Notice2024-20541
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Phase 2 Construction of the Vineyard Wind 1 Offshore Wind Project off Massachusetts
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 16, 2024
Effective
October 1, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Vineyard Wind 1 LLC (Vineyard Wind 1) to incidentally harass marine mammals during the completion of construction activities associated with the Vineyard Wind 1 Offshore Wind Project in the northern portion of Lease Area OCS-A 0501 offshore of Massachusetts.
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[Federal Register Volume 89, Number 179 (Monday, September 16, 2024)]
[Notices]
[Pages 75654-75702]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-20541]
[[Page 75653]]
Vol. 89
Monday,
No. 179
September 16, 2024
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to Phase 2 Construction of the Vineyard Wind
1 Offshore Wind Project off Massachusetts; Notice
Federal Register / Vol. 89 , No. 179 / Monday, September 16, 2024 /
Notices
[[Page 75654]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD935]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Phase 2 Construction of the
Vineyard Wind 1 Offshore Wind Project off Massachusetts
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Vineyard Wind 1 LLC (Vineyard Wind 1) to incidentally harass marine
mammals during the completion of construction activities associated
with the Vineyard Wind 1 Offshore Wind Project in the northern portion
of Lease Area OCS-A 0501 offshore of Massachusetts.
DATES: This authorization is effective from October 1, 2024 through
September 30, 2025.
ADDRESSES: Electronic copies of the application and supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In case of problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either an
authorized is proposed or, if the taking is limited to harassment, a
notice of a proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
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). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the monitoring and
reporting of the takings. The definitions of all applicable MMPA
statutory terms cited above are included in the relevant sections
below.
Summary of Request
On December 15, 2023, NMFS received a request from Vineyard Wind 1
for an IHA to take marine mammals incidental to Phase 2 construction of
the Vineyard Wind 1 Offshore Wind Project off Massachusetts,
specifically wind turbine generator (WTG) monopile foundation
installation, in the northern portion of Lease Area OCS-A 0501.
Vineyard Wind 1 completed installation of 47 WTG monopiles and one
electrical service platform (ESP) jacket foundation in 2023 under an
IHA issued by NMFS on June 25, 2021 (86 FR 33810) with effective dates
from May 1, 2023 through April 30, 2024. Due to unexpected delays,
Vineyard Wind 1 was not able to complete pile driving activities before
the expiration date of the current IHA (April 30, 2024); thus, Vineyard
Wind 1 requested take of marine mammals incidental to installing the
remaining 15 monopiles to complete foundation installation for the
Project. In total, the Project will consist of 62 WTG monopiles and 1
offshore substation.
Following NMFS' review of the December 2023 application, Vineyard
Wind 1 submitted multiple revised versions of the application, and it
was deemed adequate and complete on March 13, 2024. The Vineyard Wind 1
request was for take of 14 species of marine mammals, by Level B
harassment and, for 6 of these species, Level A harassment. Neither
Vineyard Wind 1 nor NMFS expect serious injury or mortality to result
from this activity and, therefore, an IHA is appropriate.
Vineyard Wind 1 previously conducted high resolution geophysical
(HRG) site characterization surveys within the Lease Area and
associated export cable corridor in 2016, 2018-2021, and during the
2023 construction season from June-December (ESS Group Inc., 2016;
Vineyard Wind, 2018, 2019; EPI Group, 2021; RPS, 2022; Vineyard Wind,
2023a-f). During the 2023 construction season, NMFS coordinated closely
with Vineyard Wind 1 to ensure compliance with their IHA. In a few
instances, NMFS raised concerns with Vineyard Wind 1 regarding their
implementation of certain required measures. NMFS worked closely with
Vineyard Wind 1 throughout the construction season to course correct,
where needed, and ensure compliance with the requirements (e.g.,
mitigation, monitoring, and reporting) of the previous IHA. Information
regarding their monitoring results may be found in the Estimated Take
of Marine Mammals section.
Description of the Specified Activity
Overview
Vineyard Wind 1 plans to construct and operate an 800-megawatt (MW)
wind energy facility, the Project, in the Atlantic Ocean in Lease area
OCS-A 0501, offshore of Massachusetts. Altogether, the project will
consist of up to 62 offshore WTGs, 1 ESP, an onshore substation,
offshore and onshore cabling, and onshore operations and maintenance
facilities. The onshore substation and ESP are now complete.
Installation of 47 monopile foundations was completed under the
previous IHA (86 FR 33810, June 25, 2021), effective from May 1, 2023
through April 30, 2024. However, due to unexpected delays, Vineyard
Wind 1 was not able to complete pile driving activities before the
expiration date of the IHA (April 30, 2024). Take of marine mammals, in
the form of behavioral harassment and limited instances of auditory
injury, may occur incidental to the installation of the remaining 15
WTG monopile foundations due to in-water noise exposure resulting from
impact pile driving. The remaining 15 monopile foundations will be
installed within a Limited Installation Area (LIA) (64.3 square
kilometers (km\2\; 15,888.9 acres)) within the Lease Area (264.4 km\2\
(65,322.4 acres)). Installation of the remaining 15 monopile
foundations is expected to occur in 2024, but could also occur in 2025.
Specific Geographic Region
The 15 remaining piles will be installed within a Limited
Installation
[[Page 75655]]
Area (LIA) occupying a portion of the Wind Development Area (WDA)
within the Bureau of Ocean Energy Management (BOEM) lease area located
in Federal waters off Massachusetts (figure 1). At its nearest point,
the LIA is approximately 29 kilometers (km; 18.1 miles (mi)) from the
southeast corner of Martha's Vineyard and a similar distance from
Nantucket. Water depths in the WDA range from approximately 37-49.5
meters (m; 121-162 feet (ft)). Water depth and bottom habitat are
similar throughout the Lease Area (Pyc et al., 2018). Figure 1 shows
the LIA and planned locations for the remaining 15 monopiles to be
installed.
A detailed description of the specific geographic region and
planned construction activities is provided in the Federal Register
notice for the proposed IHA (89 FR 31008, April 23, 2024). Since that
time, no changes have been made to the planned activities. Therefore, a
detailed description is not provided here. Please refer to that Federal
Register notice for the description of the specific activities.
BILLING CODE 3510-22-P
[[Page 75656]]
[GRAPHIC] [TIFF OMITTED] TN16SE24.000
BILLING CODE 3510-22-C
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Vineyard Wind 1 was
published in the Federal Register on April 23, 2024 (89 FR 31008). That
notice described, in detail, Vineyard Wind's activities, the marine
mammal species that may be affected by the activities, and the
anticipated effects on marine mammals. In that notice, we requested
public input on the request for authorization described therein, our
analyses, the proposed authorization,
[[Page 75657]]
and any other aspect of the notice of the proposed IHA, and requested
that interested persons submit relevant information, suggestions, and
comments.
During the 30-day public comment period, NMFS received 87 total
comment letters, including letters from various non-governmental
organizations (Seafreeze, Ltd., Rand Acoustics, LLC., Long Island
Commercial Fishing Association (LICFA), Save Right Whales Coalition
(SRWC), Rand Acoustics, Inc., ACK Residents Against Turbines) and
members of the general public. We note that approximately 11 comment
letters followed one of 2 different generic template formats, in which
respondents provided comments that were identical or substantively the
same. NMFS has reviewed all public comments received on the proposed
issuance of the Vineyard Wind 1 Phase 2 IHA. All relevant substantive
comments and NMFS' responses are provided below. Comments that are out
of scope to NMFS' action of issuing the requested IHA (e.g., comments
regarding how unusual mortality events (UMEs) are determined to be
closed or requests for necropsy reports; declarations on the adequacy
of the previously issued IHA to Vineyard Wind) and comments indicating
general support for or opposition to offshore wind construction are not
relevant to the proposed action and therefore were not considered or
addressed here. We also provide no response to species or statutes not
relevant to our proposed action under section 101(a)(5)(D) of the MMPA.
The public comments and recommendations are available online at:
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-llc-construction-vineyard-wind-offshore-wind">https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-llc-construction-vineyard-wind-offshore-wind</a>. Please
see the comment submissions for full details regarding the
recommendations and supporting rationale.
Modeling and Take Estimates
Comment 1: A commenter suggested that NMFS and Vineyard Wind 1
should not operate under the assumption that Level B takes do not
result in injury or death. The commenter suggests that the IHA analysis
is deficient as behavioral disturbance resulting from the proposed
activities could result in auditory masking, disruption to navigational
ability and spatial orientation, splitting of mother calf pairs, and
increased stress and cortisol responses could lead to secondary deaths
due to entanglements, vessel strikes, and strandings. Another commenter
suggested that NMFS was authorizing take in the form of mortality and,
further, stated that North Atlantic right whales are on the brink of
extinction and a single additional death from construction activities
could be catastrophic.
Response: NMFS disagrees with commenters that the planned pile
driving activities would cause mortality or serious injury of marine
mammals, and this final IHA does not authorize mortality or serious
injury. The best scientific evidence available indicates that the
anticipated impacts from the specified activities potentially include
avoidance, cessation of foraging or communication, temporary threshold
shift (TTS) and permanent threshold shift (PTS), stress, masking, etc.
(as described in the Potential Effects of Specified Activities on
Marine Mammals and Their Habitat section in the proposed IHA Federal
Register notice (89 FR 31008, April 23, 2024). Further, as described in
the NID section, there is no evidence to suggest that these authorized
impacts (characterized as harassment), at the magnitude and severity
anticipated to result from these activities, would lead to impacts on
reproduction or survival of any individual North Atlantic right whale
(NARW) or other marine mammals, much less mortality.
In addition, NMFS emphasizes that there is no evidence that noise
resulting from offshore wind development-related specified activities
would cause increased risk of marine vessel strikes, entanglements, or
mammal strandings. NMFS acknowledges that whales may temporarily avoid
the area where the specified activities occur. However, NMFS does not
anticipate, based on the best available science, that whales will
abandon their habitat or be displaced in a manner that would result in
a higher risk of vessel strike or entanglement, as suggested by a
commenter, and the commenter does not provide evidence that either of
these effects should be a reasonably anticipated outcome of the
specified activity. The primary activity that is anticipated to result
in temporary avoidance of the otherwise used habitat is foundation
installation pile driving. Not only would this activity be limited to
times of year when North Atlantic right whale presence is lower, pile
driving would be intermittent, and only occur for a limited time over
the course of 1 year. Together, these factors further reduce the
likelihood that this species would be in close enough proximity to the
activity to engage in avoidance behavior to the degree it would move
into an area of risk (which would be closer to shore) that it could be
struck by another vessel or experience entanglement.
Comment 2: Multiple commenters have expressed general concern for
impacts to marine mammals, specifically to North Atlantic right whales,
indicating that there are too many takes proposed for authorization and
the IHA should be put on hold until more is known about impacts of
offshore wind construction activities to North Atlantic right whales. A
commenter suggests that estimated take by Level A harassment for North
Atlantic right whales should be analyzed as modeled exposure estimates
were greater than zero. Another commenter indicates that every attempt
must be made to protect North Atlantic right whale calves from the risk
of TTS and that pile driving should shut down for the remainder of a
day if a mother and calf were to enter a clearance or shutdown zone.
Response: NMFS appreciates the commenters' general concern for
marine mammals and specifically for North Atlantic right whales and, in
general, acknowledges the need for additional data regarding the
impacts of offshore wind construction activities on North Atlantic
right whales; but disagrees that Level A harassment of NARW will result
from the activity or that the IHA should be put on hold until more is
known. NMFS is required to consider the best available science when
assessing potential impacts and cannot delay authorization of an IHA
until additional data is available. While there was a very small amount
of Level A harassment modeled, the model is conservative for both Level
A harassment and Level B harassment, as it does not take into account
that Vineyard Wind 1 will be required to monitor and delay or shut down
pile driving activities if a North Atlantic right whale is visually
sighted at any distance by the pile driving protected species observers
(PSOs) or acoustically detected within the 10 km passive acoustic
monitoring (PAM) clearance and shutdown zone. As described in the
proposed IHA, from November 1 through December 31 (when Vineyard Wind 1
would be installing piles), if a North Atlantic right whale (not just a
mother/calf pair) is detected either via real-time PAM or vessel-based
surveys at any distance from the pile driving location, pile driving
must be delayed until the ``follow-up vessel-based survey'' described
in their Pile Driving Monitoring Plan has been completed. Moreover, if
three or more North Atlantic right whales are observed, pile driving
will be delayed until the following day. These conservative measures
were included in the proposed
[[Page 75658]]
IHA in recognition that North Atlantic right whales are more likely to
be foraging in the area during November and December and that
aggregations of North Atlantic right whales are more likely to remain
in an area. The commenters' suggestion to delay pile driving until the
next day if a mother and calf pair is observed is not warranted in
November and December given the other extensive mitigation measures in
place and the fact that data do not suggest mother and calf pairs
remain in the area (Quintana-Rizzo et al., 2021). Delaying pile driving
would extend the project later into December which could result in more
impacts as whale density increases throughout the winter (i.e., the
later in December, the more whales are likely to be present). Moreover,
delaying the project is not practicable as Vineyard Wind is installing
the 15 remaining piles in 2024 but must cease pile driving after
December 31. Given these mitigation measures and the extensive related
monitoring efforts designed to detect North Atlantic right whales for
mitigation, NMFS does not anticipate and has not authorized any take by
Level A harassment for North Atlantic right whales. The required
measures reduce the risk of TTS for any North Atlantic right whale.
Accordingly, as described in the Federal Register notice for the
proposed IHA (89 FR 31008, April 23, 2024), the final IHA assumes that
the mitigation efforts will be effective at reducing the potential for
Level A harassment calculated in the density-based models as,
specifically, the small number of instances in which a North Atlantic
right whale was modeled to approach pile driving at a distance
associated with exposure above the Level A harassment threshold, would
not be expected to occur given the anticipated effectiveness of
clearance and shutdowns in preventing exposure at notably greater
distances and lower levels. We also note that while the scientific
literature documents marine mammals are likely to avoid loud noises
such as pile driving (e.g., Brandt et al., 2016; Nowacek et al., 2004),
avoidance was not quantitatively considered in the take estimates
(although NMFS reasonably predicts this natural behavior will further
reduce the potential for Level A harassment). NMFS recognizes that the
key to effective mitigation is effective monitoring and the ability to
detect marine mammals so that mitigation measures, such as delay to
commencement of pile driving and shutdown should pile driving be
occurring, may be implemented. Vineyard Wind 1 is required to undertake
extensive monitoring to maximize the ability to detect marine mammals
with at least 9 PSOs monitoring for marine mammals before, during, and
after pile driving. The reduction to the Level A harassment density-
based take estimate appropriately reflects and acknowledges the
monitoring and mitigation efforts, including the placement of three
PSOs on the pile driving platform and dedicated PSOs vessel(s) and PAM.
Comment 3: A commenter indicates that estimated take by Level B
harassment for common dolphins should not be adjusted per the AMAPPS
average group size (30 dolphins), but rather per the PSO data collected
by Vineyard Wind 1 during HRG surveys (10 dolphins) as this PSO data is
more appropriate. The commenter further notes that there is no
information indicating that Vineyard Wind 1 had difficulty staying
within the take limits for common dolphins for the 2023 IHA.
Response: NMFS disagrees that an average group size estimate of 10
for common dolphins, based upon local PSO data, is more appropriate for
adjusting the estimated take by Level B harassment for common dolphins
than the AMAPPS group size of 30. The commenter references PSO data
collected by Vineyard Wind 1 during HRG surveys, yet does not provide
detail on the PSO report(s) upon which this data is based upon. The
most recent Vineyard Wind 1 PSO report describes sighting 29 groups and
a total of 717 common dolphins during the 2023 construction period,
with an average group size of 24.7 dolphins (RPS, 2024). This estimate
closely aligns with the average group size of 30 common dolphins from
the AMAPPS dataset (Palka et al., 2017; 2021), which NMFS has
determined to be the best available data and most robust dataset for
adjusting take estimates due to the standardized consistent effort and
large dataset sample size. The large sample size contained in the
AMAPPS dataset accounts for any variability in group size that may
occur between observed common dolphin groups. Therefore, NMFS has
determined that the AMAPPS average group size of 30 is most appropriate
for adjusting take by Level B harassment for common dolphins in this
analysis.
Comment 4: Multiple commenters suggest that NMFS should consider
exposure to noise from vessel propulsion, thrusters, and jet trenching
with scour protection as constituting behavioral harassment or that
NMFS should undertake an analysis identifying the potential for take by
Level B harassment from operating offshore wind construction vessels,
including the use of dynamic positioning (DP) thrusters, and jet
trenching, and scour protection.
Response: NMFS analyzed the potential for various sources of noise
to result in take of marine mammals and concludes that take from vessel
propulsion, DP thrusters and jet trenching during Vineyard Wind 1's
activities is not likely. Further, as noted below in Comment 5,
mitigation requirements to further lessen any potential for impacts are
included. On July 29, 2024, Vineyard Wind 1 confirmed to NMFS that
scour protection activities are complete for the project and therefore
this activity is not discussed further.
