[Federal Register Volume 89, Number 205 (Wednesday, October 23, 2024)]
[Rules and Regulations]
[Pages 84674-84729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22601]
[[Page 84673]]
Vol. 89
Wednesday,
No. 205
October 23, 2024
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Maryland Offshore Wind Project,
Offshore of Maryland; Final Rule
Federal Register / Vol. 89 , No. 205 / Wednesday, October 23, 2024 /
Rules and Regulations
[[Page 84674]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240917-0242]
RIN 0648-BM32
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Maryland Offshore Wind Project,
Offshore of Maryland
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, notification is hereby given
that NMFS promulgates regulations to govern the incidental taking of
marine mammals incidental to US Wind, Inc. (US Wind) during the
construction of an offshore wind energy project (the Project) in
Federal and State waters off of Maryland, specifically within the
Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged
Lands for Renewable Energy Development on the Outer Continental Shelf
(OCS) Lease Area (OCS-A-0490) (referred to as the Lease Area) and along
associated export cable routes to sea-to-shore transition points
(collectively, the project area), over the course of 5 years (January
1, 2025 through December 31, 2029). These regulations, which allow for
the issuance of a Letter of Authorization (LOA) for the incidental take
of marine mammals during specific construction related activities
within the project area during the effective dates of the regulations,
prescribe the permissible methods of taking and other means of
effecting the least practicable adverse impact on marine mammal species
or stocks and their habitat, as well as requirements pertaining to the
monitoring and reporting of such taking.
DATES: This rule is effective from January 1, 2025, through December
31, 2029.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of US Wind's application and supporting documents, as well
as a list of the references cited in this document, may be obtained
online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these documents, please call
the contact listed above (see FOR FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the
authority of the MMPA (16 U.S.C. 1361 et seq.) to authorize the take of
marine mammals incidental to construction of the Project within the
project area. NMFS received a request from US Wind to incidentally take
a small number of marine mammals from 19 species of marine mammals,
comprising 20 stocks (5 stocks by Level A harassment and Level B
harassment; 15 stocks by Level B harassment only), incidental to US
Wind's construction activities. US Wind did not request and NMFS
neither anticipates nor allows take by serious injury or mortality
incidental to the specified activities in this final rulemaking.
Legal Authority for the Final Action
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made, regulations are
promulgated (when applicable), and public notice and an opportunity for
public comment are provided.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to as ``mitigation'');
and requirements pertaining to the mitigation, monitoring and reporting
of the takings are set forth.
As noted above, US Wind did not request and NMFS neither
anticipates nor allows take by serious injury or mortality incidental
to the specified activities in this final rulemaking. Relevant
definitions of MMPA statutory and regulatory terms are included below:
U.S. Citizens--individual U.S. citizens or any corporation
or similar entity if it is organized under the laws of the United
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR
216.103);
Take--to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362; 50
CFR 216.3);
Incidental Harassment, Incidental Taking and Incidental,
but not Intentional, Taking--an accidental taking. This does not mean
that the taking is unexpected, but rather it includes those takings
that are infrequent, unavoidable or accidental (see 50 CFR 216.103);
Serious Injury--any injury that will likely result in
mortality (50 CFR 216.3);
Level A harassment--any act of pursuit, torment, or
annoyance which has the potential to injure a marine mammal or marine
mammal stock in the wild (16 U.S.C. 1362; 50 CFR 216.3); and
Level B harassment--any act of pursuit, torment, or
annoyance which has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (16 U.S.C. 1362; 50 CFR 216.3).
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I provide the legal basis for proposing
and, if appropriate, issuing this rule containing 5-year regulations
and associated LOA. This final rule also establishes required
mitigation, monitoring, and reporting requirements for US Wind's
construction activities.
Summary of Major Provisions Within the Final Rule
The major provisions within this final rule include:
Allowing NMFS to authorize, under a LOA, the take of small
numbers of marine mammals by Level A harassment and/or Level B
harassment (50 CFR 217.312) incidental to the Project and prohibiting
take of such species or stocks in any manner not permitted (50 CFR
217.313) (e.g., mortality or serious injury);
Establishing a seasonal moratorium on foundation impact
pile driving
[[Page 84675]]
during December 1-April 30, annually, as well as avoiding foundation
impact pile driving in November to the maximum extent practicable to
minimize impacts to North Atlantic right whales (Eubalaena glacialis);
Conducting both visual and passive acoustic monitoring
(PAM) by trained, NMFS-approved Protected Species Observers (PSO) and
PAM operators before, during, and after select in-water construction
activities;
Requiring training for all Project personnel to ensure
marine mammal protocols and procedures are clearly understood;
Establishing clearance and shutdown zones for all in-water
construction activities and high-resolution geophysical (HRG) marine
site characterization surveys to prevent or reduce the risk of Level A
harassment and to minimize the risk of Level B harassment, including a
delay or shutdown of foundation impact pile driving if a North Atlantic
right whale is observed at any distance by PSOs or acoustically
detected within certain distances;
Establishing minimum visibility and PAM monitoring zones
during foundation impact pile driving;
Requiring use of at least two sound attenuation devices
during all foundation impact pile driving installation activities to
reduce noise levels to those modeled assuming a broadband 10 decibel
(dB) attenuation;
Requiring sound field verification (SFV) monitoring during
impact pile driving of foundation piles to measure in situ noise levels
for comparison against the modeled results and ensure noise levels
assuming 10 dB attenuation are not exceeded;
Requiring SFV during the operational phase of the Project;
Implementing soft-starts during impact pile driving and
ramp-up during the use of HRG marine site characterization survey
equipment;
Requiring various vessel strike avoidance measures;
Requiring various measures during fisheries monitoring
surveys, such as removing gear from the water if marine mammals are
considered at-risk or are interacting with gear;
Requiring regular and situational reporting including, but
not limited to, information regarding activities occurring, marine
mammal observations and acoustic detections, and SFV monitoring
results; and
Requiring monitoring of the North Atlantic right whale
sighting networks, Channel 16, and PAM data, as well as reporting any
sightings to the NMFS.
Through adaptive management (see 50 CFR 217.347(c)(1)) NMFS Office
of Protected Resources may modify (e.g., remove, revise, or add to) the
existing mitigation, monitoring, or reporting measures summarized above
and required by the LOA.
NMFS must withdraw or suspend an LOA issued under these
regulations, after notice and opportunity for public comment, if it
finds the methods of taking or the mitigation, monitoring, or reporting
measures are not being substantially complied with (16 U.S.C.
1371(a)(5)(B); 50 CFR 216.106(e)). Additionally, failure to comply with
the requirements of the LOA may result in civil monetary penalties and
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50
CFR 216.106(g)).
Fixing America's Surface Transportation Act (FAST-41)
This Project is covered under title 41 of the Fixing America's
Surface Transportation Act, or ``FAST-41.'' A ``covered project'' under
FAST-41 is defined generally as ``any activity in the United States
that requires authorization or environmental review by a Federal agency
involving construction of infrastructure for renewable or conventional
energy production'' 42 U.S.C. 4370m-(6)(A). The Project, which involves
construction of renewable wind energy infrastructure off of Maryland,
will provide 300 megawatts (MW) of energy and, upon completion, advance
the State of Maryland's renewable energy goals. As such, the Project
falls under FAST-41's definition of ``covered project.''
FAST-41 includes a suite of provisions designed to expedite the
environmental review for covered infrastructure projects, including
enhanced interagency coordination as well as milestone tracking on the
public-facing Permitting Dashboard. FAST-41 also places a 2-year
limitations period on any judicial claim that challenges the validity
of a Federal agency decision to issue or deny an authorization for a
FAST-41 covered project 42 U.S.C. 4370m-6(a)(1)(A).
The Project is listed on the Permitting Dashboard, where milestones
and schedules related to the environmental review and permitting for
the Project can be found at https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/maryland-offshore-wind-project.
Summary of Request
On August 31, 2022, US Wind submitted a request for the
promulgation of regulations and issuance of an associated 5-year LOA to
take marine mammals incidental to construction activities associated
with implementation of the Project offshore of Maryland in the BOEM
Lease Area OCS-A 0490 and associated export cable routes. US Wind's
request is for the incidental, but not intentional, taking of a small
number of 19 marine mammal species (comprising 20 stocks) by Level B
harassment (for all 20 stocks) and by Level A harassment (for 5 of the
20 stocks). US Wind did not request, and NMFS does not anticipate, take
by serious injury or mortality to occur for any marine mammal species
or stock incidental to the specified activities.
In response to our questions and comments and following extensive
information exchanges between US Wind and NMFS, US Wind submitted a
final, revised application on March 31, 2023 that NMFS deemed adequate
and complete on April 3, 2023. This application is available on NMFS'
website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind.
On May 2, 2023, NMFS published a notice of receipt (NOR) of US
Wind's adequate and complete application in the Federal Register (88 FR
27463), requesting comments and soliciting information related to US
Wind's request during a 30-day public comment period. During the NOR
public comment period, NMFS received comment letters from 77 private
citizens, 6 non-governmental organizations, and 1 State government
organization (Delaware Department of Natural Resources and
Environmental Control). NMFS reviewed all submitted material and took
these into consideration during the drafting of the proposed rule.
On September 6, 2023 and September 11, 2023, US Wind submitted
supplemental information related to its pilot whale and seal take
analyses. The corresponding memos, entitled ``US Wind NMFS Request for
Information (RFI) Response Memo and Maryland Offshore Wind Project
Revised Requested Take Tables'' are available on our website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind.
On January 4, 2024, NMFS published the proposed rule for the
Project in the Federal Register (89 FR 504). In the proposed rule, NMFS
synthesized all of the information provided by US Wind, all best
available scientific information and literature relevant to the
Project, outlined, in detail, proposed mitigation designed to effect
the least practicable
[[Page 84676]]
adverse impacts on marine mammal species and stocks as well as proposed
monitoring and reporting measures, and made preliminary negligible
impact and small numbers determinations. The public comment period on
the proposed rule was open for 30 days from January 4, 2024 through
February 5, 2024 on https://Regulations.gov. A summary of public
comments received during this 30-day period are described in the
Comments and Responses section; full public comments may be viewed on
https://Regulations.gov.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations (87 FR 46921) to
further reduce the likelihood of mortalities and serious injuries to
endangered right whales from vessel collisions, which are a leading
cause of the species' decline and a primary factor in an ongoing
Unusual Mortality Event (UME). Should a final vessel speed rule be
issued and become effective during the effective period of this
incidental take authorization (or any other MMPA incidental take
authorization), the authorization holder would be required to comply
with any and all applicable requirements contained within the final
rule. Specifically, where measures in any final vessel speed rule are
more protective or restrictive than those in this or any other MMPA
authorization, authorization holders would be required to comply with
the requirements of the rule. Alternatively, where measures in this or
any other MMPA authorization are more restrictive or protective than
those in any final vessel speed rule, the measures in the MMPA
authorization would remain in place. The responsibility to comply with
the applicable requirements of any vessel speed rule would become
effective immediately upon the effective date of any final vessel speed
rule and when notice is published on the effective date, NMFS would
also notify US Wind if the measures in the speed rule were to supersede
any of the measures in the MMPA authorization such that they were no
longer required.
Description of Specified Activity
Overview
US Wind plans to construct and operate a wind energy facility, the
Project, in the Atlantic Ocean in lease area OCS-A 0490, offshore
Maryland. The Project consists of 3 construction campaigns including
MarWin, located in the southeastern portion of the Lease Area with the
potential to generate approximately 300 megawatts (MW) of energy,
Momentum Wind, located immediately west of MarWin with the potential to
generate approximately 808 MW of energy, and Future Development, which
encompasses buildout of the remainder of the Lease Area and for which
generation capacity has yet to be determined (table 1). Once
operational, MarWin and Momentum Wind would advance the State of
Maryland's renewable energy goals, providing 50 percent of the State's
goal by the year 2030, with the full buildout of the Lease Area further
achieving renewable energy targets. US Wind also anticipates completing
the Future Development campaign within the effective period of the
rule.
The Project will consist of several different types of permanent
offshore infrastructure, including up to 114 WTGs (e.g., 18-MW model
with a 250-meter (m) rotor diameter platform), four OSSs, a MET tower,
and inter-array and export cables. MarWin will occupy approximately
46.6 square kilometers (km\2\) (11,515 acres), which will include
approximately 21 WTGs and 1 OSS. The MarWin campaign, as well as
subsequent Momentum Wind and Future Development, includes monopiles as
the only potential WTG foundation type. For each campaign, the OSS
would be supported by monopiles or jacket foundations with skirt piles.
Skirt piles are post-piled pin piles. Jacket foundations are placed on
the seabed and pin piles are driven into jacket pile guides, which are
known as skirts. Table 1 provides a summary of each construction
campaign.
Table 1--US Wind's Anticipated Construction Campaign Schedule
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Number of 11-m Number of 1.8-
Campaigns Construction monopiles for Number 3-m pin piles for OSS m pin piles Onshore export Offshore
year WTGs jacket foundations \1\ for Met tower cables substations
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MarWin................................... 1 (2025) 21 4 (1 jacket)................ 0 4 1
Momentum................................. 2 (2026) 55 8 (2 jackets)............... 3 0 2
Future Development....................... 3 (2027) 38 4 (1 jacket)................ 0 0 1
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\1\ Potential OSS foundations could also include monopile and suction bucket jacket foundations.
Strings of WTGs will connect with the OSS via a submarine inter-
array cable transmission system. Up to four high-voltage alternating
current (HVAC) offshore export cables will be installed during the
MarWin campaign, spanning approximately 65-97 (kilometers) km (40-60
miles (mi)) in length, dependent on the location of the OSS and the
final routing. The Export Cable Corridor (ECC) will transmit
electricity from the OSS to one or two landfall sites in Delaware
Seashore State Park.
The second construction campaign, Momentum Wind, will contain
approximately 55 WTGs, 2 OSSs, and 1 MET tower within an area of
approximately 142.4 km\2\ (35,188 acres). The Met tower will be
supported by pin pile foundations. During the third construction
campaign, Future Development, approximately 38 WTGs and 1 OSS will be
installed within an area of approximately 80.3 km\2\ (19,843 acres).
US Wind plans to install all monopile or pin pile foundations via
impact pile driving. If suction bucket foundations are selected for OSS
jacket foundations, impact pile driving would not be necessary. US Wind
will also conduct the following supporting activities: temporarily
install and subsequently remove gravity cells to connect the offshore
export cables to onshore facilities; permanently install scour
protection around all foundations; permanently install and perform
trenching, laying, and burial activities associated with the export
cables from the OSSs to shore-based switching and sub-stations and WTG
inter-array cables; and, during years 2 and 3, perform HRG surveys
using active acoustic sources with frequencies of less than 180
kilohertz (kHz). To transport crew, supplies, and materials to support
construction activities, vessels will transit within the Lease Area,
along cable corridors, and between the project area and anticipated
ports (Port Norris, NJ; Lewes, DE; Ocean City, MD; Baltimore, MD;
Hampton Roads, VA; and Cape Charles, VA).
Up to four offshore export cables will be located among up to two
corridors from the OSSs and connect to the planned landfall at either
3R's Beach or Tower Road within Delaware Seashore State Park. When the
cables reach the
[[Page 84677]]
landfall site, they will be pulled into a cable duct generated by
horizontal directional drilling (HDD), which will route the cables
under the existing beach to subterranean transition vaults. All
offshore cables will be connected to onshore export cables at the sea-
to-shore transition point via trenchless installation (i.e.,
underground tunneling utilizing micro tunnel boring installation
methodologies).
Fishery monitoring surveys, performed via recreational boat-based
surveys and a pot-based monitoring approach using ropeless gear
technology, will be conducted in conjunction with the University of
Maryland Center for Environmental Science (UMCES) to enhance existing
data for specific benthic and pelagic species of concern.
Dates and Duration
As described above, US Wind will conduct 3 campaigns over 3 years:
MarWin, Momentum Wind, and Future Development (table 1). Based on US
Wind's planned schedule, the installation of all permanent structures
will be completed by the end of November 2027. More specifically, US
Wind will install piles only between May 1 and November 30. Also, the
installation of WTG foundations and OSS 3-m pin pile jacket foundations
will occur during daylight hours between May 1 and November 30 of 2025,
2026, and 2027 (table 2); however, NMFS would allow nighttime pile
driving if US Wind submits, and NMFS approves, an Alternative
Monitoring Plan, as discussed below. The single Met tower foundation
will be installed in 2026 (table 2). US Wind anticipates HRG surveys
using sparkers and boomers to occur during 2026 and 2027. Up to 14 days
of HRG survey activity are planned from April through June 2026 during
the Momentum campaign. In addition, up to 14 days of HRG survey
activity are planned from April through June 2027 during the Future
Development campaign. Currently, US Wind is not planning to conduct
activities that have the potential to result in take in 2028 and 2029.
However, while table 2 represents US Wind's current schedule, NMFS
recognizes the potential for activity schedules to shift such that they
could occur during different timeframes within the five year effective
period of this rule.
Table 2--US Wind's Anticipated Construction and Operations Schedule During the Effective Period of the LOA \1\
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Expected duration
Project activity Construction campaign Expected timing \2\ (approximate)
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Scour Protection Pre-Installation MarWin............................. Year 1: Q2 through 21 days.
Q3 of 2025.
Momentum Wind...................... Year 2: Q2 through 55 days.
Q3 of 2026.
Future Development................. Year 3: Q2 through 38 days.
Q3 of 2027.
WTG Foundation Installation \3\ MarWin............................. Year 1: June 21 days.
\5\. through September
of 2025.
Momentum Wind...................... Year 2: May through 55 days.
August of 2026.
Future Development................. Year 3: June 38 days.
through August of
2027.
Scour protection post- MarWin............................. Year 1: Q2 through 42 days.
installation. Q3 of 2025.
Momentum Wind...................... Year 2: Q2 through 110 days.
Q3 of 2026.
Future Development................. Year 3: Q2 through 76 days.
Q3 of 2027.
OSS Foundation installation \3\ MarWin............................. Year 1: July of 1 day.
\5\. 2025.
Momentum Wind...................... Year 2: July of 2 days.
2026.
Future Development................. Year 3: July of 1 day.
2027.
Met Tower installation \3\ \4\... Momentum Wind...................... Year 2: June of 1 day.
2026.
HRG surveys \5\.................. Momentum Wind...................... Year 2: Q2 through 14 days.
Q3 of 2026.
Future Development................. Year 3: Q2 through 14 days.
Q3 of 2027.
Site preparation................. n/a................................ Not anticipated.... n/a.
Inter-array cable installation... MarWin............................. Year 1: Q2 through 42 days.
Q4 of 2025.
Momentum Wind...................... Year 2: Q2 through 110 days.
Q4 of 2026.
Future Development................. Year 3: Q2 through 76 days.
Q4 of 2027.
Export cable installation........ MarWin............................. Year 1: Q1 through 60 days.
Q4 of 2025.
Momentum Wind...................... Year 2: Q1 through 120 days (2
Q4 of 2026. cables).
Future Development................. Year 3: Q1 through 60 days.
Q4 of 2027.
Fishery monitoring surveys....... MarWin............................. Q1 through Q4 Years 16 days/year for
Momentum Wind...................... 1-5. commercial pot
Future Development................. surveys.
12 days/year for
recreational
surveys.
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\1\ Currently, US Wind is not planning to conduct activities that have the potential to result in take in 2028
and 2029. However, while table 2 represents US Wind's current schedule, NMFS recognizes the potential for
activity schedules to shift such that they could occur during different timeframes within the five year
effective period of this rule.
\2\ Installation timing will depend on vessel availability, contractor selection, weather, and more. Year 1 is
anticipated to be 2025, year 2 to be 2026, and year 3 to be 2027, although these are subject to change per the
factors identified. Note: ``Q1, Q2, Q3, and Q4'' each refer to a quarter of the year, starting in January and
comprising 3 months each. Therefore, Q1 represents January through March, Q2 represents April through June, Q3
represents July through September, and Q4 represents October through December.
\3\ The months identified here represent US Wind's planned schedule; however, in case of unanticipated delays,
foundation installation may occur between May 1 and November 30 annually.
\4\ US Wind anticipates that all WTGs, OSS, and Met tower foundations will be installed by November 30, 2027;
however, unanticipated delays may require some foundation pile driving to occur in years 4 (2028) or 5 (2029).
\5\ Represents HRG surveys that may result in take of marine mammals. US Wind plans to conduct HRG surveys that
are not expected to result in take of marine mammals during Q2 through Q3 of year 1 given those surveys would
utilize equipment all operating over 180kHz or have no acoustic output.
Specified Geographic Region
A detailed description of the Specific Geographic Region,
identified as the Mid-Atlantic Bight, is provided in the proposed rule
(89 FR 504, January 4, 2024). Since the proposed rule was published, no
changes have been made to the Specified Geographic Region. Generally,
US Wind's specified activities (i.e., impact pile driving of monopile
and jacket foundations; placement of scour protection; trenching,
laying, and burial activities associated with the installation of the
ECRs and inter-array cables; HRG site characterization surveys; and WTG
operation) are concentrated in the Lease Area and ECRs offshore of
Maryland. However, vessel transit from ports as far south as Virginia
and as far north as New Jersey are anticipated.
BILLING CODE 3510-22-P
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[GRAPHIC] [TIFF OMITTED] TR23OC24.000
BILLING CODE 3510-22-C
Comments and Responses
NMFS published a proposed rule in the Federal Register on January
4, 2024 (89 FR 504) for a 30-day public comment period. The proposed
rule described, in detail, US Wind's specified activities, the specific
geographic region of the specified activities, the marine mammal
species that may be affected by those activities, and the anticipated
effects on marine mammals. In the proposed rule, we requested that
interested persons submit relevant information, suggestions, and
comments on US Wind's request for the promulgation of regulations and
issuance of an associated LOA described therein, our estimated take
analyses, the preliminary determinations, and the proposed regulations.
NMFS received 114 comment submissions, including from the Marine
Mammal Commission (Commission), Delaware Department of Natural
Resources (DDNC), Town of Fenwick Island, several non-governmental
organizations, and individual citizens, all of which are available for
review on www.regulations.gov. Most of these comments were out-of-scope
or not applicable to the Project (e.g., general opposition to or
support of offshore wind projects; concerns for other species outside
NMFS' jurisdiction (e.g., birds and horseshoe crabs) methods for
conducting site condition identification, support for the proposed rule
and the Project, concern for energy distribution and power from the
Project, beach erosion and flooding, critique of the Maryland offshore
wind congressional hearing held in January 2024), and are not described
herein or discussed further. Non-governmental organizations included:
Caesar Rodney Institute (CRI), Town of Fenwick Island (TFI), Wrecker
Sportfishing, Deep Sea Defenders, and Tower Shore Beach Association. We
have responded to all comments that contained substantive information
and considered that information in this final rule, including comments
related to the estimated take analysis, final determinations, and final
mitigation, monitoring, and reporting requirements. A summary of
comments is described below, along with NMFS' responses.
Modeling and Take Estimates
Comment 1: The Commission notes that, based upon SFV reports,
[[Page 84679]]
discrepancies exist between modeled and measured Level A harassment and
Level B harassment zones. The Commission indicates that these
discrepancies may be related to actual installation conditions and
should be accounted for in the estimation of harassment zones,
authorized number of takes, and mitigation, monitoring, and reporting
requirements for the Maryland Wind Offshore Wind Project. The
Commission recommends that NMFS provide the interim and/or final SFV
reports for South Fork and Vineyard Wind 1 and allow for another 30-day
public comment period for the Maryland Wind proposed rule before
issuing a final rule.
Response: Based on the discussion below and given our consideration
of the best available scientific information, including available sound
field verification (SFV) reports from other offshore wind construction
projects in the United States, we disagree with the suggestions made by
the Commission. The Commission has expressed concerns about the lack of
validation of source models in previous Commission letters. Since the
proposed rule was published, NMFS has received interim/final sound
field verification reports from the South Fork Wind project. In all but
one case, the measured distances to NMFS' Level B harassment threshold
were lower than the model predicted. The distance to NMFS' Level B
harassment threshold for the South Fork project was modeled as 4.68
kilometers (km) while in-situ measurements identified distances ranging
from 1.84 km to 3.25 km. MAI's modeling predicts the distances to the
Level B harassment threshold during installation of the Maryland Wind
11-m monopiles will be approximately 5.25 km which is less than 1 km
larger than South Fork's modeled distance. We note that South Fork
determined that one pile generating noise levels above those predicted
(the first pile) did so due to a malfunctioning noise attenuation
system which was quickly rectified and deployed appropriately on all
future piles.
Since the public comment period ended on the proposed rule, NMFS
has also received SFV reports from Vineyard Wind 1. However, due to the
hammer energy assumption in the model versus what was used in the field
(i.e., more hammer energy was used than modeled) and other operational
challenges, it is more challenging to compare the VW measured results
directly to the modeled results, although the modeled distances to the
Level A harassment threshold were larger (the largest modeled distance
to the Level A harassment threshold was for low-frequency cetaceans at
3.191 km) than distances to the Level A harassment threshold measured
by SFV. The final SFV report for the 2023 construction of the Vineyard
Wind 1 Offshore Wind Project is currently posted on our website
(https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-llc-construction-vineyard-wind-offshore-wind).
Importantly, in this final rule, should SFV results reveal noise
levels are louder than those predicted assuming 10 dB attenuation, NMFS
is requiring US Wind to implement additional measures to reduce sound
levels such that they do not exceed those modeled assuming 10 dB. US
Wind is required to conduct either thorough or abbreviated monitoring
on all foundation piles installed.
NMFS has incorporated the best available scientific information
into this final rule, using recent measurements as well as estimates
obtained through modeling. In regards to the Commission's comment
recommending another 30-day comment period for the proposed rule, NMFS
disagrees with this recommendation and has determined that one 30-day
comment period for the proposed rule is sufficient under the MMPA. The
MMPA requires notice and opportunity for public comment. The 30-day
public comment period for the Maryland Offshore Wind Project proposed
rule was open to the public from January 4, 2024 through February 5,
2024. NMFS fulfilled the requirements of the MMPA by providing notice
in the Federal Register and opportunity for public comment on this
proposed rule.
Comment 2: The Caesar Rodney Institute (CRI) notes that NMFS has
not established a standard version of estimated population abundances
that should be used when evaluating ITA requests. CRI indicates that
North Atlantic right whale best population abundance estimates vary
between projects, ranging from 338 North Atlantic right whales (for the
proposed Maryland Wind Offshore Wind Project proposed rule (89 FR 504,
January 4, 2024)) to 346 and 394 North Atlantic right whales (for other
projects). The CRI recommends that NMFS establish a North Atlantic
right whale population abundance to be used in all applications, as
well as a maximum allowed estimated population density for the months
for which construction would take place.
Response: The MMPA and its implementing regulations require that
incidental take regulations be established based on the best available
information. The dynamic nature of population science dictates that
rulemakings will not be using the same population numbers from year to
year. NMFS generally considers the information in the most recent U.S.
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments Report
(SAR; Hayes et al., 2023) to be the best available information for a
particular marine mammal stock because of the MMPA's rigorous SAR
procedural requirements, which includes peer review by a statutorily
established Scientific Review Group. Since publication of the proposed
rule, NMFS has released the draft 2023 Stock Assessment Report
indicating the North Atlantic right whale population abundance is
estimated as 340 individuals based on sighting data through December
31, 2021 (88 FR 5495, January 29, 2024). NMFS has used the most recent
best available scientific information in the analysis of this final
rule. This new estimate, which is based on the analysis from Pace et
al. (2017) and subsequent refinements found in Pace (2021), provides
the best available, and in this case most recent, estimate, including
improvements to NMFS' right whale abundance model. NMFS notes this
estimate aligns with the 2022 North Atlantic right whale Report Card
(Pettis et al., 2022) estimate (also 340) based on sighting data
through August 2022 but, as described above, that the SARs are peer
reviewed by other scientific review groups prior to being finalized and
published and that the Report Card does not undertake this process.
Based on this, NMFS has considered all relevant information regarding
North Atlantic right whales, including the information cited by the
commenters. However, NMFS has relied on the draft 2023 SAR in this
final rule as it reflects the best available scientific information.
