Notice2024-21670
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys off New York and New Jersey in the New York Bight
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 23, 2024
Effective
September 18, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS has issued a renewal incidental harassment authorization (IHA) to Attentive Energy, LLC (Attentive Energy), associated with marine site characterization surveys in coastal waters off of New York and New Jersey in the New York Bight, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (Lease) Area OCS-A 0538 and associated export cable route (ECR) area.
Full Text
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<title>Federal Register, Volume 89 Issue 184 (Monday, September 23, 2024)</title>
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[Federal Register Volume 89, Number 184 (Monday, September 23, 2024)]
[Notices]
[Pages 77479-77486]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-21670]
[[Page 77479]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE194]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys off New York and New Jersey in the New York Bight
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of renewal 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 a renewal incidental harassment authorization
(IHA) to Attentive Energy, LLC (Attentive Energy), associated with
marine site characterization surveys in coastal waters off of New York
and New Jersey in the New York Bight, specifically within the Bureau of
Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf (Lease)
Area OCS-A 0538 and associated export cable route (ECR) area.
DATES: This renewal IHA is effective from September 18, 2024 through
June 19, 2025.
ADDRESSES: Electronic copies of the original application, renewal
request, and supporting documents (including the Federal Register
notices of the original proposed and final authorizations, and the
previously issued and renewal IHA), as well as a list of the references
cited in this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In case of
problems accessing these documents, please call the contact listed
below.
FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are promulgated or, if the taking is limited to harassment, an
incidental harassment authorization is issued.
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 such species or stocks for
taking for certain subsistence uses (referred to here as ``mitigation
measures''). NMFS must also prescribe requirements pertaining to
monitoring and reporting of such takings. The definition of key terms
such as ``take,'' ``harassment,'' and ``negligible impact'' can be
found in the MMPA and NMFS's implementing regulations (see 16 U.S.C.
1362; 50 CFR 216.103).
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods of time not to
exceed 1 year for each reauthorization. In the notice of proposed IHA
for the initial IHA, NMFS described the circumstances under which we
would consider issuing a renewal for this activity, and requested
public comment on a potential renewal under those circumstances.
Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year
renewal IHA following notice to the public providing an additional 15
days for public comments when (1) up to another year of identical, or
nearly identical, activities as described in the Detailed Description
of Specified Activities section of the initial IHA issuance notice is
planned, or (2) the activities as described in the Description of the
Specified Activities and Anticipated Impacts section of the initial IHA
issuance notice would not be completed by the time the initial IHA
expires and a renewal would allow for completion of the activities
beyond that described in the DATES section of the notice of issuance of
the initial IHA, provided all of the following conditions are met:
1. A request for renewal is received no later than 60 days prior to
the needed renewal IHA effective date (recognizing that the renewal IHA
expiration date cannot extend beyond 1 year from expiration of the
initial IHA).
2. The request for renewal must include the following:
<bullet> An explanation that the activities to be conducted under
the requested renewal IHA are identical to the activities analyzed
under the initial IHA, are a subset of the activities, or include
changes so minor (e.g., reduction in pile size) that the changes do not
affect the previous analyses, mitigation and monitoring requirements,
or take estimates (with the exception of reducing the type or amount of
take).
<bullet> A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
3. Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed renewal. A description of the renewal process
may be found on our website at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>.
History of Request
On June 20, 2023, NMFS issued an IHA to Attentive Energy, a company
registered in the state of Delaware, to take marine mammals incidental
to marine site characterization surveys in coastal waters off of New
York and New Jersey in the New York Bight region, specifically within
BOEM Lease Area OCS-A-0538 and associated ECR area (88 FR 41888, June
28, 2023), effective from June 20, 2023, through June 19, 2024. On May
24, 2024, NMFS received an application from Attentive Energy for the
renewal of the 2023 IHA. As described in the application for renewal
IHA, the activities for which incidental take was requested consisted
of activities that were analyzed for the initial 2023 authorization,
but were not able to be completed prior to its expiration. As required,
Attentive
[[Page 77480]]
Energy also provided a final monitoring report (available 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>) which confirms
that Attentive Energy had implemented the required mitigation and
monitoring, and also showed that no impacts of a scale or nature not
previously analyzed or authorized have occurred as a result of the
activities conducted. The notice of the proposed renewal incidental
harassment authorization was published for public comment on August 7,
2024 (89 FR 64414). There are no changes from the proposed
authorization to this final authorization.
Description of the Specified Activities and Anticipated Impacts
Under the initial IHA, Attentive Energy planned to conduct marine
site characterization surveys, including high-resolution geophysical
(HRG) surveys, in coastal waters off of New Jersey and New York in the
New York Bight, specifically within BOEM Lease Area OCS-A 0538 and
associated ECR areas. Challenges and delays with procurement,
mobilization, and downtime contributed to less survey being completed
during the initial IHA period than anticipated.
