Rule2024-19587
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Atlantic Shores South Project Offshore of New Jersey
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
September 24, 2024
Effective
January 1, 2025
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, the National Marine Fisheries Service (hereafter, "NMFS") promulgates regulations to govern the incidental taking of marine mammals by Atlantic Shores Offshore Wind Project 1, LLC, the project company of the original applicant, Atlantic Shores Offshore Wind, LLC, a joint venture between EDF-RE Offshore Development LLC (a wholly owned subsidiary of EDF Renewables, Inc.) and Shell New Energies US LLC, during the construction of the Atlantic Shores South Project (hereafter, "Atlantic Shores South" or the "Project"), an offshore wind energy project located in Federal and State waters offshore of New Jersey, specifically within the Bureau of Ocean Energy Management (hereafter, "BOEM") Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (hereafter, "OCS") Lease Areas OCS-A-0499 and OCS- A-0570 (hereafter, "Lease Areas") and along export cable routes to sea-to-shore transition points. The Project will be divided into 2 projects in 2 areas: Project 1 and Project 2 (the combined hereafter referred to as the "Project Area"), over the course of 5 years (January 1, 2025, through December 31, 2029). Of note, the proposed rule for this action named only OCS-A-0499 and the parent company, Atlantic Shores Offshore Wind LLC, with 2 subsidiaries who control each component of the Project (i.e., Project 1 is controlled by Atlantic Shores Offshore Wind Project 1, LLC, and Project 2 is controlled by Atlantic Shores Offshore Wind Project 2, LLC). However, after publication of the proposed rule, Atlantic Shores Offshore Wind LLC notified NMFS that this rulemaking should be issued for Atlantic Shores Offshore Wind Project 1, LLC ("Project Company 1"). Furthermore, Project Company 1 now maintains ownership of both Project 1 and Project 2, rather than 2 separate subsidiaries for each of Project 1 and Project 2. As a result of this, the applicant requested that the Letter of Authorization (hereafter, "LOA"), if issued, be issued to Project Company 1, which would oversee the construction of both Project 1 and Project 2 (where the latter Project would be operated by "Atlantic Shores Offshore Wind Project 2, LLC" ("Project Company 2")). These regulations, which allow for the issuance of a LOA for the incidental take of marine mammals during construction-related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat as well as requirements pertaining to the monitoring and reporting of such taking.
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<title>Federal Register, Volume 89 Issue 185 (Tuesday, September 24, 2024)</title>
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[Federal Register Volume 89, Number 185 (Tuesday, September 24, 2024)]
[Rules and Regulations]
[Pages 77972-78064]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-19587]
[[Page 77971]]
Vol. 89
Tuesday,
No. 185
September 24, 2024
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Atlantic Shores South Project Offshore
of New Jersey; Final Rule
Federal Register / Vol. 89, No. 185 / Tuesday, September 24, 2024 /
Rules and Regulations
[[Page 77972]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
RIN 0648-BL73
[Docket No. 240827-0228]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Atlantic Shores South Project
Offshore of New Jersey
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, the National Marine Fisheries
Service (hereafter, ``NMFS'') promulgates regulations to govern the
incidental taking of marine mammals by Atlantic Shores Offshore Wind
Project 1, LLC, the project company of the original applicant, Atlantic
Shores Offshore Wind, LLC, a joint venture between EDF-RE Offshore
Development LLC (a wholly owned subsidiary of EDF Renewables, Inc.) and
Shell New Energies US LLC, during the construction of the Atlantic
Shores South Project (hereafter, ``Atlantic Shores South'' or the
``Project''), an offshore wind energy project located in Federal and
State waters offshore of New Jersey, specifically within the Bureau of
Ocean Energy Management (hereafter, ``BOEM'') Commercial Lease of
Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (hereafter, ``OCS'') Lease Areas OCS-A-0499 and OCS-
A-0570 (hereafter, ``Lease Areas'') and along export cable routes to
sea-to-shore transition points. The Project will be divided into 2
projects in 2 areas: Project 1 and Project 2 (the combined hereafter
referred to as the ``Project Area''), over the course of 5 years
(January 1, 2025, through December 31, 2029). Of note, the proposed
rule for this action named only OCS-A-0499 and the parent company,
Atlantic Shores Offshore Wind LLC, with 2 subsidiaries who control each
component of the Project (i.e., Project 1 is controlled by Atlantic
Shores Offshore Wind Project 1, LLC, and Project 2 is controlled by
Atlantic Shores Offshore Wind Project 2, LLC). However, after
publication of the proposed rule, Atlantic Shores Offshore Wind LLC
notified NMFS that this rulemaking should be issued for Atlantic Shores
Offshore Wind Project 1, LLC (``Project Company 1''). Furthermore,
Project Company 1 now maintains ownership of both Project 1 and Project
2, rather than 2 separate subsidiaries for each of Project 1 and
Project 2. As a result of this, the applicant requested that the Letter
of Authorization (hereafter, ``LOA''), if issued, be issued to Project
Company 1, which would oversee the construction of both Project 1 and
Project 2 (where the latter Project would be operated by ``Atlantic
Shores Offshore Wind Project 2, LLC'' (``Project Company 2'')). These
regulations, which allow for the issuance of a LOA for the incidental
take of marine mammals during construction-related activities within
the Project Area during the effective dates of the regulations,
prescribe the permissible methods of taking and other means of
effecting the least practicable adverse impact on marine mammal species
or stocks and their habitat as well as requirements pertaining to the
monitoring and reporting of such taking.
DATES: This rule is effective from January 1, 2025, through December
31, 2029.
FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Project Company 1's Incidental Take Authorization
(hereafter, ``ITA'') application, supporting documents, received public
comments, and the proposed rulemaking, as well as a list of the
references cited in this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In case of
problems accessing these documents, please call the contact listed
above (see FOR FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the
authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to allow the
take of marine mammals incidental to construction of the Project within
the Project Area. NMFS received a request from Project Company 1 to
incidentally take 16 species of marine mammals, comprising 17 stocks
(i.e., 9 species by Level A harassment and Level B harassment and 7
species by Level B harassment only), incidental to Project Company 1's
5 years of construction activities. No mortality or serious injury is
anticipated or allowed in this final rulemaking. Please see the Legal
Authority for the Final Action section below for definitions of
harassment, serious injury, and incidental take.
Legal Authority for the Final Action
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made, regulations are
promulgated (when applicable), and public notice and an opportunity for
public comment are provided.
Allowing for and authorizing incidental takings shall be granted if
NMFS finds that the taking will have a negligible impact on the species
or stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). If such findings are made, NMFS must: (1) prescribe
the permissible methods of taking; (2) analyze ``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 (hereafter referred to as ``mitigation''); and (3)
enact requirements pertaining to the monitoring and reporting of such
takings.
As noted above, no serious injury or mortality is anticipated or
allowed in this final rule. Relevant definitions of MMPA statutory and
regulatory terms are included below:
<bullet> U.S. Citizens--individual U.S. citizens or any corporation
or similar entity if it is organized under the laws of the United
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR
216.103);
<bullet> Take--to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal (see 16 U.S.C.
1362(13); 50 CFR 216.3);
<bullet> Incidental harassment, incidental taking, and incidental,
but not intentional, taking--an accidental taking. This does not mean
that the taking is unexpected, but rather it
[[Page 77973]]
includes those takings that are infrequent, unavoidable, or accidental
(see 50 CFR 216.103);
<bullet> Serious Injury--any injury that will likely result in
mortality (see 50 CFR 216.3);
<bullet> Level A harassment--any act of pursuit, torment, or
annoyance which has the potential to injure a marine mammal or marine
mammal stock in the wild (see 16 U.S.C. 1362(18); 50 CFR 216.3); and
<bullet> Level B harassment--any act of pursuit, torment, or
annoyance which has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (see 16 U.S.C. 1362(18); 50 CFR 216.3).
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I provide the legal basis for proposing
and, if appropriate, issuing regulations and an associated LOA. This
final rule establishes permissible methods of taking and mitigation,
monitoring, and reporting requirements for Project Company 1's
construction activities.
Summary of Major Provisions Within the Final Rule
The major provisions of this final rule are:
<bullet> The allowed take of marine mammals by Level A harassment
and/or Level B harassment;
<bullet> No allowed take of marine mammals by mortality or serious
injury;
<bullet> The establishment of a seasonal moratorium on pile driving
of foundation piles during the months of the highest presence of North
Atlantic right whales (Eubalaena glacialis) in the Lease Areas (January
1st through April 30th, annually, and in December unless it is
necessary to complete the Project and if it is approved by NMFS to
minimize the number of North Atlantic right whale takes);
<bullet> A requirement for NOAA Fisheries-approved Protected
Species Observers (hereafter, ``PSOs'') and Passive Acoustic Monitoring
(hereafter, ``PAM'') operators (where required) to conduct both visual
and passive acoustic monitoring before, during, and after select
activities;
<bullet> A requirement for training for all Project Company 1
personnel to ensure marine mammal protocols and procedures are
understood;
<bullet> The establishment and implementation of clearance and
shutdown zones for all in-water construction activities to prevent or
reduce the risk of Level A harassment and to minimize the risk of Level
B harassment;
<bullet> A requirement to use sound attenuation devices during all
foundation pile driving installation activities to reduce noise levels
to those modeled assuming 10 decibels (dB);
<bullet> A delay to the start of foundation installation if a North
Atlantic right whale is observed at any distance by PSOs or
acoustically detected within the PAM Clearance/Shutdown Zone (10
kilometer (km) (6.21 miles (mi));
<bullet> A delay to the start of foundation installation if other
marine mammals are observed entering or within their respective
clearance zones;
<bullet> A requirement to shut down pile driving (if feasible,
otherwise ``powering down'' (i.e., reducing the impact hammer's energy)
is required) if a North Atlantic right whale is observed at any
distance or if any other marine mammals are observed entering their
respective shutdown zones;
<bullet> A requirement to conduct sound field verification (SFV)
during foundation pile driving to measure in situ noise levels for
comparison against the modeled results;
<bullet> A requirement to implement soft-starts during all impact
pile driving using the least amount of hammer energy necessary for
installation;
<bullet> A requirement to implement ramp-up during the use of non-
binary high-resolution geophysical (HRG) marine site characterization
survey equipment;
<bullet> A requirement to monitor the relevant Right Whale
Sightings Advisory System, the United States' Coast Guard's Channel 16,
and NMFS' website at: <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>, as well as reporting any sightings to the sighting
network;
<bullet> A requirement to implement various vessel strike avoidance
measures;
<bullet> A requirement to implement measures during fisheries
monitoring surveys, such as removing gear from the water if marine
mammals are considered at-risk or are interacting with gear; and
<bullet> A requirement to submit frequent regularly scheduled and
situational reports including, but not limited to, information
regarding activities occurring, marine mammal observations and acoustic
detections, and SFV monitoring results.
NMFS must withdraw or suspend any LOA issued under these
regulations, after notice and opportunity for public comment, if it
finds the methods of taking or the mitigation, monitoring, or reporting
measures are not being substantially complied with (16 U.S.C.
1371(a)(5)(B); 50 CFR 216.106(e)). Additionally, failure to comply with
the requirements of the LOA may result in civil monetary penalties and
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50
CFR 216.106(g)).
Fixing America's Surface Transportation Act (FAST-41)
This Project is covered under Title 41 of the Fixing America's
Surface Transportation Act or ``FAST-41''. FAST-41 includes a suite of
provisions designed to expedite the environmental review for covered
infrastructure Projects, including enhanced interagency coordination as
well as milestone tracking on the public-facing Permitting Dashboard.
FAST-41 also places a 2-year limitations period on any judicial claim
that challenges the validity of a Federal agency decision to issue or
deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-
6(a)(1)(A)).
Atlantic Shores South is listed on the Permitting Dashboard, where
milestones and schedules related to the environmental review and
permitting for the Project can be found at: <a href="https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/atlantic-shores-south">https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/atlantic-shores-south</a>.
Summary of Request
On February 8, 2022, NMFS received a request from Project Company 1
(previously, ``Atlantic Shores'') for the promulgation of regulations
and the issuance of an associated LOA to take marine mammals incidental
to construction activities associated with the Project located offshore
of New Jersey in Lease Area OCS-A-0499 (then, a single lease) and
associated export cable corridors. Project Company 1's request is for
the incidental, but not intentional, take of a small number of 16
marine mammal species comprising 17 stocks (i.e., 9 species by Level A
harassment and Level B harassment and 7 species by Level B harassment
only). Neither Project Company 1 nor NMFS expected serious injury and/
or mortality to result from the specified activities. Because of this,
Project Company 1 did not request, and NMFS has not allowed mortality
or serious injury of any marine mammal species or stock.
In response to our questions and comments and following extensive
information exchanges with NMFS, Project Company 1 submitted a final,
revised application on August 12, 2022 that NMFS deemed adequate and
complete on August 25, 2022. The final
[[Page 77974]]
version of the application is available on NMFS' website at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>.
On September 29, 2022, NMFS published a notice of receipt (NOR) of
the adequate and complete application in the Federal Register (87 FR
59061), requesting public comments and information related to Project
Company 1's request during a 30-day public comment period. Due to a
request from a public group called Save Long Beach Island, Inc.
(SaveLBI), NMFS extended the public comment period for an additional 15
days (87 FR 65193, October 28, 2022) for a total of a 45-day public
comment period. During the 45-day NOR public comment period, NMFS
received 5 comments and letters from the public, including a citizen,
an environmental non-governmental organization (hereafter, ``eNGO''),
and a local citizen group. NMFS has reviewed all submitted material and
has taken these into consideration during the drafting of this final
rulemaking.
On September 22, 2023, NMFS published a proposed rule in the
Federal Register for the Project (88 FR 65430). In the proposed rule,
NMFS synthesized all of the information provided by Project Company 1,
all best available scientific information and literature relevant to
the proposed Project, outlined, in detail, proposed mitigation designed
to effect the least practicable adverse impacts on marine mammal
species and stocks as well as proposed monitoring and reporting
measures, and made preliminary negligible impact and small numbers
determinations. The public comment period on the proposed rule was open
for 30 days at: <a href="https://www.regulations.gov">https://www.regulations.gov</a>, starting on September 22,
2023 and closing after October 23, 2023. The public comments can be
viewed at: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2023-0068">https://www.regulations.gov/docket/NOAA-NMFS-2023-0068</a>. A
summary of public comments received during this 30-day period and NMFS
responses are described in the Comments and Responses section.
In June 2022, Duke University's Marine Spatial Ecology Laboratory
released updated habitat-based marine mammal density models (Roberts et
al., 2016a; Roberts et al., 2023). After consideration by NMFS, and
because Project Company 1 applied previous marine mammal densities to
their analysis in their initially submitted application, Project
Company 1 reanalyzed its Project using the new Duke University data and
submitted a final Updated Density and Take Estimation Memorandum on
March 28, 2023 that included marine mammal densities and take estimates
based on these new models. This memorandum can be found on NMFS'
website at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. This information was
incorporated into the proposed rule (88 FR 65430, September 22, 2023).
During the development of the proposed rule during the months of
January and February 2023, Project Company 1 informed NMFS that the
proposed activity had been narrowed from what was presented in the
adequate and complete MMPA application. Specifically, Project Company 1
committed to installing only monopile wind turbine generator (WTG)
foundations for Project 1 (and any found in the associated Overlap
Area), as opposed to either monopile or jacket foundations. All WTGs
built for Project 2 (and any remaining Overlap Area) may still consist
of either monopiles or jacket foundations as presented in the adequate
and complete MMPA application. Additionally, all offshore substation
(OSS) foundations that could be developed across both Projects 1 and 2
continue to maintain build-outs using only jacket foundations. Project
Company 1 provided a memo and supplemental materials outlining these
changes to NMFS on March 31, 2023. These supplemental materials can be
found on NMFS' website at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations (87 FR 46921,
August 1, 2022) to further reduce the likelihood of mortalities and
serious injuries to endangered right whales from vessel collisions,
which are a leading cause of the species' decline and a primary factor
in an ongoing Unusual Mortality Event (hereafter, ``UME''). Should a
final vessel speed rule or any other MMPA ITA be issued and become
effective during the effective period of these regulations, Atlantic
Shores will be required to comply with any and all applicable
requirements contained within the final rule. Specifically, where
measures in any final vessel speed rule are more protective or
restrictive than those in this or any other MMPA ITA, Atlantic Shores
will be required to comply with the requirements of the vessel speed
rule. Alternatively, where measures in this or any other MMPA ITA are
more restrictive or protective than those in any final vessel speed
rule, the measures in the MMPA ITA will remain in place. The
responsibility to comply with the applicable requirements of any vessel
speed rule will become effective immediately upon the effective date of
any final vessel speed rule, and when notice is published on the
effective date, NMFS will also notify Project Company 1 if the measures
in the speed rule were to supersede any of the measures in the MMPA ITA
such that they were no longer required.
On June 26, 2024, Atlantic Shores Offshore Wind LLC provided a
written request to NMFS to change the LOA Holder from Atlantic Shores
Offshore Wind LLC to Project Company 1, who would oversee and be
responsible for the construction of both Project 1 and Project 2.
Furthermore, on June 26, 2024, Atlantic Shores Offshore Wind LLC
notified NMFS that it had requested that BOEM segregate a portion of
Lease Area OCS-A-0499, which would then be assigned to another
subsidiary of Atlantic Shores, Project Company 2, as Lease Area OCS-A-
0570. As described above, Project Company 1 requested to NMFS that the
incidental take regulation (ITR) governing take of marine mammals
incidental to activities associated with both phases of the Project and
the associated LOA (if issued by NMFS) be issued to Project Company 1,
which would oversee Project 1 (constructed and operated by Project
Company 1) and Project 2 (constructed and operated by Project Company
2) of the Atlantic Shores South Project. The lease segregation is
expected to be completed by BOEM on September 30, 2024, and will not
alter the geographic location or size of the area in which either
Project 1 or Project 2 would be built, nor will it cause any changes to
the construction schedule, planned activities, or take. In short, no
changes to the overall Project were requested or are expected, with the
exception of the name change. As a result, where appropriate, Project
Company 1, the owner of the Project, has henceforth been incorporated
as the ``applicant'' or ``LOA Holder'' throughout this final rule.
NMFS has previously issued 5 Incidental Harassment Authorizations
(hereafter, ``IHAs''), including 1 renewal IHA to Project Company 1
authorizing take incidental to high-resolution site characterization
surveys offshore New Jersey in the now segregated OCS-A-0499 (to
include OCS-A-0570) (see 85 FR 21198, April 16, 2020; 86 FR 21289,
April 22, 2021 (renewal); 87 FR 24103, April 22, 2022; 88 FR 38821,
June 14, 2023; and 89 FR 20434, March 22, 2024).