We note that this change in abundance estimate does not change the
estimated take of North Atlantic right whales or authorized take
numbers, nor affect our ability to make the required findings under the
MMPA for US Wind's construction activities.
While NMFS does not require applicants to utilize specific models
for the purposes of estimating take incidental to offshore wind
construction activities, we evaluate the models used to support take
estimates to ensure that they are methodologically sound and
incorporate the best available science. NMFS does require use of the
Roberts et al. (2016, 2023) density data and SARs abundance estimates
for all species, both of which represent the best
[[Page 84680]]
available science regarding marine mammal occurrence.
Mitigation
Comment 3: Multiple commenters recommend strengthening mitigation
measures for endangered species to minimize take by Level A harassment,
specifically indicating that shutdown zones required by the proposed
rule for fin and sei whales should be expanded to encompass the
distance to the Level A harassment thresholds. One commenter stated
that, legally, no take of endangered species by Level A harassment
should be allowed.
Response: NMFS agrees with the commenters that take of endangered
species, such as fin and sei whales, by Level A harassment should be
minimized. As such, the shutdown zones for fin and sei whales encompass
the modeled maximum R95percent distance to the Level A
harassment threshold from the pile driving location, as described in
the Mitigation section of this final rule. NMFS disagrees that
additional or modified mitigation measures are necessary to affect the
least practicable adverse impact on marine mammal species or stocks,
including those listed under the ESA. This rule allows a limited number
of Level A harassment takes to be authorized for two ESA-listed species
(fin whale and sei whale) incidental to foundation impact pile driving
(table 6). We note these take estimates did not consider mitigation
measures other than seasonal restrictions and 10 dB of sound
attenuation. Some mitigation measures in the proposed rule and this
final rule are centered around North Atlantic right whales because of
the species status and general fitness of individuals.
If clearance and shutdown zones were increased for fin and sei
whales, it would likely further lengthen construction time frames,
prolonging the time periods over which marine mammals may be exposed to
construction-related stressors (as well as creating impracticable
operational scenarios for the applicant). Southall et al. (2021)
modeled multiple scenarios with different total construction season
lengths and the results suggest that generally shorter construction
periods are associated with lower risk, which aligns with the concept
that more days of noise exposure and disturbance are associated with
greater impacts. Accordingly, NMFS has determined that the current
clearance and shutdown zones, together with other mitigation measures,
affect the least practicable adverse impact on marine mammals. Lastly,
regarding the comment that no Level A harassment of ESA-listed species
should be authorized--the MMPA mandates that NMFS shall authorize the
take of marine mammals, provided the required findings are made. As
required, NMFS has determined that the Level A and Level B harassment
allowed under this rule will have a negligible impact on all marine
mammal species and stocks and that the required measures affect the
least practicable adverse impact on marine mammal species or stocks.
Comment 4: A commenter suggests that it should be clearly stated in
the proposed rule that US Wind should be responsible for prompt
veterinary care, rehabilitation, and/or handling of any mortally
wounded marine mammals incidentally taken during the proposed
activities.
Response: No serious injury or mortality is anticipated or
authorized for US Wind's planned activities. In the event of sighting
any injured marine mammals, US Wind would be required to follow
reporting measures as described in the Reporting section and
217.345(f)(15)(iv), which include contacting the regional stranding
hotline. Further, it would not be appropriate to require US Wind to be
responsible for veterinary care, rehabilitation, and/or handling of any
marine mammal injury or stranding cases.
The best available science indicates that the anticipated impacts
from the specified activities potentially include avoidance, cessation
of foraging or communication, TTS and PTS, stress, masking, etc. (as
described in the Effects of the Specified Activities on Marine Mammals
and their Habitat section in the proposed rule). NMFS emphasizes that
there is no evidence that noise resulting from offshore wind
development-related specified activities would cause marine mammal
strandings, and there is no evidence linking recent large whale
mortalities and currently ongoing offshore wind activities. This point
has been well supported by other agencies, including BOEM and the
Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring
2023). If the best available science indicates the takings allowed
under these regulations may be having more than a negligible impact,
NMFS must suspend or withdraw the LOA after notice and opportunity for
public comment.
If a marine mammal appears to be injured or strands nearby during
construction activities, the Marine Mammal Health and Stranding
Response Program (MMHSRP), established by the MMPA, would be
responsible for mobilizing a response, if and where appropriate. This
program coordinates emergency responses to sick, injured, distressed,
or dead seals, sea lions, dolphins, porpoises, and whales. The MMHSRP
works with volunteer stranding and entanglement networks as well as
local, tribal, state, and federal government agencies to coordinate and
conduct emergency responses to stranded or entangled marine mammals.
The networks also respond, when safe and feasible, to document and
recover carcasses. It does not and cannot respond to every stranded
marine mammal, and it is not responsible for disposing of carcasses.
The type of examination conducted varies and depends on availability of
resources, location, carcass accessibility, and the decomposition
state. A necropsy report, when written, includes data which are
compiled over several weeks to months and then analyzed for a possible
cause of death determination and findings. National and Regional
summaries of stranding statistics are available at: https://www.fisheries.noaa.gov/resource/publication-database/marine-mammal-health-and-stranding-response-program-reports. Any strandings or marine
mammals in need of care that occur in the vicinity of the Project Area
during the specified activities would be the responsibility of the
local stranding and/or entanglement network authorized by the MMHSRP.
Comment 5: The DNREC recommends extending the seasonal restriction
on impact pile driving to November 1 through April 30, a time period
reflecting highest activity levels of North Atlantic right whales, to
reduce risk to North Atlantic right whales.
Response: NMFS has restricted foundation installation pile driving
from December through April, a time period which represents the times
of year when North Atlantic right whales are most likely to be in the
project area. However, we recognize that the density of North Atlantic
right whales begins to elevate in November, as shown by Roberts et al.
(2023). US Wind's planned pile driving activity schedule does not
include pile driving in November. However, a limited amount of pile
driving in November may occur if the Project experiences significant
delays. Should pile driving in November be necessary, US Wind has
agreed to restrict pile driving to the maximum extent practicable. In
any time of year when foundation installation is occurring, a visual
sighting of a North Atlantic right whale by foundation installation
PSOs or an acoustic detection within a 10 km PAM monitoring zone
triggers a delay in pile driving commencement or shutdown. These
mitigation measures
[[Page 84681]]
are designed to reduce takes of North Atlantic right whales to the
maximum extent possible.
NMFS neither anticipates nor authorizes take of North Atlantic
right whales by Level A harassment (PTS) from this activity. While NMFS
is authorizing a total of 10 takes by Level B harassment of North
Atlantic right whales incidental to any Project activities over the 5-
year effective period of this rulemaking, the required mitigation will
affect the least practicable adverse impact on the species from these
activities. Specifically, the largest modeled Level B harassment zone
size (5.25 km) is for impact pile driving of the 11-m monopiles,
however the clearance and shutdown zone for North Atlantic right whales
for impact pile driving is any distance. Any Level B harassment that is
not avoided is not expected to impact important feeding or other
behaviors that may occur in the Project Area in a manner that would
pose energetic or reproductive risks for any individuals. NMFS also
notes that North Atlantic right whale presence, while not completely
absent, decreases significantly during summer months as compared to
winter when the majority of foundation installation would occur. For
these reasons, NMFS finds that expanded temporal restrictions are not
warranted.
Comment 6: DNREC suggests that NMFS should require US Wind to
maintain the 500-meter separation distance for North Atlantic right
whales for all in-water construction activities, including activities
for which take is not requested. The commenters further note that
increased noise levels may increase stress in North Atlantic right
whales, and the commenters, as well as the Caesar Rodney Institute,
recommend that NMFS should not approve any offshore wind activities
that may further impact North Atlantic right whales.
Response: NMFS disagrees with the commenter's suggestion for
requiring a 500-m separation distance for North Atlantic right whales
for all in-water construction activities. The required vessel
separation distance from North Atlantic right whales during vessel
transit and HRG surveys is 500 m, and the North Atlantic right whale
clearance and shutdown zones are ``any distance'' for impact pile
driving activities, exceeding the Level B harassment zone of 5.25 km
and further reducing the likelihood of harassment for North Atlantic
right whales in the area. As noted by the commenter, NMFS will require
US Wind to cease activities in response to any marine mammal on a path
toward or that comes within 10 m of in-water construction equipment
involving heavy machinery other than pile driving (e.g., trenching,
cable laying, etc.). These non-pile driving in-water construction
operations are relatively low impact (take is not anticipated or
authorized) and the goal of the 10 m separation distance is to prevent
contact between marine mammals and heavy construction equipment, rather
than to limit exposure to noise. NMFS has determined that an increase
in the shutdown distance for these in-water construction operations
involving heavy equipment and not anticipated to result in incidental
take is not necessary to affect the least practicable adverse impact.
The commenters' recommendation for NMFS to not approve offshore
wind activities that may impact North Atlantic right whales is outside
the scope of this final rule as NMFS does not approve offshore wind
activities; NMFS only authorizes take of marine mammals incidental to
these activities. NMFS is required to authorize the requested
incidental take if it finds the total incidental take of small numbers
of marine mammals by U.S. citizens ``while engaging in that (specified)
activity'' within a specified geographical region during the 5-year
period (or less) will have a negligible impact on such species or stock
and, where applicable, will not have an unmitigable adverse impact on
the availability of such species or stock for subsistence uses (16
U.S.C. 1371(a)(5)(A)). As described in the proposed rule and this final
rule, NMFS has included requirements for mitigation measures that
effect the least practicable adverse impact on all marine mammal
species or stocks, including North Atlantic right whales, and their
habitat, as required under the MMPA (16 U.S.C. 1371(a)(5)(A)(i)(II).
Comment 7: Commenters note that there is a higher potential of
vessel strikes as whales may respond to noise harassment by leaving or
avoiding the Lease Area and moving into high traffic shipping lanes.
The commenters further note that avoidance of the Project Area may
increase stress and confusion for whales, resulting in an increased
potential for vessel strikes and entanglement.
Response: NMFS disagrees that there is necessarily a higher
potential for vessel strikes specifically due to whales leaving the
area to avoid noise from project activities. NMFS analyzed the
potential for vessel strike in the proposed rule. While acknowledging
that whales may temporarily avoid the area where the specified
activities occur and that elevated stress levels is a potential
response to noise exposure, NMFS does not anticipate, based on the best
available science, that whales will abandon their habitat, be displaced
in a manner that would specifically result in a higher risk of vessel
strike, or become confused in a manner that would specifically result
in a higher risk of vessel strike. The commenter does not provide
evidence and no evidence identified by NMFS has found that this would
be a reasonably anticipated outcome of the specified activity. The
primary activity that is anticipated to result in temporary avoidance
of the otherwise used habitat is foundation installation impact pile
driving. Further, not only would this activity be limited to times of
year when North Atlantic right whale presence is low, pile driving
would be intermittent, and pile driving would only occur for a limited
time over the course of three years, with PSOs monitoring both visual
and acoustic cues. Any sighting of a North Atlantic right whale within
any distance from pile driving activities would immediately halt such
activity until the North Atlantic right whale left the area of their
own volition.
Comment 8: DNREC indicates proper site condition identification
should be conducted to minimize the need for US Wind to waive the
shutdown requirement for pile refusal or pile instability purposes.
DNREC further notes that HRG micro-siting surveys should be used to
identify any seabed debris, unexploded ordnances, or other substrate
conditions that could negatively impact pile driving operations.
Response: The need to waive the shutdown requirement due to pile
refusal is expected to be low. However, regardless, additional
surveying to assess the likelihood of pile refusal in advance would not
change the need to waive the shutdown if necessary for human safety or
to avoid equipment damage. Regarding the detection of unexploded
ordnance, US Wind plans to conduct HRG micrositing surveys to identify
potential UXOs for avoidance of Project activities. US Wind has
provided the information necessary for NMFS to conduct its analysis and
make the necessary determinations, and additional survey requirements
are not warranted.
Monitoring, Reporting, and Adaptive Management
Comment 9: The Commission recommends that NMFS ensure that the
mitigation, monitoring, and reporting requirements for the construction
of wind energy facilities are sufficiently detailed from the start and
specified in the proposed rule so that these measures
[[Page 84682]]
are available for public comment. The Commission indicates that by not
requiring US Wind to include mitigation and monitoring plans for the
specified activities as part of the proposed rule, NMFS is not able to
assess whether US Wind would be able to successfully implement
mitigation measures adequate to effect the least practicable adverse
impact on marine mammal species and the transparency of the public
review process is compromised. The Commission suggests that US Wind
submit the SFV plan, foundation pile driving plan, and PAM plan to NMFS
for approval in advance of promulgating the final rule, and NMFS should
post these plans for public comment. In particular, the Commission
indicates that NMFS include the number of platforms that would be
required to monitor for marine mammals during foundation installation.
Response: Due to other concurrent permitting processes and
acknowledging the need for flexibility and project-specific
implementation, NMFS disagrees these plans must be submitted prior to
promulgating the final rule. The purpose of the Plans is for the
developer to provide details to NMFS on how they would satisfy the
criteria identified in the rule. These criteria are available for
public review and comment.
In regards to the Commission's recommendation to include a
requirement for the number of monitoring platforms during foundation
installation, NMFS has added a requirement to the final rule at Sec.
217.345 Monitoring and Reporting Requirements for a minimum of 3
monitoring platforms during foundation installation. US Wind will be
required to employ a minimum of 3 active PSOs monitoring from the
foundation installation vessel as well as a minimum of 3 active PSOs
monitoring from PSO vessels. US Wind must employ at least two PSO
vessels for monitoring during foundation installation.
Comment 10: A commenter recommends that the monitoring area should
be expanded beyond the 125 square mile (80,000 acres) Maryland Wind
Energy Area (MDWEA) to ensure that project activities can be halted in
time for animals to pass through the area unharmed. The commenter
further notes that the monitoring area should be expanded before any
decisions are made.
Response: NMFS disagrees with the commenter that the planned
monitoring area should be expanded beyond the boundaries of the MDWEA.
As described in the proposed rule and this final rule, NMFS is
requiring that US Wind employ both visual and PAM methods for
monitoring, as both approaches aid and complement each other (Van
Parijs et al., 2021). The use of PAM will augment visual detections for
foundation pile driving, especially for activities with the largest
zones, to expand observer coverage of the area. NMFS is requiring the
use of PAM to monitor 10 km zones around the piles and that the systems
be capable of detecting marine mammals during pile driving within this
zone. In addition, NMFS is requiring US Wind to establish species-
specific clearance and shutdown zones during impact pile driving and
HRG surveys. The purpose of clearance and shutdown zones are to
minimize and prevent potential instances of auditory injury and more
severe behavioral disturbances by delaying the commencement of activity
or halting the activity. NMFS has determined that the planned suite of
mitigation and monitoring measures described in the proposed rule and
this final rule are sufficient to effect the least practicable adverse
impact on marine mammal species in the project area.
Effects Assessment
Comment 11: Multiple commenters note that the LOA should not be
issued until the cumulative effects of all proposed projects are fully
considered. Commenters further indicate that the MMPA rulemaking does
not assess cumulative impacts on the affected marine mammal species,
that the ITA does not align with NEPA, and that the NEPA process is
incomplete. Commenters further indicate that the ITA should not be
issued until the EIS is complete.
Response: NMFS is required to authorize the requested incidental
take if it finds the total incidental take of small numbers of marine
mammals by U.S. citizens ``while engaging in that (specified)
activity'' within a specified geographical region will have a
negligible impact on such species or stock and, where applicable, will
not have an unmitigable adverse impact on the availability of such
species or stock for subsistence uses (16 U.S.C. 1371(a)(5)(A)).
Negligible impact is defined as ``an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effect on annual rates of recruitment or survival'' (50 CFR 216.103).
Consistent with the preamble of NMFS' implementing regulations (54 FR
40338, September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are factored into the baseline, which is used
in the negligible impact analysis. Here, NMFS has factored into its
negligible impact analysis the impacts of other past and ongoing
anthropogenic activities via their impacts on the baseline (e.g., as
reflected in the density/distribution and status of the species,
population size and growth rate, and other relevant stressors).
The preamble of NMFS' implementing regulations also addresses
cumulative effects from future, unrelated activities. Such effects are
not considered in making the negligible impact determination under MMPA
section 101(a)(5). NMFS considers: (1) cumulative effects that are
reasonably foreseeable when preparing a National Environmental Policy
Act (NEPA) analysis; and (2) reasonably foreseeable cumulative effects
under section 7 of the ESA for ESA-listed species, as appropriate.
Accordingly, NMFS has reviewed BOEM's FEIS as part of its inter-agency
coordination and determined that the analysis in the FEIS for the
Maryland Wind Offshore Wind Project is sufficient to cover the scope of
the marine mammal incidental take authorization described in this final
rule.
This FEIS addresses cumulative impacts related to the Project and
substantially similar activities in similar locations. Cumulative
impacts regarding the promulgation of regulations and issuance of an
LOA for activities planned by US Wind have been adequately addressed in
the adopted EIS that supports NMFS' determination that this action has
been appropriately analyzed under NEPA. Separately, the cumulative
effects of the Project on ESA-listed species, including the North
Atlantic right whale, were analyzed under section 7 of the ESA when
NMFS engaged in formal inter-agency consultation with the NOAA Greater
Atlantic Regional Field Office (GARFO) and initiated consultation on
December 5, 2023. The Biological Opinion (BiOp) for the Project
determined that NMFS' promulgation of regulations and issuance of an
LOA for activities, individually and cumulatively, are likely to
adversely affect, but not jeopardize, listed marine mammals.
The FEIS was finalized by BOEM on August 2, 2024 and adopted by
NMFS on September 4, 2024, thus completing the NEPA process.
Comment 12: Multiple commenters recommend that NMFS consider the
impacts of structure presence and operations, including those from
operational noise on marine mammals as well as ocean mixing and
vibrations on phytoplankton, zooplankton, and the food chain. A
commenter noted that
[[Page 84683]]
analysis of incidental take during wind turbine operation is
insufficient. Commenters indicate that NMFS should consider the impacts
of operational noise on marine mammals since construction and operation
will proceed simultaneously, and actual take from construction may be
masked by any take related to operational noise. Commenters further
suggest the LOA should include a full analysis of impacts of
operational noise and recommend that offshore wind energy projects be
pushed back a minimum of 20 kilometers (km) from areas used by North
Atlantic right whales for feeding and other life history activities.
Response: In the proposed rule, NMFS considered the impacts to
marine mammals from operational noise and to their habitat, including
prey, based on the best available science. In this final rule, NMFS has
supplemented that analysis with new scientific information that has
become available regarding these issues since publishing the proposed
rule. This new information does not change our findings. The commenters
did not provide scientific evidence that suggests the analysis within
the proposed rule was unsupported. NMFS has fully evaluated the
potential impacts of operational noise from issuing this final rule
authorizing take of marine mammals over the five year effective period
of this rulemaking and the potential impacts from long-term operations
via the BiOp. We refer the reader to the Effects of the Specified
Activities on Marine Mammals and Their Habitat section and the
Negligible Impact Determination section in the proposed and this final
rule for further details. In addition, US Wind will be required to use
sound field verification (SFV) for measuring operational noise as wind
turbines become operational to further evaluate the impacts of
operational noise on marine mammals and their habitat.
In regards to moving the Project a minimum of 20 km away from North
Atlantic right whale habitat, NMFS disagrees with this recommendation.
As noted in the proposed rule, the Project Area overlaps with a North
Atlantic right whale biologically important area (BIA) for migration
but not with any feeding, breeding, or calving areas. The area over
which North Atlantic right whales may be harassed is relatively small
compared to the width of the migratory corridor. The width of the
migratory corridor in this area is approximately 163.8 km while the
width of the Lease Area, at the longest point, is approximately 33.1
km. North Atlantic right whales may be displaced from their normal path
and preferred habitat in the immediate activity area (primarily from
pile driving activities), however, we do not anticipate displacement to
be of high magnitude (e.g., beyond a few kilometers); thereby, any
associated bio-energetic expenditure is anticipated to be small.
Comment 13: Several commenters claimed the request for an ITA
should be denied alleging the specified activities kill as well as harm
marine mammals and some commenters suggested that the ongoing whale
UMEs, including the whale deaths occurring in the winter of 2022-2023,
are linked with ongoing offshore wind activities. One commenter further
claimed that although ``the recent deaths and strandings of whales and
other marine mammals along the eastern seaboard have not been proven to
be the direct result of offshore wind activities, these activities have
not been disproven as a contributing factor.''
Response: NMFS disagrees that the ITA should be denied, as we have
made the necessary findings required by the MMPA for issuance and these
findings are supported by the necessary analyses and best available
science. Neither the proposed rule nor this final rule allow mortality
or serious injury of marine mammals to be authorized. The best
available science indicates that the anticipated impacts from the
specified activities potentially include avoidance, cessation of
foraging or communication, TTS and PTS, stress, masking, etc. (as
described in the Effects of the Specified Activities on Marine Mammals
and their Habitat section in the proposed rule). NMFS emphasizes that
there is no evidence that noise resulting from offshore wind
development-related specified activities would cause marine mammal
strandings, and there is no evidence linking recent large whale
mortalities and currently ongoing offshore wind activities. The
commenters offer no such evidence or other scientific information to
substantiate their claim. This point has been well supported by other
agencies, including BOEM and the Marine Mammal Commission (Marine
Mammal Commission Newsletter, Spring 2023). Additionally, a recent
paper by Thorne and Wiley (2024) reviewed spatiotemporal patterns of
strandings, mortalities, and serious injuries of humpback whales along
the US East Coast from 2016-2022. Humpback whales were chosen as a case
study for this analysis as they are currently undergoing a UME and
strand more often than other large whale species. Thorne and Wiley
(2024) found vessel strikes to be a major driver in the increase of
humpback whale strandings, mortalities, and serious injury along the
east coast. The potential for vessel strike increased during the study
period due to increased vessel traffic in new foraging areas, the
increased presence of juvenile humpback whales, and humpback whale
foraging in shallow areas that overlap with vessel traffic. Based upon
the spatiotemporal analysis, no evidence was found that offshore wind
development played a role in the increased number of strandings over
time. Future studies should focus on gaining a greater understanding of
spatial and seasonal habitat use patterns of large whales,
spatiotemporal changes in prey abundance and distribution, and how
habitat use and foraging behavior affect the risk of vessel strike.
While several species of delphinids and beaked whales have also
stranded off New Jersey since 2011 (per data provided from the National
Marine Stranding Network), there is no evidence that the acoustic
sources used during HRG surveys contributed to these events. NMFS will
continue to gather data to help us determine the cause of death for
these stranded whales.
There are ongoing UMEs for humpback whales, North Atlantic right
whales, and minke whales along the Atlantic coast from Maine to
Florida, which includes animals stranded since 2016 and 2017,
respectively, and we provide further information on these UMEs in the
species specific subsections in the Description of Marine Mammals in
the Specific Geographic Region section of this final rule. Vessel
strikes and entanglement in fishing gear are the greatest human threats
to large whales. Partial or full necropsy examinations were conducted
on approximately half of the humpback whales that recently stranded
along the U.S. east coast. Necropsies were not conducted on other
carcasses because they were too decomposed, not brought to land, or
stranded on protected lands (e.g., national and state parks) with
limited or no access. Of the humpback whales examined (roughly 90),
about 40 percent had evidence of human interaction, either ship strike
or entanglement. Based upon necropsies conducted thus far, the
preliminary cause of mortality, serious injury, and morbidity in
stranded North Atlantic right whales is entanglement or vessel strike.
Full or partial necropsies have been conducted on approximately 60
percent of the stranded minke whales. Preliminary findings have shown
evidence of human interaction or infectious disease. The best available
science indicates that only a limited
[[Page 84684]]
amount of Level A harassment (PTS) or Level B harassment (disruption of
behavioral patterns (e.g., avoidance)), may occur as a result of US
Wind's specified activities. NMFS emphasizes that there is no credible
scientific evidence available suggesting that mortality and/or serious
injury is a potential outcome of the planned activities. More
information about interactions between offshore wind energy projects
and whales can be found at https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales.
Other
Comment 14: Multiple commenters note that more data are needed on
the impact of wind turbine construction and operation on marine
mammals, and that projects should be paused until these data are
available. Commenters also recommend collecting sound level
measurements on similar turbines, such as Vineyard Wind 1 Offshore Wind
Farm, to inform the proposed rulemaking and LOA.
Response: The MMPA requires NMFS to evaluate the effects of the
specified activities in consideration of the best scientific evidence
available and to issue the requested incidental take authorization if
it makes the necessary findings. The MMPA does not allow NMFS to delay
issuance of the requested authorization on the presumption that new
information or new regulations will become available in the future. If
new information becomes available in the future, NMFS may modify the
mitigation and monitoring measures in an LOA issued under these
regulations through the adaptive management provisions, as described in
Sec. 217.347c(1) of this final rule. Furthermore, NMFS is required to
withdraw or suspend an LOA if, after notice and public comment unless
an emergency exists, it determines the authorized incidental take may
be having more than a negligible impact on a species or stock. NMFS has
duly considered the best scientific evidence available in its issuance
of the final rule and made the required findings to issue this rule.
NMFS also notes that, as proposed, this final rule requires that no
unmitigated piles can be installed and that SFV is required for piles
to ensure that measured sound levels do not exceed those modeled
assuming 10 dB of attenuation. NMFS acknowledges the importance of
transparency in the reporting process and plans to make all final
annual SFV reports available on our website. As mentioned above, since
the publication of the proposed rule NMFS has received SFV reports from
Vineyard Wind 1 that, although challenging, allow for comparison
between modeled and measured distances to the Level A harassment and
Level B harassment thresholds. These results are available on our
website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-llc-construction-vineyard-wind-offshore-wind.
Comment 15: A commenter states that NMFS' review of the ITA
application was incomplete and the ITA should be denied. Another
commenter further states that approval of the ITA would be a
``dereliction of duty'' and does not align with NOAA's mission.
Response: NMFS disagrees with the commenter that the ITA should be
denied. NOAA's stewardship mission includes our responsibility to
uphold and implement the provisions of multiple federal statutes
designed to protect environmental resources, including the MMPA. The
MMPA allows for the incidental take of marine mammals provided the
necessary findings are made. As described in this Federal Register
notice, NMFS has conducted the necessary analysis to support our
negligible impact finding. In addition, we have required mitigation to
ensure the least practicable adverse impact on marine mammals and their
habitat. We have also included monitoring and reporting requirements to
monitor compliance and impacts to marine mammals.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
on January 4, 2024 (89 FR 504), NMFS has made changes, where
appropriate, that are reflected in the preamble text of this final rule
and the final regulatory text. These changes are briefly identified
below, with more information included in the indicated sections of the
preamble to this final rule. In addition, reporting requirements on
marine mammals have been updated in accordance with Greater Atlantic
Regional Fisheries Office (GARFO), Southeast Regional Office (SERO),
and the Northeast Fisheries Science Center (NEFSC) most recent
guidance.
Changes to Information Provided in the Preamble
The information found in the preamble of the proposed rule was
based on the best available information at the time of publication.
Since publication of the proposed rule, new information has become
available, which has been incorporated into this final rule as
discussed below.
The following changes are reflected in the Description of Marine
Mammals in the Specific Geographic Region section of the preamble to
this final rule:
Given the release of NMFS' draft 2023 Stock Assessment Report (SAR)
(89 FR 5495, January 29, 2024), we have updated the population estimate
for the North Atlantic right whale (Eubalaena glacialis) from 368 to
340 and the total mortality/serious injury (M/SI) amount from 8.1 to
27.2. This increase is due to the inclusion of undetected M/SI (whereas
8.1 accounted only for detected M/SI). As described in the draft 2023
SARs (89 FR 5495, January 29, 2024), the use of the refined methods of
Pace et al. (2021), the estimated annual rate of total mortality of
adults and juveniles for the period 2016-2020 was 27.2, which is 3.4
times larger than the 8.1 total derived from reported mortality and
serious injury for the same period.
Given the availability of new information, we have made updates to
the UME summaries for North Atlantic right whales, humpback whales, and
minke whales.
The following change is reflected in the Potential Effects of
Specified Activities on Marine Mammals and Their Habitat section of the
preamble to this final rule:
We have added information relating to the broken blade at the
Vineyard Wind 1 Lease Area, the rarity of this event occurring, and
that no take was requested, anticipated, proposed, or authorized
incidental to blade failure so this is not discussed further in this
document.
