Rule2024-12085
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the New England Wind Project, Offshore Massachusetts
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
June 21, 2024
Effective
March 27, 2025
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates regulations to govern the incidental taking of marine mammals by Avangrid Renewables, LLC, (Avangrid), the parent company of the original applicant, Park City Wind, LLC (Park City Wind), during the construction of the New England Wind Project (the Project), an offshore wind energy project, developed in two phases, known as Park City Wind (phase 1) and Commonwealth Wind (phase 2), in Federal and State waters off of Massachusetts, 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 Areas (OCS-A 0534 and OCS-A 0561) and the southwest (SW) portion of Lease Area OCS-A 0501 (collectively referred to as the Lease Area), and along an export cable routes to sea-to-shore transition points (collectively, the Project Area), over the course of 5 years (March 27, 2025, through March 26, 2030). The proposed rule for this action concerned only Lease Areas OCS-A 0534 and the SW portion of Lease Area OCS-A 0501. However, after publication of the proposed rule, Lease Area OCS-A 0534 was segregated into two portions: OCS-A 0534 and OCS-A 0561. Phase 1 remained with Park City Wind (OCS-A 0534) while phase 2 (OCS-A 0561) was assigned to a sister company named Commonwealth Wind, LLC (subsidiary of Avangrid). As a result of this, Park City Wind requested that the Letter of Authorization (LOA), if issued, be issued to Avangrid, who would oversee the construction of the both phases of the Project by its two subsidiaries. These regulations, which allow for the issuance of a LOA for the incidental take of marine mammals during construction-related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat as well as requirements pertaining to the monitoring and reporting of such taking.
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[Federal Register Volume 89, Number 120 (Friday, June 21, 2024)]
[Rules and Regulations]
[Pages 52222-52321]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12085]
[[Page 52221]]
Vol. 89
Friday,
No. 120
June 21, 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 New England Wind Project, Offshore
Massachusetts; Final Rule
Federal Register / Vol. 89 , No. 120 / Friday, June 21, 2024 / Rules
and Regulations
[[Page 52222]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240524-0146]
RIN 0648-BL96
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the New England Wind Project,
Offshore Massachusetts
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, NMFS hereby promulgates
regulations to govern the incidental taking of marine mammals by
Avangrid Renewables, LLC, (Avangrid), the parent company of the
original applicant, Park City Wind, LLC (Park City Wind), during the
construction of the New England Wind Project (the Project), an offshore
wind energy project, developed in two phases, known as Park City Wind
(phase 1) and Commonwealth Wind (phase 2), in Federal and State waters
off of Massachusetts, 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 Areas
(OCS-A 0534 and OCS-A 0561) and the southwest (SW) portion of Lease
Area OCS-A 0501 (collectively referred to as the Lease Area), and along
an export cable routes to sea-to-shore transition points (collectively,
the Project Area), over the course of 5 years (March 27, 2025, through
March 26, 2030). The proposed rule for this action concerned only Lease
Areas OCS-A 0534 and the SW portion of Lease Area OCS-A 0501. However,
after publication of the proposed rule, Lease Area OCS-A 0534 was
segregated into two portions: OCS-A 0534 and OCS-A 0561. Phase 1
remained with Park City Wind (OCS-A 0534) while phase 2 (OCS-A 0561)
was assigned to a sister company named Commonwealth Wind, LLC
(subsidiary of Avangrid). As a result of this, Park City Wind requested
that the Letter of Authorization (LOA), if issued, be issued to
Avangrid, who would oversee the construction of the both phases of the
Project by its two subsidiaries. These regulations, which allow for the
issuance of a LOA for the incidental take of marine mammals during
construction-related activities within the Project Area during the
effective dates of the regulations, prescribe the permissible methods
of taking and other means of effecting the least practicable adverse
impact on marine mammal species or stocks and their habitat as well as
requirements pertaining to the monitoring and reporting of such taking.
DATES: This rule is effective from March 27, 2025, through March 26,
2030.
FOR FURTHER INFORMATION CONTACT: Karolyn Lock, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of the 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.) for NMFS to authorize
the take of marine mammals incidental to construction of the Project
within the Project Area. NMFS received a request from the applicant to
incidentally take a small number of marine mammals from 39 species of
marine mammals. After reviewing the request and making the required
findings, NMFS could authorize the take, by harassment only, of 38
species, representing 38 stocks (19 species by Level A harassment and
all 38 species by Level B harassment) incidental to the applicant's 5
years of construction activities. The applicant did not request and
NMFS neither anticipates nor allows take by serious injury or mortality
incidental to the specified activities in this final rulemaking.
Legal Authority for the Final Action
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made, regulations are
promulgated (when applicable), and public notice and an opportunity for
public comment are provided.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). If such findings are made, NMFS must prescribe the
permissible methods of taking, ``other means of effecting the least
practicable adverse impact'' on the affected species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, and on the availability of
the species or stocks for taking for certain subsistence uses (referred
to as ``mitigation''); and requirements pertaining to the monitoring
and reporting of such takings.
As noted above, the applicant did not request and NMFS neither
anticipates nor would allow take by serious injury or mortality
incidental to the specified activities in this final rulemaking.
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 Harassment, Incidental Taking and Incidental,
but not Intentional, Taking--an accidental taking. This does not mean
that the taking is unexpected, but rather it includes those takings
that are infrequent, unavoidable or accidental (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).
[[Page 52223]]
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 the in-water
specified activities.
Summary of Major Provisions Within the Final Rule
The major provisions within this final rule include:
<bullet> Allowing NMFS to authorize, under a LOA, the take of small
numbers of marine mammals by Level A harassment and/or Level B
harassment (50 CFR 217.322) incidental to the Project and prohibiting
take of such species or stocks in any manner not permitted (50 CFR
217.323) (e.g., mortality or serious injury);
<bullet> Establishing a seasonal moratorium on impact pile driving
and drilling during January 1 through April 30, annually, as well as
avoiding impact pile driving and drilling in December in order to
minimize impacts to North Atlantic right whales (Eubalaena glacialis).
Impact pile driving and drilling must not be planned in December;
however, it may then only occur if necessary to complete the Project
within a given year and with prior approval by NMFS (e.g., as a result
of unforeseen circumstances such as unanticipated weather delays,
unexpected technical difficulties). LOA Holder must notify NMFS in
writing by September 1 of that year that pile driving or drilling
cannot be avoided and circumstances are expected to necessitate pile
driving or drilling in December;
<bullet> Establishing a seasonal moratorium on vibratory pile
driving (i.e., vibratory setting of piles) during December 1 through
May 31, annually, to minimize impacts to North Atlantic right whales
(Eubalaena glacialis);
<bullet> Establishing a seasonal moratorium on the detonation of
unexploded ordnance or munitions and explosives of concern (UXO/MEC)
from December 1 through May 31, annually. UXO/MEC detonation must not
be planned for December or May in order to minimize impacts to North
Atlantic right whales (Eubalaena glacialis); however, UXO/MEC
detonation may occur in December or May with NMFS' approval on a case-
by-case basis only.
<bullet> Requirements for UXO/MEC detonations to only occur if all
other means of removal are impracticable (i.e., As Low As Reasonably
Practicable (ALARP) risk mitigation procedure)), conducting UXO/MEC
detonations during daylight hours only, and limiting detonations to one
per 24 hour period;
<bullet> Conducting both visual and passive acoustic monitoring
(PAM) by trained, NMFS-approved Protected Species Observers (PSOs) and
PAM operators before, during, and after select in-water construction
activities;
<bullet> Establishing 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, including a
delay or shutdown of foundation impact pile driving and delay to UXO/
MEC detonation if a North Atlantic right whale is observed at any
distance by PSOs or acoustically detected within certain distances;
<bullet> Establishing minimum visibility and PAM monitoring zones
during foundation installation activities (i.e., impact pile driving,
vibratory pile driving, and drilling);
<bullet> Requiring use of at least two noise attenuation devices
during all foundation installation activities and UXO/MEC detonations
to reduce noise levels to those modeled assuming a broadband 10 decibel
(dB) attenuation;
<bullet> Requiring sound field verification (SFV) requirements
during foundation installation and UXO/MEC detonations to measure in
situ noise levels for comparison against the modeled results.
<bullet> Requiring SFV during the operational phase of the Project;
<bullet> Requiring soft-start during impact pile driving and ramp-
up during the use of high-resolution geophysical (HRG) marine site
characterization survey equipment;
<bullet> Requiring various vessel strike avoidance measures;
<bullet> Requiring various measures during fisheries monitoring
surveys, such as removing gear from the water if marine mammals are
considered at-risk or are interacting with gear;
<bullet> Requiring regular and situational reporting including, but
not limited to, information regarding activities occurring, marine
mammal observations and acoustic detections, and sound field
verification monitoring results; and
<bullet> Requiring monitoring of the North Atlantic right whale
sighting networks, Channel 16, and PAM data, as well as reporting any
sightings to the NMFS or sighting network.
Through adaptive management, as described in the provisions
established in these regulations, NMFS Office of Protected Resources
may modify (e.g., delete, revise, or add to) the existing mitigation,
monitoring, or reporting measures summarized above and required by the
LOA.
NMFS must withdraw or suspend an LOA issued under these
regulations, after notice and opportunity for public comment, if it
finds the methods of taking or the mitigation, monitoring, or reporting
measures are not being substantially complied with or the authorized
take is having, or may have, more than a negligible impact on the
concerned species or stock (16 U.S.C. 1371(a)(5)(B); 50 CFR
216.106(e)). Additionally, failure to comply with the requirements of
the LOA may result in civil monetary penalties and knowing violations
may result in criminal penalties (16 U.S.C. 1375; 50 CFR 216.106(g)).
Fixing America's Surface Transportation Act (FAST-41)
This project is covered under title 41 of the Fixing America's
Surface Transportation Act, or ``FAST-41.'' FAST-41 includes a suite of
provisions designed to expedite the environmental review for covered
infrastructure projects, including enhanced interagency coordination as
well as milestone tracking on the public-facing Permitting Dashboard.
FAST-41 also places a 2-year limitations period on any judicial claim
that challenges the validity of a Federal agency decision to issue or
deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-
6(a)(1)(A)).
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/new-england-wind">https://www.permits.performance.gov/permitting-project/new-england-wind</a>.
Summary of Request
On December 1, 2021, the original applicant, Park City Wind, a
limited liability company registered in the State of Delaware and
wholly owned subsidiary of Avangrid submitted a request for the
promulgation of regulations and issuance of an associated 5-year LOA to
take, by harassment only, marine mammals incidental to construction
activities associated with implementation of the New England Wind
Project (hereafter ``Project'') offshore of Massachusetts in the BOEM
Lease Area OCS-A 0534 and the possible use of the SW portion of Lease
Area OCS-A 0501. The request was for the incidental, but not
intentional, taking of a small number of 39 marine mammal species by
Level B harassment (for all species or stocks) and by Level A
harassment (for 19 species or stocks). Park City Wind did
[[Page 52224]]
not request, and NMFS neither expects nor would allow under this rule,
take by serious injury or mortality to occur for any marine mammal
species or stock incidental to the specified activities.
In response to our questions and comments, and following extensive
information exchange between Park City Wind and NMFS, the applicant
submitted a final revised application on July 13, 2022. NMFS deemed it
adequate and complete on July 20, 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 August 22, 2022, NMFS published a notice of receipt (NOR) of the
adequate and complete application in the Federal Register (87 FR
51345), requesting public comments and information during a 30-day
public comment period. During the NOR public comment period, NMFS
received comment letters from one private citizen and one non-
governmental organization (ALLCO Renewable Energy Limited). NMFS
reviewed all submitted material and took the material into
consideration during the drafting of the proposed rule.
In January 2023 and again in March 2023, Park City Wind submitted
memos to NMFS detailing updates and changes to their ITA application
(``Update Application''). These memos updated the density models using
the 2022 Roberts et al. density models, project foundation installation
and potential UXO/MEC detonation schedules, vibratory pile driving
(i.e., vibratory setting of piles) assessment, and mitigation of
drilling activity. In addition, the applicant detailed development of
their fisheries monitoring program and associated mitigation measures.
In a May 2023 memo, Park City Wind submitted corrected take estimate
amounts for foundation installation activities and total take requested
across all activities. These updates were reflected in the proposed
rule. These memos are available on the NMFS website at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-wind">https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-wind</a>.
On June 8, 2023, NMFS published a proposed rule for the Project in
the Federal Register (88 FR 37606). In the proposed rule, NMFS
synthesized all of the information provided by the applicant, all best
available scientific information and literature relevant to the
proposed project, made preliminary small numbers and negligible impact
determinations, and outlined, in detail, proposed mitigation designed
to effect the least practicable adverse impacts on marine mammal
species and stocks, as well as proposed monitoring and reporting
measures. The public comment period on the proposed rule was open for
30 days from June 8, 2023 through July 10, 2023. A summary of public
comments received during this 30-day period are described in the
Comments and Responses section. The public comments are available to be
viewed on the Federal e-Rulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
In January 2024, Park City Wind submitted a final draft of the new
modeling and associated acoustic ranges, exposure estimates, and take
estimates. Within these memos, the applicant revised the model(s) used
and model assumptions for foundation installation activities and
updated the acoustic ranges, exposure ranges, exposure estimates, take
estimates, and amount of requested take as a result. The model changes
are detailed in the Modeling and Take Estimates section in this final
rule. NMFS accepted the updated modeling and has reflected the changes
to the distance to thresholds, exposure estimates, and take estimates
within the final rule. A description of these changes can be found
below in the Modeling and Take Estimates section. This January 2024
Application Update is on NMFS website at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-wind">https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-wind</a>.
On May 6, 2024, Park City Wind notified NMFS that it had requested
that BOEM segregate a portion of lease area OCS-A-0534, which would
then be assigned to another subsidiary of Avangrid, Commonwealth Wind,
LLC, as lease area OCS-A 0561. Park City Wind requested to NMFS that
the incidental take regulation (ITR) governing take of marine mammals
incidental to activities associated with both phases of the Project and
the associated LOA (if issued by NMFS) be issued to Park City Wind's
parent company, Avangrid, a limited liability company registered in the
State of Oregon, who would oversee phase 1 (constructed and operated by
Park City Wind) and phase 2 (constructed and operated by Commonwealth
Wind) of the New England Wind Project. The lease segregation, completed
by BOEM on May 15, 2024, did not alter the geographic location or size
of the area in which the project would be built, nor did the applicant
request any changes to the construction schedule, planned activities,
or take. In short, no substantive changes to the Project were
requested. As a result, where appropriate, Avangrid, owner of Park City
Wind, has henceforth been incorporated as the applicant or LOA Holder
throughout this final rule.
