Notice2024-16788
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off the Coast of Delaware
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 31, 2024
Effective
August 1, 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 an incidental harassment authorization (IHA) to Orsted Wind Power North America, LLC (Orsted) to incidentally harass marine mammals during marine site characterization surveys conducted off the coast of Delaware in 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 0482 and 0519 (Lease Areas), and the associated export cable route (ECR) area.
Full Text
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<title>Federal Register, Volume 89 Issue 147 (Wednesday, July 31, 2024)</title>
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[Federal Register Volume 89, Number 147 (Wednesday, July 31, 2024)]
[Notices]
[Pages 61403-61414]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-16788]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE016]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off the Coast of Delaware
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Orsted Wind Power North America, LLC (Orsted) to incidentally harass
marine mammals during marine site characterization surveys conducted
off the coast of Delaware in 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 0482
and 0519 (Lease Areas), and the associated export cable route (ECR)
area.
DATES: This authorization is effective from August 1, 2024, through
July 31, 2025.
ADDRESSES: Electronic copies 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 below.
FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, 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 proposed or, if the taking is limited to harassment, a notice of a
proposed IHA is provided to the public for review.
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 the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the monitoring and
reporting of the takings. The definitions of all applicable MMPA
statutory terms cited above are included in the relevant sections
below.
History of Request
On October 1, 2021, Orsted, a limited liability company registered
in the State of Delaware, submitted a request on behalf of Garden State
Offshore Energy, LLC (Garden State) and Skipjack Offshore Energy, LLC
(Skipjack), both subsidiaries of Orsted and both registered in the
State of Delaware, for an IHA to take marine mammals incidental to
marine site characterization surveys off the coast of Delaware in OCS-A
0482 and 0519, and along potential ECRs to landfall locations in
Delaware and New Jersey. NMFS published a notice of the proposed IHA in
the Federal Register on March 21, 2022 (87 FR 15922). Subsequently, the
final notice of issuance of the IHA was published in the Federal
Register (87 FR 30182, May 18, 2022), announcing effective dates of
that IHA from May 10, 2022, through May 9, 2023 (2022 IHA). The
specified activities were expected to result in the take, by Level B
harassment, of 15 species (16 stocks) of marine mammals. The work was
expected to be completed within the 1-year timeframe of the IHA.
However, no work was completed under the original IHA.
On February 23, 2023, Orsted submitted a request that NMFS re-issue
the previously issued IHA with the only change being new effective
dates. NMFS published a notice of re-issuance of that IHA, announcing
effective dates of May 10, 2023, through May 9, 2024 (88 FR 30278, May
11, 2023) (2023 IHA). The
[[Page 61404]]
specified activity, specific geographical region, the type of equipment
or survey activities, amount of take requested by Orsted and later
authorized by NMFS, as well as the planned mitigation, monitoring, and
requirements remained unchanged from the 2022 IHA. Orsted completed a
portion of the survey work that was covered by the 2023 IHA and
submitted a preliminary monitoring report demonstrating that the
required mitigation and monitoring requirements were satisfied, no
impacts of a scale or nature not previously analyzed or authorized
occurred as a result of the activities conducted, and the IHA holder
did not exceed the authorized levels of take under that IHA (88 FR
30278, May 11, 2023).
On March 6, 2024, NMFS received a letter from Orsted requesting
renewal of the re-issued 2023 IHA (2024 request) to conduct the same
site characterization surveys within the same survey areas using the
same type of survey equipment that was previously analyzed under the
2022 IHA and re-issued 2023 IHA. While Orsted's planned activity would
ordinarily qualify for a renewal of the IHA, NMFS determined that a
renewal of the 2023 IHA is not appropriate due to availability of
substantially updated marine mammal density data for all species since
issuance of the 2022 IHA (<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a> EC/
), which NMFS determined represents the best available scientific data
and which serves as the basis for updating the estimated take numbers.
Marine mammal density estimates in the survey area (animals/km\2\) were
obtained using the most recent model results for all taxa (Roberts et
al., 2023). The updated models incorporate sighting data, including
sightings from NOAA's Atlantic Marine Assessment Program for Protected
Species (AMAPPS) surveys. After discussions with the applicant, NMFS
received a revised request incorporating the new information, which was
deemed adequate and complete on April 12, 2024. In evaluating the 2024
request, and where applicable, NMFS relies on the information
previously presented in notices associated with issuance of the 2022
IHA (87 FR 15922, March 21, 2022; 87 FR 30182, May 18, 2022). There are
no changes from the proposed IHA to the final IHA.
Description of the Activity and Anticipated Impacts
Overview
Orsted will conduct marine site characterization surveys, including
high-resolution geophysical (HRG) surveys and geotechnical surveys, in
BOEM Lease Areas OCS-A 0482 and 0519, and the associated ECRs. The
purpose of the marine site characterization surveys is to collect data
concerning seabed (geophysical, geotechnical, and geohazard),
ecological, and archeological conditions within the footprint of
offshore wind facility development. Surveys are also conducted to
support engineering design and to map unexploded ordnance (UXO).
Underwater sound resulting from Orsted's planned activities,
specifically HRG surveys, has the potential to result in incidental
take of 15 species (16 stocks) of marine mammals, in the form of Level
B harassment only. The IHA covers the same specified activities
previously described in Orsted's application for the 2022 IHA and
subsequent documents. NMFS refers the public to the documents and
supplemental materials related to the 2022 Federal Register notice of
proposed IHA (87 FR 15922; March 21, 2022), the notice of issuance of
the original 2022 IHA (87 FR 30182, May 18, 2022), the notice of re-
issuance of that IHA (88 FR 30278, May 11, 2023), and 2024 notice of
proposed IHA (89 FR 46073, May 28, 2024). The descriptions and analyses
contained in those documents remain accurate with the exception of the
minor modifications described herein.
Dates and Duration
The specified activities are planned to begin August 1, 2024. The
duration of the planned activity remains unchanged from the 2022 IHA
and the re-issued 2023 IHA and is expected to require up to 350 survey
days across a maximum of three vessels operating concurrently over the
course of a single year (``survey day'' defined as a 24-hr activity
period in which the assumed number of line km are surveyed). The number
of anticipated survey days was calculated as the number of days needed
to reach the overall level of effort required to meet survey objectives
assuming any single vessel travels 4 knots (kn) (7.4 kilometers per
hour (km/hr)) and surveys cover, on average, 70 line km per 24-hr
period.
