Rule2024-22601
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Maryland Offshore Wind Project, Offshore of Maryland
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
October 23, 2024
Effective
January 1, 2025
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS promulgates regulations to govern the incidental taking of marine mammals incidental to US Wind, Inc. (US Wind) during the construction of an offshore wind energy project (the Project) in Federal and State waters off of Maryland, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area (OCS-A-0490) (referred to as the Lease Area) and along associated export cable routes to sea-to-shore transition points (collectively, the project area), over the course of 5 years (January 1, 2025 through December 31, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during specific construction related activities within the project area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
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[Federal Register Volume 89, Number 205 (Wednesday, October 23, 2024)]
[Rules and Regulations]
[Pages 84674-84729]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22601]
[[Page 84673]]
Vol. 89
Wednesday,
No. 205
October 23, 2024
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Maryland Offshore Wind Project,
Offshore of Maryland; Final Rule
Federal Register / Vol. 89 , No. 205 / Wednesday, October 23, 2024 /
Rules and Regulations
[[Page 84674]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240917-0242]
RIN 0648-BM32
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Maryland Offshore Wind Project,
Offshore of Maryland
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, notification is hereby given
that NMFS promulgates regulations to govern the incidental taking of
marine mammals incidental to US Wind, Inc. (US Wind) during the
construction of an offshore wind energy project (the Project) in
Federal and State waters off of Maryland, specifically within the
Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged
Lands for Renewable Energy Development on the Outer Continental Shelf
(OCS) Lease Area (OCS-A-0490) (referred to as the Lease Area) and along
associated export cable routes to sea-to-shore transition points
(collectively, the project area), over the course of 5 years (January
1, 2025 through December 31, 2029). These regulations, which allow for
the issuance of a Letter of Authorization (LOA) for the incidental take
of marine mammals during specific construction related activities
within the project area during the effective dates of the regulations,
prescribe the permissible methods of taking and other means of
effecting the least practicable adverse impact on marine mammal species
or stocks and their habitat, as well as requirements pertaining to the
monitoring and reporting of such taking.
DATES: This rule is effective from January 1, 2025, through December
31, 2029.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of US Wind's 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 above (see FOR FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the
authority of the MMPA (16 U.S.C. 1361 et seq.) to authorize the take of
marine mammals incidental to construction of the Project within the
project area. NMFS received a request from US Wind to incidentally take
a small number of marine mammals from 19 species of marine mammals,
comprising 20 stocks (5 stocks by Level A harassment and Level B
harassment; 15 stocks by Level B harassment only), incidental to US
Wind's construction activities. US Wind did not request and NMFS
neither anticipates nor allows take by serious injury or mortality
incidental to the specified activities in this final rulemaking.
Legal Authority for the Final Action
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made, regulations are
promulgated (when applicable), and public notice and an opportunity for
public comment are provided.
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 as ``mitigation'');
and requirements pertaining to the mitigation, monitoring and reporting
of the takings are set forth.
As noted above, US Wind did not request and NMFS neither
anticipates nor allows take by serious injury or mortality incidental
to the specified activities in this final rulemaking. Relevant
definitions of MMPA statutory and regulatory terms are included below:
<bullet> U.S. Citizens--individual U.S. citizens or any corporation
or similar entity if it is organized under the laws of the United
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR
216.103);
<bullet> Take--to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362; 50
CFR 216.3);
<bullet> Incidental Harassment, Incidental Taking and Incidental,
but not Intentional, Taking--an accidental taking. This does not mean
that the taking is unexpected, but rather it includes those takings
that are infrequent, unavoidable or accidental (see 50 CFR 216.103);
<bullet> Serious Injury--any injury that will likely result in
mortality (50 CFR 216.3);
<bullet> Level A harassment--any act of pursuit, torment, or
annoyance which has the potential to injure a marine mammal or marine
mammal stock in the wild (16 U.S.C. 1362; 50 CFR 216.3); and
<bullet> Level B harassment--any act of pursuit, torment, or
annoyance which has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (16 U.S.C. 1362; 50 CFR 216.3).
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I provide the legal basis for proposing
and, if appropriate, issuing this rule containing 5-year regulations
and associated LOA. This final rule also establishes required
mitigation, monitoring, and reporting requirements for US Wind's
construction activities.
Summary of Major Provisions Within the Final Rule
The major provisions within this final rule include:
<bullet> Allowing NMFS to authorize, under a LOA, the take of small
numbers of marine mammals by Level A harassment and/or Level B
harassment (50 CFR 217.312) incidental to the Project and prohibiting
take of such species or stocks in any manner not permitted (50 CFR
217.313) (e.g., mortality or serious injury);
<bullet> Establishing a seasonal moratorium on foundation impact
pile driving
[[Page 84675]]
during December 1-April 30, annually, as well as avoiding foundation
impact pile driving in November to the maximum extent practicable to
minimize impacts to North Atlantic right whales (Eubalaena glacialis);
<bullet> Conducting both visual and passive acoustic monitoring
(PAM) by trained, NMFS-approved Protected Species Observers (PSO) and
PAM operators before, during, and after select in-water construction
activities;
<bullet> Requiring training for all Project personnel to ensure
marine mammal protocols and procedures are clearly understood;
<bullet> Establishing clearance and shutdown zones for all in-water
construction activities and high-resolution geophysical (HRG) marine
site characterization surveys to prevent or reduce the risk of Level A
harassment and to minimize the risk of Level B harassment, including a
delay or shutdown of foundation impact pile driving if a North Atlantic
right whale is observed at any distance by PSOs or acoustically
detected within certain distances;
<bullet> Establishing minimum visibility and PAM monitoring zones
during foundation impact pile driving;
<bullet> Requiring use of at least two sound attenuation devices
during all foundation impact pile driving installation activities to
reduce noise levels to those modeled assuming a broadband 10 decibel
(dB) attenuation;
<bullet> Requiring sound field verification (SFV) monitoring during
impact pile driving of foundation piles to measure in situ noise levels
for comparison against the modeled results and ensure noise levels
assuming 10 dB attenuation are not exceeded;
<bullet> Requiring SFV during the operational phase of the Project;
<bullet> Implementing soft-starts during impact pile driving and
ramp-up during the use of HRG marine site characterization survey
equipment;
<bullet> Requiring various vessel strike avoidance measures;
<bullet> Requiring various measures during fisheries monitoring
surveys, such as removing gear from the water if marine mammals are
considered at-risk or are interacting with gear;
<bullet> Requiring regular and situational reporting including, but
not limited to, information regarding activities occurring, marine
mammal observations and acoustic detections, and SFV monitoring
results; and
<bullet> Requiring monitoring of the North Atlantic right whale
sighting networks, Channel 16, and PAM data, as well as reporting any
sightings to the NMFS.
Through adaptive management (see 50 CFR 217.347(c)(1)) NMFS Office
of Protected Resources may modify (e.g., remove, revise, or add to) the
existing mitigation, monitoring, or reporting measures summarized above
and required by the LOA.
NMFS must withdraw or suspend an LOA issued under these
regulations, after notice and opportunity for public comment, if it
finds the methods of taking or the mitigation, monitoring, or reporting
measures are not being substantially complied with (16 U.S.C.
1371(a)(5)(B); 50 CFR 216.106(e)). Additionally, failure to comply with
the requirements of the LOA may result in civil monetary penalties and
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50
CFR 216.106(g)).
Fixing America's Surface Transportation Act (FAST-41)
This Project is covered under title 41 of the Fixing America's
Surface Transportation Act, or ``FAST-41.'' A ``covered project'' under
FAST-41 is defined generally as ``any activity in the United States
that requires authorization or environmental review by a Federal agency
involving construction of infrastructure for renewable or conventional
energy production'' 42 U.S.C. 4370m-(6)(A). The Project, which involves
construction of renewable wind energy infrastructure off of Maryland,
will provide 300 megawatts (MW) of energy and, upon completion, advance
the State of Maryland's renewable energy goals. As such, the Project
falls under FAST-41's definition of ``covered project.''
FAST-41 includes a suite of provisions designed to expedite the
environmental review for covered infrastructure projects, including
enhanced interagency coordination as well as milestone tracking on the
public-facing Permitting Dashboard. FAST-41 also places a 2-year
limitations period on any judicial claim that challenges the validity
of a Federal agency decision to issue or deny an authorization for a
FAST-41 covered project 42 U.S.C. 4370m-6(a)(1)(A).
The Project is listed on the Permitting Dashboard, where milestones
and schedules related to the environmental review and permitting for
the Project can be found at <a href="https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/maryland-offshore-wind-project">https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/maryland-offshore-wind-project</a>.
Summary of Request
On August 31, 2022, US Wind submitted a request for the
promulgation of regulations and issuance of an associated 5-year LOA to
take marine mammals incidental to construction activities associated
with implementation of the Project offshore of Maryland in the BOEM
Lease Area OCS-A 0490 and associated export cable routes. US Wind's
request is for the incidental, but not intentional, taking of a small
number of 19 marine mammal species (comprising 20 stocks) by Level B
harassment (for all 20 stocks) and by Level A harassment (for 5 of the
20 stocks). US Wind did not request, and NMFS does not anticipate, take
by serious injury or mortality to occur for any marine mammal species
or stock incidental to the specified activities.
In response to our questions and comments and following extensive
information exchanges between US Wind and NMFS, US Wind submitted a
final, revised application on March 31, 2023 that NMFS deemed adequate
and complete on April 3, 2023. This application is available on NMFS'
website at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind</a>.
On May 2, 2023, NMFS published a notice of receipt (NOR) of US
Wind's adequate and complete application in the Federal Register (88 FR
27463), requesting comments and soliciting information related to US
Wind's request during a 30-day public comment period. During the NOR
public comment period, NMFS received comment letters from 77 private
citizens, 6 non-governmental organizations, and 1 State government
organization (Delaware Department of Natural Resources and
Environmental Control). NMFS reviewed all submitted material and took
these into consideration during the drafting of the proposed rule.
On September 6, 2023 and September 11, 2023, US Wind submitted
supplemental information related to its pilot whale and seal take
analyses. The corresponding memos, entitled ``US Wind NMFS Request for
Information (RFI) Response Memo and Maryland Offshore Wind Project
Revised Requested Take Tables'' are available on our website at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind</a>.
On January 4, 2024, NMFS published the proposed rule for the
Project in the Federal Register (89 FR 504). In the proposed rule, NMFS
synthesized all of the information provided by US Wind, all best
available scientific information and literature relevant to the
Project, outlined, in detail, proposed mitigation designed to effect
the least practicable
[[Page 84676]]
adverse impacts on marine mammal species and stocks as well as proposed
monitoring and reporting measures, and made preliminary negligible
impact and small numbers determinations. The public comment period on
the proposed rule was open for 30 days from January 4, 2024 through
February 5, 2024 on <a href="https://Regulations.gov">https://Regulations.gov</a>. A summary of public
comments received during this 30-day period are described in the
Comments and Responses section; full public comments may be viewed on
<a href="https://Regulations.gov">https://Regulations.gov</a>.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations (87 FR 46921) to
further reduce the likelihood of mortalities and serious injuries to
endangered right whales from vessel collisions, which are a leading
cause of the species' decline and a primary factor in an ongoing
Unusual Mortality Event (UME). Should a final vessel speed rule be
issued and become effective during the effective period of this
incidental take authorization (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. The responsibility to comply with
the applicable requirements of any vessel speed rule would become
effective immediately upon the effective date of any final vessel speed
rule and when notice is published on the effective date, NMFS would
also notify US Wind if the measures in the speed rule were to supersede
any of the measures in the MMPA authorization such that they were no
longer required.
Description of Specified Activity
Overview
US Wind plans to construct and operate a wind energy facility, the
Project, in the Atlantic Ocean in lease area OCS-A 0490, offshore
Maryland. The Project consists of 3 construction campaigns including
MarWin, located in the southeastern portion of the Lease Area with the
potential to generate approximately 300 megawatts (MW) of energy,
Momentum Wind, located immediately west of MarWin with the potential to
generate approximately 808 MW of energy, and Future Development, which
encompasses buildout of the remainder of the Lease Area and for which
generation capacity has yet to be determined (table 1). Once
operational, MarWin and Momentum Wind would advance the State of
Maryland's renewable energy goals, providing 50 percent of the State's
goal by the year 2030, with the full buildout of the Lease Area further
achieving renewable energy targets. US Wind also anticipates completing
the Future Development campaign within the effective period of the
rule.
The Project will consist of several different types of permanent
offshore infrastructure, including up to 114 WTGs (e.g., 18-MW model
with a 250-meter (m) rotor diameter platform), four OSSs, a MET tower,
and inter-array and export cables. MarWin will occupy approximately
46.6 square kilometers (km\2\) (11,515 acres), which will include
approximately 21 WTGs and 1 OSS. The MarWin campaign, as well as
subsequent Momentum Wind and Future Development, includes monopiles as
the only potential WTG foundation type. For each campaign, the OSS
would be supported by monopiles or jacket foundations with skirt piles.
Skirt piles are post-piled pin piles. Jacket foundations are placed on
the seabed and pin piles are driven into jacket pile guides, which are
known as skirts. Table 1 provides a summary of each construction
campaign.
Table 1--US Wind's Anticipated Construction Campaign Schedule
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Number of 11-m Number of 1.8-
Campaigns Construction monopiles for Number 3-m pin piles for OSS m pin piles Onshore export Offshore
year WTGs jacket foundations \1\ for Met tower cables substations
--------------------------------------------------------------------------------------------------------------------------------------------------------
MarWin................................... 1 (2025) 21 4 (1 jacket)................ 0 4 1
Momentum................................. 2 (2026) 55 8 (2 jackets)............... 3 0 2
Future Development....................... 3 (2027) 38 4 (1 jacket)................ 0 0 1
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\1\ Potential OSS foundations could also include monopile and suction bucket jacket foundations.
Strings of WTGs will connect with the OSS via a submarine inter-
array cable transmission system. Up to four high-voltage alternating
current (HVAC) offshore export cables will be installed during the
MarWin campaign, spanning approximately 65-97 (kilometers) km (40-60
miles (mi)) in length, dependent on the location of the OSS and the
final routing. The Export Cable Corridor (ECC) will transmit
electricity from the OSS to one or two landfall sites in Delaware
Seashore State Park.
The second construction campaign, Momentum Wind, will contain
approximately 55 WTGs, 2 OSSs, and 1 MET tower within an area of
approximately 142.4 km\2\ (35,188 acres). The Met tower will be
supported by pin pile foundations. During the third construction
campaign, Future Development, approximately 38 WTGs and 1 OSS will be
installed within an area of approximately 80.3 km\2\ (19,843 acres).
US Wind plans to install all monopile or pin pile foundations via
impact pile driving. If suction bucket foundations are selected for OSS
jacket foundations, impact pile driving would not be necessary. US Wind
will also conduct the following supporting activities: temporarily
install and subsequently remove gravity cells to connect the offshore
export cables to onshore facilities; permanently install scour
protection around all foundations; permanently install and perform
trenching, laying, and burial activities associated with the export
cables from the OSSs to shore-based switching and sub-stations and WTG
inter-array cables; and, during years 2 and 3, perform HRG surveys
using active acoustic sources with frequencies of less than 180
kilohertz (kHz). To transport crew, supplies, and materials to support
construction activities, vessels will transit within the Lease Area,
along cable corridors, and between the project area and anticipated
ports (Port Norris, NJ; Lewes, DE; Ocean City, MD; Baltimore, MD;
Hampton Roads, VA; and Cape Charles, VA).