[[Page 77975]]
To date, Project Company 1 has complied with all the requirements
(e.g., mitigation, monitoring, and reporting) of the previous IHAs and
information regarding Project Company 1's take estimates, and
monitoring results may be found in the Estimated Take section. Final
monitoring reports can be found on NMFS' website, along with previously
issued IHAs 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>.
Description of the Specified Activities
Overview
Project Company 1 plans to construct and operate two offshore wind
projects, Project 1 and Project 2, (collectively, Atlantic Shores
South, or the Project) in the Lease Areas. These Lease Areas are
located within the New Jersey Wind Energy Area (hereafter, ``NJ WEA'').
Collectively, Atlantic Shores South will consist of up to 200 WTGs, 10
OSSs, and 1 Met Tower divided into two projects: Project 1 and Project
2. These projects would assist the State of New Jersey to meet its
renewable energy goals under the New Jersey Offshore Wind Economic
Development Act (hereafter, ``OWEDA''). Project Company 1 has been
given an allowance by the New Jersey Board of Public Utilities through
an Offshore Renewable Energy Certificate (hereafter, ``OREC'') to
construct a facility capable of delivering 1,510 megawatts (MW) of
renewable energy to the State of New Jersey through Project 1. Project
1 would be capable of powering approximately 700,000 homes (see <a href="https://atlanticshoreswind.com/atlantic-shores-offshore-wind-receives-record-of-decision-for-atlantic-shores-project-1-and-2/">https://atlanticshoreswind.com/atlantic-shores-offshore-wind-receives-record-of-decision-for-atlantic-shores-project-1-and-2/</a>). Project Company 1
also intends to compete for a second OREC award through a competitive
solicitation process to develop Project 2, which will be owned by
another affiliate company of Project Company 1, Project Company 2,
although Project Company 1 will oversee Project 2'sdevelopment.
Collectively, the entire Project is capable of powering over 1 million
homes (see <a href="https://atlanticshoreswind.com/atlantic-shores-offshore-wind-receives-record-of-decision-for-atlantic-shores-project-1-and-2/">https://atlanticshoreswind.com/atlantic-shores-offshore-wind-receives-record-of-decision-for-atlantic-shores-project-1-and-2/</a>).
The Project will consist of several different types of permanent
offshore infrastructure, including: (1) up to 200 15-MW WTGs and up to
10 OSSs; (2) a single Met Tower; and (3) OSS array cables and
interconnector cables. All permanent foundations (WTGs, OSSs, and the
single Met Tower) will be installed using impact pile driving only. For
the permanent foundations, Project Company 1 originally considered
three construction scenarios for the completion of Projects 1 and 2.
All three Schedules assume a start year of 2026 for WTG, Met Tower, and
OSS foundation installation. Schedules 1 and 3 assume monopile
foundations for all WTGs and the Met Tower across both Projects 1 and
2. Schedule 2 originally assumed a full jacket foundation buildout for
both Projects 1 and 2. However, Project Company 1 has modified Schedule
2 to now assume that all WTGs and the Met Tower in Project 1 would be
built using monopiles. The WTGs for Project 2 would still consist of
either jacket or monopile foundations. In all Schedules, the OSS
foundations would always be built out using jacket foundations.
However, these may vary in size between the two Projects (i.e., small,
medium, or large OSSs). Under Schedules 1 and 2, foundations would be
constructed in 2 years. Under Schedule 3, all permanent foundations
would be installed within a single year.
Project Company 1 would also conduct the following specified
activities: (1) temporarily installation and removal, by vibratory pile
driving, of up to eight nearshore cofferdams to connect the offshore
export cables to onshore facilities; (2) deployment of up to four
temporary meteorological and oceanographic (hereafter, ``metocean'')
buoys (three in Project 1 and one in Project 2); (3) conducting of
several types of fishery and ecological monitoring surveys; (4)
placement of scour protection, trenching, laying, and burial activities
associated with the installation of the export cable route from OSSs to
shore-based switching and substations and inter-array cables between
turbines; (5) conducting of HRG vessel-based site characterization and
assessment surveys using active acoustic sources with frequencies of
less than 180 kilohertz (hereafter, ``kHz''); (6) transiting within the
Project Area and between ports and the Lease Areas to transport crew,
supplies, and materials to support pile installation via vessels; and
(7) WTG operation. All offshore cables would be connected to onshore
export cables at the sea-to-shore transition points located in Atlantic
City, New Jersey (hereafter, ``Atlantic City landfall site'') and in
Sea Girt, New Jersey (hereafter, ``Monmouth landfall site''). From the
sea-to-shore transition point, onshore underground export cables are
then connected in series to switching stations/substations, overhead
transmission lines, and ultimately to the grid connection. No
detonations of unexploded ordnance or munitions and explosives of
concern (hereafter, ``UXOs/MECs'') were planned to occur, nor are they
included in this final rulemaking. Therefore, these are not discussed
further and no take has been allowed for these activities.
Marine mammals exposed to elevated noise levels during vibratory
and impact pile driving and site characterization surveys may be taken
by Level A harassment and/or Level B harassment, depending on the
specified activity and species.
A detailed description of the specified activities is provided in
the proposed rule as published in the Federal Register (88 FR 65430,
September 22, 2023). Since the proposed rule was published, Project
Company 1 has not modified the specified activities. Please refer to
the proposed rule for more information on the description of the
specified activities.
Dates and Duration
Project Company 1 anticipates its specified activities to occur
throughout all 5 years of the effective period of the regulations,
beginning on January 1, 2025 and continuing through December 31, 2029.
Project Company 1's anticipated construction schedule can be found in
table 1. Project Company 1 has noted that these are the best and
conservative estimates for activity durations but that the schedule may
shift due to weather, mechanical, or other related delays.
Table 1--Construction Schedule
----------------------------------------------------------------------------------------------------------------
Duration \a\ Expected Project 1 Project 2
Activity (months) schedule \b\ start date start date
----------------------------------------------------------------------------------------------------------------
Onshore Interconnection Cable Installation...... 9-12 2024-2025 Q1--2024 Q1--2024
Onshore Substation and/or Onshore Converter 18-24 2024-2026 Q1--2025 Q1--2025
Station Construction...........................
HRG Survey Activities........................... 3-6 2025-2029 Q2--2025 Q3--2025
Export Cable Installation....................... 6-9 2025 Q2--2025 Q3--2025
[[Page 77976]]
Temporary Cofferdam Installation and Removal \c\ 18-24 2025-2026 Q2--2025 Q3--2025
OSS installation and Commissioning.............. 5-7 2025-2026 Q2--2026 Q2--2026
WTG Foundation and Met Tower Installation \d\... \e\ 10 2026-2027 Q1--2026 Q1--2026
Inter-Array Cable Installation.................. 14 2026-2027 Q2--2026 Q3--2026
WTG Installation and Commissioning \f\.......... 17 2026-2027 Q2--2026 Q1--2027
Met Buoy Deployments............................ 36 2025-2027 Q1--2025 Q1--2025
Scour Protection Pre-Installation............... 17 2025-2027 Q2--2025 Q3--2025
Scour Protection Post-Installation.............. 17 2025-2027 Q2--2025 Q3--2025
Site Preparation................................ 60 2025-2029 Q1--2025 Q4--2029
Fishery Monitoring Surveys...................... 60 2025-2029 Q1--2025 Q4--2029
----------------------------------------------------------------------------------------------------------------
Note: Q1 = January through March; Q2 = April through June; Q3 = July through September; Q4 = October through
December.
\a\ These durations are a total across all years the activity may occur.
\b\ The expected timeframe, based on a modified Schedule 2, is indicative of the most probable duration for each
activity; the timeframe could shift and/or extend depending on supply chains, weather, mechanical, or other
related delays.
\c\ Project Company 1 intends to install the temporary cofferdams for a limited duration annually between Labor
Day and Memorial Day (i.e., between early September and late May). However, given limited species presence,
the limited amount of work planned for the entire cable landfall activity, and the expected impact is not
anticipated to rise above a small subset of take by Level B harassment (i.e., no take by Level A harassment is
expected), this rulemaking does not specifically require time-of-year restrictions on this activity.
\d\ As described in the proposed rule (88 FR 65430, September 22, 2023), the expected timeframe is dependent on
the completion of the preceding Project 1 activities (i.e., Project 1 inter-array cable installation and WTG
installation) and the Project 2 foundation installation schedule.
\e\ A seasonal pile driving moratorium is in place from January 1st through April 30th, annually, unless pile
driving must occur in December to complete the Project and NMFS allows for December pile driving to also
occur.
\f\ Project Company 1 anticipates that WTGs for each Project would be commissioned starting in 2026 and 2027 but
turbines would not become operational until 2028 and 2029.
Specific Geographic Region
A detailed description of the Specific Geographic Region is
provided in the proposed rule as published in the Federal Register (88
FR 65430, September 22, 2023). Since the proposed rule was published,
no changes have been made to the Specified Geographic Region.
Generally, Project Company 1's planned activities (i.e., impact pile
driving of WTG, OSS, and Met Tower foundations; vibratory pile driving
of temporary cofferdams (installation and removal); placement of scour
protection; trenching, laying, and burial activities associated with
the installation of the export cable and inter-array cables; HRG site
characterization surveys; and WTG operation) are concentrated in the
Project Area (figure 1). A couple of Project Company 1's specified
activities (i.e., fishery and ecological monitoring surveys and
transport vessels) will occur in the Mid-Atlantic Bight.
BILLING CODE 3510-22-P
[[Page 77977]]
[GRAPHIC] [TIFF OMITTED] TR24SE24.000
BILLING CODE 3510-22-C
Comments and Responses
A proposed rule was published in the Federal Register on September
22, 2023 (88 FR 65430). The proposed rule described, in detail, Project
Company 1's specified activities, the specified geographic region of
the specified
[[Page 77978]]
activities, the marine mammal species that may be affected by those
activities, and the anticipated effects on marine mammals. In the
proposed rule, we requested that interested persons submit relevant
information, suggestions, and comments on Project Company 1's request
and the promulgation of regulations and issuance of an associated LOA
described therein, our estimated take analyses, the preliminary
determinations, and the proposed regulations. The proposed rule was
available for a 30-day public comment period.
In total, NMFS received 57 comment submissions, comprising 55
individual comments from private citizens, 1 comment letter from the
Marine Mammal Commission (hereafter, ``the Commission''), and 1 comment
letter with supplemental attachments from the public group, SaveLBI.
Some of the comments received were considered out-of-scope, including,
but not limited to: comments related to constructing wind farms on
land; comments on language found in the draft Environmental Impact
Statement (EIS); comments related to offshore wind in Europe; comments
specifically about activities found in HRG IHAs; visibility of WTGs
from the coast; concerns for other species outside of NMFS'
jurisdiction (i.e., birds); the pros and cons of renewable energy and
nuclear power; costs and finances regarding the construction of
offshore wind farms; fishing activities from commercial industries;
lifespan of WTGs located offshore; and tourism. These comments are not
described herein or discussed further. Moreover, where comments
recommended that the final rule include mitigation, monitoring, or
reporting measures that were already included in the proposed rule and
such measures are carried forward in this final rule, they are not
included here, as those comments did not raise significant points for
NMFS to consider. Furthermore, if a comment received was unclear, we do
not include it here as we could not determine whether it raised a
significant point for NMFS to consider.
The two letters and supplemental attachments from the Commission
and SaveLBI, as well as the individual comments, received during the
public comment period contained significant points that NMFS considered
in its estimated take analysis, including: required mitigation,
monitoring, and reporting measures; final determinations; and final
regulations. These are described and responded to below. All
substantive comments and letters are available on NMFS' website at:
<a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. Please review the corresponding
public comment link for full details regarding the comments and
letters.
Modeling and Take Estimates
Comment 1: A commenter recommended that NMFS revise its take
estimates from impact pile driving using a 5 dB broadband noise source
attenuation, rather than the 10 dB of sound attenuation, with no
attenuation at low frequencies.
Response: In the proposed rule, NMFS described the best available
science, which supports the assumption that at least 10 dB attenuation
can be reliably achieved using the required noise attenuation systems,
including a double bubble curtain. This included data from Bellmann et
al. (2020) where double bubble curtains achieved between 8 to 18 dB of
broadband noise attenuation depending on water depth and supplied air
volume. Bubble curtain effectiveness depends significantly on the
supplied air volume and the water depth, with performance increasing
with air flow and decreasing with depth. Notably, the proposed rule
requires an air flow rate of at least 0.5 m\3\/(minute*m) and the
Project Area has depths ranging from 19 to 37 meters (m) (62.34 to
121.39 feet (ft)). In the set of measurements from Bellmann et al.
(2020), broadband noise attenuation was only less than 10 dB for
supplied air flow rates between 0.3 and 0.4 m\3\/(minute*m) and in
depths of approximately 40 m (131.23 ft). Because the double bubble
curtain used in this Project will be in shallower water and have more
supplied air volume, it is reasonable to expect performance greater
than 8 dB and closer to the measurements of curtains with higher
airflow and in shallower water (12-18 dB). Finally, results from
Vineyard Wind 1's SFV (K[uuml]sel et al., 2024) indicate that the
median near pile (750 m (2,460.63 ft)) sound pressure level while using
double bubble curtains, along with a near pile resonator, was
approximately 171 dB. The modeling for Vineyard Wind 1, which assumed 6
dB attenuation, implied levels near 180 dB at 750 m (JASCO Applied
Sciences (USA) Inc. (JASCO and LGL., 2019)). This indicates that the
combination of source modeling and an assumption of 10 dB would have
been conservative in that case. Finally, Project Company 1 is required
to conduct SFV during installation of every pile and provide bubble
curtain performance reports to NMFS which will assist in determining if
the double bubble curtain is working properly and is optimized and
noise levels are as expected. Thus, NMFS finds that the mitigation
requirements in the proposed rule, which include the use of a double
bubble curtain and adherence to best practice standards for operation
of noise mitigation systems, are capable of providing an expected 10 dB
of attenuation, as evidenced by the extensive data from Bellmann et al.
(2020) and initial SFVs in US waters.
With regard to the fact that NMFS' assumed 10 dB attenuation rate
is broadband in nature and assumes this level of noise reduction at all
frequencies, NMFS agrees that attenuation levels vary by frequency band
and that bubble curtains attenuate higher frequency sounds more
effectively; however, NMFS disagrees that lower frequency bands, which
are important to consider when evaluating impacts, are not attenuated
at all. The data from Bellmann (2021), shows that for both single and
double bubble curtains, more than 10 dB of attenuation was achieved for
bands as low as 32 Hz. And while it is true that performance diminishes
significantly at lower frequencies (< 32 Hz), those bands also contain
significantly less pile driving sound and are +16 dB outside the most
susceptible frequency range for low-frequency cetaceans.
Comment 2: A commenter stated that NMFS did not provide an
explanation of the revised take numbers from JASCO's August 10, 2022
Exposure Modeling Report in the proposed rule. They further stated that
NMFS did not disclose information on how the source levels, exposure
ranges, and proposed takes were calculated.
Response: The proposed rule clearly describes that the take
estimates were updated due to the release of the new Duke Habitat-Based
Density Models (Roberts et al., 2023) which are the best available
science. Modeling methodology, including source, propagation, and
exposure modeling methodology were summarized in the proposed rule and
were thoroughly described in the JASCO Exposure Modeling Report and ITA
application materials. Moreover, the proposed rule reflected the most
recent information provided by the applicant, which is available on our
website at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
Comment 3: A commenter stated that NMFS underestimated Level A
harassment and Level B harassment take estimates because the proposed
rule applied density models to the take calculations that, according to
the commenter, do not account for North
[[Page 77979]]
Atlantic right whale migration and NMFS should not use the 160
dB<INF>rms</INF> threshold to estimate behavioral harassment from pile
driving. The commenter recommended that NMFS revise the take estimates
based on the North Atlantic right whale density estimates contained
within the application (Roberts et al., 2016a, 2016b, 2017, 2018,
2021a, 2021b), not the updated Roberts et al. (2023) densities, and the
Wood et al. (2012) step-function in lieu of the 160 dB<INF>rms</INF>
threshold. Additionally, the commenter suggested a new approach to
calculate take of marine mammals, wherein NMFS should calculate the
ranges to elevated noise levels perpendicular to the whale's path and
assume that the number of whales heading toward that is proportional to
that range divided by 60 mi (96.6 km). They state that this approach
will better allow MMPA ITAs to assess the Project's potential impact.
The commenter provided their independent take calculations using these
alternative methods.
Response: NMFS disagrees with the commenter's recommendations.
First, the Wood et al. (2012) probabilistic step-function recommended
for use by the commenter was derived by a select group of experts to
assess the impacts of seismic air gun surveys involving moving sources.
The commenter did not provide information that demonstrates the 160
dB<INF>rms</INF> threshold is less appropriate other than that the
alternative method they proposed, which only results in slightly more
take than both the proposed and final rules, which was also inclusive
of a 3.8 mean group size of North Atlantic right whales from the Ocean
Biodiversity Information System (OBIS) repository (OBIS, 2022) (i.e.,
the commenters suggested 27 takes against the proposed rule's 21 takes
against the final rule's 25 takes of North Atlantic right whales over a
5-year period).
While NMFS acknowledges the potential for behavioral disturbance at
exposures to received levels below 160 dB<INF>rms</INF>, it should also
be acknowledged that not every animal exposed to received levels above
160 dB<INF>rms</INF> will be behaviorally disturbed. The 160-dB
threshold functions as a mid-point and serves as a practical
generalized tool for informing the predicted likelihood, and
quantification, of Level B harassment. Additionally, there are a
variety of studies indicating that contextual variables (e.g., range to
source, received levels (RL) above background noise, novelty of the
signal, and differences in behavioral state) play a very important role
in responses to anthropogenic noise (Ellison et al., 2012; Gong et al.,
2014), and the severity of effects are not necessarily linear when
compared to a received level. DeRuiter et al. (2012) also indicate that
variability of responses to acoustic stimuli depends not only on the
species receiving the sound and the sound source, but also on the
social, behavioral, or environmental contexts of exposure. Use of the
160-dB threshold allows for a simplistic quantitative estimate of take
while we can qualitatively address the variation in responses across
different received levels in our discussion and analysis.
Overall, we reiterate the lack of scientific consensus regarding
what criteria might be more appropriate. Defining sound levels that
disrupt behavioral patterns is difficult because responses depend on
the context in which the animal receives the sound, including an
animal's behavioral mode when it hears sounds (e.g., feeding, resting,
or migrating), prior experience, and biological factors (e.g., age and
sex). Other contextual factors, such as signal characteristics,
distance from the source, and signal to noise ratio, may also help
determine response to a given received level of sound. Therefore,
levels at which responses occur are not necessarily consistent and can
be difficult to predict (Southall et al., 2007; Ellison et al., 2012;
Southall et al., 2021). For example, Gomez et al. (2016) reported that
received level was not an appropriate indicator of behavioral response.