The surveys were designed to obtain data sufficient to meet BOEM
guidelines for providing geophysical, geotechnical, and geo-hazard
information for site assessment plan surveys and/or construction and
operations plan development. The objective of the surveys was to
support the site characterization, siting, and engineering design of
offshore wind project facilities including wind turbine generators,
offshore substations, and submarine cables within the Lease Area. At
least two survey vessels would operate as part of the planned surveys
with a maximum of two nearshore (<20 meters (m); <65.6 feet (ft))
vessels and a maximum of two offshore (>=20 m (>=65.6 ft)) vessels
operating concurrently.
Attentive Energy plans to continue to conduct these survey
activities, as per the initial IHA application, up to approximately
6,936 kilometers (km; 4,309.8 miles (mi)) of trackline. This is a
subset of the survey trackline included in the initial IHA; the initial
survey plan included 21,745 km (13,511.72 mi) across the entire project
area (maximum-case scenario), which was split up by approximately
14,025 km (8,714.7 mi) in the Lease Area and 7,720 km (4,797 mi) in the
ECR area. We note here that the Project Area is minimally expanded
(primarily to the south) in the current survey plan as compared with
the survey plan associated with the initial IHA (see figure 1 in the
proposed renewal Federal Register notice); however, this expansion of
the survey area will not result in any increase to the amount of
planned survey trackline distance. NMFS has determined that this slight
change to the survey area constitutes a minor change that does not
affect the previous analyses, mitigation and monitoring requirements,
or take estimates.
The potential impacts of Attentive Energy's planned activities on
marine mammals involve potential acoustic stressors and are unchanged
from the impacts described in the Federal Register notice for the
proposed 2023 IHA (88 FR 24553, April 21, 2023). Underwater sound,
resulting from particular components of Attentive Energy's HRG survey
activities, has the potential to result in incidental take of marine
mammals, in the form of Level B harassment only, in the specified
geographic region.
This renewal IHA is for the remainder of work that was not
completed by the expiration date of the 2023 IHA. The renewal IHA
authorizes incidental take, by Level B harassment only, of 15 species
(comprising 16 stocks) of marine mammals for a subset of marine site
characterization survey activities to be completed in less than 1 year
(i.e., by June 19, 2025), in the same general area, using survey
methods identical to those conducted under the initial 2023 IHA.
Neither Attentive Energy nor NMFS expects serious injury or mortality
to result from this activity and, therefore, an IHA is appropriate.
Take by Level A harassment (injury) is unlikely, even absent
mitigation, based on the characteristics of the signals produced by the
acoustic sources planned for use. Therefore, the anticipated effects on
marine mammals and the affected stocks also remain the same. All
mitigation, monitoring, and reporting measures would remain exactly as
described in the Federal Register notice for the issued 2023 IHA (88 FR
41888, June 28, 2023).
Detailed Description of the Specified Activity
A detailed description of the marine site characterization survey
activities for which incidental take is authorized here may be found in
the Federal Register notice of the proposed 2023 IHA (88 FR 24553,
April 21, 2023). The specific geographic region and specified
activities, including the types of survey equipment and number of
survey vessels planned for use, are identical to those described in the
previous notices, with the exception of a minor increase in in the size
of the survey area to the south to accommodate expanded survey options
for the ECR.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which authorization of take is proposed here, including information
on abundance, status, distribution, and hearing, may be found in the
Federal Register notice of the proposed IHA for the initial
authorization (88 FR 24553, April 21, 2023). Since the publication of
the final Federal Register notice (88 FR 41888, June 28, 2023), NMFS
has reviewed the monitoring data from the initial IHA, the draft 2023
stock assessment reports (SARs), which included updates to certain
stock abundances since the initial IHA was issued, information on
relevant unusual mortality events (UME), and other scientific
literature. The draft 2023 SAR updated the population estimate
(N<INF>best</INF>) of North Atlantic right whales from 338 to 340 and
annual mortality and serious injury from 31.2 to 27.2. The updated
population estimate in the draft 2023 SAR is based upon sighting
history through December 2021 (89 FR 5495, January 29, 2024). Total
annual average observed North Atlantic right whale mortality during the
2017-2021 period was 7.1 animals and annual average observed fishery
mortality was 4.6 animals, however, estimates of 27.2 total mortality
and 17.6 fishery mortality account for undetected mortality and serious
injury (89 FR 5495, January 29, 2024). In October 2023, NMFS released a
technical report identifying that the North Atlantic right whale
population size based on sighting history through 2022 was 356 whales,
with a 95 percent credible interval ranging from 346 to 363 (Linden,
2023).
