Notice2024-23259
Takes of Marine Mammals Incidental to Specified Activities; Takes of Marine Mammals Incidental to Marine Site Characterization Surveys Off Rhode Island and Massachusetts
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 8, 2024
Effective
October 6, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Bay State Wind, LLC (Bay State Wind), to incidentally harass marine mammals during marine site characterization surveys off the coast of Rhode Island and Massachusetts in 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 0500 and the associated export cable route (ECR) area.
Full Text
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<title>Federal Register, Volume 89 Issue 195 (Tuesday, October 8, 2024)</title>
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[Federal Register Volume 89, Number 195 (Tuesday, October 8, 2024)]
[Notices]
[Pages 81458-81473]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23259]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE296]
Takes of Marine Mammals Incidental to Specified Activities; Takes
of Marine Mammals Incidental to Marine Site Characterization Surveys
Off Rhode Island and Massachusetts
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Bay State Wind, LLC (Bay State Wind), to incidentally harass marine
mammals during marine site characterization surveys off the coast of
Rhode Island and Massachusetts in 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 0500
and the associated export cable route (ECR) area.
DATES: The authorization is effective from October 6, 2024, to October
5, 2025.
ADDRESSES: Electronic copies of the application and supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In case of problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Rachel Hilt, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are proposed or, if the taking is limited to harassment, a notice of a
proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the monitoring and
reporting of the takings. The definitions of all applicable MMPA
statutory terms cited above are included in the relevant sections
below.
History of Request
On October 6, 2022, NMFS issued an IHA to [Oslash]rsted (parent
company of Bay State Wind) to take marine mammals incidental to marine
site characterization surveys in Lease Areas OCS-A 0486, 0487, 0500 off
the coasts from New York to Massachusetts and along potential ECRs to
landfall locations between Raritan Bay (part of the New York Bight) and
Falmouth, Massachusetts (87 FR 61575; October 12, 2022). On May 26,
2023, NMFS received a request for a renewal of that initial IHA because
[Oslash]rsted's marine site characterization surveys under the initial
IHA had not yet been completed and more time was required. The renewal
IHA was issued on September 29, 2023 (88 FR 62337, October 5, 2023).
[Oslash]rsted has complied with all the requirements (e.g., mitigation,
monitoring, and reporting) of the previous IHAs in Lease Areas OCS-A
0486, 0487, and 0500.
On March 27, 2024, NMFS received a request from Bay State Wind for
an IHA to take marine mammals incidental to conducting marine site
characterization surveys off the coasts of Rhode Island and
Massachusetts. This request was limited to planned survey activity in
OCS-A 0500 (i.e., [Oslash]rsted's planned Bay State Wind development)
and the associated ECR area. Following NMFS' review of the application,
Bay State Wind submitted a revised version on June 10, 2024. Following
additional review of the application, Bay State Wind submitted another
revised version on July 29, 2024, which was deemed adequate and
complete on August 1, 2024. Bay State Wind's request is for take of 17
species of marine mammals, by Level B harassment only. Neither Bay
State Wind nor NMFS expect serious injury or mortality to result from
this activity and, therefore, an IHA is appropriate. There are no
changes from the proposed IHA to the final IHA.
Description of the Activity and Anticipated Impacts
Overview
Bay State Wind will conduct marine site characterization surveys,
including high-resolution geophysical (HRG) surveys and geotechnical
surveys, in BOEM Lease Area OCS-A 0500, and the associated ECR. The
purpose of the marine site characterization surveys is to collect data
concerning seabed (geophysical, geotechnical, and geohazard),
ecological, and archeological conditions within the footprint of the
offshore wind facility development. Surveys are also conducted to
support engineering
[[Page 81459]]
design and to map unexploded ordnance (UXO). Underwater sound resulting
from Bay State Wind's proposed activities, specifically HRG surveys,
has the potential to result in incidental take of 17 species, in the
form of Level B harassment only.
Dates and Duration
While the exact dates have not yet been established, the activities
are planned to begin as soon as possible upon issuance of an IHA, if
appropriate. The activity is expected to require up to 350 survey days
across a maximum of four vessels operating concurrently over the course
of a single year (``survey day'' defined as a 24-hour activity period
in which the assumed number of line kilometers (km) are surveyed).
Vessel days are defined as the number of days any single vessel is in
operation regardless of any other vessel operations (i.e., if two
vessels are working concurrently within the same 24-hour period, each
vessel would be counted as having a vessel day for a total of two
vessel days even though the activity occurs within a single 24-hour
period). The number of anticipated survey days was calculated as the
number of days needed to reach the overall level of effort required to
meet survey objectives assuming any single vessel covers, on average 70
line km per 24-hour operations.
Specific Geographic Region
The survey activities will occur within the Lease Area and
potential ECRs off the coasts of Rhode Island and Massachusetts (figure
1). Water depths in the Lease Area and potential ECRs extend out from
shoreline to approximately 90 meters (m).
BILLING CODE 3510-22-P
[[Page 81460]]
[GRAPHIC] [TIFF OMITTED] TN08OC24.016
BILLING CODE 3510-22-C
Detailed Description of the Specified Activity
A detailed description of the planned site characterization surveys
is provided in the Federal Register notice for the proposed IHA (89 FR
67597, August 21, 2024). The nature of the specified activities,
including the types of HRG equipment planned for use (e.g.,
[[Page 81461]]
CHIRPs, boomers, and sparkers), daily trackline distances (70 line km
per 24-hr period), and number of survey vessels (up to four operating
concurrently), are identical to those described in the previous notice.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Bay State Wind was
published in the Federal Register on August 21, 2024 (89 FR 6759). That
notice described, in detail, or referenced descriptions of Bay State
Wind's activity, the marine mammal species that may be affected by the
activity, the anticipated effects on marine mammals and their habitat,
estimated number and manner of take, and proposed mitigation,
monitoring and reporting measures.
During the 30-day public comment period, NMFS received one
substantive comment letter, from the Wampanoag Tribe of Gay Head
(Aquinnah) (Tribe). We reiterate here that NMFS' proposed action
concerns only the authorization of marine mammal take incidental to the
planned surveys--NMFS' authority under the MMPA does not extend to the
surveys themselves or to wind energy development more generally.
Comments from the Wampanoag Tribe of Gay Head (Aquinnah) (Tribe)'s
letter considered out of scope include (1) a request that NMFS fully
study the implications of the Vineyard Wind blade failure on marine
mammals ``prior to any further federal action concerning offshore wind
farms,'' (2) general opposition to authorization of take incidental to
any activities associated with offshore wind development until ``the
Coast Guard has finished establishing shipping safety fairways,'' a
statement that ``offshore wind development needs to be balanced with
navigational safety,'' and criticism of NMFS and BOEM for allegedly
``improperly segmenting offshore wind activities in the Atlantic
Ocean.'' All substantive comments, and NMFS' responses, are provided
below. The comments and recommendations are available online at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
Please see the comment submissions for full details regarding the
recommendations and supporting rationale.
Comment 1: The Tribe asserted generally that NMFS is not
appropriately complying with Executive Order 13175, which requires
meaningful government-to-government consultation with tribes on matters
that have implications for tribes.
