Notice2024-16734
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys Offshore From Massachusetts to New Jersey for Vineyard Northeast, LLC
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
July 30, 2024
Effective
July 27, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued a renewal incidental harassment authorization (IHA) to Vineyard Northeast, LLC (Vineyard Northeast) to incidentally harass marine mammals incidental to marine site characterization surveys offshore from Massachusetts to New Jersey in the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and OCS-A 0544 (Lease Areas) and associated offshore export cable corridor (OECC) routes.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 146 (Tuesday, July 30, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 146 (Tuesday, July 30, 2024)]
[Notices]
[Pages 61088-61096]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-16734]
[[Page 61088]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE095]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Site Characterization Surveys
Offshore From Massachusetts to New Jersey for Vineyard Northeast, LLC
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued a renewal incidental harassment authorization
(IHA) to Vineyard Northeast, LLC (Vineyard Northeast) to incidentally
harass marine mammals incidental to marine site characterization
surveys offshore from Massachusetts to New Jersey in the Bureau of
Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf Lease Areas
OCS-A 0522 and OCS-A 0544 (Lease Areas) and associated offshore export
cable corridor (OECC) routes.
DATES: This renewal IHA is effective from July 27, 2024, through July
26, 2025.
ADDRESSES: Electronic copies of the original application, renewal
request, and supporting documents (including NMFS Federal Register
notices of the original proposed and final authorizations, and the
previous IHA), 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, see FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, an IHA is
issued.
Authorization for incidental takings shall be granted if NMFS finds
the taking will have a negligible impact on the species or stock(s) and
will not have an unmitigable adverse impact on the availability of the
species or stock(s) for taking for subsistence uses (where relevant).
Further, NMFS must prescribe the permissible methods of taking and
other ``means of effecting the least practicable adverse impact'' on
the affected species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to here as ``mitigation
measures''). Monitoring and reporting of such takings are also
required. The meaning of key terms such as ``take,'' ``harassment,''
and ``negligible impact'' can be found in section 3 of the MMPA (16
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods of time not to
exceed 1 year for each reauthorization. In the notice of proposed IHA
for the initial IHA, NMFS described the circumstances under which we
would consider issuing a renewal for this activity, and requested
public comment on a potential renewal under those circumstances.
Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year
renewal IHA following notice to the public providing an additional 15
days for public comments when (1) up to another year of identical, or
nearly identical, activities as described in the Detailed Description
of Specified Activities section of the initial IHA issuance notice is
planned or (2) the activities as described in the Description of the
Specified Activities and Anticipated Impacts section of the initial IHA
issuance notice would not be completed by the time the initial IHA
expires and a renewal would allow for completion of the activities
beyond that described in the DATES section of the notice of issuance of
the initial IHA, provided all of the following conditions are met:
1. A request for renewal is received no later than 60 days prior to
the needed renewal IHA effective date (recognizing that the renewal IHA
expiration date cannot extend beyond 1 year from expiration of the
initial IHA).
2. The request for renewal must include the following:
<bullet> An explanation that the activities to be conducted under
the requested renewal IHA are identical to the activities analyzed
under the initial IHA, are a subset of the activities, or include
changes so minor (e.g., reduced effort) that the changes do not affect
the previous analyses, mitigation and monitoring requirements, or take
estimates (with the exception of reducing the type or amount of take).
<bullet> A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
Upon review of the request for renewal, the status of the affected
species or stocks, and any other pertinent information, NMFS determines
that there are no more than minor changes in the activities, the
mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed renewal. A description of the renewal process
may be found on our website at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>.
History of Request
On July 27, 2022, NMFS issued an IHA (hereafter, referred to as the
2022 IHA) to Vineyard Northeast to take marine mammals incidental to
marine site characterization surveys offshore from Massachusetts to New
Jersey, in the Lease Areas and potential OECC routes to landfall
locations, effective from July 27, 2022, through July 26, 2023 (87 FR
52913, August 30, 2022). On April 23, 2023, NMFS received a request
from Vineyard Northeast to issue an IHA to take marine mammals
incidental to continued marine site characterization surveys offshore
from Massachusetts to New Jersey, in the BOEM Lease Areas and potential
OECC routes. Although the IHA renewal requirements were otherwise
satisfied, NMFS determined that the availability of updated marine
mammal density data (Roberts et al., 2023), upon which the
[[Page 61089]]
take estimates were based, for all species in the Project Area
warranted updated analysis and, therefore, the issuance of a new IHA
(hereafter, referred to as the 2023 IHA) instead of a renewal IHA, as
described in the Federal Register notice for the proposed 2023 IHA (88
FR 40212, June 21, 2023). The 2023 IHA, i.e., the initial IHA was
issued to Vineyard Northeast with effective dates of July 27, 2023
through July 26, 2024 (88 FR 50117, August 1, 2023).
On April 29, 2024, NMFS received a request from Vineyard Northeast
for the renewal of the 2023 IHA. Due to unanticipated delays, Vineyard
Northeast will not be able to complete the surveys before the
expiration date of the 2023 IHA. The activities for which incidental
take was requested consisted of a subset of the identical activities
associated with the 2023 IHA. As required, Vineyard Northeast also
provided a preliminary monitoring report, which demonstrated that they
implemented the required marine mammal mitigation and monitoring and
did not exceed the levels of take authorized under the 2023 IHA. These
monitoring results are available to the public on our website: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. The notice of
the proposed renewal IHA was published for public comment on June 18,
2024 (89 FR 51501).
Description of the Specified Activity and Anticipated Impacts
Vineyard Northeast's 2023 IHA authorized take of marine mammals
incidental to marine site characterization surveys, including high-
resolution geophysical (HRG) surveys, offshore from Massachusetts to
southern New Jersey, specifically within the Lease Areas and along
potential submarine OECCs. The purpose of these surveys are to obtain
an assessment of seabed (geophysical, geotechnical, and geohazard),
ecological, and archeological conditions within the footprint of the
planned offshore wind facility development area. Surveys are also
conducted to inform and support engineering design and to map
unexploded ordnance. While actively surveying, the vessel operates at a
maximum speed of 4 knots (4.6 miles per hour (mph) or 7.4 kilometers
per hour (km/h)). Vineyard Northeast's 2023 survey plan included 37,360
km of track line over 467 planned survey days. However Vineyard
Northeast actually completed only 860 km of track line over 11 survey
days prior to the request for renewal, representing approximately 2
percent of the total planned survey effort.