Specific Geographic Region
The specific geographic region remains unchanged from the
previously issued 2022 IHA and re-issued 2023 IHA. The planned
activities will occur within the Project Area, which includes the Lease
Areas and potential ECRs to landfall locations in Delaware. The
combined Lease Areas OCS-A 0482 and 0519 comprise approximately 568
square kilometers (km\2\) within the Wind Energy Area of BOEM's Mid-
Atlantic Planning Area and the overall Project Area, including
potential ECRs, is approximately 4,510 km\2\. Water depths in the Lease
Areas range from approximately 15-40 meters (m). Water depths within
the ECR area extend from the shoreline (0 m depth) to approximately 40
m.
Detailed Description of the Specified Activity
A detailed description of the planned activities can be found in
the previous Federal Register notices (87 FR 15922, March 21, 2022; 87
FR 30182, May 18, 2022) and related-supplemental documents. The nature
of the specified activities, including the types of HRG equipment
planned for use (e.g., CHIRPs, boomers, and sparkers), daily trackline
distances (70 line km per 24-hr period), and number of survey vessels
(up to three operating concurrently), are identical to those described
in the previous notices.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Orsted was published
in the Federal Register on May 28, 2024 (89 FR 46073). That notice
described, in detail, Orsted's activity, the marine mammal species that
may be affected by the activity, and the anticipated effects on marine
mammals while referencing the previous notices (87 FR 15922; March 21,
2022; 87 FR 30182, May 18, 2022; 88 FR 30278, May 11, 2023). In the May
28, 2024, notice, we requested public input on the request for
authorization described therein, our analyses, the proposed
authorization, and requested that interested persons submit relevant
information, suggestions, and comments. This proposed notice was
available for a 30-day public comment period.
In total, NMFS received three comments from two private citizens
and from an organization (Clean Ocean Action (COA)). Some of these
comments were out-of-scope or not applicable to the project (e.g.,
general opposition to offshore wind projects, concerns for other
species outside NMFS' jurisdiction) and are not described herein or
discussed further. We do not specifically address comments expressing
general opposition to activities related to wind energy development or
respond to comments that are out of scope of the proposed IHA (89 FR
46073, May 28, 2024), such as comments on other Federal agency
processes and activities not planned under this IHA.
All comments received during the public comment period which
[[Page 61405]]
contained relevant points were considered by NMFS and are described and
responded to below. All relevant comment letters are available on NMFS'
website (<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llcs-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llcs-site-characterization</a>).
Comment 1: COA disagrees with NMFS' initial conclusion that
National Environmental Policy Act (NEPA) Categorical Exclusion B4 is
applicable to this action due to (1) uncertainty regarding the
environmental impacts of the action, (2) a lack of justification
regarding how this action does not cumulatively have the potential for
significant impacts on the quality of the environment, and (3) a lack
of justification as to why no extraordinary circumstances apply to this
action.
Response: NMFS does not agree with the commenters. A categorical
exclusion (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 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 (FONSI) 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 incidental harassment authorization does not affect
other aspects of the human environment because the action only affects
the marine mammals that are the subject of the incidental harassment
authorization. These EAs also addressed factors in 40 CFR 1508.27
regarding the potential for significant impacts and demonstrate the
issuance of incidental harassment authorization 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 independently evaluated the use
of the CE for issuance of Orsted's IHA, which included consideration of
extraordinary circumstances. As part of that analysis, NMFS considered
whether this IHA issuance would result in cumulative impacts that could
be significant. In particular, the issuance of an IHA to Orsted 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. Behavioral disturbance is expected
to occur intermittently in the vicinity of Orsted'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 Orsted's activities fall within the
scope of activities analyzed in the Greater Atlantic Regional Office's
(GARFO) programmatic consultation regarding geophysical surveys along
the U.S. Atlantic coast in the 3 Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021), which concluded
surveys such as those planned by Orsted are not likely to adversely
affect ESA-listed species or adversely modify or destroy critical
habitat. Accordingly, NMFS has determined that the issuance of this 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 2: COA noted a preliminary monitoring report by the
applicant was not made publicly available with the supporting documents
on the project website and that NMFS should make monitoring and
compliance reports publicly available with a schedule of when such
reports will be released.
Response: The preliminary report submitted by the applicant and
noted in the Federal Register notice (89 FR 46073, May 28, 2024)
proposing this action was a requirement under the BOEM Project Design
Criteria (PDC) and Best Management Practices (PDC 8), not the final
reporting requirements under the 2023 IHA (88 FR 30278, May 11, 2023),
therefore, it was not made publicly available. NMFS agrees with the
need for reporting and indeed, the MMPA calls for IHAs to incorporate
reporting requirements and a final
[[Page 61406]]
marine mammal monitoring report is required for the 2023 IHA. As
included in the proposed IHA, the final IHA includes requirements for
reporting that supports COA's recommendations, as well as timeframes
for when reports will be considered complete and subsequently made
publicly available. Orsted is required to submit a monitoring report to
NMFS within 90 days after completion of survey activities that fully
documents the methods and monitoring protocols, summarizes the data
recorded during monitoring. All final reports and associated data
submitted to NMFS are included on the website for public inspection.
However, NMFS does not concur with the suggestions that draft reports
be made publicly available.
Comment 3: COA provided comments suggesting that this IHA is a
renewal. COA also noted that multiple IHAs, including renewals, have
been requested by Orsted for the same project activities and stated
that, in circumstances when it is not clear how long the proposed
activities would span, a Letter of Authorization (LOA) is more
appropriate than an IHA. COA stated that, given past delays, it is not
clear how long the proposed activities would occur and that it is
unrealistic and unreasonable to expect survey activities will actually
cease after 1 year.
Response: As NMFS stated in the notice of the proposed IHA, the
proposed action for which we requested comments was not for a renewal
IHA. As described in the proposed Federal Register notice (89 FR 46073,
May 28, 2024), we determined that a renewal IHA was not appropriate due
to the release of comprehensively updated Duke University density
information (Roberts et al., 2023). Instead, we have issued a new IHA
relying substantially on information and analysis produced in support
of the previously issued 2022 IHA, as project details remain the same
(also as described in the proposed Federal Register notice (89 FR
46073, May 28, 2024)). As we noted in the proposed notice and in this
final notice for the 2024 IHA, Orsted has the option for a renewal if
specific conditions and criteria are met.