On a typical foundation, WTG, and inter-array cable installation
day, Project vessels within and around the Lease Area may include a
heavy lift pile installation vessel (the Orion), two Big Bubble Curtain
(BBC) support vessels, two safety vessels, two crew transfer vessels,
two accommodation vessels, one jack-up vessel installing monopile
foundations, one pipe-burying vessel installing array cables, and one
service operating vessel supporting foundation installation. During
pile driving operations with favorable weather conditions, the Orion
thrusters typically operate at approximately 25 percent capacity with a
maximum capacity (1100 kW/4,500 kW). Thrusters may operate at higher
capacity during higher wind speeds, waves, and currents.
In general, the Orion would be positioned at each pile driving
location until after the pile is installed, after which time it would
slowly transit at 10 kn (11.5 mph) or less (per the Construction and
Operations Plan (COP) condition that vessels within the wind
development area must travel at 10 kn (11.5 mph) or less at all times)
to the next site. Because operating thrusters is inefficient with
respect to cost due to fuel usage, the thrusters are typically engaged
only when necessary to maintain position at the pile site or for safety
reasons (e.g., during rough weather).
Inter-array cables would be buried using a jet trencher. Noise
emitted by jet trenching activities is broadband and generally
consistent with that produced from routine vessel operations (Nedwell
et al., 2003).
NMFS' generalized 120-dB acoustic threshold for exposures to
continuous noise is guidance to help predict when marine mammals will
likely respond in a manner that constitutes Level B harassment and
estimate how many marine mammals are likely to respond
[[Page 75659]]
in that manner; contrary to the suggestion of the commenter, it is not
something that NMFS needs to ``enforce.'' As described in the proposed
IHA notice, NMFS generally predicts that marine mammals are likely to
be affected in a manner considered to be Level B harassment when
exposed to underwater anthropogenic noise above 120 dB (RMS SPL) for
continuous sources (e.g., vessel noise considered here). However,
contextual factors and qualitative parameters play an important role in
determining the potential for take and should be considered as well
when determining the likelihood of incidental take. As described in the
proposed IHA notice, the potential for behavioral response to an
anthropogenic source can be highly variable and context-specific
(Ellison et al., 2012). In addition to received sound level, factors
such as activity state, the novelty of a sound, and distance between
the sound source and the receiver may influence whether an animal
exhibits a behavioral response (Ellison et al., 2012). As NMFS has
previously articulated, there are situations in which other contextual
factors may appropriately support a determination that take is
unlikely, even if an animal is exposed to levels above the behavioral
harassment threshold.
NMFS acknowledges that, in limited cases, take of marine mammals by
Level B harassment has been authorized incidental to vessel-related
activities such as tugging and positioning activities that emit
continuous noise into the underwater environment for extended periods
of time (e.g., 87 FR 62364, October 14, 2022). However, in recent cases
where NMFS authorized take for these activities, the take was requested
by an applicant and NMFS made a case-specific decision based on the
specific circumstances, explaining the conservative nature of the
analysis and/or discussing specific factors other than the received
level alone that contributed to the decision. In the cited case, for
example, NMFS considered the potential for Level B harassment from
tugging and positioning activities in a concentrated area for an
extended period of time, in an area inhabited by a small resident stock
of marine mammals in a fairly enclosed body of water (Cook Inlet), and
authorized take, by Level B harassment, for tugging and positioning
activities.
While NMFS recognizes elevated noise levels from vessels, the
determination of whether harassment occurs in response to exposure to
activities other than pile driving is based on several factors.
Monitoring reports received under earlier take authorizations show few,
if any, behavioral responses during activities involving thruster use
and other broadband or continuous construction noises similar to noise
levels at or below typical vessel levels. For example, during the
Neptune Liquefied Natural Gas (LNG) pipeline operations project in
Massachusetts Bay from July 1, 2009, through June 30, 2010, twenty-six
marine mammals were sighted, and twenty of these marine mammals entered
the Level B harassment zone while construction activities, including
thruster use, were taking place. None of the marine mammals observed
within the Level B harassment zone exhibited ``any modifications to
their behavior that could be directly and definitively related to the
construction activities'' (ECOES Consulting, Inc., 2010). In 2015,
Northeast Gateway L.P., (Northeast Gateway) requested take by Level B
harassment incidental to Deepwater port repair activities occurring in
Massachusetts Bay, including active use of DP thrusters. NMFS
authorized the requested take incidental to the specified activities.
The only two marine mammal sightings that occurred during the effective
period of the authorization took place while vessels were actively
using thrusters, and no behaviors that would suggest harassment were
observed (TetraTech, 2017).
NMFS acknowledges that noise emitted by Vineyard Wind project-
related vessels and their DP thrusters, as well as jet trenching
activities, may sometimes result in marine mammals being exposed to
received levels above 120 dB and that vessel noise impacts the
soundscape. However, as described in the Behavioral Effects section of
the Potential Effects of Specified Activities on Marine Mammals and
their Habitat of the proposed IHA notice, the likelihood of Level B
harassment is not based upon received level alone. There are a variety
of studies (Nowacek et al., 2004; Kastelein et al., 2012 and 2015)
indicating that contextual variables play a very important role in
response to anthropogenic noise, and the severity of effects are not
necessarily linear when compared to a received level (RL). Nowacek et
al. (2004) found that North Atlantic right whales exposed to alert
signals and approaching vessel sounds exhibited a variety of responses.
While 5 of the 6 whales altered their behavior in response to the alert
signal, the whales did not exhibit a response to a vessel noise
recording which simulated a 120 m container ship passing within 100
meters (m), equating to approximately 135 dB received level, or the
noise of transiting vessels passing within 1 nautical mile (nm) from
the whales (Nowacek et al., 2004). During Vineyard Wind 1's 2023
construction activities (RPS, 2024), PSOs observed more baleen whales,
engaged in various activity states, in the Project Area while the
impact hammer was off (77 detection events) than when it was on (22
detection events), although multiple vessels and DP thrusters were
present and likely engaged while the impact hammer was off. These
observations suggest that noise emitted from vessels, including those
operating DP thrusters and jet trenching activities, is notably less
likely to elicit avoidance and other behavioral responses from marine
mammals that constitute Level B harassment. Given marine mammal
exposure to extensive vessel traffic in the Atlantic Ocean, including
from major ports and major shipping lanes near the project site,
habituation to similar noise from vessels, thrusters, and trenching may
be expected. As described in the proposed IHA notice, habituation can
occur when an animal's response to a stimulus wanes with repeated
exposure, usually in the absence of unpleasant associated events
(Wartzok et al., 2003) as is typically considered the case with
exposure to noise from vessel propulsion, noting that the typical
predictable movement and operation of vessels also influences the lower
likelihood of behavioral disturbance. In the case of the Vineyard Wind
1 Project, the marine mammal species potentially affected by the
project inhabit areas subject to very high, consistent ship traffic
(Hatch et al., 2008; Van Parijs et al., 2023).
Based on the available data, project-related vessels, including
those operating thrusters, are not significantly louder than large
cargo vessels marine mammals in the project area are accustomed to
encountering. The median rms sound pressure level (SPL) measured at a
range of 750 m from the piling (the Orion), and support vessels prior
to pile driving of the first 13 piles from the Vineyard Wind 1 2023
construction activities measured approximately 134 dB (K[uuml]sel et
al., 2024 Nedwell et al. (2003) backcalculated SPL source levels for
jet trenching activities to be 178 dB, assuming a propagation loss of
22logR and recording 160 m from trenching activity. A reasonable
estimate for source level of a container ship, estimated from the bulk
data of MacGillivray and de Jong (2021), is approximately 180 dB. Using
practical spreading, this source level yields
[[Page 75660]]
approximately 137 dB at a range of 750 m.
Although lack of detected behavioral disruption during previous
monitoring described above does not prove there are no undetected
responses that may qualify as Level B harassment, these findings
clearly suggest that marine mammals continue their regular behavior
patterns in the presence of vessels, including those operating DP
thrusters for the project. In consideration of the discussion above, we
conclude that exposure to vessel noise for this Project, including from
DP thrusters and trenching activities, is not likely to result in Level
B harassment simply based on exposure above the 120 dB threshold.
Comment 5: Commenters suggest the NMFS should mitigate for
behavioral take that may occur incidental to exposure to noise from
vessels, thrusters, and trenching that exceed NMFS' behavioral
harassment threshold for continuous noise (120 dB rms).
Response: As described in Comment 4, NMFS disagrees that exposure
to vessel noise from the Project, including from DP thrusters and
trenching activities, is likely to result in take under the MMPA (see
response to Comment 4 above). However, NMFS does agree that vessel
quieting, in general, is an important tool for protecting marine
species and acoustic habitat. Vineyard Wind has committed to minimally
use DP thrusters such that unnecessary use of thrusters and emission of
continuous noise into the underwater environment is avoided. In
addition, Vineyard Wind is required to abide by any existing vessel
speed regulations as well as vessel strike avoidance measures in the
IHA. When vessels are required to maintain a 10 knot (kn) (11.5 mph)
speed restriction (see Vessel Strike Avoidance Measures in the
Mitigation section), continuous noise released into the environment
from the vessels is also reduced. The relationship between vessel speed
and its associated underwater radiated noise is well established and it
is generally assumed that noise levels depend on vessel speed as 60
log10(V) (MacGillivray and de Jong, 2021), where V is the vessel speed.
Further, speed limitations have been shown to be an effective tool in
mitigation, as even small speed reductions of many vessels are capable
of substantially reducing noise impacts to marine mammals (Findlay et
al., 2023).
Comment 6: Commenters note that it is inappropriate for Vineyard
Wind 1 to estimate its own impacts, analyze its own impacts, and then
restrict IHA public document estimates to what it has determined to be
appropriate.
Response: NMFS disagrees that the process of Vineyard Wind 1
estimating and analyzing impacts of the proposed construction activity
is inappropriate. NMFS' implementing regulations require applicants to
include in their request a detailed description of the specified
activity or class of activities that can be expected to result in
incidental taking of marine mammals, 50 CFR 216.104(a)(1), as well as
an analysis of the impacts of the activity on marine mammal species or
stocks and their habitat. Thus, the ``specified activity'' for which
incidental take coverage is being sought under section 101(a)(5)(D) is
generally defined and described by the applicant. NMFS evaluates the
applicant's analysis using the best available information and makes the
necessary findings and determinations on how the proposed activities
may impact marine mammals, their habitats, and availability of marine
mammals for subsistence uses, if relevant. As indicated in the proposed
IHA, based on our independent evaluation, NMFS concurred with the
analysis methods and results presented by Vineyard Wind 1 and carried
them forward in the proposed IHA. NMFS is required to post proposed
IHAs for public comment in addition to supporting information. NMFS
also posts all monitoring reports (including any past monitoring
reports for past authorizations) on our website: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. As the required
documentation mentioned above has been posted for the Vineyard Wind IHA
request, NMFS disagrees that ``IHA public documents'' have been
restricted.
Comment 7: Commenters request that the pile driving noise model,
with all assumptions, be made public along with any technical
information relevant to the initial noise exceedances during pile
driving in 2023.
Response: Relevant information on how the pile driving noise model
works, assumptions, and technical information related to sound field
verification (SFV) results were publicly available. Of note, only the
modeled distances to the Level A harassment thresholds were applied to
this IHA; the distance to the Level B harassment threshold is based on
in situ data collected during foundation installation in 2023. A
description of the pile driving source and propagation models used to
estimate distances to PTS thresholds was made publicly available as an
appendix within the Vineyard Wind 1 Construction and Operations Plan
(COP), in the form of an acoustic modeling report (Pyc et al., 2018)
and is available online as Appendix III in the COP at: <a href="https://www.boem.gov/sites/default/files/renewable-energy-program/State-Activities/MA/Vineyard-Wind/Vineyard-Wind-COP-Volume-III-Appendix-III-M.pdf">https://www.boem.gov/sites/default/files/renewable-energy-program/State-Activities/MA/Vineyard-Wind/Vineyard-Wind-COP-Volume-III-Appendix-III-M.pdf</a>. While source and propagation models are proprietary (most
developed by JASCO) and not available to the public, Appendix A of Pyc
et al. (2018) includes references describing their theory of
calculation. Technical information and results related to SFV conducted
during pile driving in 2023, upon which the Level B threshold analysis
for the current IHA is based, are also publicly available on NMFS'
website.
Comment 8: Commenters indicate that NMFS and Vineyard Wind 1 have
underestimated both impulsive and continuous noise levels and suggest
that the actual exposure to noise levels from pile driving is greater
than NMFS acknowledges in its existing protective measures. Commenters
request that NMFS conduct a reassessment of RMS computation methods.
Response: NMFS disagrees with the commenters that noise levels are
underestimated and a reassessment of RMS computation methods is
necessary. NMFS continuously assesses its analysis based on new
science, including acceptable and ideal methods for calculating
underwater sound metrics. Our current methodology is to use a 90
percent energy window for computing RMS sound pressure levels for
impulsive sources (Madsen, 2005). The 90 percent energy envelope used
by NMFS is a commonly used convention (Merchant et al., 2015), and is
even stated as the recommended energy window in the ISO standard
`Underwater acoustics--Measurement of radiated underwater sound from
percussive pile driving' (ISO 18406, 2017). Importantly, the distance
to the Level B threshold is based upon in situ SFV measurements, and
not modeling. Finally, there is no take expected or authorized from
continuous sources.
Comment 9: A commenter notes that condition 3(b) of the proposed
IHA indicates that no take by Level A harassment is authorized,
however, proposed take by Level A harassment is listed for species in
table 1.
Response: NMFS appreciates the commenter's recognition that take by
Level A harassment was included in table 1 yet not described in
condition 3(b) of the IHA. This inconsistency has been corrected in the
final IHA.
[[Page 75661]]
Mitigation
Comment 10: Multiple commenters stated that bubble curtains are not
an efficient mitigation measure as bubble curtains do not attenuate
sounds at lower frequencies and therefore are not effective in
preventing take by Level A harassment of North Atlantic right whales. A
commenter further indicated that this lack of mitigation should be
incorporated into take calculations. Commenters also cite seabed
refraction as a mechanism for sound to circumvent bubble curtains and
impact marine mammals, thus resulting in the use of bubble curtains
being insufficient as a mitigation measure. Commenters further note
that since bubble curtains will be used as a mitigative measure yet are
not effective for mitigation, NMFS will not be able to measure impacts
to ESA-listed baleen whale species.
Response: In the Federal Register notice for the proposed IHA (89
FR 31008, April 23, 2024), NMFS described the best available science,
which supports the assumption that attenuation can be reliably achieved
using noise attenuation systems such as a double bubble curtain. The
commenters indicated that sound may circumvent bubble curtains (such as
through seabed refraction), citing Rand (2023). 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.
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. NMFS agrees that a fraction of the
sound does travel through the sediment and rejoin the water column
beyond the extent of the bubble curtain, and therefore is not
attenuated by the bubble curtain. NMFS is not aware of any noise
mitigation system available which directly deals with sediment-borne
noise. Despite this limitation, bubble curtains have been shown to be
highly effective in mitigating sound in the water column (Bellmann,
2021; Caltrans, 2020).
Comment 11: One commenter notes that while the proposed IHA
includes language about soft starts as a mitigation measure, there is
no evidence for the efficacy of this measure. The commenter further
notes that the Vineyard Wind 1 Biological Opinion states that there is
insufficient evidence that the soft start measure would alter take
estimates.
Response: NMFS disagrees with the commenter that there is no
evidence for the efficacy of soft start as a mitigation measure, and
also notes that the soft start measure was not used as a basis for
altering take estimates. A soft start, in which an initial set of
hammer strikes is performed at a reduced energy level, is designed to
provide a warning to marine mammals and a chance to leave the pile
driving area before the hammer begins operating at full capacity. The
soft start method has been found to reduce the cumulative sound
exposure of animals in an area (Ainslie and von Benda-Beckmann, 2012).
Ainslie and von Benda-Beckmann (2012) modeled the efficacy of the soft
start method and found that soft start can be an effective mitigation
measure when the animals respond to the sound source by swimming away.
Various species of marine mammals have been observed to behaviorally
respond to soft starts (also called ramp-ups) such that the risk of PTS
and TTS is decreased (e.g., Stone et al., 2017) and modeling studies
have demonstrated similar effectiveness (von Benda Beckmann, et al.,
2013). As described in the Potential Effects of Specified Activities on
Marine Mammals and their Habitat in the Federal Register notice of the
proposed IHA, marine mammals may avoid areas of impact pile driving
(e.g., Tougaard et al., 2009; D[auml]hne et al., 2013; Thompson et al.,
2013; Russell et al., 2016; Brandt et al., 2018).
Also, the Biological Opinion specifies that while NMFS is ``not
able to predict the extent to which the soft start will reduce the
number of whales exposed to pile driving noise or the extent to which
it will reduce the duration of exposure. Therefore, while the soft
start is expected to reduce effects of pile driving, we are not able to
modify the estimated take numbers to account for any benefit provided
by the soft start.'' This language appropriately expresses the expected
benefits of soft start, while acknowledging that they are difficult to
quantify, which is why there are no adjustments to take numbers based
on the fact that soft start is required.
Comment 12: Multiple commenters cite the Rand Acoustics report
(Rand, 2024) as calculating acoustic impacts greater than estimated by
Vineyard Wind 1 and indicating the need for larger clearance zones.