The draft 2023 SARs include updates for additional marine mammal
species and stocks (i.e., North Atlantic right whale, fin whale, sei
whale, minke whale, sperm whale, Atlantic spotted dolphin, Atlantic
white-sided dolphin, bottlenose dolphin (Western North Atlantic--
Offshore stock), common dolphin, long-finned pilot whales, Risso's
dolphin, harbor porpoise, and gray seal), which are specifically
included in table 1 in the proposed renewal Federal Register notice (89
FR 64414, August 7, 2024). For species for which there has been no
change between the finalization of the final 2022 SARs to the release
of the draft 2023 SARs, NMFS has also noted this in table 1 of the
proposed renewal Federal Register notice.
On August 1, 2022, NMFS announced proposed changes to the existing
North
[[Page 77481]]
Atlantic right whale vessel speed regulations to further reduce the
likelihood of mortalities and serious injuries to endangered North
Atlantic right whales from vessel collisions, which are a leading cause
of the species' decline and a primary factor in an ongoing Unusual
Mortality Event (87 FR 46921, August 1, 2022). Should a final vessel
speed rule be issued and become effective during the effective period
of this proposed renewal IHA (or any other MMPA incidental take
authorization), the authorization holder would be required to comply
with any and all applicable requirements contained within the final
rule. Specifically, where measures in any final vessel speed rule are
more protective or restrictive than those in this or any other MMPA
authorization, authorization holders would be required to comply with
the requirements of the rule. Alternatively, where measures in this or
any other MMPA authorization are more restrictive or protective than
those in any final vessel speed rule, the measures in the MMPA
authorization would remain in place. These changes would become
effective immediately upon the effective date of any final vessel speed
rule and would not require any further action on NMFS's part.
NMFS has determined that no new information has been presented that
may affect or change any other information in the Description of the
Marine Mammals in the Area of Specified Activities contained in the
supporting documents and in the Federal Register notice for the
proposed renewal IHA (89 FR 64414, August 7, 2024).
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which take is
authorized here may be found in the Federal Register notice of the
proposed IHA for the initial authorization (88 FR 24553, April 21,
2023). NMFS has reviewed the monitoring data from the initial IHA,
recent Stock Assessment Reports, information on relevant Unusual
Mortality Events, other scientific literature, and the public comments,
and determined that there is no new information that affects our
initial analysis of impacts on marine mammals and their habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the Federal Register
notices of the proposed and final IHAs for the initial authorization
(88 FR 24553, April 21, 2023; 88 FR 41888, June 28, 2023) and
referenced in the Federal Register notice for the proposed renewal IHA
(89 FR 64414, August 7, 2024). Specifically, the source levels, days of
operation, and marine mammal density/occurrence data applicable to this
authorization remain unchanged from the previously issued IHA.
Similarly, the stocks taken, methods of take, and types of take remain
unchanged from the previously issued IHA. The number of takes
authorized in this renewal IHA are a subset of the initial authorized
takes that better represent the amount of activity that Attentive
Energy has left to complete. These estimated takes, which reflect the
remaining survey days, are indicated below in table 1.
Table 1--Number of Takes by Level B Harassment by Species and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
Percentage of
trackline Authorized
Common name Population remaining in takes based on Percent of
abundance relevant remaining population
habitat trackline
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...................... 340 32 4 1.18
Fin whale....................................... 6,802 32 12 0.18
Humpback whale.................................. 1,396 32 8 0.57
Minke whale..................................... 21,968 32 57 0.26
Sei whale....................................... 6,292 32 4 0.06
Sperm whale..................................... 5,895 32 1 0.02
Atlantic spotted dolphin........................ 31,506 32 28 0.09
Atlantic white-sided dolphin.................... 93,233 32 66 0.07
Bottlenose dolphin--Western North Atlantic 64,587 28 489 0.76
Offshore.......................................