Response: NMFS is committed to engaging with the Tribe moving
forward. However, for the reasons included in this notice, we disagree
that no IHAs for HRG surveys should be renewed in the New York Bight
pending engagement with the Tribe.
Comment 2: The Tribe stated they do not agree that use of a
Categorical Exclusion (CE) under National Environmental Policy Act
(NEPA) is appropriate, suggesting that NMFS must conduct additional
analysis of the cumulative impact of projects in the Massachusetts and
Rhode Island offshore area, especially to Endangered Species Act (ESA)-
listed species, and particularly to the North Atlantic right whale
(NARW).
Response: NMFS disagrees with the commenter's statement and has
determined that the issuance of the IHA qualifies to be categorically
excluded from further NEPA review. A CE is a category of actions that
an agency has determined does not individually or cumulatively have a
significant effect on the quality of the human environment and is
appropriately applied for such categories of actions so long as there
are no extraordinary circumstances present that would indicate that the
effects of the action may be significant. Extraordinary circumstances
are situations for which NOAA has determined further NEPA analysis is
required because they are circumstances in which a normally excluded
action may have significant effects. A determination of whether an
action that is normally excluded requires additional evaluation because
of extraordinary circumstances focuses on the action's potential
effects and considers the significance of those effects in terms of
both context (consideration of the affected region, interests, and
resources) and intensity (severity of impacts). Potential extraordinary
circumstances relevant to this action include: (1) adverse effects on
species or habitats protected by the MMPA that are not negligible; (2)
highly controversial environmental effects; (3) environmental effects
that are uncertain, unique, or unknown; and (4) the potential for
significant cumulative impacts when the proposed action is combined
with other past, present, and reasonably foreseeable future actions.
The relevant NOAA CE associated with issuance of incidental take
authorizations is CE B4, ``Issuance of incidental harassment
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the
incidental, but not intentional, take by harassment of marine mammals
during specified activities and for which no serious injury or
mortality is anticipated.'' This action falls within CE B4. In
determining whether a CE is appropriate for a given incidental take
authorization, NMFS considers the applicant's specified activity and
the potential extent and magnitude of takes of marine mammals
associated with that activity along with the extraordinary
circumstances listed in the Companion Manual for NOAA Administrative
Order (NAO) 216-6A and summarized above.
The evaluation of whether extraordinary circumstances (if present)
have the potential for significant environmental effects is limited to
the decision NMFS is responsible for, which is issuance of the
incidental take authorization. Potential effects of NMFS' action are
limited to those that would occur due to the authorization of
incidental take of marine mammals. NMFS prepared numerous EAs analyzing
the environmental impacts of the categories of activities encompassed
by CE B4, which resulted in Findings of No Significant Impacts (FONSIs)
and, in particular, numerous EAs prepared in support of issuance of
IHAs related to similar survey actions are part of NMFS' administrative
record supporting CE B4. These EAs demonstrate the issuance of a given
incidental harassment authorization does not affect other aspects of
the human environment because the action only affects the marine
mammals that are the subject of the incidental harassment
authorization.
Specifically for this action, NMFS independently evaluated the use
of the CE for issuance of Bay State Wind's IHA, which included
consideration of extraordinary circumstances. As part of that analysis,
NMFS considered whether this IHA issuance would result in cumulative
impacts that could be significant. In particular, the issuance of an
IHA to Bay State Wind is expected to result in minor, short-term
behavioral effects on marine mammal species due to exposure to
underwater sound from site characterization survey activities.
Behavioral disturbance is possible to occur intermittently in the
vicinity of Bay State Wind's survey area during the 1-year timeframe.
Level B harassment will be reduced through use of mitigation measures
described herein. Additionally, as discussed elsewhere, NMFS has
determined that Bay State Wind's activities fall within the scope of
activities analyzed in Greater Atlantic Regional Fisheries Office's
(GARFO's) programmatic consultation regarding geophysical surveys along
the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021), which concluded
surveys such as those
[[Page 81462]]
planned by Bay State Wind are not likely to adversely affect ESA-listed
species or adversely modify or destroy critical habitat. Accordingly,
NMFS has determined that the issuance of this IHA will result in no
more than negligible (as that term is defined by the Companion Manual
for NAO 216-6A) adverse effects on species protected by the ESA and the
MMPA.
Further, the issuance of this IHA will not result in highly
controversial environmental effects or result in environmental effects
that are uncertain, unique, or unknown because numerous entities have
been engaged in site characterization surveys that result in Level B
harassment of marine mammals in the United States. This type of
activity is well documented; prior authorizations and analysis
demonstrates issuance of an IHA for this type of action only affects
the marine mammals that are the subject of the specific authorization
and, thus, no potential for significant cumulative impacts are
expected, regardless of past, present, or reasonably foreseeable
actions, even though the impacts of the action may not be significant
by itself. Based on this evaluation, we concluded that the issuance of
the IHA qualifies to be categorically excluded from further NEPA
review.
The commenters did not provide any new or compelling evidence that
suggests that wind energy development activities have the potential to
negatively impact NARW. NMFS recognizes and appreciates the importance
of the NARW as an integral part of traditional lifeways and cultural
practices. However, NMFS emphasizes that there is no credible
scientific evidence available suggesting that mortality and/or serious
injury or Level A harassment is a potential outcome of the planned
survey activity, and no additional evidence was presented by the
commenter. NMFS notes there have never been reports of any serious
injuries or mortalities of any marine mammal associated with site
characterization surveys. The best available science indicates that
Level B harassment, or disruption of behavioral patterns, may occur as
a result of Bay State Wind's specified activities. This point has been
well supported by other agencies, including the BOEM and the Marine
Mammal Commission (Marine Mammal Commission Newsletter, Spring 2023).
In addition, a recent study by Thorne and Wiley (2024) reviewed
spatiotemporal patterns of strandings, mortalities, and serious
injuries of humpback whales along the U.S. east coast from 2016-2022
and found vessel strikes to be the major driver in the increase of
humpback whale strandings, mortalities, and serious injuries. Based
upon the spatiotemporal analysis, no evidence was found that offshore
wind development played a role in the increased number of strandings
over time; for example, spatiotemporal patterns between strandings and
site assessment surveys did not seem associated. In fact, the potential
for vessel strike increased from 2016-2022 in association with
increased container vessel traffic that overlapped with whales in new
and shallow foraging areas. This potential for vessel strike also
seemed to increase with the increased presence of juvenile humpback
whales foraging off the Mid-Atlantic States. Under the IHA, NMFS
requires Bay State Wind to abide by vessel speed restrictions and
maintain separation distances between vessels and marine mammals that
are intended to minimize the risk of any potential vessel strikes. The
impacts of Level B harassment (i.e., behavioral disturbance) are
expected to have a negligible impact on the NARW population as well as
other potentially impacted marine mammal populations. NMFS has made the
required findings based on the best scientific information available
and has included mitigation measures to effect the least practicable
adverse impacts on NARWs and other potentially impacted marine mammals.
There is an active unusual mortality event (UME) for NARWs that began
in June 2017. Overall, preliminary findings support human interactions,
specifically vessel strikes and entanglements, as the cause of death
for the majority of right whales. NMFS will continue to gather data to
help us determine the cause of death for stranded whales. Vessel
strikes and entanglement in fishing gear continue to be the greatest
human threats to large whales.