Up to four offshore export cables will be located among up to two
corridors from the OSSs and connect to the planned landfall at either
3R's Beach or Tower Road within Delaware Seashore State Park. When the
cables reach the
[[Page 84677]]
landfall site, they will be pulled into a cable duct generated by
horizontal directional drilling (HDD), which will route the cables
under the existing beach to subterranean transition vaults. All
offshore cables will be connected to onshore export cables at the sea-
to-shore transition point via trenchless installation (i.e.,
underground tunneling utilizing micro tunnel boring installation
methodologies).
Fishery monitoring surveys, performed via recreational boat-based
surveys and a pot-based monitoring approach using ropeless gear
technology, will be conducted in conjunction with the University of
Maryland Center for Environmental Science (UMCES) to enhance existing
data for specific benthic and pelagic species of concern.
Dates and Duration
As described above, US Wind will conduct 3 campaigns over 3 years:
MarWin, Momentum Wind, and Future Development (table 1). Based on US
Wind's planned schedule, the installation of all permanent structures
will be completed by the end of November 2027. More specifically, US
Wind will install piles only between May 1 and November 30. Also, the
installation of WTG foundations and OSS 3-m pin pile jacket foundations
will occur during daylight hours between May 1 and November 30 of 2025,
2026, and 2027 (table 2); however, NMFS would allow nighttime pile
driving if US Wind submits, and NMFS approves, an Alternative
Monitoring Plan, as discussed below. The single Met tower foundation
will be installed in 2026 (table 2). US Wind anticipates HRG surveys
using sparkers and boomers to occur during 2026 and 2027. Up to 14 days
of HRG survey activity are planned from April through June 2026 during
the Momentum campaign. In addition, up to 14 days of HRG survey
activity are planned from April through June 2027 during the Future
Development campaign. Currently, US Wind is not planning to conduct
activities that have the potential to result in take in 2028 and 2029.
However, while table 2 represents US Wind's current schedule, NMFS
recognizes the potential for activity schedules to shift such that they
could occur during different timeframes within the five year effective
period of this rule.
Table 2--US Wind's Anticipated Construction and Operations Schedule During the Effective Period of the LOA \1\
----------------------------------------------------------------------------------------------------------------
Expected duration
Project activity Construction campaign Expected timing \2\ (approximate)
----------------------------------------------------------------------------------------------------------------
Scour Protection Pre-Installation MarWin............................. Year 1: Q2 through 21 days.
Q3 of 2025.
Momentum Wind...................... Year 2: Q2 through 55 days.
Q3 of 2026.
Future Development................. Year 3: Q2 through 38 days.
Q3 of 2027.
WTG Foundation Installation \3\ MarWin............................. Year 1: June 21 days.
\5\. through September
of 2025.
Momentum Wind...................... Year 2: May through 55 days.
August of 2026.
Future Development................. Year 3: June 38 days.
through August of
2027.
Scour protection post- MarWin............................. Year 1: Q2 through 42 days.
installation. Q3 of 2025.
Momentum Wind...................... Year 2: Q2 through 110 days.
Q3 of 2026.
Future Development................. Year 3: Q2 through 76 days.
Q3 of 2027.
OSS Foundation installation \3\ MarWin............................. Year 1: July of 1 day.
\5\. 2025.
Momentum Wind...................... Year 2: July of 2 days.
2026.
Future Development................. Year 3: July of 1 day.
2027.
Met Tower installation \3\ \4\... Momentum Wind...................... Year 2: June of 1 day.
2026.
HRG surveys \5\.................. Momentum Wind...................... Year 2: Q2 through 14 days.
Q3 of 2026.
Future Development................. Year 3: Q2 through 14 days.
Q3 of 2027.
Site preparation................. n/a................................ Not anticipated.... n/a.
Inter-array cable installation... MarWin............................. Year 1: Q2 through 42 days.
Q4 of 2025.
Momentum Wind...................... Year 2: Q2 through 110 days.
Q4 of 2026.
Future Development................. Year 3: Q2 through 76 days.
Q4 of 2027.
Export cable installation........ MarWin............................. Year 1: Q1 through 60 days.
Q4 of 2025.
Momentum Wind...................... Year 2: Q1 through 120 days (2
Q4 of 2026. cables).
Future Development................. Year 3: Q1 through 60 days.
Q4 of 2027.
Fishery monitoring surveys....... MarWin............................. Q1 through Q4 Years 16 days/year for
Momentum Wind...................... 1-5. commercial pot
Future Development................. surveys.
12 days/year for
recreational
surveys.
----------------------------------------------------------------------------------------------------------------
\1\ Currently, US Wind is not planning to conduct activities that have the potential to result in take in 2028
and 2029. However, while table 2 represents US Wind's current schedule, NMFS recognizes the potential for
activity schedules to shift such that they could occur during different timeframes within the five year
effective period of this rule.
\2\ Installation timing will depend on vessel availability, contractor selection, weather, and more. Year 1 is
anticipated to be 2025, year 2 to be 2026, and year 3 to be 2027, although these are subject to change per the
factors identified. Note: ``Q1, Q2, Q3, and Q4'' each refer to a quarter of the year, starting in January and
comprising 3 months each. Therefore, Q1 represents January through March, Q2 represents April through June, Q3
represents July through September, and Q4 represents October through December.
\3\ The months identified here represent US Wind's planned schedule; however, in case of unanticipated delays,
foundation installation may occur between May 1 and November 30 annually.
\4\ US Wind anticipates that all WTGs, OSS, and Met tower foundations will be installed by November 30, 2027;
however, unanticipated delays may require some foundation pile driving to occur in years 4 (2028) or 5 (2029).
\5\ Represents HRG surveys that may result in take of marine mammals. US Wind plans to conduct HRG surveys that
are not expected to result in take of marine mammals during Q2 through Q3 of year 1 given those surveys would
utilize equipment all operating over 180kHz or have no acoustic output.
Specified Geographic Region
A detailed description of the Specific Geographic Region,
identified as the Mid-Atlantic Bight, is provided in the proposed rule
(89 FR 504, January 4, 2024). Since the proposed rule was published, no
changes have been made to the Specified Geographic Region. Generally,
US Wind's specified activities (i.e., impact pile driving of monopile
and jacket foundations; placement of scour protection; trenching,
laying, and burial activities associated with the installation of the
ECRs and inter-array cables; HRG site characterization surveys; and WTG
operation) are concentrated in the Lease Area and ECRs offshore of
Maryland. However, vessel transit from ports as far south as Virginia
and as far north as New Jersey are anticipated.
BILLING CODE 3510-22-P
[[Page 84678]]
[GRAPHIC] [TIFF OMITTED] TR23OC24.000
BILLING CODE 3510-22-C
Comments and Responses
NMFS published a proposed rule in the Federal Register on January
4, 2024 (89 FR 504) for a 30-day public comment period. The proposed
rule described, in detail, US Wind's specified activities, the specific
geographic region of the specified activities, the marine mammal
species that may be affected by those activities, and the anticipated
effects on marine mammals. In the proposed rule, we requested that
interested persons submit relevant information, suggestions, and
comments on US Wind's request for the promulgation of regulations and
issuance of an associated LOA described therein, our estimated take
analyses, the preliminary determinations, and the proposed regulations.
NMFS received 114 comment submissions, including from the Marine
Mammal Commission (Commission), Delaware Department of Natural
Resources (DDNC), Town of Fenwick Island, several non-governmental
organizations, and individual citizens, all of which are available for
review on <a href="http://www.regulations.gov">www.regulations.gov</a>. Most of these comments were out-of-scope
or not applicable to the Project (e.g., general opposition to or
support of offshore wind projects; concerns for other species outside
NMFS' jurisdiction (e.g., birds and horseshoe crabs) methods for
conducting site condition identification, support for the proposed rule
and the Project, concern for energy distribution and power from the
Project, beach erosion and flooding, critique of the Maryland offshore
wind congressional hearing held in January 2024), and are not described
herein or discussed further. Non-governmental organizations included:
Caesar Rodney Institute (CRI), Town of Fenwick Island (TFI), Wrecker
Sportfishing, Deep Sea Defenders, and Tower Shore Beach Association. We
have responded to all comments that contained substantive information
and considered that information in this final rule, including comments
related to the estimated take analysis, final determinations, and final
mitigation, monitoring, and reporting requirements. A summary of
comments is described below, along with NMFS' responses.
Modeling and Take Estimates
Comment 1: The Commission notes that, based upon SFV reports,
[[Page 84679]]
discrepancies exist between modeled and measured Level A harassment and
Level B harassment zones. The Commission indicates that these
discrepancies may be related to actual installation conditions and
should be accounted for in the estimation of harassment zones,
authorized number of takes, and mitigation, monitoring, and reporting
requirements for the Maryland Wind Offshore Wind Project. The
Commission recommends that NMFS provide the interim and/or final SFV
reports for South Fork and Vineyard Wind 1 and allow for another 30-day
public comment period for the Maryland Wind proposed rule before
issuing a final rule.
Response: Based on the discussion below and given our consideration
of the best available scientific information, including available sound
field verification (SFV) reports from other offshore wind construction
projects in the United States, we disagree with the suggestions made by
the Commission. The Commission has expressed concerns about the lack of
validation of source models in previous Commission letters. Since the
proposed rule was published, NMFS has received interim/final sound
field verification reports from the South Fork Wind project. In all but
one case, the measured distances to NMFS' Level B harassment threshold
were lower than the model predicted. The distance to NMFS' Level B
harassment threshold for the South Fork project was modeled as 4.68
kilometers (km) while in-situ measurements identified distances ranging
from 1.84 km to 3.25 km. MAI's modeling predicts the distances to the
Level B harassment threshold during installation of the Maryland Wind
11-m monopiles will be approximately 5.25 km which is less than 1 km
larger than South Fork's modeled distance. We note that South Fork
determined that one pile generating noise levels above those predicted
(the first pile) did so due to a malfunctioning noise attenuation
system which was quickly rectified and deployed appropriately on all
future piles.
Since the public comment period ended on the proposed rule, NMFS
has also received SFV reports from Vineyard Wind 1. However, due to the
hammer energy assumption in the model versus what was used in the field
(i.e., more hammer energy was used than modeled) and other operational
challenges, it is more challenging to compare the VW measured results
directly to the modeled results, although the modeled distances to the
Level A harassment threshold were larger (the largest modeled distance
to the Level A harassment threshold was for low-frequency cetaceans at
3.191 km) than distances to the Level A harassment threshold measured
by SFV. The final SFV report for the 2023 construction of the Vineyard
Wind 1 Offshore Wind Project is currently posted on our website
(<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>).
Importantly, in this final rule, should SFV results reveal noise
levels are louder than those predicted assuming 10 dB attenuation, NMFS
is requiring US Wind to implement additional measures to reduce sound
levels such that they do not exceed those modeled assuming 10 dB. US
Wind is required to conduct either thorough or abbreviated monitoring
on all foundation piles installed.
NMFS has incorporated the best available scientific information
into this final rule, using recent measurements as well as estimates
obtained through modeling. In regards to the Commission's comment
recommending another 30-day comment period for the proposed rule, NMFS
disagrees with this recommendation and has determined that one 30-day
comment period for the proposed rule is sufficient under the MMPA. The
MMPA requires notice and opportunity for public comment. The 30-day
public comment period for the Maryland Offshore Wind Project proposed
rule was open to the public from January 4, 2024 through February 5,
2024. NMFS fulfilled the requirements of the MMPA by providing notice
in the Federal Register and opportunity for public comment on this
proposed rule.
Comment 2: The Caesar Rodney Institute (CRI) notes that NMFS has
not established a standard version of estimated population abundances
that should be used when evaluating ITA requests. CRI indicates that
North Atlantic right whale best population abundance estimates vary
between projects, ranging from 338 North Atlantic right whales (for the
proposed Maryland Wind Offshore Wind Project proposed rule (89 FR 504,
January 4, 2024)) to 346 and 394 North Atlantic right whales (for other
projects). The CRI recommends that NMFS establish a North Atlantic
right whale population abundance to be used in all applications, as
well as a maximum allowed estimated population density for the months
for which construction would take place.
Response: The MMPA and its implementing regulations require that
incidental take regulations be established based on the best available
information. The dynamic nature of population science dictates that
rulemakings will not be using the same population numbers from year to
year. NMFS generally considers the information in the most recent U.S.
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments Report
(SAR; Hayes et al., 2023) to be the best available information for a
particular marine mammal stock because of the MMPA's rigorous SAR
procedural requirements, which includes peer review by a statutorily
established Scientific Review Group. Since publication of the proposed
rule, NMFS has released the draft 2023 Stock Assessment Report
indicating the North Atlantic right whale population abundance is
estimated as 340 individuals based on sighting data through December
31, 2021 (88 FR 5495, January 29, 2024). NMFS has used the most recent
best available scientific information in the analysis of this final
rule. This new estimate, which is based on the analysis from Pace et
al. (2017) and subsequent refinements found in Pace (2021), provides
the best available, and in this case most recent, estimate, including
improvements to NMFS' right whale abundance model. NMFS notes this
estimate aligns with the 2022 North Atlantic right whale Report Card
(Pettis et al., 2022) estimate (also 340) based on sighting data
through August 2022 but, as described above, that the SARs are peer
reviewed by other scientific review groups prior to being finalized and
published and that the Report Card does not undertake this process.
Based on this, NMFS has considered all relevant information regarding
North Atlantic right whales, including the information cited by the
commenters. However, NMFS has relied on the draft 2023 SAR in this
final rule as it reflects the best available scientific information.
We note that this change in abundance estimate does not change the
estimated take of North Atlantic right whales or authorized take
numbers, nor affect our ability to make the required findings under the
MMPA for US Wind's construction activities.
While NMFS does not require applicants to utilize specific models
for the purposes of estimating take incidental to offshore wind
construction activities, we evaluate the models used to support take
estimates to ensure that they are methodologically sound and
incorporate the best available science. NMFS does require use of the
Roberts et al. (2016, 2023) density data and SARs abundance estimates
for all species, both of which represent the best
[[Page 84680]]
available science regarding marine mammal occurrence.
Mitigation
Comment 3: Multiple commenters recommend strengthening mitigation
measures for endangered species to minimize take by Level A harassment,
specifically indicating that shutdown zones required by the proposed
rule for fin and sei whales should be expanded to encompass the
distance to the Level A harassment thresholds. One commenter stated
that, legally, no take of endangered species by Level A harassment
should be allowed.
Response: NMFS agrees with the commenters that take of endangered
species, such as fin and sei whales, by Level A harassment should be
minimized. As such, the shutdown zones for fin and sei whales encompass
the modeled maximum R<INF>95percent</INF> distance to the Level A
harassment threshold from the pile driving location, as described in
the Mitigation section of this final rule. NMFS disagrees that
additional or modified mitigation measures are necessary to affect the
least practicable adverse impact on marine mammal species or stocks,
including those listed under the ESA. This rule allows a limited number
of Level A harassment takes to be authorized for two ESA-listed species
(fin whale and sei whale) incidental to foundation impact pile driving
(table 6). We note these take estimates did not consider mitigation
measures other than seasonal restrictions and 10 dB of sound
attenuation. Some mitigation measures in the proposed rule and this
final rule are centered around North Atlantic right whales because of
the species status and general fitness of individuals.