Rand Inc., (2024) asserts that pile driving noise rivals the loudness
and frequency range of seismic air gun arrays. Commenters claim that
the proposed clearance and shutdown zones are insufficient to
effectively reduce impacts to marine mammals because sound exposure, in
terms of impulsive and continuous noise levels, is underestimated.
Commenters indicate that more research on marine mammal avoidance of
impulsive sound should be incorporated into the analysis to determine
how to expand mitigation zones, and that the current mitigation zones
for endangered species are not large enough. One commenter further
notes without justification that all mitigation zones, as well as
clearance and shutdown procedures, proposed for North Atlantic right
whales should be applicable to all endangered marine mammal species,
specifically the sperm whale, fin whale, and sei whale.
Response: NMFS reviewed the Rand Inc. (2024) report and found that
the initial modeling done for Vineyard Wind 1 considered source levels
reasonably consistent with both Rand's results and the Vineyard Wind 1
2023 SFV report. The extensive measurements performed during the 2023
IHA for Vineyard Wind 1 construction allowed NMFS an opportunity to
review data collected at several distances from the source. Based on
those data, NMFS has determined that the distances to the Level A and
Level B harassment thresholds (and any associated mitigation zones)
during the 2024 Phase 2 pile installation activities are reasonable
estimates based on the best available science. The results show that
for Level A harassment, the model predicted acoustic ranges were on
average conservative. Therefore, considerations related to Level A take
based on the initial modeling were validated by the 2023 SFV campaign.
For Level B, the IHA analysis here was based directly on applicable
measurements from the 2023 campaign. Thus, with regard to impact pile
driving, NMFS's acoustic ranges and take estimates are well supported
by extensive field measurements, are consistent with the data presented
in Rand (2024), and therefore do not warrant revisions.
NMFS disagrees that expanded shutdown and clearance zones are
necessary under the least practicable adverse impact standard for
marine mammal species or stocks, including those listed under the ESA.
As described in the Proposed Mitigation section in the Federal Register
notice for the proposed IHA and the Mitigation section of this notice,
there is a required shutdown if a North Atlantic right whale is
visually observed at any distance or acoustically detected within the
10 km PAM monitoring zone. In
[[Page 75662]]
addition, impact pile driving may not begin if a North Atlantic right
whale is visually sighted or acoustically detected within the pre-start
clearance zone at any distance during the 30-minute clearance period.
NMFS neither anticipates nor authorizes any take by Level A harassment
of North Atlantic right whales.
Some mitigation measures in the IHA are centered around North
Atlantic right whales because of the species status and general fitness
of individuals. NMFS acknowledges that seasonal closures are based on
North Atlantic right whale densities and that the maximum density
months for other ESA-listed species may occur outside of the seasonal
closures. Other enhanced mitigation for North Atlantic right whales
includes delaying or shutting down pile driving should a North Atlantic
right whale be observed at any distance by a foundation installation
PSO or acoustically detected within the PAM monitoring zone. If
clearance and shutdown zones were increased for other ESA-listed
species, it would result in longer construction time frames, prolonging
the time periods over which marine mammals may be exposed to
construction-related stressors, as well as creating impracticable
operational scenarios for the applicant. It has been modeled and is
logical that projects should be constructed as quickly as possible
during times when the potential for a species of concern to be present
is lowest (Southall et al. 2021). Accordingly, NMFS has determined that
the current clearance and shutdown zones together with other mitigation
measures effect the least practicable adverse impact on the affected
species or stocks of marine mammals.
Comment 13: A commenter states that the proposed shutdown
procedures are not strict enough and should be more comparable to oil/
gas authorizations that require shutdown for live marine mammal
strandings and ``millings within 50 km of survey operations.''
Response: NMFS agrees that the addition of the measure the
commenter recommended is appropriate and has added a measure to the IHA
for Vineyard Wind 1 to cease pile driving in the event of a live
cetacean stranding (or near-shore atypical milling) event within 50 km
of the pile driving operations, where the NMFS Marine Mammal Stranding
Network is engaged in herding or other interventions to return animals
to the water.
Comment 14: While commenters acknowledge that time of year
restrictions on pile driving are effective mitigation measures,
multiple commenters suggested that the proposed seasonal restrictions
are insufficient as the restriction period does not account for North
Atlantic right whales, sperm whales, and fin whales in the Project Area
outside of those months. Commenters further note that endangered marine
mammal species are present in the Project Area year-round, especially
North Atlantic right whales during the late summer.
Response: NMFS has restricted foundation installation pile driving
from January through May, which represents the period when North
Atlantic right whales are most likely to be in the Project Area in
higher numbers and engaged in foraging behavior. A commenter indicated
that the seasonal restriction period of January through May does not
account for the heightened presence of North Atlantic right whales in
southern New England during the late summer (Quintana-Rizzo et al.,
2021). However, North Atlantic right whale presence during the summer
is typically closer to Nantucket Shoals (Quintana-Rizzo et al., 2021;
Van Parijs et al., 2023) and not concentrated within the lease area or
the LIA. In addition, North Atlantic right whale densities are highest
in the lease area and LIA from January through May (Roberts et al.,
2023), further supporting that period as an appropriate time frame for
implementing seasonal restrictions for North Atlantic right whales.
NMFS acknowledges that seasonal closures are based on North Atlantic
right whale densities and the maximum density months for other ESA-
listed species, such as fin whales and sperm whales, and stocks
experiencing UMEs, such as minke whales, may occur outside of the
seasonal closures (table 9). However, no UMEs are active for ESA-listed
marine mammals other than the North Atlantic right whale and there is
other mitigation for those species. See Comment 12 for additional
detail on implementing additional mitigation measures for Endangered
Species Act (ESA)-listed and species and stocks experiencing UMEs.
Seasonal restrictions are not in place from June through December
because North Atlantic right whale densities are lower. During those
months pile driving may take place, Vineyard Wind 1 is required to
implement mitigation measures during pile driving to reduce impacts to
marine mammals. These mitigation measures include clearance and
shutdown zones, visual and acoustic monitoring of zones by PSOs and PAM
operators, and use of noise attenuation devices to reduce impacts to
marine mammals. These measures are consistent with those required and
successfully implemented under previous incidental take authorizations,
as described in the Mitigation section. Furthermore, VW1 is required to
establish stronger mitigation measures for endangered species, such as
fin whales and sperm whales; for example those species have larger
clearance and shutdown distances than other marine mammals.
During November and December, Vineyard Wind 1 will be required to
follow enhanced mitigation measures if impact pile driving occurs. From
November 1-December 31, if pile driving has been shut down or delayed
due to the presence of 3 or more North Atlantic right whales, pile
driving will be postponed until the next day. As December represents
the highest density month for North Atlantic right whale outside of the
January through May restriction, Vineyard Wind 1 will be required to
follow additional enhanced measures beyond those required in November.
In December, Vineyard Wind 1 must conduct, in addition to PAM, extended
surveys using the dedicated PSOs vessels prior to starting or resuming
pile driving as described in their Pile Driving Monitoring Plan. With
the application of these enhanced mitigation and monitoring measures in
November and December, impacts to NARW will be further reduced.
Accordingly, NMFS has determined that the seasonal restrictions,
together with other mitigation measures, effect the least practicable
adverse impact on marine mammals.
Comment 15: One commenter claims that as more research is needed on
marine mammal hearing, the precautionary principle should be employed
by expanding mitigation zones, increasing accountability of vessel
operators to offshore wind vessels, applying more checks and balances
to those conducting construction activities, and reviewing vessel
transcripts. The commenter specifically states that limited data on PTS
onset thresholds as a result of data coming from the same species and/
or same captive animals results in dependent data sets, and requests
that 6 month moratorium be placed on all east coast wind projects until
detailed study can be conducted by independent researchers.
Response: MMPA and its implementing regulations require that IHAs
be issued based on the best scientific evidence available, if the
required findings can be made. NMFS agrees with the commenter that
additional research will continue to improve our understanding of the
impacts of anthropogenic noise on marine mammal hearing, yet disagrees
[[Page 75663]]
that expanded mitigation and monitoring measures or a moratorium on
east coast wind projects are necessary under the least practicable
adverse impact standard. See Comment 26 for details on data related to
PTS onset thresholds. The IHA includes general conditions to hold
Vineyard Wind 1 and its designees (including vessel operators and other
personnel) accountable while performing operations under this IHA. In
addition to requiring Vineyard Wind 1 to abide by vessel strike
avoidance measures and a NMFS-approved marine mammal vessel strike
avoidance plan, Vineyard Wind 1 is also required to equip all vessels
with properly installed, operational Automatic Identification System
(AIS) device and report all Maritime Mobile Service Identity (MMSI)
numbers to NMFS. See Comment 12 for additional detail on expanding
mitigation zones. The required mitigation and monitoring measures
described in the Federal Register notice for the proposed IHA and this
notice were designed based upon the best available science. In terms of
a moratorium on east coast wind projects, it is beyond the scope of
NMFS' authority to place a moratorium on these projects as NMFS only
authorizes marine mammal take incidental to an activity (provided we
make the necessary findings) and not the activity itself.
Comment 16: One commenter notes that the vessel speed restriction
of traveling a maximum of 10 kn (11.5 mph) does not apply to crew
transfer vessels. The commenter suggests that these restrictions should
apply to crew transfer vessels as these vessels undertake the majority
of project trips.
Response: NMFS agrees with the commenter that the vessel speed
restriction of traveling a maximum of 10 kn (11.5 mph) should apply to
all project vessels in a transit corridor if PAM is not used to monitor
the transit corridor. NMFS included this measure in the Federal
Register notice for the proposed IHA as well as the final IHA.
Comment 17: A commenter notes that the IHA should be more specific
in defining the vessel transit corridor.
Response: NMFS appreciates the commenter's request to define the
vessel transit corridor. The transit corridor is defined as the route a
vessel takes from a port to the lease area and return. This definition
is provided in the Vessel Strike Avoidance Measures section of this
Federal Register notice as well as condition 5(b)(viii) of the IHA.
Monitoring, Reporting, and Adaptive Management
Comment 18: Multiple commenters claim that NMFS should require 100
percent on board agency enforcement coverage during the proposed
Vineyard Wind 1 construction activities instead of allowing self-
reporting and self-verification of acoustic impacts by Vineyard Wind 1,
specifically regarding critically endangered species. The commenters
further note that NMFS should require enforcement personnel on board
project vessels or camera coverage of all offshore wind activity with
camera footage that is reviewed by NOAA's Office of Law Enforcement
(OLE). In order to verify that Vineyard Wind 1 adheres to all sound
attenuation measures, a commenter further recommends that NMFS place an
Office of Protected Resource ``observer'' on the vessel to confirm
sound attenuation for each monopile. A commenter also suggests that
NMFS hire a third-party safety officer to observe pile driving, confirm
pile refusal or use of lower hammer energies, and create a safety plan
for PSOs and PAM operators in the event of pile refusal.
Response: The IHA requires multiple mitigation and monitoring
measures to effect the least practicable adverse impact on affected
species or stocks of marine mammals, as well as extensive reporting
requirements that document compliance and observed marine mammal
responses to the activities by independent NMFS-approved PSOs. In terms
of vessel strike avoidance measures, NMFS maintains an Enforcement
Hotline for members of the public to report violations of vessel speed
restrictions. While it is beyond the scope of 101(a)(5)(D) of the MMPA
to include requirements of NMFS OLE personnel, the IHA includes two
provisions related to the commenters recommendation: one states that by
accepting the issued IHA, Vineyard Wind 1 consents to on-site
observation and inspections by Federal agency personnel (including NOAA
personnel) during activities this IHA covers, for the purposes of
evaluating the implementation and effectiveness of measures contained
within the IHA; the other states that it is prohibited to assault,
harm, harass (including sexually harass), oppose, impede, intimidate,
impair, or in any way influence or interfere with a PSO, PAM Operator,
or vessel crew member acting as an observer, or attempt the same. This
prohibition includes, but is not limited to, any action that interferes
with an observer's responsibilities, or that creates an intimidating,
hostile, or offensive environment and indicates that personnel may
report any violations to the NMFS Office of Law Enforcement.
NMFS is also not requiring additional observers to ``confirm sound
attenuation'' for each monopile. As described in both the Federal
Register notice for the proposed IHA and this notice, NMFS has included
requirements for sound attenuation methods that were previously
evaluated in SFV measurements conducted during Vineyard Wind 1
construction activities in 2023. Further, additional in situ SFV
measurements will be conducted to ensure that sound levels are at or
below those modeled (assuming 6 dB attenuation for Level A harassment)
or those measured and expected (for Level B harassment) in 2023. In
addition, Vineyard Wind 1 will be required to follow specific protocol
when conducting SFV measurements, as described in conditions 5(a)(xvi-
xxi) in the IHA, and report SFV measurements to NMFS Office of
Protected Resources within 48 hours of each foundation installation as
well as on a weekly, monthly, and annual basis. Frequent reporting will
ensure that NMFS is aware of any threshold exceedances and the measures
Vineyard Wind 1 would be implementing to ensure the Level A and Level B
harassment isopleths do not exceed those modeled or expected for
foundation installation.
Comment 19: One commenter expressed concern that NMFS should hold
Vineyard Wind 1 accountable for maintaining sound levels during
construction activities. The commenter further noted that submitting
final SFV measurements within 90 days of completing SFV is not
acceptable and removes accountability from Vineyard Wind1. The
commenter suggested that NMFS should require Vineyard Wind 1 to
complete the final results of SFV measurements within 48 hours of pile
driving completion for each pile, instead of 90 days, and future piles
should be dependent upon completion, review, and NMFS acceptance of
daily SFV reports. Another commenter suggested that each monopile
should be required to have its own SFV measurements registered
throughout pile driving with a NMFS observer who can monitor and stop
by pile driving, if necessary, until attenuation is achieved.
Response: NMFS agrees with the commenters that Vineyard Wind 1
should be held accountable for maintaining agrees with the commenters
that Vineyard Wind 1 should be held accountable for maintaining the
sound levels analyzed for the IHA during construction activities,
though, as described above in Comment 18, while
[[Page 75664]]
it is possible to measure the overall sound levels that include the
NAS, there is no way to specifically confirm a 6-dB sound reduction as
compared to an unattenuated pile. In situ measurements will continue to
be conducted to verify sound levels are at or below those modeled or
measured, as specified.
Although NMFS requires a SFV report to be submitted within 90 days
of activity completion, NMFS also requires Vineyard Wind 1 to review
SFV results within 24 hours and submit weekly, monthly, annual, and
situational reports. As described in the Federal Register notice for
the proposed IHA and this notice, Vineyard Wind 1 is required to
provide the initial results of the SFV measurements to NMFS in an
interim report after each foundation installation event as soon as they
are available and prior to a subsequent foundation installation, but no
later than 48 hours after each completed foundation installation event.
In addition, each monopile must be acoustically monitored either using
thorough SFV or abbreviated SFV. Again, it is not known if attenuation
is achieved until results are reviewed within 24 hours, however, if SFV
measurements exceed those distances that are modeled (Level A
harassment) or measured (Level B harassment), Vineyard Wind 1 must
notify NMFS and implement mitigative measures, as described in
condition 5(a)(xxi) of the IHA.
Comment 20: A commenter claims that it is insufficient to visually
and acoustically monitor for marine mammals for only 1 hour prior to
beginning construction activities. Another commenter further indicates
that NMFS should require two active PAM operators (instead of one) to
increase situational awareness and active monitoring of hydrophones
during the 60 minute pre-start clearance period.
Response: NMFS agrees with the commenter that monitoring more than
one hour prior to beginning construction is appropriate. In addition to
a 60 minute pre-start clearance period for visual observation and the
requirement for PAM operator(s) to actively monitor hydrophones for 60
minutes prior to commencement of construction activities, both the
proposed and final IHA include a requirement that Vineyard Wind 1 must
also review PAM data collected for at least 24 hours in advance of pile
driving activity to increase situational awareness of marine mammals in
the area. Davis et al. (2023) found that by increasing pre-construction
acoustic monitoring from 1 hour to 18 hours increased the likelihood of
detecting a North Atlantic right whale from 4 percent to 74 percent.
At least one PAM operator is required to actively monitor and
review PAM data from at least the past 24 hours to increase situational
awareness. However, the number of active on-duty PAM operators must be
sufficient to meet the requirements of the IHA. Vineyard Wind 1 is
required to submit a PAM Plan for NMFS approval, which will specify the
planned number of PAM operators that would be active to meet the IHA
requirements.
Comment 21: Commenters claim that PSOs have poor detection
capabilities and should not be relied upon for monitoring, most notably
in low visibility conditions. A commenter cited the Williams et al.
(2016) study, specifically noting that in the ``worst visibility
conditions'' PSO detection probability was near zero at 1,000 m and did
not exceed 50 percent until the distance is less than about 500 meters.
The same commenter also indicated that the ``overall efficacy of PSOs
is approximately 9 percent in detection'' and the ``overall efficacy''
of PAM ``is approximately 25 percent.'' A commenter further claims that
PAM and low visibility equipment (i.e., night vision goggles, infrared
devices) proposed for monitoring are not effective and offer unreliable
rates of detection, citing that PAM as a monitoring tool includes
numerous limitations such as detecting marine mammals when they are not
actively vocalizing and vocalizations of sufficient magnitude.