The following changes are reflected in the Estimated Take,
Mitigation, and Monitoring and Reporting sections of the preamble to
this final rule:
This final rule requires US Wind to employ a minimum of three
monitoring platforms, including the pile driving vessel platform and a
minimum of two PSO support vessels. Each platform must employ a minimum
of three active on-duty PSOs.
We have also added a requirement for US Wind to cease pile driving
activities if there is a live cetacean stranding within 50 km of pile
driving activities and the NMFS Marine Mammal Stranding Network is
attempting to herd or return animals to the water.
The requirement for PAM operators to receive conditional or
unconditional approval was removed as the PAM operators' experience is
relevant to all PAM operators and the conditional/unconditional
approval framework does not apply.
[[Page 84685]]
The educational requirement for PSOs and PAM operators to have
received a bachelor's degree from ``an accredited college or
university'' has been removed. PSOs and PAM operators are still
required to have received a bachelor's degree, although experience can
still be substituted for education.
The requirement for submission of PAM detection data to the NEFSC
has been updated due to a change in NEFSC reporting requirements. US
Wind must submit full PAM detection data within 90 days after pile
driving is complete and every 90-calendar days for transit lane PAM.
Changes in the Regulatory Text
We have made the following changes to the regulatory text, which
are reflected, as appropriate, throughout this final rule and
described, as appropriate, in the preamble.
We have removed duplicative measures and, for clarity and
consistency, we revised paragraph Sec. 217.340(b) of the regulatory
text to fully describe the specified geographical region.
We have modified a proposed measure that set hammer energy
guidelines during foundation and MET Tower installation to allow
greater flexibility in response to the circumstances of the particular
installation. We have retained the measures related to actions
necessary should SFV identify that distances to NMFS harassment
thresholds, regardless of hammer energies, are longer than anticipated.
For consistency, NMFS has included conditions in Sec. 217.344(a)
to clarify mitigation requirements discussed in the preamble. The
conditions for commencing pile driving and HRG survey activities are
clarified.
NMFS has added additional clarification on the authority of PSOs
and PAM operators in Sec. 217.344(a) to ensure compliance and proper
implementation of the regulations.
NMFS has clarified language in Sec. 217.344(b) to specify that
this measure applies to vessels traveling in the specified geographical
region and when Project vessels may deviate from vessel speed avoidance
measures. NMFS has also defined the term ``emergency'' for clarity.
In Sec. 217.344(b)(1), (11), and (12), Sec. 217.344(c)(10), and
(15), Sec. 217.344(d)(2), Sec. 217.345(a)(2), and (4), Sec.
217.345(b)(2), (4), (8), and (9), NMFS has made minor changes to
formatting and wording to more clearly state the requirements.
NMFS has added a requirement for all vessel operators to reduce
speed to 10 knots (kn) or less when any large whale (other than a North
Atlantic right whale, for which the requirement was already included)
or large assemblages of cetaceans are observed within 500 m (0.31 mi)
of a transiting vessel in Sec. 217.344(b).
To align with the BiOp, NMFS has modified thorough SFV requirements
(Sec. 217.344) and added a requirement for US Wind to conduct
abbreviated SFV monitoring during pile driving activities in Sec.
217.344(c).
NMFS has updated the requirement for US Wind to conduct SFV
measurements during turbine operations instead of upon the commencement
of turbine operations in Sec. 217.344(c)(16).
In Sec. 217.345(a), NMFS has updated the requirements for PSO and
PAM operator qualifications. The requirement for PAM operators to
receive conditional or unconditional approval was removed because all
PAM operators are subject to a list of qualifications presented in the
proposed rule and do not need to obtain conditional or unconditional
approval. In addition, the educational requirement for PSOs and PAM
operators to receive their bachelor's degrees from an accredited
college or university has been removed, although PSOs and PAM operators
are still required to have received a bachelor's degree, although
experience can still be substituted for education.
In Sec. 217.345(b)(7), NMFS has added a requirement for visual
observations of marine mammals by pile driving Project personnel to be
reported to on-duty PSOs and vessel captains to increase situational
awareness.
In response to comments and to improve detection capabilities, NMFS
has added a requirement for a minimum of 3 PSOs to be on-duty on each
observation platform during impact pile driving and that, in addition
to PSOs on the pile driving vessel, PSOs must also be observing for
marine mammals on two dedicated PSO vessels.
In Sec. 271.345(f)(6), NMFS has updated the requirement for
reporting PAM detection data due to a change in NEFSC reporting
requirements. US Wind must submit full PAM detection data within 90
days after foundation installation ceases.
Description of Marine Mammals in the Area of Specified Activities
As noted in the Changes from the Proposed to Final Rule section,
since publication of the proposed rule (89 FR 504, January 4, 2024),
updates have been made to the abundance estimate for North Atlantic
right whales and the UME summaries of multiple species. These changes
are described in detail in the sections below; otherwise, the
Description of Marine Mammals in the Specific Geographic Region section
has not changed since the publication of the proposed rule in the
Federal Register (89 FR 504, January 4, 2024).
Thirty-eight marine mammal species under NMFS' jurisdiction have
geographic ranges within the western North Atlantic OCS (Hayes et al.,
2023). Sections 3 and 4 of US Wind's application summarize available
information regarding status and trends, distribution and habitat
preferences, and behavior and life history of the potentially affected
species (US Wind, 2023). Additional information regarding population
trends and threats may be found in NMFS' SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS'
website (https://www.fisheries.noaa.gov/find-species).
Table 3 lists all species or stocks for which take is authorized
under this final rule and summarizes information related to the species
or stock, including regulatory status under the MMPA and ESA and
potential biological removal (PBR), where known. PBR is defined as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (as described in
NMFS' SARs; (16 U.S.C. 1362(20)). While no mortality is anticipated or
authorized here, PBR and annual serious injury and mortality from
anthropogenic sources are included here as gross indicators of the
status of the species and other threats. Marine mammal abundance
estimates presented in this document represent the total number of
individuals that make up a given stock or the total number estimated
within a particular study or survey area. NMFS' stock abundance
estimates for most species represent the total estimate of individuals
within the geographic area, if known, that comprises that stock. For
some species, this geographic area may extend beyond U.S. waters. All
managed stocks in this region are assessed in NMFS' U.S. Atlantic and
Gulf of Mexico SARs. All values presented in table 3 are the most
recent available data at the time of publication which can be found in
NMFS' 2023 draft SARs (89 FR 5495, January 29, 2024), available online
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.
[[Page 84686]]
Table 3--Marine Mammal Species That May Occur in the Project Area and Be Taken, by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name \1\ Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western Atlantic....... E, D, Y 340 (0; 337; 2021) \5\ 0.7 \5\ 27.2
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24, 5,573, 11 2.05
2021).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02, 3098, 6.2 0.6
2021).
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31, 17,002, 170 9.4
acutorostrata. Coastal. 2021).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, Y 1,396 (0, 1,380, 2016) 22 12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Killer whale \8\................ Orcinus orca........... Western North Atlantic. -, -, N UNK (UNK, UNK, 2016).. UNK 0
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3, 30,627, 306 5.7
2021).
Short-finned pilot whale........ Globicephala Western North Atlantic. -, -, Y 18,726 (0.33, 14,292, 143 218
macrorhynchus. 2021).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -, -, N 64,587 (0.24, 52,801, 507 28
Offshore. 2021) \6\.
Bottlenose dolphin.............. Tursiops truncatus..... Northern Migratory -, -, Y 6,639 (0.41, 4,759, 48 12.2-21.5
Coastal. 2016) \7\.
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 93,100 (0.56, 59,897, 1,452 414
2021).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 31,506 (0.28, 25,042, 250 0
2021).
Pantropical spotted dolphin..... Stenella attenuata..... Western North Atlantic. -, D, N 2,757 (0.50, 1,56, 19 0
2021).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 44,067 (0.19, 30,662, 307 18
2021).
Rough-toothed dolphin \8\....... Steno bredanensis...... Western North Atlantic. -, -, N unk (unk, unk, 2021).. undet 0
Striped dolphin \8\............. Stenella coeruleoalba.. Western North Atlantic. -, -, N 48,274 (0.29, 38,040, 529 0
2021).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 85,765 (0.53, 56,420, 649 145
Fundy. 2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
Gray seal \9\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,911 (0.20, 23,624, 1,512 4,570
2021).
Harp seal....................... Pagophilus Western North Atlantic. -, -, N 7.6M (UNK, 7.1M, 2019) 426,000 178,573
groenlandicus.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR, or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike).
\5\ In the proposed rule (89 FR 504, January 4, 2023), a population estimate of 368 was used which represented the best available science at the time of
publication. However, since the publication of the proposed rule, a new estimate (n=340) was released in NMFS' draft 2023 SARs and has been
incorporated into this final rule. The current draft SAR includes an estimated population (N best 340) based on sighting history through December 2021
(89 FR 5495, January 29, 2024). In October 2023, NMFS released a technical report identifying that the North Atlantic right whale population size
based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023); Total annual
average observed North Atlantic right whale mortality during the period 2017-2021 was 7.1 animals and annual average observed fishery mortality was
4.6 animals. Numbers presented in this table (27.2 total mortality and 17.6 fishery mortality) are 2016-2020 estimated annual means, accounting for
undetected mortality and serious injury.
\6\ As noted in the draft 2023 SAR (89 FR 5495, January 29, 2024), abundance estimates may include sightings of the coastal form.
\7\ There are two morphologically and genetically distinct forms of common bottlenose dolphin (Duffield et al., 1983; Mead and Potter, 1995; Rosel et
al., 2009) described as the coastal and offshore forms in the western North Atlantic (Hersh and Duffield, 1990; Mead and Potter, 1995; Curry and
Smith, 1997; Rosel et al., 2009). The two morphotypes are genetically distinct based upon both mitochondrial and nuclear markers (Hoelzel et al.,
1998; Rosel et al., 2009). The genetic and morphological differences recently led to the coastal form being described as a new species, Tursiops
erebennus (Costa et al., 2022; 89 FR 5495, January 29, 2024). Population estimates are based upon recent surveys in 2021.
\8\ US Wind did not request take of these species; however, their exposure analysis demonstrates there is potential for harassment. Although these
species are rare in the project area, NMFS would authorize a small amount of Level B harassment in the case of potential presence during pile driving.
\9\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 451,431. The annual M/SI value given is for the total stock.
Of the marine mammal species and/or stocks with geographic ranges
that include the western North Atlantic OCS (table 3-1 in US Wind
incidental take authorization (ITA) application), 19 are not expected
to be present or are considered rare or unexpected in the project area
based on sighting and distribution data; they are, therefore, not
discussed further beyond the explanation provided here. Specifically,
the following cetacean species are known to occur off of Maryland but
are not expected to occur in the project area due to the location of
preferred habitat outside the Lease Area and ECCs, based on the best
available information, and therefore US Wind did not request, and NMFS
is not authorizing take, of these species: Blue whale (Balaenoptera
musculus), Cuvier's beaked whale (Ziphius cavirostris), four species of
Mesoplodont beaked whales (Mesoplodon densitostris, M. europaeus, M.
mirus, and M. bidens), Atlantic white-sided dolphin (Lagenorhynchus
acutus), Clymene dolphin (Stenella clymene), dwarf sperm whale (Kogia
sima), false killer whale (Pseudorca crassidens), Fraser's dolphin
[[Page 84687]]
(Lagenodelphis hosei), melon-headed whale (Peponocephala electra),
northern bottlenose whale (Hyperoodon ampullatus), pygmy killer whale
(Feresa attenuata), pygmy sperm whale (Kogia breviceps), sperm whale
(Physeter macrocephalus), spinner dolphin (Stenella longirostris), and
white-beaked dolphin (Lagenorhynchus albirostris). Two species of
phocid pinnipeds are also uncommon in the project area, including: harp
seals (Pagophilus groenlandica) and hooded seals (Cystophora cristata).
However, harp seals are known to strand in coastal Maryland. Therefore,
the LOA, if issued, would authorize take of harp seals.
In addition to the species listed in table 2, the Florida manatee
(Trichechus manatus; a sub-species of the West Indian manatee) has been
previously documented as an occasional visitor to the Mid-Atlantic
region during summer months (U.S. Fish and Wildlife Service (USFWS),
2019). However, as manatees are managed solely under the jurisdiction
of the U.S. FWS and are considered rare or unexpected in the Project
Area, they are not considered or discussed further in this document.
A detailed description of the species likely to be affected by the
Project, including brief introductions to the species and relevant
stocks as well as available information regarding population trends and
threats, and information regarding local occurrence, were provided in
the proposed rule (89 FR 504, January 4, 2024). Other than adjustments
to population statistics (e.g., North Atlantic right whale population
abundance) and UME updates, we are not aware of any changes in the
status of the species and stocks listed in table 2; therefore, detailed
descriptions are not provided here. Please refer to the proposed rule
for these descriptions (89 FR 504, January 4, 2024). Please also refer
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for
generalized species accounts.
Since the publication of the proposed rule, the following updates
have occurred to the below species in regards to general information or
their active UMEs.
North Atlantic Right Whale
In January 2024, NMFS released its draft 2023 SARs, (89 FR 5495,
January 29, 2024) which updated the population estimate
(Nbest) of North Atlantic right whales to 340 individuals
(an increase from the final 2022 SARs (n=338); the annual M/SI value
dropped from the final 2022 SAR of 31.2 to 27.2 in the draft 2023 SAR.
Beginning in the 2022 SARs, the M/SI for North Atlantic right whale
included the addition of estimated undetected mortality and serious
injury, which had not been previously included in the SAR. The current
population estimate is equal to the North Atlantic Right Whale
Consortium's 2022 Annual Report Card, which identifies the population
estimate as 340 individuals (Pettis et al., 2023).
As described in the proposed rule, elevated North Atlantic right
whale mortalities have occurred since June 7, 2017, along the U.S. and
Canadian coast, with the leading category for the cause of death for
this UME determined to be ``human interaction,'' specifically from
entanglements or vessel strikes. Since publication of the proposed
rule, the number of animals considered part of the UME has increased.
As of September 3, 2024, there have been 40 confirmed mortalities
(dead, stranded, or floaters), 1 pending mortality, and 36 seriously
injured free-swimming whales for a total of 77 whales. The UME also
considers animals with sublethal injury or illness (called
``morbidity''; n=65) bringing the total number of whales in the UME to
142. More information about the North Atlantic right whale UME is
available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-north-atlantic-right-whale-unusual-mortality-event.
Humpback Whale
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. This event was
declared a UME in April 2017. Partial or full necropsy examinations
have been conducted on approximately half of the known cases. Since
publication of the proposed rule, the number of animals considered part
of the UME has increased to 227 total mortalities (as of September 3,
2024). More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast.
Since December 1, 2022, the number of humpback strandings along the
mid-Atlantic coast, from North Carolina to New York, has been elevated.
In some cases, the cause of death is not yet known; in others, vessel
strike has been deemed the cause of death. As the humpback whale
population has grown, they are seen more often in the Mid-Atlantic.
These whales may be following their prey (small fish) which were
reportedly close to shore in the 2022-2023 winter. Changing
distributions of prey impact larger marine species that depend on them,
and result in changing distribution of whales and other marine life.
These prey also attract fish that are targeted by recreational and
commercial fishermen, which increases the number of boats and amount of
fishing gear in these areas. This nearshore movement increases the
potential for anthropogenic interactions, particularly as the increased
presence of whales in areas traveled by boats of all sizes increases
the risk of vessel strikes.
Minke Whale
Since January 2017, a UME has been declared based on elevated minke
whale mortalities detected along the Atlantic coast from Maine through
South Carolina. As of September 3, 2024, a total of 174 minke whales
have stranded during this UME. Full or partial necropsy examinations
were conducted on more than 60 percent of the whales. Preliminary
findings have shown evidence of human interactions or infectious
disease in several of the whales, but these findings are not consistent
across all of the whales examined, so more research is needed. More
information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-minke-whale-unusual-mortality-event-along-atlantic-coast.
Phocid Seals
Since June 2022, elevated numbers of harbor seal and gray seal
mortalities have occurred across the southern and central coast of
Maine. This event was declared a UME in June 2022 and lasted through
July 2022. The UME Investigative Team reviewed necropsy,
histopathology, and diagnostic findings. They determined the UME was
attributed to spillover events of the highly pathogenic avian influenza
H5N1 virus from infected wild birds to harbor and gray seals. An
ongoing HPAI H5N1 global outbreak in domestic and wild birds and wild
mammals began in 2021. Live seals showed signs of respiratory and
neurological disease including nasal and ocular discharge, coughing,
unresponsiveness, and seizures. Eighteen percent of the stranded seals
(33 out of 180) were tested for avian influenza via polymerase-chain-
reaction. A subset of seals were positive for HPAI H5N1 with
preliminary findings confirmed by the U.S. Department of Agriculture's
National Veterinary Services Laboratories. Of the 33 seals tested
during the UME period 19 (58 percent) were positive for H5N1 (17 harbor
seals; 2 gray seals) and 14 (42 percent) tested negative. Twelve H5N1
positive seals had histopathology conducted; 11 of those seals had
lesions (primarily respiratory and/or
[[Page 84688]]
neurologic) suspected or consistent with avian influenza infection.
Sequencing of the H5N1 virus detected in seals suggests the seals were
infected from spillover events from infected wild birds to these seals.
While the UME was not occurring in the area of the Project, the
populations affected by the UME were the same as those potentially
affected by the Project. Information on this UME is available online
at: https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Subsequently, NMFS (2018)
described generalized hearing ranges for these marine mammal hearing
groups. Generalized hearing ranges were chosen based on the
approximately 65-dB threshold from the normalized composite audiograms,
with the exception for lower limits for low-frequency cetaceans where
the lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in table 4.
Table 4--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans............... 7 Hz to 35 kHz.
(baleen whales)............................
Mid-frequency (MF) cetaceans............... 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked whales,
bottlenose whales).
High-frequency (HF) cetaceans.............. 275 Hz to 160 kHz.
(true porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus cruciger &
L. australis).
Phocid pinnipeds (PW) (underwater)......... 50 Hz to 86 kHz.
(true seals)...............................
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65-dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
Exposure to underwater noise from the Project's specified
activities have the potential to result in Level A harassment or Level
B harassment of marine mammals in the specified geographic region, but
no serious injury or mortality. The proposed rule (89 FR 504, January
4, 2024) included a discussion of the effects of anthropogenic noise on
marine mammals and the potential effects of underwater noise from the
Project's specified activities on marine mammals and their habitat.
While some new literature regarding marine mammal distribution and
habitat use has been published since publication of the proposed rule
(e.g., BOEM et al., 2024; Holdman et al., 2023; Pirotta et al., 2024;
Roberts et al., 2024; Thorne and Wiley, 2024), there is no new
information that NMFS is aware of that changes the analysis in the
proposed rule. We provide a summary of these papers below.
The recently released BOEM and NOAA Fisheries North Atlantic Right
Whale Strategy (BOEM et al., 2024) identified actions related to
mitigation and decision-support tools, research and monitoring, and
collaboration, communication, and outreach to minimize risk and impacts
to North Atlantic right whales. The identified actions would also allow
for coordinated and efficient collaborations between Federal agencies
and partners, collection and application of the best available
scientific data, and implementation of effective mitigation measures.
The Strategy also describes potential actions for further development
as well.
Pirotta et al. (2024) incorporated data and analysis of North
Atlantic right whale length, compiled by the North Atlantic Right Whale
Consortium, to investigate whether the smaller mean asymptotic length
currently documented for North Atlantic right whales is associated with
lower reproductive output. North Atlantic right whale mean asymptotic
length (Stewart et al., 2021) and female calving probability (Pirotta
et al., 2023) have been in decline for decades. Pirotta et al. (2024)
expanded upon the conducted by Stewart et al. (2022) and quantified how
length contributes to calving probability, while taking into account
variation due to individual health of whales. The finding that smaller
mean asymptotic length contributes to lower calving probability for
North Atlantic right whales provides a greater understanding into
drivers for decreasing reproductive output for this species.
In 2022, the Duke University Marine Geospatial Ecology Laboratory
provided updated habitat-based marine mammal density models for the
U.S. Atlantic (Roberts et al., 2016; Roberts et al., 2023). The
proposed rule incorporated these density models into methodology for
estimating take from foundation installation and HRG surveys (89 FR
504, January 4, 2024). Recently, North Atlantic right whale density
model results were evaluated using independently collected passive
acoustic monitoring (PAM data) (Roberts et al., 2024). Positive
correlations between North Atlantic right whale densities and acoustic
detection rates indicated concurrence between visual and acoustic
observations of North Atlantic right whales. Results of this study also
further quantify the North Atlantic right whale distribution shifts
that occurred in 2010.
Moreover, new data also supports our inclusion of certain
mitigation measures in the proposed and this final rule. For
[[Page 84689]]
example, Crowe et al. (2023) discussed the use and importance of real-
time data for detecting North Atlantic right whales. The shift in North
Atlantic right whale habitat use motivated the integration of
additional ways to detect the presence of North Atlantic right whales
and passive acoustic detections of right whale vocalizations reported
in near real-time became an increasingly important tool to supplement
visual sightings. The proposed rule did include real-time and daily
awareness measures and sighting communication protocols, NMFS evaluated
these measures and added details for clarity or updated the reporting
mechanisms, such as in the case of sighting an injured North Atlantic
right whale. Davis et al. (2023) analyzed North Atlantic right whale
individual upcalls from 2 years of acoustic recordings in southern New
England which showed that North Atlantic right whales were detected at
least 1 day every week throughout both years, with highest North
Atlantic right whale presence from October to April. Within southern
New England (SNE), on average, 95 percent of the time North Atlantic
right whales persisted for 10 days, and recurred again within 11 days.
An evaluation of the time period over which it is most effective to
monitor prior to commencing pile driving activities showed that with 1
hour of pre-construction monitoring there was only 4 percent likelihood
of hearing a North Atlantic right whale, compared to 74 percent at 18
h. Therefore, monitoring for at least 24 hours prior to activity will
increase the likelihood of detecting an up-calling North Atlantic right
whale.
Thorne and Wiley (2024) recently reviewed spatiotemporal patterns
of strandings, mortalities, and serious injuries of humpback whales
along the U.S. east coast from 2016-2022 and found vessel strikes to be
the major driver in the increase of humpback whale strandings,
mortalities, and serious injury. Based upon the spatiotemporal
analysis, no evidence was found that offshore wind development played a
role in the increased number of strandings over time. In fact, the
potential for vessel strike increased during the course of the study
due to increased vessel traffic in new foraging areas, the increased
presence of juvenile humpback whales, and humpback whale foraging in
shallow areas that overlap with vessel traffic.
Similar to the discussion presented in the proposed rule, the BiOp
stated it is likely the Project will produce a wind wake from operation
of the turbines and that the foundations themselves will lead to
disruptions in local conditions. The scale of these effects is expected
to range from hundreds of meters and up to 1 km from each foundation
and the changes in conditions may alter the distribution of nutrients,
primary production, and plankton (Floeter et al., 2017; van Berkel et
al., 2020). However, the BiOp concluded it is not expected that the
impacts to oceanic conditions resulting from the Project will be large
enough to affect regional conditions that could influence the
distribution of prey or conditions that aggregate prey in the broader
Mid-Atlantic Bight region or within or around the Maryland Wind WDA in
a way that would have adverse effects on ESA-listed species. Therefore,
NMFS expects any alteration of the biomass of plankton in the region,
and therefore, the total food supply, to be so small that adverse
effects on ESA-listed species are extremely unlikely to occur.
Overall, there is no new scientific information regarding the
general anticipated effects of OSW construction on marine mammals and
their habitat that was not discussed in the proposed rule. The
information and analysis regarding the potential effects on marine
mammals and their habitat has not changed and is adopted here by
reference (see 89 FR 504, January 4, 2024).
Globally, there are more than 341,000 operating WTGs (Global Wind
Energy Council). Turbine failures are known to occur but are considered
rare events (Katsaprakakis et al., 2021, DOE, 2024a). For example,
fewer than 40 incidents were identified in the modern fleet of more
than 40,000 onshore turbines installed in the United States as of 2014
(DOE, 2024b). In 2022, the total global capacity of offshore wind
reached 59,009 MW from 292 operating projects and over 11,900 operating
wind turbines in 2022 (DOE, 2023), and a review of the relevant
literature and media reports indicate blade failure among this cohort
of turbines continues to be rare, consistent with industry performance
in onshore wind turbines. On July 13, 2024, however, a blade on one of
the WTGs at Vineyard Wind 1, a project located off of Martha's Vineyard
and Nantucket, was damaged during the ``warm up'' phase of operations,
causing a portion of the blade, primarily composed of fiberglass, to
fall into the water. In cooperation with Vineyard Wind 1, GE Vernova,
the blade manufacturer, initiated debris recovery efforts and an
investigation. Following this blade failure incident, the Bureau of
Safety and Environmental Enforcement (BSEE), Department of Interior,
issued a Suspension Order on July 17, 2024 (https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-statement-on-vineyard-wind) and an additional Order for clarification
on July 26, 2024 (https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-issues-new-order-to-vineyard-wind),
which suspends power production and any further wind turbine generator
construction until the suspension is lifted.
As noted above, wind turbine failure is considered rare, and NMFS
still considers the likelihood that blade failure would occur pursuant
to US Wind's specified activity during the effective period of the ITA
so low as to be discountable. Furthermore, GE Vernova's quality
assurance program will complete thorough inspections on the remaining
blades to be installed to ensure additional blade malfunction incidents
do not occur. US Wind did not request, NMFS does not anticipate, and
NMFS has not authorized, take of marine mammals incidental to a turbine
blade failure and, therefore the topic is not discussed further.
Estimated Take
This section provides an estimate of the number of incidental takes
that may be authorized through this rule, which will inform both NMFS'
consideration of ``small numbers'' and the negligible impact
determination. The analysis related to take incidental to HRG surveys
and foundation installation is unchanged since the proposed rule.
Generally speaking, we estimate take by considering: (1) acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment (as well as impulse metric
(Pascal-second) and peak sound pressure level thresholds above which
marine mammals may incur non-auditory injury from underwater explosive
detonations); (2) the area or volume of water that will be ensonified
above these levels in a day; (3) the density or occurrence of marine
mammals within these ensonified areas; and, (4) the number of days of
activities. We note that while these factors can contribute to a basic
calculation to provide an initial prediction of takes, additional
information that can qualitatively inform take estimates is also
sometimes available. Below, we describe the factors considered here in
more detail and present the take estimates.
Marine Mammal Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
[[Page 84690]]
received level of underwater sound above which exposed marine mammals
are likely to be behaviorally harassed (equated to Level B harassment)
or to incur PTS of some degree (equated to Level A harassment).
Thresholds have also been developed identifying the received level of
in-air sound above which exposed pinnipeds would likely be behaviorally
harassed. A summary of NMFS' 2018 thresholds can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Level B harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., other noises in the area) and the state
of the receiving animals (e.g., hearing, motivation, experience,
demography, life stage, depth), and can be difficult to predict (e.g.,
Southall et al., 2007, 2021; Ellison et al., 2012). Based on what the
available science indicates and the practical need to use a threshold
based on a metric that is both predictable and measurable for most
activities, NMFS typically uses a generalized acoustic threshold based
on received level to estimate the onset of behavioral harassment. NMFS
generally predicts that marine mammals are likely to be behaviorally
harassed in a manner considered to be Level B harassment when exposed
to underwater anthropogenic noise above root-mean-squared pressure
received levels (RMS SPL) of 120 dB (re 1 [mu]Pa) for continuous (e.g.,
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa
for non-explosive impulsive (e.g., seismic airguns) or intermittent
(e.g., scientific sonar) sources (table 4). Generally speaking, Level B
harassment take estimates based on these behavioral harassment
thresholds are expected to include any likely takes by temporary
threshold shift (TTS) as, in most cases, the likelihood of TTS occurs
at distances from the source less than those at which behavioral
harassment is likely. TTS of a sufficient degree can manifest as
behavioral harassment, as reduced hearing sensitivity and the potential
reduced opportunities to detect important signals (e.g., conspecific
communication, predators, prey) may result in changes in behavior
patterns that would not otherwise occur.