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 4: COA stated the information provided in the proposed (89
FR 46073, May 28, 2024) and previous notices (87 FR 15922; March 21,
2022; 87 FR 30182, May 18, 2022; 88 FR 30278, May 11, 2023) for this
action regarding vessel strike is insufficient for NMFS to claim the
probability of vessel strike due to HRG survey vessels is low enough to
be discountable. COA noted the North Atlantic Right Whale (NARW) Speed
Zone Dashboard does not clearly indicate whether HRG survey vessels are
included and which vessel type category HRG survey vessels fall under,
nor does the proposed notice specify the number of trips HRG survey
vessels would take to complete the survey activities. COA stated this
IHA cannot be issued without consideration and correction of these
issues.
Response: Orsted did not request authorization for take incidental
to vessel strike during marine site characterization surveys.
Nevertheless, NMFS analyzed the potential for vessel strikes to occur
during the survey, and determined that the potential for vessel strike
is so low as to be discountable. NMFS does not authorize any take of
marine mammals incidental to vessel strike resulting from the survey.
If Orsted were to strike a marine mammal with a vessel, this would be
an unauthorized take and be in violation of the MMPA. This gives Orsted
a strong incentive to operate its vessels with all due caution and to
effectively implement the suite of vessel strike avoidance measures
called for in the IHA. Orsted proposed a very conservative suite of
mitigation measures related to vessel strike avoidance, including
measures specifically designed to avoid impacts to NARWs. Section 4(f)
in the IHA contains a suite of non-discretionary requirements
pertaining to vessel strike avoidance, including vessel operation
protocols and monitoring. To date, NMFS is not aware of any site
characterization vessels from surveys reporting a vessel strike within
the United States despite intensive requirements for visual monitoring
at all times during survey activity. When considered in the context of
low overall probability of any vessel strike by Orsted vessels, given
the limited additional survey-related vessel traffic relative to
existing traffic in the survey area, the comprehensive visual
monitoring, and other additional mitigation measures described herein,
NMFS believes these measures are sufficiently protective to avoid
vessel strike. These measures are described fully in the Mitigation
section below, and include, but are not limited to: training for all
vessel observers and captains, daily monitoring of NARW Sighting
Advisory System, WhaleAlert app, and U.S. Coast Guard Channel 16 for
situational awareness regarding NARW presence in the survey area,
communication protocols if whales are observed by any Orsted personnel,
vessel operational protocol should any marine mammal be observed, and
visual monitoring.
Comment 5: COA believes that preserving the existence of NARW
warrants pausing offshore development off the Atlantic coast and states
NMFS needs to consider the cumulative impact, including the total
number, speed, and distance of vessel trips required for marine site
characterization survey activities, for all concurrent projects in the
region and adjust the permitted activities accordingly.
Response: NMFS reiterates our action concerns only the
authorization of marine mammal take incidental to the planned surveys--
NMFS' authority under the MMPA does not extend to the specified
activities themselves. COA did not provide any new or compelling
evidence that suggests that wind energy development activities have the
potential to negatively impact NARW. NMFS notes the cumulative effects
of substantially similar activities in the northwest Atlantic Ocean
have been analyzed in the past under section 7 of the ESA when NMFS
engaged in formal intra-agency consultation, such as the 2013
programmatic Biological Opinion for Bureau of Ocean Energy Management
Lease and Site Assessment Rhode Island, Massachusetts, New York, and
New Jersey Wind Energy Areas (<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed activities include those for which NMFS issued
previous IHAs (82 FR 31562, July 7, 2017; 85 FR 21198, April 16, 2020;
86 FR 26465, May 10, 2021), which are similar to those planned by
Orsted under this current IHA request.
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
[[Page 61407]]
mortalities an currently ongoing offshore wind development activities.
This point has been well supported by other agencies, including the
Bureau of Ocean Energy Management and the Marine Mammal Commission
(Marine Mammal Commission Newsletter, Spring 2023). In addition, a
recent study by Thorne and Wiley (2024) reviewed spatiotemporal
patterns of strandings, mortalities, and serious injuries of humpback
whales along the U.S. east coast from 2016-2022 and found vessel
strikes to be the major driver in the increase of humpback whale
strandings, mortalities, and serious injuries. 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 IHA, NMFS requires
Orsted to abide by vessel speed restrictions and maintain separation
distances between vessels and marine mammals that are intended to
minimize the risk of any potential vessel strikes.
There is an ongoing UME for humpback whales along the Atlantic
coast from Maine to Florida, which includes animals stranded since
2016. Partial or full necropsy examinations were conducted on
approximately half of the whales. Necropsies were not conducted on
other carcasses because they were too decomposed, not brought to land,
or stranded on protected lands (e.g., national and state parks) 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.
For NMFS' response on cumulative impacts, please see our response
to Comment 1.
Changes From Proposed to Final IHA
No changes were made from the proposed IHA to the final IHA.
Description of Marine Mammals in the Area of Specified Activities
A description of the marine mammals in the area of the specified
activities can be found in the previous documents and notices for the
2022 IHA (87 FR 15922, March 21, 2022; 87 FR 30182, May 18, 2022),
which remains applicable to this IHA. NMFS reviewed the most recent
SARs (found on NMFS' website 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>),
including the draft 2023 SARs, up-to-date information on relevant
Unusual Mortality Events (UMEs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events</a>), and recent scientific literature and determined that the new
information does not change our original analysis of impacts supporting
issuance of the 2022 IHA.
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 (e.g., Hayes et al.,
2024). All values presented in table 1 are the most recent available at
the time of publication, including, as applicable, from the draft 2023
SARs. NMFS notes that since the issuance of the 2022 IHA, new SARs are
available for all species with the exception of humpback whale (Gulf of
Maine stock), bottlenose dolphin (Northern Migratory Coastal stock),
and harbor seal (Western North Atlantic stock). All new information is
provided in table 1 and updated density data (Roberts et al., 2023) are
incorporated into take estimations (see Sections 3 and 6 of the updated
application). Additionally, the new SARs data do not change our
analysis of impacts, as described under the 2022 IHA.
