Notice2024-28994
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off Rhode Island and Massachusetts
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Published
December 10, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS is proposing to modify an existing incidental harassment authorization (IHA) issued to Bay State Wind, LLC (Bay State Wind) on October 3, 2024, authorizing take of marine mammals incidental to marine site characterization surveys conducted off the coasts 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. While conducting said marine site characterization surveys, Bay State Wind has encountered common dolphins (Delphinus delphis) at a rate greater than anticipated under the analysis for that IHA and, therefore, requests that NMFS modify the IHA to increase the number of authorized take by Level B harassment for that species only. No other changes to the IHA were requested or are proposed herein, and the expiration date remains unchanged. NMFS will consider public comments on the requested modification prior to making any final decision and agency responses will be summarized in the final notice of our decision.
Full Text
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<title>Federal Register, Volume 89 Issue 237 (Tuesday, December 10, 2024)</title>
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[Federal Register Volume 89, Number 237 (Tuesday, December 10, 2024)]
[Notices]
[Pages 99227-99230]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE475]
Takes of Marine Mammals Incidental to Specified Activities;
Taking 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; proposed modification of an incidental harassment
authorization; request for comments.
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SUMMARY: NMFS is proposing to modify an existing incidental harassment
authorization (IHA) issued to Bay State Wind, LLC (Bay State Wind) on
October 3, 2024, authorizing take of marine mammals incidental to
marine site characterization surveys conducted off the coasts 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. While conducting said
marine site characterization surveys, Bay State Wind has encountered
common dolphins (Delphinus delphis) at a rate greater than anticipated
under the analysis for that IHA and, therefore, requests that NMFS
modify the IHA to increase the number of authorized take by Level B
harassment for that species only. No other changes to the IHA were
requested or are proposed herein, and the expiration date remains
unchanged. NMFS will consider public comments on the requested
modification prior to making any final decision and agency responses
will be summarized in the final notice of our decision.
DATES: Comments and information must be received no later than December
26, 2024.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service. Written comments should be submitted
via email to <a href="/cdn-cgi/l/email-protection#206974700e48494c54604e4f41410e474f56"><span class="__cf_email__" data-cfemail="38716c68165051544c7856575959165f574e">[email protected]</span></a>.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. All comments
[[Page 99228]]
received are a part of the public record and will generally be posted
online at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All
personal identifying information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information.
FOR FURTHER INFORMATION CONTACT: Rachel Hilt, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application and supporting documents (including NMFS Federal Register
notices of the original proposed and final authorizations, and the
previous IHA), as well as a list of the references cited in this
document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these documents, please call the
contact listed above.
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 issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be 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 such species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
History of Request
On March 27, 2024, NMFS received a request from Bay State Wind for
an IHA to take marine mammals incidental to conducting high-resolution
geophysical (HRG) surveys off the coasts of Rhode Island and
Massachusetts 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. After additional NMFS review of the revised application, Bay
State Wind submitted another revised version on July 29, 2024. That
application was deemed adequate and complete on August 1, 2024. Bay
State Wind's request was for the take of 17 species of marine mammals
by Level B harassment only. Notice of proposed IHA and request for
comments were published in the Federal Register on August 21, 2024 (89
FR 67597). The IHA was issued on October 3, 2024 (89 FR 81458, October
8, 2024), with effective dates October 6, 2024 to October 5, 2025.
On November 1, 2024, NMFS received a request from Bay State Wind
for a modification to the existing IHA. Bay State Wind informed NMFS
that they were encountering common dolphins during the marine site
characterization surveys at a rate greater than anticipated. Bay State
Wind expressed concern that this elevated encounter rate could
potentially result in the authorized take for common dolphins being
exceeded. Therefore, Bay State Wind requested that NMFS modify the
existing IHA by increasing the number of authorized take of that
species only. NMFS is proposing to modify the IHA to increase the
number of authorized take by Level B harassment of common dolphin only.
No other changes to the IHA are proposed.
Description of the Proposed Activity and Anticipated Impacts
The proposed modified IHA would include the same HRG surveys in the
same geographic locations that were described in the analysis for the
initial IHA. The nature of the specified activity that could result in
take of marine mammals (i.e., underwater sound from Bay State Wind's
marine site characterization surveys), including the types of equipment
planned for use, the methods, the duration of the specified activity
(up to 350 survey days in one year), and number of vessels planned for
use are identical to those previously analyzed. The mitigation,
monitoring, and reporting measures, as well as the expiration date of
the IHA, also remain the same. With the exception of the number of
estimated take of common dolphin, no increased number of take of other
species is estimated or proposed for authorization. NMFS refers the
reader to the documents related to the initial IHA issued on October 3,
2024 (89 FR 81458, October 8, 2024), for more detailed description of
the project activities. Other relevant documents include the notice of
proposed IHA and request for comments (89 FR 67597, August 21, 2024).