Description of Marine Mammals in the Area of Specified Activities
A detailed description of the species likely to be affected by Bay
State Wind's marine site characterization surveys, 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 sections 3 and 4 of the
application, the Federal Register notice of the proposed IHA (89 FR
67597, August 21, 2024), and the Federal Register notice of the
proposed IHA for the 2022 IHA (87 FR 52515, August 26, 2022) addressing
Lease Areas OCS-A 0486, 0487, and 0500. NMFS fully considered all of
this information, and we refer the reader to these descriptions,
instead of reprinting the information. Additional information regarding
population trends and threats may be found in NMFS' Stock Assessment
Reports (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 1 lists all species or stocks for which take is expected and
proposed to be authorized for this activity and summarizes information
related to the population or stock, including regulatory status under
the MMPA and (ESA) and potential biological removal (PBR), where known.
PBR is defined by the MMPA as the maximum number of animals, not
including natural mortalities, that may be removed from a marine mammal
stock while allowing that stock to reach or maintain its optimum
sustainable population (as described in NMFS' SARs). While no serious
injury or 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 or stocks 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 1 are the most recent available at the time of publication,
including, as applicable, from the draft 2023 SARs (available 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>).
[[Page 81463]]
Table 1--Species Likely Impacted by the Specified Activities\1\
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ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
N Atlantic Right Whale.............. Eubalaena glacialis.... Western Atlantic....... E, D, Y 340 (0, 337, 2021) \5\ 0.7 27.2
Humpback Whale...................... Megaptera novaeangliae. Gulf of Maine.......... -, -, N 1,396 (0, 1380, 2016). 22 12.15
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, 3,098, 6.2 0.6
2021).
Minke Whale......................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31, 17,002, 170 9.4
acutorostrata. Coastal. 2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm Whale......................... Physeter macrocephalus. North Atlantic......... E, D, Y 5,895 (0.29, 4,639, 9.28 0.2
2021).
Long-Finned Pilot Whale \6\......... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.30, 30,627, 306 5.7
2021).
Striped Dolphin..................... Stenella coeruleoalba.. Western North Atlantic. -, -, N 48,274 (0.29, 38,040, 529 0
2021).
Atlantic White-Sided Dolphin........ Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71, 54,443, 544 28
2021).
Bottlenose Dolphin.................. Tursiops truncatus..... Western North Atlantic -, -, N 64,587 (0.24, 52,801, 507 28
Offshore. 2021) \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).
Risso's Dolphin..................... Grampus griseus........ Western North Atlantic. -, -, N 44,067 (0.19, 30,662, 307 18
2021).
White-Beaked Dolphin................ Lagenorhynchus Western North Atlantic. -, -, N 536,016 (0.31, 4,153 0
albirostris. 415,344, 2016).
Harbor Porpoise..................... Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 85,765 (0.53, 56,420, 649 145
Fundy. 2021).
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Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Seal......................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
Gray Seal \8\....................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,911 (0.20, 23,624, 1,512 4,570
2021).
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\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies</a>).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual mortality and serious injury (M/SI) often cannot be determined precisely and is in some cases presented as
a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ The current SAR includes an estimated population (Nbest 340) based on sighting history through December 2021 (NMFS, 2024). In October 2023, NMFS
released a technical report identifying that the NARW 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 NARW 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\ Key uncertainties exist in the population size estimate for this species, including uncertain separation between short-finned and long-finned pilot
whales, small negative bias due to lack of abundance estimate in the region between US and the Newfoundland/Labrador survey area, and uncertainty due
to unknown precision and accuracy of the availability bias correction factor that was applied.
\7\ Estimates may include sightings of the coastal form.
\8\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 394,311. The annual M/SI value given is for the total stock.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al. 1995; Wartzok and Ketten,
1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007,
2019) recommended that marine mammals be divided into hearing groups
based on directly measured (behavioral or auditory evoked potential
techniques) or estimated hearing ranges (behavioral response data,
anatomical modeling, etc.). Note that no direct measurements of hearing
ability have been successfully completed for mysticetes (i.e., low-
frequency cetaceans). Subsequently, NMFS (2018) described generalized
hearing ranges for these marine mammal hearing groups. Generalized
hearing ranges were chosen based on the approximately 65-decibel (dB)
threshold from the normalized composite audiograms, with the exception
for lower limits for low-frequency cetaceans where the lower bound was
deemed to be biologically implausible and the lower bound from Southall
et al. (2007) retained. Marine mammal hearing groups and their
associated hearing ranges are provided in table 2.
Table 2--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans(baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) 150 Hz to 160 kHz.
cetaceans(dolphins, toothed whales,
beaked whales, bottlenose whales).
High-frequency (HF) cetaceans(true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
[[Page 81464]]
Phocid pinnipeds (PW) 50 Hz to 86 kHz.
(underwater)(true seals).
Otariid pinnipeds (OW) 60 Hz to 39 kHz.
(underwater)(sea lions and fur
seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65-dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which take is
proposed here may be found in the Federal Register notice of the
proposed IHA for the initial authorization proposed (87 FR 52515,
August 26, 2022). At present, there is no new information on potential
effects that would change our analysis.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
authorized through the IHA, which will inform NMFS' consideration of
``small numbers,'' the negligible impact determinations, and impacts on
subsistence uses.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes will be by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to certain HRG sources. Based on the nature of
the activity and the anticipated effectiveness of the mitigation
measures (i.e., shutdown measures, vessel strike avoidance procedures)
discussed in detail below in the Mitigation section, Level A harassment
is neither anticipated nor authorized.
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will likely be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and, (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur permanent threshold shift (PTS) of some
degree (equated to Level A harassment).
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., bathymetry, other noises in the area,
predators in the area), and the receiving animals (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 (referenced to 1
micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources. Generally speaking, Level B harassment take
estimates based on these 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 (conspecific communication, predators, prey) may
result in changes in behavior patterns that would not otherwise occur.
Bay State Wind's activity includes the use of impulsive (i.e.,
boomers and sparkers) and non-impulsive (i.e., CHIRP SBPs) sources, and
therefore the RMS SPL thresholds of 160 dB re 1 [mu]Pa 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 (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive).
These thresholds are provided in the table below. The references,
analysis,
[[Page 81465]]
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>.
On May 3, 2024, NMFS published (89 FR 36762) and solicited public
comment on its draft Updated Technical Guidance, which includes updated
thresholds and weighting functions to inform auditory injury estimates,
and is intended to replace the 2018 Technical Guidance referenced
above, once finalized. The public comment period ended on June 17,
2024, and although the Updated Technical Guidance is not final, we
expect the Updated Technical Guidance to represent the best available
science once it is.
Bay State Wind's HRG surveys include the use of impulsive (i.e.,
boomers and sparkers) and non-impulsive (i.e., CHIRP SBPs). However, as
discussed above, NMFS has concluded that Level A harassment is not a
reasonably likely outcome for marine mammals exposed to noise from the
sources for use here, and the potential for Level A harassment is not
evaluated further in this document. The pending update to the Technical
Guidance would not change NMFS' determination regarding the likelihood
of take by Level A harassment. Please see Bay State Wind's application
(section 1.4) for details of a quantitative exposure analysis exercise,
(i.e., calculated Level A harassment isopleths and estimated Level A
harassment exposures). No take by Level A harassment is anticipated or
authorized by NMFS.
Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds\*\ (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic 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 should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to reflect American
National Standards Institute (ANSI) standards (American National Standards Institute, 2013). However, peak
sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this
Technical Guidance. Hence, the subscript ``flat'' is being included to indicate peak sound pressure should be
flat weighted or unweighted within the generalized hearing range. 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
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 acoustic thresholds will be exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
NMFS has developed a user-friendly methodology for determining the
rms sound pressure level at the 160-dB isopleth for the purpose of
estimating the extent of Level B harassment isopleths associated with
HRG survey equipment (NMFS, 2020). This methodology incorporates
frequency and some directionality to refine estimated ensonified zones.
Bay State Wind used NMFS's methodology, using the source level and
operation mode of the equipment planned for use during the survey, to
estimate the maximum ensonified area over a 24-hour period, also
referred to as the harassment area (table 4). Potential takes by Level
B harassment are estimated within the ensonified area (i.e., harassment
area) as an SPL exceeding 160 dB re 1 [micro]Pa for impulsive sources
(e.g., sparkers, boomers) within an average day of activity.
The harassment zone is a representation of the maximum extent of
the ensonified area around a sound source over a 24-hour period. The
harassment zone was calculated for mobile sound sources per the
following formula:
Harassment Zone = (Distance/day x 2r) + [pi]r\2\
where r is the linear distance from the source to the isopleth for
Level A or Level B thresholds and day = 1 (i.e., 24 hours).
The estimated potential daily active survey distance of 70 km was
used as the estimated areal coverage over a 24-hour period. This
distance accounts for the vessel traveling at roughly 4 knots (kn) (2.1
m/second) and only for periods during which survey equipment that may
result in take of marine mammals is in operation. A vessel traveling 4
kn (2.1 m/second) can cover approximately 110 km per day; however,
based on data from 2017, 2018, and 2019 surveys, survey coverage over a
24-hour period is closer to 70 km per day. For daylight only vessels,
the distance is reduced to 35 km per day; however, to maintain the
potential for 24-hour surveys, the corresponding Level B harassment
zones provided in table 4 were calculated for each source category
based on the Level B threshold distances in table 3 with a 24-hour (70
km) operational period.
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described above to estimate isopleth distances to harassment
thresholds. In cases when the source level for a specific type of HRG
equipment is not provided in Crocker and Fratantonio (2016), NMFS
recommends that either the source levels provided by the manufacturer
be used, or, in instances where source levels provided by the
manufacturer are unavailable or unreliable, a proxy from Crocker and
Fratantonio (2016) be used instead. Table 2 shows the HRG equipment
types that may be used during the surveys and the source levels
associated with those HRG equipment types.
[[Page 81466]]
Based upon modeling results, of the HRG survey equipment planned
for use by Bay State Wind that has the potential to result in Level B
harassment of marine mammals, the Applied Acoustics Dura-Spark UHD and
GeoMarine Geo-Source sparkers would produce the largest Level B
harassment isopleth (141 m) or Harassment Zone. Estimated distances to
Level B harassment isopleths for all sources evaluated here, including
the sparkers, are provided in table 4. Although Bay State Wind does not
expect to use sparker sources on all planned survey days, Bay State
Wind assumes for purposes of analysis that the sparker would be used on
all survey days. This is a conservative approach, as the actual sources
used on individual survey days may produce smaller harassment
distances.
Table 4--Distance to Level B Harassment Thresholds
[160 dB rms]
------------------------------------------------------------------------
Distance to Level B
Source harassment threshold
(m)
------------------------------------------------------------------------
Boomers........................................ 76
Sparkers....................................... 141
------------------------------------------------------------------------
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information which
will inform the take calculations.
Habitat based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al. 2016, 2023) represent the
best available information regarding marine mammal densities in the
Lease Area and potential ECRs. The density data presented by Roberts et
al. (2016, 2023) incorporate aerial and shipboard line-transect data
from NMFS and other organizations and incorporate data from 8
physiographic and 16 dynamic oceanographic and biological covariates,
and control for the influence of sea state, group size, availability
bias, and perception bias on the probability of making a sighting.
These density models were originally developed for all cetacean taxa in
the U.S. Atlantic (Roberts et al. 2016). In subsequent years, certain
models have been updated based on additional data as well as certain
methodological improvements. More information is available online at
<a href="https://seamap.env.duke.edu/models/Duke/EC">https://seamap.env.duke.edu/models/Duke/EC</a>. Marine mammal density
estimates in the Lease Area and potential ECRs (animals/km\2\) were
obtained using the most recent model results for all taxa (Roberts et
al. 2023). The updated models incorporate sighting data, including
sightings from NOAA's Atlantic Marine Assessment Program for Protected
Species (AMAPPS) surveys.
For exposure analysis, density data from Roberts et al. (2023) were
mapped using a geographic information system (GIS). Density grid cells
that included any portion of the Lease Area and potential ECRs were
selected for all survey months (see figure 4 of Bay State Wind's
application). The densities for each species as reported by Roberts et
al. (2023) for each of the Lease Area and ECR were averaged by month;
those values were then used to calculate the mean annual density for
each species within the Lease Area and potential ECRs. Estimated mean
monthly and annual densities (animals per km\2\) of all marine mammal
species that may be taken by the survey are shown in table 6 of Bay
State Wind's application. Please see table 5 for density values used in
the exposure estimation process.
Due to limited data availability and difficulties identifying
individuals to species level during visual surveys, individual
densities are not able to be provided for all species and they are
instead grouped into ``guilds'' (Roberts et al. 2023). These guilds
include pilot whales, common bottlenose dolphins, and seals.
Long- and short-finned pilot whales are difficult to distinguish
during shipboard surveys so individual habitat models were not able to
be developed. However, as discussed in section 4.2.3 of Bay State
Wind's application, all pilot whales in the Lease Area and potential
ECRs are assumed to be long-finned pilot whales, so the densities and
subsequent takes would apply only to this species.
The density models do not distinguish between common bottlenose
dolphin stocks due to limited data regarding distributions of these
stocks. As discussed in section 4.2.7 of Bay State Wind's application,
only the western North Atlantic offshore stock is expected to occur in
the Lease Area and potential ECRs. Therefore, the densities in table 5
and subsequent take calculations would only apply to this stock of
bottlenose dolphins.
Gray seals and harbor seals are reasonably identifiable during
shipboard visual surveys; therefore, it is expected that some sightings
will be assigned to species rather than to the generalized seal guild.
Additionally, seals tend to occur in very small numbers when away from
haul out areas; therefore, sighting events are not likely to constitute
large numbers of animals. For these reasons, the seal guild density was
split evenly between both gray and harbor seal species.