Additionally, on August 1, 2022, NMFS announced proposed changes to
the existing NARW vessel speed regulations (87 FR 46921, August 1,
2022) to further reduce the likelihood of mortalities and serious
injuries to endangered NARWs from vessel collisions, which are a
leading cause of the species' decline and a primary factor in an
ongoing UME. Should a final vessel speed rule be issued and become
effective during the effective period of this authorization (or any
other MMPA incidental take authorization), the authorization holder
will be required to comply with any and all applicable requirements
contained within the final vessel speed rule. Specifically, where
measures in any final vessel speed rule are more protective or
restrictive than those in this or any other MMPA authorization,
authorization holders will be required to comply with the requirements
of the vessel speed rule. Alternatively, where measures in this or any
other MMPA authorization are more restrictive or protective than those
in any final vessel speed rule, the measures in the MMPA authorization
will remain in place. The responsibility to comply with the applicable
requirements of any vessel speed rule will become effective immediately
upon the effective date of any final vessel speed rule.
Table 1--Species and Stocks Likely Impacted by the Specified Activities \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--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).
[[Page 61408]]
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western N Atlantic..... E, D, Y 6,802 (0.24, 5,573, 11 2.05
2021).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, N 1,396 (0, 1380, 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).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. N Atlantic............. E, D, Y 5,895 (0.29, 4,639, 9.28 0.2
2021).
Family Delphinidae:
Long-finned pilot whale......... Globicephala melas..... Western N Atlantic..... -, -, N 39,215 (0.30, 30,627, 306 5.7
2021).
Short-finned pilot whale........ Globicephala Western N Atlantic..... -, -, Y 18,726 (0.33, 14,292, 143 218
macrorhynchus. 2021).
Atlantic spotted dolphin........ Stenella frontalis..... Western N Atlantic..... -, -, N 31,506 (0.28, 25,042, 250 0
2021).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western N Atlantic..... -, -, N 93,233 (0.71, 54,443, 544 28
2021).
Bottlenose dolphin.............. Tursiops truncatus..... Northern Migratory -, -, Y 6,639 (0.41, 4,759, 48 12.2-21.5
Coastal. 2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western N Atlantic -, -, N 64,587 (0.24, 52,801, 507 28
Offshore. 2021).
Risso's dolphin................. Grampus griseus........ Western N Atlantic..... -, -, N 44,067 (0.19, 30,662, 307 18
2021).
Common dolphin.................. Delphinus delphis...... Western N Atlantic..... -, -, N 93,100 (0.56, 59,897, 1,452 414
2021).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena............... Gulf of Maine/Bay of -, -, N 85,765 (0.53, 56,420, 649 145
Fundy. 2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \6\................... Halichoerus grypus..... Western N Atlantic..... -, -, N 27,911 (0.20, 23,624, 1,512 4,570
2021).
Harbor seal..................... Phoca vitulina......... Western N Atlantic..... -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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>).
\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 potential
biological removal (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 online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, vessel strike). Annual mortality or serious injury (M/SI) often cannot be determined precisely and is in some cases presented as
a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ Linden (2023) estimated the population size in 2022 as 356 individuals, with a 95 percent credible interval ranging from 346 to 363. NMFS
acknowledges this most recent estimation in addition to the 2023 draft SAR stock abundance estimate.
\6\ NMFS's 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 given is for the total stock.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in the documents
supporting the 2022 IHA (87 FR 15922, March 21, 2022; 87 FR 30182, May
18, 2022). At present, there is no new information on potential effects
that would change our analysis.
Estimated Take of Marine Mammals
A detailed description of the methods used to estimate take
anticipated to occur incidental to the project is found in the previous
Federal Register notices (87 FR 15922, March 21, 2022; 87 FR 30182, May
18, 2022). The methods of estimating take are identical to those used
in the 2022 IHA. We have updated the marine mammal densities based on
new information (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 3 in
the 2024 IHA request from Orsted for specific density values used in
the analysis. The 2024 IHA request is available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llcs-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llcs-site-characterization</a>.
The take NMFS has authorized can be found in table 2, below. Table
2 presents the results of Orsted's updated density-based calculations
for the Project Area. For comparative purposes, we have provided the
2022 IHA authorized take (87 FR 30182, May 18, 2022). No take by Level
A harassment was requested and none is anticipated. Therefore, NMFS has
not authorized any take by Level A harassment. Mortality or serious
injury (M/SI) is neither anticipated nor authorized.
Table 2--Estimated Take Numbers and Total Take Authorized
--------------------------------------------------------------------------------------------------------------------------------------------------------
Take Estimated take
Estimated authorized Total Authorized as a
Common name Stock abundance under previous calculated take percentage of
2022 IHA take population
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale................ Western Atlantic............ 340 11 4 4 1.18
Fin whale................................. Western N Atlantic.......... 6,802 7 6 6 <1
Humpback whale............................ Gulf of Maine............... 1,396 4 5 5 <1
[[Page 61409]]
Minke whale............................... Canadian Eastern Coastal.... 21,968 2 10 10 <1
Sei whale................................. Nova Scotia................. 6,292 1 1 1 <1
Sperm whale............................... N Atlantic.................. 5,895 3 0 \a\ 2 <1
Long-Finned pilot whale................... Western N Atlantic.......... 39,215 20 1 \a\ 8 <1
Atlantic spotted dolphin.................. Western N Atlantic.......... 31,506 15 6 \a\ 24 <1
Atlantic white-sided dolphin.............. Western N Atlantic.......... 93,233 50 16 16 <1
Bottlenose dolphin \b\.................... Northern Migratory Coastal.. 6,639 2,752 4,118 \c\ 4,118 62.0
Bottlenose dolphin \b\.................... Western N Atlantic Offshore. 64,587 2,752 4,118 (\c\) <7
Risso's dolphin........................... Western N Atlantic.......... 44,067 20 1 \a\ 7 <1
Common dolphin............................ Western N Atlantic.......... 93,100 400 98 \a\ 302 <1
Harbor porpoise........................... Gulf of Maine/Bay of Fundy.. 85,765 82 79 79 <1
Gray seal................................. Western N Atlantic.......... 27,911 4 13 \d\ 13 <1
Harbor seal............................... Western N Atlantic.......... 61,336 4 13 \d\ 13 <1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Adjustments to the requested take numbers for the marked species are based on the average group size from AMAPPS survey data (NEFSC, 2023) and
recommended values represent averages of all AMAPPS sightings, for species for which the calculated take was lower than the estimated group size,
except common dolphins. For common dolphins, the AMAPPS group size was used in conjunction with the number of encounters of common dolphin groups in
past PSO reports.