If clearance and shutdown zones were increased for fin and sei
whales, it would likely further lengthen 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). Southall et al. (2021)
modeled multiple scenarios with different total construction season
lengths and the results suggest that generally shorter construction
periods are associated with lower risk, which aligns with the concept
that more days of noise exposure and disturbance are associated with
greater impacts. Accordingly, NMFS has determined that the current
clearance and shutdown zones, together with other mitigation measures,
affect the least practicable adverse impact on marine mammals. Lastly,
regarding the comment that no Level A harassment of ESA-listed species
should be authorized--the MMPA mandates that NMFS shall authorize the
take of marine mammals, provided the required findings are made. As
required, NMFS has determined that the Level A and Level B harassment
allowed under this rule will have a negligible impact on all marine
mammal species and stocks and that the required measures affect the
least practicable adverse impact on marine mammal species or stocks.
Comment 4: A commenter suggests that it should be clearly stated in
the proposed rule that US Wind should be responsible for prompt
veterinary care, rehabilitation, and/or handling of any mortally
wounded marine mammals incidentally taken during the proposed
activities.
Response: No serious injury or mortality is anticipated or
authorized for US Wind's planned activities. In the event of sighting
any injured marine mammals, US Wind would be required to follow
reporting measures as described in the Reporting section and
217.345(f)(15)(iv), which include contacting the regional stranding
hotline. Further, it would not be appropriate to require US Wind to be
responsible for veterinary care, rehabilitation, and/or handling of any
marine mammal injury or stranding cases.
The best available science indicates that the anticipated impacts
from the specified activities potentially include avoidance, cessation
of foraging or communication, TTS and PTS, stress, masking, etc. (as
described in the Effects of the Specified Activities on Marine Mammals
and their Habitat section in the proposed rule). NMFS emphasizes that
there is no evidence that noise resulting from offshore wind
development-related specified activities would cause marine mammal
strandings, and there is no evidence linking recent large whale
mortalities and currently ongoing offshore wind activities. This point
has been well supported by other agencies, including BOEM and the
Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring
2023). If the best available science indicates the takings allowed
under these regulations may be having more than a negligible impact,
NMFS must suspend or withdraw the LOA after notice and opportunity for
public comment.
If a marine mammal appears to be injured or strands nearby during
construction activities, the Marine Mammal Health and Stranding
Response Program (MMHSRP), established by the MMPA, would be
responsible for mobilizing a response, if and where appropriate. This
program coordinates emergency responses to sick, injured, distressed,
or dead seals, sea lions, dolphins, porpoises, and whales. The MMHSRP
works with volunteer stranding and entanglement networks as well as
local, tribal, state, and federal government agencies to coordinate and
conduct emergency responses to stranded or entangled marine mammals.
The networks also respond, when safe and feasible, to document and
recover carcasses. It does not and cannot respond to every stranded
marine mammal, and it is not responsible for disposing of carcasses.
The type of examination conducted varies and depends on availability of
resources, location, carcass accessibility, and the decomposition
state. A necropsy report, when written, includes data which are
compiled over several weeks to months and then analyzed for a possible
cause of death determination and findings. National and Regional
summaries of stranding statistics are available at: <a href="https://www.fisheries.noaa.gov/resource/publication-database/marine-mammal-health-and-stranding-response-program-reports">https://www.fisheries.noaa.gov/resource/publication-database/marine-mammal-health-and-stranding-response-program-reports</a>. Any strandings or marine
mammals in need of care that occur in the vicinity of the Project Area
during the specified activities would be the responsibility of the
local stranding and/or entanglement network authorized by the MMHSRP.
Comment 5: The DNREC recommends extending the seasonal restriction
on impact pile driving to November 1 through April 30, a time period
reflecting highest activity levels of North Atlantic right whales, to
reduce risk to North Atlantic right whales.
Response: NMFS has restricted foundation installation pile driving
from December through April, a time period which represents the times
of year when North Atlantic right whales are most likely to be in the
project area. However, we recognize that the density of North Atlantic
right whales begins to elevate in November, as shown by Roberts et al.
(2023). US Wind's planned pile driving activity schedule does not
include pile driving in November. However, a limited amount of pile
driving in November may occur if the Project experiences significant
delays. Should pile driving in November be necessary, US Wind has
agreed to restrict pile driving to the maximum extent practicable. In
any time of year when foundation installation is occurring, a visual
sighting of a North Atlantic right whale by foundation installation
PSOs or an acoustic detection within a 10 km PAM monitoring zone
triggers a delay in pile driving commencement or shutdown. These
mitigation measures
[[Page 84681]]
are designed to reduce takes of North Atlantic right whales to the
maximum extent possible.
NMFS neither anticipates nor authorizes take of North Atlantic
right whales by Level A harassment (PTS) from this activity. While NMFS
is authorizing a total of 10 takes by Level B harassment of North
Atlantic right whales incidental to any Project activities over the 5-
year effective period of this rulemaking, the required mitigation will
affect the least practicable adverse impact on the species from these
activities. Specifically, the largest modeled Level B harassment zone
size (5.25 km) is for impact pile driving of the 11-m monopiles,
however the clearance and shutdown zone for North Atlantic right whales
for impact pile driving is any distance. Any Level B harassment that is
not avoided is not expected to impact important feeding or other
behaviors that may occur in the Project Area in a manner that would
pose energetic or reproductive risks for any individuals. NMFS also
notes that North Atlantic right whale presence, while not completely
absent, decreases significantly during summer months as compared to
winter when the majority of foundation installation would occur. For
these reasons, NMFS finds that expanded temporal restrictions are not
warranted.
Comment 6: DNREC suggests that NMFS should require US Wind to
maintain the 500-meter separation distance for North Atlantic right
whales for all in-water construction activities, including activities
for which take is not requested. The commenters further note that
increased noise levels may increase stress in North Atlantic right
whales, and the commenters, as well as the Caesar Rodney Institute,
recommend that NMFS should not approve any offshore wind activities
that may further impact North Atlantic right whales.
Response: NMFS disagrees with the commenter's suggestion for
requiring a 500-m separation distance for North Atlantic right whales
for all in-water construction activities. The required vessel
separation distance from North Atlantic right whales during vessel
transit and HRG surveys is 500 m, and the North Atlantic right whale
clearance and shutdown zones are ``any distance'' for impact pile
driving activities, exceeding the Level B harassment zone of 5.25 km
and further reducing the likelihood of harassment for North Atlantic
right whales in the area. As noted by the commenter, NMFS will require
US Wind to cease activities in response to any marine mammal on a path
toward or that comes within 10 m of in-water construction equipment
involving heavy machinery other than pile driving (e.g., trenching,
cable laying, etc.). These non-pile driving in-water construction
operations are relatively low impact (take is not anticipated or
authorized) and the goal of the 10 m separation distance is to prevent
contact between marine mammals and heavy construction equipment, rather
than to limit exposure to noise. NMFS has determined that an increase
in the shutdown distance for these in-water construction operations
involving heavy equipment and not anticipated to result in incidental
take is not necessary to affect the least practicable adverse impact.
The commenters' recommendation for NMFS to not approve offshore
wind activities that may impact North Atlantic right whales is outside
the scope of this final rule as NMFS does not approve offshore wind
activities; NMFS only authorizes take of marine mammals incidental to
these activities. NMFS is required to authorize the requested
incidental take if it finds the total incidental take of small numbers
of marine mammals by U.S. citizens ``while engaging in that (specified)
activity'' within a specified geographical region during the 5-year
period (or less) 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)). As described in the proposed rule and this final
rule, NMFS has included requirements for mitigation measures that
effect the least practicable adverse impact on all marine mammal
species or stocks, including North Atlantic right whales, and their
habitat, as required under the MMPA (16 U.S.C. 1371(a)(5)(A)(i)(II).
Comment 7: Commenters note that there is a higher potential of
vessel strikes as whales may respond to noise harassment by leaving or
avoiding the Lease Area and moving into high traffic shipping lanes.
The commenters further note that avoidance of the Project Area may
increase stress and confusion for whales, resulting in an increased
potential for vessel strikes and entanglement.
Response: NMFS disagrees that there is necessarily a higher
potential for vessel strikes specifically due to whales leaving the
area to avoid noise from project activities. NMFS analyzed the
potential for vessel strike in the proposed rule. While acknowledging
that whales may temporarily avoid the area where the specified
activities occur and that elevated stress levels is a potential
response to noise exposure, NMFS does not anticipate, based on the best
available science, that whales will abandon their habitat, be displaced
in a manner that would specifically result in a higher risk of vessel
strike, or become confused in a manner that would specifically result
in a higher risk of vessel strike. The commenter does not provide
evidence and no evidence identified by NMFS has found that this would
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 impact pile
driving. Further, not only would this activity be limited to times of
year when North Atlantic right whale presence is low, pile driving
would be intermittent, and pile driving would only occur for a limited
time over the course of three years, with PSOs monitoring both visual
and acoustic cues. Any sighting of a North Atlantic right whale within
any distance from pile driving activities would immediately halt such
activity until the North Atlantic right whale left the area of their
own volition.
Comment 8: DNREC indicates proper site condition identification
should be conducted to minimize the need for US Wind to waive the
shutdown requirement for pile refusal or pile instability purposes.
DNREC further notes that HRG micro-siting surveys should be used to
identify any seabed debris, unexploded ordnances, or other substrate
conditions that could negatively impact pile driving operations.
Response: The need to waive the shutdown requirement due to pile
refusal is expected to be low. However, regardless, additional
surveying to assess the likelihood of pile refusal in advance would not
change the need to waive the shutdown if necessary for human safety or
to avoid equipment damage. Regarding the detection of unexploded
ordnance, US Wind plans to conduct HRG micrositing surveys to identify
potential UXOs for avoidance of Project activities. US Wind has
provided the information necessary for NMFS to conduct its analysis and
make the necessary determinations, and additional survey requirements
are not warranted.
Monitoring, Reporting, and Adaptive Management
Comment 9: The Commission recommends that NMFS ensure that the
mitigation, monitoring, and reporting requirements for the construction
of wind energy facilities are sufficiently detailed from the start and
specified in the proposed rule so that these measures
[[Page 84682]]
are available for public comment. The Commission indicates that by not
requiring US Wind to include mitigation and monitoring plans for the
specified activities as part of the proposed rule, NMFS is not able to
assess whether US Wind would be able to successfully implement
mitigation measures adequate to effect the least practicable adverse
impact on marine mammal species and the transparency of the public
review process is compromised. The Commission suggests that US Wind
submit the SFV plan, foundation pile driving plan, and PAM plan to NMFS
for approval in advance of promulgating the final rule, and NMFS should
post these plans for public comment. In particular, the Commission
indicates that NMFS include the number of platforms that would be
required to monitor for marine mammals during foundation installation.
Response: Due to other concurrent permitting processes and
acknowledging the need for flexibility and project-specific
implementation, NMFS disagrees these plans must be submitted prior to
promulgating the final rule. The purpose of the Plans is for the
developer to provide details to NMFS on how they would satisfy the
criteria identified in the rule. These criteria are available for
public review and comment.
In regards to the Commission's recommendation to include a
requirement for the number of monitoring platforms during foundation
installation, NMFS has added a requirement to the final rule at Sec.
217.345 Monitoring and Reporting Requirements for a minimum of 3
monitoring platforms during foundation installation. US Wind will be
required to employ a minimum of 3 active PSOs monitoring from the
foundation installation vessel as well as a minimum of 3 active PSOs
monitoring from PSO vessels. US Wind must employ at least two PSO
vessels for monitoring during foundation installation.
Comment 10: A commenter recommends that the monitoring area should
be expanded beyond the 125 square mile (80,000 acres) Maryland Wind
Energy Area (MDWEA) to ensure that project activities can be halted in
time for animals to pass through the area unharmed. The commenter
further notes that the monitoring area should be expanded before any
decisions are made.
Response: NMFS disagrees with the commenter that the planned
monitoring area should be expanded beyond the boundaries of the MDWEA.
As described in the proposed rule and this final rule, NMFS is
requiring that US Wind employ both visual and PAM methods for
monitoring, as both approaches aid and complement each other (Van
Parijs et al., 2021). The use of PAM will augment visual detections for
foundation pile driving, especially for activities with the largest
zones, to expand observer coverage of the area. 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. In addition, NMFS is requiring US Wind to establish species-
specific clearance and shutdown zones during impact pile driving and
HRG surveys. The purpose of clearance and shutdown zones are to
minimize and prevent potential instances of auditory injury and more
severe behavioral disturbances by delaying the commencement of activity
or halting the activity. NMFS has determined that the planned suite of
mitigation and monitoring measures described in the proposed rule and
this final rule are sufficient to effect the least practicable adverse
impact on marine mammal species in the project area.
Effects Assessment
Comment 11: Multiple commenters note that the LOA should not be
issued until the cumulative effects of all proposed projects are fully
considered. Commenters further indicate that the MMPA rulemaking does
not assess cumulative impacts on the affected marine mammal species,
that the ITA does not align with NEPA, and that the NEPA process is
incomplete. Commenters further indicate that the ITA should not be
issued until the EIS is complete.
Response: NMFS is required to authorize the requested incidental
take if it finds the total incidental take of small numbers of marine
mammals by U.S. citizens ``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 FEIS as part of its inter-agency
coordination and determined that the analysis in the FEIS for the
Maryland Wind Offshore Wind Project is sufficient to cover the scope of
the marine mammal incidental take authorization described in this final
rule.
This FEIS addresses cumulative impacts related to the Project and
substantially similar activities in similar locations. Cumulative
impacts regarding the promulgation of regulations and issuance of an
LOA for activities planned by US Wind 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 under section 7 of the ESA when
NMFS engaged in formal inter-agency consultation with the NOAA Greater
Atlantic Regional Field Office (GARFO) and initiated consultation on
December 5, 2023. The Biological Opinion (BiOp) for the Project
determined that NMFS' promulgation of regulations and issuance of an
LOA for activities, individually and cumulatively, are likely to
adversely affect, but not jeopardize, listed marine mammals.
The FEIS was finalized by BOEM on August 2, 2024 and adopted by
NMFS on September 4, 2024, thus completing the NEPA process.
Comment 12: Multiple commenters recommend that NMFS consider the
impacts of structure presence and operations, including those from
operational noise on marine mammals as well as ocean mixing and
vibrations on phytoplankton, zooplankton, and the food chain. A
commenter noted that
[[Page 84683]]
analysis of incidental take during wind turbine operation is
insufficient. Commenters indicate that NMFS should consider the impacts
of operational noise on marine mammals since construction and operation
will proceed simultaneously, and actual take from construction may be
masked by any take related to operational noise. Commenters further
suggest the LOA should include a full analysis of impacts of
operational noise and recommend that offshore wind energy projects be
pushed back a minimum of 20 kilometers (km) from areas used by North
Atlantic right whales for feeding and other life history activities.