Table 5--Average Annual Marine Mammal Density Estimates
------------------------------------------------------------------------
Average annual
Species density
(km\2\)
------------------------------------------------------------------------
Low-frequency Cetaceans
------------------------------------------------------------------------
Fin whale............................................... 0.0022
Sei whale............................................... 0.0006
Minke whale............................................. 0.0056
Humpback whale.......................................... 0.0014
North Atlantic right whale.............................. 0.0022
------------------------------------------------------------------------
Mid-frequency cetaceans
------------------------------------------------------------------------
Sperm whale............................................. 0.0002
Atlantic white-sided dolphin............................ 0.0143
Atlantic spotted dolphin................................ 0.0006
Common bottlenose dolphin (Offshore).................... 0.0093
Long-finned pilot whale................................. 0.0016
Risso's dolphin......................................... 0.0006
Common dolphin.......................................... 0.0846
Striped dolphin......................................... 0.0000
White-beaked dolphin.................................... 0.0000
------------------------------------------------------------------------
High-frequency Cetaceans
------------------------------------------------------------------------
Harbor porpoise......................................... 0.0423
------------------------------------------------------------------------
Pinnipeds \1\
------------------------------------------------------------------------
Gray seal............................................... 0.0845
Harbor seal............................................. 0.0845
------------------------------------------------------------------------
\1\ Seal species are not separated in the Roberts (2022) data therefore
densities were evenly split between the two species expected to occur
in the Lease Area and potential ECRs.
[[Page 81467]]
Take Estimation
Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and is authorized.
Level B harassment events were estimated by multiplying the average
annual density of each species within the Lease Area and potential ECRs
(table 5) by the largest harassment zone (141 m; table 4). That result
was then multiplied by the number of survey days in that Lease Area or
ECR (350 survey days), and rounded to the nearest whole number to
arrive at estimated take. This final number equals the instances of
take for the entire operational period. It was assumed the sparker
systems were operating all 350 survey days as it is the sound source
expected to produce the largest harassment zone. A summary of this
method is illustrated in the following formula with the resulting take
of marine mammals is shown below in table 6:
Estimated take = Species Density x Harassment Zone x # of survey days
Table 6--Total Estimated and Requested Take Numbers
[By Level B harassment only]
----------------------------------------------------------------------------------------------------------------
Estimated Requested
Species Abundance Level B Level B Max percent
takes takes population
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans:
Fin whale............................................. 6,802 15 15 0.22
Sei whale............................................. 6,292 4 4 0.06
Minke whale........................................... 21,968 39 39 0.18
Humpback whale........................................ 1,396 10 10 0.72
North Atlantic right whale............................ 340 15 15 4.41
Mid-frequency Cetaceans:
Sperm whale........................................... 5,895 2 2 0.03
Atlantic white-sided dolphin.......................... 93,233 99 99 0.11
Atlantic spotted dolphin.............................. 31,506 4 4 0.01
Common bottlenose dolphin (offshore stock)............ 64,587 65 65 0.10
Long-finned pilot whale............................... 39,215 11 11 0.03
Risso's dolphin....................................... 44,067 4 4 (14) 0.03
Common dolphin........................................ 93,100 586 586 (1,485) 1.60
Striped dolphin....................................... 48,274 0 0 (46) 0.10
White-beaked dolphin.................................. 536,016 0 0 (12) 0.00
High-frequency Cetaceans:
Harbor porpoise....................................... 85,765 293 293 0.34
Pinnipeds:
Seals:
Gray seal......................................... 27,911 586 586 2.10
Harbor seal....................................... 61,336 586 586 0.96
----------------------------------------------------------------------------------------------------------------
Additional data regarding average group sizes from survey effort in
the region was considered to ensure adequate take estimates are
evaluated. Take estimates for several species were adjusted based upon
observed group sizes in the area. The adjusted take estimates for these
species are indicated in bold in table 6. These calculated take
estimates were adjusted for these species as follows:
<bullet> Striped dolphin: No takes were calculated for this species
(table 6), but data from AMAPPS data indicate this species was observed
in the RI-MA Wind Energy Area (WEA) (Palka et al. 2017) where this
Project Lease Area is located. Therefore, 1 group of 46 was added to
the requested takes, based on a sighting of 1 group of 46 from AMAPPS
data (Palka et al. 2017).
<bullet> Risso's dolphin: Only 4 takes were calculated but based on
two reported detections with a total of 14 individuals of this species
in PSO monitoring reports for projects in the RI-MA WEA where this
Project Lease Area is located (Bay State Wind, 2019; Smultea
Environmental Sciences, 2020), the take number was increased to 14.
<bullet> Common dolphin: The Applicant requested to increase their
take numbers from 586 to 1,485 based on PSO data where 4,457
individuals were observed in the estimated Level B harassment zone over
a total of 1,300 survey days (Smultea Environmental Sciences, 2020).
The survey is only 350 survey days which is approximately \1/3\ of the
survey days considered in the PSO data, so the number of takes has been
recalculated to \1/3\ of the 4,457 detections which equates to 1,485.
<bullet> White-beaked dolphin: no takes were calculated but based
on reported detections of this species in 2 PSO monitoring reports for
projects in the RI-MA WEA where this Project Lease Area is located (EPI
Group, 2021; RPS, 2021), 1 group of 12 was added to the requested
takes.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is
[[Page 81468]]
expected to reduce impacts to marine mammals, marine mammal species or
stocks, and their habitat. This considers the nature of the potential
adverse impact being mitigated (likelihood, scope, range). It further
considers the likelihood that the measure will be effective if
implemented (probability of accomplishing the mitigating result if
implemented as planned), the likelihood of effective implementation
(probability implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
NMFS requires that the following mitigation measures be implemented
during Bay State Wind's marine site characterization surveys. Pursuant
to section 7 of the ESA, Bay State Wind will also be required to adhere
to relevant Project Design Criteria (PDC) of the NMFS' GARFO
programmatic consultation (specifically PDCs 4, 5, and 7) regarding
geophysical surveys along the U.S. Atlantic coast (<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>).
Marine Mammal Shutdown Zones
Marine mammal shutdown zones will be established around impulsive
HRG survey equipment (e.g., sparkers and boomers) for all marine
mammals. Shutdown zones will be monitored by PSOs based upon the radial
distance from the acoustic source rather than being based around the
vessel itself. An immediate shutdown of impulsive HRG survey equipment
will be required if a whale is sighted at or within the corresponding
marine mammal shutdown zones to minimize noise impacts on the animals.
If a shutdown is required, a PSO will notify the survey crew
immediately. Vessel operators and crews will comply immediately with
any call for shutdown. The shutdown zone may or may not encompass the
Level B harassment zone. Shutdown zone distances are as follows:
<bullet> A 500 m shutdown zone for NARWs for use of impulsive
acoustic sources (e.g., boomers and/or sparkers) and non-impulsive,
non-parametric sub-bottom profilers; and
<bullet> A 100-m shutdown zone for use of impulsive acoustic
sources for all other marine mammals, with the exception of small
delphinids, i.e., those belonging to the genera Delphinus,
Lagenorhynchus, Stenella, or Tursiops, and pinnipeds.
Shutdown will remain in effect until the minimum separation
distances (detailed above) between the animal and noise source are re-
established. If a marine mammal enters the respective shutdown zone
during a shutdown period, the equipment may not restart until that
animal is confirmed outside the clearance zone as stated previously in
the pre-start clearance procedures. These stated requirements will be
included in the site-specific training to be provided to the survey
team.