Under the renewal IHA, Vineyard Northeast plans to continue to
conduct survey activities over the remaining approximately 36,500 km of
track line that was not completed in 2023. These surveys will be
conducted over up to approximately 456 survey days using a maximum of
four vessels operating concurrently within the Lease Areas and OECCs. A
``survey day'' is defined as a 24-hour (hr) activity period in which
active HRG acoustic sources are used. This schedule is inclusive of any
inclement weather downtime and crew transfers. The number of survey
days is calculated as the number of days needed to reach the overall
level of effort required to meet survey objectives assuming any single
vessel covers, on average, 80 km (49.7 miles) of survey track line per
24 hours of operations.
The potential impacts of Vineyard Northeast's planned activities on
marine mammals involve potential acoustic stressors and are unchanged
from the impacts described in the Federal Register notice for the
proposed 2023 IHA (88 FR 40212, June 21, 2023), which relies upon
information in the notice of the proposed 2022 IHA (87 FR 30872, May
20, 2022). Underwater sound, resulting from particular components of
Vineyard Northeast's HRG survey activities, has the potential to result
in incidental take of marine mammals, in the form of Level B harassment
only, in the specified geographic region.
This renewal IHA is for the remainder of work that will not be
completed by the expiration date of the 2023 IHA. The renewal IHA
authorizes incidental take, by Level B harassment, only of 19 species
(comprising 20 stocks) of marine mammals for a subset of marine site
characterization survey activities to be completed in 1 year, in the
same area, using survey methods identical to those conducted under the
2023 IHA. Neither Vineyard Northeast nor NMFS expect serious injury or
mortality to result from this activity and, therefore, an IHA is
appropriate. Take by Level A harassment (injury) is unlikely, even
absent mitigation, based on the characteristics of the signals produced
by the acoustic sources planned for use. Therefore, the anticipated
effects on marine mammals and the affected stocks also remain the same.
All mitigation, monitoring, and reporting measures would remain exactly
as described in the Federal Register notice for the issued 2023 IHA (88
FR 50117, August 1, 2023) and the notice of the proposed 2022 IHA (87
FR 52913, August 30, 2022).
Detailed Description of the Activity
A detailed description of the marine site characterization survey
activities for which incidental take is authorized here may be found in
the Federal Register notice of the proposed 2023 IHA (88 FR 40212, June
21, 2023), which relies upon information in the notice of the proposed
2022 IHA (87 FR 30872, May 20, 2022). The specific geographic region
and specified activities, including the types of survey equipment and
number of survey vessels planned for use, are identical to those
described in the previous notices, with the exception of the reduction
in the size of the survey area since a small subset of the survey work
planned under the 2022 IHA was completed. The renewal would be
effective for a period not exceeding 1 year from the date of expiration
of the initial IHA.
Comments and Responses
A notice of NMFS' proposal to issue a renewal IHA to Vineyard
Northeast was published in the Federal Register on June 18, 2024 (89 FR
51501). That notice either described, or referenced descriptions of,
Vineyard Northeast's survey activity, the marine mammal species that
may be affected by the activity, the anticipated effects on marine
mammals and their habitat, estimated amount and manner of take, and
proposed mitigation, monitoring and reporting measures.
During the 15-day public comment period, NMFS received 4 public
comment letters from three individuals and one from a non-governmental
organization (NGO), Clean Ocean Action (COA). NMFS has reviewed all
public comments received on the Vineyard Northeast HRG renewal IHA. All
relevant, substantive comments, and NMFS' responses, are provided
below. Comments indicating general support for or opposition to
offshore wind construction or impacts to other non-marine mammal
species, except inasmuch as they may be relevant to impacts to marine
mammal prey, are not relevant to the proposed action and therefore were
not considered and are not addressed here. The comments and
recommendations are available 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>. Please see the
comment submissions for full details regarding the recommendations and
supporting rationale.
Comment 1: A commenter recommended that NMFS increase the
[[Page 61090]]
size of all pre-start clearance, separation, and shutdown zones to 500
meters (m) for all ESA-listed baleen whales.
Response: NMFS does not concur with this recommendation, and does
not adopt it. The NMFS Greater Atlantic Regional Fisheries Office
(GARFO) 2021 Offshore Wind Site Assessment Survey Programmatic ESA
consultation (see <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>) determined that a 500-m shutdown
zone for North Atlantic right whales or unidentified large whales and a
100-m shutdown zone for all other ESA-listed whales is sufficient to
minimize exposure to noise from HRG acoustic sources that could be
disturbing. Accordingly, NMFS has adopted this shutdown zone size for
all baleen whale species, other than the North Atlantic right whale.
The commenter does not provide additional scientific information for
NMFS to consider to support the recommendation to expand the shutdown
zone for baleen whales. Given that these surveys are relatively low
impact, NMFS has determined that an increase in the size of the
shutdown zone for ESA-listed baleen whales (excluding North Atlantic
right whales) during HRG surveys is not warranted, and the commenter
provides no evidence to the contrary.
Comment 2: Several commenters expressed general concern for North
Atlantic right whales and impacts from the proposed survey activities,
and specifically concern that the proposed renewal IHA and its
associated specified activities would lead to mortality (death) of
marine mammals.
Response: NMFS appreciates the commenters' general concern for
North Atlantic right whales. NMFS emphasizes that there is no credible
scientific evidence available suggesting that mortality and/or serious
injury or Level A harassment is a potential outcome of the planned
survey activity. NMFS notes there have never been reports of any
serious injuries or mortalities of any marine mammal associated with
site characterization surveys. The best available science indicates
that Level B harassment, or disruption of behavioral patterns, may
occur as a result of Vineyard Northeast's specified activities. We also
refer to the GARFO 2021 Programmatic Consultation, which finds that
these survey activities are in general not likely to adversely affect
marine mammal species listed under the ESA (i.e., GARFO's analysis
conducted pursuant to the ESA finds that marine mammals are not likely
to be taken at all (as that term is defined under the ESA), much less
be taken by serious injury or mortality). That document is found at:
<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>. Additionally, NMFS cannot authorize mortality or serious
injury via an IHA, and such taking is prohibited under Condition 3(c)
of the IHA and may result in modification, suspension, or revocation of
the IHA. The impacts of Level B harassment (i.e., behavioral
disturbance) are expected to have a negligible impact on the North
Atlantic right whale population as well as other potentially impacted
marine mammal populations. NMFS has made the required findings based on
the best scientific information available and has included mitigation
measures to effect the least practicable adverse impact on North
Atlantic right whales and other potentially impacted marine mammals.