Response: NMFS disagrees that monitoring using a combination of
PSOs and PAM will not be effective at detecting marine mammals. As
described in the Federal Register notice for the proposed IHA, NMFS is
requiring that Vineyard Wind 1 employ both visual and PAM methods for
monitoring. Visual and PAM approaches are well understood to provide
best results when combined together (e.g., Barlow and Taylor, 2005;
Clark et al., 2010; Gerrodette et al., 2011; Van Parijs et al., 2021).
The use of PAM will augment visual detections for foundation pile
driving, especially for activities with the largest zones. NMFS is
requiring the use of PAM to monitor 10 km zones around the piles and
that the systems be capable of detecting marine mammals during pile
driving within this zone. For these reasons, NMFS finds that the suite
of visual and acoustic monitoring measures in the Federal Register
notice for the proposed IHA and carried forward in the IHA are based on
the best available scientific information and are effective at
detecting marine mammals.
We recognize that the distances at which marine mammals may be
observed are both species and weather dependent. The commenter relies
on Williams et al. (2016), in claiming that PSO detection probability
was near zero at 1,000 m, however, this detection probability was based
upon monitoring during poor visibility conditions. As visibility
conditions improved during the study, PSO detection probability
increased. Under this IHA, Vineyard Wind 1 is required to conduct
monitoring in a manner such that PSOs can visually monitor an area no
smaller than the minimum visibility zone (4,000 m; 13,123 ft). Pile
driving may not occur in any conditions (including poor visibility
conditions such as fog, rain, or darkness) if PSOs are not able to
sight marine mammals in this minimum visibility zone out to this
distance. During construction of Vineyard Wind 1 in 2023 and South Fork
Wind, PSOs observed baleen whales at ranges as distant as 4 km (13, 123
ft) and 23 km (75,459 ft), respectively (RPS, 2024; South Fork Wind,
2024). The commenter did not provide evidence to support claims the
minimum visibility zone could not be effectively monitored during good
weather conditions, and NMFS disagrees with the commenters that, during
good weather conditions, Vineyard Wind 1 would not be able to
effectively monitor the minimum visibility zone.
NMFS recognizes that visual detection may not be 100 percent
effective. Animals may be missed because they are underwater (i.e.,
availability bias) or because they are available to be seen but are
missed by observers (i.e., perception and detection biases) (e.g.,
Marsh and Sinclair, 1989). However, visual observation remains one of
the best available methods for marine mammal detection.
The commenter indicates that PAM is limited to only detecting
animals that are vocalizing, and vocalizations must be of ``sufficient
magnitude to surmount background noise'' and be detected at the
receiving station. NMFS acknowledges these limitations, however, 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. Real-time (or near real-time) stationary and
mobile PAM systems are currently being used to inform management
decisions and literature supports the effectiveness of real-time PAM at
detecting marine
[[Page 75665]]
mammals, including North Atlantic right whales (Ceballos et al., 2022;
Murray et al., 2022; Baumgartner et al., 2020; Baumgarnter et al.,
2019). In 2023, Vineyard Wind documented 253 acoustic detections of
protected species during the project (with and in the absence of pile
driving). Of the detections, 206 detections were unidentified dolphin,
45 detections of fin whales, and two detections of unidentified baleen
whales (RPS, 2024). Vineyard Wind 1 is required to submit a 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 final IHA requires 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.
Comment 22: A commenter indicates that all reports of endangered
species should be logged and reported to NMFS within 24 hours.
Response: As described in the proposed IHA, Vineyard Wind 1 is
required to report North Atlantic right whale sightings and acoustic
detections to NMFS within 24 hours. As mentioned above in Comment 12
above, some mitigation, monitoring, and reporting measures are focused
on North Atlantic right whales due to the species status and general
fitness of individuals. It is not practicable or necessary to require
Vineyard Wind 1 to report all sightings of endangered species to NMFS
within 24 hours, unless a detection is of an injured, entangled, or
dead marine mammal (see Reporting section of Monitoring and Reporting),
and the commenter does not provide a rationale for the recommended
change. However, all whale sightings must be reported to vessel
captains and PSOs. In addition, NMFS is requiring all acoustic and
visual detections of marine mammals to be submitted in weekly, monthly,
and annual reports. NMFS disagrees that more frequent reporting of all
ESA-listed marine mammal species is necessary and considers the
required monitoring and reporting requirements in the IHA to be robust
and appropriate.
Effects Assessment
Comment 23: Multiple commenters have expressed concern for impacts
of offshore wind construction activities on marine mammal prey. One
commenter expressed concern specifically regarding impacts to North
Atlantic right whale prey, such as copepods, due to heat emanating from
electric cables associated with offshore wind farm development. In
addition, commenters express concern for operational impacts on North
Atlantic right whale prey. One commenter indicates that based upon the
size of the turbines, impacts to North Atlantic right whale prey could
occur up to 60 miles outside of the Lease Area. Another commenter notes
that the Federal Register notice for the proposed IHA also does not
address potential operational impacts to water circulation patterns
that produce zooplankton aggregations near Nantucket Shoals. The
commenter claims that due to the overlap between a NOAA conservation
buffer near Nantucket Shoals and the Project Area, NMFS should not
issue the IHA to Vineyard Wind 1.
Response: In the Federal Register notice for the proposed IHA, NMFS
considered the potential impacts of structures and operational noise on
marine mammals and their habitat, including prey, based on the best
available science (see the Potential Effects to Marine Mammal Habitat
and Potential Effects from Offshore Wind Farm Operational Noise in the
Federal Register notice for the proposed IHA). NMFS provides further
analysis of the impacts of turbine operation on marine mammal habitat
and prey in the Impact on Habitat and Prey section of the Negligible
Impact Analysis and Determination section of this Federal Register
notice as well as in the reinitiated Biological Opinion. The commenter
did not provide scientific evidence that suggests the analysis within
the Federal Register notice for the proposed IHA was unsupported. NMFS
has fully evaluated the potential impacts of both issuing this IHA over
the one-year effective period and the potential impacts from long-term
operations via the Biological Opinion (BiOp). We refer the reader to
the Potential Effects of the Specified Activities on Marine Mammals and
Their Habitat section and the Negligible Impact Determination section
in the proposed and final IHA notice for further details.
NMFS is evaluating the effects of authorizing the take of marine
mammals incidental to pile driving 15 monopile foundations. Vineyard
Wind operations commenced in 2023 and would be ongoing without
installation of the remaining piles. BOEM is the agency responsible for
approving construction and operations of offshore wind farms. Impacts
to the environment for other project related activities such as sending
power to shore through buried electric cables was analyzed in BOEM's
Environmental Impact Study (EIS) for the Project and are outside the
scope of the NMFS' MMPA decision.
Comment 24: Commenters claim that due to impacts to the North
Atlantic right whales, the proposed IHA violates the Endangered Species
Act (ESA) and reinitiation of consultation indicates that Vineyard Wind
1 was not compliant with the 2021 IHA. In addition, one commenter
suggests that all reasons and information necessitating the
reinitiation of the Vineyard Wind 1 Biological Opinion be made
available for public comment including an extension to the public
comment period.
Response: NMFS disagrees with commenters that the proposed IHA
violates the ESA or that the reinitiation of the consultation indicates
that Vineyard Wind was not compliant with the 2023 IHA. On May 23,
2024, NMFS Office of Protected Resources reinitiated its ESA section 7
consultation due to consideration of updated marine mammal density data
which have become available since issuance of the 2023 IHA and analysis
of SFV data collected by Vineyard Wind 1 during the 2023 construction
campaign in the analysis for this IHA. NMFS also considered modified
mitigation and monitoring measures in this analysis. NMFS Greater
Atlantic Regional Fisheries Office (GARFO) completed its consultation
on August 23, 2024 and concluded that the proposed actions were likely
to adversely affect but were not likely to jeopardize the continued
existence of the North Atlantic right whale, fin whale, sei whale, or
sperm whale. The reasons and information necessitating the reinitiation
of the Vineyard Wind 1 Biological Opinion are described in the
Endangered Species Act section of this Federal Register notice. The
Federal Register notice for the proposed IHA also described the request
for reinitiation of consultation. NMFS did not deem extension of the
public comment period for the proposed IHA necessary or appropriate.
Comment 25: Multiple commenters claim that NMFS did not evaluate
the cumulative effects of all projects (e.g., the offshore wind
projects of other companies) on marine mammals. One commenter claims
that NMFS should conduct a cumulative impact assessment of all offshore
wind surveys and construction projects on marine mammals. Another
commenter further notes that ``dividing and segmenting the estimated
take analysis for Vineyard Wind 1 across two years provides an
inaccurate picture of total and cumulative effects'' on North Atlantic
right whales.
[[Page 75666]]
Response: NMFS is required to authorize the requested incidental
take of small numbers of marine mammals of a species or stock by U.S.
citizens if it finds the total take ``while engaging in that
(specified) activity'' within a specified geographical region will have
a negligible impact on such species or stock and, where applicable,
will not have an unmitigable adverse impact on the availability of such
species or stock for subsistence uses (16 U.S.C. 1371(a)(5)(A)).
Negligible impact is defined as ``an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effect on annual rates of recruitment or survival'' (50 CFR 216.103).
Consistent with the preamble of NMFS' implementing regulations (54 FR
40338, September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are factored into the baseline, which is used
in the negligible impact analysis. Here, NMFS has factored into its
negligible impact analysis the impacts of other past and ongoing
anthropogenic activities via their impacts on the baseline (e.g., as
reflected in the density/distribution and status of the species,
population size and growth rate, and other relevant stressors).
The preamble of NMFS' implementing regulations also addresses
cumulative effects from future, unrelated activities. Such effects are
not considered in making the negligible impact determination under MMPA
section 101(a)(5). NMFS considers: (1) cumulative effects that are
reasonably foreseeable when preparing a National Environmental Policy
Act (NEPA) analysis; and (2) reasonably foreseeable cumulative effects
under section 7 of the ESA for ESA-listed species, as appropriate.
Accordingly, NMFS has reviewed BOEM's 2021 EIS as part of its inter-
agency coordination and determined that the analysis in the 2021 EIS
for the Vineyard Wind 1 Offshore Wind Project is sufficient to cover
the more limited scope of the remaining construction activities for
this project. The EIS addresses cumulative impacts related to the
Project and substantially similar activities in similar locations.
Cumulative impacts regarding the issuance of an IHA for construction
activities planned by Vineyard Wind 1 have been adequately addressed in
the adopted EIS that supports NMFS' determination that this action has
been appropriately analyzed under NEPA. Separately, the cumulative
effects of the Project on ESA-listed species, including the North
Atlantic right whale, were analyzed in NMFS' biological opinion issued
under section 7 of the ESA following formal inter-agency consultation
with the NOAA Greater Atlantic Regional Field Office (GARFO). Following
reinitiated consultation on May 23, 2024, GARFO issued a new BiOp that
determined that NMFS' issuance of an IHA for construction activities,
individually and cumulatively, are likely to adversely affect, but not
jeopardize, listed marine mammals.
NMFS disagrees that dividing estimated take analysis for Vineyard
Wind 1 across two years provides an inaccurate picture of cumulative
effects on North Atlantic right whales. The take authorized in this IHA
represents a subset of the take authorized under the 2023 IHA and is
based upon the reduced scope of work remaining for the project. As NMFS
has determined the 2021 EIS remains appropriate for this analysis,
cumulative effects on marine mammal species, including North Atlantic
right whales, are taken into account.
Comment 26: Citing to new data in Finneran et al. (2023),
commenters raise questions about the validity of NMFS' current noise
exposure guidelines for dolphins at frequencies below ~1kHz and how to
accurately estimate received noise levels from free-swimming animals,
Commenters recommend NMFS conduct a new analysis and enlarge the
exclusion and clearance zones for marine mammals, particularly
bottlenose dolphins and long finned pilot whales. Commenters also
criticize specific facets of the methodology in NMFS 2018 Revised
Technical Guidance, suggest the need for additional research, and
suggested ongoing construction at Vineyard Wind cease or the IHA be
withdrawn until NMFS updated its PTS/TTS thresholds for mid-frequency
cetaceans.
Response: NMFS disagrees that the analysis or mitigation zones for
marine mammals (and MF species specifically) require adjustments and
that the IHA process be paused (or withdrawn) until more information is
known on whether animals will move out of the area or NMFS finalizes
updates to the 2018 Technical Guidance. Under section 101(a)(5)(D) of
the MMPA, NMFS is required to issue the IHA if the taking will be for
small numbers of the affected species or stocks and if NMFS is able to
make the statutorily required negligible impact finding. Among other
things, the IHA must prescribe the means of effecting the least
practicable adverse impact on the affected species or stocks and their
habitat. All of these standards are based on the best available
information.
Our analyses for predicting auditory impacts on marine mammals are
based primarily on our 2018 Technical Guidance for Assessing the
Impacts of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2018).
NMFS is currently in the process of updating that Technical Guidance,
following a rigorous process involving external peer review, Federal
agency review, and public comment (89 FR 36762, May 3, 2024). As the
commenter notes, Finneran et al. (2023) suggests that high-frequency
cetaceans (formerly classified as mid-frequency cetaceans in our 2018
Revised Technical Guidance) are more susceptible to noise-induced
hearing loss below 1 kHz that previously thought, which will likely
result in a change in the Technical Guidance. However, given the
rigorous review process to update the Technical Guidance is not
complete, the future updates are not quantitatively applied to this
project. We note, however, potential anticipated changes to the
Technical Guidance would not be expected to change the findings that
support the issuance of this IHA.
Regarding some of the specific methodological concerns raised by
commenters, NMFS disagrees that the use of means and medians is
inappropriate or that the methodology should be compared to that used
in the calculation of potential biological removal (PBR). The Technical
Guidance's methodology is designed to predict the mostly likely
(realistic) outcome using the central tendencies (means/median)
associated with the best available science. The intent is not to
predict the worst-case-scenario by relying on the lowest limits for
every possible step in the methodology (i.e., Technical Guidance is for
accurately predicting exposures and not for establishing ``safe
limits,'' where there is limited to no risk). Further, within the
development of the criteria, several assumptions were made to address
uncertainty, including the amount of threshold shift defining TTS onset
(e.g,. 6 dB threshold shift, which is the minimum threshold shift
clearly larger than any day-to-day or session-to-session variation) and
PTS onset (40 dB shift, where there have been no reports of PTS in a
marine mammal whose initial behavioral threshold shift was 40 dB or
less) and that there is no recovery between intermittent exposures.
Regarding the observation that the data upon which the Technical
Guidance is based are limited in some ways, we do not disagree, but are
nonetheless charged with basing our analyses on the
[[Page 75667]]
best available information and have described a reasonable methodology
that does so.
Contrary to the commenters' assertions, NMFS has not drawn any
conclusions about TTS based on PSO observations and a commenter
incorrectly implies that the clearance and shutdown zones in the
proposed IHA, including the 160-m zone for dolphins, are intended to
avoid TTS. As described in the Federal Register notice for the proposed
IHA, NMFS does not quantitatively distinguish Level B harassment in the
form of direct behavioral disturbance from a disruption of behavioral
patterns resulting indirectly from TTS, but, rather, notes that the
predicted takes by Level B harassment could include either. Moreover,
the distances at which TTS onset is likely are smaller relative to
those where behavioral disruption without any TTS is expected.
Regarding the comment related to auditory brainstem response (ABR),
NMFS disagrees that conclusions in Finneran et al. 2023 cast doubt on
the NMFS TTS threshold methodology generally for all species. The
results of Finneran et al. 2023 show that hearing and TTS data, relying
on behavioral methodology, cannot be directly compared to measurements
using ABR methods. Finneran et al. 2023 indicate ``Correlation between
TTS measured behaviorally and with ABRs was weak (figure 13) and ABR-
measured TTS was typically lower and more variable than that measured
behaviorally for the same exposure'' and later that ``In practice,
however, ABR measurements in the present study provided only limited
value.'' While we acknowledge the differences in these two methods in
predicting TTS onset, especially at lower frequencies, the information
does not support the commenters assertion that NMFS analysis needs to
change or that mitigation zones must be enlarged, since, as noted
above, the analysis already acknowledges that the potential for TTS in
the quantified takes by Level B harassment and the mitigation zones are
intended to avoid or minimize PTS, not TTS. Finally, the relationship
between ABR and behavioral hearing measurements is not relevant to PSO
observations of behavior.
Finally, regarding our mitigation under the applicable least
practicable adverse impact standard, our proposed IHA notice explains
clearance and shutdown zones are intended to avoid or minimize the
likelihood of Level A harassment and reduce the severity or likelihood
of Level B harassment. Importantly, the size of the clearance and
shutdown zones for all marine mammals s larger than the modeled Level A
harassment (PTS) distances which, based on SFV data from the 2023 pile
driving season, is an overestimate. Specifically for mid frequency
cetaceans, the estimated distance to PTS is 43 m; however, the
clearance and shutdown zone is set at 160 m due to presence of the
bubble curtain. For the North Atlantic right whale, the distance to the
clearance and shutdown zone is independent of both PTS and TTS in that
they are any distance by PSOs or within 10 km if acoustically detected.