Pre-Start Clearance
Marine mammal clearance zones will be established at the following
distances around the HRG survey equipment and monitored by PSOs:
<bullet> 500 m for NARWs and all other ESA-listed whales;
<bullet> 100 m for non-ESA listed large whales; and
<bullet> 50 m for dolphins, seals, and porpoises.
Bay State Wind will implement a 30-minute pre-start clearance
period prior to the initiation of ramp-up of specified HRG equipment.
During this period, clearance zones will be monitored by PSOs, using
the appropriate visual technology. Ramp-up may not be initiated if any
marine mammal(s) is within its respective clearance zone. If a marine
mammal is observed within a clearance zone during the pre-start
clearance period, ramp-up may not begin until the animal(s) has been
observed exiting its respective exclusion 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).
Monitoring will be conducted throughout all pre-clearance and shutdown
zones as well as all visible waters surrounding the sound sources and
the vessel. All marine mammals detected will be recorded as described
in the Monitoring and Reporting section.
Ramp-Up of Survey Equipment
A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
acoustic source when technically feasible. The ramp-up procedure will
be used at the beginning of HRG survey activities in order to provide
additional protection to marine mammals near the Lease Area and
potential ECRs by allowing them to vacate the area prior to the
commencement of survey equipment operation at full power. Operators
should ramp-up sources to half power for 5 minutes and then proceed to
full power.
The ramp-up procedure will not be initiated (i.e., equipment will
not be started) during periods of inclement conditions when the marine
mammal pre-start clearance zone cannot be adequately monitored by the
PSOs for a 30 minute period using the appropriate visual technology. If
any marine mammal enters the clearance zone, ramp-up will not be
initiated until the animal is confirmed outside the marine mammal
clearance zone, or until the appropriate time (30 minutes for whales,
15 minutes for dolphins, porpoises, and seals) has elapsed since the
last sighting of the animal in the clearance zone.
Shutdown, pre-start clearance, and ramp-up procedures are not
required during HRG survey operations using only non-impulsive sources
(e.g., echosounders) other than non-parametric sub-bottom profilers
(e.g., CHIRPs).
Vessel Strike Avoidance
Bay State Wind must adhere to the following measures except in the
case where compliance would create an imminent and serious threat to a
person or vessel or to the extent that a vessel is restricted in its
ability to maneuver and, because of the restriction, cannot comply.
<bullet> Vessel operators and crews must maintain a vigilant watch
for all protected species and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any protected species. A visual observer aboard the vessel must monitor
a vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish protected species from other phenomena, and (2) broadly
identify a marine mammal as a right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammal;
a. All survey vessels, regardless of size, must observe a 10-kn
(5.1 m/second) speed restriction in specified areas designated by NMFS
for the protection of NARWs from vessel strikes including seasonal
management areas (SMAs) and dynamic management areas (DMAs) when in
effect;
b. Members of the monitoring team will consult NMFS NARW reporting
system and Whale Alert, as able, for the presence of NARWs throughout
survey
[[Page 81469]]
operations, and for the establishment of a DMA. If NMFS should
establish a DMA in the Lease Area and potential ECRs during the survey,
the vessels will abide by speed restrictions in the DMA;
c. All vessels greater than or equal to 19.8 m in overall length
operating from November 1 through April 30 will operate at speeds of 10
kn (5.1 m/second) or less at all times;
d. All vessels must reduce their speed to 10 kn (5.1 m/second) or
less when mother/calf pairs, pods, or large assemblages of any species
of cetaceans is observed near a vessel;
e. All vessels must maintain a minimum separation distance of 500 m
from right whales and other ESA-listed large whales;
f. If a whale is observed but cannot be confirmed as a species
other than a right whale or other ESA-listed large whale, the vessel
operator must assume that it is a right whale and take appropriate
action;
g. All vessels must maintain a minimum separation distance of 100 m
from non-ESA listed whales;
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m from all
other marine mammals, with an understanding that at times this may not
be possible (e.g., for animals that approach the vessel);
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel shall take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area). If marine mammals are
sighted within the relevant separation distance, the vessel must reduce
speed and shift the engine to neutral, not engaging the engines until
animals are clear of the area. This does not apply to any vessel towing
gear or any vessel that is navigationally constrained.
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements.
Based on our evaluation of the applicant's measures, NMFS has
determined that the mitigation measures provide the means of effecting
the least practicable 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
In order to issue an IHA for an activity, section 101(a)(5)(D) 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 while
conducting the activities. 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 (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 activity; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other 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
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Bay State Wind would
employ independent, dedicated, trained PSOs, meaning that the PSOs must
(1) be employed by a third-party observer provider, (2) have no tasks
other than to conduct observational effort, collect data, and
communicate with and instruct relevant vessel crew with regard to the
presence of marine mammals and mitigation requirements (including brief
alerts regarding maritime hazards), and (3) have successfully completed
an approved PSO training course appropriate for their designated task.
On a case-by-case basis, non-independent observers may be approved by
NMFS for limited, specified duties in support of approved, independent
PSOs on smaller vessels with limited crew operating in nearshore
waters.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including shutdown and pre-clearance zones, during all HRG
survey operations. PSOs will visually monitor and identify marine
mammals, including those approaching or entering the established
shutdown and pre-clearance zones during survey activities. It will be
the responsibility of the Lead PSO on duty to communicate the presence
of marine mammals as well as to communicate the action(s) that are
necessary to ensure mitigation and monitoring requirements are
implemented as appropriate.
During all HRG survey operations (e.g., any day on which use of an
HRG source is planned to occur), a minimum of one PSO must be on duty
during daylight operations on each survey vessel, conducting visual
observations at all times on all active survey vessels during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) will ensure 360-degree visual coverage around
the vessel from the most appropriate observation posts and would
conduct visual observations using binoculars and/or night vision
goggles and the naked eye while free from distractions and in a
consistent, systematic, and diligent manner. PSOs may be on watch for a
maximum of four consecutive hours followed by a break of at least one
hour between watches and may conduct a maximum of 12 hours of
observations per 24-hour period. In cases where multiple vessels are
surveying concurrently, any observations of marine mammals would be
communicated to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
[[Page 81470]]
estimate distance and bearing to detect marine mammals, particularly in
proximity to exclusion zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, night-vision goggles with thermal clip-ons
and infrared technology would be used. Position data would be recorded
using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs would also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources. Any observations of marine mammals by crew
members aboard any vessel associated with the survey would be relayed
to the PSO team. Data on all PSO observations would be recorded based
on standard PSO collection requirements. This would include dates,
times, and locations of survey operations; dates and times of
observations, location and weather, details of marine mammal sightings
(e.g., species, numbers, behaviors); and details of any observed marine
mammal behavior that occurs (e.g., notes behavioral disturbances). For
more detail on the monitoring requirements, see condition 5 of the
draft IHA.
Reporting Measures
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a draft comprehensive report will
be provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys including what type of mitigation and the species and number of
animals that prompted the mitigation action, when known), and provides
an interpretation of the results and effectiveness of all mitigation
and monitoring. Any recommendations made by NMFS must be addressed in
the final report prior to acceptance by NMFS. A final report must be
submitted within 30 days following any comments on the draft report.