Comment 3: A commenter claims that NMFS should be required to
conduct further NEPA analysis for the project, considering the
cumulative effects of the proposed IHA relative to other authorized
takes in the area and adjust permitted activities accordingly. The
commenter further indicated that NMFS does not justify why
extraordinary circumstances do not apply and indicates that lack of
this justification warrants NEPA analysis further than a Categorical
Exclusion.
Response: NMFS does not agree with the commenter. A CE is a
category of actions that an agency has determined does not individually
or cumulatively have a significant effect on the quality of the human
environment, and is appropriately applied for such categories of
actions so long as there are no extraordinary circumstances present
that would indicate that the effects of the action may be significant.
Extraordinary circumstances are situations for which NOAA has
determined further NEPA analysis is required because they are
circumstances in which a normally excluded action may have significant
effects. A determination of whether an action that is normally excluded
requires additional evaluation because of extraordinary circumstances
focuses on the action's potential effects and considers the
significance of those effects in terms of both context (consideration
of the affected region, interests, and resources) and intensity
(severity of impacts). Potential extraordinary circumstances relevant
to this action include (1) adverse effects on species or habitats
protected by the MMPA that are not negligible; (2) highly controversial
environmental effects; (3) environmental effects that are uncertain,
unique, or unknown; and (4) the potential for significant cumulative
impacts when the proposed action is combined with other past, present,
and reasonably foreseeable future actions.
The relevant NOAA CE associated with issuance of incidental take
authorizations is CE B4, ``Issuance of incidental harassment
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the
incidental, but not intentional, take by harassment of marine mammals
during specified activities and for which no serious injury or
mortality is anticipated.'' This action falls within CE B4. In
determining whether a CE is appropriate for a given incidental take
authorization, NMFS considers the applicant's specified activity and
the potential extent and magnitude of takes of marine mammals
associated with that activity along with the extraordinary
circumstances listed in the Companion Manual for NOAA Administrative
Order (NAO) 216-6A and summarized above.
The issuance of this IHA will not result in highly controversial
environmental effects or result in environmental effects that are
uncertain, unique, or unknown because numerous entities have been
engaged in site characterization surveys that result in Level B
harassment of marine mammals in the United States. This type of
activity is well documented; prior authorizations and analysis
demonstrate issuance of an IHA for this type of action only affects the
marine mammals that are the subject of the specific authorization and,
thus, no potential for significant cumulative impacts are expected,
regardless of past, present, or reasonably foreseeable actions, even
though the impacts of the action may not be significant by itself.
Based on this evaluation, we concluded that the issuance of the IHA
qualifies to be categorically excluded from further NEPA review.
The evaluation of whether extraordinary circumstances (if present)
have the potential for significant environmental effects is limited to
the decision NMFS is responsible for, which is issuance of the
incidental take authorization. While there may be environmental effects
associated with the underlying action, potential effects of NMFS'
action are limited to those that would occur due to the authorization
of incidental take of
[[Page 61091]]
marine mammals. NMFS prepared numerous EAs analyzing the environmental
impacts of the categories of activities encompassed by CE B4 which
resulted in Findings of No Significant Impacts (FONSIs) and, in
particular, numerous EAs prepared in support of issuance of IHAs
related to similar survey actions are part of NMFS' administrative
record supporting CE B4. These EAs demonstrate the issuance of a given
IHA does not affect other aspects of the human environment because the
action only affects the marine mammals that are the subject of the IHA.
These EAs also addressed factors in 40 CFR 1508.27 regarding the
potential for significant impacts and demonstrate the issuance of IHA
for the categories of activities encompassed by CE B4 do not
individually or cumulatively have a significant effect on the human
environment.
Specifically for this action, NMFS plans to rely upon the
previously issued CE for the 2023 IHA. NMFS independently evaluated the
use of the CE for issuance of Vineyard Northeast's 2023 IHA, which
included consideration of extraordinary circumstances. As part of that
analysis, NMFS considered whether the 2023 IHA issuance would result in
cumulative impacts that could be significant. The issuance of the 2023
IHA to Vineyard Northeast is expected to result in minor, short-term
behavioral effects on marine mammal species due to exposure to
underwater sound from site characterization survey activities, and this
determination remains relevant for the current IHA. Behavioral
disturbance is possible to occur intermittently in the vicinity of
Vineyard Northeast's survey area during the 1-year timeframe. Level B
harassment will be reduced through use of mitigation measures described
herein. Additionally, as discussed elsewhere, NMFS has determined that
Vineyard Northeast's activities fall within the scope of activities
analyzed in GARFO's programmatic consultation regarding geophysical
surveys along the U.S. Atlantic coast in the three Atlantic Renewable
Energy Regions (completed June 29, 2021; revised September 2021), which
concluded surveys such as those planned by Vineyard Northeast are not
likely to adversely affect endangered listed species or adversely
modify or destroy critical habitat. Accordingly, NMFS has determined
that the issuance of this renewal IHA will result in no more than
negligible (as that term is defined by the Companion Manual for NAO
216-6A) adverse effects on species protected by the ESA and the MMPA.
Comment 4: A commenter suggested that a Letter of Authorization
(LOA) would be more appropriate than an IHA for the proposed survey
activities as the survey activities have spanned more than one year and
``it is not clear how long the proposed activities would span given
past delays.''
