue through March
2029. Empire Wind anticipates the following construction schedule over
the five-year period. Empire Wind has noted that these are the best and
conservative estimates for activity durations, but that the schedule
may shift due to weather, mechanical, or other related delays.
Additional information on dates and activity-specific durations can be
found in the proposed rule and are not repeated here.
[[Page 11345]]
Table 1--Activity Schedule To Construct and Operate the Project
------------------------------------------------------------------------
Expected timing Expected timing Empire
Project activity Empire Wind 1 Wind 2
------------------------------------------------------------------------
Submarine Export Cables..... Q3 2024; Q3 Q3-Q4 2025.
2025.
OSS Jacket Foundation and Q2 \1\-Q4 2025. Q2 \1\-Q4 2025; Q2\1\-Q4
Topside. 2026.\2\
Monopile Foundation Q2 \1\-Q4 2025. Q2 \1\-Q4 2025; Q2\1\-Q4
Installation. 2026.
WTG Installation............ Q4 2025-Q2 2026 Q4 2026-Q3 2027.
Interarray Cables........... Q2-Q4 2025..... Q2-Q3 2026.
HRG Surveys................. Q1 2024-Q4 2028 Q1 2024-Q4 2028.
Cable Landfall Construction. Q1-Q4 2024 \3\. Q1 2024-Q4 2025.\3\
Marina Activities........... n/a............ Q1-Q4 2024.
Barnum Channel Cable Bridge n/a............ Q4 2024-Q2 2025.
Construction.
------------------------------------------------------------------------
Note: Project activities are anticipated to start no earlier than Q1
2024. Q1 = January through March; Q2 = April through June; Q3 = July
through September; Q4 = October through December.
\1\ Impact driving of foundation piles is prohibited between January 1
and April 30. During Q2 such activities could not start until May 1.
\2\ Empire Wind 2 OSS jacket installation is planned for 2025, only
Empire Wind 2 topside work is planned for 2026.
\3\ While cable landfall construction could occur at any time during the
time period identified would only occur for approximately 30 days.
Specific Geographic Region
A detailed description of the Specific Geographic Region, defined
as the Mid-Atlantic Bight, is provided in the proposed rule as
published in the Federal Register (88 FR 22696, April 13, 2023). Since
the proposed rule was published, no changes have been made to the
Specified Geographic Region. Generally, most of Empire Wind's specified
activities (i.e., impact pile driving of WTGs and OSS monopile
foundations; vibratory pile driving (installation and removal) of
temporary cofferdams and goal posts; vibratory pile and removal of
sheet piles and bulkhead piles; placement of scour protection;
trenching, laying, and burial activities associated with the
installation of the export cable route and inter-array cables; HRG site
characterization surveys; and WTG operation) are concentrated in the
Lease Area and cable corridor.
[GRAPHIC] [TIFF OMITTED] TR14FE24.087
[[Page 11346]]
Comments and Responses
A notice of proposed rulemaking was published in the Federal
Register on April 13, 2023 (88 FR 22696). The proposed rulemaking
described, in detail, Empire Wind's specified activities, the specific
geographic region of the specified activities, the marine mammal
species that may be affected by these activities, and the anticipated
effects on marine mammals. In the proposed rule, we requested that
interested persons submit relevant information, suggestions, and
comments on Empire Wind's request for the promulgation of regulations
and issuance of an associated LOA described therein, our estimated take
analyses, the preliminary determinations, and the proposed regulations.
The proposed rule was available for a 30-day public comment period.
NMFS received 328 comment submissions, comprising 319 individual
comments from private citizens and 8 comment letters from organizations
or public groups, including, but not limited to, the Marine Mammal
Commission (the Commission), Clean Ocean Action, Oceana, Inc.,
Responsible Offshore Development Alliance, Friends of Animals, Lido
Beach Civic Association, Defend Brigantine Beach, and the Natural
Resources Defense Council. Some of the comments received were
considered out-of-scope, including, but not limited to: comments
related to impacts to the coastal ecosystem and local community;
concerns for other species outside of NMFS' jurisdiction (e.g., birds);
maintenance of the permanent structures; costs associated with offshore
wind development; distance of the Project from shore; and other
projects that are not the Project. These are not described herein or
discussed further. Moreover, where comments recommended that we include
measures that were already contained within the proposed rule, we have
not included them here if the final rule carries over the same measure
as those comments are considered adequately addressed. In addition, if
a comment received was unclear and therefore did not raise a
significant point, the comment is not responded to herein.
The comment letters received during the public comment period which
contained substantive information were considered by NMFS in its
estimated take analysis; required mitigation, monitoring, and reporting
measures; final determinations; and final regulations. These comments
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.
Public Comments and Responses
Modeling and Take Estimates
Comment 1: The Commission has stated that, due to uncertainty in
how NMFS will be addressing their previously submitted comments for
other final offshore wind rulemakings, they are not providing ``an
exhaustive letter regarding similar issues'' for Empire Wind's action.
They have stated that, in lieu of this, they incorporate by reference
all previously submitted comment letters for past proposed rules (i.e.,
Sunrise Wind, Revolution Wind, Ocean Wind 1) and that NMFS should
specifically review these previously submitted letters (i.e., Sunrise
Wind (88 FR 8996, February 10, 2023), Revolution Wind (87 FR 79072,
December 23, 2022), and Ocean Wind 1 (87 FR 64868, October 26, 2022)
and incorporate, where applicable, relevant information in the context
of the Project. They specifically noted that these general concerns
could include ``underestimated numbers of Level A and B harassment
takes (including failing to round up to group size), incomplete SFV
measurement requirements, insufficient mitigation and monitoring
measures, errors and omissions in the preamble to and the proposed
rule, and the general issue of quality control and quality assurance in
NMFS's preparation of proposed incidental take authorizations.''
Response: NMFS acknowledges the receipt of a comment letter on the
proposed Project by the Commission, as well as receipt of comment
letters from the Commission for the Sunrise Wind (88 FR 8996, February
10, 2023), Revolution Wind (87 FR 79072, December 23, 2022), and Ocean
Wind 1 (87 FR 64868, October 26, 2022) proposed projects. We appreciate
that, in the past, the Commission has provided very specific and
detailed comments and suggestions on NMFS' actions, as a collaborative
effort to improve both the incidental take authorizations (ITAs)
themselves as well as the conservation benefits for NMFS' trust
species. Because the Commission did not provide specific comments on
the proposed rule for the Project, we cannot address any specific
concerns. However, we can address general themes of concern raised in
previous letters, and, inasmuch as another specific comment is
applicable here, we refer the Commission back to our previous
responses.
Overall, the Commission's previous letters raised concerns over
acoustic modeling, underestimating take estimates, mitigation and
monitoring, and reporting measures. The Commission raised specific
concerns over underestimating take requests by Level A harassment
associated with impact pile driving (see comment 2), the size of the
minimum visibility zone (see comment 15), the number of vessels
required to implement mitigation measures (see comment 5), and SFV
reporting measures (see comment 18) in its letter and we have addressed
these in the relevant responses. With respect to mitigation, monitoring
and reporting requirements, we have thoroughly addressed the
Commission's previous concerns and have updated final rules, including
this one, accordingly. In response to the Commission's comments, NMFS
has strengthened requirements for noise attenuation systems, increased
the number of PSOs required for monitoring, and added additional
reporting requirements for SFV measurements. Lastly, any ``omissions''
and ``general issues of quality control and quality assurance'' from
one action are less likely to be present in another action as updates
are carried through across actions (although NMFS does not agree that
every example previously raised by the Commission was, in fact, an
error). For all of these reasons, not all of the Commission's specific
concerns raised in previous letters apply to this project and we cannot
address specific concerns the Commission did not identify in its
letter. We have, however, made certain changes based on the
Commission's previous comments referenced here. Those changes are
identified in the Changes From the Proposed to Final Rule section, and
are also described below in this Response to Public Comments section.
As we continue to learn from and refine our MMPA process for
offshore wind actions, we look forward to continuing to work
cooperatively with the Commission to identify opportunities to further
minimize impacts to marine mammals, where practicable.
Comment 2: The Commission indicated that, for past proposed rules,
there have been discrepancies with take requests by Level A harassment
associated with impact pile driving accounting for documented average
group sizes of species, and suggested ensuring that Empire Wind's take
requests by Level A harassment are
[[Page 11347]]
consistent with documented average group sizes for the Project Area.
Response: While we do not agree with the Commission in all cases
regarding their identification of ``discrepancies,'' in this case, we
have agreed that their recommendation is appropriate. Specifically, in
response to the Commission's comment and Endangered Species Act (ESA)
consultation discussion, and based upon recent PSO sighting reports in
the Project Area, NMFS has decided to increase take by Level A
harassment associated with impact pile driving for fin whales in order
to ensure that authorized take is consistent with documented average
group size for the Project Area. Take by Level A harassment for year 2
(2025) associated with impact-pile-driving activities will be increased
from two fin whales to four fin whales, assuming two groups of two
whales each are taken by Level A harassment. In year 3 (2026), take by
Level A harassment associated with impact-pile-driving activities will
be increased from one fin whale to two fin whales, assuming one group
of two whales are taken by Level A harassment. Additional take by Level
A harassment is authorized during year 2 due to increased pile-driving
activity during that year.
Comment 3: Commenters stated that there is no evidence or research
proving that the Project would not cause the mortality or serious
injury of marine mammals. The commenters mistakenly categorized Level A
harassment and Level B harassment as mortality and serious injury.
Response: Regarding take by serious injury or mortality, the
proposed rule stated 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 50 CFR 217.292(c)).
Regarding the suggestion 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 take on a project-by-project basis. In the
Estimated Take section, NMFS has provided a detailed rationale for why
the amount and manner of take described in this final rule is
reasonable and based on the best available science. The commenters did
not provide any information to support the 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 Empire Wind.
Mitigation
Comment 4: Commenters recommended that NMFS increase the size of
the clearance and shutdown zones for site assessment surveys to 500
meters (m) for all large whales and 1,000 m for North Atlantic right
whales and require a 1,000-m acoustic clearance zone (i.e.,
necessitating the use of PAM for HRG surveys); and require that any
unidentified large whale within 1,000 m of the vessel be considered a
North Atlantic right whale.
Response: NMFS disagrees with several of the suggestions provided
by the commenters. As described in the proposed rule and this final
rule, the required 500-m shutdown zone for North Atlantic right whales
exceeds the modeled distance to the largest 160-dB Level B harassment
isopleth (50.05 m during Compressed High Intensity Radiated Pulse
(CHIRP) use) by a large margin, minimizing the likelihood that they
will be harassed in any manner by this activity. For other ESA-listed
species (e.g., fin and sei whales), NMFS Greater Atlantic Regional
Fisheries Office's (GARFO's) 2021 Offshore Wind Site Assessment Survey
Programmatic ESA consultation (<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic</a>) determined that a 100-m shutdown zone
is sufficient to minimize exposure to noise that could be disturbing.
Accordingly, NMFS has adopted this shutdown zone size for all baleen
whale species other than the North Atlantic right whale. Commenters do
not provide scientific information for NMFS to consider to support
their recommendation to expand the shutdown zone. Given that these
surveys are relatively low impact and NMFS has prescribed a
precautionary North Atlantic right whale shutdown zone that is larger
(500 m) than the largest estimated harassment zone (50.05 m), NMFS has
determined that an increase in the size of the shutdown zone during HRG
surveys is not warranted.
Regarding the use of acoustic monitoring to implement the shutdown
zones, NMFS does not consider acoustic monitoring an effective tool for
use with HRG surveys for the reasons discussed below and therefore, has
not required it in this final rule. As described in the Mitigation
section, NMFS has determined that the prescribed mitigation
requirements are sufficient to effect the least practicable adverse
impact on all affected species or stocks.
The commenters do not provide additional scientific information for
NMFS to consider to support their recommendation to require PAM during
site assessment surveys. NMFS disagrees that this measure is warranted
because it is not expected to be effective for use in detecting the
species of concern. It is generally accepted that, even in the absence
of additional acoustic sources, using a towed passive acoustic sensor
to detect baleen whales (including North Atlantic right whales) is not
typically effective because the noise from the vessel, the flow noise,
and the cable noise are in the same frequency band and will mask the
vast majority of baleen whale calls. Vessels produce low-frequency
noise, primarily through propeller cavitation, with main energy in the
5-300 hertz (Hz) frequency range. Source levels range from about 140 to
195 decibels (dB) referenced to 1 (re 1) [mu]Pa (micropascal) at 1 m
(National Research Council (NRC), 2003; Hildebrand, 2009), depending on
factors such as ship type, load, and speed, and ship hull and propeller
design. Studies of vessel noise show that it appears to increase
background noise levels in the 71-224 Hz range by 10-13 dB (Hatch et
al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM systems
employ hydrophones towed in streamer cables approximately 500 m behind
a vessel. Noise from water flow around the cables and from strumming of
the cables themselves is also low frequency and typically masks signals
in the same range. Experienced PAM operators (Thode et al., 2017)
emphasized that a PAM operation could easily report no acoustic
encounters, depending on species present, simply because background
noise levels rendered any acoustic detection impossible. The same
report stated that a typical eight-element array towed 500 m behind a
vessel could be expected to detect delphinids, sperm whales, and beaked
whales at the required range, but not baleen whales, due to expected
background noise levels (e.g., seismic noise, vessel noise, and flow
noise).