NMFS previously issued one Incidental Harassment Authorization
(IHA) to Park City Wind for the taking of small numbers of marine
mammals incidental to marine site characterization surveys, using HRG
of the Project's phase 1 (Park City Wind) in the BOEM Lease Area OCS-A
0534 (87 FR 44087, July 7, 2022); phase 2 was not part of this
authorization (Commonwealth Wind). However, no work occurred under this
initial IHA and Park City Wind requested a reissuance of the IHA with
new effective dates. NMFS reissued the IHA (88 FR 88892, December 26,
2023) with the new effective dates of March 1, 2024, through February
28, 2025. NMFS has also previously issued an IHA to Avangrid, owner of
Park City Wind, LLC, to take small numbers of marine mammals incidental
to HRG surveys in BOEM Lease Area (OCS-A 0508) off the coasts of North
Carolina and Virginia (84 FR 31032, June 28, 2019). To date, Park City
Wind and Avangrid have complied with all IHA requirements (e.g.,
mitigation, monitoring, and reporting). Applicable monitoring results
may be found in the Estimated Take of Marine Mammals section. If
available, the full monitoring reports can be found on NMFS' website at
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
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 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
[[Page 52225]]
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 Avangrid 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
Avangrid plans to construct and operate two offshore wind projects
within OCS-A 0534 and OCS-A 0561: Park City Wind (phase 1, 0534) and
Commonwealth Wind (phase 2, 0561) (collectively called New England
Wind; hereinafter referred to as ``Project''). The Project will occupy
all of Lease Area OCS-A 0534, OCS-A 0561, and potentially a portion of
Lease Area OCS-A 0501 in the event that Vineyard Wind 1 does not
develop spare or extra positions included in Lease Area OCS-A 0501. If
Vineyard Wind 1 does not develop spare or extra positions in Lease Area
OCS-A 0501, those positions would be assigned to Lease Area OCS-A 0534.
The Project will consist of several different types of permanent
offshore infrastructure, including wind turbine generators (WTGs) and
associated foundations, electrical service platforms (ESPs) and their
foundations, inter-array cables, offshore export cables, and scour
protection. Specifically, activities to construct the Project include
the installation of 41-62 WTGs and 1-2 ESPs in phase 1 by impact and
vibratory pile driving and, in the event of an obstruction, drilling.
Phase 2 depends upon the final footprint of phase 1. Phase 2 is
expected to include the installation of 64-88 WTGs and 1-3 ESP
positions by impact and vibratory pile driving and, in the event of an
obstruction, drilling. In total, up to 129 WTGs and 2-5 ESPs may be
constructed at a maximum of 130 positions (2 positions may potentially
have co-located ESPs (i.e., two foundations installed at one grid
position), resulting in 132 foundations). Additional activities will
include cable installation, site preparation activities (e.g.,
dredging), HRG surveys, the potential detonations of up to 10 UXO/MEC,
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 in Barnstable County,
Massachusetts. Marine mammals exposed to elevated noise levels during
pile driving, drilling, UXO/MEC detonations, 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 37606, June 8, 2023).
Dates and Duration
Avangrid 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 2025, after
issuance of the 5-year LOA, and continue through March 2030. Avangrid
anticipates the following construction schedule over the 5-year period.
Avangrid has noted that these are the best and conservative estimates
for activity durations, but that the schedule may shift due to weather,
mechanical, or other related delays. Additional information on dates
and activity-specific durations can be found in the proposed rule and
are not repeated here.
Table 1--Activity Schedule To Construct and Operate the Project
------------------------------------------------------------------------
Project activity Expected timing Expected duration
------------------------------------------------------------------------
HRG Surveys..................... Q1 2025-Q4 2029... Any time of the
year, up to 25
days per year.
Scour Protection Pre- or Post- Q1 2025-Q4 2029... Any time of the
Installation. year.
WTG and ESP Foundation Q2-Q4 2026 and Up to 8 months per
Installation, Schedule A. 2027 \1\. year.
WTG and ESP Foundation Q2-Q4 2026, 2027, Up to 8 months per
Installation, Schedule B. and 2028 \1\. year.
Horizontal Directional Drilling Q4 2025-Q2 2026... Up to 150 days.
at Cable Landfall Sites.
UXO/MEC Detonations............. Q2-Q4 2025 and Up to 6 days in
2026. 2025 and 4 days
in 2026. No more
than 10 days
total.
Inter-array Cable Installation.. Q3-Q4 2026 and Q2 Phase 1: 5 months;
2027-Q2 2028. Phase 2: 10
months.
Export Cable Installation and Q2 2026-Q2 2028... Phase 1: 8-9
Termination. months; Phase 2:
13-17 months.
Fishery Monitoring Surveys...... Q1 2025-Q4 2029... Any time of year.
---------------------------------------
Turbine Operation............... Initial turbines operational 2027, all
turbines operational by 2028.
------------------------------------------------------------------------
Note: Project activities are anticipated to start no earlier than Q1
2025. Q1 = January through March; Q2 = April through June; Q3 = July
through September; Q4 = October through December. The Project is
divided into two phases: Park City Wind (phase 1) and Commonwealth
Wind (phase 2).
\1\ Foundation installation pile driving and drilling would be limited
to May 1-December 31, annually; however, impact pile driving and
drilling in December will not be planned but may occur due to
unforeseen circumstances (e.g., unanticipated extended weather delays,
unexpected technical difficulties) and with NMFS approval. Vibratory
pile driving (e.g., vibratory setting of piles) must not occur
December 1-May 31, annually.
Specified Geographical Region
A detailed description of the Specified Geographical Region,
identified as the Mid-Atlantic Bight, is provided in the proposed rule
(88 FR 37606, June 8, 2023). Since the proposed rule was published, no
changes have been made to the Specified Geographical Region. This final
rule provides clarity on the boundaries of the Mid-Atlantic Bight,
which spans from Cape Hatteras, North Carolina to Cape Cod,
Massachusetts and extends into the western Atlantic to the 100-m
isobath. All of Avangrid's specified activities (i.e., pile driving and
drilling of WTG and ESP foundations; number of possible UXO/MEC
detonations (n=10); 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 offshore Massachusetts. Avangrid would also concentrate vessel
use within this area;
[[Page 52226]]
however, some limited vessel movement may occur outside this area.
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Comments and Responses
NMFS published a proposed rule in the Federal Register on June 8,
2023 (88 FR 37606) for a 30-day public comment period. The proposed
rule described, in detail, the specified activities, the specified
geographical 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 Park City Wind's (now Avangrid's) request for the
promulgation of regulations and issuance of an associated LOA described
therein, our estimated take analyses, the
[[Page 52227]]
preliminary determinations, and the proposed regulations.
NMFS received 41 comment submissions, including comments from the
Marine Mammal Commission (Commission), several non-governmental
organizations, and private citizens, all of which are available for
review on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Some of these comments were out-
of-scope or not applicable to the Project (e.g., general opposition to
or support of offshore wind projects, concerns for other species
outside NMFS' jurisdiction) and are not described herein or discussed
further. Non-governmental organizations included: Long Island
Commercial Fishing Association, Responsible Offshore Development
Alliance, and Green Oceans. These letters, and the Commission's,
contained substantive information that NMFS considered in this final
rule, including comments related to the estimated take analysis, final
determinations, and final mitigation, monitoring, and reporting
requirements. A summary of comments are described below, along with
NMFS' 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 the proposed action.
They have stated that, in lieu of this, they incorporate by reference
all previously submitted comment letters for past proposed rules (i.e.,
Empire Wind, Dominion Energy Virginia, Sunrise Wind, Revolution Wind,
Ocean Wind 1, South Fork Wind) and that NMFS should specifically review
these previously submitted letters (e.g., 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 other referenced 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 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 letters raised concerns over concern
underestimated Level A and B harassment zones and numbers of takes,
incomplete SFV measurement requirements, insufficient mitigation and
monitoring measures, errors and omissions in the proposed rule and its
preamble, and the general issue of quality control and quality
assurance in NMFS's preparation of proposed ITAs. 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. 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).
Comment 2: Commenters recommend NMFS re-estimate and authorize
Level A harassment takes based on modeling results for the worst-case
scenario rather than presuming an arbitrary 80- or 100-percent
reduction for mitigation efficacy and/or a 10-dB sound attenuation for
impact pile driving, re-estimate and authorize Level B harassment takes
based on more conservative assumptions for the pile-driving scenarios
that could occur (including only one monopile or fewer than four pin
piles installed per day), re-estimate the various mortality, Level A
harassment, and Level B harassment zones and numbers of takes based on
0 dB of sound attenuation for UXO/MEC detonations and authorize Level A
and B harassment takes, including behavior takes, that could result
from UXO/MEC detonations, and increase any Level A or B harassment
takes to mean group size (including updates that reflect the results of
more recent marine mammal surveys in the Rhode Island-Massachusetts
WEA). Other commenters had similar comments. Commenter(s) also
suggested that the numbers of takes, particularly with respect to the
North Atlantic right whale, rely on mitigation methods that remain
unproven.
Response: NMFS disagrees that our analysis should carry forward
take estimates based on the worst-case scenario that assumes no
reduction of impacts results from the mitigation and notes that the
commenter did not present any data supporting their recommendation. As
described in the proposed rule, this final rule reasonably assumes that
the mitigation efforts will be effective at reducing the potential for
Level A harassment calculated in the density-based models. The models
do not account for mitigation (except with respect to assuming
attenuation and seasonal restrictions) and, therefore, it is reasonable
to assume the model overestimates Level A harassment. Further, while
the scientific literature documents marine mammals are likely to avoid
loud noises such as pile driving (e.g., Brandt et al., 2016, Nowack et
al., 2004), avoidance was not quantitatively considered in the take
estimates (although NMFS reasonably predicts this natural behavior will
further reduce the potential for Level A harassment).
In the proposed rule, NMFS described the best available science,
which supports the assumption that at least 10 dB of attenuation can be
reliably achieved using noise attenuation systems such as a double
bubble curtain. The commenter did not provide reason for why they
believe this was an overestimate nor did they suggest an alternative
amount of attenuation NMFS should consider other than zero attenuation.
Other commenters expressed similar support stating that bubble curtains
are not effective for low-frequency cetaceans. NMFS agrees that
attenuation levels vary by frequency band and that bubble curtains
attenuate higher frequency sounds more effectively; however, NMFS
disagrees that lower frequency bands, which are important to consider
when evaluating impacts, are not attenuated at all. The data from
Bellmann (2021), shows that for both single and double bubble curtains,
more than 10 dB of attenuation was achieved for bands as low as 32 Hz.
And while it is true that performance diminishes significantly at lower
frequencies (<32 Hz), those bands also contain significantly less pile
driving sound and is 16+ dB outside the most susceptible frequency
range for low-frequency cetaceans.
[[Page 52228]]
NMFS recognizes that the key to effective mitigation is the ability
to detect marine mammals to trigger such mitigation. Avangrid is
required to undertake extensive monitoring to maximize marine mammal
detection effectiveness. The reduction to the density-based take
estimate appropriately reflects and acknowledges the monitoring
efforts, including the placement of three PSOs on the pile driving
platform and dedicated PSOs vessel(s) and PAM.
NMFS agrees that there is potential for behavioral disturbance from
a single detonation per day and disagrees that ``behavior takes'' were
omitted and have not been accounted for. However, the behavioral
threshold for underwater detonations identified by the Commission (5 dB
less than the temporary threshold shift (TTS) is only applicable to
multiple detonations per day. NMFS is not aware of evidence to support
the assertion that animals will have behavioral responses that would
qualify as take to temporally and spatially isolated explosions at
received levels below the TTS threshold. Accordingly, the current take
estimate framework allows for the consideration of behavioral
disturbance resulting from single explosions specifically if they are
exposed above the TTS threshold, as opposed to the 5-dB lower threshold
for behavioral disturbance from multiple detonations. We acknowledge in
our analysis that individuals exposed above the TTS threshold may also
be harassed by direct behavioral, disruption and those potential
impacts are considered in the negligible impact determination. The
distances to harassment thresholds have not changed from the
application and proposed rule and are presented in this final rule.
Take estimates did not change as a result of including this additional
information.
Comment 3: Commenter(s) claimed that NMFS thresholds are outdated,
primarily because scientific literature demonstrates examples where
behavioral disturbances have been documented where received levels are
lower than 160 dB. Moreover, the commenter suggested that estimating
the extent of Level B take from impact driving using the 160dB
(impulsive) threshold is flawed because an animal may be exposed to
several hours of pile driving per day which should be considered
continuous and that, although impulsive at the source, the sound from
impact driving may be received as a continuous source at a distance.
Commenter(s) stated that vessel noise is not included in the effects
and that it should be included in calculations for harassment zones (as
a continuous noise source) and as a source of take. For these reasons,
commenter(s) suggested the proposed rule underestimates the takes by
Level B harassment and ``zones of impact''; thus NMFS' small numbers
and negligible impact determination is flawed.
Response: For the reasons described below, NMFS disagrees that the
160-dB threshold for behavioral harassment is not supported by the best
available science and that the small numbers and negligible impact
determinations are flawed based on the use of this threshold in the
take estimate analysis. The potential for behavioral response to an
anthropogenic source can be highly variable and context-specific
(Ellison et al., 2012). While NMFS acknowledges the potential for Level
B harassment at exposures to received levels below 160 dB rms, it
should also be acknowledged that not every animal exposed to received
levels above 160 dB rms will respond in ways constituting behavioral
harassment. There are a variety of studies indicating that contextual
variables play a very important role in response to anthropogenic
noise, and the severity of effects are not necessarily linear when
compared to a received level (RL). Several studies (e.g., Nowacek et
al., 2004 and Kastelein et al., 2012 and 2015) showed there were
behavioral responses to sources below the 160 dB threshold but also
acknowledged the importance of context in these responses. For example,
Nowacek et al. (2004) reported the behavior of five out of six North
Atlantic right whales was disrupted at RLs of only 133-148 dB re 1
[mu]Pa (returning to normal behavior within minutes) when exposed to an
alert signal. However, the authors also reported that none of the
whales responded to noise from transiting vessels or playbacks of ship
noise even though the RLs were at least as loud and contained similar
frequencies to those of the alert signal. The authors state that a
possible explanation for whales responding to the alert signal and not
responding to vessel noise is due to the whales having been habituated
to vessel noise while the alert signal was a novel sound. In addition,
the authors noted differences between the characteristics of the vessel
noise and alert signal, which may also have played a part in the
differences in responses to the two noise types. Therefore, it was
concluded that the signal itself, as opposed to the RL, was responsible
for the response. DeRuiter et al. (2012) also indicate that variability
of responses to acoustic stimuli depends not only on the species
receiving the sound and the sound source, but also on the social,
behavioral, or environmental contexts of exposure. Finally, behavioral
responses depend on many contextual factors, including range to source,
RL above background noise, novelty of the signal, and differences in
behavioral state (Ellison et al., 2012, Gong et al., 2014). Similarly,
Kastelein et al. (2015) examined behavioral responses of a harbor
porpoise to sonar signals in a quiet pool but stated behavioral
responses of harbor porpoises at sea would vary with context such as
social situation, sound propagation, and background noise levels.
NMFS uses 160 dB (rms) as the received sound pressure level for
estimating the onset of Level B behavioral harassment takes for
impulsive/intermittent sound sources, and this is currently considered
the best available science while acknowledging that the 160
dB<INF>rms</INF> step-function approach is a simplistic approach. While
it may be true because of reverberation that impulsive pile driving
strikes may ``stretch'' as their sound travels through the environment,
we do not classify these sounds as continuous, like drilling and
vibratory pile driving. NMFS' behavioral harassment thresholds consider
instantaneous exposure to noise and are based on a received level.
These thresholds do not account for duration of exposure, as our PTS
onset thresholds do. Thus, whether an individual was exposed to a few
pile driving strikes or exposed for several hours of pile driving, the
160-dB threshold would still apply. While it is correct that in
practice it works as a step-function (i.e., animals exposed to received
levels above the threshold are considered to be ``taken'' and those
exposed to levels below the threshold are not), it is in fact intended
as a sort of mid-point of likely behavioral responses, which are
extremely complex depending on many factors including species, noise
source, individual experience, and behavioral context. What this means
is that, conceptually, the function recognizes that some animals
exposed to levels below the threshold will in fact react in ways that
appropriately considered take while others that are exposed to levels
above the threshold will not. Use of the 160-dB threshold allows for a
simplistic quantitative estimate of take while we can qualitatively
address the variation in responses across different received levels in
our discussion and analysis.