Comment 27: Multiple commenters urged NMFS to deny the proposed
project and/or postpone any offshore wind activities until NMFS
determines effects of all offshore wind activities on marine mammals in
the region and determines that the recent whale deaths are not related
to OSW activities. Similarly, some commenters provided general concerns
regarding recent whale stranding events on the Atlantic Coast,
including speculation that the strandings may be related to wind energy
development-related activities. A commenter further states that
offshore wind construction activities have been linked to marine mammal
injury and deafness.
Response: While NMFS acknowledges that offshore wind development
activities, including HRG survey effort, have increased in the Atlantic
Ocean during the time period of increased whale strandings, there is no
scientific evidence that these development activities, such as HRG
survey effort and turbine construction, are contributing factors to the
strandings. Further, HRG surveys are not part of the specified
activity. 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 IHA (89 FR 31008,
April 23, 2024) clearly states that no serious injury and/or mortality
was requested by Vineyard Wind 1, is expected, or was proposed to be
authorized.
The best available science indicates that the anticipated impacts
from pile driving of turbines potentially include temporary avoidance
of localized areas, cessation of foraging or communication, TTS,
stress, masking, etc., (as described in the Effects of the Specified
Activities on Marine Mammals and their Habitat section in the Federal
Register notice for the proposed IHA). NMFS emphasizes that there is no
evidence that noise resulting from offshore wind development would
cause marine mammal strandings, and there is no evidence linking recent
large whale mortalities and currently ongoing offshore wind activities
(e.g., HRG surveys or construction). 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 (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.
Recently, NMFS was made aware of a media article wherein a member
of the public conducted a statistical analysis on the correlation
between offshore wind vessel use and whale deaths along the U.S. east
coast (Climate Change Dispatch, 2024). The parameters considered in the
analysis were limited to offshore wind vessel movement and whale
deaths. NMFS has long recognized that marine mammals strandings have
increased over the years, including increases in strandings of three
large whale species resulting in the declaration of Unusual Mortality
Events for minke, humpback, and North
[[Page 75668]]
Atlantic right whales in 2018, 2017, and 2017 respectively. Offshore
wind development has increased over the same time period, so the
correlation was not surprising. However, the analysis presented in the
article was not peer-reviewed, was limited, not fully described, does
not appear to separate out vessel movement from survey activities, did
not consider other known factors that are increasing ship strike risk
in general (e.g., Thorne and Wiley, 2024) or other factors leading to
increased strandings (e.g., entanglement, climate change), and did not
demonstrate that offshore wind vessel traffic or HRG surveys are the
cause of strandings. Overall, while NMFS considered this information,
it did not provide new information that links whale strandings to
offshore wind vessel movement or surveys.
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 Area of Specified Activities section of this notice. 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, either ship strike or entanglement.
Vessel strikes and entanglement in fishing gear are the greatest human
threats to large whales. The remaining 50 necropsied whales either had
an undetermined cause of death (due to a limited examination or
decomposition of the carcass) or had other causes of death including
parasite-caused organ damage and starvation. For North Atlantic right
whales, starting 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 (sublethal 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 (<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>.
Comment 28: A commenter indicates that NMFS has not taken new
information into account for the presence and behaviors of sperm whales
in the proposed Project Area. The commenter further notes that due to
high sperm whale presence in the Project Area, as described by Farmer
et al. (2018) and Westell et al. (2024), NMFS should strengthen
mitigation measures for sperm whales.
Response: NMFS disagrees that new information to account for the
presence and behaviors of sperms whales in the Project Area have not
been taken into account. Although Westell et al. (2024) acoustically
identified sperm whale presence in the lease area during June and July
2020-2021, Vineyard Wind 1 PSO data collected during the 2023
construction campaign during June through December 2023 did not
document any sightings of sperm whales in the Lease Area (RPS, 2024).
In addition, there is no designated critical habitat or biologically
important areas (BIAs) for this species in the vicinity of the LIA. The
commenter also references the Farmer et al. (2018) study of
disturbances to sperm whales, however, that study discusses the Gulf of
Mexico stock of sperm whales specifically in the Gulf of Mexico. NMFS
has included a robust suite of mitigation measures specific to sperm
whales in the IHA, including a 500 m visual pre-start clearance zone,
500 m visual shutdown zone, a 500 m PAM clearance zone, and a 500 m PAM
monitoring zone in addition to general mitigation measures regarding
soft start, noise attenuation, and seasonal and daily pile driving
restrictions. Due to limited documented occurrence during Vineyard Wind
1 activities in the lease area, NMFS does not agree that it is
appropriate or warranted to extend mitigation measures for sperm
whales.
Comment 29: One commenter claims that the NEPA process for the
Vineyard Wind 1 IHA is segmented and that a cumulative EIS should be
developed for the RI-MA WEA. The commenter further indicates that a
cumulative EIS should include nine lease areas, including the proposed
Vineyard Wind 1 Project Area within the WEA.
Response: NMFS' proposed action to issue an IHA to Vineyard Wind
constitutes a major Federal action under NEPA. In 2021, after
independent review, with specific attention given to its evaluation of
effects to marine mammals and their habitat, NMFS adopted BOEM's
Vineyard Wind 1 Final Environmental Impact Study (FEIS) to satisfy
NMFS' independent NEPA obligations related to its decision under the
MMPA of whether or not to issue an IHA to the Vineyard Wind and signed
a Record of Decision on May 10, 2021. The FEIS evaluated the direct and
indirect impacts of the project as well as the cumulative impacts of
all past, present and foreseeable future actions, including full
offshore wind build-out of the OCS. Therefore, the cumulative impacts
from constructing wind farms in all proposed lease areas, including
those in southern New England, is included in the FEIS. BOEM's Vineyard
Wind 1 FEIS was challenged and upheld by a court. For these reasons,
NMFS disagrees that a separate EIS that considers the nine lease areas
in the RI-MA WEA alone is necessary to comply with NEPA for issuance of
the IHA.
Comment 30: Commenters suggest that supplemental NEPA is necessary
for the proposed action and the Vineyard Wind 1 EIS should be reopened
to incorporate this analysis. One commenter recommends that the
Vineyard Wind 1 Record of Decision (ROD) and project construction be
suspended until a new FEIS is completed. Another commenter claims that
the Vineyard Wind 1 ROD is in violation of NEPA as it was completed and
approved before the reinitiated Biological Opinion in 2021 and also
supported halting construction of the project. An additional commenter
claims that supplemental NEPA would be necessary if any larger piles or
a greater number (than 15) pile were to be installed and this NEPA
should consider any changes to hammer type, hammer size, effects to the
substrate, and effects on marine mammals.
Response: NMFS disagrees with commenters that a supplemental NEPA
document is necessary for this action or that the FEIS is deficient.
The planned completion of pile installation, including reduced scope of
work, inclusion of in situ SFV data into the analysis, additional
mitigation, monitoring, and reporting measures, and updated marine
mammal density data, have been reviewed by NMFS to determine if
supplementation is
[[Page 75669]]
warranted. Vineyard Wind 1 has proposed to install the same size of the
remaining 15 piles using the same hammer type. Supplementation of the
Vineyard Wind 1 EIS is not required because this proposed action does
not represent a substantial change to the Project and the proposed
changes do not change the impact determinations. Therefore, the changes
referenced here do not present significant new circumstances or
information relevant to environmental concerns pertaining to the
proposed action or its impacts (see 40 CFR 1502.9(d)(1)). NMFS has
determined that the Vineyard Wind 1 FEIS is sufficient and a
supplemental NEPA document is not necessary.
As the Vineyard Wind 1 FEIS is sufficient for the proposed action
and a new FEIS does not need to be prepared, it is not necessary to
suspend the ROD or project construction. In addition, the original
Biological Opinion was finalized on September 11, 2020, in advance of
the Vineyard Wind 1 ROD, finalized on May 10, 2021.
Changes From the Proposed IHA to the Final IHA
The text of several measures in the draft IHA was revised to
improve the clarity and consistency of the measures. In addition,
reporting requirements on marine mammals have been updated in
accordance with Greater Atlantic Regional Fisheries Office (GARFO),
Southeast Regional Office (SERO), and the Northeast Fisheries Science
Center (NEFSC) most recent guidance. Several other measures were
changes from the proposed IHA to the final IHA in consideration of
public comments or other information. Changes are summarized here, with
additional explanation provided later in the notice, as necessary:
<bullet> The requirement for NMFS approval for pile driving in
December was removed as a mitigation requirement from the IHA. After
the 30-day public comment period on the proposed IHA, Vineyard Wind 1
notified NMFS that pile driving would likely commence in November and
continue into December. Therefore, NMFS removed the requirement for
Vineyard Wind 1 to obtain prior approval from NMFS to pile drive in
December;
<bullet> Pilot whales and Risso's dolphins were moved from the 500
m clearance and shutdown zone category to the 160 m clearance and
shutdown zone category in the IHA. The distance to the Level A
harassment zone for other mid-frequency cetaceans is 43 m, and a 160 m
clearance and shutdown zone is sufficient to encompass this zone. In
addition, the clearance and shutdown distance for other mid-frequency
delphinids is 160 m. This change was also made to align with the
Vineyard Wind 1 original request in the application;
<bullet> The timeframe for the use of vessel-based surveys to
confirm the clearance zone is clear of North Atlantic right whales
prior to pile driving has been extended from the original period of
December 1-December 31, described in the proposed IHA notice to the
period of November 1-December 31. This change was made to align with
the Vineyard Wind 1 original request in the application and to provide
increased mitigation during the month of November as well when North
Atlantic right whale density begins to increase in the Project area;
<bullet> In response to a public comment, NMFS has added a measure
to require Vineyard Wind 1 to cease pile driving if there is a live
cetacean stranding within 50 km of pile driving activities and the NMFS
Marine Mammal Stranding Network is attempting to herd or return animals
to the water;
<bullet> The IHA measure describing the procedures for Vineyard
Wind 1 to implement if any of the SFV measurements exceed the distance
expected or modeled to any isopleth of concern was revised in the final
IHA for clarity. The examples for a pile being installed with a single
bubble curtain and near field sound attenuation device and the example
for a double bubble curtain without a near field sound attenuation
device were removed as Vineyard Wind 1 would be required to use both a
double bubble curtain and near field sound attenuation device. In
addition, the requirement for Vineyard Wind 1 to request concurrence
from NMFS to proceed with pile driving after providing a written
explanation of isopleth exceedance was removed. If any isopleth of
concern is exceeded, Vineyard Wind 1 would be required to provide
written explanation to NMFS Office of Protected Resources supporting
their determination that adjustments to mitigation measures would be
sufficient in reducing pile driving noise below the isopleth of concern
and implement those measures;
<bullet> NMFS updated the SFV requirements in the IHA to align with
the Biological Opinion Terms and Conditions;
<bullet> The educational requirement for PSOs and PAM operators to
receive a bachelor's degree ``from an accredited college or
university'' have been removed, although PSOs and PAM operators are
still required to hold a bachelor's degree; and
<bullet> The requirement for full PAM detection data to be
submitted with monthly reports has been updated due to a change in
Northeast Fisheries Science Center reporting requirements. Vineyard
Wind 1 must submit full PAM detection data within 90 days after
foundation installation ceases and every 90 calendar days for transit
lane PAM.
In addition, the following measure was added to the IHA section
5(a) to describe Vineyard Wind 1's obligation if SFV measurements show
exceedance of expected Level A harassment or Level B harassment
thresholds, including while implementing additional mitigation
measures:
<bullet> If, after all practicable measures that could be taken to
reduce noise levels have been successfully implemented and exhausted,
Thorough SFV measurements continue to indicate that the distances to
marine mammal Level A harassment thresholds are greater than those
modeled assuming 6 dB attenuation and the Level B harassment thresholds
based on SFV during the 2023 campaign, Vineyard Wind 1 must meet with
NMFS within 3 three 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 IHA.
Description of Marine Mammals in the Area of Specified Activities
Thirty-eight marine mammal species, comprising 39 stocks, under
NMFS' jurisdiction have geographic ranges overlapping the western North
Atlantic OCS (Hayes et al., 2023). However, for reasons described
below, Vineyard Wind 1 has requested, and NMFS has authorized, take of
only 14 species (comprising 14 stocks) of marine mammals. Sections 3
and 4 of the application summarize available information regarding
status and trends, distribution and habitat preferences, and behavior
and life history of the potentially affected species. NMFS fully
considered all of this information, and we refer the reader to these
descriptions, instead of reprinting the information. See ADDRESSES.
Additional information regarding population trends and threats may be
found in NMFS' Stock Assessment Reports (SARs; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">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'
[[Page 75670]]
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 1 lists all species or stocks for which take is expected and
authorized for this activity and summarizes information related to the
population or stock, including regulatory status under the MMPA and ESA
and PBR, where known. PBR is defined by the MMPA as the maximum number
of animals, not including natural mortalities, that may be removed from
a marine mammal stock while allowing that stock to reach or maintain
its optimum sustainable population (as described in NMFS' SARs; 16
U.S.C. 1362(20)). While no serious injury or mortality is anticipated
or authorized, PBR and annual serious injury and mortality from
anthropogenic sources are included here as gross indicators of the
status of the species or stocks and other threats. Four of the marine
mammal species for which take is authorized are listed as endangered
under the ESA, including the North Atlantic right whale, fin whale, sei
whale, and sperm whale.
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
comprise 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. 2023 draft SARs and NMFS' U.S. 2022 SARs. For the majority
of species potentially present in the specific geographic region, NMFS
has designated only a single generic stock (e.g., ``western North
Atlantic'') for management purposes. This includes the ``Canadian east
coast'' stock of minke whales, which includes all minke whales found in
U.S. waters and is also a generic stock for management purposes. For
humpback and sei whales, NMFS defines stocks on the basis of feeding
locations (i.e., Gulf of Maine and Nova Scotia, respectively). However,
references to humpback whales and sei whales in this document refer to
any individuals of the species that are found in the specific
geographic region. All values presented in table 1 are the most recent
available at the time of publication and are available online at:
<a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.
Table 1--Marine Mammal Species That May Occur in the LIA and Be Taken by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name \a\ Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\b\ abundance survey) \c\ SI \d\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western Atlantic....... E, D, Y 340 (0; 337; 2021) \e\ 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).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02, 3098, 6.2 0.6
2021).
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31, 17,002, 170 9.4
acutorostrata. Coastal. 2021).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, Y 1,396 (0, 1,380, 2016) 22 12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
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:
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3, 30,627, 306 5.7
2021).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -, -, N 64,587 (0.24, 52,801, 507 28
Offshore. 2021) \g\.
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 93,100 (0.56, 59,897, 1,452 414
2021).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 44,067 (0.19, 30,662, 307 18
2021).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71, 54,443, 544 28
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--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
Gray seal \h\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,911 (0.20, 23,924, 1,512 4,570
2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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
(<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)).
\b\ 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 2022 marine mammal stock assessment reports 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> assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance.
\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).
\e\ The draft 2023 SAR includes an estimated population (Nbest 340) based on sighting history through December 2021 (89 FR 5495, January 29, 2024). In
October 2023, NMFS released a technical report identifying that the North Atlantic right whale population size based on sighting history through 2022
was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023).
\f\ Total annual average observed North Atlantic right whale mortality during the period 2017-2021 was 7.1 animals and annual average observed fishery
mortality was 4.6 animals. Numbers presented in this table (27.2 total mortality and 17.6 fishery mortality) are 2016-2020 estimated annual means,
accounting for undetected mortality and serious injury.
\g\ As noted in the draft 2023 SAR (89 FR 5495, January 29, 2024), abundance estimates may include sightings of the coastal form.
\h\ 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.
[[Page 75671]]
As indicated above, all 14 species (with 14 managed stocks) in
table 1 temporally and spatially co-occur with the activity to the
degree that take is expected to occur. The following species are not
expected to occur in the LIA due to their known distributions,
preferred habitats, and/or known temporal and spatial occurrences: the
blue whale (Balaenoptera musculus), northern bottlenose whale
(Hyperoodon ampullatus), false killer whale (Pseudorca crassidens),
pygmy killer whale (Feresa attenuata), melon-headed whale
(Peponocephala electra), dwarf and pygmy sperm whales (Kogia spp.),
killer whale (Orcinus orca), Cuvier's beaked whale (Ziphius
cavirostris), four species of Mesoplodont whale (Mesoplodon
densitostris, M. europaeus, M. mirus, and M. bidens), Fraser's dolphin
(Lagenodelphis hosei), Clymene dolphin (Stenella clymene), spinner
dolphin (Stenella longirostris), rough-toothed dolphin (Steno
bredanensis), Atlantic spotted dolphin (Stenella frontalis),
pantropical spotted dolphin (Stenella attenuata), short-finned pilot
whale (Globicephala macrorhynchus), striped dolphin (Stenella
coeruleoalba), white-beaked dolphin (Lagenorhynchus albirostris), and
hooded seal (Crysophora cristata). None of these species were observed
during the 2023 construction season or during previous site assessment/
characterization surveys (Vineyard Wind 2018, 2019, 2023a-f). Due to
the lack of sightings of these species in the MA WEA (Kenney and
Vigness-Raposa, 2010; ESS Group Inc., 2016; Kraus et al., 2016;
Vineyard Wind, 2018; 2019; O'Brien et al., 2020; 2021; 2022; 2023; EPI
Group, 2021; Palka et al., 2017; 2021; RPS, 2022; Vineyard Wind, 2023a-
f; Hayes et al., 2023) as well as documented habitat preferences and
distributions, we have determined that each of these species will not
be considered further. Furthermore, the northern limit of the northern
migratory coastal stock of the common bottlenose dolphin (Tursiops
truncatus) does not extend as far north as the LIA. Thus, take is only
authorized for the offshore stock which may occur within the LIA.