US Wind's construction activities include the use of intermittent
(e.g., impact pile driving and HRG acoustic sources) sources;
therefore, the 160 dB re 1 [mu]Pa (RMS) threshold is applicable.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0;
Technical Guidance, 2018) identifies dual criteria to assess auditory
injury constituting Level A harassment to five different marine mammal
groups based on hearing sensitivity as a result of exposure to noise
from two different types of sources (i.e., impulsive or non-impulsive
sources). As dual metrics, NMFS considers onset of PTS constituting
Level A harassment to have occurred when either one of the two metrics
is exceeded (i.e., metric resulting in the largest isopleth). The
Project includes the use of impulsive and non-impulsive sources.
The 2018 thresholds are provided in table 5 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Table 5--Onset of PTS
[NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
PTS onset thresholds * (received level)
Hearing group -------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-frequency (LF) cetaceans.......... Cell 1: L,0-pk,flat: 219 Cell 2: LE,,LF,24h: 199 dB.
dB; LE,,LF,24h: 183 dB.
Mid-frequency (MF) cetaceans.......... Cell 3: L,0-pk,flat: 230 Cell 4: LE,,MF,24h: 198 dB.
dB; LE,,MF,24h: 185 dB.
High-frequency (HF) cetaceans......... Cell 5: L,0-pk,flat: 202 Cell 6: LE,,HF,24h: 173 dB.
dB; LE,,HF,24h: 155 dB.
Phocid pinnipeds (PW) (Underwater).... Cell 7: L,0-pk.flat: 218 Cell 8: LE,,PW,24h: 201 dB.
dB; LE,,PW,24h: 185 dB.
Otariid pinnipeds (OW) (Underwater)... Cell 9: L,0-pk,flat: 232 Cell 10: LE,,OW,24h: 219 dB.
dB; LE,,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (L,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
exposure level (LE,) has a reference value of 1[mu]Pa\2\s. In this table, thresholds are abbreviated to be
more reflective of International Organization for Standardization standards (ISO, 2017). The subscript
``flat'' is being included to indicate peak sound pressure are flat weighted or unweighted within the
generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative
sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF,
and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The
weighted cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying
exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate
the conditions under which these thresholds will be exceeded.
Take That May Be Authorized
In the proposed rule, we discussed the marine mammal density and
occurrence information, acoustic modeling, and take estimation
methodologies and results for each of US Wind's specified activities
and all marine mammal species and stocks. All of this information
presented in the proposed rule, including multiple tables (e.g.,
densities, acoustic ranges, source characteristics) remains accurate
and unchanged and is not reproduced here. Below, tables 6 and 7
identify the maximum annual allowable take and the maximum total
allowable take across the 5-year effective period of the rule.
As described in the proposed rule (89 FR 504, January 4, 2024),
NMFS used the best available science and robust models to consider the
interaction of marine mammal movement, the environment, and the Project
activities, in the context of NMFS' acoustic thresholds, to project the
maximum number of takes that are reasonably expected to occur, by Level
A harassment and Level B harassment. However, NMFS has also
acknowledged
[[Page 84691]]
the uncertainty inherent in certain input values (e.g., source levels
and spectra) and environmental variability present in real-life
physical and biological systems. The LOA would specify maximum annual
and 5 year takes that may not be exceeded, by Level A and Level B
harassment, but would not specify the number of allowable takes by
activity type, thus allowing for flexibility should the number of takes
from a specific activity type exceed the number modeled for the
specific activity type, provided the manner and impacts of those takes
remain within those considered within the analysis and the total takes
remain below the annual maximum and 5-year totals.
Table 6--Maximum Level A Harassment and Level B Harassment Takes for All Activities That May Be Authorized
During the Construction of the Project and Over the Course of the Five Years Covered by the Rule \1\
----------------------------------------------------------------------------------------------------------------
Total take by Level A Total take by Level B
Marine mammal species harassment that may be harassment that may be
authorized authorized
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \2\................................ 0 10
Fin whale \2\................................................. 6 35
Humpback whale................................................ 6 30
Minke whale................................................... 9 58
Sei whale \2\................................................. 3 3
Killer whale.................................................. 0 9
Atlantic spotted dolphin...................................... 0 168
Coastal bottlenose dolphin.................................... 0 2,165
Offshore bottlenose dolphin................................... 0 2,755
Bottlenose dolphin \3\........................................ 0 258
Common dolphin................................................ 0 488
Long-finned pilot whale....................................... 0 48
Short-finned pilot whale...................................... 0 33
Pantropical spotted dolphin................................... 0 15
Risso's dolphin............................................... 0 70
Rough-toothed dolphin......................................... 0 18
Striped dolphin............................................... 0 138
Harbor porpoise............................................... 6 68
Gray seal \4\................................................. 0 496
Harbor seal \4\
Harp seal \4\
----------------------------------------------------------------------------------------------------------------
\1\ The final rule and LOA would be effective from January 1, 2025 through December 31, 2029, however, US Wind
has not planned activities to occur in 2028 or 2029. As described in table 2, NMFS recognizes the potential
for activity schedules to shift such that they occur during different timeframes within the five year
effective period of the rule, including the potential for activities to occur in 2028 and 2029.
\2\ Listed as Endangered under the ESA.
\3\ The total take over 5 years represented here accounts for HRG surveys wherein the take may occur to either
the Northern migratory coastal stock and/or the offshore stock of bottlenose dolphins.
\4\ Take that may be authorized includes harbor seals, gray seals, and harp seals.
To inform both the negligible impact analysis and the small numbers
determination, NMFS also (in addition to the five-year total) assesses
the maximum number of takes of marine mammals that could occur within
any given year. For each species or stock, we consider the maximum
number of Level A harassment takes that could occur and may be
authorized in any one year, the maximum number of Level B harassment
takes that could occur and may be authorized in any one year, and the
sum of those two annual maxima to yield the highest number of total
takes that could occur in any year (table 7). Table 7 also indicates
the number of takes authorized relative to the abundance of each stock.
The takes enumerated here represent daily instances of take, not
necessarily individual marine mammals taken. One take represents a day
in which an animal was exposed to noise above the associated harassment
threshold at least once. Some takes represent a brief exposure above a
threshold, while in some cases takes could represent a longer, or
repeated, exposure of one individual animal above a threshold within a
24-hour period. Whether or not every take assigned to a species
represents a different individual depends on the daily and seasonal
movement patterns of the species in the area. For example, activity
areas with continuous activities (all or nearly every day) overlapping
known feeding areas (where animals are known to remain for days or
weeks on end) or areas where species with small home ranges live (e.g.,
some pinnipeds) are more likely to result in repeated takes to some
individuals. Alternatively, activities that are not occurring on
consecutive days for the duration of the Project (e.g., foundation
installation) or occurring in an area where animals are migratory and
not expected to remain for multiple days, represent circumstances where
repeat takes of the same individuals are less likely. For example, 100
takes could represent 100 individuals each taken on one day within the
year, or it could represent 5 individuals each taken on 20 days within
the year. The combination of number of individuals each taken and
number of days on which take would occur would depend upon the
activity, the presence of biologically important areas in the project
area, and the movement patterns of the marine mammal species exposed.
Where information to better contextualize the enumerated takes for a
given species is available, it is discussed in the Negligible Impact
Analysis and Determination and/or Small Numbers sections, as
appropriate.
[[Page 84692]]
Table 7--Maximum Number of Takes by Level A Harassment and Level B Harassment That May Be Authorized in Any One
Year of the Project Relative to Stock Population Size \1\
----------------------------------------------------------------------------------------------------------------
Maximum take
Maximum Maximum (instances) as a
Marine mammal species NMFS stock annual annual Maximum percentage of
abundance Level A Level B annual take stock abundance)
harassment harassment \1\ \2\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \3\ \4\....... 338 0 4 4 1.18
Fin whale \3\ \4\........................ 6,802 2 18 20 0.29
Humpback whale \4\....................... 1,396 2 16 18 1.29
Minke whale.............................. 21,968 6 41 47 0.21
Sei whale \3\ \4\........................ 6,292 1 1 2 0.03
Killer whale \4\......................... UNK 0 3 3 UNK
Atlantic spotted dolphin \4\............. 39,921 0 69 69 0.17
Coastal bottlenose dolphin \5\........... 6,639 0 1,591 1,591 24.0
Offshore bottlenose dolphin \5\.......... 62,851 0 1,768 1,768 2.81
Common dolphin........................... 172,974 0 298 298 0.17
Long-finned pilot whale \4\.............. 39,215 0 16 16 0.04
Short-finned pilot whale \4\............. 28,924 0 11 11 0.04
Pantropical spotted dolphin \4\.......... 6,593 0 5 5 0.08
Risso's dolphin \4\...................... 35,215 0 26 26 0.07
Rough-toothed dolphin \4\................ 136 0 6 6 4.41
Striped dolphin \4\...................... 67,036 0 46 46 0.07
Harbor porpoise \4\...................... 95,543 3 39 42 0.04
Gray seal \6\............................ 27,300 0 341 341 1.25
Harbor seal \6\.......................... 61,336 ........... ........... ........... 0.56
Harp seal \6\............................ 7.6M ........... ........... ........... 0.004
----------------------------------------------------------------------------------------------------------------
\1\ Year 2 (2026) represents the most overall impactful year.
\2\ The values in this column represent the assumption that each take that may be authorized would occur to a
unique individual. Given the scope of planned work, this is highly unlikely for species common to the project
area (e.g., North Atlantic right whales, humpback whales) such that the actual percentage of the population
taken is less than the percentages identified here.
\3\ Listed as Endangered under the ESA.
\4\ Take that may be authorized is based on average group size.
\5\ The amount of take identified includes the maximum amount of take that could occur from impact pile driving
in any given year plus the maximum amount of take from HRG surveys in any given year, assuming all take from
HRG surveys is allocated to both bottlenose dolphin stocks.
\6\ Assumes 100 percent of the take by Level B harassment is from either the gray seal stock, harbor seal stock,
or harp seal stock.
Mitigation
As noted in the Changes from the Proposed to Final Rule section,
NMFS has added new mitigation requirements and clarified a few others.
These changes are described in detail in the sections below. Besides
these changes, the required measures remain the same as those described
in the proposed rule. However, NMFS has also re-organized and
simplified the section to avoid full duplication of the specific
requirements that are fully described in the regulatory text.
In order to promulgate a rulemaking under section 101(a)(5)(A) of
the MMPA, NMFS must set forth the permissible methods of taking
pursuant to the activity, and other means of effecting the least
practicable adverse impact on the species or stock and its habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance, and on the availability of the species or stock
for taking for certain subsistence uses (latter not applicable for this
action). NMFS' regulations require applicants for ITAs to include
information about the availability and feasibility (e.g., economic and
technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (e.g., likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented (i.e., the
probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (i.e., the
probability if implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider factors such as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
The mitigation strategies described below are consistent with those
required and successfully implemented under previous ITAs issued in
association with in-water construction activities (e.g., soft-start,
establishing shutdown zones). Additional measures have also been
incorporated to account for the fact that the construction activities
would occur offshore. Modeling was performed to estimate harassment
zones, which were used to inform mitigation measures for the Project's
activities to minimize Level A harassment and Level B harassment to the
extent practicable, while providing estimates of the areas within which
Level B harassment might occur.
Generally speaking, the mitigation measures considered and required
here fall into three categories: temporal (i.e., seasonal and daily)
and spatial work restrictions, real-time measures (e.g., shutdown,
clearance, and vessel strike avoidance), and noise attenuation/
reduction measures. Temporal and spatial work restrictions are designed
to
[[Page 84693]]
avoid or minimize operations when marine mammals are concentrated or
engaged in behaviors that make them more susceptible or make impacts
more likely, in order to reduce both the number and severity of
potential takes, and are effective in reducing both chronic (longer-
term) and acute effects. Real-time measures, such as implementation of
shutdown and clearance zones, as well as vessel strike avoidance
measures, are intended to reduce the probability or severity of
harassment by taking steps in real time once a higher-risk scenario is
identified (e.g., once animals are detected within an impact zone).
Noise attenuation measures such as bubble curtains are intended to
reduce the noise at the source, which reduces both acute impacts, as
well as the contribution to aggregate and cumulative noise that may
result in longer term chronic impacts.
Below, we briefly describe the required training, coordination, and
vessel strike avoidance measures that apply to all activity types, and
in the following subsections we describe the measures that apply
specifically to foundation installation and HRG surveys. Details on
specific requirements can be found in 50 CFR part 217, subpart II, set
out at the end of this rule.
Training and Coordination
NMFS requires all US Wind employees and contractors conducting
activities on the water, including but not limited to, all vessel
captains and crew to be trained in marine mammal detection and
identification, communication protocols, and all required measures to
minimize impacts on marine mammals and support US Wind's compliance
with the LOA, if issued. Additionally, all relevant personnel and the
marine mammal species monitoring team(s) are required to participate in
joint, onboard briefings prior to the beginning of project activities.
The briefing must be repeated whenever new relevant personnel (e.g.,
new PSOs, construction contractors, relevant crew) join the Project
before work commences. During this training, US Wind is required to
instruct all project personnel regarding the authority of the marine
mammal monitoring team(s). For example, the HRG acoustic equipment
operator, pile driving personnel, etc., is required to immediately
comply with any call for a delay or shutdown by the Lead PSO. Any
disagreement between the Lead PSO and the Project personnel must only
be discussed after delay or shutdown has occurred. In particular, all
captains and vessel crew must be trained in marine mammal detection and
vessel strike avoidance measures to ensure marine mammals are not
struck by any Project or Project-related vessel.
Prior to the start of in-water construction activities, vessel
operators and crews will receive training about marine mammals and
other protected species known or with the potential to occur in the
project area, making observations in all weather conditions, and vessel
strike avoidance measures. In addition, training will include
information and resources available regarding applicable Federal laws
and regulations for protected species. US Wind will provide
documentation of training to NMFS. Since the proposed rule, NMFS has
added requirements for a description of the training program to be
provided to NMFS at least 60 days prior to the initial training before
in-water activities begin and for confirmation of all required training
to be documented on a training course log sheet and reported to NMFS
Office of Protected Resources prior to initiating Project activities.
These measures were added in response to several commenters' concerns
regarding strengthening mitigation and monitoring measures.
North Atlantic Right Whale Awareness Monitoring
US Wind must use available sources of information on North Atlantic
right whale presence, including daily monitoring of the Right Whale
Sightings Advisory System, monitoring of Coast Guard VHF Channel 16
throughout each day to receive notifications of any sightings, and
information associated with any regulatory management actions (e.g.,
establishment of a zone identifying the need to reduce vessel speeds).
Maintaining daily awareness and coordination affords increased
protection of North Atlantic right whales by understanding North
Atlantic right whale presence in the area through ongoing visual and
PAM efforts and opportunities (outside of US Wind's efforts), and
allows for planning of construction activities, when practicable, to
minimize potential impacts on North Atlantic right whales. The vessel
strike avoidance measures apply to all vessels associated with the
Project within U.S. waters and on the high seas.
Vessel Strike Avoidance Measures
Both the proposed and this final rule contain numerous vessel
strike avoidance measures that reduce the risk that a vessel and marine
mammal could collide. These measures must be followed unless doing so
would create safety risks as described in the regulatory text. While
the likelihood of a vessel strike is generally low, they are one of the
most common ways that marine mammals are seriously injured or killed by
human activities. Therefore, enhanced mitigation and monitoring
measures are required to further avoid vessel strikes to the extent
practicable. While many of these measures are proactive, intended to
avoid the heavy use of vessels during times when marine mammals of
particular concern may be in the area, several are reactive and occur
when a marine mammal is sighted by Project personnel. The mitigation
requirements are described generally here and in detail in the
regulatory text at the end of this final rule (50 CFR 217.344(b)). US
Wind will be required to comply with these measures, except under
circumstances when doing so would create an imminent and serious threat
to a person or vessel, or to the extent that a vessel is unable to
maneuver and, because of the inability to maneuver, the vessel cannot
comply.
While underway, US Wind is required to monitor for and maintain a
safe distance from marine mammals, and operate vessels in a manner that
reduces the potential for vessel strike. Regardless of the vessel's
size, all vessel operators, crews, and dedicated visual observers
(i.e., PSO or trained crew member) must maintain a vigilant watch for
all marine mammals and slow down, stop their vessel, or alter course as
appropriate to avoid striking any marine mammal. The dedicated visual
observer, equipped with suitable monitoring technology (e.g.,
binoculars, night vision devices), must be located at an appropriate
vantage point for ensuring vessels are maintaining required vessel
separation distances from marine mammals (e.g., 500 m from North
Atlantic right whales).
For all Project-related vessels (regardless of size), the vessel is
required to immediately reduce speeds to 10 kn (11.5 mph) or less if
any large whale, or large assemblage of non-delphinid cetaceans is
observed within 500 m of the vessel. Additionally, all Project vessels,
regardless of size, must maintain a 100-m minimum separation zone from
sperm whales and non-North Atlantic right whale baleen species. Vessels
are also required to keep a minimum separation distance of 50 m from
all delphinid cetaceans and pinnipeds, with an exception made for those
species that approach the vessel (i.e., bow-riding dolphins). If any of
these non-North Atlantic right whale marine mammals are sighted, the
underway vessel must shift its engine to neutral and the engines must
not be
[[Page 84694]]
engaged until the animal(s) have been observed to be outside of the
vessel's path and beyond 100 m (for sperm whales and non-North Atlantic
right whale large whales) or 50 m (for delphinids and pinnipeds).
Table 8--Vessel Strike Avoidance Separation Zones
------------------------------------------------------------------------
Marine mammal species Vessel separation zone (m)
------------------------------------------------------------------------
North Atlantic right whale................. 500
Other ESA-listed species and large whales.. 100
Other marine mammals \1\................... 50
------------------------------------------------------------------------
\1\ With the exception of seals and delphinid(s) from the genera
Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below.
All of the Project-related vessels are required to comply with the
measures within this rulemaking for operating vessels around North
Atlantic right whales and other marine mammals, as well as any existing
NMFS vessel speed restrictions for North Atlantic right whales. When
NMFS vessel speed restrictions are not in effect and a vessel is
traveling at greater than 10 kn (11.5 mph), in addition to the required
dedicated visual observer, US Wind is required to monitor the transit
corridor in real-time with PAM prior to and during transits. To
maintain awareness of North Atlantic right whale presence in the
project area, vessel operators, crew members, and the marine mammal
monitoring team will monitor U.S. Coast Guard VHF Channel 16,
WhaleAlert, the Right Whale Sighting Advisory System (RWSAS), and the
PAM system. Any North Atlantic right whale or large whale detection
will be immediately communicated to PSOs, PAM operators, and all vessel
captains. All vessels will be equipped with an Automatic Information
System (AIS) and US Wind must report all Maritime Mobile Service
Identity (MMSI) numbers to NMFS Office of Protected Resources prior to
initiating in-water activities. US Wind will submit a Marine Mammal
Vessel Strike Avoidance Plan for NMFS approval at least 180 days prior
to commencement of vessel use.
Compliance with these measures will reduce the likelihood of vessel
strike to the extent practicable. These measures increase awareness of
marine mammals in the vicinity of Project vessels and require Project
vessels to reduce speed when marine mammals are detected (by PSOs, PAM,
and/or through another source, e.g., RWSAS) and maintain separation
distances when marine mammals are encountered. While visual monitoring
is useful, reducing vessel speed is one of the most effective, feasible
options available to reduce the likelihood of, and effects from, a
vessel strike. Numerous studies have indicated that slowing the speed
of vessels reduces the risk of lethal vessel collisions, particularly
in areas where right whales are abundant and vessel traffic is common
and otherwise traveling at high speeds (Vanderlaan and Taggart, 2007;
Conn and Silber, 2013; Van der Hoop et al., 2014; Martin et al., 2015;
Crum et al., 2019).
Given the inherent low probability of vessel strike, combined with
the vessel strike avoidance measures included herein, NMFS considers
the potential for vessel strike to be unlikely and would not allow take
from this activity under this final rule.
Seasonal and Daily Restrictions
Temporal and spatial restrictions in places where marine mammals
are concentrated, engaged in biologically important behaviors, and/or
present in sensitive life stages are effective measures for reducing
the magnitude and severity of human impacts. The temporal restrictions
required here are built around the protection of North Atlantic right
whales. Based upon the best scientific information available (Roberts
et al., 2023), the highest densities of North Atlantic right whales in
the project area are expected during the months of January through
April, with an increase in density starting in December. However, North
Atlantic right whales may be present in the project area throughout the
year.
NMFS is requiring seasonal work restrictions to minimize the risk
of noise exposure to North Atlantic right whales incidental to certain
specified activities to the extent practicable. These seasonal work
restrictions are expected to greatly reduce the number of takes of
North Atlantic right whales. These seasonal restrictions also afford
protection to other marine mammals that are known to use the project
area with greater frequency during winter months, including other
baleen whales. As described previously, no impact pile driving
activities may occur December 1 through April 30.
No more than one foundation monopile, four 3-m pin piles for jacket
foundations, or three 1.8-m pin piles for the Met tower will be
installed per day. Monopiles must be no larger than 11-m in diameter
and pin piles must be no larger than 3-m in diameter. For all monopiles
and pin piles, the minimum amount of hammer energy necessary to
effectively and safely install and maintain the integrity of the piles
must be used. No more than one pile may be installed at a given time
(i.e., concurrent/simultaneous pile driving and drilling may not
occur).
US Wind would not initiate pile driving earlier than 1 hour prior
to civil sunrise or later than 1.5 hours prior to civil sunset, unless
NMFS approves an Alternative Monitoring Plan as part of the Foundation
Installation and Marine Mammal Monitoring Plan (i.e., Nighttime
Monitoring Plan) that reliably demonstrates the efficacy of detecting
marine mammals at night with its proposed devices. Foundation
installation will also not be initiated when the minimum visibility
zones cannot be fully visually monitored, as determined by the lead PSO
on duty. While monitoring itself is not mitigation, these measures
contribute to more reliable detection efficiency and animals must be
detected to trigger mitigative actions which reduce impacts.
Given the very small harassment zones resulting from HRG surveys
and that the best available science indicates that any harassment from
HRG surveys, should a marine mammal be exposed, would manifest as minor
behavioral harassment only (e.g., potentially some avoidance of the
vessel), NMFS is not requiring any seasonal and daily restrictions for
HRG surveys. However US Wind has planned only a limited amount of
surveys (over 14 days) during daylight within the effective period of
these regulations.
Noise Attenuation Systems
US Wind is required to employ noise abatement systems (NAS), also
known as noise attenuation systems, during all foundation installation
(i.e., impact pile driving) activities to reduce the sound pressure
levels that are transmitted through the water in an effort to reduce
acoustic ranges to the Level A
[[Page 84695]]
harassment and Level B harassment acoustic thresholds and minimize, to
the extent practicable, any acoustic impacts resulting from these
activities. US Wind is required to use at least two NASs to ensure that
measured sound levels do not exceed the levels modeled for a 10-dB
sound level reduction for foundation installation, which is likely to
include a double big bubble curtain or a double big bubble curtain
combined with other NAS (e.g., hydro-sound damper, or an AdBm Helmholz
resonator), as well as the adjustment of operational protocols to
minimize noise levels. As part of adaptive management, should the
research and development phase of newer systems demonstrate
effectiveness, US Wind may submit data on the effectiveness of these
systems and request approval from NMFS to use them during foundation
installation activities.
Two categories of NASs exist: primary and secondary. A primary NAS
would be used to reduce the level of noise produced by foundation
installation activities at the source, typically through adjustments to
the equipment (e.g., hammer strike parameters). Primary NASs are still
evolving and will be considered for use during mitigation efforts when
the NAS has been demonstrated as effective in commercial projects.
However, as primary NASs are not fully effective at eliminating noise,
a secondary NAS would be employed. The secondary NAS is a device or
group of devices that would reduce noise as it was transmitted through
the water away from the pile, typically through a physical barrier that
would reflect or absorb sound waves and therefore, reduce the distance
the higher energy sound propagates through the water column. Together,
these systems must reduce noise levels to those not exceeding modeled
ranges to Level A harassment and Level B harassment isopleths
corresponding to those modeled assuming 10-dB sound attenuation,
pending results of SFV (see the Sound Field Verification section below
and 50 CFR part 217--Regulations Governing The Taking And Importing Of
Marine Mammals).
Noise abatement systems, such as bubble curtains, are used to
decrease the sound levels radiated from a source. Bubbles create a
local impedance change that acts as a barrier to sound transmission.
The size of the bubbles determines their effective frequency band, with
larger bubbles needed for lower frequencies. There are a variety of
bubble curtain systems, confined or unconfined bubbles, and some with
encapsulated bubbles or panels. Attenuation levels also vary by type of
system, frequency band, and location. Small bubble curtains have been
measured to reduce sound levels but effective attenuation is highly
dependent on depth of water, current, and configuration and operation
of the curtain (Austin et al., 2016; Koschinski and L[uuml]demann,
2013). Bubble curtains vary in terms of the sizes of the bubbles and
those with larger bubbles tend to perform a bit better and more
reliably, particularly when deployed with two separate rings (Bellmann,
2014; Koschinski and L[uuml]demann, 2013; Nehls et al., 2016).
Encapsulated bubble systems (e.g., Hydro Sound Dampers (HSDs)), can be
effective within their targeted frequency ranges (e.g., 100-800 Hz),
and when used in conjunction with a bubble curtain appear to create the
greatest attenuation. The literature presents a wide array of observed
attenuation results for bubble curtains. The variability in attenuation
levels is the result of variation in design as well as differences in
site conditions and difficulty in properly installing and operating in-
water attenuation devices. D[auml]hne et al. (2017) found that single
bubble curtains that reduce sound levels by 7 to 10 dB reduced the
overall sound level by approximately 12 dB when combined as a double
bubble curtain for 6-m steel monopiles in the North Sea. During
installation of monopiles (consisting of approximately 8-m in diameter)
for more than 150 WTGs in comparable water depths (>25 m) and
conditions in Europe indicate that attenuation of 10 dB is readily
achieved (Bellmann, 2019; Bellmann et al., 2020) using single bubble
curtains for noise attenuation.
When a double big bubble curtain is used (noting a single bubble
curtain is not allowed), US Wind is required to maintain numerous
operational performance standards. These standards are defined in the
regulatory text at the end of this rule, and include, but are not
limited to, construction contractors must train personnel in the proper
balancing of airflow to the bubble ring and US Wind must submit a
performance test and maintenance report to NMFS. Corrections to the
attenuation devices are to be carried out prior to impact pile driving.
In addition, a full maintenance check (e.g., manually clearing holes)
must occur prior to each pile being installed. If US Wind uses a noise
mitigation device in addition to a double big bubble curtain, similar
quality control measures are required. Should the research and
development phase of newer systems demonstrate effectiveness, as part
of adaptive management, US Wind may submit data on the effectiveness of
these systems and request approval from NMFS to use them during
foundation installation activities.
US Wind is required to submit an SFV plan to NMFS for approval at
least 180 days prior to installing foundations. They are also required
to submit interim and final SFV data results to NMFS and make
corrections to the NASs in the case that any SFV measurements
demonstrate noise levels are above those modeled assuming 10 dB. These
frequent and immediate reports allow NMFS to better understand the
sound fields to which marine mammals are being exposed and require
immediate corrective action should they be misaligned with anticipated
noise levels within our analysis.
Noise abatement devices are not required during HRG surveys as they
cannot practicably be employed around a moving survey ship, but US Wind
is required to make efforts to minimize source levels by using the
lowest energy settings on equipment that has the potential to result in
harassment of marine mammals (e.g., boomers) and turning off equipment
when not actively surveying. Overall, minimizing the amount and
duration of noise in the ocean from any of the Project's activities
through use of all means necessary (e.g., noise abatement, turning off
power) will effect the least practicable adverse impact on marine
mammals.
Clearance and Shutdown Zones
NMFS requires the establishment of both clearance and, where
technically feasible, shutdown zones during Project activities that
have the potential to result in harassment of marine mammals. The
purpose of ``clearance'' of a particular zone is to minimize potential
instances of auditory injury and more severe behavioral disturbances by
delaying the commencement of an activity if marine mammals are near the
activity. The purpose of a shutdown is to prevent a specific acute
impact, such as auditory injury or severe behavioral disturbance of
sensitive species, by halting the activity.
