Notice2024-03887
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Empire Wind Project, Offshore of 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 27, 2024
Effective
February 22, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the Marine Mammal Protection Act (MMPA) as amended, and implementing regulations, notification is hereby given that a Letter of Authorization (LOA) has been issued to Empire Offshore Wind, LLC (Empire Wind) for the taking of marine mammals incidental to the construction of the Empire Wind Project (hereafter known as the "Project").
Full Text
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<title>Federal Register, Volume 89 Issue 39 (Tuesday, February 27, 2024)</title>
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[Federal Register Volume 89, Number 39 (Tuesday, February 27, 2024)]
[Notices]
[Pages 14442-14444]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-03887]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD740]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Empire Wind Project, Offshore
of New York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of Letter of Authorization.
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SUMMARY: In accordance with the Marine Mammal Protection Act
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(MMPA) as amended, and implementing regulations, notification is hereby
given that a Letter of Authorization (LOA) has been issued to Empire
Offshore Wind, LLC (Empire Wind) for the taking of marine mammals
incidental to the construction of the Empire Wind Project (hereafter
known as the ``Project'').
DATES: The LOA is effective from February 22, 2024 through February 21,
2029.
ADDRESSES: The LOA and supporting documentation are available online
at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems
accessing these documents, please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made, regulations are
promulgated (when applicable), and public notice and an opportunity for
public comment are provided.
An authorization for incidental taking shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). If such findings are made, NMFS must prescribe the
permissible methods of taking; ``other means of effecting the least
practicable adverse impact'' on the affected species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, and on the availability of
the species or stocks for taking for certain subsistence uses (referred
to as ``mitigation''); and requirements pertaining to the monitoring
and reporting of such takings. The MMPA defines ``take'' to mean
harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or
kill any marine mammal (16 U.S.C. 1362(13); 50 CFR 216.103). Level A
harassment is defined as any act of pursuit, torment, or annoyance
which has the potential to injure a marine mammal or marine mammal
stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3). Level B
harassment is defined as any act of pursuit, torment, or annoyance
which has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (16 U.S.C. 1362(18); 50 CFR 216.3). Section
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR
part 216, subpart I authorize NMFS to propose and, if appropriate,
promulgate regulations and issue an associated LOA(s). NMFS promulgated
regulations on February 14, 2024 (89 FR 11342) for the taking of marine
mammals incidental to the construction of the Empire Wind Project
offshore of New York. The LOA authorizes Empire Wind and those persons
it authorizes or funds to conduct activities on its behalf to take
marine mammals incidental to specified activities during the
construction of the Project and requires them to implement mitigation,
monitoring, and reporting requirements.
On February 14, 2024, NMFS promulgated a final rule (89 FR 11342)
responding to a request from Empire Wind for authorization to take
small numbers of marine mammals (17 species comprising 18 stocks) by
Level B harassment (all 17 stocks) and by Level A harassment (2 of the
17 stocks) incidental to construction activities occurring in Federal
and State waters off of New York, specifically within and around 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 0512 (Lease Area) and along 2 export cable
routes to sea-to-shore transition points (collectively referred to as
the ``Project Area''), over the course of 5 years (February 22, 2024
through February 21, 2029). The activities covered under the final rule
include the installation of 147 wind turbine generators (WTGs) on
monopile foundations and 2 offshore substations (OSSs) on jacket
foundations using pin piles by impact pile driving; nearshore cable
landfall work comprising of the installation and subsequent removal of
nearshore temporary cofferdams by vibratory pile driving or the
installation and subsequent removal of casing pipes supported by goal
posts by impact pile driving at the sea-to-shore transition points
located on Long Island and Brooklyn, New York; removal of berthing
piles and installation of marine bulkheads inshore of Long Island, New
York; high-resolution geophysical (HRG) marine site characterization
surveys using active acoustic sources; fishery and ecological
monitoring surveys; the placement of scour protection; the installation
of the export cable route from OSSs to shore-based converter stations
and inter-array cables between turbines by trenching, laying, and
burial activities; vessel transit within the specified geographical
region to transport crew, supplies, and materials; and WTG operation.
Marine mammals exposed to elevated noise levels during foundation
pile driving, may be taken by Level A harassment (limited to fin whales
and minke whale), and marine mammals exposed to elevated noise levels
during impact and vibratory pile driving during cable landfall and
marina construction activities and/or site characterization surveys may
be taken by Level B harassment. No mortality or serious injury of any
marine mammal is anticipated to occur or has been authorized.
Authorization
In accordance with the final rule (89 FR 11342, February 14, 2024,
see 50 CFR 217.286), we have issued a LOA to Empire Wind authorizing
the take, by harassment, of marine mammals incidental to specified
construction activities within the specified geographical region. As
previously stated, no mortality or serious injury of any marine mammal
species is anticipated to occur or has been authorized. The incidental
takes authorized herein are the same as those analyzed and authorized
in the final rule (89 FR 11342, February 14, 2024). Takes of marine
mammals will be minimized through the following planned mitigation and
monitoring measures, as applicable for each specified activity: (1)
implementation of spatio-temporal seasonal/time of day work
restrictions; (2) use of multiple NMFS-approved Protected Species
Observers (PSOs) to visually observe for marine mammals (with any
detection within specifically designated zones triggering a delay or
shutdown, as applicable); (3) use of NMFS-approved passive acoustic
monitoring (PAM) operators to acoustically detect marine mammals, with
a focus on detecting baleen whales (with any detection within
designated zones triggering a delay or shutdown, as applicable); (4)
implementation of clearance and shutdown zones; (5) use of soft-start
prior to the start of foundation pile driving; (6) use of noise
attenuation technology during foundation pile
[[Page 14444]]
driving; (7) use of situational awareness monitoring for marine mammal
presence; (8) use of sound field verification monitoring; (9) use of
ramp-up acoustic sources during HRG surveys; (10) implementation of
vessel separation zones between marine mammals and project vessels;
(11) use of PAM within the vessel transit corridor for Project vessels
to travel over 10 knots (11.5 miles per hour); and (12) implementation
of additional Vessel Strike Avoidance measures to reduce the risk of a
vessel collision with a marine mammal. Additionally, NMFS may modify
the LOA's mitigation, monitoring, or reporting measures, based on new
information, when appropriate (see also 50 CFR 217.287(c)). Empire Wind
is also required to submit reports, as specified in the final rule.
Based on the findings and information discussed in the preamble of
the final rule, the take authorized in the LOA will have a negligible
impact on marine mammal stocks, will not have an unmitigable adverse
impact on the availability of the affected marine mammal stock for
subsistence uses, and the mitigation measures provide a means of
affecting the least practicable adverse impact on the affected stocks
and their habitat.
Dated: February 21, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-03887 Filed 2-26-24; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on February 27, 2024.
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