Bottlenose dolphin--Northern Migratory Coastal.. 6,639 93 362 5.45
Common dolphin.................................. 93,100 32 658 0.71
Long-finned pilot whale......................... 39,215 32 7 0.02
Risso's dolphin................................. 44,067 32 7 0.02
Harbor porpoise................................. 85,765 32 350 0.41
Gray seal....................................... 27,911 32 511 1.83
Harbor seal..................................... 61,336 32 511 0.83
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Description of Mitigation, Monitoring and Reporting Measures
The required mitigation, monitoring, and reporting measures
included as requirements in this authorization are identical to those
included in the Federal Register notice announcing the issuance of the
initial IHA (88 FR 41888, June 28, 2023), the Federal Register notice
for the proposed renewal IHA (89 FR 64414, August 7, 2024), and the
discussion of the least practicable adverse impact included in that
document and the Federal Register notice of the proposed IHA (88 FR
24553, April 21, 2023) remains accurate. The following measures are
required for this renewal IHA:
<bullet> Ramp-up: A ramp-up procedure would be used for geophysical
survey equipment capable of adjusting energy levels (i.e., any acoustic
source with a non-binary switch) at the start or re-start of survey
activities;
<bullet> Protected Species Observers (PSOs): A minimum of one NMFS-
approved PSO must be on duty and conducting visual observations at all
times during daylight hours (i.e., from 30 minutes prior to sunrise
through 30 minutes following sunset). Two PSOs would be on duty during
nighttime operations;
<bullet> Pre-Operation Clearance Protocols: Prior to initiating HRG
survey activities, Attentive Energy would be required to implement a
30-minute pre-operation clearance period. If any marine mammals are
detected within the Exclusion Zones prior to or during ramp-up, the HRG
equipment would be shut down (as described below);
[[Page 77482]]
<bullet> Shutdown Zones: If an HRG source is active and a marine
mammal is observed within or entering a relevant shutdown zone, an
immediate shutdown of the HRG survey equipment would be required. We
note that this shutdown requirement would be waived for certain genera
of small delphinids (i.e., Delphinus, Lagenorhynchus, Stenella, or
Tursiops) and pinnipeds;
<bullet> Vessel Strike Avoidance Measures: 500 m (1,640 ft)
separation distances for North Atlantic right whales and other large
Endangered Species Act (ESA) listed whales (i.e., fin whale, sei whale,
and sperm whale), 100 m (328 ft) for other non-ESA listed baleen whales
(i.e., minke whale and humpback whale), and 50 m (164 ft) for all other
marine mammals); as well as restricted vessel speeds and operational
maneuvers; and
<bullet> Reporting: Attentive Energy would submit a marine mammal
report within 90 days following their completion of the surveys.
Comments and Responses
A notice of NMFS' proposal to issue a renewal IHA to Attentive
Energy was published in the Federal Register on August 7, 2024 (89 FR
64414). That notice either described, or referenced descriptions of,
Attentive Energy's activity, the marine mammal species that may be
affected by the activity, the anticipated effects on marine mammals and
their habitat, estimated amount and manner of take, and proposed
mitigation, monitoring and reporting measures.
During the 15-day public comment period, NMFS received one comment
from a member of the public and one comment letter from a non-
governmental organization, Clean Ocean Action (COA). NMFS has reviewed
all public comments received on the Attentive Energy renewal HRG IHA.
All relevant, substantive comments, and NMFS' responses, are provided
below. Comments indicating general opposition to offshore wind
construction are not relevant to the proposed action and therefore were
not considered and are not addressed here. The comments and
recommendations are available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. Please see the
comment submissions for full details regarding the recommendations and
supporting rationale.
Comment 1: COA expressed concern with the slight modification to
the survey area described in Attentive Energy's renewal request (89 FR
64414, August 7, 2024). COA asserts that NMFS has provided insufficient
support for its determination that this is a minor change to the
initial action that would not affect any previous analysis, mitigation
and monitoring requirements, and take estimates. COA states that NMFS
should provide additional support for its conclusion and that it does
not believe that the survey area is ``nearly identical.'' COA claims
that the expanded survey area now includes additional haulout sites for
seals along Barnegat Light on Long Beach Island (Normandeau Associates,
Inc., 2019) and a migratory corridor for several marine mammals (i.e.,
humpback whale, fin whale, and North Atlantic right whales) not
previously included. COA also stated that NMFS did not adjust the
number of takes proposed for authorization based on this additional
information and, therefore, should not issue the renewal IHA to
Attentive Energy.
Response: Regarding the take estimates, NMFS disagrees with COA's
suggestion that the minor change to the planned survey area presents
new information requiring additional analysis. We note that the total
amount of trackline planned to be surveyed under this renewal IHA has
not increased, when compared to what remains from the initial IHA even
given the minor shift in the planned survey area. Changes to the
density values over the entirety of the survey area are, overall,
inconsequential and do not result in meaningful changes to the take
numbers which, in context of the subset of activity that remains, are
less than those estimated and authorized through the initial IHA.
NMFS agrees with COA that the expanded area, inclusive of the
initial project area as well, includes habitat for marine mammals,
including pinniped haulouts and migratory habitat for certain cetacean
species. The survey area described for the initial IHA included the
same migratory habitat for the same cetacean species, as well as
coastal habitat where pinnipeds may choose to haul out. Contrary to
COA's assertion that the minor expansion of the survey area to cover a
new potential ECR would affect new habitat areas not previously
considered, cetacean migratory habitat is typically broad and there are
not differences in the type, location, or use of such habitat over the
relatively fine scales considered here. Regarding pinniped haulout
habitat, such locations are typically opportunistic and, given their
shore-based locations, unlikely to be affected at all by the planned
survey activity. Furthermore, while they may now fall within the
slightly expanded project area, there is no new information about the
haulout sites along Barnegat Light on Long Beach Island to suggest that
they are dissimilar from those off the Long Island area, as compared
with those previously analyzed for pinnipeds under the initial Federal
Register notice. Therefore, there is nothing new to consider in
relation to the analysis described herein. NMFS adequately considered
all available information regarding potential impacts to all marine
mammal habitat in its analysis supporting the issuance of the initial
IHA, and the minor change considered as part of this renewal IHA
presents no new information regarding potential impacts to marine
mammal habitat.