All relevant clearance and shutdown zones during Project activities
will be monitored by NMFS-approved PSOs and PAM operators as described
in the regulatory text at the end of this rule. At least one PAM
operator must review data from at least 24 hours prior to foundation
installation, and must actively monitor hydrophones for 60 minutes
prior to commencement of these activities. Any North Atlantic right
whale sighting at any distance by foundation installation PSOs, or
[[Page 84696]]
acoustically detected within the PAM monitoring zone (10 km), triggers
a delay to commencing pile driving and shutdown. Any large whale
sighted by a PSO or acoustically detected by a PAM operator that cannot
be identified as a non-North Atlantic right whale must be treated as if
it were a North Atlantic right whale.
Prior to the start of certain specified activities (i.e.,
foundation installation, including soft-start, and HRG surveys), US
Wind must ensure designated areas (i.e., clearance zones as provided in
tables 24 and 25) are clear of marine mammals prior to commencing
activities to minimize the potential for and degree of harassment. For
foundation installation, PSOs must visually monitor clearance zones for
marine mammals for a minimum of 60 minutes prior to the activity, where
the zone must be confirmed free of marine mammals at least 30 minutes
directly prior to commencing these activities. During this period, the
clearance zones will be monitored by both PSOs and a PAM operator. If a
marine mammal is observed within a clearance zone during the clearance
period, the activity will be delayed and may not begin until the
animal(s) has been observed exiting its respective zone, or until an
additional time period has elapsed with no further sightings (i.e., 15
minutes for small odontocetes and pinnipeds and 30 minutes for all
other species). In addition, foundation installation will be delayed
upon a confirmed PAM detection of a North Atlantic right whale if the
PAM detection is confirmed to have been located within the North
Atlantic right whale PAM clearance zone (10,000 m). Any large whale
sighted by a PSO that cannot be identified to species must be treated
as if it were a North Atlantic right whale for the purposes of
mitigation. PSOs and PAM operators must continue monitoring throughout
the duration of foundation installation and for 30 minutes post-
completion of the activity.
Clearance and shutdown zones have been developed in consideration
of modeled distances to relevant PTS thresholds with respect to
minimizing the potential for take by Level A harassment. The clearance
and shutdown zones for North Atlantic right whales during monopile,
jacket foundation, and Met tower foundation installation are visual
observations at any distance by PSOs or any acoustic detection within
the PAM monitoring zone (10 km; table 24). For North Atlantic right
whales, there is an additional requirement that the clearance zone may
only be declared clear if no confirmed North Atlantic right whale
acoustic detections (in addition to visual) have occurred during the
60-minute monitoring period. The visual clearance zone for other large
whales from monopile installation is equal to the modeled maximum
R95 percent distance to the Level B harassment threshold
(5,250 m). The clearance zone for other large whales from 3-m pin pile
installation is equal to the modeled maximum R95 percent
distance to the Level A harassment threshold (1,400 m). The clearance
zone for other large whales from 1.8-m pin pile installation is equal
to twice the modeled maximum R95 percent distance to the
Level B harassment threshold given the very small Level B harassment
zone (100 m), which could be encompassed by the bubble curtains. The
clearance zone for non-large whales (i.e., delphinids and pilot whales,
harbor porpoises, and seals) from monopile and 3-m pin pile
installation is equal to double the modeled maximum
R95 percent distances to the Level A harassment threshold
for harbor porpoise (the most sensitive species). The clearance zone
for 1.8-m pin pile installation is equal to double the modeled maximum
R95 percent distance to the Level B harassment threshold
given Level A harassment thresholds were not exceeded for this activity
(i.e., 0 m).
Once an activity begins, any marine mammal entering their
respective shutdown zone would trigger the activity to cease. In the
case of foundation installation, the shutdown requirement may be waived
if it is not practicable to shutdown the equipment due to imminent risk
of injury or loss of life to an individual, risk of damage to a vessel
that creates risk of injury or loss of life for individuals, or where
the lead engineer determines there is pile refusal or pile instability.
In situations when shutdown is called for during impact pile driving,
but US Wind determines shutdown is not practicable due to
aforementioned emergency reasons, reduced hammer energy must be
implemented when the lead engineer determines it is practicable.
Specifically, pile refusal or pile instability could result in not
being able to shut down pile driving immediately. Pile refusal occurs
when the pile driving sensors indicate the pile is approaching refusal
and a shut-down would lead to a stuck pile which then poses an imminent
risk of injury or loss of life to an individual, or risk of damage to a
vessel that creates risk for individuals. Pile instability occurs when
the pile is unstable and unable to stay standing if the piling vessel
were to ``let go''. During these periods of instability, the lead
engineer may determine a shut-down is not feasible because the shut-
down combined with impending weather conditions may require the piling
vessel to ``let go'', which then poses an imminent risk of injury or
loss of life to an individual, or risk of damage to a vessel that
creates risk for individuals. US Wind must document and report to NMFS
all cases where the emergency exemption is taken.
After shutdown, foundation installation may be reinitiated once all
clearance zones are clear of marine mammals for the minimum species-
specific periods, or, if required to maintain pile stability, at which
time the lowest hammer energy must be used to maintain stability. If
foundation installation has been shut down due to the presence of a
North Atlantic right whale, pile driving must not restart until the
North Atlantic right whale has neither been visually or acoustically
detected by PSOs and PAM operators for 30 minutes. Upon re-starting
pile driving, soft-start protocols must be followed if pile driving has
ceased for 30 minutes or longer.
The clearance and shutdown zone sizes vary by species and are shown
in tables 24 and 25. US Wind is allowed to request modification to
these zone sizes pending results of SFV (see the regulatory text at the
end of this rule). Any changes to zone size would be part of adaptive
management and would require NMFS' approval. The 10 km PAM monitoring
zone for North Atlantic right whales has been carried forward from the
proposed rule into this final rule. A 10-km distance is a reasonable
distance for a PAM system to monitor; thus, 10 km was added as the
requirement for the PAM monitoring zone.
In addition to the clearance and shutdown zones that would be
monitored both visually and acoustically, NMFS is requiring US Wind to
establish a minimum visibility zone during foundation installation
activities to ensure both visual and acoustic methods are used in
tandem to detect marine mammals resulting in maximum detection
capability. The minimum visibility zone is defined as the area over
which PSOs must be able to visually detect marine mammals and must be
visible for the duration of the 60-minute clearance period. This zone
would extend from the location of the pile being driven out to 2,900 m
(9,514 ft) for monopile installation, 1,400 m for 3-m pin pile
installation, and 200 m for 1.8-m pin pile installation (table 24).
During monopile and 3-m pin pile installation, the minimum visibility
zone is equal to the modeled maximum
[[Page 84697]]
R95 percent distances to the Level A harassment threshold
for low-frequency cetaceans. The minimum visibility zone for 1.8-m pin
piles is equal to the clearance zone, which is double the modeled
maximum R95 percent distance to the Level B harassment
threshold (100 m) and four times the modeled maximum
R95 percent distance to the Level A harassment threshold (50
m) for low-frequency cetaceans. NMFS increased the 1.8-m pin pile
minimum visibility zone given the very small zone sizes from this short
(3 piles total) activity.
For HRG surveys, there are no mitigation measures prescribed for
sound sources operating at frequencies greater than 180 kHz, as these
would be expected to fall outside of marine mammal hearing ranges and
would not result in harassment. However, all HRG survey vessels would
be subject to the aforementioned vessel strike avoidance measures
described earlier in this section. Furthermore, due to the frequency
range and characteristics of some of the sound sources associated with
lesser impacts, shutdown, clearance, and ramp-up procedures are not
planned to be conducted during HRG surveys utilizing only non-impulsive
sources (e.g., other parametric sub-bottom profilers). Shutdown,
clearance, and ramp-up procedures are planned to be conducted during
HRG surveys utilizing SBPs and other non-parametric sub-bottom
profilers (planned survey equipment that may result in take of marine
mammals are presented in table 3 of the proposed rule (89 FR 504,
January 4, 2024)). PAM would not be required during HRG surveys. While
NMFS agrees that PAM can be an important tool for augmenting detection
capabilities in certain circumstances, its utility in further reducing
impacts during HRG survey activities is limited.
US Wind will be required to implement a 30-minute clearance period
of the clearance zones (table 25) immediately prior to the commencing
of the survey, or when there is more than a 30-minute break in survey
activities and PSOs have not been actively monitoring. If a marine
mammal is observed within a clearance zone during the clearance period,
ramp up (described below) may not begin until the animal(s) have been
observed voluntarily exiting its respective clearance zone or until an
additional time period has elapsed with no further sighting (i.e., 15
minutes for small odontocetes and seals, and 30 minutes for all other
species). When the clearance process has begun in conditions with good
visibility, including via the use of night vision equipment (i.e.,
infrared (IR)/thermal camera), and the Lead PSO has determined that the
clearance zones are clear of marine mammals, survey operations would be
allowed to commence (i.e., no delay is required) despite periods of
inclement weather and/or loss of daylight.
Once the survey has commenced, US Wind would be required to shut
down SBPs if a marine mammal enters a respective shutdown zone (table
25). In cases where the shutdown zones become obscured for brief
periods due to inclement weather, survey operations would be allowed to
continue (i.e., no shutdown is required) so long as no marine mammals
have been detected. The use of SBPs will not be allowed to commence or
resume until the animal(s) has been confirmed to have left the shutdown
zone or until a full 15 minutes (for small odontocetes and seals) or 30
minutes (for all other marine mammals) have elapsed with no further
sighting. Any large whale sighted by a PSO within 1,000 m of the SBPs
that cannot be identified as a non-North Atlantic right whale would be
treated as if it were a North Atlantic right whale for the purposes of
mitigation implementation.
Table 9--Minimum Visibility, Clearance, Shutdown, and Level B Harassment Zones During Impact Pile Driving, Assuming 10 dB of Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right Delphinids and pilot
Monitoring zone whales Other large whales whales Harbor porpoises Seals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum visibility zone \1\....... Monopiles: 2,900 m.
3-m pin piles: 1,400 m.
1.8-m pin piles: 200 m.
---------------------------------------------------------------------------------------------------------------------
Clearance zone.................... Any distance (visual) from Monopiles: 5,250 m... Monopiles: 500 m.
the pile driving location 3-m pin piles: 1,400
or within PAM Monitoring m..
Zone.
1.8-m pin piles: 200 3-m pin piles, 1.8-m pin piles: 200 m.\3\
m.\2\
---------------------------------------------------------------------------------------------------------------------
Shutdown zone..................... Any distance (visual) from Monopiles: 2,900..... Monopiles: 250 m.
the pile driving location 3-m pin piles: 1,400
or within PAM Monitoring m..
Zone.
1.8-m Pin piles: 100 3-m pin piles, 1.8-m pin piles: 100 m.\5\
m.\4\
---------------------------------------------------------------------------------------------------------------------
PAM monitoring zone \6\........... 10,000 m.
---------------------------------------------------------------------------------------------------------------------
Level B Harassment (Acoustic...... Monopiles: 5,250 m.
Range, R95%) 3-m pin piles: 500 m.
1.8-m pin piles: 100 m.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The minimum visibility zone is equal to the modeled maximum R95 percent distances to the Level A harassment threshold for low-frequency cetaceans
for monopiles and 3-m pin piles. The minimum visibility zone for 1.8-m pin piles is equal to the clearance zone which is double the modeled maximum
R95 percent distance to the Level B harassment threshold (100 m) and four times the modeled maximum R95 percent distance to the Level A harassment
threshold (50 m) for low frequency cetaceans. NMFS increased the 1.8 m pile minimum visibility zone given the very small zone sizes from this short (3
piles total) activity.
\2\ The clearance zone for other large whales from monopile installation is equal to the modeled maximum R95 percent distance to the Level B harassment
threshold (5,250 m). The clearance zone for other large whales from 3-m pin pile installation is equal to the modeled maximum R95 percent distance to
the Level A harassment threshold (1,400 m) given the Level B harassment zone is less than this distance (500 m). The clearance zone for other large
whales from 1.8-m pin pile installation is equal to twice the modeled maximum R95 percent distance to the Level B harassment threshold given the very
small Level B harassment zone (100 m) which could be encompassed by the bubble curtains.
\3\ The clearance zone for non-large whales (i.e., delphinids and pilot whales, harbor porpoises, and seals) from monopile and 3-m pin pile installation
is equal to double the modeled maximum R95 percent distance to the Level A harassment threshold for harbor porpoise (the most sensitive species). The
clearance zone for 1.8-m pin pile installation is equal to double the modeled maximum R95 percent distance to the Level B harassment threshold given
Level A harassment thresholds were not exceeded for this activity (i.e., 0 m). US Wind requested the clearance zone for non-large whales be identical
for PSO implementation ease.
\4\ The shutdown zones for other large whales from monopiles and 3-m pin pile installation are equal to the modeled maximum R95 percent distances to the
Level A harassment threshold for low-frequency cetaceans. The shutdown zone for other large whales from 1.8-m pin piles is equal to two times the
modeled maximum R 95 percent distance to the Level A harassment threshold for low-frequency cetaceans.
\5\ The shutdown zones for non large whales from monopile and 3-m pin pile installation are equal to the modeled maximum R95 percent distance to the
Level A harassment threshold for harbor porpoise (the most sensitive species). The shutdown zone for non large whales from 1.8-m pin pile installation
is equal to the modeled maximum R95 percent distance to the Level B harassment threshold, given the Level A harassment thresholds were not exceeded
for this activity (i.e., 0 m). US Wind requested the shutdown zone for non large whales be identical for PSO implementation ease.
[[Page 84698]]
\6\ The PAM system must be capable of detecting baleen whales at 10,000 m during pile driving. The system should also be designed to detect other marine
mammals; however, it is not required these other species be detected out to 10,000 m given higher frequency calls and echolocation clicks are not
typically detectable at large distances.
Table 10--HRG Survey Clearance and Shutdown Zones
------------------------------------------------------------------------
Clearance zone
Marine mammal species (m)\2\ Shutdown zone (m)
------------------------------------------------------------------------
North Atlantic right whale........ 500 500
Other ESA-listed species (i.e., 500 100
fin, sei, sperm whale)...........
Other marine mammals \1\.......... 200 100
------------------------------------------------------------------------
\1\ With the exception of seals and delphinid(s) from the genera
Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below.
In addition, NMFS has included a measure requiring US Wind to
shutdown pile driving or HRG surveys in the event of a live cetacean
stranding where the NMFS Marine Mammal Stranding Network is engaged in
herding or other interventions to return animals to the water. Marine
mammals involved in live stranding events (or near-shore atypical
milling) are considered especially susceptible to the effects of
additional stressors. These shutdown procedures are not related to the
investigation of the cause of any such stranding and their
implementation is not intended to imply that the activity of the
authorized entity is the cause of the stranding. Rather, shutdown
procedures are intended to protect marine mammals exhibiting indicators
of distress by minimizing their exposure to possible additional
stressors, regardless of the factors that contributed to the stranding.
US Wind would be required to shut down pile driving activities
according to the measure described in the regulatory text.
Soft-Start/Ramp Up
The use of a soft-start or ramp-up procedure is believed to provide
additional protection to marine mammals by warning them or providing
them with a chance to leave the area, prior to the hammer or HRG
equipment operating at full capacity. Soft-start typically involves
initiating hammer operation at a reduced energy level relative to full
operating capacity followed by a waiting period. Typically, NMFS
requires a soft-start procedure of the applicant performing four to six
strikes per minute at 10 to 20 percent of the maximum hammer energy,
for a minimum of 20 minutes. For foundation installation, NMFS notes
that it is difficult to specify a reduction in energy for any given
hammer because of variation across drivers and installation conditions.
The final methodology will be developed by US Wind, in consultation
with NMFS, considering final design details including site-specific
soil properties and other considerations. A general soft-start
requirement for impact pile driving is incorporated into the
regulations. HRG survey operators are required to ramp-up sources when
the acoustic sources are used unless the equipment operates on a binary
on/off switch. The ramp-up would involve starting from the smallest
setting and gradually increasing to the operating level over a period
of approximately 30 minutes.
Soft-start and ramp-up will be required at the beginning of each
day's activity and at any time following a cessation of activity of 30
minutes or longer. Prior to soft-start or ramp-up beginning, the
operator must receive confirmation from the PSO that the clearance zone
is clear of any marine mammals.
Fishery Monitoring Surveys
While the likelihood of US Wind's fishery monitoring surveys
impacting marine mammals is minimal, NMFS requires US Wind to adhere to
gear and vessel mitigation measures to reduce potential impacts to the
extent practicable. In addition, all crew undertaking the fishery
monitoring survey activities are required to receive protected species
identification training prior to activities occurring and attend the
aforementioned onboarding training. The specific requirements that NMFS
has set for the fishery monitoring surveys can be found in the
regulatory text at the end of this rule.
Based on our evaluation of the mitigation measures, as well as
other measures considered by NMFS, NMFS has determined that these
measures will provide the means of affecting the least practicable
adverse impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.
Monitoring and Reporting
As noted in the Changes from the Proposed to Final Rule section, we
have added, modified, or clarified a number of monitoring and reporting
measures since the proposed rule. These changes are described in detail
below. Since the proposed rule, we have clarified the number of
platforms for PSOs to be a total of three platforms, including the pile
driving vessel and two PSO support vessels, as the number of platforms
was not specified in the proposed rule. In addition, we have added
specific requirements for SFV monitoring.
In order to promulgate a rulemaking for an activity, section
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements
pertaining to the monitoring and reporting of such taking. The MMPA
implementing regulations at 50 CFR 216.104(a)(13) indicate that
requests for authorizations must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the action area. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (i.e., individual or cumulative, acute
or chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (i.e., behavioral or
physiological) to acoustic stressors (i.e., acute, chronic, or
cumulative), other
[[Page 84699]]
stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and/or
Mitigation and monitoring effectiveness.
Separately, monitoring is also regularly used to support mitigation
implementation (i.e., mitigation monitoring) and monitoring plans
typically include measures that both support mitigation implementation
and increase our understanding of the impacts of the activity on marine
mammals.
During the planned activities, visual monitoring by NMFS-approved
PSOs will be conducted before, during, and after all impact pile
driving and HRG surveys. PAM will also be conducted during impact pile
driving. Visual observations and acoustic detections will be used to
support the activity-specific mitigation measures (e.g., clearance
zones). To increase understanding of the impacts of the activity on
marine mammals, PSOs must record all incidents of marine mammal
occurrence at any distance from the piling locations, near the HRG
acoustic sources. PSOs will document all behaviors and behavioral
changes, at any distance from the foundation installation locations
(i.e., location of impact pile driving) and near the HRG acoustic
sources. PSOs will document all behaviors and behavioral changes, in
concert with distance from an acoustic source. Further, SFV during
foundation installation and unexploded ordinance (UXO)/munition of
explosive concern (MEC) detonation is required to ensure compliance and
that the potential impacts are within the bounds of that analyzed. The
required monitoring, including PSO and PAM Operator qualifications, is
described below, beginning with PSO measures that are applicable to all
the aforementioned activities and PAM (for specific activities).
Protected Species Observer and PAM Operator Requirements
US Wind is required to employ NMFS-approved PSOs and PAM operators.
PSOs are trained professionals who are tasked with visually monitoring
for marine mammals during pile driving and HRG surveys. The primary
purpose of a PSO is to carry out the monitoring, collect data, and,
when appropriate, call for the implementation of mitigation measures.
In addition to visual observations, NMFS requires US Wind to conduct
PAM by PAM operators during impact pile driving and vessel transit.
The inclusion of PAM, which would be conducted by NMFS-approved PAM
operators, following standardized measurement, processing methods,
reporting metrics, and metadata standards for offshore wind, combined
with visual data collection, is a valuable way to provide the most
accurate record of species presence as possible. These two monitoring
methods are well understood to provide best results when combined
together (e.g., Barlow and Taylor, 2005; Clark et al., 2010; Gerrodette
et al., 2011; Van Parijs et al., 2021). Acoustic monitoring, in
addition to visual monitoring, increases the likelihood of detecting
marine mammals within the shutdown and clearance zones of Project
activities, which when applied in combination of required shutdowns
helps to further reduce the risk of marine mammals being exposed to
sound levels that could otherwise result in acoustic injury or more
intense behavioral harassment.
The exact configuration and number of PAM systems depends on the
size of the zone(s) being monitored, the amount of noise expected in
the area, and the characteristics of the signals being monitored. More
closely spaced hydrophones would allow for more directionality, and
perhaps, range to the vocalizing marine mammals; although, this
approach would add additional costs and greater levels of complexity to
the Project. Larger baleen cetacean species (i.e., mysticetes), which
produce loud and lower-frequency vocalizations, may be able to be heard
with fewer hydrophones spaced at greater distances. However, smaller
cetaceans (such as mid-frequency delphinids or odontocetes) may
necessitate more hydrophones and to be spaced closer together given the
shorter range of the shorter, mid-frequency acoustic signals (e.g.,
whistles and echolocation clicks). As there are no ``perfect fit''
single-optimal-array configurations, NMFS will consider and approve
these set-ups, as appropriate, on a case-by-case basis during the PAM
Plan review. Specifically, US Wind will be required to provide a plan
that describes an optimal configuration for collecting the required
marine mammal data, based on the real-world circumstances in the
project area, recognizing that we will continue to learn more as
monitoring results from other wind projects are submitted.
NMFS does not formally administer any PSO or PAM operator training
program or endorse specific providers but will approve PSOs and PAM
operators that have successfully completed courses that meet the
curriculum and trainer requirements referenced below and further
specified in the regulatory text at the end of this rule. PSOs can act
as PAM operators or visual PSOs (but not simultaneously) as long as
they demonstrate that their training and experience are sufficient to
perform each task.
NMFS will provide PSO and PAM operator approvals in the context of
the need to ensure that PSOs and PAM operators have the necessary
training and/or experience to carry out their duties competently. NMFS
may approve PSOs as conditional or unconditional. Conditional approval
may be given to one who is trained but has not yet attained the
requisite experience. Unconditional approval is given to one who is
trained and has attained the necessary experience. The specific
requirements for conditional and unconditional approval can be found in
the regulatory text at the end of this rule (see Sec. 217.345(a)(6).
Conditionally-approved PSOs will be paired with an unconditionally-
approved PSO to ensure that the quality of marine mammal observations
and data recording is kept consistent. Additionally, activities
requiring PSO and/or PAM operator monitoring must have a lead on duty.
The visual PSO field team, in conjunction with the PAM team, (i.e.,
together, the marine mammal monitoring team), would have a lead member
(designated as the ``Lead PSO'' or ``Lead PAM operator'') who would be
required to meet the unconditional approval standard.
Although PSOs and PAM operators must be approved by NMFS, third-
party observer providers and/or companies seeking PSO and PAM operator
staffing should expect that those having satisfactorily completed
acceptable training and with the requisite experience (if required)
will be quickly approved. US Wind is required to request PSO and PAM
operator approvals 60 days prior to those personnel commencing work. An
initial list of previously approved PSO and PAM operators must be
submitted by US Wind at least 30 days prior to the start of the
Project. Should US Wind require additional PSOs or PAM operators
throughout the Project, US Wind must submit a subsequent list of pre-
approved PSOs and PAM operators to NMFS at least 15 days prior to
planned use of that PSO or PAM operator. A PSO may be trained and/or
[[Page 84700]]
experienced as both a PSO and PAM operator and may perform either duty,
pursuant to scheduling requirements (and vice versa).
A minimum number of PSOs would be required to actively observe for
the presence of marine mammals during certain project activities,
generally speaking, with more PSOs being required as the mitigation
zone sizes increase. A minimum number of PAM operators would be
required to actively monitor for the presence of marine mammals during
foundation installation. The types of equipment required (e.g., big
eyes on the pile driving vessel) are also designed to increase marine
mammal detection capabilities. Specifics on these types of requirements
can be found in the regulations at the end of this rule.
At least three PSOs must be on duty at a time on the foundation
installation vessel/platform. A minimum of three PSOs must be active on
each of at least two dedicated PSO vessels. US Wind must employ a
minimum of three PSO platforms, including the pile driving platform and
at least two PSO vessels. This requirement has been added since the
proposed rule in response to a comment from the Commission to clarify
the number of required PSO platforms during pile driving activity. The
vessel must be located at the best vantage point to observe and
document marine mammal sightings in proximity to the clearance and, if
applicable, shutdown zones. At least one PAM operator per acoustic data
stream (equivalent to the number of acoustic buoys) must be on-duty and
actively monitoring per platform during foundation installation.
At least one PSO must be on-duty during HRG surveys conducted
during daylight hours; and at least two PSOs must be on-duty during HRG
surveys conducted during nighttime.
As part of their monitoring duties, PSOs and PAM operators are
responsible for data collection. The data collected by PSO and PAM
operators and subsequent analysis provide the necessary information to
inform an estimate of the amount of take that occurred during the
Project, better understand the impacts of the Project on marine
mammals, address the effectiveness of monitoring and mitigation
measures, and to adaptively manage activities and mitigation in the
future. Data reported includes information on marine mammal sightings
(e.g., numbers of animals and their behavior), activity occurring at
time of sighting, monitoring conditions, and if mitigative actions were
taken. Specific data collection requirements are contained within the
regulations at the end of this rule.
US Wind is required to submit a Foundation Installation Monitoring
Plan and a PAM Plan to NMFS 180 days in advance of foundation
installation activities. The Plan must include details regarding PSO
and PAM monitoring protocols and equipment proposed for use, as
described in the regulatory text at the end of this rule. NMFS must
approve the plan prior to foundation installation activities
commencing. Specific details on NMFS' PSO or PAM operator
qualifications and requirements can be found in 50 CFR part 217,
subpart II, set out at the end of this rule. Additional information can
be found in US Wind Marine Mammal Monitoring and Mitigation Plan
(appendix B) on the NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind.
Sound Field Verification
Previously in the proposed rule, US Wind had to conduct SFV
measurements during all pile driving activities associated with the
installation of, at minimum, the first three monopile foundations. SFV
measurements must continue until at least three consecutive piles
demonstrate distances to thresholds that are at or below those modeled
assuming 10 dB of attenuation. Subsequent SFV measurements are also
required should larger piles be installed or additional piles be driven
that are anticipated to produce longer distances to harassment
isopleths than those previously measured (e.g., higher hammer energy,
greater number of strikes, etc.).
For the final rule, NMFS has expanded this requirement for SFV
during foundation installation to align with the BiOp. At minimum,
thorough SFV must be conducted in: for each construction year, for the
first three monopiles installed and the first three full jacket
foundations (all piles) installed. While pile driving is prohibited
from December-April, if pile driving is required and must occur in
December due to unforeseen circumstances, thorough SFV must be
conducted on the first monopile and first jacket foundation (all piles)
installed in December (winter sound speed profile). Thorough SFV must
also be conducted for the first foundation for any foundation scenarios
that were modeled for the exposure analysis but do not fall into one of
the scenarios described above. During thorough SFV, installation of the
next foundation (of the same type/foundation method) may not proceed
until US Wind has reviewed the initial results from the thorough SFV
and determined that there were no exceedances of any distances to the
identified thresholds based on modeling assuming 10 dB of attenuation.
If any of the thorough SFV measurements from any pile indicate that
the distance to any isopleth of concern for any species is greater than
those modeled assuming 10 dB of attenuation, US Wind must notify NMFS
within 24 hours of reviewing the thorough SFV measurements and must
implement the measures described in detail in the regulatory text at
the end of this final rule for the next pile of the same type/
installation methodology, as applicable.
Abbreviated SFV monitoring must be performed on all foundation
installations for which the thorough SFV monitoring described above is
not conducted. In addition, SFV measurements must be conducted upon
commencement of turbine operations to estimate turbine operational
source levels, in accordance with a NMFS-approved Foundation
Installation Pile Driving SFV Plan. The measurements and reporting
associated with SFV can be found in the regulatory text at the end of
this rule. The requirements are extensive to ensure monitoring is
conducted appropriately and the reporting frequency is such that US
Wind is required to make adjustments quickly (e.g., ensure bubble
curtain hose maintenance, check bubble curtain air pressure supply, add
additional sound attenuation, etc.) to ensure marine mammals are not
experiencing noise levels above those considered in this analysis. For
recommended SFV protocols for impact pile driving, please consult
International Organization for Standardization (ISO) 18406,
``Underwater acoustics--Measurement of radiated underwater sound from
percussive pile driving'' (2017).