Response: NMFS disagrees with the commenter that an LOA would be
more appropriate for the planned survey activities than an IHA. All
IHAs issued, whether an initial IHA or a renewal, are valid for a
period of not more than 1 year. Vineyard Northeast's request for the
initial IHA indicated a project duration of 1 year. As delays may be
encountered, applicants may apply for a renewal IHA if the work under
the initial IHA is not able to be completed within the effective period
of the authorization. In order to qualify for a renewal IHA, the
proposed renewal must consist of up to another year of identical, or
nearly identical, activities as were covered by the initial IHA or a
subset of the activities covered by the initial IHA. Vineyard
Northeast's request falls under the latter requirements and the
necessary preliminary monitoring data collected under the initial IHA
were provided. Therefore, Vineyard Northeast's request is appropriate
for a renewal IHA.
Regarding clarification on authorizations, as described on our
website, IHAs are 1-year authorizations and Incidental Take Regulations
(ITR) are 5-year regulations that allow for the issuance of LOA. An ITR
must be used if authorization of take by mortality is necessary.
However, both options are available for applicants requesting
authorization of harassment only. While applicants may request a 5-year
regulation for HRG survey activities, NMFS has not received any such
requests to date and there is no expectation presented in the MMPA or
Congressional record that activities continuing for more than 1 year
must seek ITR and authorization under 101(a)(5)(A) of the MMPA.
Therefore, a determination of which option to take is not dependent on
any expectation regarding whether the activity will continue for more
than 1 year or not.
Comment 5: Multiple commenters provided general concerns regarding
recent marine mammal stranding events on the Atlantic Coast, including
speculation that the strandings may be related to wind energy
development-related activities. Commenters further urged NMFS to
``reject Vineyard Northeast's application to renew its IHA'' and
postpone issuing IHAs for any wind energy development-related
activities until NMFS can ``definitively'' determine the cause of the
recent strandings.
Response: NMFS authorizes take of marine mammals incidental to
construction activities and marine site characterization surveys,
provided the necessary findings are made, but does not authorize the
activities themselves. Therefore, while NMFS has the authority to
modify, suspend, or revoke an IHA if the IHA holder fails to abide by
the conditions prescribed therein (e.g., failure to comply with
monitoring or reporting requirements), or if NMFS determines that (1)
the authorized taking is having or is likely to have more than a
negligible impact on the species or stocks of affected marine mammals,
or (2) the prescribed measures are likely not or are not effecting the
least practicable adverse impact on the affected species or stocks and
their habitat, it is not within NMFS' jurisdiction to delay offshore
wind development or to require activities to cease.
NMFS reiterates that there is no evidence that acoustic noise
resulting from offshore wind development-related activities could
potentially cause marine mammal stranding, and there is no evidence
linking recent marine mammal mortalities and currently ongoing offshore
wind development activities. This point has been well supported by
other agencies, including BOEM and the Marine Mammal Commission (Marine
Mammal Commission Newsletter, Spring 2023). In addition, a recent study
(Thorne and Wiley, 2024) reviewed spatiotemporal patterns of
strandings, mortalities, and serious injuries of humpback whales along
the US east coast from 2016-2022 and found vessel strikes to be the
major driver in the increase of humpback whale strandings, mortalities,
and serious injury. Based upon the spatiotemporal analysis, no evidence
was found that offshore wind development played a role in the increased
number of strandings over time; for example, spatiotemporal patterns
between strandings and site assessment surveys did not seem associated.
In fact, the potential for vessel strike increased from 2016-2022 in
association with increased container vessel traffic that overlapped
with whales in new and shallow foraging areas. This potential for
vessel strike also seemed to increase with the increased presence of
juvenile humpback whales foraging off the Mid-Atlantic States. Under
the renewal IHA, NMFS would require Vineyard Northeast to abide by
vessel speed restrictions and maintain separation distances between
vessels and marine
[[Page 61092]]
mammals that would minimize the risk of any potential vessel strikes.
There is an ongoing Unusual Mortality Event (UME) for humpback
whales along the Atlantic coast from Maine to Florida, which includes
animals stranded since 2016. Partial or full necropsy examinations were
conducted on approximately half of the whales. Necropsies were not
conducted on other carcasses because they were too decomposed, not
brought to land, or stranded on protected lands (e.g., national and
state parks) where responders had limited or no access to the
carcasses. Of the roughly 90 whales examined, about 40 percent had
evidence of human interaction (i.e., vessel strike or entanglement).
The remaining 50 necropsied whales either had an undetermined cause of
death due to a limited examination or decomposition of the carcass, or
had other causes of death (e.g., parasite-caused organ damage and
starvation). Ongoing UMEs are also occurring for North Atlantic right
whales and minke whales, both since 2017. NMFS will continue to gather
data to help us determine the cause of death for these stranded whales.
Vessel strikes and entanglement in fishing gear continue to be the
greatest human threats to large whales.
Comment 6: A commenter claims that issuance of the renewal IHA
violates the Endangered Species Act (ESA) as the planned survey
activities would result in ``impacts on the ecology'' of the area.
Response: NMFS disagrees with commenters that the renewal IHA
violates the ESA. Under section 7(a)(2) of the ESA, Federal agencies
are required to consult with NMFS or the U.S. Fish and Wildlife
Service, as appropriate, to ensure that the actions they fund, permit,
authorize, or otherwise carry out will not jeopardize the continued
existence of any listed species or result in the destruction or adverse
modification of designated critical habitats. NMFS has determined that
Vineyard Northeast's planned survey activities fall within the scope of
activities analyzed in NMFS GARFO's programmatic consultation regarding
geophysical surveys along the U.S. Atlantic coast in the three Atlantic
Renewable Energy Regions (completed June 29, 2021; revised September
2021). This consultation found that these survey activities are in
general not likely to adversely affect any ESA-listed species listed or
critical habitat.
Changes From Proposed to Final Renewal IHA
No changes were made from the proposed renewal IHA to the final
renewal IHA.