Comment 2: COA asserted that NMFS should reject Attentive Energy's
application until the cumulative impacts of every incidental take
authorization on marine mammals are considered. COA also stated that
NMFS must fully consider the discrete effects of each activity and the
cumulative effects of the suite of approved, proposed, and potential
offshore wind activities on marine mammals and ensure that the
cumulative effects are not excessive before issuing or renewing an IHA.
Response: NMFS is required to authorize the requested incidental
take if it finds the incidental take by harassment of small numbers of
marine mammals by U.S. citizens ``while engaging in that [specified]
activity'' within a specified geographic region will have a negligible
impact on such species or stock and where appropriate, will not have an
unmitigable adverse impact on the availability of such species or stock
for subsistence uses (see 16 U.S.C. 1371(a)(5)(D)). 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 effects on annual rates
of recruitment or survival'' (50 CFR 216.103). Neither the MMPA, nor
NMFS' implementing regulations, require consideration of other
unrelated activities and their impacts on marine mammal populations in
the negligible impact determination. Additionally, NMFS' implementing
regulations require applicants to include in their request a detailed
description of the specified activity or class of activities that can
be expected to result in incidental taking of marine mammals (50 CFR
216.104(a)(1)). Thus, the ``specified activity'' for which incidental
take coverage is being sought under section 101(a)(5)(D) is generally
defined and described by the applicant. Consistent with the preamble of
NMFS' implementing regulations (54 FR 40338,
[[Page 77483]]
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 (54 FR 40338,
September 29, 1989) 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 listed species, as appropriate. Accordingly, NMFS has written
Environmental Assessments (EA) that addressed cumulative impacts
related to substantially similar activities in similar locations (e.g.,
the 2019 Avangrid EA for survey activities offshore North Carolina and
Virginia; the 2017 Ocean Wind, LLC EA for site characterization surveys
off New Jersey; and the 2018 Deepwater Wind EA for survey activities
offshore Delaware, Massachusetts, and Rhode Island). Cumulative impacts
regarding issuance of IHAs for site characterization survey activities
such as those planned by Attentive Energy have been adequately
addressed under NEPA in prior environmental analyses that support NMFS'
determination that this action is appropriately categorically excluded
from further NEPA analysis. NMFS independently evaluated the use of a
categorical exclusion (CE) for issuance of Attentive Energy's IHA,
which included consideration of extraordinary circumstances.
Separately, the cumulative effects of substantially similar
activities in the northwest Atlantic Ocean have been analyzed in the
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion
for BOEM Lease and Site Assessment Activities on the Atlantic Outer
Continental Shelf in Rhode Island, Massachusetts, New York, and New
Jersey Wind Energy Areas (<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed activities include those for which NMFS issued
previous IHAs (82 FR 31562, July 7, 2017; 83 FR 28808, June 21, 2018;
83 FR 36539, July 30, 2018; and 86 FR 26465, May 10, 2021), which are
similar to those planned by Attentive Energy under this current IHA
request. This Biological Opinion determined that NMFS' issuance of IHAs
for site characterization survey activities associated with leasing,
individually and cumulatively, are not likely to adversely affect
listed marine mammals. NMFS notes that, while issuance of this IHA is
covered under a different consultation, this Biological Opinion remains
valid. Additionally, to date, Biological Opinions have been developed
and competed for several ongoing offshore wind construction projects,
which all include HRG surveys within the scope of the proposed actions
(see the final Biological Opinions for Ocean Wind 1 (<a href="https://repository.library.noaa.gov/view/noaa/49689">https://repository.library.noaa.gov/view/noaa/49689</a>), Revolution Wind's
original (<a href="https://repository.library.noaa.gov/view/noaa/51759">https://repository.library.noaa.gov/view/noaa/51759</a>) and
reinitiated (<a href="https://www.fisheries.noaa.gov/s3/2024-05/2024-Rev-Wind-BiOp-508.pdf">https://www.fisheries.noaa.gov/s3/2024-05/2024-Rev-Wind-BiOp-508.pdf</a>), CVOW-C (<a href="https://repository.library.noaa.gov/view/noaa/55495">https://repository.library.noaa.gov/view/noaa/55495</a>), Empire Wind (<a href="https://repository.library.noaa.gov/view/noaa/55324">https://repository.library.noaa.gov/view/noaa/55324</a>), Sunrise Wind (<a href="https://repository.library.noaa.gov/view/noaa/55726">https://repository.library.noaa.gov/view/noaa/55726</a>), New England Wind (<a href="https://repository.library.noaa.gov/view/noaa/60610">https://repository.library.noaa.gov/view/noaa/60610</a>), and Maryland Wind (<a href="https://repository.library.noaa.gov/view/noaa/61632">https://repository.library.noaa.gov/view/noaa/61632</a>)). These Biological Opinions for larger-scale
construction and development projects have all assessed the cumulative
activities occurring within the relevant project areas, which include
HRG activities occurring under IHAs, as well as HRG surveys and other
construction activities occurring under Incidental Take Regulations and
associated issued Letters of Authorization. In all cases, the HRG
surveys analyzed within these Biological Opinions are of substantially
similar activities, using the same or similar acoustic sources as those
planned for use by Attentive Energy under this renewal IHA. Based on
this information, NMFS believes the discrete and cumulative effects
have been adequately analyzed and considered under these existing
documents.