Overall, we reiterate the lack of scientific consensus regarding
what criteria might be more appropriate. Defining sound levels that
disrupt behavioral patterns is difficult because
[[Page 52229]]
responses depend on the context in which the animal receives the sound,
including an animal's behavioral mode when it hears sounds (e.g.,
feeding, resting, or migrating), prior experience, and biological
factors (e.g., age and sex). Other contextual factors, such as signal
characteristics, distance from the source, and signal to noise ratio,
may also help determine response to a given received level of sound.
Therefore, levels at which responses occur are not necessarily
consistent and can be difficult to predict (Southall et al., 2007;
Ellison et al., 2012; Southall et al., 2021). For example, Gomez et al.
(2016) reported that RL was not an appropriate indicator of behavioral
response. Further, the seminal reviews presented by Southall et al.
(2007), Gomez et al. (2016), and Southall et al. (2021) did not suggest
any specific new criteria due to lack of convergence in the data.
Undertaking a process to derive defensible exposure-response
relationships, as suggested by Tyack and Thomas (2019), is complex. The
recent systematic review by Gomez et al. (2016) was unable to derive
criteria expressing these types of exposure-response relationships
based on currently available data.
NMFS acknowledges that there may be methods of assessing likely
behavioral responses to acoustic stimuli that better capture the
variation and context-dependency of those responses than the simple 160
dB step-function used here; there is no agreement on what that method
should be or how more complicated methods may be implemented by
applicants. NMFS is committed to continuing its work in developing
updated guidance with regard to acoustic thresholds but pending
additional consideration and process, is reliant upon an established
threshold that is reasonably reflective of best available science.
NMFS disagrees that vessel noise would result in take and,
therefore, be necessary to include in the take calculations in this
final rule. 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 vessel type, load, and speed, and vessel 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). 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 the
specified 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 project 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 the project'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 drilling, 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
Avangrid'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.
Comment 4: Commenter(s) recommended that NMFS should consider the
best available data regarding North Atlantic right whale abundance in
the project area, as well as the most comprehensive models for
estimating marine mammal take and developing robust mitigation
measures.
Response: The MMPA and its implementing regulations require that
ITRs be established based on the best scientific evidence available.
NMFS generally considers the information in the most recent U.S.
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments Report
(SAR; Hayes et al., 2023) to be the best scientific evidence available
for a particular marine mammal stock because of the MMPA's rigorous SAR
procedural requirements, which includes peer review by a statutorily
established Scientific Review Group. Since publication of the proposed
rule, NMFS has released the draft 2023 Stock Assessment Report
indicating the North Atlantic right whale population abundance is
estimated as 340 individuals based on sighting data through December
31, 2021 (89 FR 5495, January 29, 2024). NMFS has used the best
scientific evidence available in the analysis of this final rule. This
new stock abundance estimate, which is based on the analysis from Pace
et al. (2017) and subsequent
[[Page 52230]]
refinements found in Pace (2021), provides the best scientific evidence
available, and in this case, the most recent estimate, including
improvements to NMFS's right whale abundance model. NMFS notes this
estimate aligns with the 2022 North Atlantic Right Whale Report Card
(Pettis et al., 2022) estimate (also 340) based on sighting data
through August 2022 but, as described above, the SARs are peer reviewed
by other scientific review groups prior to being finalized and
published and the Report Card is published independently by Consortium
members without undertaking this peer review process. Based on this,
NMFS has considered all relevant information regarding North Atlantic
right whale, including the information cited by the commenters.
However, NMFS has relied on the draft 2023 SAR in this final rule as it
reflects the best scientific evidence available.
We further note that this change in abundance estimate does not
change the estimated take of North Atlantic right whales or authorized
take numbers, nor affect our ability to make the required findings
under the MMPA for Avangrid's construction activities.
NMFS evaluates the models used by applicants to support take
estimates to ensure that they are methodologically sound and
incorporate the best science available. NMFS also requires use of the
Roberts et al. (2016, 2023) density data and SARs abundance estimates
for all species, both of which represent the best scientific evidence
available regarding marine mammal occurrence.
Comment 5: Commenter(s) stated that Level A harassment in the form
of a Permanent Threshold Shift (PTS) would result in deafness and lead
to mortality. It was also asserted that Level B harassment in the form
of a TTS is temporary deafness which could result in an increased risk
of vessel strike. Lastly, that NMFS has refused to acknowledge the lack
of available data on low frequency cetacean hearing or potential
behavioral impacts from noise on low frequency cetacean species.
Response: Neither the proposed rule or this final rule allow
mortality or serious injury of marine mammals to be authorized. The
best scientific evidence available indicates that the anticipated
impacts from the specified activities potentially include avoidance,
cessation of foraging or communication, TTS and PTS, stress, masking,
etc. (as described in the Effects of the Specified Activities on Marine
Mammals and their Habitat section in the proposed rule). NMFS defines a
threshold shift as a change, usually an increase, in the threshold of
audibility at a specified frequency or portion of an individual's
hearing range above a previously established reference level expressed
in decibels (NMFS, 2018). Threshold shifts can be permanent (PTS), in
which case there is an irreversible increase in the threshold of
audibility at a specified frequency or portion of an individual's
hearing range or temporary, in which there is reversible increase in
the threshold of audibility at a specified frequency or portion of an
individual's hearing range and the animal's hearing threshold would
fully recover over time (Southall et al., 2019a). When PTS occurs,
there can be physical damage to the sound receptors in the ear (i.e.,
tissue damage) whereas TTS represents primarily tissue fatigue and is
reversible (Henderson et al., 2008). In addition, other investigators
have suggested that TTS is within the normal bounds of physiological
variability and tolerance and does not represent physical injury (e.g.,
Ward, 1997; Southall et al., 2019a). Therefore, NMFS does not consider
TTS to constitute auditory injury or deafness as it is a temporary form
of hearing impairment. Repeated sound exposure that leads to TTS could
cause PTS. For this project, as stated in the proposed rule, no more
than a small degree of PTS is expected to be associated with any of the
incurred Level A harassment, given it is unlikely that animals would
stay in the close vicinity of a source for a duration long enough to
produce more than a small degree of PTS. PTS would consist of minor
degradation of hearing capabilities occurring predominantly at
frequencies one-half to one octave above the frequency of the energy
produced by pile driving or instantaneous UXO/MEC detonation (i.e., the
low-frequency region below 2 kHz) (Cody and Johnstone, 1981; McFadden,
1986; Finneran, 2015), not severe hearing impairment. If hearing
impairment occurs from either impact pile driving or UXO/MEC
detonation, it is most likely that the affected animal would lose a few
decibels in its hearing sensitivity, which in most cases is not likely
to meaningfully affect its ability to forage and communicate with
conspecifics.
As stated in the proposed rule, NMFS acknowledges that there is
limited data on threshold shifts in marine mammals. Relationships
between TTS and PTS thresholds have not been studied in marine mammals,
and there is no PTS data for cetaceans. However, such relationships are
assumed to be similar to those in humans and other terrestrial mammals.
Noise exposure can result in either a permanent shift in hearing
thresholds from baseline (PTS; a 40 dB threshold shift approximates a
PTS onset; e.g., Kryter et al., 1966; Miller, 1974; Henderson et al.,
2008) or a temporary, recoverable shift in hearing that returns to
baseline (a 6 dB threshold shift approximates a TTS onset; e.g.,
Southall et al., 2019). Based on data from terrestrial mammals, a
precautionary assumption is that the PTS thresholds, expressed in the
unweighted peak sound pressure level metric (PK), for impulsive sounds
(such as impact pile driving pulses) are at least 6 dB higher than the
TTS thresholds and the weighted PTS cumulative sound exposure level
thresholds are 15 (impulsive sound) to 20 (non-impulsive sounds) dB
higher than TTS cumulative sound exposure level thresholds (Southall et
al., 2019a). Given the higher level of sound or longer exposure
duration necessary to cause PTS as compared with TTS, PTS is less
likely to occur as a result of these activities, but it is possible and
a small amount has been proposed for authorization for several species.
For more detailed information on PTS and TTS, please see the Hearing
Threshold Shift and Negligible Impact Determination sections of the
proposed rule.
NMFS disagrees that the potential effects to species as a result of
the project's specified activities would result in increased risk of
vessel strikes. Please see our response to Comment 8 for more details
on the vessel strike avoidance requirements required by this final
rule.
Comment 6: A commenter suggested that NMFS' low-frequency cetacean
weighting function is inaccurate because it applies a 2-pole High-pass
filter set at 200 Hz, while Southall et al. (2007) suggested moving the
high-pass filter down to 7Hz. The commenter was also concerned that
applying any weighting function underestimates the potential impacts on
marine mammals because they claim applying a weighting function assumes
that when hearing is less sensitive at the outer limits of the hearing
range, the effects to the animal (potential for adverse impact) will be
insignificant or non-existent unless inordinately loud. They also
claimed that there is no empirical evidence that NMFS' weighting curve
aligns with mysticetes infrasonic hearing. Further, they assert signal
kurtosis was not accounted for in NMFS analysis and should be included
in any predictive impact models. Commenter(s) also state that the
spreading model is inadequate for modeling noise levels as it does not
account for reflection off the water's surface or from other sources.
[[Page 52231]]
Response: The marine mammal weighting functions in NMFS' 2018
Revised Technical Guidance do not contain any filters. Furthermore, the
Revised Technical Guidance provides generalized hearing ranges for
marine mammal species, where the low-frequency cetacean lower bounds of
the hearing range start at 7 kHz. These weighting functions are meant
to reflect the hearing groups' susceptibility to noise-induced hearing
loss and are based on audiogram data, as well as TTS data. Furthermore,
for impulsive sources, there are peak sound pressure level criteria
that are unweighted. Thus, impacts of noise on hearing will not be
underestimated. For low-frequency cetaceans, since direct measurements
of hearing ability are lacking, weighting functions are based on a
multitude of information, including anatomical studies and modeling
(Houser et al., 2001; Parks et al., 2007; Tubelli et al., 2012;
Cranford and Krysl 2015); vocalizations (see reviews in Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008); taxonomy;
and behavioral responses to sound (Dahlheim and Ljungblad, 1990; see
review in Reichmuth, 2007). Finally, kurtosis is an additional metric
to determine if a sound is impulsive versus non-impulsive (i.e.,
kurtosis is a measure of the ``peakedness'' of a noise waveform, with
the impulsive components (Qiu et al., 2020). As described in the
proposed rule and NMFS' Technical Guidance (NMFS, 2018), NMFS applies
different thresholds in an impact analysis for impulsive and non-
impulsive sources. Impact pile driving is categorized as an impulsive
sound. Thus, while kurtosis was not assessed directly, whether a sound
is impulsive or non-impulsive is inherently considered in our analyses
when assessing the potential for PTS (i.e., deciding which acoustic
thresholds are appropriate based on sound source characteristics that
include a source's impulsiveness). Therefore, kurtosis (the impulsivity
of a sound source) is accounted for in NMFS analysis.
Potential impacts to marine mammal nervous systems through exposure
to sound were discussed in the proposed rule in the Potential Effects
of Underwater Sound on Marine Mammals section. NMFS assumes that the
reference to ``injury-causing'' SPL by the commenter is the potential
for a permanent threshold shift (PTS).
NMFS disagrees that the spreading model is inadequate. The degree
to which underwater sound propagates away from a sound source is
dependent on a variety of factors, which notably includes the frequency
and directivity of the source, water depth (or bathymetry), the
reflective or absorptive nature of the seabed, and other factors.
Spherical spreading occurs in a perfectly unobstructed (free-field)
environment not limited by depth or water surface, resulting in a 6-dB
reduction in sound level for each doubling of distance from the source
(20 x log[range]). Spherical spreading can be thought of as a `direct
path' model, as all sound in the water column is assumed to have
arrived via a direct path from the source. Cylindrical spreading occurs
in an environment in which sound propagation is bounded by the water
surface and sea bottom, resulting in a reduction of 3 dB in sound level
for each doubling of distance from the source (10 x log[range]). Both
cylindrical spreading and the often used `practical spreading' model
are multi-path models, in that they account for sound which may consist
of both direct paths and paths consisting of reflections from the
seabed and the sea surface.
As described in the proposed rule, the area of water ensonified at
or above the RMS 160-dB threshold was calculated using a simple model
of sound propagation loss, which accounts for the loss of sound energy
over increasing range. Our use of the spherical spreading model, is a
reasonable approximation over the relatively short ranges involved.
Even in conditions where cylindrical spreading (where propagation loss
= 10 x log [range]; such that there would be a 3-dB reduction in sound
level for each doubling of distance from the source) may be appropriate
(e.g., non-homogenous conditions where sound may be trapped between the
surface and bottom), this effect does not begin at the source. Rather,
spreading is typically more or less spherical from the source out to
some distance, and then may transition to cylindrical (Richardson et
al., 1995). Further, for these types of surveys, NMFS has determined
that spherical spreading is a reasonable assumption even in relatively
shallow waters, as the reflected energy from the seafloor will be much
weaker than the more dominant, direct path energy. This is a result of
the typically high-frequency and often downward directed nature of most
HRG sources. Similar arguments, related to the validity of spherical
spreading in shallow water for some HRG sources, have been made in
literature (Ruppel et al., 2022), and NMFS has relied on this approach
for past ITAs with similar equipment, locations, and depths. NMFS' User
Spreadsheet tool assumes a ``safe distance'' methodology for mobile
sources where propagation loss is spherical spreading (20LogR) (<a href="https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null">https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null</a>), and NMFS calculator tool for
estimating isopleths to Level B harassment thresholds also incorporates
the use of spherical spreading. NMFS has determined that spherical
spreading is the most appropriate form of propagation loss for these
surveys and represents the best scientific information available.
Comment 7: Commenter(s) stated that auditory injury can occur below
the PTS threshold and could occur below the TTS threshold. Further,
that noise levels that did not manifest in PTS soon after an exposure
event could cause irreversible neural damage in mammals after repeated
or cumulative exposure. They also stated that the threshold for tissue
injury has been found to occur at lower threshold than the threshold
for TTS onset (Houser, 2021). NMFS' nearly singular focus on PTS
distance (distance from activity at which partial or full permanent
deafness will be induced in the whale) as the only indicator of
``take'' (premature death or reproductive failure affecting the
population) is not reasonable. NMFS has no empirically derived direct
measure of thresholds for PTS harm, but rather PTS is modeled from
(limited) TTS data. NMFS is inappropriately defining ``harm'' to low-
Frequency baleen whales as NMFS does not have any empirically-
determined benchmark for what is the injury-causing sound pressure
level (SPL) against which to measure the proposed activities.
Response: NMFS's TTS thresholds represent an onset of noise-induced
hearing loss (i.e., 6 dB threshold shift) and are considered the
minimum threshold shift clearly larger than any day-to-day or session-
to-session variation in a subject's normal hearing ability (Schlundt et
al., 2000; Finneran et al., 2000; Finneran et al., 2002). There have
been no indications that in marine mammals TTS occurs below our current
thresholds. Furthermore, as Houser 2021 indicates ``There are
relatively few studies demonstrating that TTS can be associated with
the destruction of tissue. To date, relevant studies have only been
performed in terrestrial laboratory animals.'' Studies on terrestrial
mammals indicating neuropathy from noise exposure are associated with
threshold shifts of 40 to 50 dB. Finally, PTS is defined as a threshold
shift that does not fully recover back to baseline levels. It should
not be assumed that an animal with PTS is deaf.