\b\ Take estimate is based on the maximum number of calculated instances of take for either stock and is assumed to apply to all bottlenose dolphins
potentially present in the survey area. Therefore, takes could consist of individuals from either the WNA Offshore or the WNA Northern Migratory
Coastal stock.
\c\ Although unlikely, for purposes of calculating maximum percentage of population, we assume all takes could be allocated to either stock (i.e., total
estimated take for ``bottlenose dolphins'' is 4,118) and that multiple repeated takes of the same individuals from each stock may occur. Please see
Determinations for additional information.
\d\ Roberts et al. (2023) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to occur
equally in the survey area; therefore, density values were split evenly between the two species, i.e., total estimated take for ``seals'' is 13.
Mitigation, Monitoring, and Reporting Measures
The mitigation measures, and monitoring and reporting requirements
are identical to those included in the Federal Register notice
announcing the final 2022 IHA (87 FR 30182, May 18, 2022), and the
discussion of the least practicable adverse impact included in that
document remains accurate. The measures included in this authorization
are found below.
Mitigation
The following mitigation measures must be implemented during
Orsted's marine site characterization surveys. Pursuant to section 7 of
the ESA, Orsted must also be required to adhere to relevant Project
Design Criteria (PDC) of the NMFS GARFO programmatic consultation
(specifically PDCs 4, 5, and 7) regarding geophysical surveys along the
U.S. Atlantic coast (see NOAA GARFO, 2021; <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>).
Marine Mammal Exclusion Zones and Harassment Zones
Marine mammal exclusion zones (EZs) must be established around the
HRG survey equipment and monitored by NMFS-approved protected species
observers (PSO):
<bullet> 500 m EZ for NARWs during operation of specified acoustic
sources (e.g., sparkers, boomers); and
<bullet> 100 m EZ for all other marine mammals, with certain
exceptions (see Shutdown Procedures), during operation of specified
acoustic sources (e.g., sparkers, boomers).
If a marine mammal is detected approaching or entering the EZs
during the HRG survey, the vessel operator must adhere to the shutdown
procedures described below to minimize noise impacts on the animals.
These stated requirements must be included in the site-specific
training to be provided to the survey team. The Level B harassment
zones for each sound source are listed in table 3 and remain the same
as the initial IHA (see table 4 of the Federal Register notice of the
final authorization (87 FR 30182, May 18, 2022)).
Table 3--Level B Harassment Zones
------------------------------------------------------------------------
Distance to
Level B
Equipment harassment
threshold
(m)
------------------------------------------------------------------------
ET 216 CHIRP............................................... 9
ET 424 CHIRP............................................... 4
ET 512i CHIRP.............................................. 6
GeoPulse 5430.............................................. 21
TB CHIRP III............................................... 48
Pangeo SBI................................................. 22
AA Triple plate S-Boom (700/1,000 J)....................... 34
AA, Dura-spark UHD Sparkers................................ 141
GeoMarine Sparkers......................................... 141
------------------------------------------------------------------------
Note: AA = Applied Acoustics; CHIRP = compressed high-intensity radiated
pulses; ET = edgetech; J = joule; SBI = sub-bottom imager; TB =
Teledyne benthos; UHD = ultra-high definition.
Pre-Start Clearance
Marine mammal clearance zones must be established around the HRG
survey equipment and monitored by PSOs:
<bullet> 500 m for all ESA-listed marine mammals; and
<bullet> 100 m for all other marine mammals.
Orsted must implement a 30-minute pre-start clearance period prior
to the initiation of ramp-up of specified HRG equipment. During this
period, clearance zones must be monitored by PSOs, using the
appropriate visual technology. Ramp-up may not be initiated if any
marine mammal(s) is within its respective clearance zone. If a marine
mammal is observed within a clearance zone during the pre-start
clearance period, ramp-up may not begin until the animal(s) has been
observed exiting its respective EZ or until an additional time period
has elapsed with no further sighting (i.e., 15 minutes for small
odontocetes and pinnipeds, 30 minutes for all other species).
[[Page 61410]]
Ramp-Up of Survey Equipment
A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
acoustic source when technically feasible. 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 survey area by
allowing them to vacate the area prior to the commencement of survey
equipment operation at full power. Operators should ramp-up sources to
half power for 5 minutes and then proceed to full power.
Ramp-up activities must be delayed if a marine mammal(s) enters its
respective EZ. Ramp-up will resume if the animal has been observed
exiting its respective EZ or until an additional time period has
elapsed with no further sighting (i.e., 15 minutes for small
odontocetes and pinnipeds, 30 minutes for all other species).
Ramp-up may occur at times of poor visibility, including nighttime,
if appropriate visual monitoring has occurred with no detections of
marine mammals in the 30 minutes prior to beginning ramp-up. Acoustic
source activation may only occur at night where operational planning
cannot reasonably avoid such circumstances.
Shutdown Procedures
An immediate shutdown of the impulsive HRG survey equipment (i.e.,
sparkers, boomers) will be required if a marine mammal is sighted
entering or is within its respective EZ. The vessel operator must
comply immediately with any call for shutdown by the Lead PSO. Any
disagreement between the Lead PSO and vessel operator should be
discussed only after shutdown has occurred. Subsequent restart of the
survey equipment can be initiated if the animal has been observed
exiting its respective EZ or until an additional time period has
elapsed with no further sighting (i.e., 15 minutes for small
odontocetes and pinnipeds, 30 minutes for all other species).
If a species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorization
number of takes have been met, approaches or is observed within the
Level B harassment zone, shutdown must occur.
If the acoustic source is shut down for reasons other than
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it
may be activated again without ramp-up if PSOs have maintained constant
observation and no detections of any marine mammal have occurred within
the respective EZs. If the acoustic source is shut down for a period
longer than 30 minutes, then pre-clearance and ramp-up procedures will
be initiated as described in the previous section.