Detailed Description of the Action
A detailed description of the survey activities is found in these
previous documents. The location, timing, and nature of the activities,
including the types of HRG equipment planned for use, daily trackline
distances and number of survey vessels (four) are identical to those
described in the previous notices.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
is found in these previous documents, which remains applicable to the
proposed issuance of the modified IHA as well. In addition, NMFS has
reviewed recent draft Stock Assessment Reports, information on relevant
Unusual Mortality Events, and recent scientific literature, and
determined that no new information affects our original analysis of
impacts under the initial IHA.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in the documents
supporting the initial IHA (89 FR 81458, October 8, 2024), which
remains applicable to the issuance of the modified IHA. There is no new
information on potential effects.
Estimated Take
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the notice of IHA for the
initial authorization (89 FR 81458, October 8, 2024). The HRG equipment
that may result in take, as well as the source levels, marine mammal
stocks taken, marine mammal density data, and the methods of take
estimation applicable to this authorization remain unchanged from the
initial IHA. With the exception of the common dolphin, the number of
estimated take of marine mammal species remains unchanged.
The initial IHA issued to Bay State Wind on October 3, 2024 (89 FR
81458,
[[Page 99229]]
October 8, 2024) authorized take of 17 species of marine mammals,
including 1,485 common dolphins, incidental to marine site
characterization surveys conducted in the Lease Area and ECR over the
course of a single year, requiring up to 350 survey days. The take
estimate, used to calculate the number of authorized take for each
species, was based on the best available scientific evidence, including
sighting data from Protected Species Observer (PSO) reports (Smultea
Environmental Sciences, 2020) and NOAA's Atlantic Marine Assessment
Program for Protected Species (AMAPPS) (<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected">https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected</a>) group sizes. AMAPPS group sizes are based
on data from a multi-agency research program, including seasonal
distribution and abundance data collected over multiple years using
aerial and shipboard surveys. Bay State Wind commenced survey
activities on October 6, 2024. After 20 days of surveys, Bay State Wind
had recorded 1,045 common dolphins within the estimated Level B
harassment zone (as shown in table 1). Sighting events have included
group sizes ranging from 3 to 110 with a mean group size 32.6. All
potential exposures have been reported from a single vessel working in
water depths averaging 45 meters, and detections of this species have
occurred nearly daily, and often multiple times per day. Many of the
observed common dolphin encounters have included animals approaching
the vessel for both bow riding and swimming alongside as well as
foraging in the area. The duration of these sighting events have varied
from several minutes to many hours.
Table 1--Common Dolphin Detection Events During Bay State Wind HRG Survey Activities
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Average group size for
Total number of common Total number of groups within Total number of dolphins within Min pod size Max pod size detections within Level B
dolphin detection events Level B harassment zone Level B harassment zone harassment zone
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55 38 1,045 3 110 32.6
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According to Roberts et al. (2023) monthly marine mammal density
data, estimated common dolphin occurrence in the region appears to be
seasonal with the highest monthly density occurring during the months
of October (0.1652 animals km<SUP>- 2</SUP>\2\) and September (0.1224
km<SUP>- 2</SUP>). Density data for the months of November and December
begin to decrease (0.1034 km<SUP>- 2</SUP> and 0.1155 km<SUP>- 2</SUP>
respectively). Density for the months of January-August decreases
further and remains under 0.0800 km<SUP>- 2</SUP>. Density does not
exceed 0.0800 km<SUP>- 2</SUP>until the month of September.
The 1,045 common dolphin sightings over 20 days averages to
approximately 52 sightings per day. This high number of sightings is
unanticipated and has occurred during the month of October when, as
previously mentioned, common dolphin density is expected to be highest.