Response: In the proposed rule, NMFS considered the impacts to
marine mammals from operational noise and to their habitat, including
prey, based on the best available science. In this final rule, NMFS has
supplemented that analysis with new scientific information that has
become available regarding these issues since publishing the proposed
rule. This new information does not change our findings. The commenters
did not provide scientific evidence that suggests the analysis within
the proposed rule was unsupported. NMFS has fully evaluated the
potential impacts of operational noise from issuing this final rule
authorizing take of marine mammals over the five year effective period
of this rulemaking and the potential impacts from long-term operations
via the BiOp. We refer the reader to the Effects of the Specified
Activities on Marine Mammals and Their Habitat section and the
Negligible Impact Determination section in the proposed and this final
rule for further details. In addition, US Wind will be required to use
sound field verification (SFV) for measuring operational noise as wind
turbines become operational to further evaluate the impacts of
operational noise on marine mammals and their habitat.
In regards to moving the Project a minimum of 20 km away from North
Atlantic right whale habitat, NMFS disagrees with this recommendation.
As noted in the proposed rule, the Project Area overlaps with a North
Atlantic right whale biologically important area (BIA) for migration
but not with any feeding, breeding, or calving areas. The area over
which North Atlantic right whales may be harassed is relatively small
compared to the width of the migratory corridor. The width of the
migratory corridor in this area is approximately 163.8 km while the
width of the Lease Area, at the longest point, is approximately 33.1
km. North Atlantic right whales may be displaced from their normal path
and preferred habitat in the immediate activity area (primarily from
pile driving activities), however, we do not anticipate displacement to
be of high magnitude (e.g., beyond a few kilometers); thereby, any
associated bio-energetic expenditure is anticipated to be small.
Comment 13: Several commenters claimed the request for an ITA
should be denied alleging the specified activities kill as well as harm
marine mammals and some commenters suggested that the ongoing whale
UMEs, including the whale deaths occurring in the winter of 2022-2023,
are linked with ongoing offshore wind activities. One commenter further
claimed that although ``the recent deaths and strandings of whales and
other marine mammals along the eastern seaboard have not been proven to
be the direct result of offshore wind activities, these activities have
not been disproven as a contributing factor.''
Response: NMFS disagrees that the ITA should be denied, as we have
made the necessary findings required by the MMPA for issuance and these
findings are supported by the necessary analyses and best available
science. Neither the proposed rule nor this final rule allow mortality
or serious injury of marine mammals to be authorized. The best
available science indicates that the anticipated impacts from the
specified activities potentially include avoidance, cessation of
foraging or communication, TTS and PTS, stress, masking, etc. (as
described in the Effects of the Specified Activities on Marine Mammals
and their Habitat section in the proposed rule). NMFS emphasizes that
there is no evidence that noise resulting from offshore wind
development-related specified activities would cause marine mammal
strandings, and there is no evidence linking recent large whale
mortalities and currently ongoing offshore wind activities. The
commenters offer no such evidence or other scientific information to
substantiate their claim. This point has been well supported by other
agencies, including BOEM and 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 US East Coast from 2016-2022. Humpback whales were chosen as a case
study for this analysis as they are currently undergoing a UME and
strand more often than other large whale species. Thorne and Wiley
(2024) found vessel strikes to be a major driver in the increase of
humpback whale strandings, mortalities, and serious injury along the
east coast. The potential for vessel strike increased during the study
period due to increased vessel traffic in new foraging areas, the
increased presence of juvenile humpback whales, and humpback whale
foraging in shallow areas that overlap with vessel traffic. Based upon
the spatiotemporal analysis, no evidence was found that offshore wind
development played a role in the increased number of strandings over
time. Future studies should focus on gaining a greater understanding of
spatial and seasonal habitat use patterns of large whales,
spatiotemporal changes in prey abundance and distribution, and how
habitat use and foraging behavior affect the risk of vessel strike.
While several species of delphinids and beaked whales have also
stranded off New Jersey since 2011 (per data provided from the National
Marine Stranding Network), there is no evidence that the acoustic
sources used during HRG surveys contributed to these events. NMFS will
continue to gather data to help us determine the cause of death for
these stranded whales.
There are ongoing UMEs for humpback whales, North Atlantic right
whales, and minke whales along the Atlantic coast from Maine to
Florida, which includes animals stranded since 2016 and 2017,
respectively, and we provide further information on these UMEs in the
species specific subsections in the Description of Marine Mammals in
the Specific Geographic Region section of this final rule. Vessel
strikes and entanglement in fishing gear are the greatest human threats
to large whales. Partial or full necropsy examinations were conducted
on approximately half of the humpback whales that 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 humpback whales examined (roughly 90),
about 40 percent had evidence of human interaction, either ship strike
or entanglement. Based upon necropsies conducted thus far, the
preliminary cause of mortality, serious injury, and morbidity in
stranded North Atlantic right whales is entanglement or vessel strike.
Full or partial necropsies have been conducted on approximately 60
percent of the stranded minke whales. Preliminary findings have shown
evidence of human interaction or infectious disease. The best available
science indicates that only a limited
[[Page 84684]]
amount of Level A harassment (PTS) or Level B harassment (disruption of
behavioral patterns (e.g., avoidance)), may occur as a result of US
Wind's specified activities. NMFS emphasizes that there is no credible
scientific evidence available suggesting that mortality and/or serious
injury is a potential outcome of the planned activities. 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>.
Other
Comment 14: Multiple commenters note that more data are needed on
the impact of wind turbine construction and operation on marine
mammals, and that projects should be paused until these data are
available. Commenters also recommend collecting sound level
measurements on similar turbines, such as Vineyard Wind 1 Offshore Wind
Farm, to inform the proposed rulemaking and LOA.
Response: The MMPA requires NMFS to evaluate the effects of the
specified activities in consideration of the best scientific evidence
available and to issue the requested incidental take authorization if
it makes the necessary findings. The MMPA does not allow NMFS to delay
issuance of the requested authorization on the presumption that new
information or new regulations will become available in the future. If
new information becomes available in the future, NMFS may modify the
mitigation and monitoring measures in an LOA issued under these
regulations through the adaptive management provisions, as described in
Sec. 217.347c(1) of this final rule. Furthermore, NMFS is required to
withdraw or suspend an LOA if, after notice and public comment unless
an emergency exists, it determines the authorized incidental take may
be having more than a negligible impact on a species or stock. NMFS has
duly considered the best scientific evidence available in its issuance
of the final rule and made the required findings to issue this rule.
NMFS also notes that, as proposed, this final rule requires that no
unmitigated piles can be installed and that SFV is required for piles
to ensure that measured sound levels do not exceed those modeled
assuming 10 dB of attenuation. NMFS acknowledges the importance of
transparency in the reporting process and plans to make all final
annual SFV reports available on our website. As mentioned above, since
the publication of the proposed rule NMFS has received SFV reports from
Vineyard Wind 1 that, although challenging, allow for comparison
between modeled and measured distances to the Level A harassment and
Level B harassment thresholds. These results are available on our
website 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>.
Comment 15: A commenter states that NMFS' review of the ITA
application was incomplete and the ITA should be denied. Another
commenter further states that approval of the ITA would be a
``dereliction of duty'' and does not align with NOAA's mission.
Response: NMFS disagrees with the commenter that the ITA should be
denied. NOAA's stewardship mission includes our responsibility to
uphold and implement the provisions of multiple federal statutes
designed to protect environmental resources, including the MMPA. The
MMPA allows for the incidental take of marine mammals provided the
necessary findings are made. As described in this Federal Register
notice, NMFS has conducted the necessary analysis to support our
negligible impact finding. In addition, we have required mitigation to
ensure the least practicable adverse impact on marine mammals and their
habitat. We have also included monitoring and reporting requirements to
monitor compliance and impacts to marine mammals.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
on January 4, 2024 (89 FR 504), NMFS has made changes, where
appropriate, that are reflected in the preamble text of this final rule
and the final regulatory text. These changes are briefly identified
below, with more information included in the indicated sections of the
preamble to this final rule. 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.
Changes to Information Provided in the Preamble
The information found in the preamble of the proposed rule was
based on the best available information at the time of publication.
Since publication of the proposed rule, new information has become
available, which has been incorporated into this final rule as
discussed below.
The following changes are reflected in the Description of Marine
Mammals in the Specific Geographic Region section of the preamble to
this final rule:
Given the release of NMFS' draft 2023 Stock Assessment Report (SAR)
(89 FR 5495, January 29, 2024), we have updated the population estimate
for the North Atlantic right whale (Eubalaena glacialis) from 368 to
340 and the total mortality/serious injury (M/SI) amount from 8.1 to
27.2. This increase is due to the inclusion of undetected M/SI (whereas
8.1 accounted only for detected M/SI). As described in the draft 2023
SARs (89 FR 5495, January 29, 2024), the use of the refined methods of
Pace et al. (2021), the estimated annual rate of total mortality of
adults and juveniles for the period 2016-2020 was 27.2, which is 3.4
times larger than the 8.1 total derived from reported mortality and
serious injury for the same period.
Given the availability of new information, we have made updates to
the UME summaries for North Atlantic right whales, humpback whales, and
minke whales.
The following change is reflected in the Potential Effects of
Specified Activities on Marine Mammals and Their Habitat section of the
preamble to this final rule:
We have added information relating to the broken blade at the
Vineyard Wind 1 Lease Area, the rarity of this event occurring, and
that no take was requested, anticipated, proposed, or authorized
incidental to blade failure so this is not discussed further in this
document.
The following changes are reflected in the Estimated Take,
Mitigation, and Monitoring and Reporting sections of the preamble to
this final rule:
This final rule requires US Wind to employ a minimum of three
monitoring platforms, including the pile driving vessel platform and a
minimum of two PSO support vessels. Each platform must employ a minimum
of three active on-duty PSOs.
We have also added a requirement for US Wind to cease pile driving
activities 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.
The requirement for PAM operators to receive conditional or
unconditional approval was removed as the PAM operators' experience is
relevant to all PAM operators and the conditional/unconditional
approval framework does not apply.
[[Page 84685]]
The educational requirement for PSOs and PAM operators to have
received a bachelor's degree from ``an accredited college or
university'' has been removed. PSOs and PAM operators are still
required to have received a bachelor's degree, although experience can
still be substituted for education.
The requirement for submission of PAM detection data to the NEFSC
has been updated due to a change in NEFSC reporting requirements. US
Wind must submit full PAM detection data within 90 days after pile
driving is complete and every 90-calendar days for transit lane PAM.
Changes in the Regulatory Text
We have made the following changes to the regulatory text, which
are reflected, as appropriate, throughout this final rule and
described, as appropriate, in the preamble.
We have removed duplicative measures and, for clarity and
consistency, we revised paragraph Sec. 217.340(b) of the regulatory
text to fully describe the specified geographical region.
We have modified a proposed measure that set hammer energy
guidelines during foundation and MET Tower installation to allow
greater flexibility in response to the circumstances of the particular
installation. We have retained the measures related to actions
necessary should SFV identify that distances to NMFS harassment
thresholds, regardless of hammer energies, are longer than anticipated.
For consistency, NMFS has included conditions in Sec. 217.344(a)
to clarify mitigation requirements discussed in the preamble. The
conditions for commencing pile driving and HRG survey activities are
clarified.
NMFS has added additional clarification on the authority of PSOs
and PAM operators in Sec. 217.344(a) to ensure compliance and proper
implementation of the regulations.
NMFS has clarified language in Sec. 217.344(b) to specify that
this measure applies to vessels traveling in the specified geographical
region and when Project vessels may deviate from vessel speed avoidance
measures. NMFS has also defined the term ``emergency'' for clarity.
In Sec. 217.344(b)(1), (11), and (12), Sec. 217.344(c)(10), and
(15), Sec. 217.344(d)(2), Sec. 217.345(a)(2), and (4), Sec.
217.345(b)(2), (4), (8), and (9), NMFS has made minor changes to
formatting and wording to more clearly state the requirements.
NMFS has added a requirement for all vessel operators to reduce
speed to 10 knots (kn) or less when any large whale (other than a North
Atlantic right whale, for which the requirement was already included)
or large assemblages of cetaceans are observed within 500 m (0.31 mi)
of a transiting vessel in Sec. 217.344(b).
To align with the BiOp, NMFS has modified thorough SFV requirements
(Sec. 217.344) and added a requirement for US Wind to conduct
abbreviated SFV monitoring during pile driving activities in Sec.
217.344(c).
NMFS has updated the requirement for US Wind to conduct SFV
measurements during turbine operations instead of upon the commencement
of turbine operations in Sec. 217.344(c)(16).
In Sec. 217.345(a), NMFS has updated the requirements for PSO and
PAM operator qualifications. The requirement for PAM operators to
receive conditional or unconditional approval was removed because all
PAM operators are subject to a list of qualifications presented in the
proposed rule and do not need to obtain conditional or unconditional
approval. In addition, the educational requirement for PSOs and PAM
operators to receive their bachelor's degrees from an accredited
college or university has been removed, although PSOs and PAM operators
are still required to have received a bachelor's degree, although
experience can still be substituted for education.
In Sec. 217.345(b)(7), NMFS has added a requirement for visual
observations of marine mammals by pile driving Project personnel to be
reported to on-duty PSOs and vessel captains to increase situational
awareness.
In response to comments and to improve detection capabilities, NMFS
has added a requirement for a minimum of 3 PSOs to be on-duty on each
observation platform during impact pile driving and that, in addition
to PSOs on the pile driving vessel, PSOs must also be observing for
marine mammals on two dedicated PSO vessels.
In Sec. 271.345(f)(6), NMFS has updated the requirement for
reporting PAM detection data due to a change in NEFSC reporting
requirements. US Wind must submit full PAM detection data within 90
days after foundation installation ceases.
Description of Marine Mammals in the Area of Specified Activities
As noted in the Changes from the Proposed to Final Rule section,
since publication of the proposed rule (89 FR 504, January 4, 2024),
updates have been made to the abundance estimate for North Atlantic
right whales and the UME summaries of multiple species. These changes
are described in detail in the sections below; otherwise, the
Description of Marine Mammals in the Specific Geographic Region section
has not changed since the publication of the proposed rule in the
Federal Register (89 FR 504, January 4, 2024).
Thirty-eight marine mammal species under NMFS' jurisdiction have
geographic ranges within the western North Atlantic OCS (Hayes et al.,
2023). Sections 3 and 4 of US Wind's application summarize available
information regarding status and trends, distribution and habitat
preferences, and behavior and life history of the potentially affected
species (US Wind, 2023). Additional information regarding population
trends and threats may be found in NMFS' SARs (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS'
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 3 lists all species or stocks for which take is authorized
under this final rule and summarizes information related to the species
or stock, including regulatory status under the MMPA and ESA and
potential biological removal (PBR), where known. PBR is defined as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (as described in
NMFS' SARs; (16 U.S.C. 1362(20)). While no mortality is anticipated or
authorized here, PBR and annual serious injury and mortality from
anthropogenic sources are included here as gross indicators of the
status of the species and other threats. Marine mammal abundance
estimates presented in this document represent the total number of
individuals that make up a given stock or the total number estimated
within a particular study or survey area. NMFS' stock abundance
estimates for most species represent the total estimate of individuals
within the geographic area, if known, that comprises that stock. For
some species, this geographic area may extend beyond U.S. waters. All
managed stocks in this region are assessed in NMFS' U.S. Atlantic and
Gulf of Mexico SARs. All values presented in table 3 are the most
recent available data at the time of publication which can be found in
NMFS' 2023 draft SARs (89 FR 5495, January 29, 2024), available online
at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>.