Although harp seals (Pagophilus groenlandicus) are expected to occur
within the WDA, no harp seals were observed by PSOs during the Vineyard
Wind 1 site characterization surveys (2016, 2018-2021; ESS Group Inc.,
2016; Vineyard Wind 2018; 2019) nor during the 2023 construction
campaign (Vineyard Wind, 2023a-f). Thus, Vineyard Wind 1 did not
request, and NMFS is not authorizing, take for this species.
A detailed description of the species likely to be affected by the
Project, including brief introductions to the species and relevant
stocks as well as available information regarding population trends and
threats, and information regarding local occurrence, were provided in
the proposed IHA notice (89 FR 31008, April 23, 2024). Other than UME
updates, we are not aware of any changes in the status of the species
and stocks listed in table 1; therefore, detailed descriptions are not
provided here. Please refer to the proposed IHA notice for these
descriptions (89 FR 31008, April 23, 2024). Please also refer to NMFS'
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized
species accounts.
Since the publication of the proposed IHA, the following updates
have occurred to the below species in regards to general information or
their active UMEs.
North Atlantic Right Whale
As described in the proposed IHA notice, 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
IHA, the number of animals considered part of the UME has increased. As
of September 5, 2024, there have been 40 confirmed mortalities (dead,
stranded, or floaters), 1 pending mortalities, and 35 seriously injured
free-swimming whales for a total of 76 whales. The UME also considers
animals with sublethal injury or illness (called ``morbidity''; n=66)
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/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
Humpback Whale
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. This event was
declared a UME in April 2017. Partial or full necropsy examinations
have been conducted on approximately half of the known cases. Since
publication of the proposed IHA, the number of animals considered part
of the UME has increased to 227 total mortalities (as of September 5,
2024). More information is available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
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 September 5, 2024, a total of 174 minke whales
have stranded during this UME. Full or partial necropsy examinations
were conducted on more than 60 percent of the whales. Preliminary
findings have shown evidence of human interactions or infectious
disease in several of the whales, but these findings are not consistent
across all of the whales examined, so more research is needed. More
information is available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-minke-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-minke-whale-unusual-mortality-event-along-atlantic-coast</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. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019a) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). 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 2.
[[Page 75672]]
Table 2--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).
Otariid pinnipeds (OW) (underwater) (sea 60 Hz to 39 kHz.
lions and fur 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 et al.,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
Exposure to underwater noise from the specified activities has the
potential to result in Level A harassment or Level B harassment of
marine mammals in the specific geographic region, but no serious injury
or mortality. The proposed IHA Federal Register notice (89 FR 31008,
April 23, 2024) included a discussion of the effects of anthropogenic
noise on marine mammals and the potential effects of underwater noise
from the Project's specified activities on marine mammals and their
habitat. While some new literature regarding marine mammal distribution
and habitat use has been published since publication of the proposed
IHA (e.g., Bellman et al., 2023; Holdman et al., 2023, Meyer-Gutbrod et
al., 2023; Roberts et al., 2024; Thorne and Wiley, 2024), there is no
new information that NMFS is aware of that changes the analysis in the
proposed IHA notice. We provide a summary of these papers below.
Bellmann et al. (2023) collected 27 operational noise measurements
across 24 offshore wind farms consisting of 16 different WTG types of
powers ranging from 2.3 to 8 mega watts (MW). It should be noted that
the results from Holme et al. (2023) are based on a subset of these
data. Similar to Holme et al. (2023), 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 meters, but typically are not resolvable within the
prevailing ambient noise at a range of 5 km. However, Bellmann et al.
(2023) also comment that these measurements were taken within the first
year of operation, and that previous experience indicates noise levels
will change significantly over time, likely due to wear and tear in
gearbox WTGs, but that it is not clear at this time if these changes
will also be present in direct-drive systems.
Holdman et al. (2023) studied harbor porpoise habitats in the Gulf
of Maine (GOM) and Southern New England waters providing baseline data
on the occurrence and foraging activity of porpoises from 2020 to 2022.
Harbor porpoises were present year-round in the GOM with peak
detections in the summer and fall. The observed seasonal pattern of
harbor porpoise occurrence in this study is consistent with prior
information on the general distribution of the GOM/Bay of Fundy stock
(Wingfield et al., 2017; Hayes et al., 2022). In line with previously
reported distribution patterns, harbor porpoise occurrence in Southern
New England was high in fall, winter and spring, but porpoises were
largely absent in the summer. Results from generalized additive models
suggest that time of year, hour of day, lunar illumination, and
temperature are significant contributors to harbor porpoise presence
(detection mainly through echolocation clicks) and/or foraging effort.
This study emphasized the importance of early identification of
important harbor porpoise habitat to mitigate impacts and monitor
change in the event of overlap between these habitats and areas
proposed for offshore wind development.
Meyer-Gutbrod et al. (2023) studied North Atlantic right whale
sightings from 1990-2018 to examine patterns in monthly habitat use in
12 high-use areas to broadly characterize new seasonal habitat-use
patterns across the core North Atlantic right whale range. As North
Atlantic right whale foraging habitat selection is driven by complex
spatial and temporal patterns (e.g., prey abundance), abundances of
Calanus finmarchicus (a species of copepod and a component of the
zooplankton found in the northern Atlantic Ocean) and Calanus
hyperboreus (species of copepod found in the Arctic Ocean and northern
Atlantic Ocean) were also analyzed for decadal variations in the North
Atlantic right whale foraging habitats. The research found that in
comparison to the 2000s, the 1990s and the 2010s were similar in that
North Atlantic right whale sightings (i.e., Sightings Per Unit Effort
(SPUE)) declined in the foraging habitats of the Gulf of Maine and
Scotian Shelf during the seasons when abundance of C. finmarchicus was
relatively low (spring, summer, fall). The drop in sightings is
associated with extended duration of habitat use by North Atlantic
right whales in Cape Cod Bay into the late spring and increased use of
Southern New England waters and the Gulf of St. Lawrence in the spring
and summer in the 2010s. Summertime declines in the 2010s for copepod
abundances in the traditional foraging habitat (e.g., Gulf of Maine)
indicate that the increased use of the Gulf of St. Lawrence in more
recent years is driven by a decline in prey in traditional foraging
habitats rather than by an increase in prey in the new foraging
habitat. Overall, while some patterns in seasonal habitat use remained
consistent across all three decades, including the winter migration to
the Southeast U.S. calving ground
[[Page 75673]]
and early spring foraging in Cape Cod Bay, there were notable
differences in the seasonality and persistence of North Atlantic right
whales in some foraging habitats across the study period which indicate
that the North Atlantic right whale distribution patterns are shifting.
In 2022, the Duke University Marine Geospatial Ecology Laboratory
provided updated habitat-based marine mammal density models for the
U.S. Atlantic (Roberts et al., 2016; Roberts et al., 2023). The take
estimate analysis for the Vineyard Wind 1 IHA incorporates these
density models into methodology for estimating take from foundation
installation (89 FR 504, January 4, 2024). Recently, North Atlantic
right whale density model results were evaluated using independently
collected passive acoustic monitoring (PAM data) (Roberts et al.,
2024). Positive correlations between North Atlantic right whale
densities and acoustic detection rates indicated concurrence between
visual and acoustic observations of North Atlantic right whales.
Results of this study also further quantify the North Atlantic right
whale distribution shifts that occurred in 2010.
Moreover, new data also supports our inclusion of certain
mitigation measures in the proposed and this final IHA. For example,
Crowe et al. (2023) discussed the use and importance of real-time data
for detecting North Atlantic right whales. The shift in North Atlantic
right whale habitat use motivated the integration of additional ways to
detect the presence of North Atlantic right whales, and passive
acoustic detections of right whale vocalizations reported in near real-
time became an increasingly important tool to supplement visual
sightings. The proposed IHA included real-time and daily awareness
measures and sighting communication protocols, NMFS evaluated these
measures and added details for clarity or updated the reporting
mechanisms, such as in the case of sighting an injured North Atlantic
right whale. Davis et al. (2023) analyzed North Atlantic right whale
individual upcalls from 2 years of acoustic recordings in southern New
England, which showed that North Atlantic right whales were detected at
least 1 day every week throughout both years, with highest North
Atlantic right whale presence from October to April. Within Southern
New England (SNE), on average, 95 percent of the time North Atlantic
right whales persisted for 10 days, and recurred again within 11 days.
An evaluation of the time period over which it is most effective to
monitor prior to commencing pile driving activities showed that with 1
hour of pre-construction monitoring there was only 4 percent likelihood
of hearing a North Atlantic right whale, compared to a 74 percent
likelihood at 18 hours. Therefore, monitoring for at least 24 h prior
to activity will increase the likelihood of detecting an up-calling
North Atlantic right whale.
Overall, there is no new scientific information regarding the
general anticipated effects of offshore wind construction on marine
mammals and their habitat that was not discussed in the proposed IHA.
The information and analysis regarding the potential effects on marine
mammals and their habitat included in the proposed IHA Federal Register
notice is referenced and used for this final IHA notice and is not
repeated here; please refer to the proposed IHA Federal Register notice
(89 FR 31008, April 23, 2024).
Globally, there are more than 341,000 operating WTGs (Global Wind
Energy Council). Turbine failures are known to occur but are considered
rare events (Katsaprakakis et al., 2021, DOE, 2024a). For example,
fewer than 40 incidents were identified in the modern fleet of more
than 40,000 onshore turbines installed in the United States as of 2014
(DOE, 2024b). In 2022, the total global capacity of offshore wind
reached 59,009 MW from 292 operating projects and over 11,900 operating
wind turbines in 2022 (DOE, 2023), and a review of the relevant
literature and media reports indicate blade failure among this cohort
of turbines continues to be rare, consistent with industry performance
in onshore wind turbines. On July 13, 2024, however, a blade on one of
the WTGs at Vineyard Wind 1 was damaged during the ``warm up'' phase of
operations, causing a portion of the blade, primarily composed of
fiberglass, to fall into the water. In cooperation with Vineyard Wind
1, GE Vernova, the blade manufacturer, initiated debris recovery
efforts and an investigation. Following this blade failure incident,
the Bureau of Safety and Environmental Enforcement (BSEE), Department
of Interior, issued a Suspension Order on July 17, 2024 (<a href="https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-statement-on-vineyard-wind">https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-statement-on-vineyard-wind</a>) and an additional Order for
clarification on July 26, 2024 (<a href="https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-issues-new-order-to-vineyard-wind">https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-issues-new-order-to-vineyard-wind</a>), which suspends power production and any further wind
turbine generator construction until the suspension is lifted. GE
Vernova has preliminarily identified a defect in the manufacturing
process, specifically insufficient bonding, of this particular blade
that the quality assurance program should have identified. On August 9,
2024, Vineyard Wind and GE Vernova released an action plan that
outlines the steps necessary to remove the remainder of the damaged
blade, continue debris cleanup response efforts, and resume turbine
installation and operations of the project. The plan specifies that no
blades will be installed or used in operation until each is inspected.
In addition, GE has developed and will implement real-time monitoring
technology to monitor blades during operations to avoid this type of
incident from occurring in the future.
As noted above, wind turbine failure is considered rare, and NMFS
still considers the likelihood that blade failure would occur pursuant
to Vineyard Wind 1's specified activity during the effective period of
the IHA so low as to be discountable. Furthermore, GE Vernova's quality
assurance program will complete thorough inspections on the remaining
blades to be installed to ensure additional blade malfunction incidents
do not occur. Vineyard Wind 1 did not request, NMFS does not
anticipate, and NMFS has not authorized, take of marine mammals
incidental to a turbine blade failure and, therefore the topic is not
discussed further.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
authorized through this IHA, which will inform NMFS' consideration of
``small numbers'' and the negligible impact determinations (impacts on
subsistence uses is not relevant here).
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) 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 (Level B harassment).
Authorized takes would primarily be by Level B harassment, as noise
from pile driving has the potential to result in disruption of marine
mammal behavioral patterns. Impacts such as masking and TTS can
contribute to the disruption of behavioral patterns and are accounted
for within those authorized takes. There is also some potential for
high frequency species (harbor porpoise) and phocids (harbor
[[Page 75674]]
seal and gray seal) to experience a limited amount of auditory injury
(PTS; Level A harassment) primarily because predicted auditory injury
zones are large enough and these species are cryptic enough that the
potential for PTS cannot be fully discounted or mitigated. For
mysticetes, the Level A harassment ER95<INF>percent</INF> ranges are
also large (0.043 km to 3.191 km); however, the extensive marine mammal
mitigation and monitoring planned by Vineyard Wind 1 and required by
NMFS, as well as natural avoidance behaviors is expected to reduce the
potential for PTS to discountable levels. Nevertheless, Vineyard Wind 1
has requested, and NMFS has authorized a small amount of Level A
harassment incidental to installing piles (table 11). Auditory injury
is unlikely to occur for mid-frequency species as thresholds are higher
and PTS zones are very close to the pile, such that PTS is unlikely to
occur. While NMFS has authorized Level A harassment and Level B
harassment, the planned mitigation and monitoring measures are expected
to avoid or minimize overall the taking to the extent practicable (see
Mitigation and Monitoring and Reporting).
As described previously, no serious injury or mortality is
anticipated or authorized incidental to the specified activity. Even
without mitigation, pile driving activities are unlikely to directly
cause marine mammal mortality or serious injury. There is no documented
case wherein pile driving resulted in marine mammal mortality or
stranding and the scientific literature demonstrates that the most
likely behavioral response to pile driving (or similar stimulus source)
is avoidance and temporary cessation of behaviors such as foraging or
socialization (see Avoidance and Displacement in Potential Effects of
Specified Activities on Marine Mammals and Their Habitat section of the
proposed IHA Federal Register notice (89 FR 31008, April 23, 2024).
While in general there is a low probability that mortality or serious
injury of marine mammals could occur from vessel strikes, the
mitigation and monitoring measures contained within this IHA are
expected to avoid vessel strikes (see Mitigation section). No other
activities have the potential to result in mortality or serious injury.
For acoustic impacts, we estimate take by considering: (1) acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and (4) the
number of days of activities. We note that while these factors can
contribute to a basic calculation to provide an initial prediction of
potential takes, additional information that can qualitatively inform
take estimates is also sometimes available (e.g., previous monitoring
results or average group size). Below, we describe the factors
considered here in more detail and present the authorized take
estimates.
As described below, there are multiple methods available to
estimate the density or number of a given species in the area
appropriate to inform the take estimate. For each species and activity,
the largest value resulting from the three take estimation methods
described below (i.e., density-based, PSO-based, or mean group size)
was carried forward as the amount of take authorized by Level B
harassment. The amount of take authorized by Level A harassment
reflects the density-based exposure estimates and, for some species and
activities, consideration of other data such as mean group size.
Below, we describe NMFS' acoustic thresholds, acoustic and exposure
modeling methodologies, marine mammal density calculation methodology,
occurrence information, and the modeling and methodologies applied to
estimate take for the Project's planned construction activities. NMFS
considered all information and analysis presented by Vineyard Wind, as
well as all other applicable information and, based on the best
available science, concurs that the estimates of the types and amounts
of take for each species and stock are reasonable, and has authorized
the amount requested. NMFS notes the take estimates described herein
for foundation installation can be considered conservative because the
estimates do not reflect the implementation of clearance and shutdown
zones for any marine mammal species or stock.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
are likely to be behaviorally harassed (Level B harassment) or to incur
PTS of some degree (Level A harassment). A summary of all NMFS'
thresholds can be found at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source, ambient noise, and the receiving animal's hearing, motivation,
experience, demography, behavior at time of exposure, life stage,
depth) and can be difficult to predict (e.g., Southall et al., 2007,
2021, Ellison et al., 2012). Based on what the available science
indicates and the practical need to use a threshold based on a metric
that is both predictable and measurable for most activities, NMFS
typically uses a generalized acoustic threshold based on received level
to estimate the onset of behavioral harassment.
NMFS generally predicts that marine mammals are likely to be taken
in a manner considered to be Level B harassment when exposed to
underwater anthropogenic noise above RMS SPL of 120 dB (referenced to 1
micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources. Generally speaking, Level B harassment take
estimates based on these thresholds are expected to include any likely
takes by TTS as, in most cases the likelihood of TTS occurs at closer
distances from the source. TTS of a sufficient degree can manifest as
behavioral harassment, as reduced hearing sensitivity and the potential
reduced opportunities to detect important signals (conspecific
communication, predators, prey) may result in changes in behavior
patterns that would not otherwise occur.