The shutdown requirement will be waived for pinnipeds and for small
delphinids of the following genera: Delphinus, Lagenorhynchus,
Stenella, and Tursiops. Specifically, if a delphinid from the specified
genera or a pinniped is visually detected approaching the vessel (i.e.,
to bow ride) or towed equipment, shutdown is not required. Furthermore,
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.
Additionally, shutdown is required if a delphinid or pinniped is
detected in the EZ and belongs to a genus other than those specified.
Shutdown, pre-start clearance, and ramp-up procedures are not
required during HRG survey operations using only non-impulsive sources
(e.g., side-scan sonar, echosounders) other than non-parametric sub-
bottom profilers (e.g., CHIRPs).
Vessel Strike Avoidance
Orsted must adhere to the following measures except in the case
where compliance will create an imminent and serious threat to a person
or vessel or to the extent that a vessel is restricted in its ability
to maneuver and, because of the restriction, cannot comply:
<bullet> Vessel operators and crews must maintain a vigilant watch
for all marine mammals and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any marine mammal. A visual observer aboard the vessel must monitor a
vessel strike avoidance zone based on the appropriate separation
distance around the vessel. Visual observers monitoring the vessel
strike avoidance zone may be third-party observers (i.e., PSOs) or crew
members, but crew members responsible for these duties must be provided
sufficient training to (1) distinguish protected species from other
phenomena, and (2) broadly identify a marine mammal as a right whale,
other whale (defined in this context as sperm whales or baleen whales
other than right whales), or other marine mammal;
<bullet> All survey vessels, regardless of size, must observe a 10
kn (18.5 km/hr) speed restriction in specified areas designated by NMFS
for the protection of NARWs from vessel strikes. These specified areas
include all seasonal management areas (SMA) established under 50 CFR
224.105 (when in effect), any dynamic management areas (DMA) (when in
effect), and Slow Zones. See: <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales">https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales</a> for specific detail regarding these areas;
<bullet> All vessels must reduce speed to 10 kn (18.5 km/hr) or
less when mother/calf pairs, pods, or large assemblages of cetaceans
are observed near a vessel;
<bullet> All vessels must maintain a minimum separation distance of
500 m from right whales and other ESA-listed large whales;
[cir] If an ESA-listed species is sighted within the relevant
separation distance, the vessel must steer a course away at 10-kn (18.5
km/hr) or less until the 500-m separation distance has been
established. If a whale is observed but cannot be confirmed as a
species that is not ESA-listed, the vessel operator must assume that it
is an ESA-listed species and take appropriate action;
<bullet> All vessels must maintain a minimum separation distance of
100 m from non-ESA-listed baleen whales;
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m from all
other marine mammals, with an understanding that at times this may not
be possible (e.g., for animals that approach the vessel); and
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel shall take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area);
[cir] If marine mammals are sighted within the relevant separation
distance, the vessel must reduce speed and shift the engine to neutral,
not engaging the engines until animals are clear of the area. This does
not apply to any vessel towing gear or any vessel that is
navigationally constrained.
Project-specific training must be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered to by NMFS, NMFS has determined that
the mitigation measures provide the means of effective the least
practicable impact on marine mammal species or stocks
[[Page 61411]]
and their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance.
Monitoring and Reporting
Visual monitoring must be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Orsted must employ
independent, dedicated, trained PSOs, meaning that the PSOs must (1) be
employed by a third-party observer provider, (2) have no tasks other
than to conduct observational effort, collect data, and communicate
with and instruct relevant vessel crew with regard to the presence of
marine mammals and mitigation requirements (including brief alerts
regarding maritime hazards), and (3) have successfully completed an
approved PSO training course appropriate for their designated task. On
a case-by-case basis, trained crew members may be approved by NMFS for
limited, specified duties in support of approved, independent PSOs on
smaller vessels with limited crew operating in nearshore waters.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including EZs, during all HRG survey operations. PSOs will
visually monitor and identify marine mammals, including those
approaching or entering the established EZs during survey activities.
It will be the responsibility of the Lead PSO on duty to communicate
the presence of marine mammals as well as to communicate the action(s)
that are necessary to ensure mitigation and monitoring requirements are
implemented as appropriate.
During all HRG survey operations (e.g., any day on which use of an
HRG source is planned to occur), a minimum of one PSO must be on duty
during daylight operations on each survey vessel, conducting visual
observations at all times on all active survey vessels during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) will ensure 360 degree visual coverage around
the vessel from the most appropriate observation posts and will conduct
visual observations using binoculars and/or night vision goggles and
the naked eye while free from distractions and in a consistent,
systematic, and diligent manner. PSOs may be on watch for a maximum of
4 consecutive hours followed by a break of at least 2 hours between
watches and may conduct a maximum of 12 hours of observations per 24-hr
period. In cases where multiple vessels are surveying concurrently, any
observations of marine mammals will be communicated to PSOs on all
nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to EZs. Reticulated binoculars must also be available to PSOs
for use as appropriate based on conditions and visibility to support
the sighting and monitoring of marine mammals. During nighttime
operations, night-vision goggles with thermal clip-ons and infrared
technology will be used. Position data will be recorded using hand-held
or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs will also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources. Any observations of marine mammals by crew
members aboard any vessel associated with the survey will be relayed to
the PSO team. Data on all PSO observations will be recorded based on
standard PSO collection requirements. This will include dates, times,
and locations of survey operations; dates and times of observations,
location and weather, details of marine mammal sightings (e.g.,
species, numbers, behaviors); and details of any observed marine mammal
behavior that occurs (e.g., notes behavioral disturbances).
Orsted must consult NMFS NARW reporting system and Whale Alert,
daily and as able, for the presence of NARWs throughout survey
operations, and for the establishment of a DMA. If NMFS should
establish a DMA in the Lease Areas during the survey, the vessels must
abide by speed restrictions in the DMA
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a draft comprehensive report will
be provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys including what type of mitigation and the species and number of
animals that prompted the mitigation action, when known), and provides
an interpretation of the results and effectiveness of all mitigation
and monitoring. Any recommendations made by NMFS must be addressed in
the final report prior to acceptance by NMFS. A final report must be
submitted within 30 days following any comments on the draft report.