As the common dolphin density is expected to decrease in November and
December (0.1034 km<SUP>- 2</SUP> and 0.1155 km<SUP>- 2</SUP>,
respectively) and remain relatively low (below 0.0800 km<SUP>- 2</SUP>)
through the month of August. NMFS anticipates the encounter rate will
likely subside after the peak density in October (0.1652 animals
km<SUP>- 2</SUP>) and September (0.1224 km<SUP>- 2</SUP>). Given the
expected decrease in common dolphin encounter rate, Bay State Wind has
requested authorization of an additional 1,485 additional takes for the
remaining 330 survey days. NMFS concurs and is proposing to modify the
IHA to increase the total number of authorized take of common dolphin
by Level B harassment from 1,485 to 2,970. The proposed updated total
take represents 3.2 percent (table 2) of the best available abundance
estimate for the western North Atlantic stock of common dolphin. The
expiration date of the IHA would remain unchanged (October 5, 2025).
Authorized takes remain unchanged for all other marine mammal species.
Table 2--Total Numbers of Authorized Takes by Level B Harassment of Common Dolphin and as a Percentage of
Population
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Totals
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Species Stock abundance (CV, Instances of take as
Take authorization Nmin, most recent percentage of
(No.) abundance survey) \1\ population
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Common dolphin......................... 2,970 93,100 (0.56, 59,897, 3.20
2021).
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\1\ 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.
Description of Proposed Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring, and reporting measures described here
are identical to those included in the Federal Register notices
announcing the issuance of the initial IHA authorization (89 FR 81458,
October 8, 2024) as well as the discussions of the least practicable
adverse impact included in those documents remain accurate.
Preliminary Determinations
Bay State Wind's survey activities and the mitigation, monitoring,
and reporting requirements are unchanged from those covered in the
initial IHA. The effects of the activity, taking into consideration the
mitigation and related monitoring measures, remain unchanged from those
stated in the initial IHA, notwithstanding the increase to the
authorized amount of common dolphin take. Specifically, the Level B
harassment authorized for common dolphins is expected to be of low
severity, predominantly in the form of behavioral disturbance (i.e.,
avoidance of the sound source and potential occasional interruption of
foraging). With approximately 330 survey days remaining, NMFS is
proposing to increase authorized common dolphin take by Level B
[[Page 99230]]
harassment from 1,485 to 2,970. Even in consideration of the increased
estimated numbers of take by Level B harassment, the impacts of these
lower severity exposures are not expected to adversely impact the
fitness of any individuals, and, therefore no impacts are expected to
adversely affect the species or stock through effects on annual rates
of recruitment or survival. Further, the proposed take amount of common
dolphin still would be of small numbers relative to the population size
(3.2 percent) as take is less than one third of the species or stock
abundance which is considered by NMFS to be small numbers. In
conclusion, there is no new information suggesting that our effects
analysis or negligible impact finding for common dolphins should
change.
Based on the information contained here and in the referenced
documents, NMFS has preliminarily reaffirmed the following: (1) the
required mitigation measures will affect the least practicable impact
on marine mammal species or stocks and their habitat; (2) the proposed
authorized takes will have a negligible impact on the affected marine
mammal species or stocks; (3) the proposed authorized takes represent
small numbers of marine mammals relative to the affected stock
abundances; and (4) Bay State Wind's activities will not have an
unmitigable adverse impact on taking for subsistence purposes as no
relevant subsistence uses of marine mammals are implicated by this
action, and (5) appropriate monitoring and reporting requirements are
included.
Endangered Species Act (ESA)
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.
For the initial IHA, NMFS Office of Protected Resources authorized
the incidental take of four species of marine mammals which are listed
under the ESA, including the North Atlantic right, fin, sei, and sperm
whale, and determined that these activities fall within the scope of
activities analyzed in Greater Atlantic Regional Fisheries Office'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). This modification of
the IHA does not modify or change any take of listed species and
therefore the prior determination remains unchanged.
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 proposed action (i.e., the modification 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 NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has
preliminarily determined that the issuance of the modified IHA
continues to qualify to be categorically excluded from further NEPA
review.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process or making a final decision on the
IHA request.
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
modify the IHA to Bay State Wind for incidental take of marine mammals
associated with marine site characterization surveys off the coast of
Rhode Island and Massachusetts effective from the date of issuance
until October 5, 2025. The only change is an increase in the authorized
take by Level B harassment of common dolphins from 1,485 to 2,970. The
previously described mitigation, monitoring, and reporting requirements
are incorporated. A draft of the proposed modified IHA can be found 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>.
Request for Public Comments
We request comment on our proposed modification of the IHA for Bay
State Wind's marine site characterization surveys. We also request
comment on the potential for renewal of this proposed IHA as described
in the paragraph below. Please include with your comments any
supporting data or literature citations to help inform our final
decision on the request for MMPA authorization.
Dated: December 5, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-28994 Filed 12-9-24; 8:45 am]
BILLING CODE 3510-22-P
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