Further, the seminal reviews presented by Southall et al. (2007), Gomez
et al. (2016), and Southall et al. (2021) did not suggest any specific
new criteria due to lack of convergence in the data.
Given there is currently no concurrence on these complex issues,
NMFS followed its practice at the time of submission and review of this
application in assessing the likelihood of disruption of behavioral
patterns by using the 160 dB threshold. NMFS is currently evaluating
available information towards development of updated guidance for
assessing the effects of anthropogenic sound on marine mammal behavior.
However, undertaking a process to derive defensible exposure-response
relationships, as suggested by Tyack and Thomas (2019), is complex. The
recent systematic review by Gomez et al. (2016) was unable to derive
criteria expressing these types of exposure-response relationships
based on currently available data.
NMFS is committed to continuing its work in developing updated
guidance with regard to acoustic thresholds but pending additional
consideration and process, is reliant upon an established threshold
that is reasonably reflective of best available science.
With respect to the commenters' claim that different densities
should be used, the most recent Duke University habitat-based density
models are considered the best available science. The models
statistically correlate sightings with sightings from shipboard and
aerial surveys with oceanographic conditions. In 2023, Duke University
updated the North Atlantic right whale model to also include
independently collected PAM data, expanding the data set used in the
model since the previous model that was recommended for use by the
commenter (see <a href="https://seamap.env.duke.edu/models/Duke/EC/EC_North_Atlantic_right_whale_history.html">https://seamap.env.duke.edu/models/Duke/EC/EC_North_Atlantic_right_whale_history.html</a>). Marine mammal behavior,
such as foraging and migration, are not part of the metadata used in
the Duke University density models; however, the survey data was
collected along the entire coast which includes migratory habitat
(including the mid-Atlantic where the Project would be constructed).
Therefore, the commenters claim that North Atlantic right whale
migration was not accounted for in the models is incorrect. NMFS
applied the most recent Duke University models to the analysis
contained within this rule as it represents the best available science
(versions 12, 12.1, and 12.2 for North Atlantic right whales (<a href="https://seamap.env.duke.edu/models/Duke/EC/EC_North_Atlantic_right_whale_history.html">https://seamap.env.duke.edu/models/Duke/EC/EC_North_Atlantic_right_whale_history.html</a>).
Project Company 1 conducted sophisticated modeling using simulated
animals exposed to foundation pile driving noise levels above NMFS'
thresholds to estimate exposures. The details of how this modeling is
conducted was summarized in the proposed rule and is fully described in
appendix B of Project Company 1's application at: <a href="https://media.fisheries.noaa.gov/2022-09/AtlanticShoresOWF_2022_Appendix%20B_OPR1.pdf">https://media.fisheries.noaa.gov/2022-09/AtlanticShoresOWF_2022_Appendix%20B_OPR1.pdf</a>. For North Atlantic right
whales, the exposure estimates were adjusted upwards to account for
group size. For example, the estimated modeled Level B harassment
exposures from full build out assuming Construction Schedule 2 for
North Atlantic right whales was 8.13 (see table 16 in appendix B of
Project Company 1's ITA application); however, the applicant requested
12 takes by Level B harassment (see table 17). Therefore, NMFS' final
rule considered 12 takes by Level B harassment. The simple take
estimate approach recommended by the commenter which considers whales
heading perpendicular to a certain distance and assuming that the
number of whales heading toward
[[Page 77980]]
that is proportional to that range divided by 60 mi (96.6 km) is
illogical. First, the commenter claims that the Duke University density
data suggests that over the January through April time period, most
North Atlantic right whale migration is occurring within 60 mi (96.6
km) of shore. However, this is irrelevant as no pile driving would be
occurring January through April; therefore, using 60 mi (96.6 km) in
any take calculation is not supported. Moreover, the commenter does not
identify the method by which a number of whales perpendicular a
distance should be derived. The commenter did not provide reasoning for
why this approach would better allow MMPA ITAs to assess the Project's
potential impact. For these reasons, NMFS has determined the number of
takes that would be authorized for North Atlantic right whales is based
on the best available science.
Comment 4: Regarding HRG surveys, commenters stated that take
estimates were underestimated because the use of a SIG ELC 820 unit as
a proxy for the Dura-Spark unit is unjustified and not consistent with
other higher values found in the technical literature (i.e., Crocker
and Fratantonio (2016)). The comment stated that NMFS should instead be
utilizing a source level of 211 dB in their analysis, rather than the
203 dB used in the proposed rule and ITA application materials, and
that NMFS should apply a more conservative spreading loss coefficient
when calculating distances to the Level B harassment threshold.
The commenter asserts that NMFS has underestimated exposure based
on the use of the SIG ELC 820 unit, and noise source levels from
vessels operating in the same area are comparable or higher than 211
dB. In addition, the commenter cited other recent HRG IHAs in the New
York Bight and Mid-Atlantic Bight that have been previously authorized
to use the Dura-Spark (400 tip), ranging at 5,500 to 2,000 joules (J),
which result in a higher dB level that what is presented in the
proposed rule for the Atlantic Shores South Project. The commenter also
stated that the 203 dB value is inconsistent with the Endangered
Species Act (ESA) programmatic consultation report that NMFS uses for
ESA compliance and that NMFS should not issue any more ITAs for
offshore wind work and should, consequently, cancel the Project.
Response: There is little data available regarding appropriate
choice of spreading loss (or transmission loss coefficient) for sparker
acoustic sources. The commonly used convention, which is applied here
by NMFS, is to use spherical spreading for HRG sources (Ruppel et al.,
2022). The field measurements by Rand (2023) imply spreading
coefficients greater than 20, which shows that spherical spreading in
that case is a good approximation. With regard to source level, the ITA
application specifies that the Dura-Spark 240 is typically operated
between 500-600 J and chose a source level based on the SIG ELC 820 of
203 dB (Crocker and Fratantonio, 2016). However, the developer has
since informed NMFS that the survey team intends to use only the Geo
Marine Geo-source sparker and has clarified that it will be nominally
operated with 400 tips and an energy of 400 J. Based on this, the most
representative proxy equipment from Crocker and Fratantonio (2016)
appears to be the Dura-Spark operating with 400 tips and 500 J, which
was measured to have a source level of 203 dB. Notably, the SIG ELC 820
operating at 750 J and at a depth of 5 m (16.4 ft) also has a source
level of 203 dB, according to Crocker and Fratantonio (2016). For these
reasons, NMFS finds that the source level used in the analysis (203 dB)
is appropriate for the planned activity and disagrees that any change
to the analysis is necessary.
NMFS disagrees that the source level used in Project Company 1's
sparker analysis is inconsistent with NMFS Greater Atlantic Regional
Fisheries Office's (GARFO) 2021 ESA programmatic consultation for site
assessment surveys. That analysis considered the loudest sources
potentially used by all offshore wind developers conducting site
assessment and site characterization surveys in the Atlantic Ocean due
to its programmatic nature. Here, Project Company 1 has identified
specific sources and operating modes and, therefore, our source level
analysis is appropriate.
Comment 5: The commenter stated that NMFS' assumption on the
spherical spreading and associated spreading loss factor was inaccurate
as it calculates spreading beyond what could reasonably occur. They
further stated that the 20 dB factor is presented without explanation
or justification in equations in various reports, the transmission loss
is not consistent with field measurements (Thomsen et al., 2006), and
the use of the 20 dB factor is not consistent with the NMFS approach
used and described well as ``common practice'' in the NMFS' own ITAs
from December 1, 2021 (86 FR 68223) and December 15, 2021 (86 FR
71162). They recommended that NMFS re-run the analysis, assuming a
higher source level of the acoustic source (211 dB) and assuming a 15
dB transmission loss.
Response: In support of its position, the commenter cites several
examples of use of practical spreading (a useful real-world
approximation of conditions that may exist between the theoretical
spreading modes of spherical and cylindrical; 15logR) in asserting that
this approach is also appropriate here. However, these examples (U.S.
Navy construction at Newport, Rhode Island, and NOAA construction in
Ketchikan, Alaska) are not relevant to the activity at hand. First,
these actions occur in even shallower water (e.g., less than 10 m
(32.81 ft) for Navy construction). NMFS notes that the transmission
loss from field measurements referenced (Thomsen et al., 2006) appear
to be relative to impact pile driving. For a number of factors,
transmission loss and therefore appropriate models depend on source
characteristics. The commonly used convention, which is applied here by
NMFS, is to use spherical spreading for HRG sources (Ruppel et al.,
2022). There is little data available regarding appropriate choice of
spreading loss (or transmission loss coefficient) for HRG sources and
sparkers in particular. However, the data that do exist for sparkers
suggest that spherical spreading is a fair approximation; the field
measurements by Rand (2023) imply spreading coefficients greater than
20 (22.5), field measurements from Halvorsen et al. (2018) are
reasonably approximated by spherical spreading, and propagation
modeling performed by Thomsen (2023) implies a transmission loss
coefficient of 20.26. Thus, of the data that do exist, none suggest
spherical spreading is a poor approximation. NMFS will continue to
evaluate appropriate propagation models for this and other HRG sources
as new data and literature become available.
Comment 6: The commenter criticized Project Company 1's use of the
2018 NMFS auditory weighting functions with the Wood et al. behavioral
criteria as described in the JASCO modeling report, indicating the
weighting functions are inappropriate. In addition, they claim that
NMFS weighting functions for low-frequency cetaceans incorrectly assume
that low-frequency cetaceans weighting functions eliminate most of the
pile driving noise. They stated that the NMFS approach artificially
underestimated take of low-frequency species as the underlying science
was not intended to be used as such and that NMFS must re-estimate the
exposure ranges and take using broader weighting functions (i.e.,
Southall et al., 2007). Lastly, they also
[[Page 77981]]
stated the NMFS' use of the 160 dB threshold for impulsive noise
resulting from construction activities and vessel surveys is
inconsistent by using the 160 dB threshold to assess vessel surveys and
Woods et al. to assess construction activities. Overall, they say that
this has resulted in NMFS underestimating the take associated with this
Project and resulted in insufficient mitigation and monitoring zone
sizes.
Response: These comments suggest there is confusion in
understanding which thresholds were used for the analysis contained
within the proposed and this final rule. For NMFS' analysis of
behavioral harassment from pile driving and HRG surveys, we have
appropriately relied on our 160 dB<INF>rms</INF> sound pressure level
(SPL) threshold, which is unweighted (i.e., no sound is being
eliminated), not the Wood et al. step function. Furthermore, we only
rely on our 2018 weighting functions to assess the potential for
auditory injury (i.e., permanent threshold shift (PTS)). NMFS agrees
with the commenter that the thresholds associated with Wood et al. are
intended to rely on the broader M-weighting functions from Southall et
al. (2007), not the weighting associated with our 2018 Technical
Guidance.
Comment 7: Commenters have stated that NMFS underestimated take by
Level A harassment (which the commenter asserts means ``instances of
serious harm or fatality'') because the rule ``does not estimate
those'' takes ``that occur indirectly from Level B behavior
disturbances.'' The commenters argue that HRG survey efforts in the
Atlantic are causing recent whale strandings along the East Coast due
to the overlap in time in which these events occur. The commenters
claim that HRG surveys being performed for offshore wind development
are the cause of recent U.S. East Coast strandings because literature
and news reports document that seismic surveys using airguns, multibeam
echosounders (MBES), and military sonar have been acknowledged
previously as the cause of strandings worldwide. A commenter provided
an Addendum to their letter wherein they describe that those sources
used have similarities to the proposed HRG noise sources for the
Project. All of the commenters thus claimed that HRG surveys conducted
by Project Company 1 for the Project would result in whale strandings,
including death.
Response: There is no evidence to support the assertion that
serious injury or mortality is a reasonably anticipated outcome of
Project Company 1's specified activities. Further, while NMFS
acknowledges military active sonar and seismic airguns have been
associated with more severe effects, including strandings for military
sonar in limited circumstances, these sources and operational
parameters are very dissimilar to HRG surveys and their likely effects
are not appropriately compared.
While NMFS acknowledges that HRG survey effort has increased in the
Atlantic Ocean during the time period of increased whale strandings,
there is no scientific evidence that HRG survey effort is a
contributing factor to the strandings. NMFS does not agree that
mortality is an anticipated outcome of these specified activities, and
there is no evidence to suggest otherwise, as described below. Further,
the proposed rule (88 FR 65430, September 22, 2023) clearly states that
no serious injury and/or mortality is expected or was proposed to be
allowed, and the same carries into the final rule for which no take by
serious injury or mortality has been allowed (see also 50 CFR
217.302(c)). More specifically, we refer the commenters to the
``Prohibitions'' portion of the regulatory text (see 50 CFR 217.303).
In the event that Project Company 1 takes any marine mammals in a
manner that has not been authorized in the final rule (see 50 CFR
217.303), including mortality, these would be in violation of the MMPA
and its implementing regulations and NMFS would undertake appropriate
actions, as determined to be necessary (see 16 U.S.C. 1371(a)(5)(B)).
The best available science indicates that the anticipated impacts
from site characterization and site assessment HRG surveys potentially
include temporary avoidance of localized areas, cessation of foraging
or communication, temporary threshold shift (TTS), stress, masking,
etc. (as described in the Effects of the Specified Activities on Marine
Mammals and their Habitat section in the proposed rule). NMFS
emphasizes that there is no evidence that noise resulting from HRG
surveys used for offshore wind development would cause marine mammal
strandings, and there is no evidence linking recent large whale
mortalities and currently ongoing offshore wind activities (i.e., HRG
surveys). The commenters offer no such evidence or other scientific
information to substantiate their claim. This point has been well
supported by other agencies, including the Marine Mammal Commission
Newsletter, Spring 2023). Additionally, a recent paper 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. Humpback whales were chosen as a case study
for this analysis as they are currently undergoing a UME and strand
more often than other large whale species. Thorne and Wiley (2024)
found vessel strikes to be a major driver in the increase of humpback
whale strandings, mortalities, and serious injury along the East Coast.
The potential for vessel strike increased during the study period due
to increased vessel traffic in new foraging areas, the increased
presence of juvenile humpback whales, and humpback whale foraging in
shallow areas that overlap with vessel traffic. Based upon the
spatiotemporal analysis, no evidence was found that offshore wind
development played a role in the increased number of strandings over
time. Future studies should focus on gaining a greater understanding of
spatial and seasonal habitat use patterns of large whales,
spatiotemporal changes in prey abundance and distribution, and how
habitat use and foraging behavior affect the risk of vessel strike.
While several species of delphinids and beaked whales have also
stranded off New Jersey since 2011 (per data provided from the National
Marine Stranding Network), there is no evidence that the acoustic
sources used during HRG surveys contributed to these events. NMFS will
continue to gather data to help us determine the cause of death for
these stranded whales.
There is an ongoing UME for humpback whales along the Atlantic
coast from Maine to Florida, which includes animals stranded since
2016, and we provide further information on the humpback whale and
North Atlantic right whale UMEs in the Description of Marine Mammals in
the Specific Geographic Region section of this final rule. For humpback
whales, partial or full necropsy examinations were conducted on
approximately half of the whales that were recently stranded along the
U.S. East Coast. Necropsies were not conducted on other carcasses
because they were too decomposed, not brought to land, or stranded on
protected lands (e.g., national and state parks) with limited or no
access. Of the whales examined (roughly 90), about 40 percent had
evidence of human interaction (i.e., vessel strike or entanglement).
Vessel strikes and entanglement in fishing gear are the greatest human
threats to large whales. The remaining 50 necropsied whales either had
an undetermined cause of death (due to a limited examination or
decomposition of the carcass) or had other causes of death including
parasite-caused organ damage and starvation. For North Atlantic right
whales, starting
[[Page 77982]]
in 2017, evaluated mortalities were documented in both Canada and the
United States, with the whales documented for this UME as being dead,
injured, and/or sick to the extent that more than 20 percent of the
population has been affected. The preliminary cause of mortality,
serious injury, and morbidity (i.e., sub-lethal injury and illness) in
most of these whales is from entanglements or vessel strikes and human
impacts continue to threaten the survival of this species. See NMFS'
websites at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast</a> and <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-north-atlantic-right-whale-unusual-mortality-event">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-north-atlantic-right-whale-unusual-mortality-event</a>
for more information on the ongoing humpback whale and North Atlantic
right whale UMEs. More information about interactions between offshore
wind energy projects and whales can be found at: <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales">https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales</a>.
In their letters, the commenters referenced several papers
documenting strandings associated with airguns and military sonars and
cited several global events where animals stranded around the same time
as these specific acoustic sources were used. They suggest that these
sources are analogous to HRG sources used by Project Company 1. This is
unsupported and inaccurate. High-powered seismic airguns and military
sonars ensonify much larger areas than the lower-powered HRG survey
equipment used in offshore wind activities, typically with distances to
harassment thresholds on the order of several to 10s of kilometers, as
opposed to the few hundreds of m to the 160-dB isopleth for the largest
sources typically used in wind HRG surveys.
NMFS assessed the 10 monitoring reports submitted by authorization
holders since 2021 for HRG activities (available on NMFS website) and
found that overall and averaged across species, fewer than 9 percent of
the individual marine mammals authorized for take were observed within
the estimated Level B harassment zone (acknowledging that the true
percentage is likely higher due to availability and perception bias),
with no more than 21 percent of any species, and no North Atlantic
right whales, observed within the Level B harassment zone of any
survey. Furthermore, the most common behavioral response when the
regulated sound sources were both active and inactive was
overwhelmingly ``None''. ``Change Direction'' (i.e., which is broadly
defined as ``animal(s) alters orientation quickly, noticeably, or
abruptly'') was the second most frequent behavioral change observed,
and also occurred during all source activity levels (per definitions
commonly utilized in the Mysticetus\TM\ software and based on other 90-
day reports associated with oil and gas, geotechnical operations, and
HRG operations (e.g., Aerts et al., 2008; Blees et al., 2010; Lomac-
MacNair et al., 2014) and found within Appendix A of the final
monitoring report associated with 84 FR 52464 (October 2, 2019)). The
data demonstrates that individuals exhibited a change in pace more
frequently when the acoustic source was active, as well as a change of
pace and direction. Conversely, ``Dive'' (i.e., broadly defined as
``animal(s) abruptly moves completely below the surface'') and ``Look''
(i.e., broadly defined as ``animal is watching the vessel, e.g., spy
hopping'') were exhibited more frequently when the acoustic source was
inactive.