All draft and final marine mammal and acoustic monitoring reports must
be submitted to <a href="/cdn-cgi/l/email-protection#e0b0b2cea9b4b0cead8f8e89948f92898e87b285908f929493a08e8f8181ce878f96"><span class="__cf_email__" data-cfemail="7525275b3c21255b381a1b1c011a071c1b122710051a070106351b1a14145b121a03">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#e7aeb3b7c9848b8291828994938e8982a789888686c9808891"><span class="__cf_email__" data-cfemail="ca839e9ae4a9a6afbcafa4b9bea3a4af8aa4a5ababe4ada5bc">[email protected]</span></a>. The report must contain at minimum, the
following:
<bullet> PSO names and affiliations;
<bullet> Dates of departures and returns to port with port names;
<bullet> Dates and times (Greenwich Mean Time (GMT)) of survey
effort and times corresponding with PSO effort;
<bullet> Vessel location (latitude/longitude) when survey effort
begins and ends; vessel location at beginning and end of visual PSO
duty shifts;
<bullet> Vessel heading and speed at beginning and end of visual
PSO duty shifts and upon any line change;
<bullet> Environmental conditions while on visual survey (at
beginning and end of PSO shift and whenever conditions change
significantly), including wind speed and direction, BSS, Beaufort wind
force, swell height, weather conditions, cloud cover, sun glare, and
overall visibility to the horizon;
<bullet> Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions); and
<bullet> Survey activity information, such as type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-clearance
survey, ramp-up, shutdown, end of operations, etc.).
If a marine mammal is sighted, the following information should be
recorded:
<bullet> Watch status (sighting made by PSO on/off effort,
opportunistic, crew, alternate vessel/platform);
<bullet> PSO who sighted the animal;
<bullet> Time of sighting;
<bullet> Vessel location at time of sighting;
<bullet> Water depth;
<bullet> Direction of vessel's travel (compass direction);
<bullet> Direction of animal's travel relative to the vessel;
<bullet> Pace of the animal;
<bullet> Estimated distance to the animal and its heading relative
to vessel at initial sighting;
<bullet> Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified); also
[[Page 61412]]
note the composition of the group if there is a mix of species;
<bullet> Estimated number of animals (high/low/best);
<bullet> Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
<bullet> Description (as many distinguishing features as possible
of each individual seen, including length, shape, color, pattern, scars
or markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
<bullet> Detailed behavior observations (e.g., number of blows,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior);
<bullet> Animal's closest point of approach and/or closest distance
from the center point of the acoustic source;
<bullet> Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other); and
<bullet> Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
If a NARW is observed at any time by PSOs or personnel on any
project vessels, during surveys or during vessel transit, Orsted must
report the sighting information to the NMFS NARW Sighting Advisory
System (866-755-6622) within 2 hours of occurrence, when practicable,
or no later than 24 hours after occurrence. NARW sightings in any
location may also be reported to the U.S. Coast Guard via channel 16
and through the WhaleAlert app (<a href="http://www.whalealert.org/">http://www.whalealert.org/</a>).
In the event that Orsted personnel discover an injured or dead
marine mammal, Orsted must report the incident to the NMFS Office of
Protected Resources (OPR) and the NMFS New England/Mid-Atlantic
Stranding Coordinator as soon as feasible. The report will include the
following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
In the unanticipated event of a vessel strike of a marine mammal by
any vessel involved in this activities covered by the IHA, Orsted will
report the incident to NMFS by phone (866-755-6622) and by email
(<a href="/cdn-cgi/l/email-protection#107e7d76633e7771623e797e737974757e64717c3d64717b75507e7f71713e777f66"><span class="__cf_email__" data-cfemail="4f2122293c61282e3d6126212c262b2a213b2e23623b2e242a0f21202e2e61282039">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#6131334f2835314f2c0e0f08150e13080f063304110e131512210f0e00004f060e17"><span class="__cf_email__" data-cfemail="0353512d4a57532d4e6c6d6a776c716a6d645166736c717770436d6c62622d646c75">[email protected]</span></a>) as soon as feasible. The report will
include the following information:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Vessel's speed during and leading up to the incident;
<bullet> Vessel's course/heading and what operations were being
conducted (if applicable);
<bullet> Status of all sound sources in use;
<bullet> Description of avoidance measures/requirements that were
in place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
<bullet> Environmental conditions (e.g., wind speed and direction,
BSS, cloud cover, visibility) immediately preceding the strike;
<bullet> Estimated size and length of animal that was struck;
<bullet> Description of the behavior of the marine mammal
immediately preceding and following the strike;
<bullet> If available, description of the presence and behavior of
any other marine mammals immediately preceding the strike;
<bullet> Estimated fate of the animal (e.g., dead, injured but
alive, injured and moving, blood or tissue observed in the water,
status unknown, disappeared); and
<bullet> To the extent practicable, photographs or video footage of
the animal(s).
Determinations
Orsted's HRG survey activities are unchanged from those analyzed in
support of the 2022 IHA. When issuing the 2022 IHA (87 FR 30182, May
18, 2022) and 2023 reissuance of that IHA, NMFS found Orsted's proposed
HRG surveys would have a negligible impact to species or stocks' annual
rates of recruitment and survival, and the amount of taking would be
small relative to the population size of such species or stocks.
Additionally, the potential effects of the activities, taking into
consideration the planned mitigation and related monitoring measures,
are identical to those assumed when considering the 2022 IHA. NMFS
expects that all potential takes would be short-term Level B behavioral
harassment, predominantly in the form of avoidance of the sound sources
that may cause a temporary abandonment of the location during active
use of acoustic sources that may result in a temporary interruption of
foraging activities for some species (if such activity was occurring),
reactions that are considered to be of low severity and with no lasting
biological consequences (e.g., Southall et al., 2007). NMFS does not
expect that the planned activity will have long-term or permanent
impacts as the acoustic sources would be mobile and would leave the
area within a specific amount of time for which the animals could
return to the area.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the survey
area; therefore, marine mammals that may be 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. Because of the temporary nature of the disturbance
and the availability of similar habitat and resources in the
surrounding area, 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. Even
considering the increased estimated take for some species, 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.