Further, there are several additional reasons why we disagree that
use of PAM is warranted for HRG surveys, specifically. While NMFS
agrees that PAM can be an important tool for augmenting detection
capabilities in certain circumstances (e.g., foundation installation),
its utility in further
[[Page 11348]]
reducing impacts during HRG survey activities is limited. First, for
this activity, the area expected to be ensonified above the Level B
harassment threshold is relatively small (a maximum of 50.05 m); this
reflects the fact that the source level is comparatively low and the
intensity of any resulting impacts would be lower level. Further, it
means that inasmuch as PAM will only detect a portion of any animals
exposed within a zone, the overall probability of PAM detecting an
animal in the harassment zone is low. Together, these factors support
the limited value of PAM for use in reducing take for activities/
sources with smaller zones. Also, PAM is only capable of detecting
animals that are actively vocalizing, while many marine mammal species
vocalize infrequently or during certain activities, which means that
only a subset of the animals within the range of the PAM would be
detected (and potentially have reduced impacts). Additionally,
localization and range detection can be challenging under certain
scenarios. For example, odontocetes are fast moving and often travel in
large or dispersed groups which makes localization difficult.
Given that the effects to marine mammals from the types of HRG
surveys authorized in this final rulemaking are expected to be limited
to low level behavioral harassment even in the absence of mitigation,
the limited additional benefit anticipated by adding this detection
method (especially for North Atlantic right whales and other low
frequency cetaceans, species for which PAM has limited efficacy during
this activity), and the cost and impracticability of implementing a
full-time PAM program, we have determined the current requirements for
visual monitoring are sufficient to ensure the least practicable
adverse impact on the affected species or stocks and their habitat
during HRG surveys.
Comment 5: The Commission noted that the proposed rule does not
require a second vessel to implement the various mitigation measures
and that PSOs would only be required on the pile driving vessel. The
Commission further noted that these measures are not consistent with
other offshore wind rules.
Response: In response to the Commission's comment and the ESA
consultation discussion, Empire Wind may propose an alternative
monitoring technology that has been demonstrated to have a greater
visual monitoring capability compared to 3 PSOs on a dedicated PSO
vessel in place of a requirement to have a second dedicated PSO vessel
during impact pile driving activities to implement mitigation measures.
The proposed alternative monitoring technology must be approved by
NMFS. A minimum of three PSOs on duty at any given time will be
required to conduct monitoring from each vessel. These requirements are
included in the final rule and described in further detail in Sec.
217.285(b)(4).
Comment 6: Commenters recommended that NMFS require clearance and
shutdown zones for North Atlantic right whales specifically, including:
(1) a minimum of 5,000 m for the visual clearance, acoustic clearance,
and shutdown zones in all directions from the driven pile location; and
(2) an acoustic shutdown zone that would extend at least 2,000 m in all
directions from the driven pile location.
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: NMFS agrees with this comment and is now requiring both
clearance and shutdown zones for North Atlantic right whales that are
activated at any distance of detection.
The commenters do not provide additional scientific information for
NMFS to consider to support their recommendation to expand clearance
and shutdown zones to effect the least practicable adverse impact on
marine mammals, particularly large whales, excluding the North Atlantic
right whale. The required shutdown and clearance zones (equally sized)
for large whales (other than North Atlantic right whale) are based on
the largest exposure range calculated for any mysticete, other than
humpback whales, that represents the distance to the Level A harassment
cumulative sound exposure level (SEL<INF>cum</INF>) isopleth for the
low frequency hearing group, rounded up to the nearest hundred for PSO
clarity. Required monitoring and mitigation for these zones will
minimize Level A harassment and Level B harassment to the extent
practicable and avoid most Level A harassment of large whales (all
species of large whales have six or fewer takes by Level A harassment
across all 5 years of the rule). Further enlargement of these zones
could interrupt and delay the Project such that a substantially higher
number of days would be needed to complete the construction activities,
which would incur additional costs, but importantly, also potentially
increase the number of days that marine mammals are exposed to the
disturbance. Accordingly, NMFS has determined that enlargement of these
zones is not warranted, and that the existing required clearance and
shutdown zones support a suite of measures that will effect the least
practicable adverse impact on other large whales.
Comment 7: Commenters noted that the final rule should clarify that
if weather or other conditions limit the range of observation, then
shutdown zones will be initiated. Commenters also questioned the
feasibility of the shutdown mitigation requirements in real-world
conditions and what would occur if the authorized take levels were
exceeded. In addition, commenters state concerns on the required
mitigation measures, assessing the effectiveness of the mitigation
measures, and reporting the use of the mitigation measures in real-
time.
Response: NMFS disagrees that additional clarification should be
added to describe the initiation of shutdown zones if weather
conditions limit the range of observation. With respect to weather and
other conditions that could impede observations, NMFS has clearly
explained and established in the proposed and final rule a minimum
visibility zone that must be visually clear of marine mammals before
and during pile driving. If this area cannot be visually monitored,
pile driving must not be initiated or must cease. In addition to visual
monitoring, Empire Wind is required to conduct PAM which is not
influenced by poor visibility conditions.
In regard to a scenario where Empire Wind exceeds their authorized
take levels, any further take would be unauthorized and, therefore,
prohibited under the MMPA. All mitigation measures stated in this
notice and in the issued LOA are considered feasible. NMFS works with
each ITA applicant, including Empire Wind, to ensure that project-
specific mitigation measures are possible in real-world conditions.
This includes shutdown zones when there is reduced visibility. As
stated in the rule condition Sec. 217.285(b)(5), Empire Wind must
ensure certain equipment is provided to PSOs, such as thermal (i.e.,
infrared) cameras, to allow PSOs to adequately complete their duties,
including in reduced-visibility conditions. NMFS does not agree that
additional wording is necessary within the rule to further describe the
requirement and implementation of shutdown zones. Further, pursuant to
the adaptive management provisions in the rule, NMFS may modify the
required mitigation or monitoring measures, if doing so creates a
[[Page 11349]]
reasonable likelihood of more effectively accomplishing the goals of
the mitigation and monitoring. NMFS disagrees that the rule's
mitigation measures are insufficient.
NMFS reviews required reporting (see Monitoring and Reporting) and
uses the information to evaluate the mitigation measure effectiveness.
Additionally, the mitigation measures included in Empire Wind's rule
are not unique, and data from prior rules support the effectiveness of
these mitigation measures. NMFS finds the level of reporting currently
required is sufficient for managing the issued rule and monitoring the
affected stocks of marine mammals.
Comment 8: A commenter suggested that PSOs complement their survey
efforts using additional technologies, such as infrared detection
devices, when in low-light conditions.
Response: NMFS agrees with the commenter regarding this suggestion
and a requirement to utilize a thermal (infrared) device during low-
light conditions was included in the proposed rule. That requirement is
included as a requirement of the final rule.
Comment 9: 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 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, 2022). They also recommended that NMFS require
the ``best commercially available combined [noise attenuation system]
technology'' to achieve noise reduction and attenuation.
A commenter also suggested that NMFS require Empire Wind to use HRG
acoustic sources at the lowest practicable source levels needed to meet
the objectives of the site characterization surveys.
Response: NMFS agrees that previous measurements indicate that the
deployment of double big bubble curtains should result in noise
reductions beyond the assumed 10 dB. 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. While NMFS is requiring that Empire Wind 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 noise
attenuation systems (NASs) 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.
However, when 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 believes assuming only a 10-dB noise reduction
is conservative. Furthermore, if SFV measurements consistently
demonstrate that more than a 10-dB reduction is achievable, adjustments
in monitoring and mitigation can be made by NMFS, upon request by
Empire Wind. We reiterate that there is no requirement to achieve 10-dB
attenuation as no unattenuated piles would be driven (in order to
minimize impacts and noting as supported by one of the commenters here
and on past similar actions); therefore, it is not possible to collect
the data necessary to enforce this requirement. However, 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, but rather 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 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 applicable, will not have an unmitigable adverse
impact on the availability of such species or stock for subsistence
uses.
NMFS notes that Empire Wind must conduct SFV on 3 monopiles and on
all OSS foundations (24 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 of attenuation),
Empire Wind 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.
In addition to the SFV requirements in the proposed rule, we added
to this final rule the requirement that Empire Wind 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 to be 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 were
exceeded must be addressed by Empire Wind including an explanation of
factors that contributed to the exceedance and corrective actions that
were taken to avoid exceedance on subsequent piles.
As part of the updates to the final rule, in response to these
comments regarding sufficient NAS, NMFS will also require maintenance
checks and testing of NAS systems before each use to ensure the NAS is
usable and the
[[Page 11350]]
system is able to achieve the modeled reduction, this information would
be required to be reported to NMFS within 72 hours of an installation
and before the next installation occurs.
NMFS agrees that the final SFV reports that have undergone quality
assurance/quality control by the agencies and include all of the
required information to support full understanding of the results will
be made publicly available. NMFS will make all final reports available
on our website. NMFS agrees with the recommendation that Empire Wind
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.
Comment 11: To minimize the risk of vessel strikes for all whales,
and especially in recognition of the imperiled state of North Atlantic
right whales, commenters do not believe that mitigation measures to
reduce the risk of vessel strike are strong enough and have instead
suggested that NMFS require a mandatory 10-knot (kn) (5.14 m/s) speed
restriction for all project vessels (including PSO survey vessels) at
all times, except for reasons of safety, and in all places except in
limited circumstances where the best available scientific information
demonstrates that whales do not occur in the area.
Alternatively, commenters suggested that project proponents could
work with NMFS to develop an ``Adaptive Plan'' that modifies vessel
speed restrictions if the monitoring methods are proven to be effective
when vessels are traveling 10 kn (5.14 m/s) or less. 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.
In a related comment, a commenter encouraged NMFS to proactively
work to reduce the risk of vessel strike across maritime industries by
conducting research to better understand large whale habitat use in the
New York Bight through targeted research studies focusing on habitat
use at the surface and at depth in order to inform development of
vessel strike reduction measures for large whale species.
Response: NMFS acknowledges that vessel strikes pose a risk to
marine wildlife, including North Atlantic right whales, but disagrees
with the commenter that the mitigation measures to prevent vessel
strike are insufficient. Under the MMPA, NMFS must prescribe
regulations setting forth other means of effecting the least
practicable adverse impact of the requestor's specified activities on
species or stocks and its habitat. In both the proposed and final
rules, we analyzed the potential for vessel strike resulting from the
planned activities. We determined that the risk of vessel strike is
low, based on the nature of the activities, including the number of
vessels involved in those activities and the relative slower speed of
most of those vessels, and the fact that high speed vessels are mostly
used for activities (e.g., crew transfer during foundation
installation) that occur when large whale presence is lower than during
the foundation pile driving seasonal restriction. In addition, vessels
associated with the construction activities will add a discountable
amount of vessel traffic to the specific geographic region.
To further reduce the already low risk, NMFS has required several
mitigation measures specific to vessel strike avoidance. With the
implementation of these measures, NMFS has determined that the
potential for vessel strike is so low as to be discountable and vessel
strike is reasonably considered to be avoidable. Whales and other
marine mammal species are present within the Project Area year-round.
However, many large whale species (e.g., North Atlantic right whales)
are less frequently found within the Project Area during the months
when foundation installation, which requires the most use of higher-
speed vessels, would occur (i.e., May through November; Roberts et al.,
2023). As described in the proposed rule and included in this final
rule, NMFS is requiring Empire Wind to reduce speeds to 10 kn (5.14 m/
s) or less in circumstances when North Atlantic right whales are known
to be present or more likely to be in the area where vessels are
transiting, which include, but are not limited to, all Slow Zones
(Dynamic Management Area (DMA) or acoustic Slow Zone), when traveling
between ports in New Jersey, New York, Maryland, or Virginia from
November 1 to April 30, and if a North Atlantic right whale is detected
visually or acoustically at any distance or reported within 10
kilometers (km). Vessels are also required to slow and maintain
separation distances for all marine mammals. As described in the
proposed rule, all vessels must have a dedicated, trained crew member
or PSO onboard. Furthermore, vessels towing survey gear travel at very
slow speeds (e.g., roughly 4-5 kn (7.4-9.3 km/hour)) and any vessels
engaged in construction activities would be primarily stationary during
the pile-driving event. Additionally, aside from any requirements of
this rule, Empire Wind is required to comply with all spatial and
temporal approach (500 m) and speed restrictions outlined in existing
regulations (50 CFR 224.105 and 222.32).
While we acknowledge that a year-round 10-kn requirement could
potentially fractionally reduce the already discountable probability of
a vessel strike, this theoretical reduction would not be expected to
manifest in measurable real-world differences in impact. Further,
additional limitations on speed or requiring a PSO on all transiting
vessels have significant practicability impacts on applicants, in that,
given the distance of Empire Wind's Lease Area offshore of New York,
vessel 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, which could extend the number of
days necessary to complete all pile driving of foundations.
Furthermore, Empire Wind 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 (5.14 m/s) or less at all times.
Regarding an ``Adaptive Plan'' to allow the developer to travel
over 10 kn (5.14 m/s) where they would otherwise not be allowed, there
are adaptive management provisions in the rule that allows for
modification to mitigation measures, when warranted. Should Empire Wind
request modifications to the vessel strike avoidance measures, NMFS
would consider the request and act accordingly.
In addition to the vessel strike avoidance measures, NMFS has also
included a requirement that all vessels be equipped with automatic
identification system (AIS) to facilitate compliance checks with the
speed limit requirements. Lastly, we disagree with the commenter that
the final rule and LOA must include a vessel traffic plan beyond the
extensive measures outlined here. At least 180 days prior to the start
of vessel operations commencing, Empire Wind must submit both a Vessel
Strike Avoidance Plan, including plans for conducting PAM in the
transit corridors should Dominion Energy determine they wish to travel
over 10 kn (18.5 km/hr) in the transit corridors, to NMFS for review
and approval.