Furthermore, a commenter references a 2008 stranding event of
melon-headed whales in Madagascar, implying that a similar occurrence
may be reasonably anticipated outcome of HRG survey work off of New
Jersey. An investigation of the stranding event indicated that use of a
12-kHz MBES (a source unlike any planned for use by Project Company 1
or any other offshore wind companies on the East Coast) was the most
plausible and likely initial behavioral trigger of the event (with the
caveat that there was no unequivocal and easily identifiable single
cause). The investigation panel also noted several site- and situation-
specific secondary factors that may have contributed to the avoidance
responses that led to the eventual entrapment and mortality of the
whales (Southall et al., 2013). Specifically, regarding survey patterns
prior to the event and in relation to bathymetry, the vessel transited
in a north-south direction on the shelf break parallel to the shore,
ensonifying deep-water habitat prior to operating intermittently in a
concentrated area offshore from the stranding site. This may have
trapped the animals between the sound source and the shore, thus
driving them towards the lagoon system. Shoreward-directed surface
currents and elevated chlorophyll levels in the area preceding the
event may also have played a role. The 12 kHz output frequency
(generally in the middle of most marine mammal hearing ranges),
significantly higher output power, and complex nature of the system
implicated in this event, in context of the other factors noted here,
likely produced a fairly unusual set of circumstances that indicate
that such events would likely remain rare and are not relevant to use
of more commonly used lower-power, higher-frequency systems such as
those evaluated for this analysis. Further, the MBES sources included
in Project Company 1's activities are all 200 kHz or above (i.e.,
beyond marine mammal hearing range) and significantly lower source
levels than those used in the survey associated with the Madagascar
event. Given this, marine mammals are not expected to hear the MBES
sources used for the Project, which means that no behavioral response
is anticipated, much less one that might be expected to contribute or
lead to a stranding.
A commenter suggested a connection between the recent U.S. East
Coast strandings and the site characterization surveys, citing
different analyses and studies from other sound sources, and compared
the source characteristics of sparkers to airgun arrays, arguing they
are more similar than is captured by NMFS's respective analysis of
these sources. NMFS acknowledges that both sparkers and airguns have
wide ranges of configurations and potential source levels. However, low
energy sparkers (analyzed as 500-600 J here) are significantly
different from common airgun seismic surveys in many ways (e.g., pulse
duration, kurtosis, directionality, frequency content, source levels,
and finally in how they are operated). In terms of sound levels, the
maximum peak SPL measured for a similar sparker source in the field by
Rand (2023) was 151.7 dB at a range of approximately 1 km (0.62 mi).
The modeling methodology proposed here implies a peak SPL of 151 at 1
km (0.62 mi), using spherical spreading and a peak source level of 211
dB. In this case it is clear that both modeling and field data show
that for similar sound sources the range to 150 dB is approximately 1
km (0.62 mi). By contrast, Martin et al. (2017) measured the distance
to the 150 dB peak isopleth for a seismic survey to be 41.8 km (25.97
mi). Similarly, a seismic array analyzed for use in the Gulf of Mexico
was modeled to have distances to the 160 dB<INF>rms</INF> isopleth
ranging between 7 to 24 km (4.35 to 14.91 mi) (Gulf of Mexico rule
modeling found on NMFS' web page at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico">https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico</a>), whereas the sparker is estimated by the
modeling
[[Page 77983]]
here to have a 160 dB<INF>rms</INF> range of 141 m (462.6 ft) and the
measurement (Rand, 2023) was significantly below 160 dB at 1 km (0.62
mi).
The commenter further states that the frequency range of HRG
sparkers likely overlaps that of mid-frequency sonar. Sparkers have a
transmission frequency between approximately 300-1400 Hz (Ruppel et
al., 2022), and while NMFS agrees that this does overlap with the lower
end of what is considered for mid-frequency sonar (mid-frequency sonar
is typically defined as 1 to 10 kHz), the frequency content of the 2
sources are different. Further, the commenter acknowledges that mid-
frequency sonars have a source level of 235 dB, which is significantly
higher than typical source levels for sparkers. For these reasons, NMFS
finds that comparison with mid-frequency sonar is not particularly
useful in comparison of likely impacts to marine mammals.
Lastly, NMFS acknowledges that a commenter, in their Addendum,
describes a study performed in the Gulf of Mexico in 2012 where the
researchers suggested that the use of airguns in seismic surveys in the
Gulf of Mexico may contribute to higher rates of stranding of several
species of whale and dolphin. However, NMFS notes that the paper cited
on this point is a paper by Pirotta et al. (2015) ``Predicting the
effects of human developments on individual dolphins to understand
potential long-term population consequences.'' Contrary to the
commenters' description, this paper does not discuss strandings or
seismic surveys. Because the cited paper does not correspond to the
study described in the comment and no other citation for the study is
provided, NMFS is unable to respond to the findings of this study in
context to our proposed rulemaking and MMPA action.
Comment 8: Commenters erroneously asserted that Level A harassment
equates to instances of serious harm or fatality (i.e., mortality) and
that members of the public are opposed to offshore wind construction,
including the Project, on the basis that it kills marine mammals.
Additionally, a commenter also conflates any take by Level A harassment
with Potential Biological Removal (PBR).
Response: NMFS reiterates that serious injury and/or mortality is
not expected to occur as a result of Project Company 1's planned
activities, was not requested by the applicant, and NMFS is not
allowing any through this final rulemaking. Furthermore, there is no
evidence that construction of the Project will lead to mortality of
marine mammals, especially given the rigorous mitigation and monitoring
measures NMFS requires Project Company 1 undertake.
Turning to the commenter's second point, the commenter
misrepresents PBR with the suggestion that it is applicable in the
context of Level A harassment. The PBR level is defined as the maximum
number of animals, not including natural mortalities, that may be
removed from a stock while allowing that stock to reach or maintain its
optimum sustainable population (16 U.S.C. 1362(20)). Thus, PBR is only
germane in the discussion of ``removals'' (i.e., serious injury or
mortality) of individual marine mammals from the population and,
therefore, PBR is not applicable in this discussion since no serious
injury or mortality of any individuals is anticipated or allowed, as
mortality has not been authorized.
Comment 9: Commenters stated that NMFS must provide more
information on the predictions for serious harm and mortality expected
by Level A harassment and Level B harassment. Specifically, commenters
claim that HRG surveys are causing strandings while a commenter was
concerned that Level B disturbances can lead to: (1) avoiding the noise
or ``standing off'' from it in an undesirable direction or location,
and in a migratory setting, obstructing or blocking it; (2) if the
mammal is between the shore and the vessel source, being driven towards
the shore seeking relief; (3) surfacing (demonstrated experimentally by
Nowacek et al. (2003)) to seek a lower noise level and becoming more
vulnerable to vessel strike; (4) the separation of mothers and calves
due to the ``masking'' of their normal communications, which would be
fatal for the calf; and (5) the loss of its navigational ability,
cessation of feeding or mating, loss of energy and the ability to
detect predators or oncoming ships.
Response: NMFS refers to its response to Comment 7 above regarding
the potential for HRG surveys to result in marine mammal mortality.
With respect to the concern that Level B harassment could lead to harm
or mortality, NMFS refers the reader to the description in the proposed
rule (88 FR 65430, September 22, 2023) on Population Consequences of
Disturbance (PCoD) models. NMFS recognizes that intense, prolonged and
repeated behavioral harassment that disrupts key life behaviors could
lead to impacts on reproduction or survival. However, as described in
the proposed rule and the Negligible Impact Determination section of
this final rule, the best available science indicates that behavioral
impacts to marine mammals from exposure to HRG surveys, and in
consideration of the required mitigation measures, are not anticipated
to result in energetic consequences that could lead to Level A
harassment, impacts on reproduction or mortality. HRG surveys may
result in low-level temporary behavioral disturbance such as slight
avoidance of the source.
In addressing the comment related to masking of communications
between mothers and calves, NMFS agrees that noise pollution in marine
waters is an issue with the potential to affect marine mammals,
including their ability to communicate when noise reaches certain
thresholds. This was addressed, in detail, in the proposed rule in the
Effects section (88 FR 65430, September 22, 2023). While the commenter
does not specifically address what would cause the mortality of a calf
in the event of a separation, NMFS assumes the commenter is referring
to missed foraging nursing opportunities. Specifically related to HRG
surveys, NMFS disagrees that the noise produced by HRG acoustic sources
would be extensive enough to cause effects to the extent that these
effects would cascade from minor behavioral impacts into mortality to
the calf and has stated in both the proposed and final rules that only
take equating to Level B harassment is expected to occur. While the
scientific literature supports evidence of reduced vocalizations
between a North Atlantic right whale mother-calf pair when at the
calving ground, which is located much further south and outside of the
Project Area (Parks and Clark, 2007; Parks et al., 2019; Trygonis et
al., 2013), vocalizations between the pair are known to increase as the
whales undertake their annual travel/migration behaviors to the
northern foraging ground (also located outside of the Project Area) and
as the calf matures (Cusano et al., 2018; Root-Gutteridge et al.,
2018). NMFS refers the commenters to a paper by Videsen et al. (2017),
which reports lower-level communication calls between humpback mother-
calf pairs and noting the increased risk of cow-calf separation with
increases in background noise. We first note that only neonates were
tagged and measured in this study (i.e., circumstances could change
with older calves). Further, while vocalizations between these pairs
are comparatively lower level than between adults, the cow and neonate
calf are in regular close proximity (as evidenced by the extent of
measured sound generated by rubbing in this study), which means that
[[Page 77984]]
the received levels for cow-calf communication are higher than they
would be if the animals were separated by the distance typical between
adults--in other words, it is unclear whether these lower-level, but
close proximity, communications are comparatively more susceptible to
masking. Furthermore, by making this comment, the commenter has not
considered the movement of both the whale pair and the HRG acoustic
sources as they relate spatially, and more specifically off of the New
Jersey region which no primary foraging ground currently exists for
North Atlantic right whales. While it is possible that North Atlantic
right whale mother-calf pairs would pass through the Project Area
during HRG survey campaigns, we expect that any overlap in occurrence
between the isopleth from the HRG acoustic sources and North Atlantic
right whale pairs would be brief, with the whales able to undertake
minimal avoidance behaviors (i.e., avoidance) to further reduce any
impacts from the acoustic sources. In considering only the overlap
between HRG surveys and North Atlantic right whale presence, the
commenter is not accounting for the conservative mitigation measures
implemented before and during HRG surveys, whereas the estimated
isopleth size from the Geo-Marine GeoSource, the sparker that Project
Company 1 is planning to use, and the acoustic source with the largest
distance to the Level B harassment threshold is 141 m (462.6 ft). The
Clearance, Shutdown, and Vessel Separation Zones for North Atlantic
right whales are all 500 m (1,640 ft), over 3.5 times the size of the
isopleth, providing a more protected zone whereas North Atlantic right
whale pairs would not be close enough to the edge of the isopleth
before mitigative actions would be undertaken (i.e., shutdown or delay
of using the acoustic source). Furthermore, any exposure to HRG
acoustic sources would be expected to be minimal and fleeting, and most
likely very easy for the whales to avoid the stimulus while
experiencing minimal to no real effects. In understanding this very low
likelihood of encountering cow-calf pairs, when combined with the fact
that any individuals (or cow-calf pairs) would not be expected to be
exposed on more than a couple/few days in a year, we expect that they
would resume any previously interrupted behaviors quickly and with no
long-term detrimental impacts.
Similarly, NMFS GARFO's 2021 programmatic consultation determined
that the actions considered therein were not likely to adversely affect
any ESA-listed species or critical habitat and that, or the activities
considered therein, no take is anticipated or exempted, as defined
under the ESA (see <a href="https://media.fisheries.noaa.gov/2021-12/OSW-surveys-NLAA-programmatic-rev-1-2021-09-30-508-.pdf">https://media.fisheries.noaa.gov/2021-12/OSW-surveys-NLAA-programmatic-rev-1-2021-09-30-508-.pdf</a>). With respect to
any behavioral reactions from Project Company 1's activities resulting
in increased risk of vessel strike, the commenter did not provide any
evidence to support this conclusion. Marine mammals are subject to
intense shipping traffic throughout U.S. East Coast waters (as
demonstrated by UME data given vessel strikes are the primary cause of
recent whale deaths in the Atlantic Ocean) and a slight deflection of
migration or other movement patterns by whales in response to Project
Company 1's activities does not necessarily mean risk would be
increased. We note that GARFO's final Biological Opinion for the
Project provided an evaluation of indirect vessel strike risk on marine
mammals and found that, while avoidance and localized displacement
behaviors are expected, these effects are expected to be temporary.
Furthermore, even for those activities expected to be louder (i.e.,
foundation impact pile driving) than those activities specifically
discussed by the commenter (i.e., HRG surveys), the Biological Opinion
concluded that there is no expected avoidance behavior by a North
Atlantic right whale from pile driving noise (or activities that
produce quieter sounds) that would result in whales moving to areas
with a higher risk of vessel strike. This determination was based on
the relatively small size of the area with noise that an individual
whale is expected to avoid (no more than 11 km (6.84 mi) from the pile
being installed), the short-term nature of any disturbance, the limited
number of whales impacted, and the lack of any significant differences
in vessel traffic in that 11 km (6.84 mi) area that would put an
individual whale at greater risk of vessel strike.
Comment 10: A commenter stated that NMFS should provide a
description and rationale for the whale behavior assumptions being
employed in JASCO's JASMINE model, otherwise NMFS should dispense with
utilizing animal avoidance modeling in the ITA.
Response: The animal behavior attributes considered by JASCO in
their JASMINE model are described in section 2.7 of JASCO's Underwater
Acoustic Impact Assessment Report (see appendix B; <a href="https://media.fisheries.noaa.gov/2022-09/AtlanticShoresOWF_2022_Appendix%20B_OPR1.pdf">https://media.fisheries.noaa.gov/2022-09/AtlanticShoresOWF_2022_Appendix%20B_OPR1.pdf</a>) and include behaviors as
diving, foraging, aversion, and surface times. As described in the
report, a subset of animal avoidance (called ``aversion'' in the text)
scenarios were run for comparison purposes only (see page 24 in
appendix B to section 2.7 of JASCO's Underwater Acoustic Impact
Assessment Report) and were not considered in the exposure estimates
calculated by JASCO that were used in this MMPA analysis.
Monitoring, Reporting, and Adaptive Management
Comment 11: Commenters stated that the proposed rulemaking overly
relies on the use of PSOs and PAM to mitigate ``harm'' to marine
mammals, claiming PSOs have a limited visual range of 1,500 m (4,921.3
ft) from an elevated platform or 1,000 m (3,280.84 ft) from a vessel
bridge and that PSOs cannot observe North Atlantic right whales more
than 5-10 ft (1.52-3.05 m) below the water's surface. They further
state that PSOs would be even more limited during any nighttime pile
driving, as there is no evidence that this specialized equipment is
capable of allowing PSOs to detect whales in the dark at distances of
more than a few hundred meters, and useless for North Atlantic right
whales swimming at depth. The commenter also expressed concern over PAM
limitations, including that PAM is effective only for calling animals,
and that the probability of detection decreases with distance from the
source and within increased background noise levels. To address these
limitations, the commenter recommended PAM systems be deployed from
multiple support vessels removed from the pile being installed and/or
mono-buoys be placed strategically to operate and monitor in near-real
time.
Response: NMFS disagrees that monitoring efforts (i.e., using a
combination of PSOs and PAM) will not be effective at detecting North
Atlantic right whales such that injury or harm can be avoided.
Commenters provided no evidence to support the presumed visual
observation ranges. Project Company 1 is required to ensure that PSOs
can visually monitor an area no smaller than the minimum visibility
zone (1,900 m (6,233.6 ft)), which is more than the 1,500 m (4,921.3
ft) distance specified by the commenter. Pile driving may not occur in
any conditions (e.g., fog, rain, darkness) if PSOs are not able to
sight marine mammals out to this distance. During construction of
Vineyard Wind 1 and South Fork Wind, PSOs observed baleen whales at
ranges as distant as 23 km
[[Page 77985]]
(75,459 ft) (RPS, 2024; South Fork Wind, 2024). NMFS recognizes
distances out to which marine mammals may be observed are both species
and weather dependent; however, the commenter did not provide evidence
to support claims the minimum visibility zone could not be effectively
monitored. Regarding PAM, the commenter cited a study titled ``PAMguard
Quality Assurance Module for Marine Mammal Detection Using Passive
Acoustic Monitoring ''(CSA Ocean Science, Inc., 2020), stating that PAM
system have a limited capability detecting marine mammals, especially
low-frequency baleen whales, when the animal is not vocalizing, and
that this may cause North Atlantic right whales to remain undetected
prior to entering the Level A harassment zone, particularly because
right whales often go ``days or weeks without uttering a sound.'' The
commenters further described the findings of this study, specifically
noting that the probability of detection varies, stating that PAM
systems may have a ``significant miss rate,'' within any individual
hour even if marine mammals are vocalizing, in some cases due to
limitations related to ``the operator's ability to stay attentive and
interpret the sound data produced by the monitoring equipment,'' and
that PAM systems are too easily masked by background noise. The study
cited focuses on evaluating the relative performances of automated
detectors and human analysts when tasked with identifying the
occurrence of species-specific marine mammal call types in PAM data
collected using a towed hydrophone array, thus the ``miss rate'' noted
does not necessarily refer to the likelihood that a vocalizing marine
mammal would not be detected on a given PAM system, but instead
reflects variations in the ability of the automated detector or human
analyst to detect a call if it is present in the PAM dataset.
Developers are currently using a variety of PAM systems, including
bottom-mounted hydrophone arrays and moored acoustic buoys, and
assisted classification of received acoustic signals using automated
detectors which minimizes strain on the PAM operator, thus reducing
fatigue. This approach combines the strengths of both detector
``types'' (i.e., human and software), by using automated detection
software to cue a PAM operator's attention to potential acoustic
detections of a given species during real-time monitoring, which the
operator can then probe to determine the context of the detection and
verify the detection and classification.
The commenter does not provide any support for the claim that right
whales are silent for days or weeks. Studies of right whale calling
behavior (Davis et al., 2017; Davis et al., 2023; van Parijs et al.,
2023) indicate that, where acoustic buoys are deployed in known right
whale habitat, upcalls (i.e., a call type commonly produced by all age
groups) are not only detected regularly (i.e., many calls per hour)
when right whales are expected to occur, based on known seasonal
distribution patterns understood through visual observation and PAM
data, but are also detected consistently during periods when right
whales were not expected to occur (e.g., in southern New England in
winter). Both Davis et al. (2017) and Davis et al. (2023) provide
evidence that upcalls were detected, at minimum, weekly throughout much
of the U.S. Eastern Seaboard and Canadian Maritimes during periods when
right whales were present (confirmed by visual observations), and in
many cases, much more frequently. These and similar studies report on
upcall detection patterns, but right whales frequently produce other
types of vocalizations, such as tonal moans and downsweeps, thus
increasing the likelihood of detection using PAM.