[[Page 52232]]
As stated in the proposed rule and reiterated here, there are no
PTS data available for cetaceans and only one instance of PTS being
induced in older harbor seals (Reichmuth et al., 2019). However,
available TTS data (of mid-frequency hearing specialists exposed to
mid- or high-frequency sounds (Southall et al., 2007; NMFS, 2018;
Southall et al., 2019)) suggest that most threshold shifts occur in the
frequency range of the source up to one octave higher than the source.
We would anticipate a similar frequency range affected for PTS.
Further, no more than a small degree of PTS is expected to be
associated with any of the incurred Level A harassment, given it is
unlikely that animals would stay in the close vicinity of a source for
a duration long enough to produce more than a small degree of PTS. More
information on PTS and TTS-PTS shift can be found in the ``Negligible
Impact Analysis and Determination'' and the ``Potential Effects of
Underwater Sound on Marine Mammals'' sections in the proposed rule.
Furthermore, NMFS also relies on our behavioral harassment thresholds
to assess potential effects occurring below levels associated with PTS
and TTS. For information on the 160 dB threshold (onset of Level B
behavioral harassment), please see our response to Comment 3. For more
information related to PTS, please see our response to Comment 5.
Mitigation
Comment 8: Commenter(s) requested NMFS add to or modify the vessel
strike avoidance mitigation measures contained within the proposed
rule. Recommendations included ``strengthening vessel speed
restrictions'', and if weather or other conditions limit the range of
observation, shutdown zones (including for transiting vessels) will be
initiated keeping 500 meters (m) away from North Atlantic right whale.
A commenter also incorrectly claimed that vessel speed restrictions are
not fully mandated or enforced for offshore wind vessels.
Response: NMFS acknowledges that vessel strikes pose a risk to all
large whales, including North Atlantic right whales and the proposed
rule and this final rule require multiple mitigation measures to effect
the least practicable adverse impact from vessels on marine mammals.
These measures are more restrictive than other industrial, commercial,
military, and recreational vessels. All transiting vessels (regardless
of speed or size) are required to have a dedicated visual observer
watching for marine mammals. In the event a marine mammal is observed
under certain circumstances, the vessel must slow to 10 kn or less or,
if within separation zones (which are encoded in regulation (62 FR
6729, March 17, 1997) or follow marine mammal viewing guidelines), turn
away from and slow engines to neutral. In any SMA, DMA, Slow Zone (the
latter two of which are currently voluntary for other vessels),
Avangrid must operate vessels at 10 kn or less. Further, between
November 1 and April 30, all vessels, regardless of size, in the
specified geographical region must operate at 10 kn or less (11.5 mph).
NMFS has determined it is impracticable for all vessels to travel 10 kn
or less at all times and is not necessary to achieve the least
practicable adverse impact given the mitigation discussed above. As
described above, in many cases, there are no alternatives to the 10 kn
or less speed restriction. However, NMFS has determined that when
whales are less likely to be in the area and visual and acoustic
monitoring is conducted, Avangrid vessels could travel at over 10 kn.
NMFS has determined that the monitoring required, including both direct
marine mammal monitoring and situational awareness monitoring and
reporting, are sufficient to allow Avangrid vessels to travel at speeds
greater than 10 kn when vessel strike risk is lowest when not subjected
to the previously described restrictions.
In this final rule, NMFS is requiring that all vessels associated
with Avangrid's activities must be equipped with a properly installed,
operational Automatic Identification System (AIS) device and Avangrid
must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS
Office of Protected Resources, thus facilitating monitoring of vessel
speeds. In addition, NMFS maintains an Enforcement Hotline for members
of the public to report violations of vessel speed restrictions. NMFS
is not requiring PSOs to be onboard every transiting vessel as it is
impracticable due to potential limited space on the vessels. However,
as described in the proposed rule and carried forward in this final
rule, Avangrid must have dedicated visual observers onboard all vessels
with no other concurrent duties. The dedicated visual observer may be a
PSO or a trained crew member.
Avangrid provided information pertaining to the types and number of
vessels necessary to construct the project. They are also required to
submit a Marine Mammal Vessel Strike Avoidance Plan, which must
include, but is not limited to, more detail on ports used and means by
which they would abide by the extensive measures outlined here. While
NMFS acknowledges that vessel strikes can result in injury or
mortality, we have analyzed the potential for vessel strike resulting
from Avangrid's activity and, in consideration of the required
mitigation measures specific to vessel strike avoidance included in the
final rule NMFS has determined that the potential for vessel strike is
so low as to be discountable and thus, no vessel strikes are expected
or authorized to occur. These measures also ensure the least
practicable adverse impact on species or stocks and their habitat.
Comment 9: Commenter(s) asserted an independent review of
mitigation measures should be required due to limitations associated
with visual monitoring and PAM.
Response: The MMPA does not require an independent review of
mitigation measures. In contrast, it does require notice and
opportunity for public comment (16 U.S.C. 1371(a)(5)(A)(i)). The public
comment period is a means by which the public (i.e., independent
reviewers) are able to provide NMFS with mitigation measure
recommendations supported by scientific evidence that NMFS takes into
consideration when finalizing the rulemaking.
Comment 10: Commenter(s) recommended clarification should be
included in the LOA that explicitly states if a shutdown would be
initiated as a result of weather or other conditions that limit the
range of observation.
Response: The comment refers to a 500-m shutdown zone for North
Atlantic right whales; therefore, NMFS assumes the recommendation is
referring to HRG surveys, a low impact activity. As described in the
proposed rule and this final rule, PSOs are required to monitor the
shutdown zone during operations. During periods of low visibility,
alternative monitoring technology (i.e., infrared or thermal cameras)
must be used to monitor these zones. This final rule clarifies that
when the shutdown zones become obscured for brief periods (no more than
30 minutes) due to inclement weather, survey operations may continue
(i.e., no shutdown is required) so long as no marine mammals have been
detected. Further, the shutdown requirement is waived for certain
genera of small delphids. As noted above, take of marine mammals from
HRG surveys is limited overall, take by Level B harassment only is
expected to occur only within a small area in close proximity to the
vessel, and no Level A harassment is expected to result from exposure
to the surveys even in the
[[Page 52233]]
absence of mitigation. There is a low likelihood that short periods of
obscured visibility might potentially coincide with a marine mammal
entering the shutdown zone, and a shutdown not occurring. While such an
event may result in a higher level exposure than would occur if the
shutdown happened, such an exposure would still not be expected to
result in a Level A take and would be brief and not change the number
of takes or our evaluation of their likely effects, which again, are
expected to be comparatively minor. Additionally, the frequent delay
and/or cessation of HRG surveys creates operational challenges and
impracticalities for applicants. Altogether, the required measures
affect the least practicable adverse impact on the affected species.
Comment 11: Commenter(s) recommended that NMFS require mitigation
measures that meet the least practicable adverse impact standard (e.g.,
impacts of underwater noise be minimized to the fullest extent
feasible) coupled with a robust monitoring and reporting program to
ensure compliance.
Response: As described in both the proposed rule and this final
rule, NMFS has included requirements for mitigation measures that
effect the least practicable adverse impact on marine mammal species or
stocks and their habitat, as required under the MMPA (16 U.S.C.
1371(a)(5)(A)(i)(II). As they relate to underwater noise, the
mitigation measures include sound attenuation methods that successfully
(evidenced by required sound field verification measurements) reduce
real-world noise levels produced by impact pile driving, vibratory pile
driving, and drilling of foundation installation to, at a minimum, the
levels modeled assuming 10 dB of attenuation. NMFS clarifies that,
because no unattenuated piles may be driven, there is no way to confirm
a 10-dB reduction; rather, in situ SFV measurements will be conducted
to ensure that sound levels are at or below those modeled assuming a
10-dB reduction. In addition to the SFV requirements in the proposed
rule, consistent with the Biological Opinion (BiOp), we added to this
final rule the requirement that Avangrid 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 (i.e., ``Thorough SFV''), as required
in the proposed rule, is not carried out. NMFS is requiring that these
SFV results must be included in the weekly reports. Any indications
that distances to the Level A harassment and Level B harassment
thresholds for whales are exceeded must be addressed by Avangrid,
including an explanation of factors that contributed to the exceedance
and corrective actions that were taken to avoid exceedance on
subsequent piles.
NMFS has required numerous monitoring and reporting requirements
which result in a robust compliance program.
Effects Assessment
Comment 12: Several commenters disagreed with NMFS' negligible
impact determination, particularly for North Atlantic right whale.
These comments included assertions that NMFS did not consider the
imperiled population status of North Atlantic right whale; NMFS did not
evaluate the cumulative effects of all projects (such as offshore wind
construction and operational noise, underwater noise, and site
characterization surveys and baseline background levels of ambient
noise which result in stress); NMFS did not meaningfully examine the
effects of the loss of communication space on marine mammals and,
further, seems to misapprehend the spatial and temporal scope of the
effects (e.g., masking, disruption to courtship and mating behaviors,
foraging/feeding, and TTS, etc.); that NMFS did not adequately assess
the impact of behavioral disruption on feeding and similar behaviors
resulting in decreased body condition nor the asserted increased risk
of mortality from TTS; that any effect to the small number of breeding
females can adversely affect fecundity and imperil the species; that
NMFS has not used the best available science when reaching its NID by
using the 160-dB threshold; and that NMFS did not consider whether
abandonment of habitat that was designated with the express purpose of
preventing vessel strikes would push the species further into a vessel
traffic corridor, thereby elevating the risk to the species nor
evaluated all the risks to North Atlantic right whale by habitat
displacements as sublethal take has can a measurable effect due to the
small population.
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 geographical 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 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). 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 a LOA for construction activities planned
by Avangrid, 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 Greater Atlantic Regional Field
Office (GARFO). The BiOp for the Project determined that NMFS'
promulgation of the rulemaking and issuance of an LOA for construction
activities, individually and cumulatively, are likely to adversely
affect, but not jeopardize, listed marine mammals.
NMFS disagrees that our negligible impact determination is flawed
or not supported. NMFS fully disclosed the imperiled status of North
Atlantic right whales in the Description of Marine
[[Page 52234]]
Mammals in the Area of Specified Activity section of the proposed rule.
The proposed rule, as well as this final rule by reference, fully
explains the impacts to North Atlantic right whales is expected to be
limited to low-level behavioral harassment (e.g., temporary avoidance
or cessation of foraging). The proposed rule also described the
Potential effects of behavioral disturbance on marine mammal fitness
and that, based on the best available science, behavioral disturbance
resulting from the specified activities is not expected to impact
individual animals' health or have effects on individual animals'
survival or reproduction, thus no detrimental impacts at the population
level are anticipated. The commenters do not provide scientific
evidence that suggests otherwise. Specifically, the commenters did not
provide evidence that any effect to a breeding female would result in
reduced fecundity.
Commenters suggested NMFS did not meaningfully evaluate loss of
communication space; however, the Effects on Marine Mammals and Their
Habitat in the proposed rule contained an analysis on the impacts of
masking both in general and from the specified activities. NMFS also
disagrees that TTS would result in increased risk of mortality. TTS was
fully described in the Potential Effects of Underwater Sound on Marine
Mammals and Potential Effects of Disturbance on Marine Mammal Fitness
in the proposed rule. NMFS does not anticipate nor authorize serious
injury or mortality of any marine mammal species for the specified
activities.
NMFS acknowledges that whales may temporarily avoid the area where
the specified activities occur. However, NMFS does not anticipate,
based on the best available science, that whales will abandon their
habitat, as suggested by a commenter, or be displaced in a manner that
would result in a higher risk of vessel strike, and the commenter does
not provide evidence that either of these effects should be a
reasonably anticipated outcome of the specified activity. The primary
activity that is anticipated to result in temporary avoidance of the
otherwise used habitat is foundation installation pile driving and
drilling. Not only would this activity be limited to times of year when
North Atlantic right whale presence is low, pile driving and drilling
would be intermittent, and only occur for a limited time over the
course of 2 or 3 years (depending on schedule type). Together, these
factors further reduce the likelihood that this species would be in
close enough proximity to the activity to engage in avoidance behavior
to the degree it would move into an area of risk (which would be closer
to shore) that it could be struck by another vessel.
For NMFS' response on the use of the 160-dB threshold, please see
our response to Comment 3.
Comment 13: Commenter(s) questioned the validity of NMFS small
numbers analysis on the basis that the numbers do not account for the
cumulative take numbers from previous, ongoing, or potential projects.
Response: 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). Neither the MMPA nor our implementing regulations require the
small numbers analysis to consider take from previous, ongoing, or
potential projects.
Comment 14: Commenters suggested NMFS failed to account for the
cumulative (or additive) impacts on marine mammal species in the
analysis and that NMFS should evaluate the cumulative impacts of
ongoing and future OSW projects rather than evaluating projects
individually, including that NMFS must consider the total number of
takes proposed to be authorized across all wind projects. They
suggested 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, including North Atlantic
right whales, and ensure that the cumulative effects are not excessive
before issuing a LOA.
Response: Neither the MMPA nor NMFS' implementing regulations call
for consideration of the take resulting from other specified activities
in the negligible impact analysis. The preamble to NMFS' implementing
regulations (54 FR 40338, September 29, 1989) states, in response to
comments, that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline (e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors). The 1989 final rule for the MMPA implementing regulations
also addressed public comments regarding cumulative effects from
future, unrelated activities. There, NMFS stated that such effects are
not considered in making findings under section 101(a)(5) concerning
negligible impact. In this case, this ITR, as well as other ITRs
currently in effect or proposed within the specified geographical
region are appropriately considered an unrelated activity relative to
the others. The ITRs are unrelated in the sense that they are discrete
actions under section 101(a)(5)(A) issued to discrete applicants.
Section 101(a)(5)(A) of the MMPA requires NMFS to make a determination
that the take incidental to a ``specified activity'' will have a
negligible impact on the affected species or stocks of marine mammals.
NMFS' implementing regulations require applicants to include in
their request a detailed description of the specified activity or class
of activities that can be expected to result in incidental taking of
marine mammals, 50 CFR 216.104(a)(1). Thus, the ``specified activity''
for which incidental take coverage is being sought under section
101(a)(5)(A) is generally defined and described by the applicant. Here,
Avangrid was the applicant for the ITR, and we are responding to the
specified activity as described in that application and making the
necessary findings on that basis.
Through the response to public comments in the 1989 implementing
regulations (54 FR 40338, September 29, 1989), NMFS also indicated (1)
that we would consider cumulative effects that are reasonably
foreseeable when preparing a NEPA analysis and (2) that reasonably
foreseeable cumulative effects would also be considered under section 7
of the ESA for listed species, as appropriate. Accordingly, NMFS has
adopted an EIS written by BOEM and reviewed by NMFS as part of inter-
agency coordination. This EIS addresses cumulative impacts related to
the Project and substantially similar activities in similar locations.
Cumulative impacts regarding the promulgation of the regulations and
issuance of a LOA for construction activities, such as those planned by
Avangrid, have been adequately addressed under NEPA in the adopted EIS
that supports NMFS' determination that this action has been
appropriately analyzed under NEPA. Separately, the cumulative effects
of the Project on ESA-listed species, including North Atlantic right
whales, was analyzed under section 7 of the ESA when NMFS engaged in
formal inter-agency
[[Page 52235]]
consultation with GARFO. The BiOp for the Project determined that NMFS'
promulgation of the rulemaking and issuance of a LOA for construction
activities associated with leasing, individually and cumulatively, are
likely to adversely affect, but not jeopardize, listed marine mammals.