[[Page 11351]]
NMFS acknowledges the commenter's recommendation for NMFS to work
to reduce the risk of vessel strike to large whales by conducting
targeted research to better understand large whale habitat use in the
New York Bight. Although the initiation of targeted research studies is
beyond the scope of this authorization, NMFS uses the best available
data to assess large whale distributions and risk of vessel strike, and
applies mitigation measures to reduce this risk to effect the least
practicable impact to all marine mammal species and stocks.
Comment 12: Commenters suggested that NMFS prohibit pile driving
during periods of highest risk for North Atlantic right whales, which
they define as times of the highest relative density of animals during
foraging and migration, and times where mom-calf pairs, pregnant
females, surface active groups (that are foraging or socializing), or
aggregations of three or more whales, are not expected to be present.
Citing multiple information sources, commenters further specifically
recommended the seasonal restriction for pile driving be expanded to
November 1 through April 30 to reflect the period of highest detections
of vocal activity, sightings, and abundance estimates of North Atlantic
right whales. Multiple commenters requested for the seasonal
restriction of pile driving to be expanded to November 1 through May 31
to provide additional protection for North Atlantic right whales.
Commenters also recommended prohibiting pile driving during seasons
when protected species are known to be present or migrating in the
Project Area, in addition to any dynamic restrictions due to the
presence of North Atlantic right whale or other endangered species.
Response: NMFS disagrees that extending the seasonal restriction on
pile driving to include May or November is appropriate or warranted.
NMFS has restricted foundation installation pile driving from January
through April, which represent the times of year when North Atlantic
right whales are most likely to be in the Project Area. We recognize
that the density of whales begins to elevate in December (based upon
Roberts et al., 2023); however, it is not until January when density
greatly increases. Empire Wind has indicated that to complete the
Project, pile driving is needed from May through November and may be
required in December. In this final rule, NMFS has included an
additional measure where pile driving in December must be avoided to
the maximum extent practicable but may occur if necessary, provided
Empire Wind receives NMFS' prior approval. We also note that any time
of year when foundation installation is occurring, a sighting or
acoustic detection of a North Atlantic right whale at any distance
triggers a pile driving delay or shutdown. We also reiterate that
Empire Wind is required to implement a minimum visibility zone, as
reflected by the results of JASCO Applied Sciences' (JASCO) underwater
sound propagation modeling. With the application of these enhanced
mitigation and monitoring measures, impacts to the North Atlantic right
whale will be further reduced, if any are encountered when transiting
through the migratory corridor.
As noted and acknowledged by NMFS in both the proposed and final
rules, North Atlantic right whale distribution is changing due to
climate change and other factors, and they are present year-round in
the vicinity of the Project. However, as shown in Roberts et al.
(2023), which NMFS considers the best available scientific information
regarding marine mammal densities in the Atlantic Ocean, it is not
until January that densities begin to significantly increase. Further,
North Atlantic right whales are not likely to be engaged in feeding
behaviors in the Project Area, from May to November or during any other
time period, as the Project Area is primarily a migratory corridor for
North Atlantic right whales. While some opportunistic foraging may
occur, the waters off of New York do not include known foraging habitat
for North Atlantic right whales. As described in the Description of
Marine Mammals in the Geographic Area section, foraging habitat is
located in colder, more northern waters including southern New England,
the Gulf of Maine, and Canada. In addition, Roberts et al., (2023)
density data indicates much lower densities of North Atlantic right
whales in the Project Area during the months of May (0.025 animals/100
km\2\) and November (0.016 animals/100 km\2\) as compared to the months
of January through April (0.088, 0.116 animals/100 km\2\). For these
reasons, and given the inclusion of December in the seasonal impact
pile driving restriction without NMFS's prior approval, NMFS finds that
further expansion of the seasonal impact pile driving restrictions
(beyond December through April) would be impracticable and is
unwarranted.
The comment was not specific and may be suggesting prohibiting pile
driving when any protected species are present; however, such a
restriction would not be practicable to implement as there is no time
of year when some species of marine mammals are not present.
Comment 13: A commenter suggested that when HRG surveys are allowed
to resume after a shutdown event, the surveys should be required to use
a ramp-up procedure to encourage any nearby marine life to leave the
area.
Response: NMFS agrees with this recommendation and included in the
proposed rule (88 FR 22696, April 13, 2023) and this final rule a
stipulation that when technically feasible, survey equipment must be
ramped up at the start or restart of survey activities. Ramp-up must
begin with the power of the smallest acoustic equipment at its lowest
practical power output appropriate for the survey. When technically
feasible the power must then be gradually turned up and other acoustic
sources added in a way such that the source level would increase
gradually. NMFS notes that ramp-up is not required for short periods
where acoustic sources were shut down (i.e., less than 30 minutes) if
PSOs have maintained constant visual observation and no detections of
marine mammals occurred within the applicable shutdown zones.
Comment 14: A commenter asserted that the LOA must include
requirements for all vessels associated with the Project, including
vessels owned by the developer, contractors, employees, and others
regardless of ownership, operator, and contract. They stated that
exceptions and exemptions will create enforcement uncertainty and
incentives to evade regulations through reclassification and
redesignation. They recommended that NMFS simplify this by requiring
all vessels to abide by the same requirements, regardless of size,
ownership, function, contract or other specifics.
Response: NMFS agrees with the commenter and the proposed rule and
final rule have general conditions to hold Empire Wind and its
designees (including vessel operators and other personnel) accountable
while performing operations under the authority of this final rule. The
final rule indicates that the conditions contained therein apply to
Empire Wind and its designees and requires that a copy of the LOA must
be in the possession of Empire Wind, the vessel operators, the lead
PSO, and any other relevant designees of Empire Wind. The final rule
also states that Empire Wind must ensure that the vessel operator and
other relevant vessel personnel, including the PSO team, are briefed on
all responsibilities, communication procedures, marine mammal
monitoring protocols, operational procedures, and
[[Page 11352]]
requirements prior to the start of project activities, and when
relevant new personnel join the construction and survey operations.
Comment 15: The Commission noted that NMFS' proposed minimum
visibility zone (1.2 km) is insufficient given that the shutdown zone
for mysticetes and sperm whales during impact installation of monopiles
(1.5 km) is greater than this distance. The Commission further noted
that this is not consistent with other offshore wind rules.
Response: NMFS appreciates the suggestion by the Commission and
agrees with the proposed expansion of the minimum visibility zone. In
response to the Commission's comment and ESA consultation discussion,
the minimum visibility zone for impact pile driving has been increased
from 1.2 km to 1.5 km for mysticetes and sperm whales. This updated
measure is included in the final rule.
Comment 16: Commenters recommended that NMFS should restrict pile
driving at night and during periods of low visibility to protect all
large whale species. This would include no pile driving being allowed
to begin after 1.5 hours before civil sunset or during times where the
visual clearance zone and shutdown zone (called the ``exclusion zone''
in the appendix) cannot be visually monitored, as determined by the
Lead PSO.
A commenter expressed that 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, Empire Wind should be required to notify NMFS with these
reasons and an explanation for exemption. Additionally, a commenter
stated that a summary of the frequency of these exceptions must be made
publicly available to ensure that these are indeed exceptions, rather
than the norm, for the Project.
Response: NMFS recognizes the need to protect marine mammals that
may be exposed to pile-driving noise, as well as the challenges of
detecting marine mammals in low-light and nighttime conditions.
However, we note that while it may be more difficult to detect marine
mammals at night, there are benefits to completing the pile driving in
a shorter total amount of time, and exposing marine mammals to fewer
days of pile-driving noise. Given this, NMFS disagrees that no
activities should occur during reduced visibility, as long as the use
of alternative technologies allow sufficient monitoring of the
clearance and shutdown zones, including the minimum visibility zone.
However, in this case, Empire Wind has not requested, nor has NMFS
included a provision for pile driving to begin outside the civil
sunset/civil sunrise temporal restrictions; therefore, Empire Wind will
not be able to initiate pile driving at night. In the proposed rule, we
indicated that Empire Wind 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. This requirement has been
carried over to this final rule.
Regarding the reporting requirement specified by the commenter, we
are already requiring weekly and monthly reports during foundation
installation, which would contain information that would inform on how
long and when pile driving occurred as Empire Wind 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 17: A commenter stated that NMFS should require acoustic
and visual monitoring to begin at least 60 minutes prior to the
commencement or resumption of pile driving and should be conducted
throughout the duration of the pile-driving activity. The commenter
further suggested that visual observation of the clearance zone should
continue until 30 minutes after completion of pile driving, and that
the LOA should prohibit initiating pile driving within 1.5 hours of
civil sunset or in times of low visibility when the visual clearance
zone cannot be monitored.
Response: NMFS agrees with the commenter and has included in the
final rule the requirement for that visual monitoring to begin at least
60 minutes prior to commencement or resumption of impact pile driving
of foundation piles. Moreover, PAM must be conducted for at least 24
hours immediately prior to foundation installation impact pile driving
activities. The PAM operator must review all detections from the
previous 24-hour period immediately prior to pile driving activities.
Foundation pile driving may only begin once the clearance zones have
been clear for 30 minutes immediately prior to commencing the activity.
Visual monitoring must begin at least 30 minutes prior to commencement
or resumption of vibratory pile driving associated with cable landfall
construction and marina activities, which is located in coastal waters
and is relatively quiet compared to foundation installation. PAM is not
required for cable landfall and marina pile driving. Visual monitoring
and PAM (where required) will continue for 30 minutes post completion
of both impact and vibratory pile driving.
Monitoring, Reporting, and Adaptive Management
Comment 18: The Commission noted that the proposed rule did not
specify the information that must be included in any interim or final
SFV report, and that this is inconsistent with previous proposed rules.
Response: In response to the Commission's comment and ESA
consultation discussion, NMFS has included more specific requirements
for reporting SFV measurements. This includes comprehensive
requirements for both interim and final SFV reports.
A discussion, which includes any observations which are suspected
to have a significant impact on the results including but not limited
to: observed noise mitigation system issues, obstructions along the
measurement transect, and technical issues with hydrophones or
recording devices, must be included in the final SFV report as well.
Details on the information NMFS is requiring in SFV reports can be
found in Sec. 217.285(f)(9) and (11).
Comment 19: Multiple commenters expressed concern for the
accountability, fairness, and transparency regarding how cumulative
impacts to the marine ecosystem would be measured. A commenter further
suggested NMFS include a requirement for all phases of construction 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 the Fisheries Service or the
Coast Guard as soon as possible and not later than the end of the PSO
shift. To foster stakeholder relationships and allow public engagement
and oversight of the permitting, the commenter suggested that the LOA
should require all reports and data to be accessible on a publicly
available website. Another commenter recommended that NMFS improve the
transparency of the ITA process by moving away from a ``segmented
phase-by-phase and project-by-project approach'' to authorizations.
Response: NMFS agrees with the need for reporting and indeed, the
MMPA
[[Page 11353]]
calls for LOAs to incorporate reporting requirements. As included in
the proposed rule, the final rule includes requirements for reporting
that supports the commenter's recommendations. Empire Wind is required
to submit a monitoring report to NMFS within 90 days after completion
of project activities that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring. PSO
datasheets or raw sightings data must also be provided with the draft
and final monitoring report.
Further, the draft rule and final rule stipulate that if a North
Atlantic right whale is observed at any time by any vessels, during
construction work or during vessel transit, Empire Wind must
immediately report sighting information to the NMFS North Atlantic
Right Whale Sighting Advisory System within 2 hours of occurrence, when
practicable, or no later than 24 hours after occurrence. Empire Wind
may also report the sighting to the U.S. Coast Guard. Additionally,
Empire Wind must report any discoveries of injured or dead marine
mammals, including entangled animals, to the Office of Protected
Resources, NMFS, and to the New England/Mid-Atlantic Regional Stranding
Coordinator as soon as feasible. All final reports submitted to NMFS
will be included on the website for availability to the public.
In regards to improving transparency by moving away from a
``segmented phase-by-phase and project-by-project approach, 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
emphasizes that an ITA 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 Empire Wind's request--as required by the
statute--to incidentally take marine mammals while engaged in
construction activities and marine site characterization surveys. NMFS
determines whether the necessary findings can be made based on Empire
Wind's application. NMFS does not have the authority to force project
proponents to batch or aggregate multiple activities into a single MMPA
take authorization request. Similarly, while the BOEM's Environmental
Impact Statement (EIS), which NMFS adopted, evaluates the cumulative
effects of the activity (i.e., the incremental impact of the action
when added to other past, present, and reasonably foreseeable future
actions) on the human environment in order to support multiple
decisions, the findings necessary for issuance of an MMPA authorization
are based on an assessment of the impacts on marine mammals and their
habitat, and do not require measurement of impacts on the ``marine
ecosystem.'' In addition, the ESA consultation assesses impacts to
listed species from Empire Wind's proposed action, added to the
baseline of offshore wind actions that had previously been approved.
Comment 20: Commenters expressed interest in understanding the
outcome if the number of actual takes exceed 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
instead of impacts being mistakenly assigned to fishermen. The
commenter further maintained that the offshore wind industry must be
accountable for incidental takes from construction and operations
separately from the take authorizations for managed commercial fish
stocks.