The Project's planned construction activities include the use of
impulsive sources (e.g., impact pile driving), and therefore the 160-dB
re 1 [mu]Pa (rms) threshold is applicable to our analysis.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0,
Technical Guidance) (NMFS, 2018) identifies dual criteria to assess
auditory injury (Level A harassment) to five different marine mammal
groups (based on hearing sensitivity) as a result of exposure to noise
from two different types of sources (impulsive or non-impulsive). As
dual metrics, NMFS considers onset of PTS (Level A harassment) to have
occurred when either one of the two metrics is exceeded (i.e., metric
resulting in the largest isopleth). As described above, the Vineyard
Wind 1 planned activities include the use of impulsive sources.
[[Page 75675]]
NMFS' thresholds identifying the onset of PTS are provided in table 3.
The references, analysis, and methodology used in the development of
the thresholds are described in NMFS' 2018 Technical Guidance, which
may be accessed at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Table 3--Permanent Threshold Shift (PTS) Onset Thresholds
[NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
PTS onset thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Lp,0-pk,flat: 219 dB; LE,p,LF,24h: 199 dB.
LE,p,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Lp,0-pk,flat: 230 dB; LE,p MF,24h: 198 dB.
LE,p,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Lp,0-pk,flat: 202 dB; LE,p,HF,24h: 173 dB.
LE,p,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Lp,0-pk,flat: 218 dB; LE,p,PW,24h: 201 dB.
LE,p,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Lp,0-pk,flat: 232 dB; LE,p,OW,24h: 219 dB.
LE,p,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
exposure level (LE,p) has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to be
more reflective of International Organization for Standardization standards (ISO, 2017). The subscript
``flat'' is being included to indicate peak sound pressure are flat weighted or unweighted within the
generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative
sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF,
and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The
weighted cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying
exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate
the conditions under which these thresholds will be exceeded.
Below, we describe the assumptions and methodologies used to
estimate take, in consideration of acoustic thresholds and appropriate
marine mammals density and occurrence information, for WTG monopile
installation. Resulting distances to thresholds, densities and
occurrence (i.e., PSO sightings, group size) data used, exposure
estimates (as relevant to the analysis), and activity-specific take
estimates can be found below.
Acoustic and Exposure Modeling
During the 2023 Vineyard Wind 1 pile installation activities,
Vineyard Wind 1 conducted a SFV study to compare with model results of
the 2018 modeling (K[uuml]sel et al., 2024). The SFV study included
acoustic monitoring of the impact installation of 12 monopile
foundations from June 6 through September 7, 2023. Five of the 12
acoustically monitored monopiles were determined to be representative
of the noise attenuation system (NAS) configuration and maintenance
schedule that would be proposed for the remaining 15 monopiles to be
installed in 2024. These five representative monopiles (piles 7, 8, 10,
11, and 12 in the Vineyard Wind 1 SFV Monitoring Report) were monitored
using a DBBC and Hydrosound Damper System (HSD), which Vineyard Wind 1
will be required to use for use as the noise attenuation system setup
for the remaining 15 monopiles. Vineyard Wind 1 also followed an
enhanced bubble curtain maintenance schedule for these 5 monopiles;
this maintenance schedule will be used for the remaining 15 monopiles
to be installed under this IHA (see the Vineyard Wind 1 Enhanced Big
Bubble Curtain (BBC) Technical Memo). Peak (pk), SEL, and RMS SPL
received distances for each acoustically monitored pile are reported in
the VW1 SFV Final Report Appendix A (K[uuml]sel et al., 2024) For
additional details on how acoustic ranges were derived from SFV
measurements, see the VW1 SFV Final Report sections 2.3 and 3.3
(K[uuml]sel et al., 2024). JASCO modeled a maximum range to the Level A
harassment threshold of 3.191 km (1.99 mi) with 6 dB attenuation (for
low-frequency cetaceans) (K[uuml]sel et al., 2024).
In addition to the 15 piles being installed under the same noise
attenuation scenario as the 5 aforementioned representative piles, they
are also anticipated to be installed under similar pile driving
specifications and in a similar acoustic environment. Table 4 describes
the key piling assumptions and planned impact pile driving schedule for
2024. These assumptions and schedule are based upon the 2023 piling and
hammer energy schedule for installing monopiles. Vineyard Wind 1
expects installation of the 15 remaining piles will necessitate similar
operations. Further, as described in detail in section 6.1 of the
Vineyard Wind 1 application, the water depth and bottom type are
similar throughout the Lease Area and therefore sound propagation in
the LIA is not expected to differ from where the SFV data were
collected in 2023.
Table 4--Key Piling Assumptions and Hammer Energy Schedule for Monopile Installation
----------------------------------------------------------------------------------------------------------------
Max hammer Max piling time
Pile type Project component energy rating Number of duration per Number
(kJ) hammer strikes pile (min) piles/day
----------------------------------------------------------------------------------------------------------------
9.6-m monopile.............. WTG............... 4,000 2,884-4,329 117 1
(average
3,463) \a\.
----------------------------------------------------------------------------------------------------------------
\a\ The number of hammer strikes represents the range of strikes needed to install the 12 monopiles for which
SFV was conducted in 2023.
Vineyard Wind 1 compared the acoustic ranges to the Level A
harassment and Level B harassment thresholds derived from the 2018
acoustic modeling (Py[cacute] et al., 2018) to the maximum ranges with
absorption for the five representative monopiles acoustically monitored
in 2023. They applied the greater results to the
[[Page 75676]]
analysis in their application and NMFS has included that approach in
this IHA. The maximum measured range to PTS thresholds of the five
representative monopiles was less than the maximum 2018 modeled ranges
for all hearing groups assuming 6 dB attenuation (table 5) (with the
exception of high-frequency cetaceans, although Vineyard Wind 1
attributes this extended range to non-piling noise (Vineyard Wind 1,
2023)). Therefore, Vineyard Wind 1 based the expected distance to the
Level A harassment threshold and associated estimated take analysis on
the 2018 modeled data.
Table 5--Modeled and Measured Ranges to SELcum PTS Thresholds for Marine Mammal Hearing Groups
----------------------------------------------------------------------------------------------------------------
Modeled range to SELcum Measured maximum range
Marine mammal hearing group PTS threshold (km) \a\ to SELcum PTS threshold
(km) \b\
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans....................................... 3.191 2.370
Mid-frequency cetaceans....................................... 0.043 0.010
High-frequency cetaceans...................................... 0.071 0.200
Phocid pinnipeds.............................................. 0.153 0.100
----------------------------------------------------------------------------------------------------------------
\a\ Based upon modeling conducted for the 2023 IHA (Py[cacute] et al., 2018).
\b\ Based upon the five representative monopiles from the Vineyard Wind 1 2023 construction campaign (K[uuml]sel
et al., 2024).
The maximum range with absorption to the Level B harassment
threshold for acoustically monitored piles was 5.72 km (3.6 mi) (pile
13, AU-38; K[uuml]sel et al., 2024), which was greater than the 2018
modeled distance to the Level B harassment threshold of 4.1 km (2.5 mi)
(Py[cacute] et al. 2018). Therefore, Vineyard Wind 1 based the expected
distance to the Level B harassment threshold for this IHA and
associated estimated take analysis on the 5.72 km acoustically
monitored distance.
In 2018, Vineyard Wind 1 conducted animat modeling to estimate
take, by Level A harassment (PTS), incidental to the project. In order
to best evaluate the SEL<INF>cum</INF> harassment thresholds for PTS,
it is necessary to consider animal movement, as the results are based
on how sound moves through the environment between the source and the
receiver. Applying animal movement and behavior within the modeled
noise fields provides the exposure range, which allows for a more
realistic indication of the distances at which PTS acoustic thresholds
are reached that considers the accumulation of sound over different
durations (note that in all cases the distance to the peak threshold is
less than the SEL-based threshold). As described above, Vineyard Wind 1
based the Level A harassment estimated take analysis on the modeled
Level A harassment acoustic ranges and therefore appropriately used the
results of the JASCO's Animal Simulation Model Including Noise Exposure
(JASMINE) animal movement modeling conducted for the 2023 IHA (86 FR
33810, June 25, 2021). Sound exposure models like JASMINE use simulated
animals (also known as ``animats'') to forecast behaviors of animals in
new situations and locations based upon previously documented behaviors
of those animals. The predicted 3D sound fields (i.e., the output of
the acoustic modeling process described earlier) are sampled by animats
using movement rules derived from animal observations. The output of
the simulation is the exposure history for each animat within the
simulation. The precise locations of animats and their pathways are not
known prior to a project; therefore, a repeated random sampling
technique (i.e., Monte Carlo) is used to estimate exposure probability
with many animats and randomized starting positions. The combined
exposure history of all animats gives a probability density function of
exposure during the Project.
Since the time that the JASMINE animal movement modeling was
conducted for the 2023 IHA (86 FR 33810, June 25, 2021), no new
behavior data is available that would have changed how animats move in
time and space in that model and, therefore, NMFS has determined that
the JASMINE outputs from the 2018 modeling effort are reasonable for
application here. However, the post processing calculations used more
recent density data (table 6). The mean number of modeled animats
exposed per day with installation of one 9.6-m monopile were scaled by
the maximum monthly density for the LIA (Roberts et al., 2023) for each
species (table 6) to estimate the real-world number of animats of each
species that could be exposed per day in the LIA. This real-world
number of animals was multiplied by the expected number of days of pile
installation (15 days) to derive a total take estimate by Level A
harassment for each species. The number of potential exposures by Level
A harassment was estimated for each species using the following
equation:
Density-based exposure estimate <INF>Level A harassment</INF> = number
of animats exposed above the Level A harassment threshold x ((mean
maximum monthly density (animals/km\2\)/modeled 2018 density (animats/
km\2\)) x number of days (15).
To estimate the amount of take by Level B harassment incidental to
installing the remaining 15 piles, Vineyard Wind 1 applied a static
method (i.e., did not conduct animal movement modeling). Vineyard Wind
1 calculated the Level B harassment ensonified area using the following
equation:
A = x r\2\,
where A is equal to the ensonified area and r is equal to the radial
distance to the Level B harassment threshold from the pile driving
source (r<INF>Level B harassment</INF> = 5.72 km).
The ensonified area (102.7 km\2\) was multiplied by the mean
maximum monthly density estimate (table 8) and expected number of days
of pile driving (15 days) to determine a density-based take estimate
for each species. The number of potential exposures by Level B
harassment was estimated for each species using the following equation:
Density-based exposure estimate <INF>Level B harassment</INF> =
ensonified area (km\2\) x maximum mean monthly density estimate
(animals/km\2\) x number of days (15).
Density and Occurrence and Take Estimation
In this section we provide information about marine mammal density,
presence, and group dynamics that informed the take calculations for
the planned activities. Vineyard Wind applied the 2022 Duke University
Marine Geospatial Ecology Laboratory Habitat-based Marine Mammal
Density Models for the U.S. Atlantic (Duke
[[Page 75677]]
Model-Roberts et al., 2016; Roberts et al., 2023) to estimate take from
foundation installation. The models estimate absolute density
(individuals/km\2\) by statistically correlating sightings reported on
shipboard and aerial surveys with oceanographic conditions. For most
marine mammal species, densities are provided on a monthly basis. Where
monthly densities are not available (e.g., pilot whales), annual
densities are provided. Moreover, some species are represented as
guilds (e.g., seals (representing Phocidae spp., primarily harbor and
gray seals and pilot whales (representing short-finned and long-finned
pilot whales))).
The Duke habitat-based density models delineate species' density
into 5 * 5 km (3.1 * 3.1 mi) grid cells. Vineyard Wind 1 calculated
mean monthly densities by using a 10-km buffered polygon around the
remaining WTG foundations to be installed and overlaying this buffered
polygon on the density maps. The 10-km buffer defines the area around
the LIA used to calculate mean species density. Mean monthly density
for each species was determined by calculating the unweighted mean of
all 5x5 km grid cells (partially or fully) within the buffered polygon.
The unweighted mean refers to using the entire 5 km x 5 km (3.1 mi x
3.1 mi) grid cell for each cell used in the analysis, and was not
weighted by the proportion of the cell overlapping with the density
perimeter if the entire grid cell was not entirely within the buffer
zone polygon. Vineyard Wind 1 calculated densities for each month,
except for species for which annual density data only was available
(e.g., long-finned pilot whale). Vineyard Wind 1 used maximum monthly
density from June to December for density-based calculations.
The density models (Roberts et al., 2023) provided density for
pilot whales and seals as guilds. Based upon habitat and ranging
patterns (Hayes et al., 2023), all pilot whales occurring in the LIA
are expected to be long-finned pilot whales. Therefore, all pilot whale
density estimates are assumed to represent long-finned pilot whales.
Seal guild density was divided into species-specific densities based
upon the proportions of each species observed by PSOs during 2016 and
2018-2021 site characterizations surveys within SNE (ESS Group, 2016;
Vineyard Wind 2018, 2019, 2023a-f). Of the 181 seals identified to
species and sighted within the WDA, 162 were gray seals and 19 were
harbor seals. The equation below shows how the proportion of each seal
species sighted was calculated to compute density for seals.
P<INF>seal species</INF> = N<INF>seal species</INF>/
Number<INF>total seals identified</INF>
where P represents density and N represents number of seals.
These calculations resulted in proportions of 0.895 for gray seals
and 0.105 for harbor seals. The proportion for each species was then
multiplied by the maximum monthly density for the seal guild (table 6)
to determine the species-specific densities used in take calculations.
The density models (Roberts et al., 2023) also do not distinguish
between bottlenose dolphin stocks and only provide densities for
bottlenose dolphins as a species. However, as described above, based
upon ranging patterns (Hayes et al., 2023), only the Western North
Atlantic offshore stock of bottlenose dolphins is expected to occur in
the LIA. Therefore, it is expected that the bottlenose dolphin density
estimate is entirely representative of this stock. Maximum mean monthly
density estimates and month of the maximum estimate are provided in
table 6 below.
Table 6--Maximum Mean Monthly Marine Mammal Density Estimates (Animals per km\2\) Considering a 10-km Buffer
Around the Limited Installation Area
----------------------------------------------------------------------------------------------------------------
Species Maximum mean density Maximum density month
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *.............. 0.0043 December.
Fin whale *............................... 0.0036 July.
Humpback whale............................ 0.0022 June.
Minke whale............................... 0.0180 June.
Sei whale *............................... 0.0008 November.
Sperm whale *............................. 0.0008 September.
Atlantic white-sided dolphin.............. 0.0204 June.
Bottlenose dolphin \a\.................... 0.008 August.
Common dolphin............................ 0.1467 September.
Long-finned pilot whale \b\............... 0.001 N/A.
Risso's dolphin........................... 0.0013 December.
Harbor porpoise........................... 0.0713 December.
Seals (gray and harbor) \c\............... 0.1745 May.
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Density estimate represents the Northwestern Atlantic offshore stock of bottlenose dolphins.
\b\ Only annual densities were available for the pilot whale guild.
\c\ Gray and harbor seals represented as a guild.
For some species, PSO survey and construction data for SNE (ESS
Group, 2016; Vineyard Wind, 2018, 2019, 2023a-f) and mean group size
data compiled from the AMAPPS (Palka et al., 2017; 2021) indicate that
the density-based exposure estimates may be insufficient to account for
the number of individuals of a species that may be encountered during
the planned activities. Hence, local PSO and AMAPPS data were
considered to ensure the potential for take is adequately assessed.
In cases where the density-based Level B harassment exposure
estimate for a species was less than the mean group size-based exposure
estimate, the take request was increased to the mean group size (in
some cases multiple groups were assumed) and rounded to the nearest
integer (table 7). For all cetaceans, with the exception of North
Atlantic right whales, Vineyard Wind 1 used the mean of the spring,
summer, and fall AMAPPS group sizes for each species for the Rhode
Island/Massachusetts Wind Energy Area (RI/MA WEA) as shown in tables 2-
2, 2-3, and 2-4 in Palka et al. (2021) appendix III. These seasons were
selected as they would represent the time period in which pile driving
activities would take place. Mean group sizes for cetacean species
derived from RI/WEA AMAPPS data is shown below in table 7.
[[Page 75678]]
However, North Atlantic right whale seasonal group sizes for the RI/MA
WEA were not available through the AMAPPS dataset (Palka et al., 2021).
Vineyard Wind 1 calculated mean group size for North Atlantic right
whales using data from the northeast (NE) shipboard surveys as provided
in table 6-5 of Palka et al. (2021). Vineyard Wind 1 calculated mean
group size by dividing the number of individual right whales sighted
(four) by the number of right whale groups (two) (Palka et al., 2021).
The NE shipboard surveys were conducted during summer (June 1 through
August 31) and fall (September 1 through November 30) seasons (Palka et
al., 2021).
For seals, mean group size data was also not available for the RI/
MA WEA through AMAPPS (Palka et al., 2021). Vineyard Wind 1 used 2010-
2013 AMAPPS NE shipboard and aerial survey at-sea seal sightings for
gray and harbor seals, as well as unidentified seal sightings from
spring, summer, and fall to calculate mean group size for gray and
harbor seals (table 19-1, Palka et al., 2017). To calculate mean group
size for seals, Vineyard Wind 1 divided the total number of animals
sighted by the total number of sightings. As the majority of the
sightings were not identified to species, Vineyard Wind 1 calculated a
single group size for all seal species (table 7).