There are a wide variety of PAM systems available on the market
(van Parijs et al., 2021), ranging from omnidirectional independent
acoustic buoys to multi-channel hydrophone arrays that are capable of
detecting marine mammals in real-time. Barkaszi et al. (2020), the
paper cited by the commenter focuses on characterizing marine mammal
detection performance for towed PAM systems, which are typically most
effective for monitoring mid- and high-frequency cetaceans and, to
date, have not been proposed by offshore wind developers to monitor for
marine mammals during foundation pile driving. While the specific PAM
systems that would be used by Atlantic Shores South are still unknown,
Atlantic Shores South is required to submit a Passive Acoustic
Monitoring Plan (PAM Plan) to NMFS that demonstrates the system will be
able to detect North Atlantic right whales at ranges up to 10 km
(32,808.4 ft). To date, offshore wind developers have used bottom-
mounted PAM systems located at distance from piles being installed. The
proposed rule, and this final rule, require the PAM system be placed no
closer than 1 km (3,280.8 ft) from the pile being installed to minimize
masking of North Atlantic right whale calls by construction noise. We
anticipate Project Company 1 would use similar bottom-mounted recorders
in lieu of PAM systems operated from vessels, as recommended by the
commenter, particularly given the prevalence of masking of low-
frequency sounds like North Atlantic right whale vocalizations by flow
noise using towed PAM arrays (Barkaszi et al., 2020; Thode et al.,
2021; van Parijs et al., 2021).
Comment 12: Commenters stated that NMFS should disclose noise
source levels at the 1 m (3.3 ft) and 750 m (2,460.6 ft) points, and
the best fit noise transmission spreading loss and attenuation factors
as recommended in the recent BOEM pile driving document
recommendations.
Response: NMFS agrees that inclusion of source levels is important
and notes decidecade band spectra are provided at 1 m (3.3 ft) for
impact pile driving. Further, the decidecade spectra can be used to
estimate broadband source levels. NMFS has performed this and the
spectra corresponded to sound exposure level (SEL) source levels of
approximately 227 dB for both 12-m and 15-m monopiles at hammer
energies of 4,400 kilojoules (kJ). With regard to propagation loss,
NMFS does not require best fit coefficients be included when more
sophisticated propagation modeling is performed. However, such
coefficients can be estimated from the acoustic ranges provided in the
ITA application appendices.
Effects Assessment
Comment 13: Commenters requested that all incidental take issued
across multiple ITAs for offshore wind projects be considered
cumulatively from previous, ongoing, or potential projects and their
specified activities. One commenter specifically suggested that not
considering the impacts of both the Atlantic Shores North Project and
this Project, that would collectively result in the installation of 357
WTG, leads to an underestimate of exposure ranges and take estimates. A
commenter also stated that NMFS did not address the cumulative effects
of turbine operation from this Project or others in the New York Bight
area.
Response: Section 101(a)(5)(A) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals (see 50 CFR 216.104(a)(1)). Thus, the ``specified
[[Page 77986]]
activity'' for which incidental take coverage is being sought under
Sec. 101(a)(5)(A) is generally defined and described by the applicant.
Here, the activities are specific to Atlantic Shores South which is
limited to the installation of up to 200 WTGs within the Lease Areas.
Per the MMPA and per the ITA application received from the applicant,
the findings and determinations in this proposed rule are limited to
the Lease Areas for the Project (OCS-A-0499 and OCS-A-0570) and do not
include Atlantic Shores North (which is lease area OCS-A-0549).
Neither the MMPA nor NMFS' codified implementing regulations call
for consideration of the take resulting from other activities in the
negligible impact analysis. The preamble for NMFS' implementing
regulations (54 FR 40338, September 29, 1989) states, in response to
comments, that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline (e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, UME status, and other
relevant stressors). In this final rule, we also include a summary of
the impacts from take authorized through other ITAs.
The 1989 final rule for the MMPA implementing regulations also
addressed public comments regarding cumulative effects from future,
unrelated activities. There, NMFS stated that in determining impact,
NMFS must evaluate the total taking expected from the specified
activity in a specific geographic area but that cumulative effects are
not considered in making findings under Sec. 101(a)(5) concerning
negligible impact. In this case, this ITR, as well as other ITAs
currently in effect or proposed within the specified geographic region,
are appropriately considered unrelated to each other in the sense that
they are discrete actions under Sec. 101(a)(5)(A) issued to discrete
applicants.
Through the response to public comments in the 1989 implementing
regulations (54 FR 40338, September 29, 1989), NMFS also indicated: (1)
that we would consider cumulative effects that are reasonably
foreseeable when preparing a National Environmental Policy Act (NEPA)
analysis; and (2) cumulative effects that are reasonably certain to
occur would also be considered under section 7 of the ESA for listed
species, as appropriate. Accordingly, NMFS has adopted an EIS written
by BOEM and reviewed by NMFS as part of its inter-agency coordination.
This EIS addresses cumulative impacts on the human environment,
including marine mammals, from past, ongoing, and future activities,
including offshore wind and non-offshore wind activities that may
affect marine mammals. Cumulative impacts regarding the promulgation of
the regulations and issuance of a LOA for construction activities, such
as those planned by Project Company 1, have been adequately addressed
under NEPA in the adopted EIS that supports NMFS' determination that
this action has been appropriately analyzed under NEPA. Separately, the
cumulative effects of Project Company 1 on ESA-listed species,
including North Atlantic right whales, was analyzed under section 7 of
the ESA when NMFS engaged in formal inter-agency consultation with the
Protected Resources Division within NMFS GARFO. GARFO's Biological
Opinion for the Atlantic Shores South Project determined that NMFS'
promulgation of the rulemaking and issuance of a 5-year LOA for
construction activities associated with leasing, individually and
cumulatively, are likely to adversely affect, but not jeopardize,
listed marine mammals.
Comment 14: A commenter stated that NMFS' proposed rule (88 FR
65430, September 22, 2023) does not discuss the proposed turbine model
or noise source level from a proposed turbine model. They also stated
that NMFS underestimated operational turbine noises, as the proposed
rule only presented impacts of low power and direct drive turbines.
Furthermore, the commenter stated that mothers and calves
performing migration activities travel at slower speeds (i.e.,
approximately 25 percent of these could potentially experience SELs
exceeding 199 dB), which would cause permanent hearing loss and that
operational sound could lead to North Atlantic right whale cow-calf
separation.
Response: Commenters specifically made claims based on a reanalysis
from the operational noise source levels (181 dB (metric unknown)) for
a Vesta-236 turbine model utilizing a monopile foundation (13.6 MW)
that were estimated by extrapolating the broadband noise level trends
versus turbine power using the Tougaard et al. (2020) and Stober and
Thomsen (2021) papers. The commenters asserted that their estimate
aligns with the value provided by a separate acoustics company, XI-
Engineering, who was commissioned by one of the commenters to determine
the operational source level of a single Vesta-236 turbine (181 dB). A
commenter stated that these papers show ``the trend in noise source
level versus increasing turbine power size for a frequency ``spectral''
component more indicative of the whale's hearing range.'' They further
extrapolated the results from these 2 papers to yield an estimated
operational source level of 192 dB for a single turbine. Based on their
analysis, they have estimated a range of 61 mi (98.17 km) from shore
for either 200 (the maximum number of WTGs planned for Atlantic Shores
South) or 357 WTGs (this is inclusive of the maximum number of WTGs
across both Atlantic Shores South and Atlantic Shores North, 2 separate
Projects) where whales would experience noise levels above 130
dB<INF>rms</INF>.
As described in the Potential Effects of Specified Activities on
Marine Mammals and Their Habitat section in this final rule, the
commenter's analysis is not reflective of the best available science.
Holme et al. (2023) demonstrated that the model presented in Tougaard
et al. (2020) tends to potentially overestimate levels (up to
approximately 8 dB) measured to those in the field, especially with
measurements closer to the turbine for larger turbines and the authors
found no relationship between turbine activity (power production, which
is proportional to the blade's revolutions per minute) and noise level.
Moreover, Bellmann et al. (2023) note that no relationship between
nominal WTG power and operational noise was observed, in contrast with
the linear models used by Tougaard et al. (2020) and St[ouml]ber and
Thomsen (2021). It is theorized that this is related to gearless and
more modern WTGs measured as well as increased size and weight reducing
transmission of vibrations. With regard to the extent of operational
noise levels, Bellmann et al. (2023) concluded that tonal components of
the operational noise are clearly observable at a range of 100 m (328
ft), but typically are not resolvable within the prevailing ambient
noise at a range of 5 km (3.11 mi). Based on the best available
science, the commenters' calculations are flawed. Moreover, the
commenter provided no evidence that exposure to operational turbine
noise would prevent migration. In contrast, the proposed rule cited
literature (e.g., Malme, 1983; 1984) supporting NMFS' conclusions that
the most likely response to noise from the Project would be temporary
avoidance
[[Page 77987]]
or deflection responses from but not abandoning evolutionarily
ingrained migratory behavior).
The swim speed analysis in the Hain et al. (2013) study that the
commenters referenced only analyzed individuals within the North
Atlantic right whale's traditional calving grounds in the Southeastern
United States (SEUS) which is several hundred kilometers south of the
Project Area. Mother-calf pairs have been documented as having extended
stationary periods in the SEUS relative to other demographics as the
pairs engage in critical development behaviors including nursing,
``quiet contact'', play, and rest (Hain et al., 2013). However, mother-
calf pairs have been shown to decrease their stationary behaviors as
the calf ages and the pair migrate farther north (Cusano et al., 2018).
It is therefore likely that the pair's swim speeds may increase to some
degree around the Lease Areas discussed here. Furthermore, out of 3
groups analyzed in this study (i.e., mother-calf pairs, groups of 3
individuals or more, and single/pairs without a calf), mother-calf
pairs did not have significantly different swim speeds from groups of 3
or more (average mother-calf swim speed = 1.20 km/hr. (0.75 miles per
hour (mph)) +/- 0.76 km/hr. (0.47 mph) vs. 1.26 km/hr. (0.78 mph) +/-
0.50 km/hr. (0.31 mph) for groups of 3 or more). Only single/pairs of
right whales without a calf had significantly higher swimming speeds
(1.86 km/hr. (1.16 mph) on average, +/- 1.27 km/hr. (0.79 mph)) (Hain
et al., 2013). These results indicate that mother-calf pairs do not
swim significantly slower than some other right whale demographics, and
therefore do not have a disproportionately higher risk for permanent
hearing loss as a result of their swim speed compared to the rest of
the population.
Given that mother-calf pairs are capable of swimming equally as
fast as other demographics, and that they reduce their amount of
stationary time as the calf continues to grow and the pair moves
farther north, it is unlikely that mother-calf pairs would be
disproportionately exposed to noise to the level that could cause
permanent hearing loss. Furthermore, calves/younger whales may spend
more time at the surface; making them more visible to observers (e.g.,
Baumgartner and Mate, 2003; Gero et al., 2013; Lomac-MacNair et al.,
2018; Cusano et al., 2019; Dombroski et al., 2021).
Most importantly, NMFS also requires that Project Company 1's
undertake enhanced mitigation and monitoring measures (i.e., bubble
curtains, PAM, use of experienced PSOs, seasonal restrictions when
North Atlantic right whales are more likely to be in and around the
Project Area) to further reduce risks to North Atlantic right whale
demographics (inclusive of any mother-calf pairs that may be migrating
through the area), and expect that any harassment experienced by this
species would be in the form of Level B harassment, and not Level A
harassment. Furthermore, the Project Area is not one where this species
is known to reside for long periods of time (i.e., no extended
residency as there is no foraging ground or calving ground off of New
Jersey) and most animals would be expected to be migrating through the
migratory corridor. Because of this, we disagree with the commenter's
assertion as described in their comment letter.
Comment 15: A commenter stated that the rule needs to consider the
increased risk to marine mammals from commercial and military vessel
traffic being channeled into a 20 to 31 mile-wide (32 to 50 km)
corridor between Atlantic Shores South's Lease Areas and planned
projects in the Hudson South area given higher noise levels within the
Project Area due to all WTGs becoming operational as well as overlap
between pile driving activities of WTGs while other WTGs intermittently
become operational. The commenter further stated that marine mammals
attempting to travel within this corridor will incur an increased risk
of vessel strike.
Response: As part of the Construction and Operations Plan (COP) for
this Project, and then incorporated into the analysis in BOEM's final
EIS, Project Company 1 was required to evaluate and draft a Navigation
Safety Risk Assessment (NSRA; appendix II-S of the COP (<a href="https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/2024-05-01_Appendix%20II-S%20Navigation%20Safety%20Risk%20Assessment.pdf">https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/2024-05-01_Appendix%20II-S%20Navigation%20Safety%20Risk%20Assessment.pdf</a>)) to analyze the
potential impacts of vessel traffic during construction, operation, and
decommissioning of the Project and included considerations for
commercial cargo vessels, military vessels, towing, fishing, and
recreation vessels. Overall, the NSRA concluded that the construction
of the Project as a whole will result in modifications to vessel
traffic patterns, but that the risks associated with these changes
would not be substantially different from consideration of Projects 1
or 2 or the whole of Atlantic Shores South. While some key commercial
traffic waterways currently exist near the Wind Turbine Area (WTA)
(e.g., Ambrose-Barnegat Traffic Separation Scheme leading to and from
New York), the NSRA concluded that, given the distance away from the
WTA to the south and far from this TSS, there are no expected
impedances anticipated for commercial traffic in and out of this area.
The NSRA further states that the Project is not anticipated to have an
adverse impact to vessel traffic, even though some vessels (e.g.,
commercial non-fishing vessels and military vessels) may choose to
navigate around the Lease Areas rather than through it. However,
although traveling through the Lease Areas would be generally
restricted during the short construction period (i.e., approximately 2-
3 years) and may require non-Project vessels to transit through a
narrower traffic route, vessels would be able to continue normal
traffic patterns during the lengthy operations phase of the Project.
Additionally, per the final EIS, the gridded pattern and appropriately
marked lighting used for the WTGs, OSSs, and Met Tower is designed to
improve vessel navigation, efficiency, and safety to allow for
individuals to safely transverse through the Project Area.
Here, we discuss both pile driving activities and operations, as
Project Company 1 has indicated that some WTGs may become operational
during periods where others are continuing to be installed. As the
commenter did not specify if the noise relates to all WTGs as
operational or not, this review is more comprehensive. In looking at
this information biologically, this is addressed, in part, in the final
Biological Opinion (which also relied on and incorporated the data and
conclusions of the NSRA) wherein NMFS GARFO stated that, while it is
reasonable to expect pile driving activities to contribute to the
avoidance and temporary localized displacement of ESA-listed whales
(and, broadly, other non-ESA listed marine mammal species as well in
and around the Project Area), NMFS concluded that we do not expect that
any avoidance behaviors from pile driving would result in North
Atlantic right whales being driven or moving to areas where there is a
higher risk of vessel traffic. This determination was based on the
relatively small size of the Project Area with noise that an individual
whale is expected to avoid (no more than 11 km (6.84 mi) from the pile
being installed), the short-term nature of any disturbance, the limited
number of whales impacted, and the lack of any significant differences
in vessel traffic in that 11 km (6.84 mi) area that would put an
individual whale at greater risk of vessel strike. Regarding
operations, NMFS has already included a detailed
[[Page 77988]]
description of operational noise from commissioned WTGs (see Comment
14). This discussion aligns with conclusions found within the
Biological Opinion that state the area above ambient noise from
operating WTGs is expected to be very small (i.e., 50 m (164 ft) or
less) and any effects to ESA-listed whales (and, broadly other marine
mammal species) are likely to be insignificant. Regarding vessel
density after construction activities have ended, information gleaned
from the NSRA indicate that less vessels are needed during the
operation and maintenance phase of the Project, and some vessels, such
as fishing vessels, may choose to continue transiting through the WTA,
especially given known reef effects when hardened structures are
installed into softer sediment environments (see Langhamer, 2012;
Stenberg et al., 2015; Degraer et al., 2020; and Gill et al., 2020 for
some examples) which would reduce any areas of higher vessel densities
outside the WTA that would have existed during the construction period
where avoidance of the WTA occurred (although the NSRA indicates this
vessel density would not increase substantially even during the
construction period, with a minor increase to the east of the WTA).
This indicates that, given the already high level of vessel traffic
experienced off of New Jersey, these changes would be minimal and
temporary, with very little chance to lead to additional opportunities
for vessel strikes of whales.
Lastly, as the commenter specifically points out projects planned
in the Hudson South Call Area, those 6 projects (i.e., Bluepoint Wind,
LLC (OCS-A 0537); Attentive Energy LLC (OCS-A 0538); Community Offshore
Wind, LLC (OCS-A 0539); Atlantic Shores Offshore Wind Bight, LLC (OCS-A
0541); Invenergy Wind Offshore LLC (OCS-A 0542); and Vineyard Mid-
Atlantic LLC (OCS-A 0544)) are still in the early coordination phase
with no construction activities currently planned in the next 5 years
that would overlap with the effective period of Project Company 1's
rulemaking. As these projects have not even finalized the process to
become FAST-41 projects, NMFS does not expect that any construction
activities for those lease areas are forthcoming within the effective
period of Atlantic Shores South; therefore, no military or commercial
vessels would be restricted into a narrow vessel traffic route nor
would any whales experience an increased risk of vessel strike when
navigating outside of the Project Area for Atlantic Shores South, per
the narrow channel referenced by the commenter.
NMFS acknowledges that whales may temporarily avoid the area where
the specified construction activities or noise from operational WTGs
occurs and this was broadly addressed in the proposed rulemaking.
However, for the reasons described above, NMFS does not anticipate that
whales will be displaced in a manner that would result in a higher risk
of vessel strike, and the commenter does not provide evidence that
either of these effects should be a reasonably anticipated outcome of
the specified activity. Generally, vessel traffic in this region is
concentrated closer to shore as vessels leave and return to the coastal
ports. The density of vessel traffic dissipates as one moves offshore.
The commenter has presented no information supporting the speculation
that whales would be displaced from the Project Area into shipping
lanes, areas of higher vessel traffic, or a specific corridor in a
manner that would be expected to result in higher risks of vessel
strike.