Response: NMFS carefully reviews models and take estimate
methodology to authorize a number of takes, by species and manner of
take, that 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.
Empire Wind would be required to submit frequent reports which would
identify the number of takes applied to the Project.
In the unexpected event that Empire Wind 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 (i.e., 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 21: A commenter suggested that NMFS require Empire Wind to
utilize direct-drive turbines instead of gearboxes.
Response: NMFS disagrees with the commenter's suggestion to require
Empire Wind to utilize direct-drive turbines instead of gearboxes.
Empire Wind included the use of turbines that may contain gearboxes in
the description of their specified activity, and NMFS has evaluated the
activity as charged and made the determinations necessary to support
the issuance of incidental take regulations. Although direct-drive
technology is newer, gearboxes are effective and frequently used in the
offshore wind industry, and it is outside of the scope of NMFS'
authority to require the use of direct-drive turbines over gearboxes.
Comment 22: A commenter asserted that the requirement of having
PSOs onboard project vessels is insufficient to prevent harm to North
Atlantic right whales as right whales can be difficult to spot from a
boat and poor weather or low light conditions make detecting right
whales challenging.
Response: NMFS recognizes that visual detection based mitigation
approaches are not 100 percent effective. Animals are missed because
they are underwater (i.e., availability bias) or because they are
available to be seen but are missed by observers (i.e., perception and
detection biases) (e.g., Marsh and Sinclair, 1989). However, visual
observation remains one of the
[[Page 11354]]
best available methods for marine mammal detection. For North Atlantic
right whales in particular, the required Clearance Zones are any
distance (impact pile driving), 1,600 m (vibratory pile driving/marine
activities), and 500 m (HRG surveys) and, therefore, it is unlikely
that an individual would approach the harassment zone undetected.
In addition, as described in the proposed rule, NMFS is requiring
that Empire Wind employ both visual and PAM methods for monitoring, as
both approaches aid and complement each other (Van Parijs et al.,
2021). The use of PAM will augment visual detections for foundation
pile driving, especially for activities with the largest zones. 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, table 39 clearly
specifies this 10 km PAM monitoring zone. For further detail on the
requirements for the use of PAM, see comments 4 and 17.
Comment 23: A commenter recommended that the LOA should require all
vessels supporting site characterization to be equipped with and using
Class A AIS devices at all times while on the water. A commenter
suggested this requirement should apply to all vessels, regardless of
size, associated with the survey.
Response: NMFS acknowledges that vessel strikes pose a risk to
marine wildlife, including North Atlantic right whales. For the final
rule, NMFS has included a requirement that all vessels be equipped with
AIS to facilitate compliance checks with the speed limit requirements.
Comment 24: Several commenters recommended that NMFS increase the
frequency of information review for adaptive management to at least
once a quarter and to have a mechanism in place to undertake review and
adaptive management on an ad hoc basis if a serious issue is identified
(e.g., if unauthorized levels of Level A take of marine mammals are
reported or if serious injury or mortality of an animal occurs).
Response: We disagree that the frequency at which information is
reviewed should be defined in the Adaptive Management provision. The
purpose of the Adaptive Management provision 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 Empire Wind about feasibility and
practicability.
We do not agree with the suggestion by the commenter 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. NMFS has
included two relevant provisions in its final ITA, one prohibiting take
by mortality of serious injury (``Take by mortality or serious injury
of any marine mammal species is not authorized'') and another
prohibiting the taking of marine mammals in any manner other than what
is specified in the LOA (``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 final regulations text (see Sec. 217.293). If the
Project takes any marine mammal in a manner that has not been specified
in the final rule and LOA (i.e., unauthorized take by Level A
harassment), or project vessels strike a marine mammal, Empire Wind
would be in violation of its LOA and NMFS would undertake appropriate
actions, as determined to be necessary.
Effects Assessment
Comment 25: Multiple commenters stated that NMFS must make an
assessment of which activities, technologies, and strategies are truly
necessary to achieve site characterization to inform development of the
offshore wind projects and which strategies are not critical. In
addition, commenters asserted that NMFS should prescribe the
appropriate survey techniques and mitigate any potential stressors to
effect the least practicable impact on all affected species and stocks.
Commenters further encouraged NMFS to require that the LOA holder
minimize the impacts of underwater noise to the fullest extent
feasible, including through the use of best available technology and
methods to minimize sound levels from geophysical surveys such as
through the use of technically and commercially feasible and effective
noise reduction and attenuation measures. One commenter emphasized that
there should be a focus on reducing impacts to species with extreme
sensitivity to noise (e.g., harbor porpoises) and species experiencing
UMEs (e.g., harbor seals).
Response: The MMPA requires that an LOA include measures that will
effect the least practicable adverse impact on the affected species and
stocks, and, in practice, NMFS agrees that the LOA should include
conditions for the activities that will first avoid adverse effects on
marine mammal species in and around the Project Area, where
practicable, and minimize the effects that cannot be avoided. NMFS has
determined that the ITR and LOA meet this requirement to effect the
least practicable adverse impact. As part of the analysis for all ITRs,
NMFS evaluates the effects expected as a result of the specified
activity, makes the necessary findings, and prescribes mitigation
requirements sufficient to achieve the least practicable adverse impact
on the affected species and stocks of marine mammals.
Comment 26: A commenter asserted that NMFS must fully consider the
discrete effects of each activity and the cumulative effects of the
suite of approved, proposed, and potential activities on marine mammals
(particularly North Atlantic right whales) and ensure that the
cumulative effects are not excessive before issuing an incidental take
authorization (ITA). Other commenters encouraged NMFS to consider the
total takes of all species alongside takes that NMFS has authorized for
other wind-related activities, and noted that the cumulative impacts of
offshore wind activities on marine mammals are not yet known.
Commenters objected to NMFS's conclusion that the application's take
limit of 29 North Atlantic right whales for construction activities in
the coastal waters between off New York will have a ``negligible
impact'' on the species and fulfills the requirement for ``small
numbers'' of takes, especially in light of the North Atlantic right
whale's critically endangered status, the ongoing UME that this species
is experiencing and, consequently, the asserted existential threat
posed to the species by obstacles to even one individual's survival--
and they emphasized this comment in combination with the need to
consider the take from multiple projects.
Response: NMFS is required to authorize the requested incidental
take if it finds the total incidental take of small numbers of marine
mammals by U.S. citizens ``while engaging in that (specified)
activity'' within a specified geographic region during the 5-year
period (or less) will have a negligible impact on such species or stock
and, where applicable, will not have an
[[Page 11355]]
unmitigable adverse impact on the availability of such species or stock
for subsistence uses (16 U.S.C. 1371(a)(5)(A)). Negligible impact is
defined as ``an impact resulting from the specified activity that
cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effect on annual rates of
recruitment or survival'' (50 CFR 216.103). Neither the MMPA nor its
implementing regulations require consideration of unrelated activities
and their impacts on marine mammal populations in the negligible impact
determination. Consistent with the preamble of NMFS' implementing
regulations (54 FR 40338, September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are factored into the
baseline, which is used in the negligible impact analysis. Here, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline (e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors).
The preamble of NMFS' implementing regulations also addresses
cumulative effects from future, unrelated activities. Such effects are
not considered in making the negligible impact determination under MMPA
section 101(a)(5). NMFS considers: (1) cumulative effects that are
reasonably foreseeable when preparing a National Environmental Policy
Act (NEPA) analysis; and (2) reasonably foreseeable cumulative effects
under section 7 of the ESA for ESA-listed species, as appropriate.
Accordingly, NMFS has adopted and reviewed BOEM's EIS and as part of
its inter-agency coordination. This EIS addresses cumulative impacts
related to the Project and substantially similar activities in similar
locations. Cumulative impacts regarding the promulgation of the
regulations and issuance of an LOA for construction activities planned
by Empire Wind, have been adequately addressed in the adopted EIS that
supports NMFS' determination that this action has been appropriately
analyzed under NEPA. Separately, the cumulative effects of the Project
on ESA-listed species, including the North Atlantic right whale, were
analyzed under section 7 of the ESA when NMFS engaged in formal inter-
agency consultation with the NOAA GARFO. The Biological Opinion for the
Project determined that NMFS' promulgation of the rulemaking and
issuance of an LOA for construction activities associated with leasing,
individually and cumulatively, are likely to adversely affect, but not
jeopardize, listed marine mammals.
NMFS disagrees that the authorized take of 29 North Atlantic right
whales by Level B harassment incidental to the Project will have a non-
negligible impact on the species and notes that the commenter did not
provide additional scientific information supporting this claim for
NMFS to consider. Take by injury, serious injury, or mortality is not
authorized. NMFS emphasizes that the authorized incidental take is
limited to Level B harassment (i.e., behavioral disturbance). As
described in the proposed rule and this final rule (see Negligible
Impact Analysis and Determination section), NMFS has determined that
the Level B harassment of North Atlantic right whales will not result
in impacts to the population through effects on annual rates or
recruitment or survival. The Project Area occurs offshore of New York,
which does not include habitat where North Atlantic right whales are
known to concentrate in foraging or reproductive behaviors. The Project
Area is a known migratory corridor. Hence, it is likely that most of
the authorized takes represent an exposure to a different individual,
which means that the behavioral impacts to North Atlantic right whales
are limited to behavioral disturbance occurring on 1 or 2 days within a
year--an amount that would not be expected to impact reproduction or
survival. Across all years, while it is possible an animal migrating
through could have been exposed during a previous year, the low amount
of take authorized during the 5-year period (n=29 takes of North
Atlantic right whales by Level B harassment) of the rule makes this
scenario unlikely. Any disturbance to North Atlantic right whales due
to Empire Wind's activities is expected to result in temporary
avoidance of the immediate area of construction but not abandonment of
its migratory path. Slight displacement (but not abandonment) of a
migratory pathway is unlikely to result in energetic consequences that
could affect reproduction or survival of any individuals. Other impacts
such as masking, Temporary Threshold Shift (TTS), and temporary
communication and foraging disruption may occur (again noting that
North Atlantic right whales concentrate foraging far north of the
Project Area (e.g., southern New England, Gulf of Maine, and Canada).
However, these impacts would also be temporary and unlikely to lead to
survival or reproduction impacts of any individual, especially when the
extensive suite of mitigation, including numerous measures targeted
specifically towards minimizing impacts to North Atlantic right whales,
are considered.
NMFS also disagrees with the commenter's arguments on the topic of
small numbers. In the Empire Wind proposed rule, NMFS describes that
when the predicted number of individuals to be taken is less than one-
third of the species or stock abundance, the take is considered to be
of small numbers. The small number of takes being authorized is
incidental to the specified activities. NMFS has provided a reasoned
approach to small numbers, as described in the ``Taking Marine Mammals
Incidental to Geophysical Surveys Related to Oil and Gas Activities in
the Gulf of Mexico'' final rule (86 FR 5322 at 5438, April 19, 2021).
Utilizing that approach, NMFS has made the necessary small numbers
finding for all affected species and stocks in this case (see Small
Numbers section for more detail).
Comment 27: A commenter stated that some of the specified
activities will increase the number of vessels in the ocean in the
Project Area, which will lead to an increased threat of harm by vessel
strikes to marine mammals, specifically North Atlantic right whales.
Response: NMFS acknowledges that vessel strikes can result in
injury or mortality of marine mammals. We analyzed the potential for
vessel strike resulting from Empire Wind's activities (including the
anticipated number of vessels in the area) and determined that based on
the nature of the activity and the required mitigation measures
specific to vessel strike avoidance included in this rulemaking, the
potential for vessel strike is so low as to be discountable. The
required mitigation measures, all of which were included in the
proposed rulemaking and are now required in the final regulations,
include: a requirement that all vessel operators comply with 10 kn
(18.5 km/hour) or less speed restrictions in any Seasonal Management
Area (SMA), DMA, or Slow Zone while underway, and check daily for
information regarding the establishment of mandatory or voluntary
vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and information
regarding North Atlantic right whale sighting locations; a requirement
that all vessels, regardless of size, operating from November 1 through
April 30 operate at speeds of 10 kn (18.5 km/hour) or less; a
requirement that all vessel operators reduce vessel speed to 10 kn
(18.5 km/hour) or less when any large whale, any mother/calf pairs,
pods, or large assemblages of non-
[[Page 11356]]
delphinid cetaceans are observed near the vessel; a requirement that
all project vessels maintain a separation distance of 500 m or greater
from North Atlantic right whales; a requirement that, if underway,
vessels must steer a course away from any sighted North Atlantic right
whale at 10 kn (18.5 km/hr) or less until the 500-m minimum separation
distance has been established; a requirement that, if a North Atlantic
right whale is sighted in a vessel's path, or within 500 m of an
underway vessel, the underway vessel must reduce speed and shift the
engine to neutral; and, a requirement that all vessels underway must
maintain a minimum separation distance of 100 m or 50 m from all other
marine mammals (species-dependent and excluding North Atlantic right
whales), with an understanding that at times this may not be possible
(e.g., for animals that approach the vessel). Based on these, we have
determined that the vessel strike avoidance measures in the rulemaking
are sufficient to ensure the least practicable adverse impact on
species or stocks and their habitat.
Comment 28: A commenter expressed concern about the use of multiple
vessels concurrently performing the HRG survey work may increase take
potential, and that only one ship at a time should be permitted to
actively emit sound for survey data collection within 200 nautical
miles (nmi) of other ships working in other lease areas.