Comment 3: COA states its opposition to the use of a categorical
exclusion under NEPA for this renewal action.
Response: NMFS does not agree with COA's comment. A CE is a
category of actions that an agency has determined does not individually
or cumulatively have a significant effect on the quality of the human
environment, and is appropriately applied for such categories of
actions so long as there are no extraordinary circumstances present
that would indicate that the effects of the action may be significant.
Extraordinary circumstances are situations for which NOAA has
determined further NEPA analysis is required because they are
circumstances in which a normally excluded action may have significant
effects. A determination of whether an action that is normally excluded
requires additional evaluation because of extraordinary circumstances
focuses on the action's potential effects and considers the
significance of those effects in terms of both context (consideration
of the affected region, interests, and resources) and intensity
(severity of impacts). Potential extraordinary circumstances relevant
to this action include (1) adverse effects on species or habitats
protected by the MMPA that are not negligible; (2) highly controversial
environmental effects; (3) environmental effects that are uncertain,
unique, or unknown; and (4) the potential for significant cumulative
impacts when the proposed action is combined with other past, present,
and reasonably foreseeable future actions.
The relevant NOAA CE associated with issuance of incidental take
authorizations is CE B4, ``Issuance of incidental harassment
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the
incidental, but not intentional, take by harassment of marine mammals
during specified activities and for which no serious injury or
mortality is anticipated.'' This action falls within CE B4. In
determining whether a CE is appropriate for a given incidental take
authorization, NMFS considers the applicant's specified activity and
the potential extent and magnitude of takes of marine mammals
associated with that activity along with the extraordinary
circumstances listed in the Companion Manual for NOAA Administrative
Order (NAO) 216-6A and summarized above. The evaluation of whether
extraordinary circumstances (if present) have the potential for
significant environmental effects is limited to the decision NMFS is
responsible for, which is issuance of the incidental take
authorization. While there may be environmental effects associated with
the underlying action, potential effects of NMFS' action are limited to
those that would occur due to the authorization of incidental take of
marine mammals. NMFS prepared numerous EAs analyzing the environmental
impacts of the categories of activities encompassed by CE B4 which
resulted in Findings of No Significant Impacts and, in particular,
[[Page 77484]]
numerous EAs prepared in support of issuance of IHAs related to similar
survey actions are part of NMFS' administrative record supporting CE
B4. These EAs demonstrate that the issuance of a given incidental
harassment authorization does not affect other aspects of the human
environment because the action only affects the marine mammals that are
the subject of the IHAs. These EAs also addressed factors in 40 CFR
1508.27 regarding the potential for significant impacts and demonstrate
the issuance of IHAs for the categories of activities encompassed by CE
B4 do not individually or cumulatively have a significant effect on the
human environment.
Specifically for this action, NMFS independently evaluated the use
of the CE for issuance of Attentive Energy's IHA, which included
consideration of extraordinary circumstances. As part of that analysis,
NMFS considered whether this IHA issuance would result in cumulative
impacts that could be significant. In particular, the issuance of an
IHA to Attentive Energy is expected to result in minor, short-term
behavioral effects on marine mammal species due to exposure to
underwater sound from site characterization survey activities.
Behavioral disturbance is possible to occur intermittently in the
vicinity of Attentive Energy's survey area during the 1-year timeframe.
Level B harassment will be reduced through use of mitigation measures
described herein. Additionally, as discussed elsewhere, NMFS has
determined that Attentive Energy's activities fall within the scope of
activities analyzed in the Greater Atlantic Regional Fisheries Office's
(GARFO) programmatic consultation regarding geophysical surveys along
the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021), which concluded
surveys such as those planned by Attentive Energy are not likely to
adversely affect endangered listed species or adversely modify or
destroy critical habitat. Accordingly, NMFS has determined that the
issuance of this IHA will result in no more than negligible (as that
term is defined by the Companion Manual for NAO 216-6A) adverse effects
on species protected by the ESA and the MMPA.