Reporting
Prior to any construction activities occurring, US Wind will
provide a report to NMFS Office of Protected Resources that
demonstrates that all US Wind personnel, including the vessel crews,
vessel captains, PSOs, and PAM operators, have completed all required
trainings.
NMFS will require standardized and frequent reporting from US Wind
during the life of the regulations and the LOA. All data collected
relating to the Project will be recorded using industry-standard
software (e.g., Mysticetus or a similar software) installed on field
laptops and/or tablets. US Wind is
[[Page 84701]]
required to submit weekly, monthly, annual, situational, and final
reports. The specifics of what we require to be reported can be found
in the regulatory text at the end of this final rule.
Weekly Report--During foundation installation activities, US Wind
would be required to compile and submit weekly marine mammal monitoring
reports for foundation installation activities to NMFS Office of
Protected Resources that document the daily start and stop of all pile-
driving activities, the start and stop of associated observation
periods by PSOs, details on the deployment of PSOs, a record of all
detections of marine mammals (acoustic and visual), any mitigation
actions (or if mitigation actions could not be taken, provide reasons
why), and details on the noise abatement system(s) (e.g., system type,
distance deployed from the pile, bubble rate, etc.), and abbreviated
SFV results. Weekly reports will be due on Wednesday for the previous
week (Sunday to Saturday). The weekly reports are also required to
identify which turbines become operational and when (a map must be
provided). Once all foundation pile installation is complete, weekly
reports would no longer be required.
Monthly Report--US Wind is required to compile and submit monthly
reports to NMFS Office of Protected Resources that include a summary of
all information in the weekly reports, including Project activities
carried out in the previous month, vessel transits (number, type of
vessel, and route), number of piles installed, all detections of marine
mammals, and any mitigative actions taken. The monthly report would
identify which turbines become operational and when, and a map must be
provided. Once all foundation pile installation is complete, monthly
reports would no longer be required.
Annual Reporting--US Wind is required to submit an annual marine
mammal monitoring (both PSO and PAM) report to NMFS Office of Protected
Resources annually, describing, in detail, all of the information
required in the monitoring section above for the previous calendar
year. A final annual report must be prepared and submitted within 30
calendar days following receipt of any NMFS comments on the draft
report.
Final Reporting--US Wind must submit its draft 5-year report(s) to
NMFS Office of Protected Resources. The report must contain, but is not
limited to, a description of activities conducted (including GIS files
where relevant), and all visual and acoustic monitoring, including SFV
and monitoring effectiveness, conducted under the LOA within 90
calendar days of the completion of activities occurring under the LOA.
A final 5-year report must be prepared and submitted within 60 calendar
days following receipt of any NMFS comments on the draft report. Full
PAM detection data, metadata, and location of recorders must be
submitted within 90 days following completion of impact pile driving
foundations and every 90 calendar days for transit lane PAM using the
International Organization for Standardization (ISO) standard metadata
forms and instructions available on the NMFS Passive Acoustic Reporting
System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. Concurrently, the full
acoustic recordings from real-time systems must also be sent to the
National Centers for Environmental Information (NCEI, https://www.ncei.noaa.gov/products/passive-acoustic-data) for archiving.
Situational Reporting--Specific situations encountered during the
development of the Project would require immediate reporting. For
instance, if a North Atlantic right whale is observed at any time by
PSOs or Project personnel, the sighting must be immediately (if not
feasible, as soon as possible, and no longer than 24 hours after the
sighting) reported to NMFS. If a North Atlantic right whale is
acoustically detected at any time via a Project-related PAM system, the
detection must be reported as soon as possible and no longer than 24
hours after the detection to NMFS via the 24-hour North Atlantic right
whale Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the
hotline is not necessary when reporting PAM detections via the
template.
If a sighting of a stranded, entangled, injured, or dead marine
mammal occurs, the sighting must be reported within 24 hours to NMFS
Office of Protected Resources, the NMFS Greater Atlantic Stranding
Coordinator for the New England/Mid-Atlantic area (866-755-6622) in the
Northeast Region (if in the Southeast Region (NC to FL), contact 877-
942-5343), and the U.S. Coast Guard within 24 hours.
In the event of a vessel strike of a marine mammal by any vessel
associated with the Project or if Project activities cause a non-
auditory injury or death of a marine mammal, US Wind must immediately
report the incident to NMFS. If in the Greater Atlantic Region (Maine
to Virginia), US Wind must call the NMFS Greater Atlantic Stranding
Hotline. Separately, US Wind must also and immediately report the
incident to NMFS Office of Protected Resources and GARFO. US Wind must
immediately cease all on-water activities, including pile driving,
until NMFS Office of Protected Resources is able to review the
circumstances of the incident and determine what, if any, additional
measures are appropriate to ensure compliance with the terms of the
MMPA. NMFS Office of Protected Resources may impose additional measures
covered in the adaptive management provisions of this rule to minimize
the likelihood of further prohibited take and ensure MMPA compliance.
US Wind may not resume their activities until notified by NMFS.
In the event of any lost gear associated with the fishery surveys,
US Wind must report to the loss to GARFO as soon as possible or within
24 hours of the documented time of missing or lost gear. This report
must include information on any markings on the gear and any efforts
undertaken or planned to recover the gear.
The specifics of what NMFS Office of Protected Resources requires
to be reported is listed at the end of this rulemaking in the
regulatory text.
Sound Field Verification--US Wind is required to submit interim SFV
reports after each foundation installation as soon as possible but
within 48 hours for thorough SFV. Abbreviated SFV reports must be
included in the weekly monitoring reports. A final SFV report for all
foundation installations will be required within 90 days following
completion of acoustic monitoring.
Adaptive Management
These regulations contain an adaptive management component. Our
understanding of the effects of offshore wind construction activities
(e.g., acoustic stressors) on marine mammals continues to evolve, which
makes the inclusion of an adaptive management component both valuable
and necessary within the context of 5-year regulations.
The monitoring and reporting requirements in this final rule will
provide NMFS with information that helps us to better understand the
impacts of the Project's activities on marine mammals and informs our
consideration of whether any changes to mitigation and monitoring are
appropriate. The use of adaptive management allows NMFS to consider new
information and modify mitigation, monitoring, or reporting
requirements, as appropriate, with input from US Wind regarding
practicability, if such modifications will have a reasonable likelihood
of more effectively accomplishing the goal of the measures.
[[Page 84702]]
The following are some of the possible sources of new information
to be considered through the adaptive management process: (1) results
from monitoring reports, including the weekly, monthly, situational,
and annual reports required; (2) results from research on marine
mammals, noise impacts, or other related topics; and (3) any
information that reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or
subsequent LOA. Adaptive management decisions may be made at any time,
as new information warrants it. NMFS may consult with US Wind regarding
the practicability of the modifications.
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'' by mortality, serious injury, or by Level A harassment and
Level B harassment, we consider other factors, such as the likely
nature of any behavioral responses (e.g., intensity, duration), the
context of any such responses (e.g., critical reproductive time or
location, migration), as well as effects on habitat, and the likely
effectiveness of 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 environmental 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).
In the Estimated Take section, we listed the maximum number of
allowable takes by Level A harassment and Level B harassment that could
occur from US Wind's specified activities based on the methods
described in the proposed rule. The impact that any given take would
have is dependent on many case-specific factors that need to be
considered in the negligible impact analysis (e.g., the context of
behavioral exposures such as duration or intensity of a disturbance,
the health of impacted animals, the status of a species that incurs
fitness-level impacts to individuals, etc.). In this final rule, we
evaluate the likely impacts of the enumerated harassment takes that may
be authorized in the context of the specific circumstances surrounding
these predicted takes. We also collectively evaluate this information,
as well as other more taxa-specific information and mitigation measure
effectiveness, in group-specific discussions that support our
negligible impact conclusions for each stock. As described above, no
serious injury or mortality is expected or may be authorized for any
species or stock.
The Description of the Specified Activities section describes US
Wind's specified activities that may result in take of marine mammals
and an estimated schedule for conducting those activities. US Wind has
provided a realistic construction schedule although we recognize
schedules may shift for a variety of reasons (e.g., weather or supply
delays). However, US Wind would not be authorized to exceed the maximum
annual of take authorized in any given year or across the five year
effective period of the regulations, indicated in tables 6 and 7,
respectively.
We base our analysis and negligible impact determination on the
maximum number of takes expected to occur annually and across the 5-
year effective period of these regulations, as well as extensive
qualitative consideration of other contextual factors that influence
the severity and nature of impact the takes have on the affected
individuals and the number and the number of individuals affected. As
stated before, the number of takes, both maximum annual and 5-year
total, alone are only a part of the analysis.
To avoid repetition, we provide some general analysis in this
Negligible Impact Analysis and Determination section that applies to
all the species listed in table 3 given that some of the anticipated
effects of US Wind's construction activities on marine mammals are
expected to be relatively similar in nature. Then, we subdivide into
more detailed discussions for mysticetes, odontocetes, and pinnipeds
which have broad life history traits that support an overarching
discussion of some factors considered within the analysis for those
groups (e.g., habitat-use patterns, high-level differences in feeding
strategies).
Last, we provide a negligible impact determination for each species
or stock, providing species or stock-specific information or analysis,
where appropriate, for example, for North Atlantic right whales given
the population status. Organizing our analysis by grouping species or
stocks that share common traits or that would respond similarly to
effects of US Wind's activities, and then providing species- or stock-
specific information allows us to avoid duplication while ensuring that
we have analyzed the effects of the specified activities on each
affected species or stock. It is important to note that in the group or
species sections, we base our negligible impact analysis on the maximum
annual take that is predicted under the 5-year rule, as well as the 5-
year total; however, WTG, Met tower, and OSS foundation installation,
which are expected to result in the majority of the impacts, are
scheduled to occur within the first 3 years of the five year effective
period of this rule (2025 through 2027) (table 20 in the proposed rule
and tables 6 and 7 in this final rule).
As described previously, no serious injury or mortality is
anticipated or authorized in this rule. Any Level A harassment
authorized would be in the form of auditory injury (i.e., PTS) and not
non-auditory injury (e.g., lung injury or gastrointestinal injury from
detonations). The amount of harassment US Wind has requested, and NMFS
has authorized, is based on exposure models that consider the outputs
of acoustic source and propagation models and other data such as
frequency of occurrence or group sizes. Several conservative parameters
and assumptions are ingrained into these models, modeling the impact
installation of all piles at a maximum hammer energy and application of
the May sound speed profile to all months within a given season. The
exposure model results do not reflect the clearance or shutdown
measures or avoidance response. The amount of take requested and
authorized also reflects careful consideration of other data (e.g.,
group size data) and, for Level A harassment potential of some large
whales, the consideration of mitigation measures. For all species, the
amount of take authorized represents the maximum amount of Level A
harassment and Level B harassment that could occur.
Behavioral Disturbance
In general, NMFS anticipates that impacts on an individual that has
been harassed are likely to be more intense when exposed to higher
received levels
[[Page 84703]]
and for a longer duration, though this is in no way a strictly linear
relationship for behavioral effects across species, individuals, or
circumstances, and less severe impacts result when exposed to lower
received levels for a brief duration. However, there is also growing
evidence of the importance of contextual factors such as distance from
a source in predicting marine mammal behavioral response to sound
(i.e., sounds of a similar level emanating from a more distant source
have been shown to be less likely to evoke a response of equal
magnitude (DeRuiter and Doukara, 2012; Falcone et al., 2017)). As
described in the ``Potential Effects to Marine Mammals and their
Habitat'' section of the proposed rule, the intensity and duration of
any impact resulting from exposure to the specified activities is
dependent upon a number of contextual factors including, but not
limited to, sound source frequencies, whether the sound source is
moving towards the animal, hearing ranges of marine mammals, behavioral
state at time of exposure, status of individual exposed (e.g.,
reproductive status, age class, health) and an individual's experience
with similar sound sources. Southall et al. (2021), Ellison et al.
(2012), and Moore and Barlow (2013), among others, emphasize the
importance of context (e.g., behavioral state of the animals, distance
from the sound source) in evaluating behavioral responses of marine
mammals to acoustic sources.
Harassment of marine mammals may result in behavioral modifications
(e.g., avoidance, temporary cessation of foraging or communicating,
changes in respiration or group dynamics, masking) or may result in
auditory impacts such as hearing loss. In addition, some of the lower-
level physiological stress responses (e.g., change in respiration,
change in heart rate) discussed previously would likely co-occur with
the behavioral modifications, although these physiological responses
are more difficult to detect and fewer data exist relating these
responses to specific received levels of sound. Takes by Level B
harassment, then, may have a stress-related physiological component as
well; however, we would not expect the specified activities to produce
conditions of long-term and continuous exposure to noise leading to
long-term physiological stress responses in marine mammals that could
affect reproduction or survival.
In the range of exposures that might result in Level B harassment
(which by nature of the way it is modeled/counted, occurs within 1
day), the less severe end might include exposure to comparatively lower
levels of a sound, at a greater distance from the animal, for a few or
several minutes. A less severe exposure of this nature could result in
a behavioral response such as avoiding an area that an animal would
otherwise have chosen to move through or feed in for some amount of
time, or breaking off one or a few feeding bouts. More severe effects
could occur if an animal gets close enough to the source to receive a
comparatively higher level, is exposed continuously to one source for a
longer time, or is exposed intermittently to different sources
throughout a day. Such effects might result in an animal having a more
severe avoidance response and leaving a larger area for a day or more
or potentially losing feeding opportunities for a day or more. Such
severe behavioral effects are expected to occur infrequently, though,
and given the extensive mitigation and monitoring measures included in
this rule, we expect severe behavioral effects to be minimized.
Many species perform vital functions, such as feeding, resting,
traveling, and socializing, on a diel cycle (i.e., a 24-hour cycle).
Behavioral reactions to noise exposure, when taking place in a
biologically important context, such as disruption of critical life
functions, displacement, or avoidance of important habitat, are more
likely to be significant if they last more than 1 day or recur on
subsequent days (Southall et al., 2007) due to diel and lunar patterns
in diving and foraging behaviors observed in many cetaceans (Baird et
al., 2008; Barlow et al., 2020; Henderson et al., 2016; Schorr et al.,
2014). It is important to note the water depth in the Project area is
shallow (ranging up to 10-45 m in the ECRs, and 13 to 41.5 m in the
Lease Area) and deep diving species, such as sperm whales, are not
expected to be engaging in deep foraging dives when exposed to noise
above NMFS harassment thresholds during the specified activities.
Therefore, we do not anticipate impacts to deep foraging behavior to be
impacted by the specified activities.
It is important to identify that the estimated number of takes for
each stock does not necessarily equate to the number of individual
marine mammals expected to be harassed (which may be lower, depending
on the circumstances), but rather to the instances of take (e.g.,
exposures above the Level B harassment thresholds) that may occur.
These instances may represent brief exposures of either seconds to
minutes for HRG surveys, or, in some cases, longer durations of
exposure within (but not exceeding) a day (e.g., pile driving). Some
members of a species or stock may experience one exposure (i.e., be
taken on one day) as they move through an area, while other individuals
may experience recurring instances of take over multiple days
throughout the year, in which case the number of individuals taken is
smaller than the total estimated take for that species or stock. In
short, for species that are more likely to be migrating through the
area and/or for which only a comparatively smaller number of takes are
predicted (e.g., some of the mysticetes), it is more likely that each
take represents a different individual. However, for non-migrating
species and/or species with larger amounts of predicted take, we expect
that the total anticipated takes represent exposures of a smaller
number of individuals of which some would be taken across multiple
days.
For US Wind, impact pile driving of foundation piles is most likely
to result in a higher magnitude and severity of behavioral disturbance
than HRG surveys. Impact pile driving has higher source levels and
longer durations (on an annual basis) than HRG surveys. HRG survey
equipment also produces much higher frequencies than pile driving,
resulting in minimal sound propagation. While impact pile driving for
foundation installation is anticipated to be most impactful for these
reasons, impacts are minimized through implementation of mitigation
measures, including use of a sound attenuation system, soft-starts, the
implementation of clearance zones that would facilitate a delay to pile
driving commencement, and implementation of shutdown zones. All these
measures are designed to avoid or minimize harassment. For example,
given sufficient notice through the use of soft-start, marine mammals
are expected to move away from a sound source that is disturbing prior
to becoming exposed to very loud noise levels. The requirement to
couple visual monitoring and PAM before and during all foundation
installation would increase the overall capability to detect marine
mammals rather than when one method is used alone.
Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if
some smaller subset of the takes are in the form of a longer (several
hours or a day) and more severe response, if they are not expected to
be repeated over numerous or sequential days, impacts to individual
fitness are not anticipated. Also, the effect of disturbance is
strongly influenced by whether it overlaps with biologically important
habitats when individuals are present--avoiding biologically important
habitats will
[[Page 84704]]
reduce the likelihood of more significant behavioral impacts, for
example reduced or lost foraging (Keen et al., 2021). Nearly all
studies and experts agree that infrequent exposures of a single day or
less are unlikely to impact an individual's overall energy budget
(Farmer et al., 2018; Harris et al., 2017; King et al., 2015; National
Academy of Science, 2017; New et al., 2014; Southall et al., 2007;
Villegas-Amtmann et al., 2015).
Temporary Threshold Shift
TTS is one form of Level B harassment that marine mammals may incur
through exposure to the specified activities and, as described earlier,
the takes by Level B harassment may represent takes in the form of
direct behavioral disturbance, TTS, or both. As discussed in the
``Potential Effects of Specified Activities on Marine Mammals and their
Habitat'' section of the proposed rule, in general, TTS can last from a
few minutes to days, be of varying degree, and occur across different
frequency bandwidths, all of which determine the severity of the
impacts on the affected individual, which can range from minor to more
severe. Impact pile driving is a broadband noise source but generates
sounds in the lower frequency ranges (with most of the energy below 1-2
kHz, but with a small amount energy ranging up to 20 kHz); therefore,
in general and all else being equal, we would anticipate the potential
for TTS is higher in low-frequency cetaceans (i.e., mysticetes) than
other marine mammal hearing groups and would be more likely to occur in
frequency bands in which they communicate. However, we would not expect
the TTS to span the entire communication or hearing range of any
species given that the frequencies produced by these activities do not
span entire hearing ranges for any particular species. Additionally,
though the frequency range of TTS that marine mammals might sustain
would overlap with some of the frequency ranges of their vocalizations,
the frequency range of TTS from US Wind's pile driving activities would
not typically span the entire frequency range of one vocalization type,
much less span all types of vocalizations or other critical auditory
cues for any given species. The required mitigation measures further
reduce the potential for TTS in mysticetes.
Generally, both the degree of TTS and the duration of TTS would be
greater if the marine mammal is exposed to a higher level of energy
(which would occur when the peak dB level is higher or the duration is
longer). The threshold for the onset of TTS was discussed previously
(refer back to Estimated Take section). However, source level alone is
not a predictor of TTS. An animal would have to approach closer to the
source or remain in the vicinity of the sound source appreciably longer
to increase the received SEL, which would be difficult considering the
required mitigation and the nominal speed of the receiving animal
relative to the stationary sources such as impact pile driving. The
recovery time is also of importance when considering the potential
impacts from TTS. In TTS laboratory studies (as discussed in the
``Potential Effects of the Specified Activities on Marine Mammals and
their Habitat'' section of the proposed rule), some using exposures of
almost an hour in duration or up to 217 SEL, almost all individuals
recovered within 1 day or less (often in minutes) and we note that
while the pile-driving activities last for hours a day, it is unlikely
that most marine mammals would stay in the close vicinity of the source
long enough to incur more severe TTS. Overall, given the small number
of times that any individual might incur TTS, the low degree of TTS and
the short anticipated duration, and the unlikely scenario that any TTS
overlapped the entirety of a critical hearing range, it is unlikely
that TTS (of the nature expected to result from the Project's
activities) would result in behavioral changes or other impacts that
would impact any individual's (of any hearing sensitivity) reproduction
or survival.
Permanent Threshold Shift
NMFS may authorize a very small amount of take by PTS to some
marine mammal individuals. The numbers of annual takes by Level A
harassment that may be authorized are relatively low for all marine
mammal stocks and species (table 22). The only activity incidental to
which we anticipate PTS may occur is from exposure to impact pile
driving, which produces sounds that are both impulsive and primarily
concentrated in the lower frequency ranges (below 1 kHz) (David, 2006;
Krumpel et al., 2021).
There are no PTS data on cetaceans and only one recorded instance
of PTS being induced in older harbor seals (Reichmuth et al., 2019).
However, available TTS data of mid-frequency hearing specialists
exposed to mid- or high-frequency sounds (Southall et al., 2007; NMFS,
2018; Southall et al., 2019) suggest that most threshold shifts occur
in the frequency range of the source up to one octave higher than the
source. We would anticipate a similar result for PTS. Further, no more
than a small degree of PTS is expected to be associated with any of the
incurred Level A harassment, given that it is unlikely that animals
would stay in the close vicinity of a source for a duration long enough
to produce more than a small degree of PTS.
PTS would consist of minor degradation of hearing capabilities
occurring predominantly at frequencies one-half to one octave above the
frequency of the energy produced by pile driving (i.e., the low-
frequency region below 2 kHz) (Cody and Johnstone, 1981; McFadden,
1986; Finneran, 2015), not severe hearing impairment. If hearing
impairment occurs from either impact pile driving, it is most likely
that the affected animal would lose a few decibels in its hearing
sensitivity, which in most cases is not likely to meaningfully affect
its ability to forage and communicate with conspecifics. In addition,
during impact pile driving, given sufficient notice through use of
soft-start prior to implementation of full hammer energy during impact
pile driving, marine mammals are expected to move away from a sound
source that is disturbing prior to it resulting in severe PTS.
Auditory Masking or Communication Impairment
The ultimate potential impacts of masking on an individual are
similar to those discussed for TTS (e.g., decreased ability to
communicate, forage effectively, or detect predators), but an important
difference is that masking only occurs during the time of the signal,
versus TTS, which continues beyond the duration of the signal. Masking
may also result from the sum of exposure to multiple signals, none of
which might individually cause TTS. Fundamentally, masking is referred
to as a chronic effect because one of the key potential harmful
components of masking is its duration--the fact that an animal would
have reduced ability to hear or interpret critical cues becomes much
more likely to cause a problem the longer it is occurring. Inherent in
the concept of masking is the fact that the potential for the effect is
only present during the times that the animal and the source are in
close enough proximity for the effect to occur (and further, this time
period would need to coincide with a time that the animal was utilizing
sounds at the masked frequency).
As our analysis has indicated, for this Project we expect that
impact pile driving foundations have the greatest potential to mask
marine mammal signals, and this pile driving may occur for several,
albeit intermittent, hours per day, for multiple days per year. Masking
[[Page 84705]]
is fundamentally more of a concern at lower frequencies (which are
pile-driving dominant frequencies) because low frequency signals
propagate significantly further than higher frequencies. Low frequency
signals are also more likely to overlap with the narrower low frequency
calls of mysticetes, many non-communication cues related to fish and
invertebrate prey, and geologic sounds that inform navigation. However,
the area in which masking would occur for all marine mammal species and
stocks (e.g., predominantly in the vicinity of the foundation pile
being driven) is small relative to the extent of habitat used by each
species and stock. As mentioned above, the project area does not
overlap critical habitat for any species, and temporary avoidance of
the pile driving area by marine mammals would likely displace animals
to areas of sufficient habitat.
In summary, the nature of the specified activities, paired with
habitat use patterns by marine mammals, makes it unlikely that the
level of masking that could occur would have the potential to affect
reproductive success or survival.
Impacts on Habitat and Prey
Construction activities (i.e., foundation installation) may result
in fish and invertebrate mortality or injury very close to the source,
and all of the specified activities may cause some fish to leave the
area of disturbance. It is anticipated that any mortality or injury
would be limited to a very small subset of available prey and the
implementation of mitigation measures such as the use of a NAS during
foundation installation would further limit the degree of impact.
Behavioral changes in prey in response to construction activities could
temporarily impact marine mammals' foraging opportunities in a limited
portion of the foraging range but, because of the relatively small area
of the habitat that may be affected at any given time (e.g., around a
pile being driven), the impacts to marine mammal habitat are not
expected to cause significant or long-term negative consequences.
Cable presence is not anticipated to impact marine mammal habitat
as these would be buried, and any electromagnetic fields emanating from
the cables are not anticipated to result in consequences that would
impact marine mammals' prey to the extent they would be unavailable for
consumption. Although many species of marine mammal prey can detect
electromagnetic fields, previous studies have shown little impacts on
habitat use (Hutchinson et al., 2018). The inclusion of protective
shielding on cables will also minimize any impacts of electromagnetic
fields on marine mammal prey.
The presence of wind turbines within the Lease Area could have
longer-term impacts on marine mammal habitat, as the Project would
result in the persistence of the structures within marine mammal
habitat for more than 30 years. The presence of an extensive number of
structures such as wind turbines are, in general, likely to result in
local and broader oceanographic effects in the marine environment, and
may disrupt dense aggregations and distribution of marine mammal
zooplankton prey through altering the strength of tidal currents and
associated fronts, changes in stratification, primary production, the
degree of mixing, and stratification in the water column (Chen et al.,
2021; Johnson et al., 2021; Christiansen et al., 2022; Dorrell et al.,
2022). However, the scale of impacts is difficult to predict and may
vary from hundreds of meters for local individual turbine impacts
(Schultze et al., 2020) to large-scale changes stretching hundreds of
kilometers (Christiansen et al., 2022).
As discussed in the ``Potential Effects of the Specified Activities
on Marine Mammals and their Habitat'' section of the proposed rule, the
Project would consist of no more than 119 foundations (114 WTGs, 4
OSSs, 1 Met tower) in the Lease Area, which will gradually become
operational following construction completion. While there are likely
to be oceanographic impacts from the presence of the Project,
meaningful oceanographic impacts relative to stratification and mixing
that would significantly affect marine mammal habitat and prey over
large areas in key foraging habitats during the effective period of the
regulations are not anticipated, nor is the project area located in the
vicinity of any key marine mammal foraging areas. For these reasons, if
oceanographic features are affected by the Project during the effective
period of the regulations, the impact on marine mammal habitat and
their prey is likely to be comparatively minor.
The Maryland Wind BiOp provided an evaluation of the presence and
operation of the Project on, among other species, listed marine mammals
and their prey. Overall, the BiOp concluded that impacts from loss of
soft bottom habitat from the presence of turbines and placement of
scour protection as well as any beneficial reef effects, are expected
to be so small that they cannot be meaningfully measured, evaluated, or
detected and are, therefore, insignificant. The BiOp also concluded
that while the presence and operation of the wind farm may change the
distribution of plankton within the area of the wind farm locally,
these changes are not expected to affect the oceanographic forces
transporting zooplankton into the area. Regional distribution of
plankton may vary from pre-wind facility conditions; however, given the
lack of a known bathymetric feature that aggregates zooplankton prey in
the lease area and acknowledging the information and uncertainty
presented in the BiOp, the BiOp concluded that adverse effects on North
Atlantic right whale foraging success due to near-field effects are not
reasonably certain to occur. Relative to far-field effects (tens of
kilometers from the outermost row of foundations in the Maryland Wind
Lease Area), the BiOp does not anticipate disruption to conditions that
would aggregate prey in or outside the Maryland Wind Energy Area (MD
WEA) that would have significant effects on ESA listed species. This is
due to the scale of the Project. Therefore, the BiOp concluded that an
overall reduction in biomass of plankton is not an anticipated outcome
of operating the Project. Thus, because broader changes in the biomass
of zooplankton are not anticipated, any higher trophic level impacts
are also not anticipated. That is, no effects to pelagic fish or
benthic invertebrates that depend on plankton as forage food are
expected to occur. Zooplankton, fish, and invertebrates are all
considered marine mammal prey and, as fully described in the BiOp,
measurable, detectable, or significant changes to marine mammal prey
abundance and distribution from wind farm operation are not
anticipated.