Response: The commenter does not provide information supporting
their statement that multiple HRG survey vessels would increase the
potential for take. The amount of take requested by Empire Wind and
authorized by NMFS considers the total amount of HRG effort that would
occur. Further, the commenter does not provide information supporting
their comment that an Empire Wind HRG vessel should operate more than
200 miles from other HRG vessels for other projects. NMFS is not
requiring this recommendation because it is not practicable.
Comment 29: Commenters stated that NMFS must utilize the best
available science in their analysis. A commenter stated that NMFS must
use the most recent and best available science in evaluating impacts to
North Atlantic right whales, including updated population estimates,
recent habitat usage patterns for the Project Area, and a revised
discussion of the acute and cumulative stress on whales in the region.
A commenter identified that the North Atlantic right whale population
abundance is less than that cited in the proposed rule and that the
current mitigation plan would not give assurance that endangered and
critically endangered species would be protected. In addition, a
commenter noted concerns regarding the number of species that could be
impacted by the activities, as well as a lack of baseline data being
available for species in the area. The commenter stated that NMFS did
not adequately address the potential for cumulative impacts to
bottlenose dolphins from Level B harassment over several years of
project activities and that there is not sufficient baseline
information about how harbor seals use the water of the Lease Area to
conclude that the activities covered by rule will have a negligible
impact on harbor seals.
Response: The MMPA and its implementing regulations require that
ITRs be established based on the best available information, which does
not always mean the most recent information. NMFS considered all
relevant information regarding North Atlantic right whale, including
the information cited by the commenters. In the context of stock
abundance, NMFS generally considers the information in the most recent
U.S. Atlantic and Gulf of Mexico Stock Assessment Report (SAR; Hayes et
al., 2023) to be the best available information for a particular marine
mammal stock because of the MMPA's rigorous stock assessment report
(SAR) procedural requirements, which includes peer review by a
statutorily established Scientific Review Group. Since issuance of the
proposed rule, NMFS has finalized the 2022 SAR indicating the North
Atlantic right whale population abundance is estimated at 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 on the
analysis from Pace et al. (2017) and subsequent refinements found in
Pace (2021), is included by reference in the draft and final 2022 SARs
(<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 Empire Wind's construction activities.
NMFS relied upon the best scientific evidence available, including,
but not limited to, the draft 2022 SAR, scientific literature, and Duke
University's density model (Roberts et al., 2023), in analyzing the
impacts of Empire Wind's specified activities on marine mammals. The
MMPA requires us to evaluate the effects of the specified activities in
consideration of the best scientific evidence available and, if the
necessary findings are made, to issue the requested take authorization.
The MMPA does not allow us to delay decision making to wait for
additional information may become available in the future. While
commenters suggest generally that NMFS consider the best scientific
evidence available, none of the commenters provided additional
scientific information for NMFS to consider. Furthermore, NMFS notes
that it has previously addressed discussions on cumulative impact
analyses in previous comments and references the commenter back to
these specific responses in this final rule.
Regarding the commenter's concern about the lack of baseline
information for harbor seals, NMFS applied data from the Atlantic
Marine Assessment Program for Protected Species (AMAPPS; <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected">https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected</a>) annual reports available
from 2010 to 2020 (<a href="https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species">https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species</a>) that
represents that best available data for harbor seal distribution across
the Atlantic Ocean. NMFS has considered this AMAPPS data in our
analysis as well as datasets from the Oceanographic Biodiversity
Information System (OBIS, 2023; Smith, 2014) to assess impacts to
harbor seals.
Regarding cumulative impacts to bottlenose dolphins across years of
project activities, the estimated take by Level B harassment of each
stock is not likely representative of the number of individuals that
would be taken each year. Repeated takes of the same individuals are
likely due to the ranging patterns of each stock. The Project Area also
covers a small portion of each stock's range and comparable habitat
would be available to dolphins across years. For further discussion of
cumulative effects of marine mammals, please see our response in
comment 26.
[[Page 11357]]
In addition, NMFS has further considered take of the bottlenose dolphin
stocks affected by this action, and has adjusted its attribution of
such take regarding the Northern Migratory Coastal stock of bottlenose
dolphins in the negligible impact and small numbers analyses included
in this rule.
Comment 30: Commenters stated that there is a lack of basic
research about the impacts of offshore wind energy development on large
whales, especially in terms of in situ data and interactions between
whales and turbines. They asserted that scientific baselines are
necessary for assessing potential impacts to whales and that NMFS has
failed to include critical scientific assessments and consultations.
Response: The MMPA requires NMFS to evaluate the effects of the
specified activities in consideration of the best scientific evidence
available and to issue the requested ITR if it makes the necessary
findings. The MMPA does not allow NMFS to delay issuance of the
requested authorization on the presumption that new information will
become available in the future. If new information becomes available in
the future, NMFS may modify the mitigation and monitoring measures in
an LOA issued under these regulations through the adaptive management
provisions. Furthermore, NMFS is required to withdraw or suspend an LOA
if, after notice and public comment, and unless an emergency exists, it
determines the authorized incidental take may be having more than a
negligible impact on a species or stock.
NMFS has duly considered the best scientific evidence available in
its effects analysis. The ``Potential Effects of Underwater Sound on
Marine Mammals'' section of the proposed rule included a broad overview
of the potential impacts on marine mammals from anthropogenic noise and
provided summaries of several studies regarding the impacts of noise
from several different types of sources (e.g., airguns, Navy sonar,
vessels) on large whales, including North Atlantic right whales.
Offshore wind farm construction generates noise that is similar, or, in
the case of vessel noise, identical, to noise sources included in these
studies (e.g., impact pile driving and airguns both produce impulsive,
broadband sounds where the majority of energy is concentrated in low
frequency ranges), and the breadth of the data from these studies helps
us predict the impacts from wind activities. In addition, as described
in the proposed rule, it is general scientific consensus that
behavioral responses to sound are highly variable and context-specific
and are impacted by multiple factors including, but not limited to,
behavioral state, proximity to the source, and the nature and novelty
of the sound. Overall, the ecological assessments from offshore wind
farm development in Europe and peer-reviewed literature on the impacts
of noise on marine mammals both in the United States and worldwide
provides the information necessary to conduct an adequate analysis of
the impacts of offshore wind construction and operation on marine
mammals in the Atlantic OCS. NMFS acknowledges that studies in Europe
typically focus on smaller porpoise and pinniped species, as those are
more prevalent in the North Sea and other areas where offshore wind
farms have been constructed, and notes that the commenter did not
provide additional scientific information for NMFS to consider.
Comment 31: Commenters expressed concern regarding ocean noise and
the interference it has on communication between whales. Commenters
were specifically concerned with the low-frequency noise from large
vessels involved in the construction activities overlapping North
Atlantic right whale communication.
Response: As discussed in the Negligible Impact Analysis and
Determination section (specifically the Auditory Masking or
Communication Impairment section) of both the proposed and final rule,
the level of masking that could occur from Empire Wind's activities
will have a negligible impact on marine mammals, including North
Atlantic right whales. Inherent in the concept of masking is the fact
that the potential for the effect is only present during the times that
the animal and the sound source are in close enough proximity for the
effect to occur. In addition, this time period would need to coincide
with a time that the animal was utilizing sounds at the masked
frequency). As our analysis (both quantitative and qualitative
components) indicates, because of the relative movement of whales and
vessels, as well as the stationary nature of a majority of the
activities, we do not expect these exposures with the potential for
masking to be of a long duration within a given day. Further, because
of the relatively low density of North Atlantic right whales during
months when most of Empire Wind's activities would be occurring (i.e.,
May through November in most cases), and the relatively large area over
which the vessels will travel and where the activities will occur, we
do not expect any individual North Atlantic right whales to be exposed
to potentially masking levels from these surveys for more than a few
days in a year. Furthermore, as many of the activities are occurring in
clusters and specific areas rather than sporadically dispersed in the
Project Area (i.e., foundation installation all occurs in the same
general area, nearshore cable installation activities occur in
relatively similar and nearby areas), animals are likely to temporarily
avoid these locations during periods where activities are occurring but
are expected to return once activities have ceased.
As noted above, any masking effects of Empire Wind's activities are
expected to be limited in duration, if present. For HRG surveys, given
the likelihood of significantly reduced received levels beyond short
distances from the transiting survey vessel, the short duration of
potential exposure, the lower likelihood of extensive additional
contributors to background noise offshore and within these short
exposure periods, and the fact that the frequency of HRG signals are
primarily above those used in social communication or for detection of
other important clues, we believe that the incremental addition of the
survey vessel is unlikely to result in more than minor and short-term
masking effects. For pile driving, and especially foundation
installation, masking effects are more likely given the larger zones
and longer durations, and animals that approach the source could
experience temporary masking of some lower frequency cues. However, any
such effects would be localized to the areas around these stationary
activities, which means that whales transiting through the area could
adjust their transit away from the construction location and return
once the activity has completed. As described in the ``Potential
Effects of the Activities on Marine Mammals'' section of the proposed
rule, NMFS acknowledges the noise contributions of vessels to the
soundscape and the potential for larger vessels such as commercial
shipping vessels, especially, to mask mysticete communication. For the
activity as a whole, including the operation of supporting vessels for
Empire Wind's activities, any masking that might potentially occur
would likely be incurred by the same animals predicted to be exposed
above the behavioral harassment threshold, and thereby accounted for in
the analysis. NMFS notes that the commenter did not provide additional
scientific information for NMFS to consider to support its concern.
[[Page 11358]]
Other
Comment 32: A commenter noted that this proposed rule is for two
separate offshore wind energy projects: Empire Wind 1 and 2 and the
associated export cable areas. The commenter further recommends that
ITR and LOA requests for each energy project be submitted and reviewed
separately. Another commenter 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, modify mitigation and monitoring measures as
necessary and in a timely manner, and to account for the quickly
evolving situation for the North Atlantic right whale.
Response: NMFS disagrees with these comments. The MMPA allows for
the authorization of incidental take within a specified geographical
region, provided all the necessary findings are made. The applicant
identifies the activities for which it is requesting authorization, and
NMFS analyzes the request, including consideration of any germane
factors that affect the analysis and may vary from one part of the
Project Area to another, such as physical, biological, or chemical
features. For example, the difference in the density of marine mammals
between Empire Wind 1 and 2 is fully factored into the analysis.
Further, it is generally considered more beneficial to evaluate the
impacts of multiple activities together, where possible, as it allows
for a more comprehensive assessment of the impacts and a more holistic
approach to the mitigation and monitoring of those impacts. Here,
Empire Wind would be responsible for conducting all construction and
site characterization activities for Empire Wind 1 and 2. Some of these
activities for each project would take place within the same year. For
example, site characterization surveys are planned to occur during each
of the 5 years across the Project Areas. In addition, impact pile
driving of monopile foundations is expected to occur in Empire Wind 1
and Empire Wind 2 across years 2 and 3 of the Project. Further, 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 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. As requested, and supported by
the findings herein, NMFS will issue a single 5-year LOA to Empire Wind
for activities for both Empire Wind 1 and 2.
Comment 33: Multiple commenters urged NMFS to deny the proposed
project and/or postpone any offshore wind activities until NMFS
determines effects of all offshore wind (OSW) activities on marine
mammals in the region and determines that the recent whale deaths are
not related to OSW activities, especially in light of recent UMEs.
Similarly, some commenters provided general concerns regarding recent
whale stranding events on the Atlantic Coast, including speculation
that the strandings may be related to wind energy development-related
activities. However, the commenters did not provide any specific
information supporting these concerns.
Response: NMFS authorizes take of marine mammals incidental to
construction activities and marine site characterization surveys,
provided the necessary findings are made, but does not authorize the
activities themselves. Therefore, while NMFS has the authority to
modify, suspend, or revoke an LOA if the LOA holder fails to abide by
the conditions prescribed therein (e.g., failure to comply with
monitoring or reporting requirements), or if NMFS determines that (1)
the authorized taking is having or is likely to have more than a
negligible impact on the species or stocks of affected marine mammals,
or (2) the prescribed measures are likely not or are not effecting the
least practicable adverse impact on the affected species or stocks and
their habitat, it is not within NMFS' jurisdiction to impose a
moratorium on offshore wind development or to require activities to
cease.
NMFS reiterates that there is no evidence that noise resulting from
offshore wind development-related construction activities or site
characterization surveys could potentially cause marine mammal
stranding, and there is no evidence linking recent large whale
mortalities and currently ongoing site characterization surveys. The
commenters offer no such evidence. NMFS will continue to gather data to
help us determine the cause of death for these stranded whales. We note
the Marine Mammal Commission's recent statement: ``There continues to
be no evidence to link these large whale strandings to offshore wind
energy development, including no evidence to link them to sound emitted
during wind development-related site characterization surveys, known as
HRG surveys. Although HRG surveys have been occurring off New England
and the mid-Atlantic coast, HRG devices have never been implicated or
causatively-associated with baleen whale strandings'' (Marine Mammal
Commission Newsletter, Spring 2023).
There is an ongoing 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 roughly 90 whales examined, about 40
percent had evidence of human interaction (i.e., vessel strike or
entanglement). Vessel strikes and entanglement in fishing gear are the
greatest human threats to large whales. The remaining 50 necropsied
whales either had an undetermined cause of death due to a limited
examination or decomposition of the carcass, or had other causes of
death (e.g., parasite-caused organ damage and starvation).