Additional detail regarding the density and occurrence as well as
the assumptions and methodology used to estimate take is included below
and in section 6.2 of the incidental take authorization (ITA)
application. Mean group sizes used in take estimates, where applicable,
for all activities are provided in table 7.
Table 7--Mean Marine Mammal Group Sizes Used in Take Estimate Calculations
----------------------------------------------------------------------------------------------------------------
Species Mean group size Source
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *............ 2 Table 6-5 of Palka et al. 2021.
Fin whale *............................. 1.2 Palka et al. 2021.
Humpback whale.......................... 1.2 Palka et al. 2021.
Minke whale............................. 1.4 Palka et al. 2021.
Sei whale *............................. 1 Palka et al. 2021.
Sperm whale *........................... 2 Palka et al. 2021.
Atlantic white-sided dolphin............ 21.7 Palka et al. 2021.
Bottlenose dolphin...................... 11.7 Palka et al. 2021.
Common dolphin.......................... 30.8 Palka et al. 2021.
Long-finned pilot whale................. 12.3 Palka et al. 2021.
Risso's dolphin......................... 1.8 Palka et al. 2021.
Harbor porpoise......................... 2.9 Palka et al. 2021.
Seals (gray and harbor)................. 1.4 Table 19-1 of Palka et al. 2017.
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
Vineyard Wind 1 also looked at PSO survey data (June through
October 2023) in the LIA collected during Vineyard Wind 1 construction
activities and calculated a daily sighting rate for species to compare
with density-based take estimates and average group size estimates from
AMAPPS (table 7). The number of animals of each species sighted from
all survey vessels with active PSOs was divided by the sum of all PSO
monitoring days (77 days) to calculate the mean number of animals of
each species sighted (see table 11 in the ITA application). However,
for each species, the PSO data-based exposure estimate was less than
the density-based exposure estimate (see table 14 in the ITA
application) and, therefore, density-based exposure estimates were not
adjusted according to PSO data-based exposure estimates.
Here we present the amount of take requested by Vineyard Wind 1 and
authorized by NMFS. To estimate take, Vineyard Wind 1 used the pile
installation construction schedule shown in table 4, assuming 15 total
days of monopile installation. NMFS has reviewed these methods to
estimate take and agrees with this approach. The authorized take
numbers in table 9 appropriately consider SFV measurements collected in
2023 and represent the maximum amount of take that is reasonably
expected to occur.
Table 8--Modeled Level A Harassment and Level B Harassment Acoustic Exposure Estimates
----------------------------------------------------------------------------------------------------------------
Density-based exposure estimate
Species -------------------------------------------------
Level A harassment Level B harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale * \a\.............................. 0.503 6.6
Fin whale *................................................... 0.598 5.5
Humpback whale................................................ 1.11 3.4
Minke whale................................................... 0.372 27.7
Sei whale *................................................... 0.144 1.2
Sperm whale *................................................. 0 1.2
Atlantic white-sided dolphin.................................. 0 31.4
Bottlenose dolphin............................................ 0 12.3
Common dolphin................................................ 0 226.0
Long-finned pilot whale....................................... 0 1.5
Risso's dolphin............................................... 0 2.00
Harbor porpoise............................................... 2.758 109.8
Gray Seal..................................................... 0 240.8
Harbor seal................................................... 0.028 28.2
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Although modeling shows a very low but non-zero exposure estimate for take by Level A harassment, mitigation
measures will be applied to ensure there is no take by Level A harassment of this species.
[[Page 75679]]
Table 9--Authorized Takes (by Level A Harassment and Level B Harassment)
----------------------------------------------------------------------------------------------------------------
Authorized take Authorized take Total Percent of
Species NMFS stock by Level A by Level B authorized stock
abundance harassment harassment take abundance
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale * 338 0 7 7 2.07
\a\........................
Fin whale *................. 6,802 1 6 7 0.10
Humpback whale.............. 1,396 2 4 6 0.43
Minke whale................. 21,968 1 28 29 0.13
Sei whale *................. 6,292 1 2 3 0.05
Sperm whale *............... 4,349 0 2 2 0.05
Atlantic white-sided dolphin 93,233 0 32 32 0.03
Bottlenose dolphin.......... 62,851 0 13 13 0.02
Common dolphin b c.......... 172,974 0 462 462 0.27
Long-finned pilot whale \b\. 39,215 0 13 13 0.03
Risso's dolphin............. 35,215 0 2 2 0.001
Harbor porpoise............. 95,543 3 110 113 0.19
Gray Seal................... 27,300 0 241 241 0.88
Harbor seal................. 61,336 1 29 30 0.05
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Although modeling shows a very low but non-zero exposure estimate for take by Level A harassment, mitigation
measures will be applied to ensure there is no take by Level A harassment of this species.
\b\ Authorized take by Level B harassment adjusted according to mean group size.
\c\ Authorized take by Level B harassment is based upon the assumption that one group of common dolphins (30.8
dolphins; see table 7) would be encountered per each of the 15 days of pile driving.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
effect the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
For a fuller discussion of the least practicable adverse impact
standard, see 89 FR 31488, 31517 (April 24, 2024; NMFS' final rule for
Taking and Importing Marine Mammals Incidental to Geophysical Surveys
in the Gulf of Mexico.
The mitigation strategies described below are consistent with those
required and successfully implemented under previous incidental take
authorizations issued in association with in-water construction
activities (e.g., soft-start, establishing shutdown zones). Additional
measures have also been incorporated to account for the fact that the
planned construction activities would occur offshore. In addition,
several measures in this IHA (i.e., seasonal restrictions, vessel
strike avoidance, and clearance and shutdown zones) are more rigorous
than measures previously incorporated into the 2023 IHA.
Generally speaking, the mitigation measures considered and required
here fall into three categories: temporal (seasonal and daily) work
restrictions, real-time measures (shutdown, clearance, and vessel
strike avoidance), and noise attenuation/reduction measures. Seasonal
work restrictions are designed to avoid or minimize operations when
marine mammals are concentrated or engaged in behaviors that make them
more susceptible or make impacts more likely, in order to reduce both
the number and severity of potential takes, and are effective in
reducing both chronic (longer-term) and acute effects. Real-time
measures, such as implementation of shutdown and clearance zones, as
well as vessel strike avoidance measures, are intended to reduce the
probability or severity of harassment by taking steps in real time once
a higher-risk scenario is identified (e.g., once animals are detected
within an impact zone). Noise attenuation measures, such as bubble
curtains, are intended to reduce the noise at the source, which reduces
both acute impacts as well as the contribution to aggregate and
cumulative noise that may result in longer-term chronic impacts. Below,
we also describe the required training, coordination, and vessel strike
avoidance measures that apply to foundation installation and vessel
use.
Training and Coordination
NMFS requires all Vineyard Wind's employees and contractors
conducting activities on the water, including, but not limited to, all
vessel captains and crew, to be trained in marine mammal detection and
identification, communication protocols, and all required measures to
minimize impacts on marine mammals and support Vineyard Wind 1
compliance with the IHA. Additionally, all relevant personnel and the
marine mammal species monitoring team(s) are required to participate in
joint, onboard briefings prior to the beginning of project activities.
The briefing must be repeated whenever new relevant personnel (e.g.,
new PSOs, construction contractors,
[[Page 75680]]
relevant crew) join the project before work commences. During this
training, Vineyard Wind 1 is required to instruct all project personnel
regarding the authority of the marine mammal monitoring team(s). For
example, pile driving personnel are required to immediately comply with
any call for a delay or shut down by the Lead PSO. Any disagreement
between the Lead PSO and the project personnel must only be discussed
after delay or shutdown has occurred. In particular, all captains and
vessel crew must be trained in marine mammal detection and vessel
strike avoidance measures to ensure marine mammals are not struck by
any project or project-related vessel.
Prior to the start of in-water construction activities, Vineyard
Wind 1 will conduct training for construction and vessel personnel and
the marine mammal monitoring team (PSO and PAM operators) to explain
responsibilities, communication procedures, marine mammal detection and
identification, mitigation, monitoring, and reporting requirements,
safety and operational procedures, and authorities of the marine mammal
monitoring team(s). A description of the training program must be
provided to NMFS at least 60 days prior to the initial training before
in-water activities begin. Vineyard Wind 1 will provide confirmation of
all required training documented on a training course log sheet and
reported to NMFS Office of Protected Resources prior to initiating
project activities.
North Atlantic Right Whale Awareness Monitoring
Vineyard Wind must use available sources of information on North
Atlantic right whale presence, including daily monitoring of the Right
Whale Sightings Advisory System, U.S. Coast Guard very high-frequency
(VHF) Channel 16, WhaleAlert, and the PAM system throughout each day to
receive notifications of any sightings, and information associated with
any regulatory management actions (e.g., establishment of zones
identifying the need to reduce vessel speeds). Maintaining daily
awareness and coordination affords increased protection of North
Atlantic right whales by understanding North Atlantic right whale
presence in the area through ongoing visual and PAM efforts and
opportunities (outside of Vineyard Wind 1 efforts), and allows for
planning of construction activities, when practicable, to minimize
potential impacts on North Atlantic right whales. The vessel strike
avoidance measures apply to all vessels associated with the Project
within U.S. waters and on the high seas.
Vessel Strike Avoidance Measures
This final IHA contains numerous vessel strike avoidance measures
that reduce the risk that a vessel and marine mammal could collide.
While the likelihood of a vessel strike is generally low, it is one of
the most common ways that marine mammals are seriously injured or
killed by human activities. Therefore, the IHA contains enhanced
mitigation and monitoring measures to avoid vessel strikes, to the
extent practicable. While many of these measures are proactive,
intending to avoid the heavy use of vessels during times when marine
mammals of particular concern may be in the area, several are reactive
and occur when a project personnel sights a marine mammal. Vineyard
Wind 1 is required to comply with these measures except under
circumstances when doing so would create an imminent and serious threat
to a person or vessel or to the extent that a vessel is unable to
maneuver and, because of the inability to maneuver, the vessel cannot
comply.
While underway, Vineyard Wind 1 is required to monitor for and
maintain a safe distance from marine mammals, and operate vessels in a
manner that reduces the potential for vessel strike. Regardless of the
vessel's size, all vessel operators, crews, and dedicated visual
observers (i.e., PSO or trained crew member) must maintain a vigilant
watch for all marine mammals and slow down, stop their vessel, or alter
course as appropriate to avoid striking any marine mammal. The
dedicated visual observer, equipped with suitable monitoring technology
(e.g., binoculars, night vision devices), must be located at an
appropriate vantage point for ensuring vessels are maintaining required
vessel separation distances from marine mammals (e.g., 500 m from North
Atlantic right whales).
For all project-related vessels, regardless of size, the vessel
operator is required to immediately reduce speeds to 10 kn (11.5 mph)
or less if any large whale, mother/calf pair, or large assemblage of
non-delphinid cetaceans are observed within 500 m of the vessel.
Additionally, all project vessels, regardless of size, must maintain a
500-m minimum separation zone from North Atlantic right whales, and a
100-m minimum separation zone from sperm whales and non-North Atlantic
right whale baleen species. Vessels are also required to keep a minimum
separation distance of 50 m from all delphinid cetaceans and pinnipeds,
with an exception made for those species that approach the vessel
(i.e., bow-riding dolphins) (table 10). All reasonable steps must be
taken to not violate minimum separation distances. If any of these
species are sighted within their respective minimum separation zone,
the underway vessel must shift its engine to neutral (if it is safe to
do so) and turn away from the animal(s). The engines must not be
engaged until the animal(s) have been observed to be outside of the
vessel's path and beyond 100 m (for sperm whales and non-North Atlantic
right whale large whales) or 50 m (for delphinids and pinnipeds).
If any North Atlantic right whales are sighted at any distance by
any project personnel or acoustically detected, project vessels must
reduce speeds to 10 kn (11.5 mph) and turn away from the animal.
Additionally, if any large whale (other than a North Atlantic right
whale) is sighted within 500 m of an underway vessel by project
personnel, the vessel is required to immediately reduce speeds to 10 kn
(11.5 mph) or less and turn away from the animal.
All of the Project-related vessels are required to comply with the
measures within this IHA for operating vessels around North Atlantic
right whales and other marine mammals, as well as any existing NMFS
vessel speed restrictions in effect for North Atlantic right whales
(see 50 CFR 224.105). When NMFS vessel speed restrictions are not in
effect and a vessel is traveling at greater than 10 kn (11.5 mph), in
addition to the required dedicated visual observer, Vineyard Wind 1 is
required to monitor the transit corridor, defined as from a port to the
lease area or return, in real-time with PAM prior to and during
transits. To maintain awareness of North Atlantic right whale presence
in the Project Area, vessel operators, crew members, and the marine
mammal monitoring team will monitor U.S. Coast Guard VHF Channel 16,
WhaleAlert, the Right Whale Sighting Advisory System (RWSAS), and the
PAM system. Any North Atlantic right whale or large whale detection
will be immediately communicated to PSOs, PAM operators, and all vessel
captains. All vessels will be equipped with a properly installed,
operational AIS and Vineyard Wind 1 must report all MMSI numbers to
NMFS Office of Protected Resources prior to initiating in-water
activities. Vineyard Wind 1 must submit a Marine Mammal Vessel Strike
Avoidance Plan that must be approved by NMFS prior to commencement of
vessel use, and Vineyard Wind 1 must abide by this plan.
Compliance with these measures will reduce the likelihood of vessel
strike to the extent practicable. These measures
[[Page 75681]]
increase awareness of marine mammals in the vicinity of project vessels
and require project vessels to reduce speed when marine mammals are
detected (by PSOs, PAM, and/or through another source, e.g., RWSAS) and
maintain separation distances when marine mammals are encountered.
While visual monitoring is useful, reducing vessel speed is one of the
most effective, feasible options available to reduce the likelihood of
and effects from a vessel strike. Numerous studies have indicated that
slowing the speed of vessels reduces the risk of lethal vessel
collisions, particularly in areas where right whales are abundant and
vessel traffic is common and otherwise traveling at high speeds
(Vanderlaan and Taggart, 2007; Conn and Silber, 2013; Van der Hoop et
al., 2014; Martin et al., 2015; Crum et al., 2019).
Given the inherent low probability of vessel strike, combined with
the vessel strike avoidance measures included herein, NMFS considers
the potential for vessel strike to be unlikely and does not authorize
take from this activity under this IHA.
Table 10--Vessel Strike Avoidance Separation Zones
------------------------------------------------------------------------
Vessel separation zone
Marine mammal species (m)
------------------------------------------------------------------------
North Atlantic right whale..................... 500
Other ESA-listed species and non-North Atlantic 100
right whale large whales......................
Other marine mammals \a\....................... 50
------------------------------------------------------------------------
\a\ With the exception of seals and delphinid(s) from the genera
Delphinus, Lagenorhynchus, Stenella, or Tursiops, as described below.
Seasonal and Daily Restrictions
Temporal restrictions in places where marine mammals are
concentrated, engaged in biologically important behaviors, and/or
present in sensitive life stages are effective measures for reducing
the magnitude and severity of human impacts. The temporal restrictions
described here are built around North Atlantic right whale protection.
Based upon the best scientific information available (Roberts et al.,
2023), the highest densities of North Atlantic right whales in the
specific geographic region are expected during the months of January
through May, with an increase in density starting in December. However,
North Atlantic right whales may be present in the LIA throughout the
year.
NMFS is requiring seasonal work restrictions to minimize risk of
noise exposure to the North Atlantic right whales incidental to pile
driving activities to the extent practicable. These seasonal work
restrictions are expected to reduce the number of takes of North
Atlantic right whales and further reduce vessel strike risk. These
seasonal restrictions also afford protection to other marine mammals
that are known to use the LIA with greater frequency during winter
months, including other baleen whales.
As described previously, no impact pile driving activities may
occur January 1 through May 31st. Vineyard Wind plans to install no
more than 1 pile per day and only initiate impact pile driving during
daylight hours. Foundation installation will not be initiated later
than 1.5 hours before civil sunset. Generally, foundation installation
may continue after dark when the installation of the same pile began
during daylight (1.5 hours before civil sunset), when clearance zones
were fully visible for at least 30 minutes and must proceed for human
safety or installation feasibility reasons.
Monopiles must be no larger than 9.6 m in diameter. The impact
hammer operator must not exert more than 4,000 kJ on the pile being
installed. No more than one pile may be installed at a given time
(i.e., concurrent/simultaneous pile driving may not occur).
Noise Attenuation Systems
Vineyard Wind 1 is required to employ noise abatement systems
(NASs), also known as noise attenuation systems, during all foundation
installation activities to reduce the sound pressure levels that are
transmitted through the water. This will reduce acoustic ranges to the
Level A harassment and Level B harassment acoustic thresholds and
minimize, to the extent practicable, any acoustic impacts resulting
from these activities. Vineyard Wind is required to use a double big
bubble curtain (DBBC) and HSD in addition to an enhanced BBC
maintenance schedule. The refined NAS design (DBBC + HSD + enhanced BBC
maintenance schedule) used during the 2023 construction activities will
be used on the 15 remaining piles to minimize noise levels. A single
bubble curtain, alone or in combination with another NAS device, may
not be used for pile driving, as received SF
[…truncated; see source link]Indexed from Federal Register on September 16, 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.