Comment 15: Commenter(s) claimed the request for an ITA should be
denied alleging the specified activities kill marine mammals and some
commenters suggested that the ongoing whale UMEs, including the whale
deaths occurring in the winter of 2022-2023, are linked with ongoing
offshore wind survey work (i.e., HRG surveys). One commenter claimed
the burden of proof is on NMFS to prove, with evidence, that there is
no association between HRG surveys and whale injuries, including
``rectified diffusion'', deaths or otherwise assume that offshore wind
activity has contributed to these deaths. A commenter also asserted
that the activities covered by the ITR and associated LOA are
reasonably likely to result in Level A take of North Atlantic right
whales that are not covered by the authorization's terms.
Response: Neither the proposed rule or this final rule allow
mortality or serious injury of marine mammals to be authorized. The
best available science indicates that the anticipated impacts from the
specified activities potentially include avoidance, cessation of
foraging or communication, TTS and PTS, stress, masking, etc. (as
described in the Effects of the Specified Activities on Marine Mammals
and their Habitat section in the proposed rule). NMFS emphasizes that
there is no evidence that noise resulting from offshore wind
development-related specified activities would cause marine mammal
strandings, and there is no evidence linking recent large whale
mortalities and currently ongoing offshore wind activities. The
commenters offer no such evidence or other scientific information to
substantiate their claim. This point has been well supported by other
agencies, including BOEM and the Marine Mammal Commission (Marine
Mammal Commission Newsletter, Spring 2023).
There is an ongoing UME for humpback whales along the Atlantic
coast from Maine to Florida, which includes animals stranded since
2016, and we provide further information on the humpback UME in the
humpback whale subsection in the Description of Marine Mammals in the
Specified Geographical Region section of this final rule. Partial or
full necropsy examinations were conducted on approximately half of the
whales that recently stranded along the U.S. east coast. Necropsies
were not conducted on other carcasses because they were too decomposed,
not brought to land, or stranded on protected lands (e.g., national and
state parks) with limited or no access. Of the whales examined (roughly
90), about 40 percent had evidence of human interaction, either ship
strike or entanglement. Vessel strikes and entanglement in fishing gear
are the greatest human threats to large whales. The remaining 50
necropsied whales either had an undetermined cause of death (due to a
limited examination or decomposition of the carcass) or had other
causes of death including parasite-caused organ damage and starvation.
The best available science indicates that only Level B harassment, or
disruption of behavioral patterns (e.g., avoidance), may occur as a
result of the Project's HRG surveys. NMFS emphasizes that there is no
credible scientific evidence available suggesting that mortality and/or
serious injury is a potential outcome of the planned survey activity.
The proposed rule and this final rule state that no take of North
Atlantic right whales by Level A harassment, mortality, or serious
injury was requested or proposed for authorization (see the Estimated
Take and Negligible Impact Analysis and Determination sections), and
they are not expected based on the best available science.
One commenter cited literature as evidence that seismic surveys in
the mid to low frequency range can injure whales, can cause
decompression sickness (the bends) and can cause rectified diffusion.
The Fernandez (2005) paper cited refers to pathology results from
necropsies conducted on beaked whales involved in a mass stranding
event in the Canary Islands following high intensity military training
exercises involving numerous surface warships and several submarines
and mid-frequency tactical sonar activities. NMFS acknowledges the
effects of these activities described by the commenter are known;
however, the activities in that paper are not analogous to HRG surveys
that would be conducted by Avangrid to construct the Project, and the
information presented by the commenter is not applicable due to many
factors (e.g., pile driving is stationary, versus the sound sources
cited, and HRG surveys utilize a much lower source level).
Comment 16: Commenter(s) recommended NMFS consider the impacts of
structure presence and operations, including those from operational
turbine noise on marine mammals as well as ocean mixing and vibrations
on phytoplankton, zooplankton, and the food chain. Commenter(s)
suggested that NMFS did not evaluate the long-term operational and
maintenance impacts of the project on marine mammals and ignored the
best available science demonstrating behavioral impacts to marine
mammals from operational turbines; therefore, NMFS' small numbers and
negligible impact findings are arbitrary and capricious.
Response: In the proposed rule, NMFS considered the impacts to
marine mammals from operational noise and to their habitat, including
prey, from the presence of structures and operations based on the best
available science. In this final rule, NMFS has supplemented that
analysis with new scientific information that has become available
regarding these issues since publishing the proposed rule. This new
information does not change our findings. The commenter did not provide
scientific evidence that suggests the analysis within the proposed rule
was unsupported. NMFS has fully evaluated the potential impacts of both
issuing this final rule on marine mammals over the five year effective
period of this rulemaking and the potential impacts from long-term
operations via the BiOp. We refer the reader to the Effects of the
Specified Activities on Marine Mammals and Their Habitat section and
the Negligible Impact Determination section in the proposed and this
final rule for further details.
Other
Comment 17: Commenter(s) requested that NMFS consideration of LOAs
for offshore wind developers be applied equitably across industries
(e.g., fishing industry) and that there be a clear threshold for OSW-
related takes regionally and across project phases. In addition, the
OSW-industry must be held accountable for incidental takes from
construction and operations separately from the take authorizations for
managed commercial fish stocks. Commenters) also asserted the OSW
industry must be held accountable for their impacts on marine mammals
as other industries are (e.g., seasonal closures on fisheries, marine
mammal entanglements).
Response: NMFS considers all ITA requests equally, all takes and
regulatory measures are project-specific. 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
[[Page 52236]]
authorized is sufficient based on the description of the Project.
Therefore, takes authorized, being specific to a project, are managed
separately than takes associated with any other project or industry.
Avangrid would be accountable to the measures described in their ITA
that were set to achieve ``the least practicable impact on such species
or stock and its habitat''. These include mitigation, monitoring, and
reporting measures (e.g., seasonal closures, gear-specific mitigation
measures to avoid entanglements, etc.).
Avangrid would be required to submit frequent reports which would
identify the number of takes applied to the Project. In the unexpected
event that Avangrid 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 fisheries. Neither the MMPA nor our implementing
regulations require NMFS to analyze impacts to other industries (e.g.,
fisheries) from issuance of an ITA pursuant to section 101(a)(5)(A). We
note that the New England Wind Final EIS assesses the impacts of both
BOEM and NMFS' actions (approving Avangrid's activities and authorizing
the associated take of marine mammals, respectively) on the human
environment, including to fisheries, and NMFS considered the analysis,
as appropriate, in the final decisions under the MMPA. 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 18: Commenter(s) questioned what will happen if incidental
take is exceeded, and the implications of it.
Response: In the unlikely scenario that Avangrid exceeds their
authorized take levels, any further take would be unauthorized and
therefore, prohibited under the MMPA. Avangrid could request additional
incidental take of marine mammals from their specified activities. This
would require NMFS to reanalyze its small numbers and negligible impact
determinations and may require reinitiation of the BiOp and
supplemental NEPA analysis depending on the specific facts.
Comment 19: Commenter(s) expressed concern about NMFS' ability to
conduct marine mammal assessment aerial surveys would be detrimentally
impacted as a result of offshore wind structures, thus impacting NMFS'
ability to continue using current methods to fulfill its mission of
precisely and accurately assessing and managing protected species.
Response: NMFS and BOEM have collaborated to establish the
``Federal Survey Mitigation Strategy for the Northeast U.S. Region''
(Hare et al., 2022). This interagency effort is intended to guide the
development and implementation of a program to mitigate impacts of wind
energy development on fisheries surveys. For more information on this
effort, please see <a href="https://repository.library.noaa.gov/view/noaa/47925">https://repository.library.noaa.gov/view/noaa/47925</a>.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
(88 FR 37606, June 8, 2023), NMFS has made changes, where appropriate,
in response to public comments and new information provided by Avangrid
that are reflected in the regulatory text and preamble text of this
final rule. Specifically, as described above, Avangrid refined and
updated their acoustic modeling for foundation installation activities
since the proposed rule which resulted in changes to the exposure
estimates and requested take. 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
The information found in the preamble of the proposed rule was
based on the best available information at the time of publication.
Since publication of the Proposed Rule, new information has become
available, which has been incorporated into this final rule as
discussed below.
The following change was made throughout the final rule:
At the request of Park City Wind and consent of Avangrid,
references to Park City Wind were replaced with Avangrid and lease
number OCS-A 0561 was added, where appropriate, since lease area OCS-A-
0534 was segregated.
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 ease of reference.
The following changes were made to the Summary, Summary of Request
and Description of the Specified Activity sections of the preamble to
this final rule:
We have included OCS-A 0561 as Avangrid segregated the OCS-A 0534
lease area in to two parts: OCS-A 0534 encompasses phase 1 and 0561
encompasses phase 2.
The following changes are reflected in the Description of Marine
Mammals in the Specified Geographical Region section of the preamble to
this final rule:
NMFS clarified the boundaries of the specified geographical region
such that the Mid-Atlantic Bight is defined as from Cape Hatteras,
North Carolina to Cape Cod, Massachusetts and extending into the
western Atlantic to the 100-m isobath.
Given the release of NMFS' draft 2023 stock assessment reports
(SARs; 89 FR 5495, January 29, 2024), we have updated the population
estimate used in the proposed rule (Hayes et al., 2023) for the North
Atlantic right whale (Eubalaena glacialis) from 338 to 340 and the
total mortality/serious injury (M/SI) amount from 8.1 to 27.2. This
increase is due to the inclusion of undetected M/SI (whereas 8.1
accounted only for detected M/SI). As stated in the 2023 draft SARs,
the use of the refined methods of Pace et al. (2021), the estimated
annual rate of total mortality of adults and juveniles for the period
2016-2020 was 27.2, which is over 3 times larger than the 8.1 total
derived from reported mortality and serious injury for the same period.
We have also made updates to the UME summaries for North Atlantic
right
[[Page 52237]]
whales, humpback whales, minke whales, and phocid seals (pinnipeds).
The following changes are reflected in the Estimated Take,
Mitigation, and Monitoring and Reporting sections the preamble to this
final rule:
NMFS received a number of modeling and density updates from the
applicant since the proposed rule, which resulted in associated changes
in the size of harassment zones, take numbers, and mitigation zones. As
a result of the updated and refined modeling, we have updated the
methods by which distances to NMFS harassment thresholds were
estimated, the distances to NMFS harassment thresholds, the exposure
estimates based on the updated acoustic modeling, and requested and
allowable take amounts (which, generally speaking, went down as a
result of these modeling refinements). NMFS notes that there were no
changes to the number of foundations, construction schedule, or the
assumption of 10 dB of noise attenuation as described in the proposed
rule. The modeling and density changes are briefly listed here and
described in more detail below:
<bullet> Upgraded, more refined take estimation modeling of
vibratory pile driving, to reflect that which was presented in the
proposed rule for impact pile driving (with animats). The revised
modeling for vibratory setting of piles (followed by impact pile
driving) replaced the practical spreading loss approach with acoustic
modeling; and exposures for impact pile driving and vibratory setting
were updated using animal movement modeling. This resulted in a notable
reduction in exposure ranges and takes by Level B harassment.
<bullet> Upgraded sound source propagation modeling of the impact
pile driving source, which resulted in little change in take or
mitigation zones. The acoustic modeling was upgraded for impact piling
as the previous energy-based parabolic equation model used to compute
the near-field equivalent source before long range propagation was
revised after the proposed rule using JASCO's Full-Wave PE RAM model
(FWRAM) to compute the near-field equivalent source before the long-
range propagation was computed (also using FWRAM).
<bullet> Upgraded sound source propagation modeling of the drilling
activity (in lieu of 15 logR spreading), which resulted in some minor
reductions in take. The acoustic updated modeling completed for
drilling replaced the previous practical spreading loss approach;
exposures were calculated by multiplying the zone of influence
(ensonified area) by density.
<bullet> Improvements to the apportionment of species takes within
species guilds (pilot whales, seals). Updates were made by the
applicant to guilded species densities for vibratory setting followed
by impact pile driving, impact pile driving alone, and drilling.
<bullet> An update to the model assumptions for high frequency
species (harbor porpoise). This change reduced the exposure ranges and,
subsequently, amount of takes by harassment.
Following the proposed rule, new modeling was performed for
vibratory pile driving which replaced the previous practical spreading
loss approach that defined the distance to Level B harassment as 50
kilometer (km). For the final rule, acoustic modeling was completed for
vibratory setting of piles followed by impact driving, and exposures
were modeled using animal movement modeling (animat), mirroring the
method described in the proposed rule for impact pile driving. In
general, the animat modeling resulted in the exposure distance to Level
B harassment per species decreasing (most species' distance to the
Level B harassment threshold were around 25 km) and, as marine mammals
densities were applied depending on the exposure range using the 95th
percentile exposure range (ER<INF>95</INF><not-eq>), exposure estimates
and takes decreased. Instead of using a broad 50-km distance for
estimating exposure and marine mammal density, such as was done in the
proposed rule, the exposure estimates and take applied the marine
mammal densities at 10 km, 25 km, or 50 km, using the using the next
highest density match to the exposure range. For example, if the
ER<INF>95</INF><not-eq> was 8.5 km, the 10 km perimeter would be used.
These revisions to the more refined modeling methods of estimating take
for vibratory pile driving resulted in notable reductions in the Level
B take estimates. The primary model refinement that resulted in the
majority of the reduction in exposures and take in this final rule was
from this change in vibratory pile driving modeling.
Following the proposed rule, the modeling methodology for impact
pile driving was refined. In the prior modeling for impact pile
driving, an energy-based parabolic equation (PE) model (JASCO's MONM)
was used to compute the near-field equivalent source before long range
propagation. For the final rule, JASCO's Full-Wave PE RAM model (FWRAM)
was used to compute the near-field equivalent source before the long-
range propagation was computed (also using FWRAM). FWRAM is an
improvement because it calculates full synthetic pressure waveforms (in
the time domain), as opposed to summed energy independent of time. Like
MONM, FWRAM is range dependent for range-varying marine acoustic
environments and takes environmental inputs (bathymetry, water sound
speed profile, and seabed geoacoustic profile) into account. FWRAM
computes pressure waveforms via Fourier synthesis of the modeled
acoustic transfer function in closely spaced frequency bands, and
employs the array starter method to accurately model sound propagation
from a spatially distributed source (MacGillivray and Chapman 2012).
Ultimately, little difference was observed between the prior sound
fields with near-field equivalents computed using MONM versus the
current modeling with FWRAM, though FWRAM is expected to be a more
accurate model.