[[Page 84686]]
Table 3--Marine Mammal Species That May Occur in the Project Area and Be Taken, by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name \1\ Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western Atlantic....... E, D, Y 340 (0; 337; 2021) \5\ 0.7 \5\ 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 Delphinidae:
Killer whale \8\................ Orcinus orca........... Western North Atlantic. -, -, N UNK (UNK, UNK, 2016).. UNK 0
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3, 30,627, 306 5.7
2021).
Short-finned pilot whale........ Globicephala Western North Atlantic. -, -, Y 18,726 (0.33, 14,292, 143 218
macrorhynchus. 2021).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -, -, N 64,587 (0.24, 52,801, 507 28
Offshore. 2021) \6\.
Bottlenose dolphin.............. Tursiops truncatus..... Northern Migratory -, -, Y 6,639 (0.41, 4,759, 48 12.2-21.5
Coastal. 2016) \7\.
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 93,100 (0.56, 59,897, 1,452 414
2021).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 31,506 (0.28, 25,042, 250 0
2021).
Pantropical spotted dolphin..... Stenella attenuata..... Western North Atlantic. -, D, N 2,757 (0.50, 1,56, 19 0
2021).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 44,067 (0.19, 30,662, 307 18
2021).
Rough-toothed dolphin \8\....... Steno bredanensis...... Western North Atlantic. -, -, N unk (unk, unk, 2021).. undet 0
Striped dolphin \8\............. Stenella coeruleoalba.. Western North Atlantic. -, -, N 48,274 (0.29, 38,040, 529 0
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 \9\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,911 (0.20, 23,624, 1,512 4,570
2021).
Harp seal....................... Pagophilus Western North Atlantic. -, -, N 7.6M (UNK, 7.1M, 2019) 426,000 178,573
groenlandicus.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>; Committee on Taxonomy (2022)).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR, or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-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.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike).
\5\ In the proposed rule (89 FR 504, January 4, 2023), a population estimate of 368 was used which represented the best available science at the time of
publication. However, since the publication of the proposed rule, a new estimate (n=340) was released in NMFS' draft 2023 SARs and has been
incorporated into this final rule. The current draft SAR includes an estimated population (N best 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); 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.
\6\ As noted in the draft 2023 SAR (89 FR 5495, January 29, 2024), abundance estimates may include sightings of the coastal form.
\7\ There are two morphologically and genetically distinct forms of common bottlenose dolphin (Duffield et al., 1983; Mead and Potter, 1995; Rosel et
al., 2009) described as the coastal and offshore forms in the western North Atlantic (Hersh and Duffield, 1990; Mead and Potter, 1995; Curry and
Smith, 1997; Rosel et al., 2009). The two morphotypes are genetically distinct based upon both mitochondrial and nuclear markers (Hoelzel et al.,
1998; Rosel et al., 2009). The genetic and morphological differences recently led to the coastal form being described as a new species, Tursiops
erebennus (Costa et al., 2022; 89 FR 5495, January 29, 2024). Population estimates are based upon recent surveys in 2021.
\8\ US Wind did not request take of these species; however, their exposure analysis demonstrates there is potential for harassment. Although these
species are rare in the project area, NMFS would authorize a small amount of Level B harassment in the case of potential presence during pile driving.
\9\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 451,431. The annual M/SI value given is for the total stock.
Of the marine mammal species and/or stocks with geographic ranges
that include the western North Atlantic OCS (table 3-1 in US Wind
incidental take authorization (ITA) application), 19 are not expected
to be present or are considered rare or unexpected in the project area
based on sighting and distribution data; they are, therefore, not
discussed further beyond the explanation provided here. Specifically,
the following cetacean species are known to occur off of Maryland but
are not expected to occur in the project area due to the location of
preferred habitat outside the Lease Area and ECCs, based on the best
available information, and therefore US Wind did not request, and NMFS
is not authorizing take, of these species: Blue whale (Balaenoptera
musculus), Cuvier's beaked whale (Ziphius cavirostris), four species of
Mesoplodont beaked whales (Mesoplodon densitostris, M. europaeus, M.
mirus, and M. bidens), Atlantic white-sided dolphin (Lagenorhynchus
acutus), Clymene dolphin (Stenella clymene), dwarf sperm whale (Kogia
sima), false killer whale (Pseudorca crassidens), Fraser's dolphin
[[Page 84687]]
(Lagenodelphis hosei), melon-headed whale (Peponocephala electra),
northern bottlenose whale (Hyperoodon ampullatus), pygmy killer whale
(Feresa attenuata), pygmy sperm whale (Kogia breviceps), sperm whale
(Physeter macrocephalus), spinner dolphin (Stenella longirostris), and
white-beaked dolphin (Lagenorhynchus albirostris). Two species of
phocid pinnipeds are also uncommon in the project area, including: harp
seals (Pagophilus groenlandica) and hooded seals (Cystophora cristata).
However, harp seals are known to strand in coastal Maryland. Therefore,
the LOA, if issued, would authorize take of harp seals.
In addition to the species listed in table 2, the Florida manatee
(Trichechus manatus; a sub-species of the West Indian manatee) has been
previously documented as an occasional visitor to the Mid-Atlantic
region during summer months (U.S. Fish and Wildlife Service (USFWS),
2019). However, as manatees are managed solely under the jurisdiction
of the U.S. FWS and are considered rare or unexpected in the Project
Area, they are not considered or discussed further in this document.
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 rule (89 FR 504, January 4, 2024). Other than adjustments
to population statistics (e.g., North Atlantic right whale population
abundance) and UME updates, we are not aware of any changes in the
status of the species and stocks listed in table 2; therefore, detailed
descriptions are not provided here. Please refer to the proposed rule
for these descriptions (89 FR 504, January 4, 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 rule, the following updates
have occurred to the below species in regards to general information or
their active UMEs.
North Atlantic Right Whale
In January 2024, NMFS released its draft 2023 SARs, (89 FR 5495,
January 29, 2024) which updated the population estimate
(N<INF>best</INF>) of North Atlantic right whales to 340 individuals
(an increase from the final 2022 SARs (n=338); the annual M/SI value
dropped from the final 2022 SAR of 31.2 to 27.2 in the draft 2023 SAR.
Beginning in the 2022 SARs, the M/SI for North Atlantic right whale
included the addition of estimated undetected mortality and serious
injury, which had not been previously included in the SAR. The current
population estimate is equal to the North Atlantic Right Whale
Consortium's 2022 Annual Report Card, which identifies the population
estimate as 340 individuals (Pettis et al., 2023).
As described in the proposed rule, elevated North Atlantic right
whale mortalities have occurred since June 7, 2017, along the U.S. and
Canadian coast, with the leading category for the cause of death for
this UME determined to be ``human interaction,'' specifically from
entanglements or vessel strikes. Since publication of the proposed
rule, the number of animals considered part of the UME has increased.
As of September 3, 2024, there have been 40 confirmed mortalities
(dead, stranded, or floaters), 1 pending mortality, and 36 seriously
injured free-swimming whales for a total of 77 whales. The UME also
considers animals with sublethal injury or illness (called
``morbidity''; n=65) bringing the total number of whales in the UME to
142. More information about the North Atlantic right whale UME is
available online at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-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>.
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 rule, the number of animals considered part
of the UME has increased to 227 total mortalities (as of September 3,
2024). More information is available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>.
Since December 1, 2022, the number of humpback strandings along the
mid-Atlantic coast, from North Carolina to New York, has been elevated.
In some cases, the cause of death is not yet known; in others, vessel
strike has been deemed the cause of death. As the humpback whale
population has grown, they are seen more often in the Mid-Atlantic.
These whales may be following their prey (small fish) which were
reportedly close to shore in the 2022-2023 winter. Changing
distributions of prey impact larger marine species that depend on them,
and result in changing distribution of whales and other marine life.
These prey also attract fish that are targeted by recreational and
commercial fishermen, which increases the number of boats and amount of
fishing gear in these areas. This nearshore movement increases the
potential for anthropogenic interactions, particularly as the increased
presence of whales in areas traveled by boats of all sizes increases
the risk of vessel strikes.
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 3, 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>.
Phocid Seals
Since June 2022, elevated numbers of harbor seal and gray seal
mortalities have occurred across the southern and central coast of
Maine. This event was declared a UME in June 2022 and lasted through
July 2022. The UME Investigative Team reviewed necropsy,
histopathology, and diagnostic findings. They determined the UME was
attributed to spillover events of the highly pathogenic avian influenza
H5N1 virus from infected wild birds to harbor and gray seals. An
ongoing HPAI H5N1 global outbreak in domestic and wild birds and wild
mammals began in 2021. Live seals showed signs of respiratory and
neurological disease including nasal and ocular discharge, coughing,
unresponsiveness, and seizures. Eighteen percent of the stranded seals
(33 out of 180) were tested for avian influenza via polymerase-chain-
reaction. A subset of seals were positive for HPAI H5N1 with
preliminary findings confirmed by the U.S. Department of Agriculture's
National Veterinary Services Laboratories. Of the 33 seals tested
during the UME period 19 (58 percent) were positive for H5N1 (17 harbor
seals; 2 gray seals) and 14 (42 percent) tested negative. Twelve H5N1
positive seals had histopathology conducted; 11 of those seals had
lesions (primarily respiratory and/or
[[Page 84688]]
neurologic) suspected or consistent with avian influenza infection.
Sequencing of the H5N1 virus detected in seals suggests the seals were
infected from spillover events from infected wild birds to these seals.
While the UME was not occurring in the area of the Project, the
populations affected by the UME were the same as those potentially
affected by the Project. Information on this 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>.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Subsequently, NMFS (2018)
described generalized hearing ranges for these marine mammal hearing
groups. Generalized hearing ranges were chosen based on the
approximately 65-dB threshold from the normalized composite audiograms,
with the exception for lower limits for low-frequency cetaceans where
the lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in table 4.
Table 4--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans............... 7 Hz to 35 kHz.
(baleen whales)............................
Mid-frequency (MF) cetaceans............... 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked whales,
bottlenose whales).
High-frequency (HF) cetaceans.............. 275 Hz to 160 kHz.
(true porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus cruciger &
L. australis).
Phocid pinnipeds (PW) (underwater)......... 50 Hz to 86 kHz.
(true 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).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
Exposure to underwater noise from the Project's specified
activities have the potential to result in Level A harassment or Level
B harassment of marine mammals in the specified geographic region, but
no serious injury or mortality. The proposed rule (89 FR 504, January
4, 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 rule
(e.g., BOEM et al., 2024; Holdman et al., 2023; Pirotta et al., 2024;
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 rule. We provide a summary of these papers below.
The recently released BOEM and NOAA Fisheries North Atlantic Right
Whale Strategy (BOEM et al., 2024) identified actions related to
mitigation and decision-support tools, research and monitoring, and
collaboration, communication, and outreach to minimize risk and impacts
to North Atlantic right whales. The identified actions would also allow
for coordinated and efficient collaborations between Federal agencies
and partners, collection and application of the best available
scientific data, and implementation of effective mitigation measures.
The Strategy also describes potential actions for further development
as well.
Pirotta et al. (2024) incorporated data and analysis of North
Atlantic right whale length, compiled by the North Atlantic Right Whale
Consortium, to investigate whether the smaller mean asymptotic length
currently documented for North Atlantic right whales is associated with
lower reproductive output. North Atlantic right whale mean asymptotic
length (Stewart et al., 2021) and female calving probability (Pirotta
et al., 2023) have been in decline for decades. Pirotta et al. (2024)
expanded upon the conducted by Stewart et al. (2022) and quantified how
length contributes to calving probability, while taking into account
variation due to individual health of whales. The finding that smaller
mean asymptotic length contributes to lower calving probability for
North Atlantic right whales provides a greater understanding into
drivers for decreasing reproductive output for this species.
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
proposed rule incorporated these density models into methodology for
estimating take from foundation installation and HRG surveys (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 rule. For
[[Page 84689]]
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 rule did include 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 74 percent at 18
h. Therefore, monitoring for at least 24 hours prior to activity will
increase the likelihood of detecting an up-calling North Atlantic right
whale.
Thorne and Wiley (2024) recently reviewed spatiotemporal patterns
of strandings, mortalities, and serious injuries of humpback whales
along the U.S. east coast from 2016-2022 and found vessel strikes to be
the major driver in the increase of humpback whale strandings,
mortalities, and serious injury. Based upon the spatiotemporal
analysis, no evidence was found that offshore wind development played a
role in the increased number of strandings over time. In fact, the
potential for vessel strike increased during the course of the study
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.
Similar to the discussion presented in the proposed rule, the BiOp
stated it is likely the Project will produce a wind wake from operation
of the turbines and that the foundations themselves will lead to
disruptions in local conditions. The scale of these effects is expected
to range from hundreds of meters and up to 1 km from each foundation
and the changes in conditions may alter the distribution of nutrients,
primary production, and plankton (Floeter et al., 2017; van Berkel et
al., 2020). However, the BiOp concluded it is not expected that the
impacts to oceanic conditions resulting from the Project will be large
enough to affect regional conditions that could influence the
distribution of prey or conditions that aggregate prey in the broader
Mid-Atlantic Bight region or within or around the Maryland Wind WDA in
a way that would have adverse effects on ESA-listed species. Therefore,
NMFS expects any alteration of the biomass of plankton in the region,
and therefore, the total food supply, to be so small that adverse
effects on ESA-listed species are extremely unlikely to occur.
Overall, there is no new scientific information regarding the
general anticipated effects of OSW construction on marine mammals and
their habitat that was not discussed in the proposed rule. The
information and analysis regarding the potential effects on marine
mammals and their habitat has not changed and is adopted here by
reference (see 89 FR 504, January 4, 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, a project located off of Martha's Vineyard
and Nantucket, 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.
As noted above, wind turbine failure is considered rare, and NMFS
still considers the likelihood that blade failure would occur pursuant
to US Wind's specified activity during the effective period of the ITA
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. US Wind 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
This section provides an estimate of the number of incidental takes
that may be authorized through this rule, which will inform both NMFS'
consideration of ``small numbers'' and the negligible impact
determination. The analysis related to take incidental to HRG surveys
and foundation installation is unchanged since the proposed rule.
Generally speaking, 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 (as well as impulse metric
(Pascal-second) and peak sound pressure level thresholds above which
marine mammals may incur non-auditory injury from underwater explosive
detonations); (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 takes, additional
information that can qualitatively inform take estimates is also
sometimes available. Below, we describe the factors considered here in
more detail and present the take estimates.
Marine Mammal Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
[[Page 84690]]
received level of underwater sound above which exposed marine mammals
are likely to be behaviorally harassed (equated to Level B harassment)
or to incur PTS of some degree (equated to Level A harassment).