Description of Marine Mammals
A description of the marine mammals in the proposed survey area may
be found in the Federal Register notice for the proposed 2023 IHA (88
FR 40212, June 21, 2023), which relies upon information in the notice
of the proposed 2022 IHA (87 FR 30872, May 20, 2022). After the 2023
IHA was issued, NMFS released its draft 2023 stock assessment reports
(SARs). NMFS has reviewed the draft 2023 SARs, which included updates
to certain stock abundance estimates, information on relevant unusual
mortality events (UME), and other scientific literature. The draft 2023
SAR updated the population estimate (N<INF>best</INF>) of North
Atlantic right whales from 338 to 340 and annual mortality and serious
injury from 31.2 to 27.2. The updated population estimate in the draft
2023 SAR is based upon sighting history through December 2021 (89 FR
5495, January 29, 2024). 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, however,
estimates of 27.2 total mortality and 17.6 fishery mortality account
for undetected mortality and serious injury (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). NMFS conservatively
relies in this circumstance on the lower SAR abundance estimate. NMFS
has determined that neither this nor any other new information affects
which species or stocks have the potential to be affected or any other
pertinent information in the Description of the Marine Mammals in the
Area of Specified Activities contained in the supporting documents for
the 2023 and 2022 IHAs.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations to further reduce
the likelihood of mortalities and serious injuries to endangered North
Atlantic right whales from vessel collisions, which are a leading cause
of the species' decline and a primary factor in an ongoing UME (87 FR
46921, August 1, 2022). Should a final vessel speed rule be issued and
become effective during the effective period of this renewal IHA (or
any other MMPA incidental take authorization), the authorization holder
would 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 would 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 would remain in place. These
changes would become effective immediately upon the effective date of
any final vessel speed rule and would not require any further action on
NMFS's part.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which
incidental take is authorized here may be found in the notice of the
proposed IHA for the 2022 IHA (87 FR 30872, May 20, 2022), which is
relied upon in the notice for the proposed 2023 IHA (88 FR 40212, June
21, 2023). NMFS has reviewed the monitoring data from the 2023 IHA,
recent draft SARs, information on relevant UMEs, and other scientific
literature, and determined that there is no new information that
affects our initial analysis of impacts on marine mammals and their
habitat.
Estimated Take
A detailed description of the methods used to estimate take for the
specified activity are found in the notices of the proposed and final
IHA for the 2022 IHA (87 FR 30872, May 20, 2022; 87 FR 52913, August
30, 2022) and summarized in the notices of the proposed and final IHA
for the 2023 IHA (88 FR 40212, June 21, 2023; 88 FR 50117, August 1,
2023). The methods of estimating take are identical to those used in
the 2022 IHA and 2023 IHA (88 FR 40212, June 21, 2023). Specifically,
the source levels, stocks taken, methods of take, and types of take
remain unchanged from the 2022 IHA and 2023 IHA. In 2023, Vineyard
Northeast updated the marine mammal densities based on new information
(Roberts et al., 2016; Roberts et al., 2023), available online at:
<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>. We refer the reader to
table 8 in Vineyard Northeast's 2023
[[Page 61093]]
IHA request for the specific density values used in the analysis. The
IHA request is available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-northeast-llcs-marine-site-characterization-survey">https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-northeast-llcs-marine-site-characterization-survey</a>. The marine mammal density/occurrence data
applicable to this renewal authorization remains unchanged from the
2023 IHA. The number of takes authorized are a subset of the initial
authorized takes that better represent the amount of the remaining
activity Vineyard Northeast has left to complete. These estimated
takes, which reflect the remaining survey days, are indicated below in
table 1.
Table 1--Authorized Number of Takes by Level B Harassment by Species and Stock and Percent of Take by Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
2024 renewal IHA
2023 IHA -------------------------------
Species Scientific name Stock Abundance authorized take Authorized Max percent
take \1\ population
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale........................ Balaenoptera Western North 402 1 1 0.25
musculus. Atlantic.
North Atlantic right whale........ Eubalaena glacialis. Western North 340 12 12 3.52
Atlantic.
Humpback whale.................... Megaptera Gulf of Maine....... 1,396 12 12 0.86
novaeangliae.
Fin whale......................... Balaenoptera Western North 6,802 20 20 0.29
physalus. Atlantic.
Sei whale......................... Balaenoptera Nova Scotia......... 6,292 5 5 0.08
borealis.
Minke whale....................... Balaenoptera Canadian Eastern 21,968 46 45 0.21
acutorostrata. Coastal.
Sperm whale....................... Physeter North Atlantic...... 5,895 2 2 0.03
macrocephalus.
Long-finned pilot whale \1\....... Globicephala melas.. Western North 39,215 17 17 0.04
Atlantic.
Killer whale \2\ \3\.............. Orcinus orca........ Western North UNK 4 4 \4\ 5.97
Atlantic.
False killer whale \2\............ Pseudorca crassidens Western North 1,298 5 5 0.39
Atlantic.
Atlantic spotted dolphin \3\...... Stenella frontalis.. Western North 31,506 29 29 0.09
Atlantic.
Atlantic white-sided dolphin...... Lagenorhynchus Western North 93,233 129 126 0.14
acutus. Atlantic.
Bottlenose dolphin................ Tursiops truncatus.. Western North 6,639 45 44 0.66
Atlantic Northern
Migratory Coastal.
.................... Western North 64,587 169 165 0.26
Atlantic Offshore.
Common dolphin.................... Delphinus delphis... Western North 93,100 7,472 7,296 7.84
Atlantic.
Risso's dolphin................... Grampus griseus..... Western North 44,067 9 9 0.02
Atlantic.
White-beaked dolphin \2\ \3\...... Lagenorhynchus Western North 536,016 30 30 0.006
albirostris. Atlantic.
Harbor porpoise................... Phocoena phocoena... Gulf of Maine/Bay of 85,765 347 339 0.40
Fundy.
Harbor seal \5\................... Phoca vitulina...... Western North 61,336 939 917 1.49
Atlantic.
Gray seal \5\..................... Halichoerus grypus.. Western North \6\ 27,911 418 408 0.09
Atlantic.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Roberts et al. (2023) only provides density estimates for pilot whales as a guild. Given the project's location, NMFS assumes that all take will be
of long-finned pilot whales.
\2\ Rare (or unlikely to occur) species.
\3\ Adjusted according to average group size (Kraus et al., 2016; Palka et al., 2017).
\4\ Based upon minimum population estimate of 67 individual killer whales identified in the Northwestern Atlantic Ocean (Lawson and Stevens, 2014).