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141 m from use of sparkers. Although
this distance is assumed for all survey activity evaluated here and in
authorizing take numbers, in reality, much of the survey activity would
involve use of acoustic sources with reduced acoustic harassment zones
(see tables 1 and 4 in the previous Federal Register notices (87 FR
15922, March 21, 2022; 87 FR 30182, May 18, 2022)), producing expected
effects of particularly low severity. The ensonified area surrounding
each vessel is extremely small compared to the overall distribution of
the animals in the area and the available habitat.
As previously discussed in the 2022 IHA (87 FR 15922, March 21,
2022; 87 FR 30182, May 18, 2022), impacts from the survey are expected
to be localized to the specific area of activity and only during
periods when Orsted's acoustic sources are active. There are no
rookeries, mating or calving grounds known to be biologically important
to
[[Page 61413]]
marine mammals within the survey area. The survey area lies
significantly south (over 250 miles (402 km)) of where Biologically
Important Areas are defined for fin and humpback whales. There is no
designated critical habitat for any marine mammals listed under the ESA
in the survey area.
There is a slight increase in estimated take for 5 species
(humpback whale, minke whale, Atlantic spotted dolphin, gray seal,
harbor seal) relative to those authorized under the 2022 IHA but the
total amount of takes authorized are small (less than 1 percent)
relative to estimated population size of each species or stock.
Additionally, due to updated information in the draft 2023 SAR on the
stock abundance of the WNA stock of common dolphins, there is a minor
increase in the estimated take as a percentage of that stock, however,
that also results in estimated take of less than 1 percent of the
population. Even considering the increased estimated take for 5
species, 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 are expected to result. Overall, the total amount of takes
authorized are small (less than 1 percent) relative to estimated
population size of each species or stock (less than 1 percent for 13
species; less than 2 percent for NARW; less than 7 percent for the WNA
Offshore stock of bottlenose dolphin) except for the WNA Migratory
Coastal stock of bottlenose dolphin (62 percent). The values presented
in table 2 are likely conservative estimates as they assume all takes
are of different individual animals which is likely not to be the case.
Some individuals may return multiple times in a day, but PSOs will
count them as separate takes if they cannot be individually identified.
This is the particularly the case for bottlenose dolphins. Given the
uncertainty regarding the number of days Orsted's survey may be within
the 20 m isobath, the authorization of 4,118 instances of take by Level
B harassment is not allocated to a specific stock but rather could be
of either stock. However, based on the expansive ranges of both
bottlenose dolphin stocks and the stocks' respective occurrence in the
area, it is unlikely that large segments of either stock would
consistently remain in the survey area. Considering this and various
factors as described in the previous Federal Register notices (87 FR
15922, March 21, 2022; 87 FR 30182, May 18, 2022), we have determined
that the number of individuals taken will comprise of less than one-
third of the best available population abundance estimate of either
stock.
Orsted's planned activities would occur in a small fraction of the
migratory corridor for NARW and impacts are expected to be limited to
low levels of behavioral harassment, resulting in temporary and minor
behavioral changes during any brief period of exposure. The size of the
Project Area (approximately 4,510 km\2\) in comparison with the entire
migratory habitat for the NARW (Biologically Important Area of 269,448
km\2\) is small, representing 1.67 percent of the entire migratory
corridor. Because of this, and in context of the minor, low-level
nature of the impacts expected to result from the planned survey, such
impacts are not expected to result in disruption to biologically
important behaviors.
Given the transitory nature of NARW in this area and due to the
lack of year-round ``core'' NARW foraging habitat (Oleson et al., 2020)
(such habitat is located further north in the southern area of Martha's
Vineyard and Nantucket Islands where both visual and acoustic
detections of NARW indicate a nearly year-round presence (Oleson et
al., 2020)), it is unlikely for any exposure to cause chronic effects
as any exposure would be short and intermittent. Furthermore, given the
small size of the Level B harassment zones (141 m) and the robust suite
of mitigation and monitoring measures, with specific note on the
mitigation zones for NARW (EZ; 500 m), NMFS does not expect adverse
impacts on this species. Lastly, NMFS notes the reduction in requested
take from the 2022 IHA (87 FR 15922, March 21, 2022; 87 FR 30182, May
18, 2022) due to the revised density data (Roberts et al., 2023). Under
the 2022 IHA, NMFS authorized 11 instances of take for NARW. Here, NMFS
is proposing only 4 takes by Level B harassment representing less than
2 percent of the overall species abundance. Given the updates to the
density for this species, in particular during the periods where
project activities are expected to be ongoing, NMFS expects low-level
impacts (e.g., temporary avoidance of the area) from this project on
NARW.
We also note that our findings for other species with active UMEs
or species where biologically important areas or haul-outs have been
previously described in the Federal Register notices associated with
issuance of the 2022 IHA remain applicable to this project. In
conclusion, there is no new information suggesting that our analysis or
findings should change.
Based on the information contained here and in the referenced
documents, NMFS has determined the following: (1) the required
mitigation measures will effect the least practicable impact on marine
mammal species or stocks and their habitat; (2) the authorized takes
will 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) Orsted's
activities will 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.
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 consults
internally whenever we propose to authorize take for endangered or
threatened species.
NMFS OPR is authorizing the incidental take of four species of
marine mammals which are listed under the ESA, the North Atlantic
right, fin, sei, and sperm whale, and has determined that this activity
falls within the scope of activities analyzed in NMFS Greater Atlantic
Regional Fisheries Office's programmatic consultation regarding
geophysical surveys along the U.S. Atlantic coast in the 3 Atlantic
Renewable Energy Regions (completed June 29, 2021; revised September
2021).
National Environmental Policy Act
To comply with NEPA of 1969 (42 U.S.C. 4321 et seq.) and NAO 216-
6A, NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NAO 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 has determined that the
issuance
[[Page 61414]]
of the IHA qualifies to be categorically excluded from further NEPA
review.
Authorization
NMFS has issued an IHA to Orsted for the potential harassment of
small numbers of 15 species (16 stocks) of marine mammals incidental to
conducting marine site characterization surveys off the coast of
Delaware for a period of 1 year, that includes the previously explained
mitigation, monitoring, and reporting requirements.
Dated: July 25, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-16788 Filed 7-30-24; 8:45 am]
BILLING CODE 3510-22-P
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