Thresholds have also been developed identifying the received level of
in-air sound above which exposed pinnipeds would likely be behaviorally
harassed. A summary of NMFS' 2018 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), the environment (e.g., other noises in the area) and the state
of the receiving animals (e.g., hearing, motivation, experience,
demography, 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 behaviorally
harassed in a manner considered to be Level B harassment when exposed
to underwater anthropogenic noise above root-mean-squared pressure
received levels (RMS SPL) of 120 dB (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 (table 4). Generally speaking, Level B
harassment take estimates based on these behavioral harassment
thresholds are expected to include any likely takes by temporary
threshold shift (TTS) as, in most cases, the likelihood of TTS occurs
at distances from the source less than those at which behavioral
harassment is likely. TTS of a sufficient degree can manifest as
behavioral harassment, as reduced hearing sensitivity and the potential
reduced opportunities to detect important signals (e.g., conspecific
communication, predators, prey) may result in changes in behavior
patterns that would not otherwise occur.
US Wind's construction activities include the use of intermittent
(e.g., impact pile driving and HRG acoustic sources) sources;
therefore, the 160 dB re 1 [mu]Pa (RMS) threshold is applicable.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0;
Technical Guidance, 2018) identifies dual criteria to assess auditory
injury constituting 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 (i.e., impulsive or non-impulsive
sources). As dual metrics, NMFS considers onset of PTS constituting
Level A harassment to have occurred when either one of the two metrics
is exceeded (i.e., metric resulting in the largest isopleth). The
Project includes the use of impulsive and non-impulsive sources.
The 2018 thresholds are provided in table 5 below. 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 5--Onset of PTS
[NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
PTS onset thresholds * (received level)
Hearing group -------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-frequency (LF) cetaceans.......... Cell 1: L,0-pk,flat: 219 Cell 2: LE,,LF,24h: 199 dB.
dB; LE,,LF,24h: 183 dB.
Mid-frequency (MF) cetaceans.......... Cell 3: L,0-pk,flat: 230 Cell 4: LE,,MF,24h: 198 dB.
dB; LE,,MF,24h: 185 dB.
High-frequency (HF) cetaceans......... Cell 5: L,0-pk,flat: 202 Cell 6: LE,,HF,24h: 173 dB.
dB; LE,,HF,24h: 155 dB.
Phocid pinnipeds (PW) (Underwater).... Cell 7: L,0-pk.flat: 218 Cell 8: LE,,PW,24h: 201 dB.
dB; LE,,PW,24h: 185 dB.
Otariid pinnipeds (OW) (Underwater)... Cell 9: L,0-pk,flat: 232 Cell 10: LE,,OW,24h: 219 dB.
dB; LE,,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 (L,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
exposure level (LE,) has a reference value of 1[mu]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.
Take That May Be Authorized
In the proposed rule, we discussed the marine mammal density and
occurrence information, acoustic modeling, and take estimation
methodologies and results for each of US Wind's specified activities
and all marine mammal species and stocks. All of this information
presented in the proposed rule, including multiple tables (e.g.,
densities, acoustic ranges, source characteristics) remains accurate
and unchanged and is not reproduced here. Below, tables 6 and 7
identify the maximum annual allowable take and the maximum total
allowable take across the 5-year effective period of the rule.
As described in the proposed rule (89 FR 504, January 4, 2024),
NMFS used the best available science and robust models to consider the
interaction of marine mammal movement, the environment, and the Project
activities, in the context of NMFS' acoustic thresholds, to project the
maximum number of takes that are reasonably expected to occur, by Level
A harassment and Level B harassment. However, NMFS has also
acknowledged
[[Page 84691]]
the uncertainty inherent in certain input values (e.g., source levels
and spectra) and environmental variability present in real-life
physical and biological systems. The LOA would specify maximum annual
and 5 year takes that may not be exceeded, by Level A and Level B
harassment, but would not specify the number of allowable takes by
activity type, thus allowing for flexibility should the number of takes
from a specific activity type exceed the number modeled for the
specific activity type, provided the manner and impacts of those takes
remain within those considered within the analysis and the total takes
remain below the annual maximum and 5-year totals.
Table 6--Maximum Level A Harassment and Level B Harassment Takes for All Activities That May Be Authorized
During the Construction of the Project and Over the Course of the Five Years Covered by the Rule \1\
----------------------------------------------------------------------------------------------------------------
Total take by Level A Total take by Level B
Marine mammal species harassment that may be harassment that may be
authorized authorized
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \2\................................ 0 10
Fin whale \2\................................................. 6 35
Humpback whale................................................ 6 30
Minke whale................................................... 9 58
Sei whale \2\................................................. 3 3
Killer whale.................................................. 0 9
Atlantic spotted dolphin...................................... 0 168
Coastal bottlenose dolphin.................................... 0 2,165
Offshore bottlenose dolphin................................... 0 2,755
Bottlenose dolphin \3\........................................ 0 258
Common dolphin................................................ 0 488
Long-finned pilot whale....................................... 0 48
Short-finned pilot whale...................................... 0 33
Pantropical spotted dolphin................................... 0 15
Risso's dolphin............................................... 0 70
Rough-toothed dolphin......................................... 0 18
Striped dolphin............................................... 0 138
Harbor porpoise............................................... 6 68
Gray seal \4\................................................. 0 496
Harbor seal \4\
Harp seal \4\
----------------------------------------------------------------------------------------------------------------
\1\ The final rule and LOA would be effective from January 1, 2025 through December 31, 2029, however, US Wind
has not planned activities to occur in 2028 or 2029. As described in table 2, NMFS recognizes the potential
for activity schedules to shift such that they occur during different timeframes within the five year
effective period of the rule, including the potential for activities to occur in 2028 and 2029.
\2\ Listed as Endangered under the ESA.
\3\ The total take over 5 years represented here accounts for HRG surveys wherein the take may occur to either
the Northern migratory coastal stock and/or the offshore stock of bottlenose dolphins.
\4\ Take that may be authorized includes harbor seals, gray seals, and harp seals.
To inform both the negligible impact analysis and the small numbers
determination, NMFS also (in addition to the five-year total) assesses
the maximum number of takes of marine mammals that could occur within
any given year. For each species or stock, we consider the maximum
number of Level A harassment takes that could occur and may be
authorized in any one year, the maximum number of Level B harassment
takes that could occur and may be authorized in any one year, and the
sum of those two annual maxima to yield the highest number of total
takes that could occur in any year (table 7). Table 7 also indicates
the number of takes authorized relative to the abundance of each stock.
The takes enumerated here represent daily instances of take, not
necessarily individual marine mammals taken. One take represents a day
in which an animal was exposed to noise above the associated harassment
threshold at least once. Some takes represent a brief exposure above a
threshold, while in some cases takes could represent a longer, or
repeated, exposure of one individual animal above a threshold within a
24-hour period. Whether or not every take assigned to a species
represents a different individual depends on the daily and seasonal
movement patterns of the species in the area. For example, activity
areas with continuous activities (all or nearly every day) overlapping
known feeding areas (where animals are known to remain for days or
weeks on end) or areas where species with small home ranges live (e.g.,
some pinnipeds) are more likely to result in repeated takes to some
individuals. Alternatively, activities that are not occurring on
consecutive days for the duration of the Project (e.g., foundation
installation) or occurring in an area where animals are migratory and
not expected to remain for multiple days, represent circumstances where
repeat takes of the same individuals are less likely. For example, 100
takes could represent 100 individuals each taken on one day within the
year, or it could represent 5 individuals each taken on 20 days within
the year. The combination of number of individuals each taken and
number of days on which take would occur would depend upon the
activity, the presence of biologically important areas in the project
area, and the movement patterns of the marine mammal species exposed.
Where information to better contextualize the enumerated takes for a
given species is available, it is discussed in the Negligible Impact
Analysis and Determination and/or Small Numbers sections, as
appropriate.
[[Page 84692]]
Table 7--Maximum Number of Takes by Level A Harassment and Level B Harassment That May Be Authorized in Any One
Year of the Project Relative to Stock Population Size \1\
----------------------------------------------------------------------------------------------------------------
Maximum take
Maximum Maximum (instances) as a
Marine mammal species NMFS stock annual annual Maximum percentage of
abundance Level A Level B annual take stock abundance)
harassment harassment \1\ \2\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \3\ \4\....... 338 0 4 4 1.18
Fin whale \3\ \4\........................ 6,802 2 18 20 0.29
Humpback whale \4\....................... 1,396 2 16 18 1.29
Minke whale.............................. 21,968 6 41 47 0.21
Sei whale \3\ \4\........................ 6,292 1 1 2 0.03
Killer whale \4\......................... UNK 0 3 3 UNK
Atlantic spotted dolphin \4\............. 39,921 0 69 69 0.17
Coastal bottlenose dolphin \5\........... 6,639 0 1,591 1,591 24.0
Offshore bottlenose dolphin \5\.......... 62,851 0 1,768 1,768 2.81
Common dolphin........................... 172,974 0 298 298 0.17
Long-finned pilot whale \4\.............. 39,215 0 16 16 0.04
Short-finned pilot whale \4\............. 28,924 0 11 11 0.04
Pantropical spotted dolphin \4\.......... 6,593 0 5 5 0.08
Risso's dolphin \4\...................... 35,215 0 26 26 0.07
Rough-toothed dolphin \4\................ 136 0 6 6 4.41
Striped dolphin \4\...................... 67,036 0 46 46 0.07
Harbor porpoise \4\...................... 95,543 3 39 42 0.04
Gray seal \6\............................ 27,300 0 341 341 1.25
Harbor seal \6\.......................... 61,336 ........... ........... ........... 0.56
Harp seal \6\............................ 7.6M ........... ........... ........... 0.004
----------------------------------------------------------------------------------------------------------------
\1\ Year 2 (2026) represents the most overall impactful year.
\2\ The values in this column represent the assumption that each take that may be authorized would occur to a
unique individual. Given the scope of planned work, this is highly unlikely for species common to the project
area (e.g., North Atlantic right whales, humpback whales) such that the actual percentage of the population
taken is less than the percentages identified here.
\3\ Listed as Endangered under the ESA.
\4\ Take that may be authorized is based on average group size.
\5\ The amount of take identified includes the maximum amount of take that could occur from impact pile driving
in any given year plus the maximum amount of take from HRG surveys in any given year, assuming all take from
HRG surveys is allocated to both bottlenose dolphin stocks.
\6\ Assumes 100 percent of the take by Level B harassment is from either the gray seal stock, harbor seal stock,
or harp seal stock.
Mitigation
As noted in the Changes from the Proposed to Final Rule section,
NMFS has added new mitigation requirements and clarified a few others.
These changes are described in detail in the sections below. Besides
these changes, the required measures remain the same as those described
in the proposed rule. However, NMFS has also re-organized and
simplified the section to avoid full duplication of the specific
requirements that are fully described in the regulatory text.
In order to promulgate a rulemaking under section 101(a)(5)(A) of
the MMPA, NMFS must set forth the permissible methods of taking
pursuant to the activity, and other means of effecting the least
practicable adverse 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 ITAs to include
information about the availability and feasibility (e.g., 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
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider 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 (e.g., likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented (i.e., the
probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (i.e., the
probability if implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider factors such as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
The mitigation strategies described below are consistent with those
required and successfully implemented under previous ITAs 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 construction activities
would occur offshore. Modeling was performed to estimate harassment
zones, which were used to inform mitigation measures for the Project's
activities to minimize Level A harassment and Level B harassment to the
extent practicable, while providing estimates of the areas within which
Level B harassment might occur.
Generally speaking, the mitigation measures considered and required
here fall into three categories: temporal (i.e., seasonal and daily)
and spatial work restrictions, real-time measures (e.g., shutdown,
clearance, and vessel strike avoidance), and noise attenuation/
reduction measures. Temporal and spatial work restrictions are designed
to
[[Page 84693]]
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 briefly describe the required training, coordination, and
vessel strike avoidance measures that apply to all activity types, and
in the following subsections we describe the measures that apply
specifically to foundation installation and HRG surveys. Details on
specific requirements can be found in 50 CFR part 217, subpart II, set
out at the end of this rule.
Training and Coordination
NMFS requires all US Wind 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 US Wind's compliance
with the LOA, if issued. 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, relevant crew) join the Project
before work commences. During this training, US Wind is required to
instruct all project personnel regarding the authority of the marine
mammal monitoring team(s). For example, the HRG acoustic equipment
operator, pile driving personnel, etc., is required to immediately
comply with any call for a delay or shutdown 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, vessel
operators and crews will receive training about marine mammals and
other protected species known or with the potential to occur in the
project area, making observations in all weather conditions, and vessel
strike avoidance measures. In addition, training will include
information and resources available regarding applicable Federal laws
and regulations for protected species. US Wind will provide
documentation of training to NMFS. Since the proposed rule, NMFS has
added requirements for a description of the training program to be
provided to NMFS at least 60 days prior to the initial training before
in-water activities begin and for confirmation of all required training
to be documented on a training course log sheet and reported to NMFS
Office of Protected Resources prior to initiating Project activities.
These measures were added in response to several commenters' concerns
regarding strengthening mitigation and monitoring measures.
North Atlantic Right Whale Awareness Monitoring
US Wind must use available sources of information on North Atlantic
right whale presence, including daily monitoring of the Right Whale
Sightings Advisory System, monitoring of Coast Guard VHF Channel 16
throughout each day to receive notifications of any sightings, and
information associated with any regulatory management actions (e.g.,
establishment of a zone 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 US Wind's 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
Both the proposed and this final rule contain numerous vessel
strike avoidance measures that reduce the risk that a vessel and marine
mammal could collide. These measures must be followed unless doing so
would create safety risks as described in the regulatory text. While
the likelihood of a vessel strike is generally low, they are one of the
most common ways that marine mammals are seriously injured or killed by
human activities. Therefore, enhanced mitigation and monitoring
measures are required to further avoid vessel strikes to the extent
practicable. While many of these measures are proactive, intended 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 marine mammal is sighted by Project personnel. The mitigation
requirements are described generally here and in detail in the
regulatory text at the end of this final rule (50 CFR 217.344(b)). US
Wind will be 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, US Wind 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 is
required to immediately reduce speeds to 10 kn (11.5 mph) or less if
any large whale, or large assemblage of non-delphinid cetaceans is
observed within 500 m of the vessel. Additionally, all Project vessels,
regardless of size, must maintain 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). If any of
these non-North Atlantic right whale marine mammals are sighted, the
underway vessel must shift its engine to neutral and the engines must
not be
[[Page 84694]]
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).
Table 8--Vessel Strike Avoidance Separation Zones
------------------------------------------------------------------------
Marine mammal species Vessel separation zone (m)
------------------------------------------------------------------------
North Atlantic right whale................. 500
Other ESA-listed species and large whales.. 100
Other marine mammals \1\................... 50
------------------------------------------------------------------------
\1\ With the exception of seals and delphinid(s) from the genera
Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below.
All of the Project-related vessels are required to comply with the
measures within this rulemaking for operating vessels around North
Atlantic right whales and other marine mammals, as well as any existing
NMFS vessel speed restrictions for North Atlantic right whales. 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, US Wind is required to monitor the transit
corridor 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 an Automatic Information
System (AIS) and US Wind must report all Maritime Mobile Service
Identity (MMSI) numbers to NMFS Office of Protected Resources prior to
initiating in-water activities. US Wind will submit a Marine Mammal
Vessel Strike Avoidance Plan for NMFS approval at least 180 days prior
to commencement of vessel use.