Further, the issuance of this IHA will not result in highly
controversial environmental effects or result in environmental effects
that are uncertain, unique, or unknown because numerous entities have
been engaged in site characterization surveys that result in Level B
harassment of marine mammals in the United States. This type of
activity is well documented; prior authorizations and analysis
demonstrates issuance of an IHA for this type of action only affects
the marine mammals that are the subject of the specific authorization
and, thus, no potential for significant cumulative impacts are
expected, regardless of past, present, or reasonably foreseeable
actions, even though the impacts of the action may not be significant
by itself. Based on this evaluation, we concluded that the issuance of
the IHA qualifies to be categorically excluded from further NEPA
review.
Comment 4: COA suggested that a Letter of Authorization (LOA) would
be more appropriate than an IHA for the proposed survey activities as
the survey activities have spanned more than 1 year and ``it is not
clear how long the proposed activities would span given past delays.''
Response: NMFS disagrees with the commenter that an LOA would be
more appropriate for the planned survey activities than an IHA. All
IHAs issued, whether an initial IHA or a renewal, are valid for a
period of not more than 1 year. Attentive Energy's request for the
initial IHA indicated a project duration of 1 year. As delays may be
encountered, applicants may apply for a renewal IHA if the work under
the initial IHA is not able to be completed within the effective period
of the authorization. In order to qualify for a renewal IHA, the
proposed renewal must consist of up to another year of identical, or
nearly identical, activities as were covered by the initial IHA or a
subset of the activities covered by the initial IHA. Attentive Energy's
request falls under the latter requirements and the necessary
preliminary monitoring data collected under the initial IHA were
provided. Therefore, Attentive Energy's request is appropriate for a
renewal IHA.
Regarding clarification on authorizations, as described on our
website, IHAs are 1-year authorizations and Incidental Take Regulations
(ITR) are 5-year regulations that allow for the issuance of LOA. An ITR
must be used if authorization of take by mortality is necessary
(although not all ITRs include mortality). However, both options are
available for applicants requesting authorization of harassment only.
While applicants may request a 5-year regulation for HRG survey
activities, NMFS has not received any such requests to date and there
is no expectation presented in the MMPA or Congressional record that
activities continuing for more than 1 year must seek ITR and
authorization under section 101(a)(5)(A) of the MMPA. Therefore, a
determination of which option to take is not dependent on any
expectation regarding whether the activity will continue for more than
1 year or not.
Comment 5: COA urged NMFS to deny the proposed project and/or
postpone any offshore wind activities until NMFS determines effects of
all offshore wind-related activities on marine mammals in the region
and determines that the recent whale deaths are not related to offshore
wind activities. COA stated general concerns regarding recent whale
stranding events on the Atlantic Coast, including speculation that the
strandings may be related to wind energy development activities.
Response: NMFS authorizes take of marine mammals incidental to
marine site characterization surveys but does not authorize the surveys
themselves. NMFS has the authority to modify, suspend, or revoke an IHA
if the IHA holder fails to abide by the conditions prescribed therein
(including, but not limited to, failure to comply with monitoring or
reporting requirements), or if NMFS determines that (1) the authorized
taking is having or is likely to have more than a negligible impact on
the species or stocks of affected marine mammals, or (2) the prescribed
measures are likely not or are not effecting the least practicable
adverse impact on the affected species or stocks and their habitat.
NMFS has analyzed the planned activity, as proposed by Attentive
Energy, within the discrete context for which it was requested (i.e.,
as a stand-alone activity and not part of a larger programmatic survey
effort or group of specific activities). It is in this context that
NMFS has authority to authorize incidental take and to prescribe
mitigation, monitoring, and reporting requirements, as appropriate, and
can revoke or suspend any IHA issued under the MMPA if and when action
is warranted.
In this comment letter, COA speaks more broadly about all offshore
wind efforts along the U.S. East Coast, not just specific to this
discrete IHA. It is not within NMFS' jurisdiction to impose a
moratorium on all offshore wind development activities unrelated to
this specific IHA request and planned activities. NMFS reiterates that
there is no evidence that noise resulting from offshore wind
development-related site characterization surveys could potentially
cause marine mammal stranding, and there is no evidence linking recent
large whale mortalities and currently ongoing surveys. The commenters
offer no such evidence to the contrary. NMFS will continue to gather
data to help us determine the
[[Page 77485]]
cause of death for these stranded whales. We note the Marine Mammal
Commission's recent statement: ``There continues to be no evidence to
link these large whale strandings to offshore wind energy development,
including no evidence to link them to sound emitted during wind
development-related site characterization surveys, known as HRG
surveys. Although HRG surveys have been occurring off New England and
the mid-Atlantic coast, HRG devices have never been implicated or
causatively-associated with baleen whale strandings'' (Marine Mammal
Commission Newsletter, Spring 2023). Furthermore, NMFS does not expect
that the marine site characterization survey activities planned by
Attentive Energy will create conditions of acute or chronic acoustic
exposure leading to long-term physiological impacts in whales.