All draft and final marine mammal and acoustic monitoring reports must
be submitted to <a href="/cdn-cgi/l/email-protection#5e0e0c70170a0e70133130372a312c3730390c3b2e312c2a2d1e30313f3f70393128"><span class="__cf_email__" data-cfemail="065654284f5256284b69686f7269746f686154637669747275466869676728616970">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#410815116f09282d35012f2e20206f262e37"><span class="__cf_email__" data-cfemail="7d34292d53351411093d13121c1c531a120b">[email protected]</span></a>. The report must contain at minimum, the following:
<bullet> PSO names and affiliations:
a. Dates of departures and returns to port with port names;
b. Dates and times (Greenwich Mean Time) of survey effort and times
corresponding with PSO effort;
c. Vessel location (latitude/longitude) when survey effort begins
and ends; vessel location at beginning and end of visual PSO duty
shifts;
d. Vessel heading and speed at beginning and end of visual PSO duty
shifts and upon any line change; and
e. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including wind speed and direction, BSS, Beaufort wind force, swell
height, weather conditions, cloud cover, sun glare, and overall
visibility to the horizon;
<bullet> Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions);
<bullet> Survey activity information, such as type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-clearance
survey, ramp-up, shutdown, end of operations, etc.);
<bullet> Survey activity information (and changes thereof),
including at minimum the general specifications of all acoustic
sources, power output of all sparkers and boomers while in operation,
number of operational sparker tips for all sparkers, tow depth(s) of
all towed acoustic sources, and any other notes of significance (i.e.,
pre-start clearance, ramp-up, shutdown, testing, shooting, ramp-up
completion, end of operations, streamers, etc.);
<bullet> If a marine mammal is sighted, the following information
should be recorded:
a. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
b. PSO who sighted the animal;
c. Time of sighting;
d. Vessel location at time of sighting;
e. Water depth;
f. Direction of vessel's travel (compass direction);
g. Direction of animal's travel relative to the vessel;
h. Pace of the animal; and
i. Estimated distance to the animal and its heading relative to
vessel at initial sighting;
<bullet> Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified); also note the composition
of the group if there is a mix of species;
a. Estimated number of animals (high/low/best);
b. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.); and
c. Description (as many distinguishing features as possible of each
individual seen, including length, shape, color, pattern, scars or
markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
<bullet> Detailed behavior observations (e.g., number of blows,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior);
[cir] Animal's closest point of approach and/or closest distance
from the center point of the acoustic source;
<bullet> Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other); and
<bullet> Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
If a NARW is observed at any time by PSOs or personnel on any
project vessels, during surveys or during vessel transit, Bay State
Wind must immediately report sighting information to the NMFS North
Atlantic Right Whale Sighting Advisory System: (866) 755-6622. NARW
sightings in any location may also be reported to the U.S. Coast Guard
via channel 16.
In the event that Bay State Wind personnel discover an injured or
dead marine mammal, Bay State Wind will report the incident to the NMFS
Office of Protected Resources (OPR) and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report would
include the following information:
a. Species identification (if known) or description of the
animal(s) involved;
b. Condition of the animal(s) (including carcass condition if the
animal is dead);
c. Observed behaviors of the animal(s), if alive;
d. If available, photographs or video footage of the animal(s); and
e. General circumstances under which the animal was discovered;
f. Time;
g. Date; and
h. location (latitude/longitude) of the first discovery (and
updated location information if known and applicable).
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in this activities covered by the IHA, Bay State
Wind will report the incident to NMFS OPR and the NMFS New/England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report would
include the following information:
[[Page 81471]]
a. Time, date, and location (latitude/longitude) of the incident;
b. Species identification (if known) or description of the
animal(s) involved;
c. Vessel's speed during and leading up to the incident;
d. Vessel's course/heading and what operations were being conducted
(if applicable);
e. Status of all sound sources in use;
f. Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
g. Environmental conditions (e.g., wind speed and direction, BSS,
cloud cover, visibility) immediately preceding the strike;
h. Estimated size and length of animal that was struck;
i. Description of the behavior of the marine mammal immediately
preceding and following the strike;
j. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
k. Estimated fate of the animal (e.g., dead, injured but alive,
injured and moving, blood or tissue observed in the water, status
unknown, disappeared); and
l. To the extent practicable, photographs or video footage of the
animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338,
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
To avoid repetition, the discussion of our analysis applies to all
the species listed in table 1, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar. Where there are meaningful differences between species or
stocks--as is the case with the NARW--they are included as separate
subsections below. NMFS does not anticipate that serious injury or
mortality would occur as a result from HRG surveys, even in the absence
of mitigation, and no serious injury or mortality is authorized. As
discussed in the Potential Effects of Specified Activities on Marine
Mammals and their Habitat section, non-auditory physical effects and
vessel strike are not expected to occur. NMFS expects that all
potential takes would be in the form of Level B harassment in the form
of temporary avoidance of the area or decreased foraging (if such
activity was occurring), reactions that are considered to be of low
severity and with no lasting biological consequences (e.g., Southall et
al. 2007, 2021). As described above, Level A harassment is not expected
to occur given the nature of the operations and the estimated small
size of the Level A harassment zones.
In addition to being temporary, the maximum expected harassment
zone around the survey vessel is 141 m. Therefore, the ensonified area
surrounding each vessel is relatively small compared to the overall
distribution of the animals in the area and their use of the habitat.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the Lease
Area and potential ECRs; therefore, marine mammals that may be
temporarily displaced during survey activities are expected to be able
to resume foraging once they have moved away from areas with disturbing
levels of underwater noise. Because of the temporary nature of the
disturbance and the availability of similar habitat and resources in
the surrounding area, the impacts to marine mammals and the food
sources that they utilize are not expected to cause significant or
long-term consequences for individual marine mammals or their
populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the Lease Area and
potential ECRs. Two harbor and gray seal breeding and pupping grounds
have been identified on Nantucket Sound at Monomoy and Muskeget Island.
As the acoustic footprint of the HRG activities is relatively small and
these areas occur outside the Lease Area and potential ECRs, hauled
seals are not expected to be impacted by these activities.
North Atlantic Right Whale
The status of the NARW population is of heightened concern and
therefore, merits additional analysis. As noted previously, elevated
NARW mortalities began in June 2017 and there is an active UME.