Compliance with these measures will reduce the likelihood of vessel
strike to the extent practicable. These measures 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 would not allow take
from this activity under this final rule.
Seasonal and Daily Restrictions
Temporal and spatial 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
required here are built around the protection of North Atlantic right
whales. Based upon the best scientific information available (Roberts
et al., 2023), the highest densities of North Atlantic right whales in
the project area are expected during the months of January through
April, with an increase in density starting in December. However, North
Atlantic right whales may be present in the project area throughout the
year.
NMFS is requiring seasonal work restrictions to minimize the risk
of noise exposure to North Atlantic right whales incidental to certain
specified activities to the extent practicable. These seasonal work
restrictions are expected to greatly reduce the number of takes of
North Atlantic right whales. These seasonal restrictions also afford
protection to other marine mammals that are known to use the project
area with greater frequency during winter months, including other
baleen whales. As described previously, no impact pile driving
activities may occur December 1 through April 30.
No more than one foundation monopile, four 3-m pin piles for jacket
foundations, or three 1.8-m pin piles for the Met tower will be
installed per day. Monopiles must be no larger than 11-m in diameter
and pin piles must be no larger than 3-m in diameter. For all monopiles
and pin piles, the minimum amount of hammer energy necessary to
effectively and safely install and maintain the integrity of the piles
must be used. No more than one pile may be installed at a given time
(i.e., concurrent/simultaneous pile driving and drilling may not
occur).
US Wind would not initiate pile driving earlier than 1 hour prior
to civil sunrise or later than 1.5 hours prior to civil sunset, unless
NMFS approves an Alternative Monitoring Plan as part of the Foundation
Installation and Marine Mammal Monitoring Plan (i.e., Nighttime
Monitoring Plan) that reliably demonstrates the efficacy of detecting
marine mammals at night with its proposed devices. Foundation
installation will also not be initiated when the minimum visibility
zones cannot be fully visually monitored, as determined by the lead PSO
on duty. While monitoring itself is not mitigation, these measures
contribute to more reliable detection efficiency and animals must be
detected to trigger mitigative actions which reduce impacts.
Given the very small harassment zones resulting from HRG surveys
and that the best available science indicates that any harassment from
HRG surveys, should a marine mammal be exposed, would manifest as minor
behavioral harassment only (e.g., potentially some avoidance of the
vessel), NMFS is not requiring any seasonal and daily restrictions for
HRG surveys. However US Wind has planned only a limited amount of
surveys (over 14 days) during daylight within the effective period of
these regulations.
Noise Attenuation Systems
US Wind is required to employ noise abatement systems (NAS), also
known as noise attenuation systems, during all foundation installation
(i.e., impact pile driving) activities to reduce the sound pressure
levels that are transmitted through the water in an effort to reduce
acoustic ranges to the Level A
[[Page 84695]]
harassment and Level B harassment acoustic thresholds and minimize, to
the extent practicable, any acoustic impacts resulting from these
activities. US Wind is required to use at least two NASs to ensure that
measured sound levels do not exceed the levels modeled for a 10-dB
sound level reduction for foundation installation, which is likely to
include a double big bubble curtain or a double big bubble curtain
combined with other NAS (e.g., hydro-sound damper, or an AdBm Helmholz
resonator), as well as the adjustment of operational protocols to
minimize noise levels. As part of adaptive management, should the
research and development phase of newer systems demonstrate
effectiveness, US Wind may submit data on the effectiveness of these
systems and request approval from NMFS to use them during foundation
installation activities.
Two categories of NASs exist: primary and secondary. A primary NAS
would be used to reduce the level of noise produced by foundation
installation activities at the source, typically through adjustments to
the equipment (e.g., hammer strike parameters). Primary NASs are still
evolving and will be considered for use during mitigation efforts when
the NAS has been demonstrated as effective in commercial projects.
However, as primary NASs are not fully effective at eliminating noise,
a secondary NAS would be employed. The secondary NAS is a device or
group of devices that would reduce noise as it was transmitted through
the water away from the pile, typically through a physical barrier that
would reflect or absorb sound waves and therefore, reduce the distance
the higher energy sound propagates through the water column. Together,
these systems must reduce noise levels to those not exceeding modeled
ranges to Level A harassment and Level B harassment isopleths
corresponding to those modeled assuming 10-dB sound attenuation,
pending results of SFV (see the Sound Field Verification section below
and 50 CFR part 217--Regulations Governing The Taking And Importing Of
Marine Mammals).
Noise abatement systems, such as bubble curtains, are used to
decrease the sound levels radiated from a source. Bubbles create a
local impedance change that acts as a barrier to sound transmission.
The size of the bubbles determines their effective frequency band, with
larger bubbles needed for lower frequencies. There are a variety of
bubble curtain systems, confined or unconfined bubbles, and some with
encapsulated bubbles or panels. Attenuation levels also vary by type of
system, frequency band, and location. Small bubble curtains have been
measured to reduce sound levels but effective attenuation is highly
dependent on depth of water, current, and configuration and operation
of the curtain (Austin et al., 2016; Koschinski and L[uuml]demann,
2013). Bubble curtains vary in terms of the sizes of the bubbles and
those with larger bubbles tend to perform a bit better and more
reliably, particularly when deployed with two separate rings (Bellmann,
2014; Koschinski and L[uuml]demann, 2013; Nehls et al., 2016).
Encapsulated bubble systems (e.g., Hydro Sound Dampers (HSDs)), can be
effective within their targeted frequency ranges (e.g., 100-800 Hz),
and when used in conjunction with a bubble curtain appear to create the
greatest attenuation. The literature presents a wide array of observed
attenuation results for bubble curtains. The variability in attenuation
levels is the result of variation in design as well as differences in
site conditions and difficulty in properly installing and operating in-
water attenuation devices. D[auml]hne et al. (2017) found that single
bubble curtains that reduce sound levels by 7 to 10 dB reduced the
overall sound level by approximately 12 dB when combined as a double
bubble curtain for 6-m steel monopiles in the North Sea. During
installation of monopiles (consisting of approximately 8-m in diameter)
for more than 150 WTGs in comparable water depths (>25 m) and
conditions in Europe indicate that attenuation of 10 dB is readily
achieved (Bellmann, 2019; Bellmann et al., 2020) using single bubble
curtains for noise attenuation.
When a double big bubble curtain is used (noting a single bubble
curtain is not allowed), US Wind is required to maintain numerous
operational performance standards. These standards are defined in the
regulatory text at the end of this rule, and include, but are not
limited to, construction contractors must train personnel in the proper
balancing of airflow to the bubble ring and US Wind must submit a
performance test and maintenance report to NMFS. Corrections to the
attenuation devices are to be carried out prior to impact pile driving.
In addition, a full maintenance check (e.g., manually clearing holes)
must occur prior to each pile being installed. If US Wind uses a noise
mitigation device in addition to a double big bubble curtain, similar
quality control measures are required. Should the research and
development phase of newer systems demonstrate effectiveness, as part
of adaptive management, US Wind may submit data on the effectiveness of
these systems and request approval from NMFS to use them during
foundation installation activities.
US Wind is required to submit an SFV plan to NMFS for approval at
least 180 days prior to installing foundations. They are also required
to submit interim and final SFV data results to NMFS and make
corrections to the NASs in the case that any SFV measurements
demonstrate noise levels are above those modeled assuming 10 dB. These
frequent and immediate reports allow NMFS to better understand the
sound fields to which marine mammals are being exposed and require
immediate corrective action should they be misaligned with anticipated
noise levels within our analysis.
Noise abatement devices are not required during HRG surveys as they
cannot practicably be employed around a moving survey ship, but US Wind
is required to make efforts to minimize source levels by using the
lowest energy settings on equipment that has the potential to result in
harassment of marine mammals (e.g., boomers) and turning off equipment
when not actively surveying. Overall, minimizing the amount and
duration of noise in the ocean from any of the Project's activities
through use of all means necessary (e.g., noise abatement, turning off
power) will effect the least practicable adverse impact on marine
mammals.
Clearance and Shutdown Zones
NMFS requires the establishment of both clearance and, where
technically feasible, shutdown zones during Project activities that
have the potential to result in harassment of marine mammals. The
purpose of ``clearance'' of a particular zone is to minimize potential
instances of auditory injury and more severe behavioral disturbances by
delaying the commencement of an activity if marine mammals are near the
activity. The purpose of a shutdown is to prevent a specific acute
impact, such as auditory injury or severe behavioral disturbance of
sensitive species, by halting the activity.
All relevant clearance and shutdown zones during Project activities
will be monitored by NMFS-approved PSOs and PAM operators as described
in the regulatory text at the end of this rule. At least one PAM
operator must review data from at least 24 hours prior to foundation
installation, and must actively monitor hydrophones for 60 minutes
prior to commencement of these activities. Any North Atlantic right
whale sighting at any distance by foundation installation PSOs, or
[[Page 84696]]
acoustically detected within the PAM monitoring zone (10 km), triggers
a delay to commencing pile driving and shutdown. Any large whale
sighted by a PSO or acoustically detected by a PAM operator that cannot
be identified as a non-North Atlantic right whale must be treated as if
it were a North Atlantic right whale.
Prior to the start of certain specified activities (i.e.,
foundation installation, including soft-start, and HRG surveys), US
Wind must ensure designated areas (i.e., clearance zones as provided in
tables 24 and 25) are clear of marine mammals prior to commencing
activities to minimize the potential for and degree of harassment. For
foundation installation, PSOs must visually monitor clearance zones for
marine mammals for a minimum of 60 minutes prior to the activity, where
the zone must be confirmed free of marine mammals at least 30 minutes
directly prior to commencing these activities. During this period, the
clearance zones will be monitored by both PSOs and a PAM operator. If a
marine mammal is observed within a clearance zone during the clearance
period, the activity will be delayed and may not begin until the
animal(s) has been observed exiting its respective zone, or until an
additional time period has elapsed with no further sightings (i.e., 15
minutes for small odontocetes and pinnipeds and 30 minutes for all
other species). In addition, foundation installation will be delayed
upon a confirmed PAM detection of a North Atlantic right whale if the
PAM detection is confirmed to have been located within the North
Atlantic right whale PAM clearance zone (10,000 m). Any large whale
sighted by a PSO that cannot be identified to species must be treated
as if it were a North Atlantic right whale for the purposes of
mitigation. PSOs and PAM operators must continue monitoring throughout
the duration of foundation installation and for 30 minutes post-
completion of the activity.
Clearance and shutdown zones have been developed in consideration
of modeled distances to relevant PTS thresholds with respect to
minimizing the potential for take by Level A harassment. The clearance
and shutdown zones for North Atlantic right whales during monopile,
jacket foundation, and Met tower foundation installation are visual
observations at any distance by PSOs or any acoustic detection within
the PAM monitoring zone (10 km; table 24). For North Atlantic right
whales, there is an additional requirement that the clearance zone may
only be declared clear if no confirmed North Atlantic right whale
acoustic detections (in addition to visual) have occurred during the
60-minute monitoring period. The visual clearance zone for other large
whales from monopile installation is equal to the modeled maximum
R<INF>95 percent</INF> distance to the Level B harassment threshold
(5,250 m). The clearance zone for other large whales from 3-m pin pile
installation is equal to the modeled maximum R<INF>95 percent</INF>
distance to the Level A harassment threshold (1,400 m). The clearance
zone for other large whales from 1.8-m pin pile installation is equal
to twice the modeled maximum R<INF>95 percent</INF> distance to the
Level B harassment threshold given the very small Level B harassment
zone (100 m), which could be encompassed by the bubble curtains. The
clearance zone for non-large whales (i.e., delphinids and pilot whales,
harbor porpoises, and seals) from monopile and 3-m pin pile
installation is equal to double the modeled maximum
R<INF>95 percent</INF> distances to the Level A harassment threshold
for harbor porpoise (the most sensitive species). The clearance zone
for 1.8-m pin pile installation is equal to double the modeled maximum
R<INF>95 percent</INF> distance to the Level B harassment threshold
given Level A harassment thresholds were not exceeded for this activity
(i.e., 0 m).
Once an activity begins, any marine mammal entering their
respective shutdown zone would trigger the activity to cease. In the
case of foundation installation, the shutdown requirement may be waived
if it is not practicable to shutdown the equipment due to imminent risk
of injury or loss of life to an individual, risk of damage to a vessel
that creates risk of injury or loss of life for individuals, or where
the lead engineer determines there is pile refusal or pile instability.
In situations when shutdown is called for during impact pile driving,
but US Wind determines shutdown is not practicable due to
aforementioned emergency reasons, reduced hammer energy must be
implemented when the lead engineer determines it is practicable.
Specifically, pile refusal or pile instability could result in not
being able to shut down pile driving immediately. Pile refusal occurs
when the pile driving sensors indicate the pile is approaching refusal
and a shut-down would lead to a stuck pile which then poses an imminent
risk of injury or loss of life to an individual, or risk of damage to a
vessel that creates risk for individuals. Pile instability occurs when
the pile is unstable and unable to stay standing if the piling vessel
were to ``let go''. During these periods of instability, the lead
engineer may determine a shut-down is not feasible because the shut-
down combined with impending weather conditions may require the piling
vessel to ``let go'', which then poses an imminent risk of injury or
loss of life to an individual, or risk of damage to a vessel that
creates risk for individuals. US Wind must document and report to NMFS
all cases where the emergency exemption is taken.
After shutdown, foundation installation may be reinitiated once all
clearance zones are clear of marine mammals for the minimum species-
specific periods, or, if required to maintain pile stability, at which
time the lowest hammer energy must be used to maintain stability. If
foundation installation has been shut down due to the presence of a
North Atlantic right whale, pile driving must not restart until the
North Atlantic right whale has neither been visually or acoustically
detected by PSOs and PAM operators for 30 minutes. Upon re-starting
pile driving, soft-start protocols must be followed if pile driving has
ceased for 30 minutes or longer.
The clearance and shutdown zone sizes vary by species and are shown
in tables 24 and 25. US Wind is allowed to request modification to
these zone sizes pending results of SFV (see the regulatory text at the
end of this rule). Any changes to zone size would be part of adaptive
management and would require NMFS' approval. The 10 km PAM monitoring
zone for North Atlantic right whales has been carried forward from the
proposed rule into this final rule. A 10-km distance is a reasonable
distance for a PAM system to monitor; thus, 10 km was added as the
requirement for the PAM monitoring zone.
In addition to the clearance and shutdown zones that would be
monitored both visually and acoustically, NMFS is requiring US Wind to
establish a minimum visibility zone during foundation installation
activities to ensure both visual and acoustic methods are used in
tandem to detect marine mammals resulting in maximum detection
capability. The minimum visibility zone is defined as the area over
which PSOs must be able to visually detect marine mammals and must be
visible for the duration of the 60-minute clearance period. This zone
would extend from the location of the pile being driven out to 2,900 m
(9,514 ft) for monopile installation, 1,400 m for 3-m pin pile
installation, and 200 m for 1.8-m pin pile installation (table 24).