Mitigation To Reduce Impact on All Species
This rule includes an extensive suite of mitigation measures
designed to minimize impacts on all marine mammals, with a focus on
North Atlantic right whales. The Mitigation section discusses the
manner in which the required mitigation measures reduce the magnitude
and/or severity of the take of marine mammals. For impact pile driving
of foundation piles, ten overarching mitigation measures are required:
(1) seasonal work restrictions; (2) use of multiple PSOs to visually
observe for marine mammals (with any detection within specifically
designated zones triggering a delay or shutdown); (3) use of PAM to
acoustically detect marine mammals, with a focus on detecting baleen
whales (with any detection within designated zones triggering delay or
shutdown); (4)
[[Page 84706]]
implementation of clearance zones; (5) implementation of shutdown
zones; (6) use of soft-start; (7) use of noise attenuation technology;
(8) maintaining situational awareness of marine mammal presence through
the requirement that any marine mammal sighting(s) by US Wind's
personnel must be reported to PSOs; (9) SFV monitoring; and (10) vessel
strike avoidance measures to reduce the risk of a collision with a
marine mammal and vessel. For HRG surveys, we are requiring six
measures: (1) measures specifically for vessel strike avoidance; (2)
specific requirements during daytime HRG surveys; (3) implementation of
clearance zones; (4) implementation of shutdown zones; (5) use of ramp-
up of acoustic sources; and (6) maintaining situational awareness of
marine mammal presence through the requirement that any marine mammal
sighting(s) by US Wind's personnel must be reported to PSOs.
For activities with large harassment isopleths, US Wind will be
required to reduce the noise levels generated to the lowest levels
practicable and will be required to ensure that they do not exceed a
noise footprint above that which was modeled, assuming a 10-dB
attenuation. Use of a soft-start during impact pile driving will allow
animals to move away from (i.e., avoid) the sound source prior to
applying higher hammer energy levels needed to install the pile (US
Wind will not use a hammer energy greater than necessary to install
piles). Similarly, ramp-up during HRG surveys will allow animals to
move away and avoid the acoustic sources before they reach their
maximum energy level. For all activities, clearance zone and shutdown
zone implementation, which are required when marine mammals are within
given distances associated with certain impact thresholds for all
activities, will reduce the magnitude and severity of marine mammal
take. Additionally, the use of multiple PSOs (WTG, OSS, and Met tower
foundation installation; HRG surveys), PAM (for impact foundation
installation), and maintaining awareness of marine mammal sightings
reported in the region during all specified activities will aid in
detecting marine mammals that would trigger the implementation of the
mitigation measures. The reporting requirements including SFV reporting
(for foundation installation and foundation operation), will assist
NMFS in identifying if impacts beyond those analyzed in this final rule
are occurring, potentially leading to the need to enact adaptive
management measures in addition to or in place of the mitigation
measures.
Mysticetes
Five mysticete species (comprising five stocks) of cetaceans (North
Atlantic right whale, humpback whale, fin whale, sei whale, and minke
whale) may be taken by harassment. These species, to varying extents,
utilize the specified geographic region, including the project area,
for the purposes of migration, foraging, and socializing. Mysticetes
are in the low-frequency hearing group.
Behavioral data on mysticete reactions to pile-driving noise are
scant. Kraus et al. (2019) predicted that the three main impacts of
offshore wind farms on marine mammals would consist of displacement,
behavioral disruptions, and stress. Broadly, we can look to studies
that have focused on other noise sources such as seismic surveys and
military training exercises, which suggest that exposure to loud
signals can result in avoidance of the sound source (or displacement if
the activity continues for a longer duration in a place where
individuals would otherwise have been staying, which is less likely for
mysticetes in this area), disruption of foraging activities (if they
are occurring in the area), local masking around the source, associated
stress responses, impacts to prey, and TTS or PTS (in some cases).
NMFS reviewed recent PSO observational data from offshore wind
projects in southern New England (i.e., South Fork at OCS-A-0517 and
Vineyard Wind 1 at OCS-A-0501) where pile driving construction
activities occurred. During pile-driving construction activities for
Vineyard Wind 1, in 2023 from early June through December (RPS, 2023),
there were 36 whale observations consisting of 4 unidentified non-North
Atlantic right whales, 17 detections of humpback whales, eight
detections of fin whales, six detections of minke whales, and one
unidentified baleen whale (RPS, 2023). Three of these observations of
mysticetes (one humpback whale sighting, one fin whale sighting, and
one group of three fin whales) occurred while the hammer was engaged
(which was operating at full power). Behaviors noted included
surfacing, blowing, fluking, and feeding. At South Fork, a total of 39
hours 32 minutes of active impact pile driving was conducted across
installation of the 13 monopiles on 15 different days. The most PSO
visual watch effort occurred aboard the Bokalift 2 (908 hours), and PSO
effort from the four dedicated monitoring vessels ranged from 426 to
757 hours. In total (with and without pile driving) foundation
installation PSOs observed 348 mysticete groups comprising 552
individuals; 29 of these detections, totaling 51 individuals, occurred
during pile driving (table 14 in South Fork Wind (2023)). South Fork's
Trained Lookouts confirmed two separate sightings of individual NARWs
during vessel transits in support of offshore construction-related
activities during the reporting period. Each animal was observed
opportunistically during non-transit periods when vessels were not
underway. None of the observed behaviors of mysticetes noted by either
the Vineyard Wind 1 or South Fork PSOs were indicative of distress,
alarm, or other adverse reactions (RPS, 2023; South Fork Wind, 2023).
Mysticetes encountered in the project area are expected to
primarily be migrating and, to a lesser degree, may be engaged in
foraging behavior. The extent to which an animal engages in these
behaviors in the area is species-specific and varies seasonally. Many
mysticetes are expected to predominantly be migrating through the
project area towards or from feeding grounds located further north
(e.g., southern New England region, Gulf of Maine, Canada). While we
acknowledged above that mortality, hearing impairment, or displacement
of mysticete prey species may result locally from impact pile driving,
given the very short duration of and broad availability of prey species
in the area and the availability of alternative suitable foraging
habitat for the mysticete species most likely to be affected, any
impacts on mysticete foraging is expected to be minor. Whales
temporarily displaced from the project area are expected to have
sufficient remaining feeding habitat available to them and would not be
prevented from feeding in other areas within the biologically important
feeding habitats found further north. In addition, any displacement of
whales or interruption of foraging bouts would be expected to be
relatively temporary in nature.
The potential for repeated exposures is dependent upon the
residency time of whales with migratory animals unlikely to be exposed
on repeated occasions and animals remaining in the area to be more
likely exposed repeatedly. For mysticetes, where relatively low amounts
of species-specific take by Level B harassment are predicted (compared
to the abundance of each mysticete species or stock, such as is
indicated in table 22) and movement patterns suggest that individuals
would not necessarily linger in a particular area for multiple days,
each predicted take likely represents an exposure of a
[[Page 84707]]
different individual; the behavioral impacts would, therefore, be
expected to occur within a single day within a year--an amount that
NMFS would not expect to impact reproduction or survival. Species with
longer residence time in the project area may be subject to repeated
exposures across multiple days.
In general, for this Project, the duration of exposures will not be
continuous throughout any given day, and pile driving will not occur on
all consecutive days within a given year due to weather delays or any
number of logistical constraints US Wind has identified. Species-
specific analysis regarding potential for repeated exposures and
impacts is provided below.
Fin, humpback, minke, and sei whales are the only mysticete species
for which PTS is anticipated and authorized. As described previously,
PTS for mysticetes from some Project activities may overlap frequencies
used for communication, navigation, or detecting prey. However, given
the recent data from VW1 and South Fork, the nature and duration of the
activity, the mitigation measures, and likely avoidance behavior, any
PTS is expected to be of a small degree, would be limited to
frequencies where pile-driving noise is concentrated (i.e., only a
small subset of their expected hearing range) and would not be expected
to impact reproductive success or survival.
North Atlantic Right Whale
North Atlantic right whales are listed as endangered under the ESA
and as both a depleted and strategic stock under the MMPA. As described
in the ``Potential Effects to Marine Mammals and Their Habitat''
section of the proposed rule, North Atlantic right whales are
threatened by a low population abundance, higher than average mortality
rates, and lower than average reproductive rates. Recent studies have
reported individuals showing high stress levels (e.g., Corkeron et al.,
2017) and poor health, which has further implications on reproductive
success and calf survival (Christiansen et al., 2020; Stewart et al.,
2021; Stewart et al., 2022). As described below, a UME has been
designated for North Atlantic right whales. Given this, the status of
the North Atlantic right whale population is of heightened concern and,
therefore, merits additional analysis and consideration. No Level A
harassment, serious injury, or mortality is anticipated or may be
authorized for this species.
For North Atlantic right whales, this rule may allow up to ten
takes to be authorized, by Level B harassment only, over the 5-year
period, with a maximum annual allowable take by Level B harassment of
four (equating to approximately 1.18 percent of the stock abundance, if
each take were considered to be of a different individual). The project
area is known as a migratory corridor for North Atlantic right whales
and given the nature of migratory behavior (e.g., continuous path), as
well as the very low number of total takes, we do not anticipate that
any of the instances of take would represent repeat takes of any
individual, though it could occur if whales are engaged in
opportunistic foraging behavior. Barco et al. (2015) observed North
Atlantic right whales engaging in open mouth behavior, north of the
project area in Virginia coastal waters which is suggestive, though not
necessarily indicative, of feeding. While opportunistic foraging may
occur in the project area, the area does not support prime foraging
habitat.
The highest density of North Atlantic right whales in the project
area occurs in the winter (table 6). The Mid-Atlantic, including the
project area, may be a stopover site for migrating North Atlantic right
whales moving to or from southeastern calving grounds. North Atlantic
right whales have been acoustically detected in the vicinity of the
project area year-round (Bailey et al., 2018) with the highest
occurrences documented during late winter/early spring. Similarly, the
waters off the coast of Maryland, including those surrounding the
project area in the MD WEA, have documented North Atlantic right whale
presence as the area is an important migratory route for the species to
the northern feeding areas near the Gulf of Maine and Georges Banks and
to their southern breeding and calving grounds off the southeastern
United States (CETAP, 1982; LaBrecque et al., 2015; Salisbury et al.,
2016; Davis et al., 2017). However, comparatively, the project area is
not known as an important area for feeding, breeding, or calving.
North Atlantic right whales range outside the project area for
their main feeding, breeding, and calving activities (Hayes et al.,
2023). Additional qualitative observations include animals feeding and
socializing in New England waters, north of the MD WEA (Quintana-Rizzo
et al., 2021). The North Atlantic right whales observed north of the MD
WEA were primarily concentrated in the northeastern and southeastern
sections of the Massachusetts WEA (MA WEA) during the summer (June-
August) and winter (December-February). North Atlantic right whale
distribution shifted to the west into the Rhode Island/Massachusetts
(RI/MA) WEA in the spring (March-May).Quintana-Rizzo et al. (2021)
found that approximately 23 percent of the right whale population was
present from December through May, and the mean residence time tripled
to an average of 13 days during these months. The MD WEA is not in or
near these areas important to feeding, breeding, and calving
activities.
In general, North Atlantic right whales in the project area are
expected to be engaging in migratory behavior. Given the species'
migratory behavior in the project area, we anticipate individual whales
would be typically migrating through the area during most months when
foundation installation would occur (given the seasonal restrictions on
foundation installation, rather than lingering for extended periods of
time). Other work that involves much smaller harassment zones (e.g.,
HRG surveys) may also occur during periods when North Atlantic right
whales are using the habitat for migration. It is important to note the
activities occurring from December through May that may impact North
Atlantic right whale would be HRG surveys which are planned to take
place during years 2 and 3 for only 14 days each year from April
through June and would not result in very high received levels. Across
all years, if an individual were to be exposed during a subsequent
year, the impact of that exposure is likely independent of the previous
exposure given the duration between exposures.
As described in the Description of Marine Mammals in the Geographic
Area of Specified Activities, North Atlantic right whales are presently
experiencing an ongoing UME (beginning in June 2017). Preliminary
findings support human interactions, specifically vessel strikes and
entanglements, as the cause of death for the majority of North Atlantic
right whales. Given the current status of the North Atlantic right
whale, the loss of even one individual could significantly impact the
population. No mortality, serious injury, or injury of North Atlantic
right whales as a result of the Project is expected or may be
authorized. Any disturbance to North Atlantic right whales due to US
Wind's activities is expected to result in only temporary avoidance of
the immediate area of construction. As no injury, serious injury, or
mortality is expected or may be authorized, and Level B harassment of
North Atlantic right whales will be reduced to the level of least
practicable adverse impact through
[[Page 84708]]
use of mitigation measures, the number of takes of North Atlantic right
whales to be authorized would not exacerbate or compound the effects of
the ongoing UME.
As described in the general Mysticetes section above, foundation
installation is likely to result in the highest amount of annual take
and is of greatest concern given loud source levels. This activity
would likely be limited to up to 119 days (114 for WTG monopile
foundations, 4 days for OSS jacket foundations, and 1 day for Met tower
pin pile foundations) over a maximum of 3 years, during times when,
based on the best available scientific data, North Atlantic right
whales are less frequently encountered due to their migratory behavior.
The potential types, severity, and magnitude of impacts are also
anticipated to mirror that described in the general Mysticetes section
above, including avoidance (the most likely outcome), changes in
foraging or vocalization behavior, masking, a small amount of TTS, and
temporary physiological impacts (e.g., change in respiration, change in
heart rate). Importantly, the effects of the specified activities are
expected to be sufficiently low-level and localized to specific areas
as to not meaningfully impact important behaviors, such as migratory
behavior of North Atlantic right whales. These takes are expected to
result in temporary behavioral reactions, such as slight displacement
(but not abandonment) of migratory habitat or temporary cessation of
feeding. Further, given these exposures are generally expected to occur
to different individual right whales migrating through (i.e., most
individuals would not be expected to be impacted on more than 1 day in
a year), they are unlikely to result in energetic consequences that
could affect reproduction or survival of any individuals.
Overall, NMFS expects that any behavioral harassment of North
Atlantic right whales incidental to the specified activities would not
result in changes to their migration patterns or foraging success, as
only temporary avoidance of an area during construction is expected to
occur. As described previously, North Atlantic right whales migrating
through the project area are not expected to remain in this habitat for
extensive durations, and any temporarily displaced animals would be
able to return to or continue to travel through and forage in these
areas once activities have ceased.
Although acoustic masking may occur in the vicinity of the
foundation installation activities, based on the acoustic
characteristics of noise associated with pile driving (e.g., frequency
spectra, short duration of exposure) and construction surveys (e.g.,
intermittent signals), NMFS expects masking effects to be minimal
(e.g., impact pile driving) to none (e.g., HRG surveys). In addition,
masking would likely only occur during the period of time that a North
Atlantic right whale is in the relatively close vicinity of pile
driving, which is expected to be intermittent within a day, and
confined to the months in which North Atlantic right whales are at
lower densities and primarily moving through the area, anticipated
mitigation effectiveness, and likely avoidance behaviors. TTS is
another potential form of Level B harassment that could result in brief
periods of slightly reduced hearing sensitivity affecting behavioral
patterns by making it more difficult to hear or interpret acoustic cues
within the frequency range (and slightly above) of sound produced
during impact pile driving; however, any TTS would likely be of low
amount, limited duration, and limited to frequencies where most
construction noise is centered (below 2 kHz). NMFS expects that right
whale hearing sensitivity would return to pre-exposure levels shortly
after migrating through the area or moving away from the sound source.
As described in the ``Potential Effects of Specified Activities on
Marine Mammals and Their Habitat'' section of the proposed rule, the
distance of the receiver to the source influences the severity of
response with greater distances typically eliciting less severe
responses. NMFS recognizes North Atlantic right whales migrating could
be pregnant females (in the fall) and cows with older calves (in
spring) and that these animals may slightly alter their migration
course in response to any foundation pile driving; however, as
described in the ``Potential Effects of Specified Activities on Marine
Mammals and Their Habitat'' section of the proposed rule, we anticipate
that course diversion would be of small magnitude. Hence, while some
avoidance of the pile driving activities may occur, we anticipate any
avoidance behavior of migratory North Atlantic right whales would be
similar to that of gray whales (Tyack et al., 1983), on the order of
approximately hundreds of meters up to 1 to 2 km. This diversion from a
migratory path otherwise uninterrupted by the planned activities is not
expected to result in meaningful energetic costs that would impact
annual rates of recruitment of survival. NMFS expects that North
Atlantic right whales would be able to avoid areas during periods of
active noise production while not being forced out of this portion of
their habitat.
North Atlantic right whale presence in the project area is year-
round. However, abundance during summer months is lower compared to the
winter months with spring and fall serving as ``shoulder seasons''
wherein abundance waxes (fall) or wanes (spring). Given this year-round
habitat usage, in recognition that where and when whales may actually
occur during Project activities is unknown as it depends on the annual
migratory behaviors, US Wind has proposed, and NMFS is requiring a
suite of mitigation measures designed to reduce impacts to North
Atlantic right whales to the maximum extent practicable. These
mitigation measures (e.g., seasonal/daily work restrictions, vessel
separation distances, reduced vessel speed) will not only avoid the
likelihood of vessel strikes but also will minimize the severity of
behavioral disruptions by minimizing impacts (e.g., through sound
reduction using attenuation systems and reduced temporal overlap of
Project activities and North Atlantic right whales). This will further
ensure that the number of takes by Level B harassment that are
estimated to occur are not expected to affect reproductive success or
survivorship by detrimental impacts to energy intake or cow/calf
interactions during migratory transit. However, even in consideration
of recent habitat-use and distribution shifts, US Wind will still be
installing foundations when the presence of North Atlantic right whales
is expected to be lower.
As described in the Description of Marine Mammals in the Geographic
Area of Specified Activities section, the Project will be constructed
within the North Atlantic right whale migratory corridor BIA, which
represent areas and months within which a substantial portion of a
species or population is known to migrate. The area over which North
Atlantic right whales may be harassed is relatively small compared to
the width of the migratory corridor. The width of the migratory
corridor, at the widest point across the corridor, offshore of Maryland
where the corridor overlaps the Lease Area is approximately 163.8 km
while the width of the Lease Area, at the longest point, is
approximately 33.1 km. North Atlantic right whales may be displaced
from their normal path and preferred habitat in the immediate activity
area (primarily from pile driving activities), however, we do not
anticipate displacement to be of high magnitude (e.g., beyond a few
kilometers); thereby,
[[Page 84709]]
any associated bio-energetic expenditure is anticipated to be small.
There are no known North Atlantic right whale feeding, breeding, or
calving areas within the project area. Prey species are mobile (e.g.,
calanoid copepods can initiate rapid and directed escape responses) and
are broadly distributed throughout the project area (noting again that
North Atlantic right whale prey is not particularly concentrated in the
project area relative to more northern foraging habitats). Therefore,
any impacts to prey that may occur are also unlikely to impact marine
mammals.
The most significant measure to minimize impacts to individual
North Atlantic right whales is the seasonal moratorium on all
foundation installation activities from December 1 through April 30,
when North Atlantic right whale abundance in the project area is
expected to be highest. NMFS also expects this measure to greatly
reduce the potential for mother-calf pairs to be exposed to impact pile
driving noise above the Level B harassment threshold during their
annual spring migration through the project area from calving grounds
to primary foraging grounds (e.g., Cape Cod Bay). NMFS expects that
exposures to North Atlantic right whales will be reduced due to the
additional required mitigation measures that would ensure that any
exposures above the Level B harassment threshold would result in only
short-term effects to individuals exposed.
Pile driving may only begin in the absence of North Atlantic right
whales (based on visual and passive acoustic monitoring). If pile
driving has commenced, NMFS anticipates North Atlantic right whales
would avoid the area, utilizing nearby waters to carry on pre-exposure
behaviors. However, foundation installation activities must be shut
down if a North Atlantic right whale is sighted at any distance unless
a shutdown is not feasible due to risk of injury or loss of life or
pile refusal or instability. NMFS anticipates that if North Atlantic
right whales go undetected and they are exposed to foundation
installation noise, it is unlikely a North Atlantic right whale would
approach the sound source locations to the degree that they would
expose themselves to very high noise levels. This is because typical
observed whale behavior demonstrates likely avoidance of harassing
levels of sound where possible (Richardson et al., 1985). These
measures are designed to avoid PTS and also reduce the severity of
Level B harassment, including the potential for TTS. While some TTS
could occur, given the required mitigation measures (e.g., delay pile
driving upon a sighting or acoustic detection and shutting down upon a
sighting or acoustic detection), the potential for TTS to occur is low
and any TTS that may occur would likely be of low degree and with
recovery occurring quickly.
The required clearance and shutdown measures are most effective
when detection efficiency is maximized, as the measures are triggered
by a sighting or acoustic detection. To maximize detection efficiency,
US Wind proposed, and NMFS is requiring, the combination of PAM and
visual observers. NMFS is requiring communication protocols with other
Project vessels, and other heightened awareness efforts (e.g., daily
monitoring of North Atlantic right whale sighting databases) such that
as a North Atlantic right whale approaches the source (and thereby
could be exposed to higher noise energy levels), PSO detection efficacy
would increase, the whale would be detected, and a delay to commencing
foundation installation or shutdown (if feasible) would occur. In
addition, the implementation of a soft-start for impact pile driving
would provide an opportunity for whales to move away from the source if
they are undetected, reducing received levels.
For HRG surveys, the maximum distance to the Level B harassment
threshold is 200 m. The estimated take, by Level B harassment only,
associated with HRG surveys is to account for any North Atlantic right
whale sightings PSOs may miss when HRG acoustic sources are active.
However, because of the relatively short maximum distance to the Level
B harassment threshold, the requirement that vessels maintain a
distance of 500 m from any North Atlantic right whales, the fact that
whales are unlikely to remain in close proximity to an HRG survey
vessel for any length of time, and that the acoustic source would be
shut down if a North Atlantic right whale is observed within 500 m of
the source, any exposure to noise levels above the harassment threshold
(if any) would be very brief. To further minimize exposures, ramp-up of
sub-bottom profilers must be delayed during the clearance period if
PSOs detect a North Atlantic right whale (or any other ESA-listed
species) within 500 m of the acoustic source. With implementation of
the required mitigation measures, take by Level A harassment is
unlikely and, therefore, not authorized. Potential impacts associated
with Level B harassment would include low-level, temporary behavioral
modifications, most likely in the form of avoidance behavior. Given the
high level of precautions taken to minimize both the amount and
intensity of Level B harassment on North Atlantic right whales, it is
unlikely that the anticipated low-level exposures would lead to reduced
reproductive success or survival.
As described above, no serious injury or mortality, or Level A
harassment, of North Atlantic right whale is anticipated or may be
authorized. Extensive North Atlantic right whale-specific mitigation
measures (beyond the robust suite required for all species) are
expected to further minimize the amount and severity of Level B
harassment. Given the documented habitat use within the area, the
majority of the individuals predicted to be taken (including no more
than ten instances of take, by Level B harassment only, over the course
of the 5-year rule, with an annual maximum of no more than four) would
be impacted on only 1, or maybe 2, days in a year as North Atlantic
right whales utilize this area for migration and would be transiting
rather than residing in the area for extended periods of time. Further,
any impacts to North Atlantic right whales are expected to be in the
form of lower-level behavioral disturbance.
Given the magnitude and severity of the impacts discussed above,
and in consideration of the required mitigation and other information
presented, US Wind's activities are not expected to result in impacts
on the reproduction or survival of any individuals, much less affect
annual rates of recruitment or survival. For these reasons, we have
determined that the take (by Level B harassment only) anticipated and
to be authorized would have a negligible impact on the North Atlantic
right whale.
Fin Whale
The fin whale is listed as Endangered under the ESA, and the
western North Atlantic stock is considered both Depleted and Strategic
under the MMPA. No UME has been designated for this species or stock.
No serious injury or mortality is anticipated or may be authorized for
this species.
This rule would allow for the authorization of up to 41 takes, by
Level A harassment and Level B harassment, over the 5-year period. The
maximum annual allowable take by Level A harassment and Level B
harassment, would be 2 and 18, respectively (combined, this annual take
(n=20) equates to approximately 0.29 percent of the stock abundance if
each take were considered to be of a different individual). The project
area does not
[[Page 84710]]
overlap with any known areas of specific biological importance to fin
whales. It is possible that some subset of the individual whales
exposed could be taken several times annually.
Level B harassment is expected to be in the form of behavioral
disturbance, primarily resulting in avoidance of the project area where
foundation installation is occurring, and some low-level TTS and
masking that may limit the detection of acoustic cues for relatively
brief periods of time. Any potential PTS would be minor (limited to a
few dB) and any TTS would be of short duration and concentrated at one-
half or one octave above the frequency band of pile driving noise (most
sound is below 2 kHz) which does not include the full predicted hearing
range of fin whales. If TTS is incurred, hearing sensitivity would
likely return to pre-exposure levels relatively shortly after exposure
ends. Any masking or physiological responses would also be of low
magnitude and severity for reasons described above. Level B harassment
would be temporary, with primary impacts being temporary displacement
of the project area but not abandonment of any migratory or foraging
behavior. There is no known foraging habitat for fin whales within the
project area. Any fin whales in the project area would be expected to
be migrating through the area and would have sufficient space to move
away from Project activities.
Fin whales are frequently observed in the waters off of Maryland
and are one of the most commonly detected large baleen whales in
continental shelf waters, principally from Cape Hatteras in the Mid-
Atlantic northward to Nova Scotia, Canada (CETAP, 1982; Hain et al.,
1992; BOEM 2012; Barco et al., 2015; Edwards et al., 2015; Bailey et
al., 2018; Hayes et al., 2023). Fin whales have high relative abundance
in the Mid-Atlantic and project area, and most observations occur in
the winter and early spring months (Williams et al., 2015d; Barco et
al., 2015), with larger group sizes occurring during the winter months
(Barco et al., 2015). However, fin whales typically feed in waters off
of New England and within the Gulf of Maine, areas north of the project
area, as New England and Gulf of St. Lawrence waters represent major
feeding ground for fin whales (Hayes et al., 2023). Hain et al. (1992)
based on an analysis of neonate stranding data, suggested that calving
takes place during October to January in latitudes of the U.S. mid-
Atlantic region; however, it is unknown where calving, mating, and
wintering occur for most of the population (Hayes et al., 2023).
Given the documented habitat use within the area, some of the
individuals taken may be exposed on multiple days. However, as
described, the project area does not include areas where fin whales are
known to concentrate for feeding or reproductive behaviors and the
predicted takes are expected to be in the form of lower-level impacts.
Given the magnitude and severity of the impacts discussed above
(including no more than 18 takes, by Level A harassment and Level B
harassment, over the course of the 5-year rule, and a maximum annual
allowable take by Level A harassment and Level B harassment, of 2 and
18 respectively), and in consideration of the required mitigation and
other information presented, US Wind's activities are not expected to
result in impacts on the reproduction or survival of any individuals,
much less affect annual rates of recruitment or survival. For these
reasons, we have determined that the take (by Level A harassment and
Level B harassment) anticipated and to be authorized would have a
negligible impact on the western North Atlantic stock of fin whales.
Humpback Whale
The West Indies DPS of humpback whales is not listed as threatened
or endangered under the ESA, but the Gulf of Maine stock, which
includes individuals from the West Indies DPS, is considered Strategic
under the MMPA. However, as described in the Description of Marine
Mammals in the Geographic Area of Specified Activities, humpback whales
along the Atlantic Coast have been experiencing an active UME as
elevated humpback whale mortalities have occurred along the Atlantic
coast from Maine through Florida since January 2016. Of the cases
examined, approximately 40 percent had evidence of human interaction
(vessel strike or entanglement). The UME does not yet provide cause for
concern regarding population-level impacts and take from vessel strike
and entanglement would not be authorized. Despite the UME, the relevant
population of humpback whales (the West Indies breeding population, or
DPS, of which the Gulf of Maine stock is a part) remains stable at
approximately 12,000 individuals.
This final rule would allow for the authorization of up to 36
takes, by Level A harassment and Level B harassment, over the 5-year
period. The maximum annual allowable take by Level A harassment and
Level B harassment would be 2 and 16, respectively (combined, this
maximum annual take (n=18) equates to approximately 1.29 percent of the
stock abundance if each take were considered to be of a different
individual). Given that humpback whales are known to forage in areas
just south of Maryland during the winter and could potentially be
foraging off Maryland during this time as well, it is likely that some
subset of the individual whales exposed could be taken several times
annually.