\5\ Roberts et al. (2023) only provides a density estimate for seals as a guild. Vineyard Wind used Protected Species Observer (PSO) data collected
during site characterization surveys within the survey area (2019, 2022-2024) to scale density-based exposure estimates for the seal guild for harbor
and gray seals.
\6\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
approximately 451,600.
Description of Mitigation, Monitoring and Reporting Measures
These required mitigation, monitoring, and reporting measures are
identical to those included in the Federal Register notices announcing
the issuance of the 2023 IHA (88 FR 50117, August 1, 2023) and the 2022
IHA (87 FR 52913, August 30, 2022). In addition, the discussion of the
least practicable adverse impact included in those documents as well as
the notice of the proposed IHAs for 2022 (87 FR 30872, May 20, 2022)
and 2023 (88 FR 40212, August 1, 2023) remains accurate. NMFS will
require the following measures for this renewal IHA:
Establishment of Shutdown Zones--Marine mammal shutdown zones must
be established around the HRG survey equipment and monitored by NMFS-
approved PSOs during HRG surveys as follows:
<bullet> 500-m shutdown zone for North Atlantic right whales during
use of specified acoustic sources (impulsive: sparkers and boomers;
non-impulsive: non-parametric sub-bottom profilers); and
<bullet> 100-m shutdown zone for all other marine mammals
(excluding North Atlantic right whales) during operation of the sparker
and boomer. The only exception for this is for pinnipeds (seals) and
small delphinids (i.e., those from the genera Delphinus,
Lagenorhynchus, Stenella or Tursiops).
If a marine mammal is detected approaching or entering the shutdown
zones during the HRG survey, the vessel operator will adhere to the
shutdown procedures described below to minimize noise impacts on the
animals. During use of acoustic sources with the potential to result in
marine mammal harassment (sparkers, boomers, and non-parametric sub-
bottom profilers; i.e., anytime the acoustic source is active,
including ramp-up), occurrences of marine mammals outside the shutdown
zones must be communicated to the vessel operator to prepare for
potential shutdown of the acoustic source.
Visual Monitoring--Monitoring must be conducted by NMFS-approved
PSOs with minimum qualifications described in the Federal Register
notices for the 2023 Proposed and Final IHAs (88 FR 40212, June 21,
2023; 88 FR 50117, August 1, 2023). Vineyard Northeast must have one
PSO on duty during the day and a minimum of two PSOs must be on duty
and conducting visual observations when HRG equipment is in use at
night. Visual monitoring must begin no less than 30 minutes prior to
ramp-up of HRG equipment and continue until 30 minutes after use of the
acoustic source. PSOs must establish and monitor the applicable
clearance zones, shutdown zones, and vessel separation distances as
described in the 2022 IHA (87 FR 52913, August 30, 2022). PSOs must
coordinate to ensure 360-degree visual coverage around the vessel from
the most appropriate observation posts, and must conduct observations
while free from distractions and in a consistent, systematic, and
diligent manner. PSOs are required to estimate distances to
[[Page 61094]]
observed marine mammals. It is the responsibility of the Lead PSO on
duty to communicate the presence of marine mammals as well as to
communicate action(s) that are necessary to ensure mitigation and
monitoring requirements are implemented as appropriate.
Pre-Start Clearance--Marine mammal clearance zones must be
established around the HRG survey equipment and monitored by NMFS-
approved PSOs prior to use of boomers, sparkers, and non-parametric
sub-bottom profilers as follows:
<bullet> 500-m clearance zone for all ESA-listed species; and
<bullet> 100-m clearance zone for all other marine mammals.
Prior to initiating HRG survey activities, Vineyard Northeast must
implement a 30-minute pre-start clearance period. The operator must
notify a designated PSO of the planned start of ramp-up where the
notification time should not be less than 60 minutes prior to the
planned ramp-up to allow the PSOs to monitor the clearance zones for 30
minutes prior to the initiation of ramp-up. Prior to ramp-up beginning,
Vineyard Northeast must receive confirmation from the PSO that the
clearance zones are clear prior to preceding. Any PSO on duty has the
authority to delay the start of survey operations if a marine mammal is
detected within the applicable pre-start clearance zones.
During this 30-minute period, the entire clearance zone must be
visible. The exception to this would be in situations where ramp-up
must occur during periods of poor visibility (inclusive of nighttime)
as long as appropriate visual monitoring has occurred with no
detections of marine mammals in 30 minutes prior to the beginning of
ramp-up.
If a marine mammal is observed within the relevant clearance zones
during the pre-start clearance period, initiation of HRG survey
equipment must not begin until the animal(s) has been observed exiting
the respective clearance zone, or, until an additional period has
elapsed with no further sighting (i.e., minimum 15 minutes for small
odontocetes and seals; 30 minutes for all other species). The pre-start
clearance requirement includes small delphinids. PSOs must also
continue to monitor the zone for 30 minutes after survey equipment is
shut down or survey activity has concluded.
Ramp-Up of Survey Equipment--When technically feasible, a ramp-up
procedure must be used for geophysical survey equipment capable of
adjusting energy levels at the start or re-start of survey activities.
The ramp-up procedure must be used at the beginning of HRG survey
activities in order to provide additional protection to marine mammals
near the project area by allowing them to detect the presence of the
survey and vacate the area prior to the commencement of survey
equipment operation at full power. Ramp-up of the survey equipment must
not begin until the relevant shutdown zones have been cleared by the
PSOs, as described above. HRG equipment operators must ramp up acoustic
sources to half power for 5 minutes and then proceed to full power. If
any marine mammals are detected within the shutdown zones prior to or
during ramp-up, the HRG equipment must be shut down (as described
below).
Shutdown Procedures--If an HRG source is active and a marine mammal
is observed within or entering a relevant shutdown zone (as described
above), an immediate shutdown of the HRG survey equipment is required.
When shutdown is called for by a PSO, the acoustic source must be
immediately deactivated and any dispute resolved only following
deactivation. Any PSO on duty has the authority to delay the start of
survey operations or to call for shutdown of the acoustic source if a
marine mammal is detected within the applicable shutdown zone. The
vessel operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
HRG source(s) to ensure that shutdown commands are conveyed swiftly
while allowing PSOs to maintain watch. Subsequent restart of the HRG
equipment may only occur after the marine mammal has been observed
exiting the relevant shutdown zone, or, until an additional period has
elapsed with no further sighting of the animal within the relevant
shutdown zone.