As part of the above modeling updates to impact pile driving and
vibratory pile driving followed by impact pile driving (MONM to FWRAM
modeling), changes resulted in the exposure ranges for high-frequency
cetaceans (harbor porpoise). PE based models such as MONM and FWRAM are
particularly well suited for modeling the propagation of low frequency
sounds, such as impact pile driving, but are limited in terms of the
total and upper frequency range they can accurately and efficiently
model (Etter, 2012). For this reason, propagation must be modeled to
some upper cut-off frequency. Beyond this frequency, a linear
extrapolation (or roll-off) can be assumed in order to extend the
results to higher frequencies. The slope of this roll-off is based on
measured pile driving data and chosen to be conservative. Selection of
a proper upper cut-off frequency depends on available computational
resources, as well as the specific implementation of the PE method of a
particular model (Laws, 2013). Because of this, and inherent
differences of the two modeling methodologies, the cut-off used in the
original modeling for the proposed rule was 300 Hz, while the cut-off
in the revised model is 1,000 Hz. Therefore, the new modeling
represents a more accurate methodology for frequencies between 300 and
1,000 Hz, as full propagation modeling is performed in this frequency
range, rather than an approximate extrapolation (or roll-off). Both
modeling approaches produce the same results at low frequencies where
pile driving sound is dominant, but since the conservatively chosen
roll-off started at
[[Page 52238]]
300 Hz, there is more higher frequency energy in the original model
than in the revised model. For this reason, the two approaches produce
similar results for low-frequency cetaceans, but the revised modeling
results in substantially different exposure ranges for high-frequency
cetaceans. Following the proposed rule, new modeling was performed for
drilling which replaced the previous practical spreading loss approach
that defined the distance to Level B harassment as 16.6 km. For the
final rule, acoustic modeling was completed for drilling and exposures
were calculated by multiplying the zone of influence (ensonified area)
by density. Rather than using practical spreading, sound propagation is
modeled using a combination of an energy-based parabolic equation (PE)
model (JASCO's MONM) at frequencies up to 1 kHz, and the BELLHOP ray
tracing model (Porter and Liu 1994) from 1 to 25 kHz. BELLHOP is a
widely used Gaussian beam ray-trace propagation model, which
incorporates bathymetry, sound speed profiles, and a simplified
representation of the sea bottom; as sub-bottom layers have a
negligible influence on the propagation of acoustic waves with
frequencies above 1 kHz. Sound attenuation due to seawater absorption
was included, which can be important for frequencies greater than 5
kHz. The drill was approximated as a point source located at mid-water
depth. Further details regarding MONM are provided below, in the
context of pile driving. The density perimeter was determined using the
longest 10-dB attenuated 95th percentile acoustic range to the
behavioral threshold (R<INF>95</INF><not-eq>) for all locations,
rounded up to the nearest 5 km, and then applied around the entire
lease area (i.e., 7.1 km rounded up to 10 km). This new approach is
expected to more accurately capture the spatial extent of the sound
fields, as it includes an updated source level (191.6 dB) as well as
more sophisticated propagation modeling which accounts for bathymetry,
sound speed profiles, interaction with the seabed, and seawater
absorption. This refinement in the drilling model also resulted in some
minor reductions in exposure and take. Further details can be found in
the Modeling and Take Estimates section.
In order to better reflect available species data specific to the
area, we have also updated the methodology for estimating take for
species combined into one guild in the Roberts et al. density models
(harbor seals, grays seals, long-finned pilot whales, and short-finned
pilot whales), by using local abundance data to define how the takes
within a guild should be apportioned by species or stock as opposed to
using SAR abundance data to define how takes should be apportioned with
a guild, and subsequently, updated take by Level B harassment
authorized for these species.
As a result of the updated modeling, NMFS has changed (some
increases, some decreases) the minimum visibility zone, clearance
zones, and shutdown zones for all species during foundation
installation activities. The clearance and shutdown zones sizes for
each foundation type (i.e., monopile, jacket) are now based on the
largest distance to Level A harassment threshold of all the foundation
installation methods (i.e., impact pile driving, vibratory pile
driving, drilling), with a 20 percent increase to the clearance zone.
Avangrid requested, and NMFS has carried forward, zone sizes by the
largest foundation type (i.e., monopile, jacket) and hammer size.
Lastly, Avangrid did not request different zone sizes based on the 12-m
monopile versus the 13-m monopile in their January 2024 Application
Update as they did prior to the proposed rule. Instead, Avangrid
proposed zone sizes based on the 13-m monopile at 6,000 kJ, though this
foundation installation scenario remains unlikely though possible. NMFS
has therefore set the zone sizes as the largest across all foundation
and hammer sizes for each foundation type (monopile, jacket),
regardless if Avangrid choses to install a smaller pile or use a
smaller hammer during real-world foundation installation. However,
Avangrid may request modifications through adaptive management should
sound field verification (SFV) demonstrate noise levels are lower than
expected.
As a result of the new modeling, the monopile visual (PSO) and
acoustic (PAM) clearance zone sizes for other baleen whales and sperm
whale has decreased from 4,700 m for all pile driving and drilling to
3,300 m (all installation methods); the pile driving and drilling
shutdown zones has similarly decreased from 4,700 m (12-m) and 5,500 m
(13-m) to 2,700 m (all installation methods). The refined modeling for
harbor porpoise decreased the zone sizes from 2,300 m (monopile pile
driving and drilling) to 250 m, as the maximum injury
(ER<INF>95</INF><not-eq>) for harbor porpoise is 240 m. The zone sizes
for seals decreased from 1,100 m (monopile impact pile driving) and
1,400 m (monopile vibratory pile driving or drilling) to 200 m (all
monopiles and installation methods) as the maximum injury
(ER<INF>95</INF><not-eq>) for seals was 0 m. The clearance and shutdown
zones for small whales and dolphins remain unchanged (200 m) as the
maximum injury (ER<INF>95</INF><not-eq>) is 0 m. For those species that
modeling resulted in less than 200 m Level A harassment distance to
threshold, NMFS has set the minimum clearance and shutdown zone size as
200 m to ensure the zones are outside the monopile's noise attenuation
system (NAS). This was also the approach in the proposed rule.
Based on the model changes above, the updated jacket (all pin
piles) visual (PSO) and acoustic (PAM) clearance zone sizes for other
baleen whales and sperm whale has increased from 4,500 m for impact
pile driving and 4,700 m for vibratory pile driving and drilling to
4,900 m (all installation methods); the pile driving and drilling
shutdown zones has decreased from 4,500 m for impact pile driving and
4,700 m for vibratory pile driving and drilling to 4,100 m (all
installation methods). The refined modeling for harbor porpoise
decreased the zone sizes from 1,800 m (impact pile driving) and 2,300 m
(vibratory pile driving and drilling) to 250 m as the maximum injury
(ER<INF>95</INF><not-eq>) for harbor porpoise is 230 m. The zone sizes
for seals decreased from 1,400 m (all pile driving and drilling) to
1,000 m (clearance) and 800 m (shutdown) for all installation methods
as the maximum injury (ER<INF>95</INF><not-eq>) for seals was 790 m.
The clearance and shutdown zones for small whales and dolphins remain
unchanged (50 m) as the maximum injury (ER<INF>95</INF><not-eq>) was 0
m. For those species that modeling resulted in less than 50 m Level A
harassment distance to threshold, NMFS has set the minimum clearance
and shutdown zone size as 50 m to ensure the zones are outside the
jacket's noise attenuation system (NAS). This was also the approach in
the proposed rule.
NMFS has not changed the North Atlantic right whale shutdown and
clearance zones for visual observations (i.e., any distance), NMFS has
set the acoustic clearance and shutdown zones during foundation
activities for North Atlantic right whale to any acoustic detection
within a 12-km acoustic monitoring zone which were previously set to
5,600 m (monopile impact pile driving), 4,500 m (monopile vibratory
pile driving and drilling), and 4,500 m (jacket pile driving and
drilling). This final rule also clarifies that PAM must be conducted
before, during, and after foundation installation and UXO/MEC
detonation for North Atlantic right whales but the PAM system should be
designed to detect all other marine mammals to the maximum extent
practicable.
[[Page 52239]]
We updated the minimum visibility zone based on the new modeling
from Avangrid (largest ER<INF>95</INF><not-eq> distance to Level A
harassment for low-frequency cetacean, not including fin whale), for
all species during each foundation installation type then rounded for
PSO clarity. As a result of the new modeling, the final rule sets the
minimum visibility zone for monopiles at 2,100 m (humpback whale, 2,070
m), 3,400 m for jacket installation (humpback whale, 3,320 m), and 500
m for HRG (unchanged from the proposed rule). As described in the
preamble of the proposed rule (page 405), NMFS originally set the
minimum visibility zone size based on the North Atlantic right whale
ER<INF>95</INF><not-eq> distance to the Level A harassment threshold,
assuming 10 dB. NMFS recognizes that a footnote in table 35 of the
proposed rule used incorrect terminology stating that the minimum
visibility zone for North Atlantic right whale would be ``any
distance'' which contradicted the earlier stated methodology for
setting the minimum visibility zone and would not be practicable. As a
result of the updated modeling, the minimum visibility zone in this
final rule decreased, however, it is still larger than the updated
North Atlantic right whale ER<INF>95</INF><not-eq> distance to the
Level A harassment threshold, assuming 10 dB. To align with the BiOp,
NMFS has used the largest ER<INF>95</INF><not-eq> distance to Level A
harassment for low-frequency cetacean, not including fin whale, which
uses the distance to Level A harassment for humpback whale which is
greater than the ER<INF>95</INF><not-eq> distance to Level A harassment
for North Atlantic right whale (monopile 2,070 m vs 1,620 m; jacket
3,320 m vs 2,350 m).
We have reduced takes by Level B harassment for Northern bottlenose
whale from 12 to 8 as a result of a typo correction submitted by the
applicant in the January 2024 Application Update. The applicant had
previously not adjusted the total take request for this rare species by
assuming encounters every other year but instead had unintentionally
summed all annual takes at the time of the proposed rule. The takes by
Level B harassment for Northern bottlenose whale in this final rule
have been corrected based on encounters every other year.
NMFS has re-organized and simplified the monitoring and reporting
section to avoid repeating entirely the requirements provided in the
regulatory text. NMFS has renamed the North Atlantic Right Whale Vessel
Strike Avoidance Plan to the Marine Mammal Vessel Strike Avoidance Plan
to more accurately reflect that the plan does not solely apply to North
Atlantic right whales.
In response to commenters' concerns regarding noise attenuation, we
have added a general requirement that Avangrid must lower noise levels
should they exceed those modeled assuming 10 dB of attenuation. 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.
In response to commenters' concerns on vessel activity relating to
the Project, all project vessels must utilize AIS device and must
report all MMSI numbers to NMFS Office of Protected Resources;
This final rule clarifies that the mitigation measure restricting
Project vessels from traveling over 10 kn (5.14 m/s) in the transit
corridor, unless Avangrid conducts real-time acoustic monitoring to
detect large whales (including North Atlantic right whales), applies
only when other speed restrictions are not in place.
For foundation installation, NMFS notes that it is difficult to
specify a reduction in energy for any given hammer because of variation
across drivers and installation conditions. Because other industry
operators have identified that specific soft-start procedures, such as
those included in the proposed rule, may raise concerns regarding
engineering feasibility and practicability, we have removed the
specifics related to the soft-start procedure identified in the
proposed rule (but not the requirement to conduct a soft-start),
allowing for flexibility should the need for adjustments to the
specific procedures arise. However, any alternative protocol would be
as protective as the generic coastal construction soft-start
specifications provided in the proposed rule. The final soft-start
methodology will be developed by Avangrid, in consultation with NMFS,
considering final design details including site-specific soil
properties and other considerations.
To align with the BiOp, NMFS has updated the UXO/MEC detonation
zones to be specific to charge weight. The clearance zones, which are
visually and acoustically monitored, were derived based on an
approximate proportion of the size of the Level B harassment (TTS)
isopleth then rounded for PSO clarity. The modeled distances to NMFS
harassment thresholds have not changed from the UXO/MEC Acoustic
Analysis Report in the application. The clearance zone sizes are
contingent on Avangrid being able to demonstrate that they can identify
charge weights in the field; if they cannot identify the charge weight
sizes in the field then would need to assume the E12 charge weight size
for all detonations and must implement the E12 clearance zone. No
minimum visibility zone is required for UXO/MEC detonation as the
entire visual clearance zone must be clear given the potential for lung
and gastrointestinal tract injury.
We updated the process for obtaining NMFS approval for PSO and PAM
Operators and have clarified education, training, and experience
necessary to obtain NMFS' approval.
To align with the BiOp, we have added a requirement to have at
least three active PSOs on the foundation installation platform (e.g.,
pile driving/drilling vessel) and any dedicated PSO vessel (or
equivalent coverage) rather than two PSOs, as was originally described
in the proposed rule. Addition of this requirement is based on NMFS'
evaluation of PSO coverage abilities for similar projects in the area
(e.g., Sunrise Wind) and has found that three PSOs (each covering 120
degrees) will improve the reliability of detection from the PSO
platforms (e.g., pile driving/drilling vessel, PSO-dedicated vessel,
etc.). Previously at least four on-duty PSOs were required to actively
observe for marine mammals before, during, and after installation of
foundation piles (i.e., monopiles and pin piles), at least two of those
PSOs must be stationed and observing on the pile driving vessel and at
least two PSOs must be stationed on a secondary, PSO-dedicated vessel.
NMFS is now requiring Avangrid to deploy three on-duty PSOs per
platform and vessel instead of two. Alternatively, Avangrid may propose
an alternative method other than three PSOs per platform that provides
equal or greater visual monitoring effectiveness. Similarly, NMFS is
now requiring that Avangrid must deploy at least three on-duty PSOs,
instead of two on-duty PSOs, on each observation platform for all
detonations. To align with the BiOp, NMFS is also requiring the use of
two PSO-dedicated vessels in addition to the PSOs on the foundation
installation platform.
NMFS added a requirement that a double big bubble curtain must be
placed at a distance that would avoid damage to the nozzle holes during
all UXO/MEC detonations. NMFS also
[[Page 52240]]
added a requirement that a pressure transducer must be used during all
UXO/MEC detonations.
Consistent with the BiOp, NMFS added additional details regarding
thorough SFV requirements and added a requirement for Abbreviated SFV
(consisting of a single recorder with a bottom and mid-water column
hydrophone). We have also added requirements that Thorough SFV must be
conducted on every pile until measured noise levels are at or below the
modeled noise levels, assuming 10 dB; the minimum number of foundations
previously required to have SFV has increased and now includes
requirements for each construction year; and we have added a
requirement that Avangrid 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 Thorough SFV
monitoring is required. Lastly, we have clarified that during Thorough
SFV, installation of the next foundation (of the same type/foundation
method) may not proceed until Avangrid has reviewed the initial results
from the Thorough SFV and determined that there were no exceedances of
any distances to the identified thresholds based on modeling assuming
10 dB of attenuation.
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 additional changes to the
regulatory text in response to new information provided by Avangrid and
public comments.
For clarity and consistency, we revised three paragraphs in Sec.
217.320, ``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
(Avangrid) and to clarify that the regulations apply to Avangrid
Renewables LLC, as well as its successors or assigns, and those persons
it authorizes or funds to conduct activities on its behalf. NMFS has
also included the addition of OCS-A 0561 as a result of the OCS-A 0534
lease segregation.
For clarity, we have specified that any measures in Sec. Sec.
217.324 and 217.325 required during jacket foundation installation are
also required for bottom-frame foundations that utilize pile
foundations.
In Sec. Sec. 217.320, 217.322, 217.323, 217.324, 217.325, 217.326,
and 217.327, NMFS has made minor changes to formatting and wording to
more clearly state the requirements.
In Sec. 217.324(a), NMFS has clarified that any visual observation
of marine mammals, as opposed to only ESA-listed marine mammals, must
be communicated to PSOs and vessel captains.
NMFS has clarified language in Sec. 217.324(a) on what public
sources Avangrid and its personnel must check and how often to stay
informed on North Atlantic right whales detections in the area.
NMFS has added additional clarification on the authority of PSOs
and PAM operators in Sec. 217.324(a) to ensure compliance and proper
implementation of the regulations.
NMFS has specified that any visual or acoustic detection of a North
Atlantic right whale within clearance zones must trigger a delay in
commencement of pile driving, drilling, UXO/MEC detonation, and HRG
surveys. NMFS has also updated the requirement Sec. 217.324(c)(8)(i)
by expanding the terminology of ``piles installed'' to foundation
installation activities, correcting the November 1-December 30 date
range to November 1-December 31, and increasing the monitoring zone
from 10 to 12 km.