There is an ongoing Unusual Mortality Event for humpback whales
along the Atlantic coast from Maine to Florida, which includes animals
stranded since 2016. Partial or full necropsy examinations were
conducted on approximately half of the whales. Necropsies were not
conducted on other carcasses because they were too decomposed, not
brought to land, or stranded on protected lands (e.g., national and
state parks) with limited or no access. Of the whales examined (roughly
90), about 40 percent had evidence of human interaction, either vessel
strike or entanglement. Vessel strikes and entanglement in fishing gear
are the greatest human threats to large whales. The approximately 50
remaining 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. As discussed herein, HRG sources may behaviorally disturb
marine mammals (e.g., avoidance of the immediate area). But these HRG
surveys are very different from seismic airguns used in oil and gas
surveys or tactical military sonar. They produce much smaller impact
zones because, in general, they have lower source levels and produce
output at higher frequencies. The area within which HRG sources might
behaviorally disturb a marine mammal is orders of magnitude smaller
than the impact areas for seismic airguns or military sonar. Any marine
mammal exposure would be at significantly lower levels and shorter
duration, which is associated with less severe impacts to marine
mammals. For these reasons, NMFS observes a lack of evidentiary support
for a link between wind energy development activities and whale
stranding.
Changes From Proposed to Final Renewal IHA
No changes were made from the proposed renewal IHA to the final
renewal IHA.
Determinations
Attentive Energy's planned activities consist of a subset of
activities analyzed in the initial IHA. In analyzing the effects of the
activities for the initial IHA, NMFS determined that Attentive Energy's
activities would have a negligible impact on the affected species or
stocks and that authorized take numbers of each species or stock were
small relative to the relevant stocks (e.g., less than one-third the
abundance of all stocks). The required mitigation measures and
monitoring and reporting requirements, as described above, are
identical to the initial IHA.
NMFS has concluded that there is no new information suggesting that
our analysis or findings should change from those reached for the
initial IHA. This includes consideration of the draft 2023 SAR
estimated abundance of the North Atlantic right whale stock and other
stocks, as shown in table 1 of the Federal Register notice for the
proposed renewal IHA (89 FR 64414, August 7, 2024). NMFS has authorized
four takes of North Atlantic right whales, by Level B harassment only,
and the impacts resulting from the project's activities are neither
reasonably expected nor reasonably likely to adversely affect the stock
through effects on annual rates of recruitment or survival.
Additionally, only about 1.2 percent of this stock's abundance is
authorized to be taken by Level B harassment.
Based on the information and analysis contained here and in the
referenced documents, NMFS has determined the following: (1) the
required mitigation measures will effect the least practicable adverse
impact on marine mammal species or stocks and their habitat; (2) the
authorized takes would have a negligible impact on the affected marine
mammal species or stocks; (3) the authorized takes represent small
numbers of marine mammals relative to the affected stock abundances;
(4) Attentive Energy's activities will not have an unmitigable adverse
impact on taking for subsistence purposes as no relevant subsistence
uses of marine mammals are implicated by this action; and (5)
appropriate monitoring and reporting requirements are included. This
includes consideration of the estimated abundance of 13 stock(s)
decreasing or increasing slightly, specific to each stock.
National Environmental Policy Act
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental take authorizations with no
anticipated serious injury or mortality) of the Companion Manual for
NOAA Administrative Order 216-6A, which do not individually or
cumulatively have the potential for significant impacts on the quality
of the human environment and for which we have not identified any
extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS determined that the issuance of the
initial IHA qualified to be categorically excluded from further NEPA
review. NMFS has determined that the application of this categorical
exclusion remains appropriate for this renewal IHA.
Endangered Species Act
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency insure that any action it authorizes,
funds, or carries out is not likely to jeopardize the continued
existence of any endangered or threatened species or result in the
destruction or adverse modification of designated critical habitat. To
ensure ESA compliance for the issuance of IHAs, NMFS Office of
Protected Resources consults internally whenever we propose to
authorize take of endangered or threatened species.
NMFS has authorized the incidental take of four species of marine
mammals which are listed under the ESA, including the North Atlantic
right, fin, sei, and sperm whale, and has determined that this activity
falls within the scope of activities analyzed in NMFS GARFO's
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021).
Renewal
NMFS has issued a renewal IHA to Attentive Energy for the take of
15 species (comprising 16 stocks) of marine mammals incidental to
conducting marine site characterization surveys offshore from New York
to New Jersey in the BOEM Lease Area OCS-A-0538 and associated ECR
areas, which include the previously explained mitigation, monitoring,
and reporting requirements.
[[Page 77486]]
Dated: September 18, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-21670 Filed 9-20-24; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on September 23, 2024.
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