Upon implementation of shutdown, the HRG source may be reactivated
after the marine mammal that triggered the shutdown has been observed
exiting the applicable shutdown zone or, following a clearance period
of 15 minutes for small odontocetes (i.e., harbor porpoise) and 30
minutes for all other species with no further observation of the marine
mammal(s) within the relevant shutdown zone. If the HRG equipment is
shut down for brief periods (i.e., less than 30 minutes) for reasons
other than mitigation (e.g., mechanical or electronic failure) the
equipment may be reactivated as soon as is practicable at full
operational level, without 30 minutes of pre-clearance, only if PSOs
have maintained constant visual observation during the shutdown and no
visual detections of marine mammals occurred within the applicable
shutdown zones during that time. For a shutdown of 30 minutes or
longer, or if visual observation was not continued diligently during
the pause, pre-clearance observation is required, as described above.
The shutdown requirement is waived for pinnipeds (seals) and
certain genera of small delphinids (i.e., Delphinus, Lagenorhynchus,
Stenella, or Tursiops) under certain circumstances. If a delphinid(s)
from these genera is visually detected within the shutdown zone,
shutdown would not be required. If there is uncertainty regarding
identification of a marine mammal species (i.e., whether the observed
marine mammal(s) belongs to one of the delphinid genera for which
shutdown is waived), PSOs must use best professional judgment in making
the decision to call for a shutdown.
If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
area encompassing the Level B harassment isopleth (178 m), shutdown
must occur.
Vessel Strike Avoidance--Vineyard Northeast must comply with vessel
strike avoidance measures as summarized in the Federal Register notice
for the 2023 IHA (88 FR 50117, August 1, 2023). For a detailed
description of vessel strike avoidance measures, please see the Federal
Register notice for the 2022 IHA (87 FR 52913, August 30, 2022). This
includes speed restrictions (10 knots or less) when mother/calf pairs,
pods, or large assemblages of cetaceans are spotted near a vessel;
species-specific vessel separation distances; appropriate vessel
actions when a marine mammal is sighted (e.g., avoid excessive speed,
remain parallel to animal's course, etc.); and monitoring of the NMFS
North Atlantic Right Whale reporting system and WhaleAlert daily.
Throughout all phases of the survey activities, Vineyard Northeast
must monitor NOAA Fisheries North Atlantic right whale reporting
systems for the establishment of a dynamic management area (DMA). If
NMFS establishes a DMA in the surrounding area, including the project
area or export cable routes being surveyed, Vineyard Northeast is
required to abide by the 10-knot speed restriction.
Training--Project-specific training is required for all vessel crew
prior to the start of survey activities.
Reporting--PSOs must record specific information as described in
the Federal Register notice of the issuance of the 2023 IHA (88 FR
50117, August 1,
[[Page 61095]]
2023). Within 90 days after completion of survey activities, Vineyard
Northeast must provide NMFS with a monitoring report, which must
include summaries of recorded takes and estimates of the number of
marine mammals that may have been harassed.
In the event of a ship strike or discovery of an injured or dead
marine mammal, Vineyard Northeast must report the incident to the NMFS
Office of Protected Resources (<a href="/cdn-cgi/l/email-protection#f6a6a4d8bfa2a6d8bb99989f8299849f9891a4938699848285b698999797d8919980"><span class="__cf_email__" data-cfemail="3b6b6915726f6b15765455524f544952555c695e4b54494f487b55545a5a155c544d">[email protected]</span></a>) and
to the NMFS Greater Atlantic Stranding Hotline (866-755-6622) as soon
as feasible. The incident must also be reported to the NMFS GARFO
(<a href="/cdn-cgi/l/email-protection#dbb5b6bda8f5bcbaa9f5b2b5b8b2bfbeb5afbab7f6afbab0be9bb5b4babaf5bcb4ad"><span class="__cf_email__" data-cfemail="1a74777c69347d7b6834737479737e7f746e7b76376e7b717f5a74757b7b347d756c">[email protected]</span></a>). The report must include the
information listed in the Federal Register notice of the issuance of
the 2022 IHA (87 FR 52913, August 30, 2022).
Determinations
Vineyard Northeast's HRG survey activities are a subset but
otherwise unchanged from those analyzed in support of the 2023 IHA. The
effects of the activity, taking into consideration the required
mitigation and related monitoring measures, remain unchanged from those
evaluated in support of the 2023 IHA. NMFS expects that all potential
takes would be short-term Level B harassment in the form of temporary
avoidance of the area or decreased foraging, reactions that are
considered to be of low severity and with no lasting biological
consequences (e.g., Southall et al., 2007). In addition to being
temporary, the maximum harassment zone around a survey vessel is 178 m
from use of the Applied Acoustics AA251 Boomer. Although this distance
is assumed for all survey activity evaluated here and in estimating
authorized take numbers, in reality, much of the survey activity would
involve use of acoustic sources with a reduced acoustic harassment zone
(4 m for the Edge Tech Chirp 216 or 141 m for the GeoMarine Geo Spark
2000), producing expected effects of particularly low severity.
Therefore, the ensonified area surrounding each vessel is relatively
small compared to the overall distribution of the animals in the area
and the available habitat.