NMFS has added a requirement that all project vessels must utilize
AIS and must report all MMSI numbers to NMFS Office of Protected
Resources.
NMFS has included a requirement for Avangrid to consent to on-site
observations and inspections by Federal personnel during project
activities.
NMFS has added a prohibition to interfering with PSO or PAM
operator responsibilities.
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.
In Sec. 217.324(b), NMFS has clarified the minimum separation zone
for vessels when encountering a North Atlantic right whale.
In Sec. 217.324(d), NMFS has added a requirement that Avangrid
must notify NMFS 48 hours before any planned UXO/MEC detonation event
unless this 48-hour notification would create delays to the detonation
that would result in imminent risk to human life or safety. NMFS has
also added a requirement that Avangrid may detonate a maximum of 10
UXO/MECs, of varying sizes but no larger than 1,000 pounds (lbs; 454
kilograms (kg)) charge weight (i.e., E12), over the effective period of
this rulemaking and LOA(s). NMFS has added a requirement that a
pressure transducer must be used to monitor pressure levels during all
UXO/MEC detonations.
NMFS has clarified the requirement in Sec. 217.324(b) to specify
that this measure applies to vessels traveling in the specified
geographical region. NMFS has also renamed the North Atlantic Right
Whale Vessel Strike Avoidance Plan requirement to the Marine Mammal
Vessel Strike Avoidance Plan to more accurately reflect that the plan
does not solely apply to North Atlantic right whales.
In consideration of commenters' concerns regarding strengthening
mitigation measures to avoid vessel strike, NMFS has removed the
requirement in Sec. 217.324(b)(14) from the proposed rule for any
underway vessel to avoid speed over 10 kn (18.5 km/hour) or abrupt
changes in course direction until an animal is on a path away from the
separation distance. The current requirement in Sec. 217.324(b)
requires vessels to steer a course away from, reduce speed and shift
engine to neutral if an animal is within the separation distance.
NMFS has clarified the requirement in Sec. 217.324(b)(7) from the
proposed rule that a North Atlantic right whale detection triggers a
speed restriction for all transiting vessels within 10 km for a 24-hour
period (previously 12-hour period). This was previously specific to
Slow Zones (i.e., Dynamic Management Areas (DMAs) or acoustically-
triggered slow zone), and Seasonal Management Areas (SMAs). NMFS has
also added a requirement that vessels must not travel over 10 kn from
November 1 through April 30, annually, within the specified
geographical region. This measures also now includes a sub-measure that
states: if vessel(s) are traveling at speeds greater than 10 kn (11.5
mph) (i.e., no speed restrictions are enacted) in the transit corridor
(defined as from a port to the Lease Area or return), in addition to
the required dedicated visual observer, LOA Holder must monitor the
transit corridor in real-time with PAM prior to and during transits. If
a North Atlantic right whale is detected via visual observation or PAM
detection within or approaching the transit corridor, all vessels in
the transit
[[Page 52241]]
corridor must travel at 10 kn (11.5 mph) or less for 24 hours following
the detection. Each subsequent detection must trigger a 24-hour reset.
A slowdown in the transit corridor expires when there has been no
further visual or acoustic detection in the transit corridor in the
past 24 hours. The transit corridor must be defined in the Marine
Mammal Vessel Strike Avoidance Plan.
NMFS has clarified PAM boundaries for detections of North Atlantic
right whales that trigger a delay in the commencement of foundation
installation and UXO/MEC detonation.
In response to comments and to align with the BiOp, 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 installation (impact and
vibratory pile driving, drilling) and UXO/MEC detonation.
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 12 km away in Sec. 217.324(c). In
Sec. Sec. 217.324 and 217.325, NMFS has removed NMFS-approved PAM
systems(s) terminology as NMFS approves PAM plans and not PAM systems.
To align with the BiOp, NMFS has increased the number of on-duty
PSOs on the foundation installation platform and the number of PSO-
dedicated vessels to improve the reliability of marine mammal detection
from the platform in Sec. 217.324(c). The minimum number of PSOs per
platform during UXO/MEC detonation has been increased to three in Sec.
217.324(d).
NMFS added requirements related to conducting and reporting on
Thorough and Abbreviated SFV to align with the BiOp in Sec.
217.324(c)-(d).
NMFS has clarified requirements for clearance zones, shutdown
zones, deactivating acoustic sources when not in use, PSO activity and
communication requirements, and vessel operator communication
requirements, applying to HRG surveys operating sub-bottom profilers
(SBPs) in Sec. 217.324(e) to ensure compliance and proper
implementation of the regulations.
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 in Sec. 217.324(f), NMFS has
clarified language on emptying survey gear, gear deployment timing,
trawl tow times and speed, and visual monitoring efforts.
The following changes are reflected in Sec. 217.325,
``Requirements for monitoring and reporting,'' and the associated
Monitoring and Reporting section of the preamble to this final rule:
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 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 no less than every 4 hours.
NMFS has clarified PAM operator qualifications as well as PSO and
PAM training requirements in Sec. 217.235 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 Avangrid must submit the names of PSOs and PAM operators
previously approved by NMFS at least 30 days prior to commencement of
the specified activities and 15 days prior to when new PSO/PAM
operators are required after activities have commenced.
NMFS has specified the following additional details in Sec.
217.325(b) to clarify PSO and PAM operator requirements in order to
ensure compliance and proper implementation of regulations: PSOs must
monitor for marine mammals prior to, during, and following impact pile
driving, vibratory pile driving, drilling, UXO/MEC detonation and HRG
surveys that use sub-bottom profilers and monitoring must be done while
free from distractions; all on-duty PSOs and on-duty 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 added requirements related to conducting and reporting on SFV
(Thorough and Abbreviated) to align with the BiOp in Sec. 217.325(c),
(d), and (f).
NMFS added a requirement to Sec. 217.325(c) for a Nighttime
Monitoring Plan if Avangrid intends to request nighttime foundation
installation. No nighttime foundation installation can occur until NMFS
reviews and approves the plan.
NMFS clarified requirements for the PAM Plan and Marine Mammal
Monitoring Plan to align with the BiOp in Sec. 217.325(d).
NMFS has clarified the reporting requirements, such as, the format
of dates must be in the MM/DD/YYYY format, location information must be
provided in Decimal Degrees and with the coordinate system information,
and which email addresses a report must be submitted to.
In consideration of public comments with 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
Avangrid 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, Avangrid 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.
Recognizing the extensive, frequent, and situational monitoring
data and report requirements, NMFS clarified the language describing
the annual or biennial review of data to inform adaptive management
decisions to indicate that adaptive management decisions may be made at
any time, as new information warrants it.
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
[[Page 52242]]
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 Park City Wind's (now Avangrid's) ITA
application summarize available information regarding status and
trends, distribution and habitat preferences, and behavior and life
history of the potentially affected species (Park City 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
may be authorized for this action, and summarizes information related
to the population or stock, including regulatory status under the MMPA
and ESA, and provides the potential biological removal (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)). While no mortality is
anticipated or may be 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' 2023 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>.
Table 2--Marine Mammal Species That May Occur in the Project Area and Be Taken by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA /MMPA status; Stock abundance (CV, Total
Common name Scientific name \1\ 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 \5\.. Eubalaena glacialis.... Western Atlantic....... E, D, Y 340 (0, 337, 2021); 0.7 27.2
356 (346-363, 2022).
Family Balaenopteridae (rorquals):
Blue whale...................... Balaenoptera musculus.. Western North Atlantic. E, D, Y UNK (UNK; 402; 1980- 0.8 0
2008).
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24; 5,573; 11 2.05
2021).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, Y 1,396 (0; 1,380; 2016) 22 12.15
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31; 17,002; 170 9.4
acutorostrata. Coastal. 2021).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02; 3,098; 6.2 0.6
2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 5,895 (0.29; 4,639; 9.28 0.2
2021).
Family Kogiidae:
Dwarf sperm whale............... Kogia sima............. Western North Atlantic. -, -, N 9,474 (0.36, 7,080, 57 UNK
2021).
Pygmy sperm whale............... Kogia breviceps........ Western North Atlantic. -, -, N 9,474 (0.36, 7,080, 57 UNK
2021).
Family Ziphiidae:
Cuvier's beaked whale........... Ziphius cavirostris.... Western North Atlantic. -, -, N 4,670 (0.24, 3,817, 38 0.2
2021).
Blainville's beaked whale....... Mesoplodon densirostris Western North Atlantic. -, -, N 2,936 (0.26, 2,374, 24 0.2
2021).
Gervais' beaked whale........... Mesoplodon europaeus... Western North Atlantic. -, -, N 8,595 (0.24, 7,022, 70 0
2021).
Sowerby's beaked whale.......... Mesoplodon bidens...... Western North Atlantic. -, -, N 492 (0.50, 340, 2021). 3.4 0
True's beaked whale............. Mesoplodon mirus....... Western North Atlantic. -,-,N 4,480 (0.34, 3,391, 34 0.2
2021).
Northern bottlenose whale \6\... Hyperoodon ampullatus.. Western North Atlantic. -, -, N UNK (UNK, UNK, 2016).. UNK 0
Family Delphinidae:
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 31,506 (0.28, 25,042, 250 0
2021).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71, 54,443, 544 28
2021).
Common bottlenose dolphin \7\... Tursiops truncatus..... Western North Atlantic -, -, N 64,587 (0.24, 52,801, 507 28
Offshore. 2021).
Clymene dolphin................. Stenella clymene....... Western North Atlantic. -, -, N 21,778 (0.72, 12,622, 126 0
2021).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 93,100 (0.56; 59,897; 1,452 414
2021) \8\.
Long-finned pilot whales........ Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.30; 30,627; 306 5.7
2021).
Short-finned pilot whale \8\.... Globicephala Western North Atlantic. -, -, Y 18,726 (0.33, 14,292, 143 218
macrorhynchus. 2021).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 44,067 (0.19, 30,662, 307 18
2021).
False killer whale.............. Pseudorca crassidens... Western North Atlantic. -, -, N 1,298 (0.72, 775, 7.6 0
2021).
Fraser's dolphin \9\............ Lagenodelphis hosei.... Western North Atlantic. -, -, N UNK (UNK, UNK, 2021).. UNK 0
[[Page 52243]]
Killer whale\10\................ Orcinus orca........... Western North Atlantic. -, -, N UNK (UNK, UNK, 2016).. UNK 0
Melon-headed whale\11\.......... Peponocephala electra.. Western North Atlantic. -, -, N UNK (UNK, UNK, 2021).. UNK 0
Pantropical spotted dolphin..... Stenella attenuata..... Western North Atlantic. -, D, N 2,757 (0.50, 1,856, 19 0
2021).
Pygmy killer whale \12\......... Feresa attenuata....... Western North Atlantic. -, -, N UNK (UNK, UNK, 2021).. UNK 0
Rough-toothed dolphin \13\...... Steno bredanensis...... Western North Atlantic. -, -, N UNK (UNK, UNK, 2021).. undet 0
Spinner dolphin................. Stenella longirostris.. Western North Atlantic. -, D, N 3,181 (0.65, 1,930, 19 0
2021).
Striped dolphin................. Stenella coeruleoalba.. Western North Atlantic. -, -, N 48,274 (0.29, 38,040, 529 0
2021).
White-beaked dolphin............ Lagenorhynchus Western North Atlantic. -, -, N 536,016 (0.31, 4,153 0
albirostris. 415,344, 2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 85,765 (0.53, 56,420, 649 145
Fundy. 2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \14\.................. Halichoerus grypus..... Western North Atlantic. -, -, N 27,911 (0.20, 23,624, 1,512 4,570
2021).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
Harp seal....................... Pagophilus Western North Atlantic. -, -, N 7.6M (UNK, 7.1M, 2019) 426,000 178,573
grownlandicus.
Hooded seal \15\................ Cystophora cristata.... Western North Atlantic. -, -, N UNK (UNK, UNK, n/a)... UNK 1680
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies</a>; Committee on Taxonomy, 2023)).
\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 stock assessment reports can be found online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance.
\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, vessel strike).
\5\ In the proposed rule (87 FR 79072, December 23, 2022), a population estimate of 368 was used which represented the best available science at the
time of publication. However, since the publication of the proposed rule, a new estimate (n=340) was released in NMFS' draft 2023 SARs and has been
incorporated into this final rule. The current draft SAR includes an estimated population (Nbest 340) based on sighting history through December 2021
(89 FR 5495, January 29, 2024). 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); Total annual
average observed North Atlantic right whale mortality during the period 2017-2021 was 7.1 animals and annual average observed fishery mortality was
4.6 animals. Numbers presented in this table (27.2 total mortality and 17.6 fishery mortality) are 2016-2020 estimated annual means, accounting for
undetected mortality and serious injury.
\6\ The total number of northern bottlenose whales off the eastern U.S. coast is unknown. Present data are insufficient to calculate a minimum
population estimate for this species (89 FR 5495, January 29, 2024).
\7\ As noted in the draft 2023 SAR (89 FR 5495, January 29, 2024), abundance estimates may include sightings of the coastal form.
\8\ A key uncertainty exists in the population size estimate for this species based upon the assumption that the logistic regression model accurately
represents the relative distribution of short-finned vs. long-finned pilot whales (89 FR 5495, January 29, 2024).
\9\ The total number of Fraser's dolphins off the eastern U.S coast is unknown. Present data are insufficient to calculate a minimum population estimate
for this stock (89 FR 5495, January 29, 2024).
\10\ The total number of killer whales off the eastern U.S coast is unknown. Present data are insufficient to calculate a minimum population estimate
for this species (89 FR 5495, January 29, 2024).
\11\ The population size of this species is unknown as this species was rarely sighted during surveys. Present data are insufficient to calculate a
minimum population estimate for this stock (89 FR 5495, January 29, 2024).
\12\ The total number of pygmy killer whales off the eastern U.S coast is unknown. Present data are insufficient to calculate a minimum population
estimate for this stock (89 FR 5495, January 29, 2024).
\13\ The abundance estimate for this species is based upon the average of the 2011 and 2016 abundance estimates. However, uncertainties in the abundance
estimate exist due to the low number of sightings (n=1 in 2011; n=0 in 2016), variance in encounter rates, and uncertainty in estimation of detection
probability (89 FR 5495, January 29, 2024).
\14\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 394,311. The annual M/SI value given is for the total stock (89 FR 5495, January 29, 2024).
\15\ There is uncertainty in available population estimates due to limited surveys, limited reproductive data, and uncertainty in stock relationships
and harvest statistics (89 FR 5495, January 29, 2024).
In addition to the species listed in table 2, the Florida manatees
(Trichechus manatus; a sub-species of the West Indian manatee) has been
previously documented as an occasional visitor to the Northeast region
during summer months (U.S. Fish and Wildlife Service (USFWS), 2019).
However, manatees are managed by the USFWS and are not considered
further in this document.