Other
Comment 16: Commenters expressed concern that operational turbines
could harm or kill marine mammals if they migrated through the Atlantic
Shore South and Hudson South wind areas and that operational noise
would impair the echolocation and navigation ability of North Atlantic
right whales, increasing risk of predation and vessel strike, and
compromise a North Atlantic right whales ability to make it through the
corridor. Other commenters expressed similar concern for dolphins and
other species that can echolocate.
Response: Baleen whales (e.g., humpback whales, minke whales) do
not have the ability to echolocate, a process by which toothed whales
(e.g., sperm whales) and dolphins emit high-frequency sounds from their
melon to obtain information about objects (typically prey) in the
water. Because baleen whales do not echolocate like toothed whales and
dolphins, there is no concern over impeding such ability. All large
whales that have stranded along the U.S. East Coast since December
2011, with the exception of 3 sperm whales, have been baleen whales.
With respect to toothed whales and dolphins, the low frequency
operational noise is not anticipated to impact echolocation. The
frequency of echolocation clicks is dependent on their need; however,
clicks would be outside the frequency range of operational noise (with
some clicks being ultrasonic) typically around 30-100 kHz (Southall et
al., 2019; Kuroda et al., 2020) and can be very loud (up to 200 dB
peak-to-peak) (Brinkl[oslash]v et al., 2022). In contrast, operational
turbine noise is generally below 1 kHz (Tougaard et al., 2020;
St[ouml]ber and Thomsen, 2021). Therefore, turbine noise interference
with echolocation is not a likely outcome of exposure.
Operational noise is also not anticipated to interfere with North
Atlantic right whale navigation or migration. During the effective
period of the rule, some or all of Atlantic Shores' proposed turbines
will become operational. The proposed rule included an evaluation of
operational noise impacts on marine mammals, including North Atlantic
right whales and described anticipated noise levels from operation. For
example, the proposed rule indicated that operational noise levels are
likely lower than those ambient levels already present in active
shipping lanes, such that operational noise would likely only be
detected in very close proximity to the WTG (Thomsen et al., 2006;
Tougaard et al., 2020). North Atlantic right whales are well known to
transit through heavily used shipping lanes wherein commercial vessels
(as well as recreational vessels) continuously elevate background noise
levels. The commenter did not provide any scientific support to their
statements that navigation and echolocation would be impaired due to
operations so NMFS was unable to evaluate these statements further.
Comment 17: A member of the public has stated that the work planned
for Atlantic Shores South would interfere with the North Atlantic right
whale's ``migration and reproduction territory'' and that NMFS should
not issue any ITAs to allow for any type of harassment to marine
mammals, particularly those listed under the ESA.
Response: NMFS disagrees that the Atlantic Shores South Project
would interfere with the ``migration and reproduction territory'' of
the North Atlantic right whale, as suggested by the commenter. NMFS is
aware of no evidence to support this claim, nor did the commenter
provide any. The migratory Biological Important Area (BIA) is about
177.77 km (101.46 mi) across where the Atlantic Shores South Project
(26.4 km (16.4 mi)) intersects and given that the Project Area overlaps
approximately less than 15 percent of the width of the migratory
corridor, the Project Area is not expected to meaningfully impede the
movement of migrating North Atlantic right whales. This information is
all publicly available and this analysis can be easily
[[Page 77989]]
replicated and visualized through data found in NOAA's Marine Cadastre
National Viewer at: <a href="https://marinecadastre.gov/viewers">https://marinecadastre.gov/viewers</a>). No take by
injury, serious injury, or mortality is authorized for the species.
NMFS emphasizes that the authorized incidental take of North Atlantic
right whales is limited to Level B harassment (i.e., behavioral
disturbance). As described in the proposed rule and this final rule
(see Negligible Impact Analysis and Determination section), NMFS has
determined that the Level B harassment of North Atlantic right whales
will not result in impacts to the population through effects on annual
rates or recruitment or survival.
Furthermore, no calving habitat or reproductive areas are known off
of New Jersey and the BIA for this area is located off the southeast
U.S. coast, extending from the Cape Fear, North Carolina to below Cape
Canaveral, Florida (calving critical habitat; <a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>). These 2
areas are approximately 712 km (443 mi) apart (assuming a straight line
that intersects land), from the most southern point of the Lease Areas
to the most northern point of the calving area. Therefore, NMFS does
not expect that reproductive activities located in the southeast would
be affected by the activities occurring off of New Jersey for the
Project.
Lastly, the commenter seems to have a misconception about how the
MMPA and ESA work together. 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 (16 U.S.C.
1536(a)(2)). For the Atlantic Shores South Project, our office (i.e.,
the Office of Protected Resources) requested initiation of a section 7
consultation for ESA-listed species with the NMFS Greater Atlantic
Regional Fisheries Office on July 19, 2023. A Biological Opinion was
completed on December 18, 2023 (see <a href="https://www.fisheries.noaa.gov/s3/2024-02/GARFO-2023-01804.pdf">https://www.fisheries.noaa.gov/s3/2024-02/GARFO-2023-01804.pdf</a>), which concluded that the promulgation of
the rule and issuance of a LOA thereunder is not likely to jeopardize
the continued existence of threatened and endangered species under
NMFS' jurisdiction and is not likely to result in the destruction or
adverse modification of designated or proposed critical habitat.
Because of this, NMFS' action of finalizing the rulemaking and issuing
a LOA for the Atlantic Shores South Project is consistent with the ESA.
Comment 18: The Commission stated concern regarding discrepancies
between modeled and measured zones as factors to take into account for
rule conditions and recommended that NMFS provide the interim SFV
reports for the South Fork and Vineyard Wind 1 projects and allow for
another 30-day public comment period for the Atlantic Shores South
proposed rule before issuing any final rule.
Response: NMFS disagrees that results from the South Fork and
Vineyard Wind 1 projects are necessary for the public to comment on the
Atlantic Shores South proposed rule. The public had adequate
opportunity to comment on the acoustic modeling methods and results in
the proposed rule and supporting information, including a detailed
acoustic modeling report. Moreover, in situ data on pile driving, in
general, including from the Block Island Wind Farm and Coastal Virginia
Offshore Wind (CVOW) Pilot Project are publicly available and were
described in the proposed rule as well as modeling that has
investigated how source levels may increase in relation to pile and
hammer specifications. Since that time, NMFS made the Vineyard Wind 1
SFV report available on its website as this report was deemed final.
South Fork Wind has not yet submitted a SFV report that NMFS has deemed
final; therefore, it is not available. Waiting until the South Fork SFV
report is available and opening another 30-day public comment on the
Atlantic Shores South proposed rule could constitute an unnecessary
delay to the environmental permitting process and would not be aligned
with the FAST-41. NMFS has reviewed the final monitoring reports
submitted for the South Fork and Vineyard Wind 1--Phase 1 Projects and
the results do not conflict with modeled assumptions and estimated/
allowed take included in the rule. Further, marine mammal monitoring
results indicate that observed behaviors from pile driving activities
are in line with NMFS' analysis and assumptions within the NID (i.e.,
behaviors of mysticetes included surfacing, blowing, fluking, and
feeding, which are expected but not strong reactions to a noise
stimulus and indicative of low levels of Level B harassment). For all
these reasons, NMFS is not re-publishing the Atlantic Shores South
proposed rule for public comment.
NMFS acknowledges the Commission's concern regarding potential
discrepancies between modeled and measured ensonification zones and has
made certain changes within 50 CFR 217.304, including the addition of
paragraph (c)(14)(viii)(A), to ensure that a flexible, iterative
process is available to the agency in addressing any such
discrepancies.
Comment 19: The Commission recommended that NMFS ensure that the
mitigation, monitoring, and reporting requirements for the construction
of wind energy facilities are sufficient at the conclusion of the final
rule phase and that by allowing additional sound attenuation
technologies to be implemented, as needed, during Project construction
could lead to delays and additional impacts to marine mammals if delays
necessitate longer construction periods.
Response: NMFS understands the suggestion by the Commission but
disagrees at this time. Within U.S. waters, offshore wind is relatively
new and brings with it new science, technology, and data. To fully
ensure conservation benefits to NOAA's trust species, we believe that
all mitigation, monitoring, and report approaches are necessary to be
both proactive and reactive through our Adaptive Management condition
found within the final rulemaking framework and LOA. Ideally, the
Commission is correct and all mitigation, monitoring, and reporting
requirements should be consistent and appropriate throughout the entire
process, especially at the proposed rule stage. However, this
suggestion by the Commission disregards the updated and improved
knowledge and data obtained from each project as it completes
permitting and enters the construction and operations period. As our
knowledge and experience with all offshore wind projects continues and
further improves, NMFS welcomes the ability to update and improve
mitigation and monitoring measures, given the influence of new and
additional data.
While the Commission is correct that necessitating additional sound
attenuation technologies, as needed, may cause delays, NMFS sees these
adjustments as necessary to ensure that the Project is being
constructed in an adaptive way that ensures sufficient protection of
marine mammals. Specifically, we note the concern raised by the
Commission wherein delays could lead to additional impacts to protected
species ``if delays necessitate longer construction periods'' is
without merit. As described within the proposed rule, and subsequently
carried into the final rule, NMFS has considered situations where the
construction schedule could experience delays due to weather or supply
chain issues (also more broadly including changes to the implementation
of the Project) and has
[[Page 77990]]
noted that, given the maximum construction Schedule analyzed for the
Atlantic Shores South Project, we do not expect the maximum 5-year take
to exceed that which is authorized in the LOA. Additionally, the
seasonal restrictions designed to provide additional protections to
North Atlantic right whales (i.e., January through April) are
implemented annually throughout the entire effective period of the
final rulemaking and LOA. If foundation pile driving is delayed into
this seasonal shoulder, activities would only be allowed to continue
once the restriction period has ended (i.e., after April 30th), when
North Atlantic right whales are less likely to be in the Project Area.
Because of this, we do not expect that any marine mammals would be
impacted during times of year where the effects were not already
analyzed.
Comment 20: The commenter suggests that NMFS is using an arbitrary
percentage (i.e., 33) to represent ``small numbers'' when a smaller
percentage (i.e., 12) would be more appropriate, per a Court decision.
The commenter also seems to be arguing that given the number of takes
by harassment predicted and authorized for North Atlantic right whales,
a take by serious injury or mortality is therefore likely to occur, and
that that would be inconsistent with the criteria of less than 1
serious injury or fatality for the North Atlantic right whale (i.e.,
referencing specifically the PBR). The commenter further goes on to say
that this is a clear violation of the small numbers determination and
the negligible impact criteria.
Response: NMFS has provided a reasoned approach to small numbers,
as described in full in the final rule, ``Taking Marine Mammals
Incidental to Geophysical Surveys Related to Oil and Gas Activities in
the Gulf of Mexico'' (86 FR 5322 at 5438, January 19, 2021). Utilizing
that approach, NMFS has made the necessary small numbers finding for
all affected species and stocks in this case (see the Small Numbers
section of this preamble for more detail). The commenter also cites
NRDC v. Evans, 279 F.Supp. 2d 1129 (N.D. Cal. 2003), for the
proposition that a standard less than 12 percent is required for the
``small numbers'' analysis. The commenter's reading of that case is
inaccurate. In Evans, the court ruled that the negligible impact
determination and the small numbers analysis must be undertaken
separately, but the court specifically ``does not require defendants to
set an absolute numerical limit'' for small numbers (Id. at 1152).
Following that case, NMFS undertook separate small numbers findings
from its negligible impact determinations, analyzing in each case
whether the numbers were small relative to the stock or population size
(the ``proportional approach''). NMFS's proportional approach has been
recently upheld as a reasonable interpretation of the relevant
statutory provision (see Melone v. Coit, 100 F.4th 21, 30-31 (1st Cir.
Apr. 25, 2024)).
Regarding the assertions that serious injury or mortality will
result from the activity given the number or authorized takes by
harassment, the mathematical arguments presented by the commenter are
unsupported and no evidence supporting the likelihood or serious injury
or mortality is presented. NMFS has provided extensive explanations for
why these activities are not expected to result in serious injury or
mortality of North Atlantic right whales (see Comments 7, 8, 9, and 17)
and also provided a robust rationale supporting the negligible impact
determination for North Atlantic right whales and all marine mammal
species in the Negligible Impact Analysis and Determination section of
the final rule.
Comment 21: A commenter stated that NMFS omitted important impacts
of this Project, including impacts from Project decommissioning. The
commenter also stated that the proposed rule did not address why UXOs/
MECs were not analyzed in this action, even though they were present in
the action of a neighboring lease (i.e., Ocean Wind 1, OCS-A-0498).
Response: Given that the average lifespan of offshore wind turbines
is about 20-35 years, decommissioning would occur after this 5-year
rule expires and therefore was not included as a specified activity in
Atlantic Shore's application. Because of this, decommissioning is not
an activity subject to the MMPA analysis contained herein. Similarly,
Project Company 1 does not plan to detonate UXO/MECs for this Project,
did not include it as part of the specified activities in the
application or request to take marine mammals incidental to the
detonation of UXO/MECs, and NMFS did not propose detonation of UXO/
MECs.
Comment 22: A commenter, in many of their comments, referenced an
analysis for 357 WTGs, which is inclusive of 2 separate projects:
Atlantic Shores North and Atlantic Shores South.
Response: NMFS notes that the commenter erroneously describes the
total possible Project Design Envelope for 2 separate projects:
Atlantic Shores South (n=200 WTGs) and Atlantic Shores North (n=157
WTGs). NMFS' action for which the proposed rule was published is over
the Atlantic Shores South and did not include the Atlantic Shores North
project. NMFS is required to consider applications upon request, and
the MMPA does not provide NMFS with authority to dictate an applicant's
definition of its specified activity (e.g., separation/combination of
construction activities across multiple lease areas or projects with
the developer, etc.). An individual company owning multiple lease areas
may apply for a single ITA to perform construction or conduct site
characterization surveys across a combination of those lease areas, if
they so wish, such as some HRG survey activities conducted by Orsted,
or may request a single ITA for a single project area or lease area,
both cases which may be found on NMFS' website at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. For Atlantic
Shores South, NMFS did not receive a joint application for both South
and North, only for South and the Lease Areas (i.e., OCS-A-0499 and
OCS-A-0570). While an individual company owning multiple lease areas
may apply for a single ITA to conduct their activities across a
combination of those lease areas, this is not applicable in this case.
In the future, if applicants wish to undertake this approach, NMFS is
open to the receipt of joint applications and additional discussions on
joint actions. However, for NMFS' action as described here, the
applicant, Project Company 1, requested an ITA for Atlantic Shores
South, and that is what NMFS' analysis herein describes.
Comment 23: Commenters stated that NMFS has failed to fulfill its
obligations under the NEPA and the ESA. Regarding NEPA, the commenters
stated that because the Project constitutes a major Federal action, it
must be supported by an EIS and NMFS must either prepare its own or
work with BOEM as a cooperating agency to the preparation of an EIS.
They further expand that, to be consistent with NEPA, the MMPA ITA
review must be coordinated with the EIS review to the ``maximum extent
possible'', which the commenter interprets as the proposed rule being
released for public comment alongside the draft EIS so the public has
the ability to evaluate both documents and the final MMPA rulemaking
being released at the same time as the final EIS. The commenter also
stated that the proposed MMPA ITA publication should be accelerated or
the draft EIS should be delayed until both documents are ready (and the
commenters stated May 2023 as that date).
[[Page 77991]]
Additionally, the commenter stated that, per BOEM's new NEPA
policy, only projects that have been already approved by the State
should be analyzed and carried forward. Given the State of New Jersey
has not approved Project 2 (at the time of drafting this final
rulemaking), the scope of the MMPA ITA application should be limited to
Project 1 only. The commenter then states that they believe BOEM's new
NEPA policy to be inherently flawed and too limiting in scope.
Regarding the ESA, the commenters have stated that the Notice of
Availability of the EIS makes no mention of compliance with the ESA and
that the section 7 consultation should have been coordinated with the
NEPA EIS and the MMPA ITA process. They also state that the Biological
Assessment should be made publicly available at the same time as the
draft EIS and the proposed rulemaking (in alignment with their
suggestions for the MMPA/NEPA schedule) so the public can review all
documents in the appropriate context.
Given the explanation above, the commenters recommend that if these
suggestions are not followed, NMFS deny the Project an ITA and engage
in further discussions with BOEM and the applicant to terminate the
Project. Alternatively, they suggest that if the Project isn't
terminated, it should be reduced in scope to allow for unimpeded use of
the migratory corridor for North Atlantic right whales.
Response: NMFS has met its obligations under both NEPA and the ESA
for the issuance of the MMPA final rule, in that all required
procedural steps have been followed, and the necessary findings have
been made to support the issuance of the final rule. NMFS agrees that
the planned Project, as described, constitutes a major Federal Action
and therefore requires an evaluation under NEPA. In compliance with
NEPA, BOEM published a Notice of Intent (NOI) to prepare an EIS for the
Atlantic Shores Offshore Wind Projects (i.e., Atlantic Shores South)
(86 FR 54231; September 30, 2021), which is found on BOEM's web page
at: <a href="https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-south">https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-south</a>. In alignment with this NOI, BOEM published both a Notice
of Availability of the draft EIS (88 FR 32242, May 19, 2023) and the
draft EIS itself on their web page and opened a public comment period
soliciting public input on the Project and draft EIS for a 60-day
public comment period (noting that the commenter provided comments on
the draft EIS, per appendix N of the final EIS) (see <a href="https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-offshore-wind-south-final-environmental-impact">https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-offshore-wind-south-final-environmental-impact</a>).
We disagree with the commenter's statement that NMFS has failed in
its obligations under NEPA. NMFS has been a cooperating agency working
with BOEM on the EIS since October 18, 2021, when BOEM transmitted a
request to join the Project as a cooperating agency. NMFS participated
and provided several reviews of the draft and final EIS' as they relate
to our trust species and resources, and coordinated with BOEM, as the
lead agency, as needed. NMFS disagrees with the commenters' comment
that the draft EIS should be released concurrently and during the same
time period as the proposed MMPA ITA, the final EIS should be released
at the same time as the final MMPA ITA, and that the timeline for the
MMPA ITA should be sped up, in this case, to align with the timeline
for the final EIS. The current FAST-41 schedule allowed sufficient time
for both the draft EIS and the proposed MMPA ITA to be evaluated,
before either were finalized, and provided a publicly available
timeline for this regulatory action. Nothing in the MMPA, ESA, or NEPA
requires or suggests the timing adjustments described by the commenter.
Lastly, the commenter fails to provide a basis for suggesting the May
2023 date and, as stated above, NMFS disagrees with timeline
adjustments as presented by the commenter. The relevant regulatory
processes have followed typical timelines for such actions and properly
incorporated public comment.