The survey area overlaps or is in close proximity to feeding
biologically important areas (BIA) for North Atlantic right whales
(Cape Cod Bay and Massachusetts Bay BIA, February-April/Great South
Channel and Georges Bank Shelf Break BIA, April-June), humpback whales
(March-December), fin whales (year-round/March-October), sei whales
(May-November), and minke whales (March-November), as well as overlaps
the migratory BIA for North Atlantic right whales (November 1-April 30)
(LaBrecque et al., 2015). Most of these feeding BIAs are extensive and
sufficiently large (e.g., 3,149 km\2\ and 12,247 km\2\ for North
Atlantic right whales; 47,701 km\2\ for humpback whales; 18,015 km\2\
and 2,933 km\2\ for fin whales; 56,609 km\2\ for sei whales; 54,341 for
minke whales), and the acoustic footprint of the proposed survey is
sufficiently small that feeding opportunities for these species would
not be reduced appreciably. In addition, the survey area also overlaps
with the area south of Martha's Vineyard and Nantucket, primarily along
the western side of Nantucket Shoals, which has been identified as
year-round core North Atlantic right whale foraging habitat (Leiter et
al., 2017; O'Brien et al., 2022; Quintana-Rizzo et al., 2021; Van
Parijs et al., 2023). As prey species are mobile and broadly
distributed throughout the survey area, marine mammals that are
temporarily displaced during survey activities are expected to be able
to resume foraging once they have moved away from areas with disturbing
levels of underwater noise, thus we do not expect biologically
significant impacts to feeding behavior. Due to the temporary nature of
the disturbance, the availability of similar habitat and resources in
the surrounding area, and required mitigation measures, the impacts to
marine mammals and the food sources that they utilize are not expected
to cause significant or long-term consequences for individual marine
mammals or their populations. The impacts of these lower severity
exposures are not expected to accrue to a degree that the fitness of
any individuals would be impacted and, therefore, no impacts on the
annual rates of recruitment or survival would result.
As previously discussed in the 2023 IHA (88 FR 50117, August 1,
2023), impacts from the survey are expected to be localized to the
specific area of activity and only during periods when Vineyard
Northeast's acoustic sources are active. There are no rookeries, mating
or calving grounds known to be biologically important to marine mammals
within the survey area.
As noted for the 2023 IHA (88 FR 50117, August 1, 2023), the survey
area overlaps a migratory corridor BIA and migratory route seasonal
management areas (SMAs) (Port of New Jersey/New York and Block Island)
for North Atlantic right whales. As the survey activities would be
temporary and the spatial acoustic footprint produced by the survey
would be very small relative to the spatial extent of the available
migratory habitat in the BIA (269,448 km\2\), NMFS does not expect
North Atlantic right whale migration to be impacted by the survey.
Required vessel strike avoidance measures would also decrease risk of
ship strike during migration; no ship strike is expected to occur
during Vineyard Northeast's activities. Vineyard Northeast would be
required to comply with seasonal speed restrictions of these SMAs, and
in any DMA, should NMFS establish one (or more) in the proposed survey
area. The 2022 IHA included the Cape Cod Bay SMA in the survey area,
however, in 2023 the survey area was reduced and no longer overlapped
with this SMA. The survey area for this renewal IHA also does not
include the Cape Cod Bay SMA.
Although take by Level B harassment of North Atlantic right whales
has been authorized by NMFS, we anticipate a very low level of
harassment, should it occur, because Vineyard Northeast is required to
maintain a shutdown zone of 500 m if a North Atlantic right whale is
observed. The authorized takes account for any missed animals wherein
the survey equipment is not shut down immediately. As shutdown would be
called for immediately upon detection (if the whale is within 500 m),
it is likely the exposure time would be very limited and received
levels would not be much above the harassment threshold. Further, the
500-m shutdown zone for right whales is conservative, considering the
distance to the Level B harassment isopleth for the most impactful
acoustic source (i.e., Applied Acoustics AA251 Boomer--which may not be
used on all survey days) is estimated to be 178 m, and thereby
minimizes the potential for behavioral harassment of this species. As
noted previously, Level A harassment is not expected due to the small
permanent threshold shift zones associated with HRG equipment types
planned for use. NMFS does not anticipate North Atlantic right whale
takes that would result from Vineyard Northeast's activities would
impact annual rates of recruitment or survival. Thus, any takes that
occur would not result in population level impacts.
We also note that our findings for other species with active UMEs
that were previously described for the 2023 IHA (88 FR 50117, August 1,
2023) remain applicable to this project. In addition, our analysis of
survey effects on species with BIAs that overlap with the survey area
remains unchanged. Therefore, in conclusion, there is no new
information suggesting that our analysis or findings should change.
[[Page 61096]]
NMFS has concluded that there is no new information suggesting that
our analysis or findings should change from those reached for the 2023
IHA. This includes consideration of the slight increase in estimated
abundance of six stocks and slight decrease in estimated abundance of
three stocks. Based on the information contained here and in the
referenced documents, NMFS has determined the following: (1) the
required mitigation measures would effect the least practicable impact
on marine mammal species or stocks and their habitat; (2) the
authorized takes would have a negligible impact on the affected marine
mammal species or stocks; (3) the authorized takes represent small
numbers of marine mammals relative to the affected stock abundances;
(4) Vineyard Northeast's activities would not have an unmitigable
adverse impact on taking for subsistence purposes as no relevant
subsistence uses of marine mammals are implicated by this action; and
(5) appropriate monitoring and reporting requirements are included.
National Environmental Policy Act
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental take authorizations with no
anticipated serious injury or mortality) of the Companion Manual for
NOAA Administrative Order 216-6A, which do not individually or
cumulatively have the potential for significant impacts on the quality
of the human environment and for which we have not identified any
extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS determined that the issuance of the
initial IHA qualified to be categorically excluded from further NEPA
review. NMFS has determined that the application of this categorical
exclusion remains appropriate for this renewal IHA.
Endangered Species Act
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency insure that any action it authorizes,
funds, or carries out is not likely to jeopardize the continued
existence of any endangered or threatened species or result in the
destruction or adverse modification of designated critical habitat. To
ensure ESA compliance for the issuance of IHAs, NMFS Office of
Protected Resources consults internally whenever we propose to
authorize take for endangered or threatened species.
NMFS has authorized the incidental take of five species of marine
mammals which are listed under the ESA, including the North Atlantic
right, fin, sei, blue, and sperm whale, and has determined that this
activity falls within the scope of activities analyzed in NMFS GARFO's
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021).
Renewal
NMFS has issued a renewal IHA to Vineyard Northeast for the take of
marine mammals incidental to conducting marine site characterization
surveys offshore from Massachusetts to New Jersey in the BOEM Lease
Areas OCS-A 0522 and OCS-A 0544 and associated OECC routes, from July
27, 2024, through July 26, 2025.
Dated: July 25, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-16734 Filed 7-29-24; 8:45 am]
BILLING CODE 3510-22-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 30, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.