As discussed herein, impact and vibratory pile driving may result
in minor Permanent Threshold Shift (PTS) or TTS, as well as behavioral
disturbance. HRG sources may behaviorally disturb marine mammals (e.g.,
avoidance of the immediate area). These HRG surveys are very different
from seismic airguns used in oil and gas surveys or tactical military
sonar. They produce much smaller impact zones because, in general, they
have lower source levels and produce output at higher frequencies. The
area within which HRG sources might behaviorally disturb a marine
mammal is orders of magnitude smaller than the impact areas for seismic
airguns or military sonar. Any marine mammal exposure would be at
significantly lower levels and shorter duration, which is associated
with less severe impacts to marine mammals.
Comment 34: A commenter expressed concern regarding the potential
for increased uncertainty in estimates of marine mammal abundance
resulting from wind turbine presence during low aerial surveys and
potential effects of NMFS' ability to continue using current low-flying
survey methods to fulfill its mission of precisely and accurately
assessing protected species.
Response: NMFS and BOEM have collaborated to establish the
``Federal Survey Mitigation Strategy for the Northeast U.S. Region''
(Hare et al.,
[[Page 11359]]
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 35: Referencing the low Potential Biological Removal (PBR)
for North Atlantic right whales, a commenter stated that all industrial
full-scale construction for offshore wind energy should be paused until
the Federal agencies determine how best to eliminate or avoid all
impacts, Level A harassment, and Level B harassment on the North
Atlantic right whale.
Response: 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 5-year period (or less) will
have a negligible impact on such species or stock and, where
applicable, 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 ITA must be based on the best scientific
information available, the MMPA does not allow NMFS to delay issuance
of the requested authorization on the presumption that new information
will become available in the future. NMFS has made the required
findings based on the best scientific information available and has
included mitigation measures to effect the least practicable adverse
impacts on North Atlantic right whales. Many of these mitigation
measures are found in the Draft Strategy (Strategy) for construction
activities. While NMFS continues to work together with BOEM towards the
goals identified in the Strategy, finalizing the Strategy (or similar
efforts) or completing specific goals identified in the strategy are
not a prerequisite for the issuance of an ITA.
While NMFS agrees that the North Atlantic right whale population
abundance is alarmingly low (with entanglement in fishing gear and
vessel strikes being the leading causes of North Atlantic right whale
mortality), NMFS disagrees that the type of harassment authorized in
this rulemaking will have a non-negligible impact (i.e., adversely
affect the species through effects on annual rates of recruitment or
survival). NMFS emphasizes that no mortality, serious injury, or Level
A harassment is anticipated or authorized for North Atlantic right
whales from Empire Wind's specified activities. Further, the impacts of
Level B harassment (i.e., behavioral disturbance) are expected to have
a negligible impact on the North Atlantic right whale population. The
magnitude of behavioral harassment authorized is very low and the
severity of any behavioral responses is expected to be primarily
limited to temporary displacement and avoidance of the area when some
activities that have the potential to result in harassment are
occurring (see Negligible Impact Analysis and Determination section for
our full analysis). No impacts to the reproductive success or survival
of any individual North Atlantic right whales are expected to result
from these disturbances and, as such, no impacts to the population are
expected to result. In its comment, the commenter conflates PBR level
and Level B harassment and suggests that Level B harassment can have
population level impacts. The PBR level is defined as the maximum
number of animals, not including natural mortalities, that may be
removed from a stock while allowing that stock to reach or maintain its
optimum sustainable population (16 U.S.C. 1362(20)). Thus, PBR is only
germane in the discussion of ``removals'' of individual North Atlantic
right whales from the population and, therefore, PBR is not applicable
in this discussion since no impact to reproduction or survival of any
individuals is anticipated or authorized. Further, the commenter did
not suggest mitigation measures to eliminate and avoid all impacts to
North Atlantic right whales for NMFS to evaluate or consider.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
(88 FR 22696, April 13, 2023), NMFS has made changes, where
appropriate, that are reflected in the regulatory text and preamble
text of this final rule. These changes are briefly identified below,
with more information included in the indicated sections of this final
rule:
Changes in Information Provided in the Preamble
As described in the response to public comments section, NMFS
received 328 comments regarding this rulemaking, specifically including
numerous comments that requested greater protections for marine mammals
through the mitigation and monitoring measures or clarification on
implementation of those measures. NMFS continues to receive information
generated by current offshore wind development, which helps further
inform our incorporation of these public comments into the rule. We
have made certain changes described below in response to public comment
or as needed for clarity. In addition, 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 including NMFS'
final 2022 SARs (Hayes et al., 2023), which has been used to update the
final rule as appropriate.
The following changes were made to the Purpose and Need for
Regulatory Action section of the preamble to this final rule:
We have added regulatory definitions under Legal Authority for the
Final Action for the sake of clarity.
The following changes are reflected in the Description of Marine
Mammals in the Geographic Area section of the preamble to this final
rule:
Given the release of NMFS' final 2022 SARs (Hayes et al., 2023), we
have updated the total mortality/serious injury (M/SI) amount for North
Atlantic right whales 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. In addition, NMFS recently 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. This information has also
been included in the stock abundance column in table 2, ``Marine mammal
species that may occur in the Project Area and be taken, by
harassment.''
Given the availability of new information, we have made updates to
the UME summaries for multiple species.
The following changes are reflected in the Estimated Take section
of the preamble to this final rule:
In consideration of comments received from the Commission, we have
increased the amount of take authorized for fin whales during impact
pile driving, by Level A harassment, from one to four (based on two
group sizes from the AMAPPS dataset) in year 2 and from one to two
(based on one group size from AMAPPS) in year 3. Prior to adding this
requirement, NMFS considered this proposed increase in take and
considered this measure practicable. This decision was additionally
supported by an increased number of sightings of fin whales in the
Project Area during June, July, and August 2023 (Empire Wind, 2023).
We have also updated our methodology for estimating take authorized
for harbor seals, grays seals, long-finned pilot whales, and short-
[[Page 11360]]
finned pilot whales, by Level B harassment, and subsequently, updated
take by Level B harassment authorized for seal species. Pilot whale and
seal guild densities were scaled by local abundances based upon
occurrence data (OBIS, 2023; Smith, 2014) to identify the proportion of
the guild densities that should be attributed to each species. Species-
specific densities were used to calculate exposure estimates for each
pilot whale and seal species. Based upon this updated methodology,
pilot whale exposure estimates and take estimates have not changed.
Updated seal exposure estimates and take estimates are described in
tables 22 and 23.
After considering a comment from Clean Ocean Action concerning the
take by Level B harassment of bottlenose dolphins and a comment from
the Commission regarding attribution of take between the offshore and
coastal stocks of bottlenose dolphins on the Ocean Wind 1 project,
which was incorporated by reference here in the Commission's comment
letter, NMFS has updated the description of take by Level B harassment
for the northern migratory coastal stock of bottlenose dolphins,
incidental to HRG surveys. While take numbers have not changed, we have
taken a finer look at calculating the percentage of take attributed to
the two affected bottlenose dolphin stocks. We have included a detailed
description of estimating take by Level B harassment, incidental to HRG
surveys, for the northern migratory coastal bottlenose dolphin stock in
the Negligible Impact and Small Numbers sections of this rule.
The following changes are reflected in the Mitigation section of
the preamble to this final rule:
NMFS has re-organized and simplified this section to avoid
repeating entirely the requirements provided in the regulatory text.
In response to multiple commenters' concerns regarding noise
attenuation, we have added a general requirement that noise levels must
not exceed those modeled assuming 10 dB of attenuation and all project
vessels must utilize AIS.
In consideration of a recommendation from the Commission and a
requirement to increase the minimum visibility zone in the Biological
Opinion (BiOp), NMFS has increased the minimum visibility zone for
mysticetes for impact pile driving from 1.2 km to 1.5 km to be
consistent with the shutdown zone for mysticetes. In the BiOp, the
minimum visibility zone was also increased to 1.5 km.
Based on a recommendation by a commenter and a requirement to
increase the visual shutdown zone for North Atlantic right whales in
the BiOp, NMFS has increased the visual shutdown zone for North
Atlantic right whales for impact pile driving from 1.5 km to any
distance. NMFS has also increased the PAM clearance and shutdown zones
for North Atlantic right whales to any distance. Prior to increasing
the shutdown and clearance zones, NMFS considered these measures
internally, and found these measures to be practicable.
Based on multiple commenters' concerns regarding noise attenuation,
and as informed by preliminary sound measurements from South Fork Wind,
NMFS has added a requirement that two functional noise attenuation
devices that reduce noise levels to the modeled harassment isopleths,
assuming a 10-dB attenuation, must be used during foundation pile
driving. A single bubble curtain alone will not be allowed for use in
mitigation.
We clarify that the mitigation measure restricting Project vessels
from traveling over 10 kn (5.14 m/s) in the transit corridor, unless
Empire Wind conducts real-time acoustic monitoring to detect large
whales (including North Atlantic right whales), applies only when other
speed restrictions are not in place.
Based on multiple commenters' concerns regarding impacts to North
Atlantic right whales from pile driving, we added the requirement that
Empire Wind must delay or shutdown if a North Atlantic right whale is
acoustically detected at any distance within the 10 km PAM monitoring
zone.
Because Empire Wind identified that the soft-start procedure in the
proposed rule was concerning regarding engineering feasibility and
practicability, we have removed the specific soft-start procedure
identified in the proposed rule (but not the requirement to conduct a
soft-start) and will provide a practicable soft-start procedure in the
LOA.
The following changes are reflected in the Monitoring and Reporting
section of the preamble to this final rule:
We have updated the process for obtaining NMFS approval for PSO and
PAM Operators to be similar to requirements typically included for
seismic (e.g., airgun) surveys and have clarified education, training,
and experience necessary to obtain NMFS approval.
In consideration of a recommendation by the Commission and based
upon NMFS' internal consideration that this would be a practicable
measure, 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 active PSOs on
duty on the pile driving vessel rather than two PSOs, as was originally
described in the proposed rule. Addition of this requirement is based
on commenters' concerns regarding sufficient marine mammal monitoring
and NMFS' evaluation that three PSOs (each covering 120 degrees) will
improve the reliability of detection from the pile driving platform.
In response to multiple comments seeking augmented noise reduction
technologies, including comments from Oceana, the Natural Resources
Defense Council, and the Commission, we have added a requirement
stating that Empire Wind must use at least two functional noise
attenuation devices that reduce noise levels to the modeled harassment
isopleths, assuming 10-dB attenuation, and clarify that a single bubble
curtain must not be used. Second, we added requirements that SFV must
be conducted on every pile until measured noise levels are at or below
the modeled noise levels, assuming 10 dB, for at least three
consecutive monopiles and abbreviated SFV monitoring must be conducted
on all additional foundation installations to align with the
requirements in the BiOp. Third, we have added a requirement that
Empire Wind must deploy at least eight hydrophones at four locations
(one bottom and one mid-water column at each location) along an azimuth
that is likely to see lowest propagation loss and two hydrophones (one
bottom and one mid-water) at 750 m, 90 degrees from the primary azimuth
during installation of all piles where SFV monitoring is required.
NMFS has changed the submission date from 90 to 180 days prior to
the start of pile driving commencement for the Pile Driving Marine
Mammal Monitoring Plan and the PAM Plan (noting the Vessel Strike
Avoidance and Vibratory Pile Driving Plans retain the 90-day
requirement as these activities are very nearshore) to align with the
requirements of the BiOp.
In response to a comment from the Natural Resources Defense
Council, 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 frequently as new information warrants
it.
Changes in the Regulatory Text
As described above regarding changes made to the preamble, we have
made the following corresponding and
[[Page 11361]]
additional changes to the regulatory text in response to public
comment, especially those numerous public comments requesting greater
mitigation and monitoring measures, or for clarity, as informed by
comment and continuing information generated by current offshore wind
projects.
For clarity and consistency, we revised three paragraphs in Sec.
217.280, ``Specified activity and specified geographical region,'' of
the regulatory text to fully describe the specified activity, specified
geographical region, and requirements imposed on the LOA Holder (Empire
Wind).
Due to a change in the Empire Wind final rule and LOA issuance
schedule, we updated the effective dates for these regulations in Sec.
217.281.
For clarity, we revised one paragraph in Sec. 217.282,
``Permissible methods of taking,'' to fully describe the specified
geographical area.
In response to several commenters' concerns regarding strengthening
mitigation and monitoring measures, NMFS has added a requirement for
confirmation of all required training to be documented on a training
course log sheet and reported to NMFS before initiating project
activities. A description of the training program must be provided to
NMFS at least 60 days prior to the initial training before in-water
activities begin.
NMFS has also added a requirement that the marine mammal monitoring
team must monitor available sources of information on North Atlantic
right whale presence in or near the Project Area no less than every 4
hours.
In Sec. 217.284(a)(4), NMFS has clarified that any visual
observation of marine mammals, as opposed to ESA-listed marine mammals,
must be communicated to PSOs and vessel captains.
NMFS has added additional clarification on the authority of PSOs
and PAM operators in Sec. 217.284(a)(7) to ensure compliance and
proper implementation of the regulations.
NMFS has specified that any visual or acoustic detection of a North
Atlantic right whale must trigger a delay in commencement of pile
driving and HRG surveys.
In consideration of multiple commenters' concerns regarding vessel
transparency, including those concerns expressed by Oceana, NMFS has
added a requirement that all project vessels must utilize AIS.
NMFS has included a requirement for Empire Wind to consent to
onsite observations and inspections by Federal personnel during project
activities.
NMFS has added a prohibition to interfering with PSO or PAM
operator responsibilities.
NMFS has clarified that all underway vessels requiring a dedicated
visual observer would be transiting within the specified geographic
area.