During monopile and 3-m pin pile installation, the minimum visibility
zone is equal to the modeled maximum
[[Page 84697]]
R<INF>95 percent</INF> distances to the Level A harassment threshold
for low-frequency cetaceans. The minimum visibility zone for 1.8-m pin
piles is equal to the clearance zone, which is double the modeled
maximum R<INF>95 percent</INF> distance to the Level B harassment
threshold (100 m) and four times the modeled maximum
R<INF>95 percent</INF> distance to the Level A harassment threshold (50
m) for low-frequency cetaceans. NMFS increased the 1.8-m pin pile
minimum visibility zone given the very small zone sizes from this short
(3 piles total) activity.
For HRG surveys, there are no mitigation measures prescribed for
sound sources operating at frequencies greater than 180 kHz, as these
would be expected to fall outside of marine mammal hearing ranges and
would not result in harassment. However, all HRG survey vessels would
be subject to the aforementioned vessel strike avoidance measures
described earlier in this section. Furthermore, due to the frequency
range and characteristics of some of the sound sources associated with
lesser impacts, shutdown, clearance, and ramp-up procedures are not
planned to be conducted during HRG surveys utilizing only non-impulsive
sources (e.g., other parametric sub-bottom profilers). Shutdown,
clearance, and ramp-up procedures are planned to be conducted during
HRG surveys utilizing SBPs and other non-parametric sub-bottom
profilers (planned survey equipment that may result in take of marine
mammals are presented in table 3 of the proposed rule (89 FR 504,
January 4, 2024)). PAM would not be required during HRG surveys. While
NMFS agrees that PAM can be an important tool for augmenting detection
capabilities in certain circumstances, its utility in further reducing
impacts during HRG survey activities is limited.
US Wind will be required to implement a 30-minute clearance period
of the clearance zones (table 25) immediately prior to the commencing
of the survey, or when there is more than a 30-minute break in survey
activities and PSOs have not been actively monitoring. If a marine
mammal is observed within a clearance zone during the clearance period,
ramp up (described below) may not begin until the animal(s) have been
observed voluntarily exiting its respective clearance zone or until an
additional time period has elapsed with no further sighting (i.e., 15
minutes for small odontocetes and seals, and 30 minutes for all other
species). When the clearance process has begun in conditions with good
visibility, including via the use of night vision equipment (i.e.,
infrared (IR)/thermal camera), and the Lead PSO has determined that the
clearance zones are clear of marine mammals, survey operations would be
allowed to commence (i.e., no delay is required) despite periods of
inclement weather and/or loss of daylight.
Once the survey has commenced, US Wind would be required to shut
down SBPs if a marine mammal enters a respective shutdown zone (table
25). In cases where the shutdown zones become obscured for brief
periods due to inclement weather, survey operations would be allowed to
continue (i.e., no shutdown is required) so long as no marine mammals
have been detected. The use of SBPs will not be allowed to commence or
resume until the animal(s) has been confirmed to have left the shutdown
zone or until a full 15 minutes (for small odontocetes and seals) or 30
minutes (for all other marine mammals) have elapsed with no further
sighting. Any large whale sighted by a PSO within 1,000 m of the SBPs
that cannot be identified as a non-North Atlantic right whale would be
treated as if it were a North Atlantic right whale for the purposes of
mitigation implementation.
Table 9--Minimum Visibility, Clearance, Shutdown, and Level B Harassment Zones During Impact Pile Driving, Assuming 10 dB of Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right Delphinids and pilot
Monitoring zone whales Other large whales whales Harbor porpoises Seals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum visibility zone \1\....... Monopiles: 2,900 m.
3-m pin piles: 1,400 m.
1.8-m pin piles: 200 m.
---------------------------------------------------------------------------------------------------------------------
Clearance zone.................... Any distance (visual) from Monopiles: 5,250 m... Monopiles: 500 m.
the pile driving location 3-m pin piles: 1,400
or within PAM Monitoring m..
Zone.
1.8-m pin piles: 200 3-m pin piles, 1.8-m pin piles: 200 m.\3\
m.\2\
---------------------------------------------------------------------------------------------------------------------
Shutdown zone..................... Any distance (visual) from Monopiles: 2,900..... Monopiles: 250 m.
the pile driving location 3-m pin piles: 1,400
or within PAM Monitoring m..
Zone.
1.8-m Pin piles: 100 3-m pin piles, 1.8-m pin piles: 100 m.\5\
m.\4\
---------------------------------------------------------------------------------------------------------------------
PAM monitoring zone \6\........... 10,000 m.
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Level B Harassment (Acoustic...... Monopiles: 5,250 m.
Range, R95%) 3-m pin piles: 500 m.
1.8-m pin piles: 100 m.
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\1\ The minimum visibility zone is equal to the modeled maximum R95 percent distances to the Level A harassment threshold for low-frequency cetaceans
for monopiles and 3-m pin piles. The minimum visibility zone for 1.8-m pin piles is equal to the clearance zone which is double the modeled maximum
R95 percent distance to the Level B harassment threshold (100 m) and four times the modeled maximum R95 percent distance to the Level A harassment
threshold (50 m) for low frequency cetaceans. NMFS increased the 1.8 m pile minimum visibility zone given the very small zone sizes from this short (3
piles total) activity.
\2\ The clearance zone for other large whales from monopile installation is equal to the modeled maximum R95 percent distance to the Level B harassment
threshold (5,250 m). The clearance zone for other large whales from 3-m pin pile installation is equal to the modeled maximum R95 percent distance to
the Level A harassment threshold (1,400 m) given the Level B harassment zone is less than this distance (500 m). The clearance zone for other large
whales from 1.8-m pin pile installation is equal to twice the modeled maximum R95 percent distance to the Level B harassment threshold given the very
small Level B harassment zone (100 m) which could be encompassed by the bubble curtains.
\3\ The clearance zone for non-large whales (i.e., delphinids and pilot whales, harbor porpoises, and seals) from monopile and 3-m pin pile installation
is equal to double the modeled maximum R95 percent distance to the Level A harassment threshold for harbor porpoise (the most sensitive species). The
clearance zone for 1.8-m pin pile installation is equal to double the modeled maximum R95 percent distance to the Level B harassment threshold given
Level A harassment thresholds were not exceeded for this activity (i.e., 0 m). US Wind requested the clearance zone for non-large whales be identical
for PSO implementation ease.
\4\ The shutdown zones for other large whales from monopiles and 3-m pin pile installation are equal to the modeled maximum R95 percent distances to the
Level A harassment threshold for low-frequency cetaceans. The shutdown zone for other large whales from 1.8-m pin piles is equal to two times the
modeled maximum R 95 percent distance to the Level A harassment threshold for low-frequency cetaceans.
\5\ The shutdown zones for non large whales from monopile and 3-m pin pile installation are equal to the modeled maximum R95 percent distance to the
Level A harassment threshold for harbor porpoise (the most sensitive species). The shutdown zone for non large whales from 1.8-m pin pile installation
is equal to the modeled maximum R95 percent distance to the Level B harassment threshold, given the Level A harassment thresholds were not exceeded
for this activity (i.e., 0 m). US Wind requested the shutdown zone for non large whales be identical for PSO implementation ease.
[[Page 84698]]
\6\ The PAM system must be capable of detecting baleen whales at 10,000 m during pile driving. The system should also be designed to detect other marine
mammals; however, it is not required these other species be detected out to 10,000 m given higher frequency calls and echolocation clicks are not
typically detectable at large distances.
Table 10--HRG Survey Clearance and Shutdown Zones
------------------------------------------------------------------------
Clearance zone
Marine mammal species (m)\2\ Shutdown zone (m)
------------------------------------------------------------------------
North Atlantic right whale........ 500 500
Other ESA-listed species (i.e., 500 100
fin, sei, sperm whale)...........
Other marine mammals \1\.......... 200 100
------------------------------------------------------------------------
\1\ With the exception of seals and delphinid(s) from the genera
Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below.
In addition, NMFS has included a measure requiring US Wind to
shutdown pile driving or HRG surveys in the event of a live cetacean
stranding where the NMFS Marine Mammal Stranding Network is engaged in
herding or other interventions to return animals to the water. Marine
mammals involved in live stranding events (or near-shore atypical
milling) are considered especially susceptible to the effects of
additional stressors. These shutdown procedures are not related to the
investigation of the cause of any such stranding and their
implementation is not intended to imply that the activity of the
authorized entity is the cause of the stranding. Rather, shutdown
procedures are intended to protect marine mammals exhibiting indicators
of distress by minimizing their exposure to possible additional
stressors, regardless of the factors that contributed to the stranding.
US Wind would be required to shut down pile driving activities
according to the measure described in the regulatory text.
Soft-Start/Ramp Up
The use of a soft-start or ramp-up procedure is believed to provide
additional protection to marine mammals by warning them or providing
them with a chance to leave the area, prior to the hammer or HRG
equipment operating at full capacity. Soft-start typically involves
initiating hammer operation at a reduced energy level relative to full
operating capacity followed by a waiting period. Typically, NMFS
requires a soft-start procedure of the applicant performing four to six
strikes per minute at 10 to 20 percent of the maximum hammer energy,
for a minimum of 20 minutes. For foundation installation, NMFS notes
that it is difficult to specify a reduction in energy for any given
hammer because of variation across drivers and installation conditions.
The final methodology will be developed by US Wind, in consultation
with NMFS, considering final design details including site-specific
soil properties and other considerations. A general soft-start
requirement for impact pile driving is incorporated into the
regulations. HRG survey operators are required to ramp-up sources when
the acoustic sources are used unless the equipment operates on a binary
on/off switch. The ramp-up would involve starting from the smallest
setting and gradually increasing to the operating level over a period
of approximately 30 minutes.
Soft-start and ramp-up will be required at the beginning of each
day's activity and at any time following a cessation of activity of 30
minutes or longer. Prior to soft-start or ramp-up beginning, the
operator must receive confirmation from the PSO that the clearance zone
is clear of any marine mammals.
Fishery Monitoring Surveys
While the likelihood of US Wind's fishery monitoring surveys
impacting marine mammals is minimal, NMFS requires US Wind to adhere to
gear and vessel mitigation measures to reduce potential impacts to the
extent practicable. In addition, all crew undertaking the fishery
monitoring survey activities are required to receive protected species
identification training prior to activities occurring and attend the
aforementioned onboarding training. The specific requirements that NMFS
has set for the fishery monitoring surveys can be found in the
regulatory text at the end of this rule.
Based on our evaluation of the mitigation measures, as well as
other measures considered by NMFS, NMFS has determined that these
measures will provide the means of affecting 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.
Monitoring and Reporting
As noted in the Changes from the Proposed to Final Rule section, we
have added, modified, or clarified a number of monitoring and reporting
measures since the proposed rule. These changes are described in detail
below. Since the proposed rule, we have clarified the number of
platforms for PSOs to be a total of three platforms, including the pile
driving vessel and two PSO support vessels, as the number of platforms
was not specified in the proposed rule. In addition, we have added
specific requirements for SFV monitoring.
In order to promulgate a rulemaking for an activity, section
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements
pertaining to the monitoring and reporting of such taking. The MMPA
implementing regulations at 50 CFR 216.104(a)(13) indicate that
requests for authorizations must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the action area. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (i.e., individual or cumulative, acute
or chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (i.e., behavioral or
physiological) to acoustic stressors (i.e., acute, chronic, or
cumulative), other
[[Page 84699]]
stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and/or
<bullet> Mitigation and monitoring effectiveness.
Separately, monitoring is also regularly used to support mitigation
implementation (i.e., mitigation monitoring) and monitoring plans
typically include measures that both support mitigation implementation
and increase our understanding of the impacts of the activity on marine
mammals.
During the planned activities, visual monitoring by NMFS-approved
PSOs will be conducted before, during, and after all impact pile
driving and HRG surveys. PAM will also be conducted during impact pile
driving. Visual observations and acoustic detections will be used to
support the activity-specific mitigation measures (e.g., clearance
zones). To increase understanding of the impacts of the activity on
marine mammals, PSOs must record all incidents of marine mammal
occurrence at any distance from the piling locations, near the HRG
acoustic sources. PSOs will document all behaviors and behavioral
changes, at any distance from the foundation installation locations
(i.e., location of impact pile driving) and near the HRG acoustic
sources. PSOs will document all behaviors and behavioral changes, in
concert with distance from an acoustic source. Further, SFV during
foundation installation and unexploded ordinance (UXO)/munition of
explosive concern (MEC) detonation is required to ensure compliance and
that the potential impacts are within the bounds of that analyzed. The
required monitoring, including PSO and PAM Operator qualifications, is
described below, beginning with PSO measures that are applicable to all
the aforementioned activities and PAM (for specific activities).
Protected Species Observer and PAM Operator Requirements
US Wind is required to employ NMFS-approved PSOs and PAM operators.
PSOs are trained professionals who are tasked with visually monitoring
for marine mammals during pile driving and HRG surveys. The primary
purpose of a PSO is to carry out the monitoring, collect data, and,
when appropriate, call for the implementation of mitigation measures.
In addition to visual observations, NMFS requires US Wind to conduct
PAM by PAM operators during impact pile driving and vessel transit.
The inclusion of PAM, which would be conducted by NMFS-approved PAM
operators, following standardized measurement, processing methods,
reporting metrics, and metadata standards for offshore wind, combined
with visual data collection, is a valuable way to provide the most
accurate record of species presence as possible. These two monitoring
methods 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). Acoustic monitoring, in
addition to visual monitoring, increases the likelihood of detecting
marine mammals within the shutdown and clearance zones of Project
activities, which when applied in combination of required shutdowns
helps to further reduce the risk of marine mammals being exposed to
sound levels that could otherwise result in acoustic injury or more
intense behavioral harassment.
The exact configuration and number of PAM systems depends on the
size of the zone(s) being monitored, the amount of noise expected in
the area, and the characteristics of the signals being monitored. More
closely spaced hydrophones would allow for more directionality, and
perhaps, range to the vocalizing marine mammals; although, this
approach would add additional costs and greater levels of complexity to
the Project. Larger baleen cetacean species (i.e., mysticetes), which
produce loud and lower-frequency vocalizations, may be able to be heard
with fewer hydrophones spaced at greater distances. However, smaller
cetaceans (such as mid-frequency delphinids or odontocetes) may
necessitate more hydrophones and to be spaced closer together given the
shorter range of the shorter, mid-frequency acoustic signals (e.g.,
whistles and echolocation clicks). As there are no ``perfect fit''
single-optimal-array configurations, NMFS will consider and approve
these set-ups, as appropriate, on a case-by-case basis during the PAM
Plan review. Specifically, US Wind will be required to provide a plan
that describes an optimal configuration for collecting the required
marine mammal data, based on the real-world circumstances in the
project area, recognizing that we will continue to learn more as
monitoring results from other wind projects are submitted.
NMFS does not formally administer any PSO or PAM operator training
program or endorse specific providers but will approve PSOs and PAM
operators that have successfully completed courses that meet the
curriculum and trainer requirements referenced below and further
specified in the regulatory text at the end of this rule. PSOs can act
as PAM operators or visual PSOs (but not simultaneously) as long as
they demonstrate that their training and experience are sufficient to
perform each task.
NMFS will provide PSO and PAM operator approvals in the context of
the need
[…truncated; see source link]Indexed from Federal Register on October 23, 2024.
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