Overall, preliminary findings support human interactions, specifically
vessel strikes and entanglements, as the cause of death for the
majority of right whales. The Lease Area and potential ECRs overlaps
with a migratory corridor biologically important area (BIA) for NARWs
(effective March-April; November-December) that extends from
Massachusetts to Florida and, off the coast of NY and RI, from the
coast to beyond the shelf break (LaBrecque et al. 2015). Right whale
migration is not expected to be impacted by the survey due to the very
small size of the Lease Area and potential ECRs relative to the spatial
extent of the available migratory habitat in the BIA. The Lease Area
and potential ECRs also overlap with the Block Island SMA, active from
November 1 to April 30. NARWs may be feeding or migrating within the
SMA. Required vessel strike avoidance measures and following the speed
restrictions of the SMA will decrease the risk of ship strike during
NARW migration; no ship strike is expected to occur during Bay State
Wind's activities. For reasons as described above, minimal impacts are
expected to prey availability and feeding success. Additionally, HRG
survey operations are required to maintain a 500 m distance and shut
down if a NARW is sighted at or within 500 m. The 500-m shutdown zone
for right whales is conservative, considering the Level B harassment
isopleth for the most impactful sources (i.e., GeoMarine Sparkers, AA
Dura-spark UHD Sparkers, AA Triple plate S-Boom) is estimated to be 141
m, and thereby minimizes the potential for behavioral harassment of
this species. Therefore only very limited take by Level B harassment of
NARW has been requested and is authorized by NMFS. As noted previously,
Level A harassment is not expected, nor
[[Page 81472]]
authorized, due to the small PTS zones associated with HRG equipment
types for use. NMFS does not anticipate NARW takes that result from the
survey activities would impact annual rates of recruitment or survival.
Thus, any takes that occur would not result in population level
impacts.
On August 1, 2022, NMFS announced proposed changes to the existing
NARW vessel speed regulations 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 UME (87 FR 46921, September 9, 2022).
Should a final vessel speed rule be issued and become effective during
the effective period of this IHA (or any other MMPA incidental take
authorization), the authorization holder would be required to comply
with any and all applicable requirements contained within the final
rule. Specifically, where measures in any final vessel speed rule are
more protective or restrictive than those in this or any other MMPA
authorization, authorization holders would be required to comply with
the requirements of the rule. Alternatively, where measures in this or
any other MMPA authorization are more restrictive or protective than
those in any final vessel speed rule, the measures in the MMPA
authorization would remain in place. These changes would become
effective immediately upon the effective date of any final vessel speed
rule and would not require any further action on NMFS's part. More
information about the NARW UME is provided in the Federal Register
notice for the proposed IHA (89 FR 67597, August 21, 2024) and 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>.
Other Marine Mammals With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of Bay State Wind's Lease Area and potential ECRs. Elevated
humpback whale mortalities have occurred along the Atlantic coast from
Maine through Florida since January 2016. As of July 16, 2024, 227
humpback whales have stranded as part of this UME. Partial or full
necropsy examinations have been conducted on approximately 90 of the
known cases. Of the whales examined, about 40 percent had evidence of
human interaction, either ship strike or entanglement. While a portion
of the whales have shown evidence of pre-mortem vessel strike, this
finding is not consistent across all whales examined and more research
is needed. The UME does not yet provide cause for concern regarding
population-level impacts. Despite the UME, the relevant population of
humpback whales (the West Indies breeding population, or distinct
population segment) remains stable at approximately 12,000 individuals.
More information about the humpback whale UME is provided in the
Federal Register notice for the proposed IHA (89 FR 67597, August 21,
2024) and 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>.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. As of
August 7, 2024, 174 minke whales have stranded as part of this UME.
Partial or full necropsy examinations have been conducted on
approximately 60% of the whales. Several of the whales showed evidence
of human interactions or infectious diseases. This finding is not
consistent across all whales examined and more research is needed. This
event does not provide cause for concern regarding population level
impacts, as the likely population abundance is greater than 20,000
whales. More information about the minke whale UME is available online
at <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
The required mitigation measures are expected to reduce the number
and/or severity of takes for all species listed in table 1, including
those with active UMEs, to the level of least practicable adverse
impact. In particular, they would provide animals the opportunity to
move away from the sound source before HRG survey equipment reaches
full energy, thus preventing them from being exposed to more severe
Level B harassment. No Level A harassment is anticipated, even in the
absence of mitigation measures, or authorized.
NMFS expects that takes would be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging in the area (if
such activity was occurring)--reactions that (at the scale and
intensity anticipated here) are considered to be of low severity, with
no lasting biological consequences. Since both the sources and marine
mammals are mobile, animals would only be exposed briefly to a small
ensonified area that might result in take. Required mitigation
measures, such as shutdown zones and ramp up, would further reduce
exposure to sound that could result in more severe behavioral
harassment.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect any of the species or stocks
through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures or authorized;
<bullet> Foraging success is not likely to be significantly
impacted as effects on species that serve as prey species for marine
mammals from the survey are expected to be minimal;
<bullet> The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the ensonified area
during the planned surveys to avoid exposure to sounds from the
activity;
<bullet> Take is anticipated to be of Level B behavioral harassment
only consisting of brief startling reactions and/or temporary avoidance
of the ensonified area;
<bullet> While the Lease Area and potential ECRs is within areas
noted as a migratory BIA and SMA for NARW, the activities would occur
in such a comparatively small area such that any avoidance of the
ensonified area due to activities would not affect migration. In
addition, mitigation measures require shutdown at 500 m (almost four
times the size of the Level B harassment isopleth (141 m), which
minimizes the effects of the take on the species; and
<bullet> The mitigation measures, including visual monitoring and
shutdowns, are expected to minimize potential impacts to marine
mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
activity will have a negligible impact on all affected marine mammal
species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
will be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number
[[Page 81473]]
of individuals taken to the most appropriate estimation of abundance of
the relevant species or stock in our determination of whether an
authorization is limited to small numbers of marine mammals. When the
predicted number of individuals to be taken is fewer than one-third of
the species or stock abundance, the take is considered to be of small
numbers. Additionally, other qualitative factors may be considered in
the analysis, such as the temporal or spatial scale of the activities.
The amount of take NMFS has authorized is below one-third of the
estimated stock abundance for all species (in fact, take of individuals
is less than 5 percent of the abundance of the affected stocks for
these species, see table 6). The figures presented in table 6 are
likely conservative estimates as they assume all takes are of different
individual animals which is likely not to be the case. Some individuals
may return multiple times in a day, but PSOs would count them as
separate takes if they cannot be individually identified.
Based on the analysis contained herein of the activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS finds that small numbers of marine mammals will be
taken relative to the population size of the affected species or
stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks will not
have an unmitigable adverse impact on the availability of such species
or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency insure that any action it authorizes,
funds, or carries out is not likely to jeopardize the continued
existence of any endangered or threatened species or result in the
destruction or adverse modification of designated critical habitat. To
ensure ESA compliance for the issuance of IHAs, NMFS OPR consults
internally whenever we propose to authorize take for endangered or
threatened species.
NMFS OPR proposed to authorize the incidental take of four species
of marine mammals which are listed under the ESA, including the North
Atlantic right, fin, sei, and sperm whale, and has determined that
these activities fall within the scope of activities analyzed in
GARFO's programmatic consultation regarding geophysical surveys along
the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021).
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our action (i.e., the issuance of an IHA) with respect
to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NAO 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has determined that the
issuance of the IHA qualifies to be categorically excluded from further
NEPA review.
Authorization
NMFS has issued an IHA to Bay State Wind for the potential
harassment of small numbers of 17 marine mammal species incidental to
conducting site characterization surveys off the coast of Rhode Island
and Massachusetts that includes the previously explained mitigation,
monitoring and reporting requirements.
Dated: October 3, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-23259 Filed 10-7-24; 8:45 am]
BILLING CODE 3510-22-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on October 8, 2024.
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