[[Page 52244]]
As described in the proposed rule, the applicant also requested
take for beluga whales (Delphinapterus leucas), however, there is no
beluga whale stock designated under the MMPA along the U.S. Eastern
Seaboard as it is a more northerly species; therefore, they are not
considered further in this document. A detailed description of the
species likely to be affected by the Project, including brief
introductions to the species and relevant stocks, information regarding
population trends and threats, and information regarding local
occurrence, were provided in the application and the proposed rule (88
FR 37606, June 8, 2023). Other than adjustments to population
statistics (e.g., North Atlantic right whale population abundance) and
UME updates, 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 37606, June 8, 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 January 2024, NMFS released its draft 2023 SARs which updated
the population estimate (N<INF>best</INF>) of North Atlantic right
whales to 340 individuals (a decrease from the population estimate in
the proposed rule (n=368) but an increase from the final 2022 SARs
(n=338); the annual M/SI value dropped from the final 2022 SAR of 31.2
to 27.2 in the draft 2023 SAR. Beginning in the 2022 SARs, the M/SI for
North Atlantic right whale included the addition of estimated
undetected mortality and serious injury, which had not been previously
included in the SAR. The current population estimate is equal to the
North Atlantic Right Whale Consortium's 2022 Annual Report Card, which
identifies the population estimate as 340 individuals (Pettis et al.,
2023).
As described in the proposed rule, elevated North Atlantic right
whale mortalities have occurred since June 7, 2017, along the U.S. and
Canadian coast, with the leading category for the cause of death for
this UME determined to be ``human interaction,'' specifically from
entanglements or vessel strikes. Since publication of the proposed
rule, the number of animals considered part of the UME has increased.
As of April 12, 2024, there have been 39 confirmed mortalities (dead,
stranded, or floaters), 1 pending mortalities, and 34 seriously injured
free-swimming whales for a total of 74 whales. The UME also considers
animals with sublethal injury or illness (called ``morbidity''; n=52)
bringing the total number of whales in the UME from 74 to 126. More
information about the North Atlantic right whale UME is available
online at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
Humpback Whale
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. This event was
declared a UME in April 2017. Partial or full necropsy examinations
have been conducted on approximately half of the 221 known cases (as of
May 3, 2024). There has been no update to this UME since the proposed
rule. More information is available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
Since December 1, 2022, the number of humpback strandings along the
mid-Atlantic coast, from North Carolina to New York, has been elevated.
In some cases, the cause of death is not yet known; in others, vessel
strike has been deemed the cause of death. As the humpback whale
population has grown, they are seen more often in the Mid-Atlantic.
These whales may be following their prey (small fish) which were
reportedly close to shore in the 2022-2023 winter. Changing
distributions of prey impact larger marine species that depend on them,
and result in changing distribution of whales and other marine life.
These prey also attract fish that are targeted by recreational and
commercial fishermen, which increases the number of boats and amount of
fishing gear in these areas. This nearshore movement increases the
potential for anthropogenic interactions, particularly as the increased
presence of whales in areas traveled by boats of all sizes increases
the risk of vessel strikes.
Minke Whale
Since January 2017, a UME has been declared based on elevated minke
whale mortalities detected along the Atlantic coast from Maine through
South Carolina. As of May 3, 2024, a total of 168 minke whales have
stranded during this UME. Full or partial necropsy examinations were
conducted on more than 60 percent of the whales. Preliminary findings
have shown evidence of human interactions or infectious disease in
several of the whales, but these findings are not consistent across all
of the whales examined, so more research is needed. More information is
available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
Phocid Seals
Since June 2022, elevated numbers of harbor seal and gray seal
mortalities have occurred across the southern and central coast of
Maine. This event was declared a UME in July 2022 but closed after the
proposed rule. The UME Investigative Team reviewed necropsy,
histopathology, and diagnostic findings. They determined the UME was
attributed to spillover events of the highly pathogenic avian influenza
H5N1 virus from infected wild birds to harbor and gray seals. An
ongoing HPAI H5N1 global outbreak in domestic and wild birds and wild
mammals began in 2021. Live seals showed signs of respiratory and
neurological disease including nasal and ocular discharge, coughing,
unresponsiveness, and seizures. Eighteen percent of the stranded seals
(33 out of 180) were tested for avian influenza via polymerase-chain-
reaction. A subset of seals were positive for HPAI H5N1 with
preliminary findings confirmed by the United States Department of
Agriculture's National Veterinary Services Laboratories. Of the 33
seals tested during the UME period 19 (58 percent) were positive for
H5N1 (17 harbor seals; 2 gray seals) and 14 (42 percent) tested
negative. Twelve H5N1 positive seals had histopathology conducted; 11
of those seals had lesions (primarily respiratory and/or neurologic)
suspected or consistent with avian influenza infection. Sequencing of
the H5N1 virus detected in seals suggests the seals were infected from
spillover events from infected wild birds to these seals. While the UME
was not occurring in the area of the Project, the populations affected
by the UME were the same as those potentially affected by the Project.
Information on this UME is available online at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</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
[[Page 52245]]
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).
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
Exposure to underwater noise and explosive detonations from the
Project's specified activities have the potential to result in Level A
harassment or Level B harassment of marine mammals in the specified
geographical region, but no serious injury or mortality. The proposed
rule (88 FR 37606, June 8, 2023) included a discussion of the effects
of anthropogenic noise on marine mammals and the potential effects of
underwater noise and explosive detonations from the Project's specified
activities on marine mammals and their habitat. While some new
literature regarding marine mammal distribution and habitat use has
been published since publication of the proposed rule (e.g., Holdman et
al., 2023; Meyer-Gutbrod et al., 2023; Van Parijs et al., 2023;
Westwell et al., 2024), there is no new information that NMFS is aware
of that changes the analysis in the proposed rule. We provide a summary
of these papers below.
Holdamn et al. (2023) studied harbor porpoise habitats in the Gulf
of Maine (GOM) and Southern New England waters providing baseline data
on the occurrence and foraging activity of porpoises from 2020 to 2022.
Harbor porpoises were present year-round in the GOM with peak
detections in the summer and fall. The observed seasonal pattern of
harbor porpoise occurrence in this study is consistent with prior
information on the general distribution of the GOM/Bay of Fundy stock
(Wingfield et al., 2017; NMFS, 2021). In line with previously reported
distribution patterns, harbor porpoise occurrence in Southern New
England was high in fall, winter and spring, but porpoises were largely
absent in the summer. Results from generalized additive models suggest
that time of year, hour of day, lunar illumination, and temperature are
significant contributors to harbor porpoise presence (detection mainly
through echolocation clicks) and/or foraging effort.
Meyer-Gutbrod et al. (2023) studied North Atlantic right whale
sightings from 1990-2018 to examine patterns in monthly habitat use in
12 high-use areas to broadly characterize new seasonal habitat-use
patterns across the core North Atlantic right whale range. As North
Atlantic right whale foraging habitat selection is driven by complex
spatial and temporal patterns (e.g., prey abundance), abundances of
Calanus finmarchicus (a species of copepod and a component of the
zooplankton found in the northern Atlantic Ocean) and Calanus
hyperboreus (species of copepod found in the Arctic Ocean and northern
Atlantic Ocean) were also analyzed for decadal variations in the North
Atlantic right whale foraging habitats. The research found that in
comparison to the 2000s, the 1990s and the 2010s were similar in that
North Atlantic right whale sightings (i.e., Sightings Per Unit Effort
(SPUE)) declined in the foraging habitats of the Gulf of Maine and
Scotian Shelf during the seasons when abundance of C. finmarchicus was
relatively low (spring, summer, fall). The drop in sightings is
associated with extended duration of habitat use by North Atlantic
right whales in Cape Cod Bay into the late spring and increased use of
Southern New England waters and the Gulf of St. Lawrence in the spring
and summer in the 2010s. Summertime declines in the 2010s for copepod
abundances in the traditional foraging habitat (e.g., Gulf of Maine)
indicate that the increased use of the Gulf of St. Lawrence in more
recent years is driven by a decline in prey in traditional foraging
habitats rather than by an increase in prey in the new foraging
habitat. Overall, while some patterns in seasonal habitat use remained
consistent across all three decades, including the winter migration to
the Southeast US calving ground and early spring foraging in Cape Cod
Bay,
[[Page 52246]]
there were notable differences in the seasonality and persistence of
North Atlantic right whales in some foraging habitats across the study
period which indicate that the North Atlantic right whale distribution
patterns are shifting.
Van Parijs et al. (2023), provides 2 years of baseline data on
cetacean species' presence, vessel activity, and ambient sound levels
in the southern New England wind energy area. With eight species/
families present in the area for at least 9 months of the year, this
area represents an important habitat for cetaceans. Most species showed
seasonality, with peak daily presence in winter (harbour porpoise,
North Atlantic right, fin, and humpback whales), summer (sperm whales),
spring (sei whales), or spring and fall/autumn (minke whales).
Delphinids were continuously present and blue whales present only in
January. The North Atlantic right whale was present year round with
high presence in October through April.
Westell et al. (2024) collected baseline data from 2020 to 2022,
with six passive acoustic recorders deployed in the vicinity of
Nantucket Shoals and Cox's Ledge. Data were analyzed for sperm whale
presence, and demographic composition was assessed using interclick
intervals. Presence varied by site, season, and year. Sperm whales were
detected year-round but the majority (78 percent) of days with acoustic
occurrences were between May and August. Sound propagation tests were
conducted at two sites and predicted detection ranges within 20-40 km
indicate that sperm whales were likely in proximity to the WEA. These
results provide a baseline for ongoing sperm whale presence, especially
that of social groups which may be more sensitive to disturbance.
Moreover, new data also supports our inclusion of certain
mitigation measures in the proposed and this final rule. For example,
Crowe et al. (2023) discussed the use and importance of real-time data
for detecting North Atlantic right whale. The shift in North Atlantic
right whale habitat use motivated the integration of additional ways to
detect the presence of North Atlantic right whales and passive acoustic
detections of right whale vocalizations reported in near real-time
became an increasingly important tool to supplement visual sightings.
The proposed rule did include real-time and daily awareness measures
and sighting communication protocols, NMFS evaluated these measures and
added details for clarity or updated the reporting mechanisms, such as
in the case of sighting an injured North Atlantic right whale. Davis et
al. (2023) analyzed North Atlantic right whale individual upcalls from
2 years of acoustic recordings in southern New England which showed
that North Atlantic right whale were detected at least 1 day every week
throughout both years, with highest North Atlantic right whale presence
from October to April. Within SNE, on average, 95 percent of the time
North Atlantic right whales persisted for 10 days, and recurred again
within 11 days. An evaluation of the time period over which it is most
effective to monitor prior to commencing pile driving activities showed
that with 1 h of pre-construction monitoring there was only 4 percent
likelihood of hearing a North Atlantic right whale, compared to 74
percent at 18 h. Therefore, monitoring for at least 24 h prior to
activity will increase the likelihood of detecting an up-calling North
Atlantic right whale.
Since issuance of the proposed rule, a non-peer reviewed report on
HRG survey noise has also been released (Rand et al., 2023). The
measured data presented in Rand et al. (2023) are consistent with our
evaluation of sound levels produced by HRG surveys (i.e., received
sound levels at the ranges measured) and vessels and do not change our
assessments of potential impacts. The analysis of those data in the
Rand et al. (2023) report, however, includes methodological issues and
therefore does not support all of their conclusions.
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 m. 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 Avangrid to measure operational noise levels,
however, is not authorizing take incidental to operational noise from
WTGs.
In addition, recently, a National Academy of Sciences, Engineering,
and Medicine (NASEM) panel of independent experts concluded that the
impacts of offshore wind operations on North Atlantic right whales and
their habitat in the Nantucket Shoals region (a key winter foraging
habitat tens of kilometers to the east of the Project area) are
uncertain due to the limited data available at this time and recognized
what data is available is largely based on models from the North Sea
that have not been validated by observations (National Academy of
Sciences, 2023). The report also identifies that major oceanographic
changes have occurred to the Nantucket Shoals region over the past 25
years and it will be difficult to isolate from the much larger
variability introduced by natural and other anthropogenic sources
(including climate change). This report is specific to the Nantucket
Shoals region which is unlikely to be influenced by any long-term
operational effects of the Project; however, the findings in the report
align with those presented in the proposed rule. More recently, NMFS
concluded ESA consultation on Federal actions associated with the
Project, including NMFS's proposal to issue a 5-year rule to Avangrid
and BOEM's approval of the Construction and Operation Plan (COP) which
covers the 30 years of the Project's operation and subsequent
decommissioning.
Similar to the discussion presented in the proposed rule, the BiOp
stated the Project will produce a wind wake from operation of the
turbines and that the foundations themselves will lead to disruptions
in local conditions; the scale of these effects is expected to
[[Page 52247]]
range from hundreds of meters and up to 1 km from each foundation and
the changes in conditions may alter the distribution of nutrients,
primary production, and plankton. The BiOp concluded it is not expected
that the impacts to oceanic conditions resulting from the Project will
affect the oceanographic forces transporting plankton into the area
from the south and east; however, there may be effects on the
distribution of plankton more locally. The construction and operation
of the Project is not expected to alter this broad current pattern, and
thus NMFS expects any alteration of the biomass of plankton in the
region, and therefore, the total food supply, to be so small that
adverse effects on ESA-listed species are not reasonably certain to
occur.
Overall, there is no new scientific information regarding the
general anticipated effects of OSW construction on marine mammals and
their habitat that was not discussed in the proposed rule. The
information and analysis regarding the potential effects on marine
mammals and their habitat is incorporated by reference and included in
the proposed rule is referenced and used for this final rule and is not
repeated here; please refer to the proposed rule (88 FR 37606, June 8,
2023).
Estimated Take
As noted in the Changes from the Proposed to Final Rule section,
changes to the estimated and allowable take (i.e., take that may be
authorized) for several species have been made since publication of the
proposed rule based on new information from Avangrid, recommendations
received during the public comment period, and the best available
science. This section provides an estimate of the number of incidental
takes that may be authorized through this rule, which will inform both
NMFS' consideration of ``small numbers'' and the negligible impact
determination. The analysis related to take incidental to HRG surveys,
UXO/MEC detonation, and rare species is unchanged since the proposed
rule. However, as described above in the Changes from the Proposed
section, Avangrid re-evaluated the sound fields generated during
foundation installation and corresponding exposure estimates which is
further described in the foundation installation take section below.
Takes allowed under this rule would primarily be by Level B harassment,
as use of the acoustic sources (i.e., impact and vibratory pile
driving, drilling, UXO/MEC detonation, site characterization surveys)
are expected 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 and UXO/MEC detonation). For this
action, this potential is largely limited to, though not exclusive 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 likelihood for PTS from the noise produced by the
Project is less than that for mysticetes. 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 may be authorized incidental to the
Project. Below, we describe how the take was estimated.
Generally speaking, we estimate take by considering: (1) acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment (as well as impulse metric
(Pascal-second) and peak sound pressure level thresholds above which
marine mammals may incur non-auditory injury from underwater explosive
detonations); (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) the number of days of
activities. We note that while these basic factors can contribute to a
basic calculation to provide an initial prediction of takes, additional
information that can qualitatively inform take estimates is also
sometimes available. Below, we describe the factors considered here in
more detail and present the 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
are likely 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 isturbance 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 RMS pressure received levels
(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.
Avangrid's construction activities include the use of continuous
(e.g., vibratory pile driving, drilling) 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.
[[Page 52248]]
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: Lp0-pk,flat: 219 Cell 2: LE,p, LF,24h: 199 dB.
dB; LE,p, LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lp,0-pk,flat: 230 Cell 4: LE,p, MF,24h: 198 dB.
dB; LE,p, MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lp,0-pk,flat: 202 Cell 6: LE,p, HF,24h: 173 dB.
dB; LE,p,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lp,0-pk.flat: 218 Cell 8: LE,p,PW,24h: 201 dB.
dB; LE,p,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lp,0-pk,flat: 232 Cell 10: 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 k
[…truncated; see source link]Indexed from Federal Register on June 21, 2024.
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