As to the commenter's second point regarding NEPA and BOEM's
approval of one or both of the projects described for Atlantic Shores
South, NMFS does not have authority over BOEM processes or guidance,
nor do we have authority to allow for Project activities to go forward
or to be rejected, as that is outside the scope of our MMPA authority.
Within the scope of our MMPA authority is to analyze, and if specific
findings are met, allow for a limited amount of take to occur to marine
mammals from specified activities in the ITA application. Any questions
specific to BOEM's policies should be directed at the appropriate
agency.
Commenters also identified concerns regarding a lack of text in the
NOA of the draft EIS and that the section 7 consultation under the ESA
should have been coordinated with the NEPA EIS and MMPA ITA processes.
Regarding the MMPA ITA, NMFS met its requirements under the ESA through
the initiation of the section 7 consultation of the ESA on July 19,
2023, as described in the proposed rulemaking. As required under NEPA
and the ESA, BOEM provided a Biological Assessment to NMFS GARFO. Any
other comments or discussions regarding timing and alignment between
NEPA and the ESA are out-of-scope for the NMFS MMPA action and should
be taken to the appropriate agencies (i.e., BOEM) and offices (i.e.,
NMFS GARFO). Additionally, the commenters' statement that the
Biological Assessment should be made publicly available at the same
time as the draft EIS, is unfounded and out of scope of NMFS' MMPA
action. Our response to the commenter's suggestion on schedule
alignment is set forth above.
Finally, the commenters propose termination of the Project if these
alignment concerns are not addressed, or in the alternative, a
reduction in the scope and size of the Project to allow for the
unimpeded use of the migratory corridor by North Atlantic right whales.
Again, termination of the Project is outside the scope of NMFS's
authority, and outside the scope of this MMPA action. The commenters
provide no substantive reasoning why NMFS should refuse to promulgate a
final rulemaking. As previously described, the MMPA is an applicant-
lead process and NMFS analyzes the scope of a project, as proposed by
an applicant.
Comment 24: Commenters requested that NMFS provide information that
can be used to identify the wind turbine installation vessel.
Response: NMFS agrees with the commenter that identification
information for the vessels used in the Project (and more broadly for
all offshore wind projects) is important. As described in the proposed
rule (88 FR 65430, September 22, 2023), and carried over into the final
rule, NMFS requires that all vessels working on the Atlantic Shores
South Project utilize an Automatic Identification System (AIS) and
Project Company 1 is required to provide the Marine Mobile Service
Identity (MMSI) numbers to NMFS, per the requirements described under
this final rule in Vessel Strike Avoidance Measures section, located in
the Mitigation section, as well as within the final regulations
conditions under 50 CFR 217.304(a)(11) and Sec. 217.305(g)(14)(v).
These vessels will be available to be publicly viewed on a number of
free AIS tracking websites, including but not limited to: <a href="https://www.marinetraffic.com">https://www.marinetraffic.com</a> and <a href="https://www.vesselfinder.com">https://www.vesselfinder.com</a>.
[[Page 77992]]
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
(88 FR 65430, September 22, 2023), NMFS has made changes, where
appropriate, that are reflected in the preamble and regulatory text of
this final rule. These changes are briefly identified below, with more
information included in the indicated sections of the preamble to this
final rule.
Changes to Information Provided in the Preamble
The information found in the preamble of the proposed rule was
based on the best available information at the time of publication. New
information is constantly becoming available and is intentionally
solicited during the public comment period. NMFS works to ensure the
best available science is included in every stage of the regulatory
process. Since publication of the proposed rule, new information
related to the effects of the activity on marine mammals has become
available and has been summarized and considered in this final rule. As
discussed below, while new information has added detail to our
understanding of the impacts of the activity on marine mammals and
their habitat, and in some cases minor changes or clarifications have
been made to the narrative supporting the analysis or the mitigation
and monitoring measures as a result, the inclusion of this new
information has not resulted in substantive changes from any of NMFS'
determinations in the proposed rule.
Throughout the rule, and in the Summary of Request section, given
the request from the applicant to change ownership of Atlantic Shores
South and the lease segregation, we have updated the name of the
applicant and lease numbers, where appropriate.
The following changes are reflected in the Description of Marine
Mammals in the Specified Geographic Region section of the preamble to
this final rule:
Given the release of NMFS' draft 2023 Stock Assessment Reports
(SARs) (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>), we have updated the
stock abundance estimates for several species and stocks, including:
North Atlantic right whales (which also includes the Linden (2023)
estimate, as incorporated into the draft 2023 SARs), sperm whales,
Atlantic spotted dolphins, bottlenose dolphins (Western North
Atlantic--offshore stock), common dolphins, short-finned pilot whales,
Risso's dolphins, harbor porpoises, and gray seals. These revised
abundance estimates have been incorporated into the tables (where
applicable), and into the Negligible Impact Analysis and Determination
section and Small Numbers section in this final rule.
In alignment with the new draft 2023 SARs, we have updated the
total North Atlantic right whale total mortality/serious injury (M/SI)
amount from 8.1, as shown in the proposed rule, to 27.2. This accounts
for 27.2 total mortality, 17.6 of which are attributed to fishery-
induced mortality, per the footnote in the draft SAR. This increase is
due to the inclusion of undetected annual M/SI in the total annual
serious injury/mortality estimate. As described above, no M/SI of North
Atlantic right whales is anticipated or has been authorized for the
Project.
Given the availability of new information, we have made updates to
the UME summaries for the described species (i.e., North Atlantic right
whales, humpback whales, minke whales, and phocid seals).
Within the Potential Effects of Specified Activities on Marine
Mammals and Their Habitat section, we have made the following
additions:
We have added additional information regarding operational noise
from WTGs, given the release of new scientific literature.
We have added information relating to the broken blade at the
Vineyard Wind 1 lease area (OCS-A-0501), the rarity of this event
occurring, and that no take was requested, proposed, or authorized
incidental to blade failure so this isn't discussed further in this
document.
The following changes are reflected in the WTG, OSS, and Met Tower
Foundation Installation subsection of the Estimated Take section of the
preamble to this final rule:
Due to a public comment received during the 30-day comment period
associated with the proposed rule, NMFS agrees that the broadband
source level is important information to include. Using the decidecade
spectra included in the application, we have calculated and included
the SEL source levels for 12-m and 15-m monopiles using hammer energies
of 4,400 kJ and found that they are approximately 227 dB.
After additional review of the application materials, NMFS noted a
transcription error in table 15 of the proposed rule where the
incorrect distances were presented for the acoustic ranges
(R<INF>95</INF><not-eq>) for sites L01 and L02. The correct ranges are
shorter than those in the proposed rule. This has been corrected in the
final rule in table 13; however, recognition of this error does not
change our measures or findings.
The proposed rule contained the correct take numbers from
foundation pile driving for Project 1 and Project 2, individually
(tables 17 and 18 in the proposed rule and tables 15 and 16 of this
final rule). However, in developing this final rule, NMFS recognized
that the takes from Project 2 were not appropriately added to the takes
from Project 1 in Year 2 (when a limited number of WTG foundations from
Project 2 may occur in the same year as Project 1, as shown in Tables
17 and 18 of the proposed rule). The final rule corrects the sum of the
total take each year and over the 5-year period. This action changes
some of the take estimates found in table 17 of this final rule (table
19 of the proposed rule) and tables 22, 23, and 24 of this final rule
(tables 24, 25, and 26 in the proposed rule), but did not affect or
change NMFS' overall final determinations for this rulemaking described
in the proposed rule. Furthermore, this update does not change the
number of WTGs fully analyzed in the take analysis (n=200 WTGs). Where
applicable, in the final rule, these updates have also been addressed
in the Negligible Impact Analysis and Determination section and for the
small numbers finding in the Small Numbers section.
The following change is reflected in the Cable Landfall Activities
subsection of the Estimated Take section of the preamble to this final
rule:
To provide additional context to the proximity to shore for the
temporary cofferdam activities, NMFS has added additional information
regarding known haul-out locations of pinnipeds in New Jersey and a
brief discussion on why we do not expect any harassment from in-air
noises.
The following changes are reflected in the HRG Surveys subsection
of the Estimated Take section of the preamble to this final rule:
Given new information on the sparker acoustic source planned for
use during HRG surveys, as provided by the applicant, and a re-review
of the information found within Crocker and Fratantonio (2016), NMFS
believes a transcription error occurred in the initial ITA application
where the wrong operational parameters for the Applied Acoustics Dura-
Spark 240 and the GeoMarine Geo-Source sparker units were incorrectly
and inadvertently included. NMFS has added additional information and
corrected existing information clarifying the use of the
[[Page 77993]]
GeoMarine Geo-Source sparker, the anticipated nominal operational
characteristics of this source (i.e., energy level and number of tips),
the expected acoustic output (i.e., dB<INF>rms</INF>) based on these
characteristics, and the Applied Acoustics Dura-Spark sparker unit. We
have updated table 20 with this information and added footnotes to
address these changes. Importantly, this update did not affect or
change NMFS' overall final determinations for this rulemaking described
in the proposed rule.
To provide additional clarity on the total allowed take from HRG
surveys over the entire 5-year effective period of this final
rulemaking, we added a column to table 21 labeled ``Total 5-year
Allowed Take By Level B Harassment''.
Within the Total Take Across All Activities subsection of the
Estimated Take section, NMFS updated the stock abundances for tables
22, 23, and 24 in this final rule based on the 2023 draft SAR
estimates.
After review, NMFS noted that in table 25 of the proposed rule, the
total take by Level B harassment, total take by Level A harassment, and
total collective 5-year take for Atlantic spotted dolphins and Atlantic
white-sided dolphins were inadvertently switched. Tables 24 and 26 of
the proposed rule were unaffected. In this final rule, NMFS has
addressed this to clearly display that total take by Level B
harassment, total take by Level A harassment, and total 5-year take are
correctly displayed for each species (see table 23 in this final rule).
Where applicable, in the final rule, these updates have also been
addressed in the Negligible Impact Analysis and Determination section
and for the small numbers finding in the Small Numbers section.
The following changes are reflected in the Mitigation section of
the preamble to this final rule:
We have updated our vessel separation distances in the Vessel
Strike Avoidance section to align with the final Biological Opinion. A
500-m (1,640-ft) minimum separation distance is now required for all
ESA-listed large whale species (i.e., sperm whales, fin whales, sei
whales) and any unidentified large whale species, and a 100-m (328-ft)
minimum distance is required for all non-ESA-listed large whales (i.e.,
humpback whales, minke whales). The North Atlantic right whale minimum
separation distance (500 m (1,640 ft)) and the distance for all
delphinid cetaceans and pinnipeds (50 m (164 ft)) did not change. We
have also updated table 27 in the Mitigation section and the relevant
language in the regulatory text (see 50 CFR 217.304(b)(11) and (12)).
We have updated parts of the Mitigation section to include NMFS'
website at: <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>,
alongside the requirements to monitor Channel 16 and the Right Whale
Sightings Advisory System. These updates have also been made in the
relevant parts of the regulatory text (see 50 CFR 217.204(a)(3) and
217.204(b)(4)).
We have provided more information on what Project Company 1 would
need to provide to NMFS Office of Protected Resources to fully allow
for consideration of pile driving activities occurring in December.
This includes details on a written request being provided by October
15th, as well as some information that must be included in this
request, including but not limited to: (1) the installation schedule
and types of piles to be installed; (2) the maximum number of piles
that would be anticipated to be installed in December; (3) the planned
hammer energies; and (4) any planned or additional mitigative measures
that could be implemented to further reduce activities to North
Atlantic right whales and other marine mammal species. These
requirements have also been added to the Regulatory text at the end of
the preamble, in 50 CFR 217.304(c)(1).
We have clarified the formatting and language within table 25 to
allow for easier interpretation. However, none of the information that
was originally in the proposed rule has changed in this table in the
final.
In table 25, we have adjusted the language for the clearance and
shutdown zones for North Atlantic right whales to be ``any distance
within the PAM Clearance/Shutdown zone'', which is 10 km (6.21 mi).
Also in table 25, we have specified that the PAM system used by
Project Company 1 must: (1) be able to detect all marine mammals; (2)
maximize baleen whale detections; and (3) be capable of detecting North
Atlantic right whales at 10 km (6.21 mi), with that understanding that
other marine mammals (e.g., harbor porpoise) may not be detected at 10
km (6.21 mi).
We have also provided additional clarification on when deliverables
(i.e., reports and plans) are provided to NMFS using ``calendar'' days
versus actionable items (i.e., December pile driving requests, PSO/PAM
operator resume reviews) are provided to NMFS using ``business'' days.
These were also reflected, where appropriate, in the Monitoring and
Reporting section, as well as the corresponding sections in the
regulations at the end of this preamble.
In addition to the thorough SFV requirements in the proposed rule,
and given abbreviated SFV requirements were inadvertently excluded from
the proposed rule, we have added to this final rule the requirement
that Project Company 1 must conduct abbreviated SFV monitoring
(consisting of a single acoustic recorder placed at an appropriate
distance from the pile) on all foundation installations for which the
thorough SFV monitoring, as required in the proposed rule, is not
carried out consistent with the Biological Opinion. NMFS requires that
these SFV results must be included in the weekly reports. Any
indications that distances to the identified Level A harassment and
Level B harassment thresholds for whales must be addressed by Project
Company 1, including an explanation of factors that contributed to the
exceedance and corrective actions that were taken to avoid exceedance
on subsequent piles.
We have also updated and added requirements in the Sound Field
Verification (SFV) subsection of the Monitoring and Reporting section
to fully describe both thorough SFV and abbreviated SFV, in alignment
with the final NMFS Greater Atlantic Regional Fisheries Office (GARFO)
Biological Opinion.
We have added a requirement in the Reporting section for Project
Company 1 to report operational sound levels from all installed piles,
in alignment with a requirement found in the completed Biological
Opinion.
We have removed specific dates, days of the week, and months from
the Reporting section to provide additional flexibility for Project
Company 1 and will include the relevant dates, days of the week, and
months in the LOA.
Changes in the Regulatory Text
Within the regulatory text more broadly, we have made minor
modifications and updates to some of the language to improve clarity
and understanding.
Within 50 CFR 217.304 Mitigation requirements, several changes were
made to paragraphs (c)(14)(vii), (viii), and (x) to both align with the
completed Biological Opinion and to ensure flexibility and compliance
in situations where SFV measurements indicate operational or NAS
changes may be called for, or modified monitoring may be needed. These
changes were informed by the comment letter
[[Page 77994]]
received from the Commission which primarily addressed concerns
regarding SFV and noted that NMFS needed to better account for
discrepancies between modeled and measured zones based on results from
the interim SFV reports.
Under 50 CFR 217.304(c)(14)(viii), we have added a sub-condition
specifying the action that Project Company 1 must undertake in the
event all practicable measures that could reduce noise levels have been
successfully implemented and exhausted but the results from the
thorough SFV measurements continue to indicate that the distances to
the marine mammal harassment thresholds are greater than those modeled
assuming 10 dB attenuation. This includes a requirement to meet with
NMFS within 3 business days to discuss the results of SFV monitoring,
the severity of exceedance of distances to identified isopleths of
concern, the species affected, modeling assumptions, and whether the
SFV results demonstrate the magnitude and degree of impacts from the
Project are greater than those considered in this final rule. This
change was informed, in part, by the Commission's comment letter
discussing concern with potential discrepancies between modeled and
measured zones.
Within 50 CFR 217.304(c), several changes were made to paragraph
(c)(14)(x) that provide updated information on thorough SFV,
abbreviated SFV, and on what Project Company 1's Sound Field
Verification Plan (SFV Plan) must include, to align these measures more
closely with NMFS GARFO's final Biological Opinion.
Under 50 CFR 217.304(f), NMFS has better aligned and updated some
of the mitigation measures for fishery monitoring surveys to better
require training in marine mammal identification (50 CFR
217.304(f)(1)); better described actions if gear is being removed from
the water when a marine mammal is sighted (50 CFR 217.304(f)(5));
described actions that must be undertaken during trawl surveys (50 CFR
217.304(f)(10)); provided a human safety caveat to the gear removal
requirement (50 CFR 217.304(f)(15)); and, added reporting information
to NMFS GARFO in the event gear is lost (50 CFR 217.304(f)(16)).
Within 50 CFR 217.305 Monitoring and reporting requirements, the
regulatory text clarifies PSO and PAM operator qualification
requirements. The number of PSOs required to monitor during offshore
wind farm construction is extensive. To address concerns regarding the
lack of very specific experience contained within the proposed rule and
increase the pool of qualified candidates, Sec. 217.305(a)(7) has been
updated to remove the requirement for specific experience working in
the Northwest Atlantic Ocean. Instead, potential PSOs must demonstrate
experience visually monitoring marine mammals, including baleen whales.
This experience can be undertaken anywhere in the world. Upon closer
consideration of this issue, NMFS finds that prior experience visually
monitoring for marine mammals requires the same skill sets and is
relevant and transferable to the monitoring required in the specified
geographic region here.
Within 50 CFR 217.305(c), the requirement to employ 1 PAM operator
per buoy stream has been removed, recognizing the PAM and data transfer
systems vary widely and given NMFS' finding that fewer PAM operators
may be sufficient to carry out PAM during pile driving. Instead, the
final number of PAM operators will be identified in a NMFS-approved PAM
Plan, in the context of what is sufficient given the specific system
and circumstances.
Within 50 CFR 217.305(a), the PSO and PAM operator regulatory text
has also been reorganized and removes the classification of PAM
operators as conditional or unconditional, instead relying on the PAM
operator experience described in the proposed rule to determine
sufficiency of qualifications.
Within 50 CFR 217.305(c), the requirement to conduct and review PAM
data for 24 hours prior to pile driving has been retained; however, the
regulatory text in this final rule removes the term ``immediately prior
to foundation impact pile driving'' when discussing reviewing 24-hours
of PAM data before pile driving commenced, recognizing the logistical
constraints this poses.
Within 50 CFR 217.305(g), the marine mammal visual and acoustic
reporting requirements have also been updated to reflect regional and
science center reporting mechanisms and standards.
Description of Marine Mammals in the Specific Geographic Region
As noted in the Changes From the Proposed to Final Rule section,
updates have been made to the UME summaries of multiple species. These
changes are described in detail in the sections below. We have also
included new data on North Atlantic right whale abundance information
and updated the annual M/SI value presented in table 2, based upon
updates found in the draft 2023 SARs (see <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>). Otherwise, this section has not changed
since the publication of the proposed rule in the Federal Register (88
FR 65430, September 22, 2023).
Approximately 38 marine mammal species under NMFS' jurisdiction
have geographic ranges within the western North Atlantic OCS (Hayes et
al., 2022), with several marine mammal species occurring within the
specific geographic region for the Project (i.e., Mid-Atlantic Bight).