NMFS has added a requirement for any large whale sighting to be
communicated to all project-associated vessels, and for a large whale
sighting log sheet to be retained for the vessel captain's review each
day.
NMFS has clarified the requirement in Sec. 217.284(b)(8) in the
proposed rule to specify that this measure applies to vessels traveling
in the specified geographic region.
In consideration of several commenters' concerns regarding
strengthening mitigation measures to avoid vessel strike, NMFS has
removed the requirement in Sec. 217.284(b)(16) in the proposed rule
for any underway vessel to avoid speed over 10 kn (18.5 km/hr) or
abrupt changes in course direction until an animal is on a path away
from the separation distance. The current requirement in Sec.
217.284(b) requires vessels to reduce speed and shift engine to neutral
if an animal is within the separation distance.
NMFS has updated the requirement in Sec. 217.284(b)(17) in the
proposed rule that a North Atlantic right whale detection triggers a
speed restriction for all vessels (previously only crew transfer
vessels) within 10 km for a 24-hour period (previously 12-hour period).
NMFS has updated the requirement for submission of a North Atlantic
vessel strike avoidance plan from 90 to 180 days prior to commencement
of vessel use.
For clarity, NMFS has updated the term ``foundation impact pile
driving'' to ``foundation pile driving.''
Because Empire Wind identified that the soft-start procedure in the
proposed rule was concerning regarding engineering feasibility and
practicability, we have removed the specific soft-start procedure
identified in the proposed rule (but not the requirement to conduct a
soft-start) and will provide a practicable soft-start procedure in the
LOA.
NMFS has clarified boundaries for observations of North Atlantic
right whales that trigger a delay in the commencement of pile driving.
In response to multiple comments seeking augmented noise reduction
technologies, including those from Oceana, the Natural Resources
Defense Council, and the Commission, NMFS has added a requirement that
two functional noise attenuation devices that reduce noise levels to
the modeled harassment isopleths, assuming 10-dB attenuation must be
used during impact pile driving, and a single bubble curtain may not be
used.
NMFS has clarified requirements for PAM systems, including a
requirement for the PAM system to be able to detect a vocalization of
North Atlantic right whales up to 10 km away.
NMFS has increased the minimum requirement for PSOs on the pile
driving platform. As described above, addition of this requirement is
based on commenters' concerns regarding sufficient marine mammal
monitoring and NMFS' evaluation that 3 PSOs (each covering 120 degrees)
will improve the reliability of marine mammal detection from the pile
driving platform.
NMFS has added a requirement for Empire Wind to conduct abbreviated
SFV measurements on all piles for which thorough SFV monitoring is not
being conducted to align with requirements of the BiOp and public
requests for noise abatement. In consideration of a comment from the
MMC, NMFS has also added more specific requirements for SFV
measurements and reporting, including the submission of interim reports
and description of information required for reports, conducting
additional in-situ measurements, and equipment calibration.
In consideration of Oceana's comment regarding frequent reporting
to federal agencies, NMFS has added a requirement for Empire Wind to
submit 48-hour interim reports after each foundation is measured using
thorough SFV. Abbreviated SFV reports are due weekly.
NMFS has clarified requirements applying to HRG surveys operating
sub-bottom profilers (SBPs) in Sec. 217.284(e) to ensure compliance
and proper implementation of the regulations.
In consideration of multiple commenters' concerns regarding HRG
survey acoustic impacts and effective mitigation measures, NMFS has
added a requirement for acoustic source ramp-ups to be scheduled in
order to minimize the time spent with the source activated.
For fishery monitoring surveys, NMFS has added multiple
requirements designed to further augment mitigation and minimization of
impacts to marine mammals in alignment with public comment, including
quick emptying of gear after retrieval, labeling all gear, and marine
mammal avoidance requirements.
The following changes are reflected in Sec. 217.285,
``Requirements for monitoring and reporting,'' and the
[[Page 11362]]
associated Monitoring and Reporting section of the preamble to this
final rule:
NMFS has added a requirement for all PSOs and PAM operators to have
successfully completed a relevant training course within the last 5
years and to submit the certificate of course completion in order to
further clarify PSO requirements to ensure compliance.
NMFS has further clarified PAM operator qualifications as well as
PSO and PAM training requirements in Sec. 217.285 to ensure compliance
and proper implementation of regulations. This additional clarification
includes detailed requirements for prior experience, being independent
observers, ability for PAM operators to review and classify acoustic
detections in real-time, PSO marine mammal identification and behavior
training to focus on species specific to the North Western Atlantic
Ocean, and PSO and PAM training to have been completed within the past
5 years and have included a certificate of course completion. NMFS has
specified that Empire Wind must submit the names of NMFS previously
approved PSOs and PAM operators at least 30 days prior to commencement
of the specified activities and 15 days prior to when new PSOs/PAM
operators are required after activities have commenced.
NMFS has specified the following additional details in Sec.
217.285(b) to clarify PSO and PAM operator requirements in order to
ensure compliance and proper implementation of regulations: PAM
operators may be located remotely or on-shore, and must assists PSOs in
ensuring full coverage of the clearance and shutdown zones; PSOs must
monitor for marine mammals prior to, during, and following impact pile
driving, vibratory pile driving, and HRG surveys that use sub-bottom
profilers and monitoring must be done while free from distractions; all
on-duty PSOs and PAM operator(s) are to remain in real-time contact
with the on-duty construction personnel responsible for implementing
mitigations; and the PAM operator must inform the Lead PSO(s) on duty
of animal detections approaching or within applicable ranges of
interest to the activity occurring via the data collection software
system.
NMFS has clarified the following requirements for monitoring during
fishery surveys to ensure compliance and proper implementation of
regulations: All captains and crew conducting fishery surveys must be
trained in marine mammal detection and identification and marine mammal
monitoring must be conducted within 1 nmi from the planned survey
location by the trained captain and/or a member of the scientific crew
for 15 minutes prior to deploying gear, throughout gear deployment and
use, and for 15 minutes after haul back. In addition, NMFS has
specified that any dates in reports for NMFS must be in the MM/DD/YYYY
format, and location information must be provided in Decimal Degrees
and with the coordinate system information.
NMFS has added additional requirements for inclusion in SFV reports
in consideration of the MMC's concerns for the information included in
any SFV report to be specified.
NMFS has clarified that final annual reports must be prepared and
submitted within 30 calendar days following the receipt of any comments
from NMFS on the draft report. If no comments are received from NMFS
within 60 calendar days of NMFS' receipt of the draft report, the
report must be considered final.
In consideration of the Commission's concerns for underestimating
takes by Level A harassment and Level B harassment, NMFS has added a
requirement that if at any time during the Project Empire Wind becomes
aware of any issue or issues which may (to any reasonable subject-
matter expert, including the persons performing the measurements and
analysis) call into question the validity of any measured Level A
harassment or Level B harassment isopleths to a significant degree,
Empire Wind must inform NMFS Office of Protected Resources within one
business day of becoming aware of this issue or before the next pile is
driven, whichever comes first.
NMFS has added specific regional contact information for reporting
North Atlantic right whale sightings and stranded, entangled, injured,
or dead marine mammals.
NMFS had added a requirement to report observations of any large
whale (other than North Atlantic right whales) to the WhaleAlert app.
NMFS has added a requirement that Empire Wind must report any lost
gear associated with the fishery surveys to the NMFS GARFO Protected
Resources Division (<a href="/cdn-cgi/l/email-protection#553b3833267b3234277b3c3b363c31303b2134397821343e30153b3a34347b323a23"><span class="__cf_email__" data-cfemail="305e5d56431e5751421e595e535954555e44515c1d44515b55705e5f51511e575f46">[email protected]</span></a>) as soon as
possible or within 24 hours of the documented time of missing or lost
gear.
Description of Marine Mammals in the Geographic Area
As noted in the Changes from the Proposed to Final Rule section,
updates have been made to the abundance estimate for North Atlantic
right whales and to the UME summaries of multiple species. These
changes are described in detail in the sections below and, otherwise,
the marine mammal information has not changed since the proposed rule.
Thirty-eight marine mammal species under NMFS' jurisdiction have
geographic ranges within the western North Atlantic OCS (Hayes et al.,
2023). Sections 3 and 4 of Empire Wind's ITA application summarize
available information regarding status and trends, distribution and
habitat preferences, and behavior and life history of the potentially
affected species (Empire Wind, 2022). Additional information regarding
population trends and threats may be found in NMFS's 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's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species and stocks for which take is expected and
authorized for this action, and summarizes information related to the
population or stock, including regulatory status under the MMPA and
ESA, and provides the PBR, where known. PBR is defined by the MMPA 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 (16 U.S.C.
1362(20)), as described in NMFS's SARs. While no mortality is
anticipated or authorized, 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's 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's U.S. Atlantic and Gulf of Mexico SARs. All values presented in
table 2 are the most recent available at the time of publication and
are available in NMFS' 2022 draft SARs available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>.
[[Page 11363]]
Table 2--Marine Mammal Species That May Occur in the Project Area and Be Taken by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name \1\ Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 \6\ 31.2
356 (346-363, 2022)
\5\.
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24; 5,573; 11 1.8
2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Coastal. 2016).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, N 1,396 (0; 1,380; 2016) 22 12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Family Delphinidae:
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71; 54,433; 544 27
2016).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 39,921 (0.27; 32,032; 320 0
2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -, -, N 62,851 (0.23; 51,914; 519 28
Offshore. 2016).
Northern Migratory -, -, Y 6,639 (0.41; 4,759; 48 12.2-21.5
Coastal. 2016).
Long-finned pilot whales........ Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3; 30,627; 306 29
2016).
Short-finned pilot whales....... Globicephala Western North Atlantic. -, -, N 28,924 (0.24; 23,637; 236 136
macrorhynchus. 2016).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 35,215 (0.19; 30,051; 301 34
2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 172,897 (0.21; 1,452 390
145,216; 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 \7\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,300 (0.22; 22,785; 1,458 4,453
2016).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08; 57,637; 1,729 339
2018).
Harp seal \8\................... Pagophilus Western North Atlantic. -, -, N 7,600,000 (UNK, 426,000 178,573
grownlandicus. 7,100,000).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 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://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies">https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies</a>; Committee on Taxonomy, 2022).
\2\ 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.
\3\ NMFS marine mammal SARs 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> (Hayes et al.,
2023). CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\4\ 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).
\5\ 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 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).
\6\ Total annual average observed North Atlantic right whale mortality during the period 2016-2020 was 8.1 animals and annual average observed fishery
mortality was 5.7 animals. Numbers presented in this table (31.2 total mortality and 22 fishery mortality) are 2015-2019 estimated annual means,
accounting for undetected mortality and serious injury.
\7\ 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.
\8\ Harp seals are rare in the region; however, stranding data suggest this species may be present during activities that may take marine mammals.
All 38 species that could potentially occur in the Project Area are
included in table 12 of the Empire Wind ITA application and are
discussed therein (Empire Wind, 2022). While the majority of these
species have been documented or sighted off the New York coast in the
past, for the species and stocks not listed in table 2, NMFS considers
it unlikely that their occurrence would overlap the activity in a
manner that would result in harassment, either because of their spatial
occurrence (i.e., more northern or southern ranges) and/or with the
geomorphological characteristics of the underwater environment (i.e.,
water depth in the development area).
A detailed description of the species likely to be affected by
Empire Wind's project, including brief introductions to the species and
relevant stocks, information regarding population trends and threats,
and information regarding
[[Page 11364]]
local occurrence, were provided in the proposed rule (88 FR 22696,
April 13, 2023). Since that time, we are not aware of any changes in
the status of the species and stocks listed in table 2; therefore,
detailed descriptions are not provided here. Please refer to the
proposed rule for these descriptions (88 FR 22696, April 13, 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.
Since the publication of the proposed rule, the following updates
have occurred to the below species in regards to general information or
their active UMEs.
North Atlantic Right Whale
In August 2023, NMFS released its final 2022 SARs, which updated
the population estimate (N<INF>best</INF>) of North Atlantic right
whales from 368 to 338 individuals and the annual M/SI value from 8.1
to 31.2 due to the addition of estimated undetected mortality and
serious injury, as described above, which had not been previously
included in the SAR. The population estimate is slightly lower than the
``North Atlantic Right Whale Consortium's 2022 Report Card'', which
identifies the population estimate as 340 individuals (Pettis et al.,
2023). 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). The Northeast
Fisheries Science Center (NEFSC) completed both technical and policy
reviews of this report. Elevated North Atlantic right whale mortalities
have occurred since June 7, 2017, along the United States 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. As of November 30, 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 (i.e., ``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. As of November 30, 2023 (i.e., updated
since the proposed rule), partial or full necropsy examinations have
been conducted on approximately half of the 212 known cases. Of the
approximately 90 whales examined, about 40 percent had evidence of
human interaction, either by 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>.
Minke Whale
Since January 2017, elevated minke whale mortalities detected along
the Atlantic coast from Maine through South Carolina resulted in the
declaration of a UME. As of November 30, 2023 (i.e., updated since the
proposed rule), a total of 160 minke whales have stranded during the
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 and
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/2017-2022-minke-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-minke-whale-unusual-mortality-event-along-atlantic-coast</a>.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65-dB
threshold from the normalized composite audiograms, with the exception
for lower limits for low-frequency cetaceans where the lower bound was
deemed to be biologically implausible and the lower bound from Southall
et al. (2007) retained. Marine mammal hearing groups and their
associated hearing ranges are provided in table 3.
Table 3--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kilohertz (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).
[[Page 11365]]
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).
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 activities have
the potential to result in the harassment of marine mammals in the
vicinity of the Project Area. The proposed rule (88 FR 22696, April 13,
2023) included a discussion of the effects of anthropogenic noise on
marine mammals and the potential effects of underwater noise from the
Project activities on marine mammals and their habitat. That
information and analysis is adopted by reference into this final rule
determination and is not repeated here. Please refer to the proposed
rule (88 FR 22696, April 13, 2023).
Since the publication of the proposed rule, new scientific
information has become available that provides additional insight into
the sound fields produced by turbine operation (HDR, Inc., 2023; Holme
et al., 2023). 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 (i.e., power
production, which is proportional to the blade's revolutions per
minute) and noise level. However, it was noted that this missing
relationship may have been masked by the area's relatively high ambient
noise sound levels. Sound levels (i.e., 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.
In addition, operational turbine measurements from the Coastal
Virginia Offshore Wind pilot pile project indicated that noise levels
from two, 7.8 m monopiles WTGs were higher when compared to Block
Island wind farm, likely due to vibrations associated with the
monopiles structure (HDR, Inc., 2023). We note that this updated
information does not change our assessment for impacts of turbine
operational sound on marine mammals. As described in the proposed rule,
NMFS will require Empire Wind to measure operational noise levels,
however, is not authorizing take incidental to operational noise from
WTGs.
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.
Minor changes to the estimated and authorized take for several
species have been made since publication of the proposed rule based on
recommendations received during the public comment period and the best
available science. These changes are described in the Changes from the
Proposed to Final Rule section above and in the sections below.
Otherwise, the methodology for, and amount of, estimated take has not
changed since the proposed rule.
Authorized takes would primarily be 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 constituting Level A harassment to occur in select marine mammal
species incidental to the specified activities (i.e., impact pile
driving). For this action, this potential is limited to mysticetes due
to their hearing sensitivities and the nature of the activities. As
described below, the larger distances to the PTS thresholds, when
considering marine mammal weighting functions, demonstrate this
potential. For mid-frequency hearing sensitivities, when thresholds and
weighting and the associated PTS zone sizes are considered, the
potential for PTS from the noise produced by the Project is negligible.
The required mitigation and monitoring measures are expected to
minimize the severity 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 was estimated.
Generally speaking, NMFS estimates 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
[[Page 11366]]
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). Thresholds have also been developed identifying the
received level of in-air sound above which exposed pinnipeds would
likely be behaviorally harassed. 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) and the state
of the receiving animals (e.g., hearing, motivation, experience,
demography, 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 root-mean-squared pressure
received levels (RMS SPL) of 120 dB (re 1 [mu]Pa) for continuous (e.g.,
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa
for non-explosive impulsive (e.g., seismic airguns) or intermittent
(e.g., scientific sonar) sources (table 4). 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 (e.g., conspecific communication, predators, prey)
may result in changes in behavior patterns that would not otherwise
occur.
Empire Wind's construction activities include the use of continuous
(e.g., vibratory pile driving) and intermittent (e.g., impact pile
driving and HRG acoustic sources) sources; 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 constituting 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 (i.e., impulsive or non-impulsive
sources). As dual metrics, NMFS considers onset of PTS constituting
Level A harassment to have occurred when either one of the two metrics
is exceeded (i.e., metric resulting in the largest isopleth). The
Project includes the use of impulsive and 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 PTS
[NMFS, 2018]
------------------------------------------------------------------------
PTS onset thresholds \*\ (received
level)
Hearing group ---------------------------------------
Impulsive Non-impulsive
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.... Cell 1:........... Cell 2:
Lp,0-pk,flat: 219 LE,p, LF,24h: 199
dB;. dB.
LE,p, LF,24h: 183
dB.
Mid-Frequency (MF) Cetaceans.... Cell 3:........... Cell 4:
Lp,0-pk,flat: 230 LE,p, MF,24h: 198
dB;. dB.
LE,p, MF,24h: 185
dB.
High-Frequency (HF) Cetaceans... Cell 5:........... Cell 6:
Lp,0-pk,flat: 202 LE,p, HF,24h: 173
dB;. dB.
LE,p,HF,24h: 155
dB.
Phocid Pinnipeds (PW) Cell 7:........... Cell 8:
(Underwater). Lp,0-pk.flat: 218 LE,p,PW,24h: 201
dB;. dB.
LE,p,PW,24h: 185
dB.
Otariid Pinnipeds (OW) Cell 9:........... Cell 10:
(Underwater). Lp,0-pk,flat: 232 LE,p,OW,24h: 219
dB;. dB.
LE,p,OW,24h: 203
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 standards (ISO, 2017). The subscript ``flat'' is being
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 and OW
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.
[[Page 11367]]
Below, we discuss the acoustic modeling, marine mammal density
information, and take estimation for each of Empire Wind's construction
activities. NMFS has carefully considered all information and analysis
presented by the applicant as well as all other applicable information
and, based on the best available science, concurs that the applicant's
estimates of the types and amounts of take for each species and stock
are complete and accurate.
Marine Mammal Densities
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory and the Marine-life Data and Analysis
Team, based on the best available marine mammal data from 1992 to 2022
obtained in a collaboration between Duke University, the Northeast
Regional Planning Body, the University of North Carolina Wilmington,
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et
al., 2016a, 2016b, 2017, 2018, 2020, 2021a, 2021b, 2023), represent the
best available science regarding marine mammal densities in the Project
Area. More recently, these data have been updated with new modeling
results and include density estimates for pinnipeds (Roberts et al.,
2016b, 2017, 2018, 2023). Density data are subdivided into five
separate raster data layers for each species, including: Abundance
(density); 95 percent Confidence Interval of Abundance; 5 percent
Confidence Interval of Abundance; Standard Error of Abundance; and
Coefficient of Variation of Abundance.
Empire Wind's initial densities and take estimates were included in
the ITA application that was considered Adequate & Complete on August
11, 2022, in line with NMFS' standard ITA guidance (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/apply-incidental-take-authorization">https://www.fisheries.noaa.gov/national/marine-mammal-protection/apply-incidental-take-authorization</a>). However, on June 20, 2022, the Duke
Marine Geospatial Ecology Laboratory released a new, and more
comprehensive, set of marine mammal density models for the area along
the East Coast of the United States (Roberts et al., 2023). The
differences between the new density data and the older data
necessitated the use of updated marine mammal densities and,
subsequently, revised marine mammal take estimates. This information
was provided to NMFS as an addendum to the application on January 25,
2023, after continued discussion between Empire Wind and NMFS, and NMFS
has considered it in this analysis. The application addendum was made
public on NMFS' website (<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1">https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1</a>).
For foundation installation, the width of the perimeter around the
activity area used to select density data from the Duke models was
based on the largest 10-dB attenuated exposure range (the Level B
harassment range) applicable to that activity and then rounded up to
the nearest 0.5-km increment (10 km), which reflects the spatial
resolution of the Roberts et al. (2023) density models. Empire Wind
determined the mean density for each month by calculating the
unweighted mean of all 5 x 5 km grid cells partially or fully within
the analysis polygon (Roberts et al., 2023). The monthly densities for
an entire year were calculated to coincide with possible planned
activities.
Empire Wind assumed that a maximum of 24 monopiles could be
installed per month, with a maximum of 96 WTG monopiles and two OSS
foundations installed in year 2 (2025) and the remaining 51 WTG
monopile foundations installed in year 3 (2026). In year 2 (2025),
Empire Wind assumed that 24 monopiles would be installed in the four
highest-density months for each species during the May to December
period and the two OSSs would be installed in the highest and second-
highest-density months. Empire Wind also assumed that all 17 difficult-
to-drive piles would be installed in the first year of pile driving but
the distribution would be spread relatively evenly among the four
highest months (i.e., four piles per month except the highest-density
month which assumed 5 difficult-to-drive piles for a total of 17
piles). In the second year of pile driving, 24 monopiles would be
installed in the two highest-density months and the remaining 3
monopiles would be installed in the third-highest-density month. Thus,
each species was presumed to be exposed to the maximum amount of pile
driving based on their monthly densities (table 6). This was determined
to be the most conservative approach to generate potential installation
schedules for animal exposure calculation.
For cofferdam and goal post density estimates, Empire Wind used the
modeled acoustic range distance to the Level B harassment threshold to
calculate the ensonified area around the source of the cofferdam or
goal post installation activity (see the Temporary Cofferdam and/or
Goal Post Installation and Removal (Vibratory Pile Driving) Take
Estimates section below). Empire Wind averaged the maximum monthly
densities by season as reported by Roberts et al. (2023): Spring (March
through May), summer (June through August), fall (September through
November), and winter (December through February). To be conservative,
the maximum average seasonal density for each species was then carried
forward in the take calculations.
To estimate densities for the HRG surveys occurring both within the
Lease Area and within the export cable routes, Empire Wind mapped
density data from Roberts et al. (2023) within the boundary of the
Project Area using geographic information systems. Empire Wind averaged
maximum monthly densities (as reported by Roberts et al., 2023) by
season over the survey duration (for winter (December through
February), spring (March through May), summer (June through August),
and fall (September through November)) within the HRG survey area. The
maximum average seasonal density, for each species, was then carried
forward in the take calculations (table 6).
NMFS notes several exceptions to the determination of the relevant
densities for some marine mammal species to the method described above.
These are described here in greater detail. For several marine mammal
species, Roberts et al. (2023) does not differentiate by stock. This is
true for the bottlenose dolphins, for which take has been authorized
for two stocks (coastal migratory and offshore stock) for Empire Wind.
This is also true for long-finned and short-finned pilot whales (pilot
whale spp.) and harbor and gray seals (seals), where a pooled density
is the only value available from the data that is not partitioned by
stock.
To account for this, the coastal migratory and offshore stocks of
bottlenose dolphins were adjusted based on the 20-m isobath cutoff,
such that take predicted to occur in any area less than 20 m in depth
was apportioned to the coastal stock only and take predicted to occur
in waters of greater than 20 m of depth was apportioned to the offshore
stock. Given the noise from cofferdam installation would not extend
beyond the 20-m isobath, where the coastal stock of bottlenose dolphins
predominates, it is expected that only the coastal stock is likely to
be taken by this activity. As the density models do not account for
group size and the resulting calculated exposures were very small, the
predicted take for cofferdam installation and removal
[[Page 11368]]
activities was increased to account for the exposure of one average-
sized group per day each of bottlenose and common dolphins.
In order to calculate exposures for gray seals, harbor seals,
short-finned pilot whales, and long-finned pilot whales, the guild
densities were scaled by relative local abundances of each species in
each guild, using the best available estimates of local abundance, to
get species-specific density estimates for the Project Area for impact
pile driving activities. In estimating local abundances, all
distribution data for gray seals, harbor seals, and both species of
pilot whales were downloaded from the OBIS data repository (<a href="https://www.obis.org">https://www.obis.org</a>). After reviewing the available datasets, Empire Wind
determined that data available in OBIS from the Mystic Aquarium of
marine mammal strandings along the north shore of the Long Island Sound
represent the best available data of relative abundances of gray seals,
harbor seals, and both pilot whale species in the Project Area due to
their proximity to the Project Area and a lack of sightings data for
these species in offshore waters near the Lease Area. For the seals,
Empire Wind used the Smith (2014) dataset to scale seal densities. The
Mystic Aquarium reported 107 observations of gray seals and 209
observations of harbor seals. Empire Wind used the proportions of 0.34
(which is equal to 107 gray seal observations divided by 316 total gray
and harbor seal observations) and 0.66 (which is equal to 209 harbor
seal observations divided by 316 total gray and harbor seal
observations) to scale seal guild densities. The limited number of
observations of gray and harbor seals near the Project Area (i.e., two
gray seal sightings, three harbor seal sightings) in the larger OBIS
database supports this method (OBIS, 2023), and NMFS agrees with this
approach. For pilot whales, the animal movement modeling showed no
exposures above any threshold, so scaling was not necessary.
For some species and activities, observational data from PSOs
aboard HRG and geotechnical survey vessels indicate that the density-
based exposure estimates may be insufficient to account for the number
of individuals of a species that may be encountered during the planned
activities. A review of Empire Wind's PSO sightings data ranging from
2018 to 2023 for the Project Area indicated that exposure estimates
based on the exposure modeling methodology for some species were likely
underestimates for humpback whales, fin whales, and pilot whales. These
findings are described in greater detail below.
For other less-common species, the predicted densities from Roberts
et al. (2023) are very low, and the resulting density-based exposure
estimate is less than a single animal or a typical group size for the
species. In such cases, the mean group size or PSO data was considered.
Mean group sizes for each species were calculated from recent aerial
and/or vessel-based surveys, as shown in table 5. Group size data were
also used to estimate take from marina activities given there is no
density data available for the area given its inshore location.
Additional detail regarding the density and occurrence as well as the
assumptions and methodology used to estimate take for specific
activities is included in the activity-specific subsections below.
Tables 5 and 6, below demonstrate all of the densities used in the
exposure and take analyses. Table 7 shows the average marine mammal
group sizes used to adjust take estimate calculations.
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[[Page 11369]]
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[[Page 11370]]
Table 6--The Highest Average Seasonal Marine Mammal Densities (Animals
per 100 km\2\) Used for Analysis of Empire Wind's HRG Survey Effort for
the Project Area From January Through December
------------------------------------------------------------------------
Project area highest average
Marine mammal species seasonal density (No./100
[…truncated; see source link]Indexed from Federal Register on February 14, 2024.
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