NMFS fully considered all of this information, and we refer the reader
to these descriptions in the application instead of reprinting the
information here. Sections 3 and 4 of Project Company 1's ITA
application summarize available information regarding status and
trends, distribution and habitat preferences, and behavior and life
history of the potentially affected species (Atlantic Shores, 2023).
Additional information regarding population trends and threats may be
found in NMFS' SARs 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>, and more general
information about these species (e.g., physical and behavioral
descriptions) may be found on NMFS' website at: <a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>.
Of the 38 marine mammal species and/or stocks with geographic
ranges that include the Project Area (i.e., found in the coastal and
offshore waters of New Jersey), 22 are not expected to be present or
are considered rare or unexpected in the Project Area based on sighting
and distribution data (see table 11 in Project Company 1's ITA
application). Therefore, they are not discussed further beyond the
explanation provided here. Furthermore, Project Company 1 did not
request incidental take for these species, so they are not considered
further in this ITA. Specifically, the following cetacean species are
known to occur off of New Jersey but are not expected to occur in the
Project Area due to the location of preferred habitat outside the Lease
Areas and export cable route, based on the best available information:
Blue whale (Balaenoptera musculus), Cuvier's beaked whale (Ziphius
cavirostris), four species of Mesoplodont beaked whales (Mesoplodon
densitostris, Mesoplodon europaeus, Mesoplodon mirus, and Mesoplodon
bidens), clymene dolphin (Stenella clymene), false killer whale,
Fraser's dolphin (Lagenodelphis hosei), killer whale (Orcinus orca),
melon-headed whale, pantropical spotted dolphin (Stenella attenuata),
pygmy killer whale
[[Page 77995]]
(Feresa attenuata), rough-toothed dolphin (Steno bredanensis), spinner
dolphin (Stenella longirostris), striped dolphin (Stenella
coeruleoalba), white-beaked dolphin (Lagenorhynchus albirostris),
Northern bottlenose whale (Hyperoodon ampullatus), dwarf sperm whale
(Kogia sima), and the pygmy sperm whale (Kogia breviceps). Two species
of phocid pinnipeds are also uncommon in the Project Area, including:
harp seals (Pagophilus groenlandica) and hooded seals (Cystophora
cristata). In addition, the Florida manatees (Trichechus manatus; a
sub-species of the West Indian manatee) has been previously documented
as an occasional visitor to the Mid-Atlantic region during summer
months (Morgan et al., 2002; Cummings et al., 2014). However, as
manatees are managed solely under the jurisdiction of the U.S. Fish and
Wildlife Service and are considered rare or unexpected in the Project
Area, they are not considered or discussed further in this document.
Table 2 lists all species or stocks for which take is anticipated
and allowed under this final rule and summarizes information related to
the species or stock, including regulatory status under the MMPA and
ESA, and PBR, where known. PBR is defined as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS' SARs (16 U.S.C.
1362(20))). While no mortality is anticipated or allowed here, PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' 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' U.S. Atlantic and Gulf of Mexico SARs. Values presented in table
2 are the most recent available data at the time of publication which
can be found in NMFS' 2023 draft SARs, available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>.
Table 2--Marine Mammal Species \a\ Likely To Occur Near the Project Area That May Be Taken by Project Company 1's Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\b\ abundance survey) \c\ SI \d\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale \e\.. Eubalaena glacialis.... Western Atlantic....... E, D, Y 340 (0, 337, 2021).... 0.7 \f\ 27.2
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24, 5,573, 11 2.05
2021).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, N 1,396 (0, 1,380, 2016) 22 12.15
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31, 17,002, 170 9.4
acutorostrata. Coastal. 2021).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02, 3,098, 6.2 0.6
2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 5,895 (0.29, 4,639, 9.28 0.2
2021).
Family Delphinidae:
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 31,506 (0.28, 25,042, 250 0
2021).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71, 54,443, 544 28
2021).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic-- -, -, N 64,587 (0.24, 52,801, 507 28
Offshore \g\. 2021).
Northern Migratory -, -, Y 6,639 (0.41, 4,759, 48 12.2-21.5
Coastal. 2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 93,100 (0.56, 59,897, 1,452 414
2021).
Long-finned pilot whale \h\..... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.30, 30,627, 306 5.7
2021).
Short-finned pilot whale \i\.... Globicephala Western North Atlantic. -, -, Y 18,726 (0.33, 14,292, 143 218
macrorhynchus. 2021).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 44,067 (0.19, 30,662, 307 18
2021).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 85,765 (0.53, 56,420, 649 145
Fundy. 2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \j\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,911 (0.20, 23,624, 1,512 4,570
2021).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ 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
at: <a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a> (Committee on Taxonomy (2023)).
[[Page 77996]]
\b\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\c\ NMFS' marine mammal stock assessment reports can be found online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\d\ 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, ship strike). Annual 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.
\e\ The current SAR includes an estimated population (Nbest = 340) based on sighting history through December 2021 (see <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>). 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).
\f\ In the proposed rule (88 FR 65430, September 22, 2023), the best available science included a North Atlantic right whale M/SI value of 8.1 which
accounted for detected mortality/serious injury. In the final 2022 SAR, released in June 2023, the total annual average observed North Atlantic right
whale mortality was updated from 8.1 to 31.2. In the draft 2023 SAR, released on January 29, 2024 (89 FR 5495), the total annual average observed
North Atlantic right whale mortality was updated from 31.2 to 27.2. Numbers presented in this table (27.2 total mortality (17.6 of which are
attributed to fishery-induced mortality) are 2016-2020 estimated annual means, accounting for both detected and undetected mortality and serious
injury (see <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>).
\g\ Estimates may include sightings of the coastal form.
\h\ Key uncertainties exist in the population size estimate for this species, including uncertain separation between short-finned and long-finned pilot
whales, small negative bias due to lack of abundance estimate in the region between US and the Newfoundland/Labrador survey area, and uncertainty due
to unknown precision and accuracy of the availability bias correction factor that was applied.
\i\ A key uncertainty exists in the population size estimate for this species based upon the assumption that the logistic regression model accurately
represents the relative distribution of short-finned vs. long-finned pilot whales.
\j\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 394,311. The annual M/SI value given is for the total stock.
North Atlantic Right Whale
In June 2023, NMFS released its final 2022 SARs, which updated the
annual M/SI value for North Atlantic right whale from 8.1 to 31.2 due
to the addition of estimated undetected mortality and serious injury,
as described above, which had not been previously included in the SAR.
The population estimate is slightly lower than the North Atlantic Right
Whale Consortium's 2022 Report Card, which identifies the population
estimate as 340 individuals (Pettis et al., 2023). Elevated North
Atlantic right whale mortalities have occurred since June 7, 2017 along
the U.S. and Canadian coast, with the leading category for the cause of
death for this UME determined to be ``human interaction,'' specifically
from entanglements or vessel strikes. Since publication of the proposed
rule, the number of animals considered part of the UME has increased.
As of August 26, 2024, there have been 40 confirmed mortalities (i.e.,
dead, stranded, or floaters), 1 pending mortality, and 36 seriously
injured free-swimming whales for a total of 77 whales considered to be
part of the UME due to serious injury or mortality. As of October 14,
2022, the UME also considers animals (n=65) with sub-lethal injury or
illness (i.e., ``morbidity''), bringing the total number of whales in
the UME to 142. More information about the North Atlantic right whale
UME is available online at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event</a>.
Humpback Whale
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. This event was
declared a UME in April 2017. Partial or full necropsy examinations
have been conducted on approximately half of the 227 known cases (as of
August 26, 2024), with 31 found within New Jersey's jurisdiction. Of
the whales examined (approximately 90), about 40 percent had evidence
of human interaction, either vessel strike or entanglement (refer to
<a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>). While a
portion of the whales have shown evidence of pre-mortem vessel strike,
this finding is not consistent across all whales examined and more
research is needed. NOAA is consulting with researchers that are
conducting studies on the humpback whale populations, and these efforts
may provide information on changes in whale distribution and habitat
use that could provide additional insight into how these vessel
interactions occurred. More information is available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>.
Since December 1, 2022, the number of humpback strandings along the
mid-Atlantic coast, including New Jersey, has been elevated. In some
cases, the cause of death is not yet known. In others, vessel strike
has been deemed the cause of death. As the humpback whale population
has grown, they are seen more often in the Mid-Atlantic. These whales
may be following their prey (i.e., small fish) which are reportedly
close to shore in the winter. These prey also attract fish that are of
interest to recreational and commercial fishermen. This increases the
number of boats and fishing gear in these areas. More whales in the
vicinity of areas traveled by boats of all sizes increases the risk of
vessel strikes. Vessel strikes and entanglement in fishing gear are the
greatest human threats to large whales.
Minke Whale
Since January 2017, a UME has been declared based on elevated minke
whale mortalities detected along the Atlantic coast from Maine through
South Carolina. As of August 26, 2024, a total of 174 minke whales have
stranded during this UME, with 14 of those located within New Jersey
jurisdiction. Full or partial necropsy examinations were conducted on
more than 60 percent of the whales. Preliminary findings have shown
evidence of human interactions or infectious disease in several of the
whales, but these findings are not consistent across all of the whales
examined, so more research is needed. This UME has been declared non-
active and is pending closure. More information is available at:
<a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast</a>.
Phocid Seals
Since June 2022, elevated numbers of harbor seal and gray seal
mortalities have occurred across the southern and central coast of
Maine. This event was declared a UME in July 2022. Preliminary testing
of samples has found some harbor and gray seals are positive for highly
pathogenic avian influenza. While the UME is not occurring in the
Project Area, the populations affected by the UME are the same as those
potentially affected by the Project. However, due to the 2 states being
approximately 352 km (219 mi) apart, by water (from the most northern
point of New Jersey to the most southern point of Maine), NMFS does not
expect that this UME would be further conflated by the activities
[[Page 77997]]
related to the Project. After a period of inactivity, this UME was
closed on January 16, 2024 (see https://www.fisheries.noaa.gov/feature-
story/closure-2022-maine-pinniped-unusual-mortality-
event#:~:text=NOAA%20Fisheries%20has%20declared%20the,Marine%20Mammal%20
Unusual%20Mortality%20Events). More information on this UME is
available online at: <a href="https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast">https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast</a>. The above event was preceded
by a different UME, occurring from 2018-2020 (closure of the 2018-2020
UME is pending). Beginning in July 2018, elevated numbers of harbor
seal and gray seal mortalities occurred across Maine, New Hampshire,
and Massachusetts. To date, stranded seals showing clinical signs have
been found in Maine, New Hampshire, Massachusetts, Connecticut, Rhode
Island, New York, New Jersey, Delaware, Maryland, and Virginia,
although not in elevated numbers, therefore the UME investigation
encompassed all seal strandings from Maine to Virginia. A total of
3,152 reported strandings (of both harbor seal and gray seal species)
occurred from July 1, 2018, through March 13, 2020, with 101 occurring
within the jurisdiction of New Jersey. Full or partial necropsy
examinations have been conducted on some of the seals and samples have
been collected for testing. Based on tests conducted thus far, the main
pathogen found in the seals is phocine distemper virus. NMFS is
performing additional testing to identify any other factors that may be
involved in this UME. Information on this UME is available online at:
<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along">https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along</a>.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008; Southall et
al., 2019a). To reflect this, Southall et al. (2007) recommended that
marine mammals be divided into functional hearing groups based on
directly measured or estimated hearing ranges on the basis of available
behavioral response data, audiograms derived using auditory evoked
potential techniques, anatomical modeling, and other data.
Subsequently, NMFS (2018) described generalized hearing ranges for
these marine mammal hearing groups. Generalized hearing ranges were
chosen based on the approximately 65 dB threshold from the normalized
composite audiograms, with the exception for lower limits for low-
frequency cetaceans where the lower bound was deemed to be biologically
implausible and the lower bound from Southall et al. (2007) retained.
Marine mammal hearing groups and their associated hearing ranges are
provided in table 3.
Table 3--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans (dolphins, 150 Hz to 160 kHz.
toothed whales, beaked whales, bottlenose
whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus cruciger
& L. australis).
Phocid pinnipeds (PW) (underwater) (true 50 Hz to 86 kHz.
seals).
------------------------------------------------------------------------
\*\ Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013; Southall et al., 2019a). For more detail concerning these groups
and associated frequency ranges, please see NMFS (2018) for a review of
available information.
NMFS notes that in 2019a, Southall et al. recommended modified
names for hearing groups that are widely recognized. However, this new
hearing group classification does not change the weighting functions or
acoustic thresholds (i.e., the weighting functions and thresholds in
Southall et al. (2019a) are identical to NMFS 2018 Revised Technical
Guidance). When NMFS updates our Technical Guidance, we will be
adopting the updated Southall et al. (2019a) hearing group
classification.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the Project's specified
activities have the potential to result in the harassment of marine
mammals in the specified geographic region. The proposed rule (88 FR
65430, September 22, 2023) included a discussion of the effects of
anthropogenic noise on marine mammals and the potential effects of
underwater noise from Project Company 1's activities on marine mammals
and their habitat. That information and analysis is not repeated here
and readers should refer to the proposed rule.
However, since publication of the proposed rule, new scientific
information has become available that provides additional insight into
the sound fields produced by turbine operation. Although the proposed
rulemaking (88 FR 65430, September 22, 2023) primarily covered the
noise produced from construction activities relevant to the Project,
operational noise was a consideration in NMFS' analysis of the Project,
as all 200 turbines would become operational within the effective dates
of the rule, beginning no sooner than 2026 and 2027 (it is expected
that all turbines would be operational by 2028 and 2029). Once
operational, offshore wind turbines are known to produce continuous,
non-impulsive underwater noise, primarily below 1 kHz (Tougaard et al.,
2020; St[ouml]ber and Thomsen, 2021).
Project Company 1 has acknowledged that the WTG models may utilize
either geared turbine designs or direct-drive turbine models, as both
are currently available on the market. During the drafting of this
final rulemaking, the applicant had not yet made a decision regarding
the entire Atlantic Shores South Project, although they indicated that
the Vestas turbine model planned for installation in Project 1 would
use gearboxes. As there remains uncertainty regarding the model for
Project 2, NMFS has included the following discussion on both gearboxes
and direct-drive models to provide the public with all of the
appropriate information NMFS considered in its analysis and during the
drafting of this final rule.
Recently, direct-drive systems have been gaining popularity over
older generation, geared (i.e., gearbox) turbine
[[Page 77998]]
designs. This growth has been largely attributed to their efficiency.
Gearbox designs require the rotational speed of the turbine to be
modulated by gears before reaching the generator, while direct-drive
designs bypass this step and connect the rotor directly to the
generator (van de Kaa et al., 2020). The direct connection eliminates
the need for a gearbox, one of the heaviest and most maintenance-
intensive components of a turbine, and reduces gearbox failure and
energetic losses as a result. Direct drive technology results in less
wear in dynamic wind conditions, typically leads to slower rotational
speeds, and has been shown to produce more energy on average (Bellmann
et al., 2023). Direct-drive technology also produces lower-frequency
noise and is generally quieter than gearbox counterparts. It is
possible that the slower rotational speeds and reduced mechanical
components in direct-drive turbines impact the noise they produce
(Tougaard et al., 2020).
Tougaard et al. (2020) further stated that the operational noise
produced by WTGs is static in nature and lower than noise produced by
passing ships. This is a noise source in this region to which marine
mammals are likely already habituated. Furthermore, operational noise
levels are likely lower than those ambient levels already present in
active shipping lanes, such that operational noise would likely only be
detected in very close proximity to the WTG (Thomsen et al., 2006;
Tougaard et al., 2020). Similarly, recent measurements from a wind farm
(3 MW turbines) in China found at above 300 Hz, turbines produced sound
that was similar to background levels (Zhang et al., 2021). Other
studies by Jansen and de Jong (2016) and Tougaard et al. (2009)
determined that, while marine mammals would be able to detect
operational noise from offshore wind farms (again, based on older 2 MW
models) for several kilometers, they expected no significant impacts on
individual survival, population viability, marine mammal distribution,
or the behavior of the animals considered in their study (i.e., harbor
porpoises and harbor seals).
Recent scientific studies indicate that operational noise from
turbines is on the order of 110 to 125 dB referenced to 1 micropascal
(re 1 [mu]Pa) SPL<INF>rms</INF> at an approximate distance of 50 m (164
ft) (Tougaard et al., 2020; primarily from gearbox turbines). Recent
measurements of operational sound generated from wind turbines (direct-
drive, 6 MW, jacket foundations) at Block Island Wind Farm (BIWF)
indicate average broadband levels of 119 dB at 50 m (164 ft) from the
turbine, with levels varying with wind speed (HDR, 2019).
Interestingly, measurements from BIWF turbines showed operational sound
had less tonal components compared to European measurements of turbines
with gearboxes.
More recently, St[ouml]ber and Thomsen (2021) used monitoring data
and modeling to estimate noise generated by more recently developed,
larger (10 MW) direct-drive WTGs. Their findings, similar to Tougaard
et al. (2020), demonstrated that there is a trend that operational
noise increases with turbine size. Their study predicts broadband
source levels could exceed 170 dB SPL<INF>rms</INF> for a 10 MW WTG;
however, those noise levels were generated based on geared turbines;
newer turbines typically operate with direct-drive technology. The
shift from using gearboxes to direct-drive technology is expected to
reduce the levels by 10 dB. The findings in the St[ouml]ber and Thomsen
(2021) study have not been experimentally validated, though the
modeling (using largely geared turbines) performed by Tougaard et al.
(2020) yielded similar results for a hypothetical 10 MW WTG.
Furthermore, Holme et al. (2023) cautioned that Tougaard et al.
(2020) and St[ouml]ber and Thomsen (2021) extrapolated levels for
larger turbines should be interpreted with caution since both studies
relied on data from smaller turbines (0.45 to 6.15 MW) collected over a
variety of environmental conditions. They demonstrated that the model
presented in Tougaard et al. (2020) tends to potentially overestimate
levels (up to approximately 8 dB) measured to those in the field,
especially with measurements closer to the turbine for larger turbines.
Holme et al. (2023) measured operational noise from larger turbines
(6.3 and 8.3 MW) associated with 3 wind farms in Europe and found no
relationship between turbine activity (power production, which is
proportional to the blade's revolutions per minute) and noise level,
though it was noted that this missing relationship may have been masked
by the area's relatively high ambient noise sound levels. Sound levels
(RMS) of a 6.3 MW direct-drive turbine were measured to be 117.3 dB at
a distance of 70 m (230 ft). However, measurements from 8.3 MW turbines
were inconclusive as turbine noise was deemed to have been largely
masked by ambient noise.
Bellmann et al. (2023
[…truncated; see source link]Indexed from Federal Register on September 24, 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.