Among the activities analyzed, impact pile driving is likely to
result in the highest amount of Level A harassment annual take of (n=2)
humpback whales. The maximum amount of annual take to be authorized
(n=14), by Level B harassment, is highest for impact pile driving.
As described in the Description of Marine Mammals in the Geographic
Area of Specified Activities section, humpback whales are known to
occur regularly throughout the Mid-Atlantic Bight, including Maryland
waters, with strong seasonality of peak occurrences during winter and
spring (Barco et al., 2015; Bailey et al., 2018; Hayes et al., 2023).
In the western North Atlantic, humpback whales feed during spring,
summer, and fall over a geographic range encompassing the eastern coast
of the United States. Feeding is generally considered to be focused in
areas north of the project area, including a feeding BIA in the Gulf of
Maine/Stellwagen Bank/Great South Channel, but has been documented
farther south and off the coast of Virginia. When foraging, humpback
whales tend to remain in the area for extended durations to capitalize
on the food sources.
Assuming humpback whales who are feeding in waters within or
surrounding the project area behave similarly, we expect that the
predicted instances of disturbance could be comprised of some
individuals that may be exposed on multiple days if they are utilizing
the area as foraging habitat. Also similar to other baleen whales, if
migrating, individuals would likely be exposed to noise levels from the
Project above the harassment thresholds only once during migration
through the project area.
For all the reasons described in the Mysticetes section above, we
anticipate any potential PTS and TTS would be concentrated at one-half
or one octave above the frequency band of pile driving noise (most
sound is below 2 kHz) which is lower than the full predicted hearing
range of humpback whales. If TTS is incurred, hearing sensitivity would
likely return to pre-exposure levels relatively shortly after exposure
ends. Any masking or physiological responses would also be of low
magnitude and severity for reasons described above. Limited foraging
[[Page 84711]]
habitat exists for humpback whales within the project area as their
main foraging habitat is located further north. Any humpback whales in
the project area would more likely be migrating through the area.
Given the magnitude and severity of the impacts discussed above
(including no more than 36 humpback whale takes over the course of the
5-year rule, a maximum annual allowable take by Level A harassment and
Level B harassment, of 2 and 16, respectively), and in consideration of
the required mitigation measures and other information presented, US
Wind's activities are not expected to result in impacts on the
reproduction or survival of any individuals, much less affect annual
rates of recruitment or survival. For these reasons, we have determined
that the take by harassment anticipated and to be authorized would have
a negligible impact on the Gulf of Maine stock of humpback whales.
Minke Whale
Minke whales are not listed under the ESA, and the Canadian east
coast stock is neither considered Depleted nor Strategic under the
MMPA. There are no known areas of specific biological importance in or
adjacent to the project area. As described in the Description of Marine
Mammals in the Geographic Area of Specified Activities, a UME has been
designated for this species but is pending closure. No serious injury
or mortality is anticipated or may be authorized for this species.
This final rule would allow for the authorization of up to 67 minke
whale takes, by Level A harassment and Level B harassment, over the 5-
year period. The maximum annual allowable take by Level A harassment
and Level B harassment, would be 6 and 41, respectively (combined, this
annual take (n=47) equates to approximately 0.21 percent of the stock
abundance if each take were considered to be of a different
individual). As described in the Description of Marine Mammals in the
Geographic Area of Specified Activities section, minke whales are
common offshore the U.S. eastern seaboard with a strong seasonal
component in the continental shelf and in deeper, off-shelf waters
(CETAP, 1982; Hayes et al., 2023). In the project area, minke whales
are predominantly migratory and their known feeding areas are north,
including a feeding BIA in the southwestern Gulf of Maine and George's
Bank. Therefore, they would be more likely to be moving through (with
each take representing a separate individual), though it is possible
that some subset of the individual whales exposed could be taken up to
a few times annually.
As described in the Description of Marine Mammals in the Geographic
Area of Specified Activities section, there is a UME for minke whales
along the Atlantic Coast from Maine through South Carolina, with the
highest number of deaths in Massachusetts, Maine, and New York, and
preliminary findings in several of the whales have shown evidence of
human interactions or infectious diseases. However, we note that the
population abundance is greater than 21,000 and the take to be
authorized through this action is not expected to exacerbate the UME in
any way.
We anticipate the impacts of this harassment to follow those
described in the general Mysticetes section above. Any potential PTS
would be minor (limited to a few dB) and any TTS would be of short
duration and concentrated at one-half or one octave above the frequency
band of pile driving noise (most sound is below 2 kHz) which does not
include the full predicted hearing range of minke whales. If TTS is
incurred, hearing sensitivity would likely return to pre-exposure
levels relatively shortly after exposure ends. Any masking or
physiological responses would also be of low magnitude and severity for
reasons described above. Level B harassment would be temporary, with
primary impacts being temporary displacement of the project area but
not abandonment of any migratory or foraging behavior. Limited foraging
habitat for minke whales exists in the project area as major foraging
habitats are located further north near New England. Any minke whales
in the project area would be expected to migrate through the area and
would have sufficient space to move away from Project activities.
Given the magnitude and severity of the impacts discussed above
(including no more than 67 takes over the course of the 5-year rule,
and a maximum annual allowable take by Level A harassment and Level B
harassment, of 6 and 41, respectively), and in consideration of the
required mitigation measures and other information presented, US Wind's
activities are not expected to result in impacts on the reproduction or
survival of any individuals, much less affect annual rates of
recruitment or survival. For these reasons, we have determined that the
take by harassment anticipated and to be authorized would have a
negligible impact on the Canadian eastern coastal stock of minke
whales.
Sei Whale
Sei whales are listed as Endangered under the ESA, and the Nova
Scotia stock is considered both Depleted and Strategic under the MMPA.
There are no known areas of specific biological importance in or
adjacent to the project area and no UME has been designated for this
species or stock. No serious injury or mortality is anticipated or may
be authorized for this species.
This final rule would allow for the authorization of up to six
takes, by Level A harassment and Level B harassment, over the 5-year
period. The maximum annual allowable take by Level A harassment and
Level B harassment, would be one and one, respectively (combined, this
annual take (n=2) equates to approximately 0.03 percent of the stock
abundance, if each take were considered to be of a different
individual). As described in the Description of Marine Mammals in the
Geographic Area of Specified Activities section, most of the sei whale
distribution is concentrated in Canadian waters and seasonally in
northerly U.S. waters, though they are uncommonly observed in the
waters off of Maryland. Because sei whales are migratory and their
known feeding areas are east and north of the project area (e.g., there
is a feeding BIA in the Gulf of Maine), they would be more likely to be
moving through and, considering this and the very low number of total
takes, it is unlikely that any individual would be exposed more than
once within a given year.
With respect to the severity of those individual takes by
behavioral Level B harassment, we would anticipate impacts to be
limited to low-level, temporary behavioral responses with avoidance and
potential masking impacts in the vicinity of the turbine installation
to be the most likely type of response. Any potential PTS and TTS would
likely be concentrated at one-half or one octave above the frequency
band of pile driving noise (most sound is below 2 kHz) which is below
the full predicted hearing range of sei whales. Moreover, any TTS would
be of a small degree. Any avoidance of the project area due to the
Project's activities would be expected to be temporary. There is no
known foraging habitat that exists in the project area for sei whales.
Any sei whales in the project area would be expected to be migrating
through the area.
Given the magnitude and severity of the impacts discussed above
(including no more than six takes over the course of the 5-year rule,
and a maximum annual allowable take by Level A
[[Page 84712]]
harassment and Level B harassment, of one and one, respectively), and
in consideration of the required mitigation measures and other
information presented, US Wind's activities are not expected to result
in impacts on the reproduction or survival of any individuals, much
less affect annual rates of recruitment or survival. For these reasons,
we have determined that the take by harassment anticipated and to be
authorized would have a negligible impact on the Nova Scotia stock of
sei whales.
Odontocetes
In this section, we include information here that applies to all of
the odontocete species and stocks addressed below. Odontocetes include
dolphins, porpoises, and all other whales possessing teeth, and we
further divide them into the following subsections: sperm whales, small
whales and dolphins, and harbor porpoise. These sub-sections include
more specific information, as well as conclusions for each stock
represented.
All of the takes of odontocetes that may be authorized incidental
to US Wind's specified activities are by pile driving and HRG surveys.
No serious injury or mortality is anticipated or may be authorized. We
anticipate that, given ranges of individuals (i.e., that some
individuals remain within a small area for some period of time), and
non-migratory nature of some odontocetes in general (especially as
compared to mysticetes), these takes are more likely to represent
multiple exposures of a smaller number of individuals than is the case
for mysticetes, though some takes may also represent one-time exposures
to an individual. Foundation installation is likely to disturb
odontocetes to the greatest extent, compared to HRG surveys. While we
expect animals to avoid the area during foundation installation, their
habitat range is extensive compared to the area ensonified during these
activities.
As described earlier, Level B harassment may include direct
disruptions in behavioral patterns (e.g., avoidance, changes in
vocalizations (from masking) or foraging), as well as those associated
with stress responses or TTS. Odontocetes are highly mobile species
and, similar to mysticetes, NMFS expects any avoidance behavior to be
limited to the area near the sound source. While masking could occur
during foundation installation, it would only occur in the vicinity of
and during the duration of the activity and would not generally occur
in a frequency range that overlaps most odontocete communication or any
echolocation signals. The mitigation measures (e.g., use of sound
attenuation systems, implementation of clearance and shutdown zones)
would also minimize received levels such that the severity of any
behavioral response would be expected to be less than exposure to
unmitigated noise exposure.
Any masking or TTS effects are anticipated to be of low severity.
First, the frequency range of pile driving, the most impactful activity
that would be conducted in terms of response severity, falls within a
portion of the frequency range of most odontocete vocalizations.
However, odontocete vocalizations span a much wider range than the low-
frequency construction activities planned for the Project. As described
above, recent studies suggest odontocetes have a mechanism to self-
mitigate (i.e., reduce hearing sensitivity) the impacts of noise
exposure, which could potentially reduce TTS impacts. Any masking or
TTS is anticipated to be limited and would typically only interfere
with communication within a portion of an odontocete's range and as
discussed earlier, the effects would only be expected to be of a short
duration and, for TTS, a relatively small degree.
Furthermore, odontocete echolocation occurs predominantly at
frequencies significantly higher than low-frequency construction
activities. Therefore, there is little likelihood that threshold shift
would interfere with feeding behaviors. For HRG surveys, the sources
operate at higher frequencies than foundation installation activities.
However, sounds from these sources attenuate very quickly in the water
column, as described above. Therefore, any potential for PTS and TTS
and masking is very limited. Further, odontocetes (e.g., common
dolphins, spotted dolphins, bottlenose dolphins) have demonstrated an
affinity to bow-ride actively surveying HRG surveys. Therefore, the
severity of any harassment during HRG surveys, if it does occur, is
anticipated to be very low in severity based on the lack of avoidance
previously demonstrated by these species.
The waters off the coast of Maryland are used by several odontocete
species. None of these species are listed under the ESA, and there are
no known habitats of particular importance. In general, odontocete
habitat ranges are far-reaching along the Atlantic coast of the United
States, and the waters off of Maryland, including the project area, do
not contain any unique odontocete habitat features.
Dolphins and Small Whales (Including Delphinids)
The 10 species and 11 stocks included in this group for which NMFS
may authorize take are not listed under the ESA; however, short-finned
pilot whales are listed as Strategic under the MMPA. There are no known
areas of specific biological importance in or around the project area
for any of these species and no UMEs have been designated for any of
these species. No serious injury, mortality, or take by Level A
harassment is anticipated or may be authorized for these species.
The 10 delphinid species for which NMFS may authorize take are:
Atlantic spotted dolphin, Pantropical spotted dolphin, common
bottlenose dolphin (coastal and northern migratory stocks), common
dolphin, long-finned pilot whale, short-finned pilot whale, killer
whale, rough-toothed dolphin, striped dolphin, and Risso's dolphin.
This final rule would allow for the authorization of between 3 and
3,013 takes (depending on species), by Level B harassment only, over
the 5-year period. The maximum annual allowable take for these species
by Level B harassment, would range from 3 to 1,762, respectively (this
annual take equates to approximately 0.07 to 24.0 percent of the stock
abundance, depending on each stock, if each take were considered to be
of a different individual).
For both stocks of bottlenose dolphins, given the comparatively
higher number of total annual takes (1,591 for coastal and 1,768 for
offshore) and the relative number of takes as compared to the stock
abundance (24.0 and 2.81, respectively), primarily due to the
progression of the location of impact pile driving each year, while
some of the takes likely represent exposures of different individuals
on 1 day a year, it is likely that some subset of the individuals
exposed could be taken several times annually. For Atlantic spotted
dolphins, Pantropical spotted dolphins, common dolphins, long- and
short-finned pilot whales, killer whales, rough-toothed dolphins,
striped dolphins, and Risso's dolphins, given the number of takes,
while many of the takes likely represent exposures of different
individuals on 1 day a year, some subset of the individuals exposed
could be taken up to a few times annually.
Dolphins and small delphinids engage in social, reproductive, and
foraging behavior in the waters offshore of Maryland. However, the
number of takes, likely movement patterns of the affected species, and
the intensity of any Level B harassment, combined with the
[[Page 84713]]
availability of alternate nearby habitat that supports the
aforementioned behaviors suggests that the likely impacts would not
impact the reproduction or survival of any individuals. While
delphinids may be taken on several occasions, none of these species are
known to have small home ranges within the project area or known to be
particularly sensitive to anthropogenic noise. No Level A harassment
(PTS) is anticipated or may be authorized. Some TTS could occur, but it
would be limited to the frequency ranges of the activity and any loss
of hearing sensitivity is anticipated to return to pre-exposure
conditions shortly after the animals move away from the source or the
source ceases.
Given the magnitude and severity of the impacts discussed above,
and in consideration of the required mitigation and other information
presented, US Wind's activities are not expected to result in impacts
on the reproduction or survival of any individuals, much less affect
annual rates of recruitment or survival. For these reasons, we have
determined that the take by harassment anticipated and to be authorized
would have a negligible impact on all of the species and stocks
addressed in this section.
Harbor Porpoise
Harbor porpoises are not listed as Threatened or Endangered under
the ESA, and the Gulf of Maine/Bay of Fundy stock is neither considered
Depleted nor Strategic under the MMPA. The stock is found predominantly
in northern U.S. coastal waters (less than 150 m depth) and up into
Canada's Bay of Fundy (between New Brunswick and Nova Scotia). Although
the population trend is not known, there are no UMEs or other factors
that cause particular concern for this stock. No mortality or non-
auditory injury are anticipated and may be authorized for this stock.
This final rule would allow for the authorization of up to 74
takes, by Level A harassment and Level B harassment, over the 5-year
period. The maximum annual allowable take by Level A harassment and
Level B harassment, would be 3 and 39, respectively (combined, this
annual take (n=42) equates to approximately 0.04 percent of the stock
abundance if each take were considered to be of a different
individual). Given the number of takes, many of the takes likely
represent exposures of different individuals on 1 day a year.
Regarding the severity of takes by Level B harassment, because
harbor porpoises are particularly sensitive to noise, it is likely that
a fair number of the responses could be of a moderate nature,
particularly to pile driving. In response to pile driving, harbor
porpoises are likely to avoid the area during construction, as
previously demonstrated in Tougaard et al. (2009) in Denmark, in Dahne
et al. (2013) in Germany, and in Vallejo et al. (2017) in the United
Kingdom, although a study by Graham et al. (2019) may indicate that the
avoidance distance could decrease over time. Given that foundation
installation is scheduled to occur off the coast of Maryland and, given
alternative foraging areas nearby, any avoidance of the area by
individuals is not likely to impact the reproduction or survival of any
individuals.
With respect to PTS and TTS, the effects on an individual are
likely relatively low given the frequency bands of pile driving (most
energy below 2 kHz) compared to harbor porpoise hearing (150 Hz to 160
kHz peaking around 40 kHz). Specifically, TTS is unlikely to impact
hearing ability in their more sensitive hearing ranges, or the
frequencies in which they communicate and echolocate. We expect any PTS
that may occur to be within the very low end of their hearing range
where harbor porpoises are not particularly sensitive, and any PTS
would affect a relatively small portion of the individual's hearing
range. As such, any PTS would not interfere with key foraging or
reproductive strategies necessary for reproduction or survival.
Harbor porpoises are seasonally distributed (Hayes et al., 2023).
During fall (October through December) and spring (April through June),
harbor porpoises are widely dispersed from New Jersey to Maine, with
lower densities farther north and south. During winter (January to
March), intermediate densities of harbor porpoises can be found in
waters off New Jersey to North Carolina, and lower densities are found
in waters off New York to New Brunswick, Canada. In non-summer months
they have been seen from the coastline to deep waters (>1800 m;
Westgate et al., 1998), although the majority are found over the
continental shelf. While harbor porpoises are likely to avoid the area
during any of the Project's construction activities, as demonstrated
during European wind farm construction, the time of year in which work
would occur is when harbor porpoises are not in highest abundance, and
any work that does occur would not result in the species' abandonment
of the waters off of Maryland.
Given the magnitude and severity of the impacts discussed above,
and in consideration of the required mitigation and other information
presented, US Wind's activities are not expected to result in impacts
on the reproduction or survival of any individuals, much less affect
annual rates of recruitment or survival. For these reasons, we have
determined that the take by harassment anticipated and to be authorized
would have a negligible impact on the Gulf of Maine/Bay of Fundy stock
of harbor porpoises.
Phocids (Harbor Seals, Gray Seals, and Harp Seals)
The harbor seal, gray seal, and harp seal are not listed under the
ESA, and these stocks are not considered Depleted or Strategic under
the MMPA. There are no known areas of specific biological importance in
or around the project area. As described in the Description of Marine
Mammals in the Geographic Area of Specified Activities section, a UME
was designated for harbor seals and gray seals from June 20 through
July 20, 2023 but has since been closed. No serious injury or mortality
is anticipated or may be authorized for any seal species.
As limited occurrence data for seals are available for the project
area, take estimates for harbor seals, gray seals, and harp seals are
presented as one estimate. For the three seal species, this final rule
would allow for the total authorization of up to 496 seals by Level B
harassment, over the 5-year period. The maximum annual allowable take
for these species, by Level B harassment, would be 341 seals. If all of
the allocated take was attributed to gray seals, this take would equate
to 1.25 percent of the gray seal stock abundance, if each take were
considered to be of a different individual. If all of the allocated
take was attributed to harbor seals, this take would equate to 0.56
percent of the harbor seal stock abundance, if each take were
considered to be of a different individual. If all of the allocated
take was attributed to harp seals, this take would equate to 0.004
percent of the harp seal stock abundance. Gray seals, harbor seals, and
harp seals are considered migratory and none of these species have
specific feeding areas that have been designated in the area,
therefore, it is likely that takes of seals would represent exposures
of different individuals throughout the Project duration.
Harp seals are considered extralimital in the project area,
however, harp seal strandings have been documented in Maryland during
the winter and spring (Hayes et al., 2023; NAB, 2023a; NAB, 2023b).
Harbor and gray seals occur in Maryland waters most often from late
[[Page 84714]]
winter to early spring, with harbor seal occurrences being more common
than gray seals (Hayes et al., 2023). Seals are more likely to be close
to shore (e.g., closer to the edge of the area ensonified above NMFS'
harassment threshold), such that exposure to foundation installation
and HRG surveys would be expected to be at comparatively lower levels.
Although a gray seal rookery may occur off the coast of Cape Henlopen,
north of the project area, based on the distance of this area from the
project area it is not expected that in-air sounds produced would cause
the take of hauled out pinnipeds. As this is the closest documented
pinniped haul-out to the project area, NMFS does not expect any
harassment to occur, nor plans to authorize any take from in-air
impacts on hauled out seals.
As described in the Potential Effects of Specified Activities on
Marine Mammals and Their Habitat section, construction of wind farms in
Europe resulted in pinnipeds temporarily avoiding construction areas
but returning within short time frames after construction was complete
(Carroll et al., 2010; Hamre et al., 2011; Hastie et al., 2015; Russell
et al., 2016; Brasseur et al., 2010). Effects on pinnipeds that are
taken by Level B harassment in the project area would likely be limited
to reactions such as increased swimming speeds, increased surfacing
time, or decreased foraging (if such activity were occurring). Most
likely, individuals would simply move away from the sound source and be
temporarily displaced from those areas (Lucke et al., 2006; Edren et
al., 2010; Skeate et al., 2012; Russell et al., 2016). Given the low
anticipated magnitude of impacts from any given exposure (e.g.,
temporary avoidance), even potential repeated Level B harassment across
a few days of some small subset of individuals, which could occur, is
unlikely to result in impacts on the reproduction or survival of any
individuals. Moreover, pinnipeds would benefit from the mitigation
measures described in 50 CFR part 217--Regulations Governing the Taking
and Importing of Marine Mammals Incidental to Specified Activities.
As described above, noise from pile driving is mainly low-frequency
and, while any TTS that does occur would fall within the lower end of
pinniped hearing ranges (50 Hz to 86 kHz), TTS would not occur at
frequencies around 5 kHz, where pinniped hearing is most susceptible to
noise-induced hearing loss (Kastelein et al., 2018). No Level A
harassment (PTS) is anticipated or may be authorized. In summary, any
TTS would be of small degree and not occur across the entire, or even
most sensitive, hearing range. Hence, any impacts from TTS are likely
to be of low severity and not interfere with behaviors critical to
reproduction or survival.
Given the magnitude and severity of the impacts discussed above,
and in consideration of the required mitigation and other information
presented, US Wind's activities are not expected to result in impacts
on the reproduction or survival of any individuals, much less affect
annual rates of recruitment or survival. For these reasons, we have
determined that the take by harassment anticipated and may be
authorized would have a negligible impact on harbor, gray, and harp
seals.
Negligible Impact Determination
No mortality or serious injury is anticipated to occur or may be
authorized. As described in the analysis above, the impacts resulting
from the Project's activities cannot be reasonably expected to, and are
not reasonably likely to, adversely affect any of the species or stocks
for which take may be authorized through effects on annual rates of
recruitment or survival. 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
required mitigation and monitoring measures, NMFS finds that the marine
mammal take from all of US Wind's specified activities combined will
have a negligible impact on all affected marine mammal species or
stocks.
Small Numbers
As noted above, only small numbers of incidental take may 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 of individuals
estimated to be 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 less than one-third of
the species or stock abundance, the take is considered to be of small
numbers (86 FR 5322, January 19, 2021). Additionally, other qualitative
factors may be considered in the analysis, such as the temporal or
spatial scale of the activities.
The final rule allows for incidental take (by Level A harassment
and/or Level B harassment) of 19 species of marine mammal (with 20
managed stocks). The maximum number of instances of takes by combined
Level A harassment and Level B harassment possible within any one year
and that would be authorized relative to the best available population
abundance is less than one-third for all species and stocks potentially
impacted.
For 13 of these species (13 stocks), the allowable take by Level A
and/or Level B harassment equates to less than 1 percent as compared to
the stock abundance. For five stocks, the allowable take by Level A
and/or Level B harassment equates to less than 5 percent as compared to
the stock abundance, and for one stock the take by Level A and/or Level
B harassment equates to just under 25 percent as compared to the stock
abundance (coastal stock of bottlenose dolphins), assuming that each
instance of take represents a different individual. Specific to the
North Atlantic right whale, the maximum amount of take in any given
year, which is by Level B harassment only, is four, or 1.18 percent of
the stock abundance, assuming that each instance of take represents a
different individual. Please see table 22 for information relating to
this small numbers analysis.
Based on the analysis contained herein of the planned activities
(including the required mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
marine mammals would 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 would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Classification
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) requires that each Federal agency ensure 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 promulgation of rulemakings,
NMFS
[[Page 84715]]
consults internally whenever we propose to authorize take for
endangered or threatened species, in this case with the NOAA GARFO.
This final rule allows for the take of three marine mammal species
listed under the ESA: North Atlantic right, fin, and sei whales. The
Permits and Conservation Division requested initiation of section 7
consultation on December 5, 2023, with GARFO for the promulgation of
the rulemaking. NMFS GARFO issued a BiOp on June 18, 2024, concluding
that the promulgation of the rule and issuance of LOA thereunder is not
likely to jeopardize the continued existence of threatened and
endangered species under NMFS' jurisdiction and is not likely to result
in the destruction or adverse modification of designated or proposed
critical habitat. The BiOp is available at: https://repository.library.noaa.gov/view/noaa/61632.
US Wind is required to abide by these promulgated regulations, as
well as the reasonable and prudent measure and terms and conditions of
the BiOp and Incidental Take Statement, as issued by NMFS.
National Environmental Policy Act (NEPA)
To comply with NEPA (42 U.S.C. 4321 et seq.) and the NOAA
Administrative Order 216-6A, NMFS must evaluate our proposed action
(i.e., promulgation of regulation) and alternatives with respect to
potential impacts on the human environment. NMFS participated as a
cooperating agency on the BOEM 2024 Final EIS (FEIS), which was
finalized on, and is available at: https://www.boem.gov/renewable-energy/state-activities/maryland-offshore-wind-final-environmental-
impact-statement-eis.
When acting as a cooperating agency, as is the case with this
Project, NMFS may satisfy its independent NEPA obligations by either
preparing a separate NEPA analysis for its issuance of an incidental
take authorization or, if appropriate, by adopting the NEPA analysis
prepared by the lead agency (40 CFR 1506.3(b)). In accordance with 40
CFR 1506.3, NMFS independently reviewed and evaluated the 2024 Maryland
Offshore Wind FEIS and determined that it is adequate and sufficient to
meet our responsibilities under NEPA for the promulgation of this rule
and issuance of the associated LOA. NMFS, therefore, has adopted the
2024 Maryland Offshore Wind FEIS through a joint Record of Decision
(ROD) with BOEM. The joint ROD for adoption of the 2024 Maryland
Offshore Wind FEIS and promulgation of this final rule and subsequent
issuance of a LOA can be found at: https://www.boem.gov/renewable-energy/state-activities/maryland-offshore-wind.
Executive Order 12866
The Office of Management and Budget has determined that this rule
is not significant for purposes of Executive Order 12866.
Regulatory Flexibility Act (RFA)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions)
directly affected by the rule. However, no regulatory flexibility
analysis is required if the head of an agency, or that person's
designee, certifies that the rule will not have a significant economic
impact on a substantial number of small entities. The Chief Counsel for
Regulation for the Department of Commerce certified at the proposed
rule stage that this rule would not have a significant economic impact
on a substantial number of small entities. US Wind, the sole entity
subject to these requirements, is not a small governmental
jurisdiction, small organization or small business. We received no
information that changes the factual basis of this certification. As a
result, a regulatory flexibility analysis was not required and none was
prepared.
Paperwork Reduction Act (PRA)
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the PRA unless that collection of information displays a currently
valid Office of Management and Budget (OMB) control number. These
requirements have been approved by OMB under control number 0648-0151
and include applications for regulations, subsequent LOA, and reports.
Send comments regarding any aspect of this data collection, including
suggestions for reducing the burden, to NMFS.
Coastal Zone Management Act (CZMA)
The CZMA requires Federal actions within and outside the coastal
zone that have reasonably foreseeable effects on any coastal use or
natural resource of the coastal zone be consistent with the enforceable
policies of a State's federally approved coastal management program (16
U.S.C. 1456(c)). NMFS has determined that US Wind's application for
incidental take regulations is not an activity listed by the MD DNR
pursuant to 15 CFR 930.53 and, thus, is not subject to Federal
consistency requirements in the absence of the receipt and prior
approval of an unlisted activity review request from the State by the
Director of NOAA's Office for Coastal Management. Consistent with 15
CFR 930.54, NMFS published Notice of Receipt of US Wind's application
for this incidental take regulation in the Federal Register on May 2,
2023 (88 FR 27453) and published the proposed rule on January 4, 2024
(89 FR 504). The State of Maryland did not request approval from the
Director of NOAA's Office for Coastal Management to review US Wind's
application as an unlisted activity, and the time period for making
such request has expired. Therefore, NMFS has determined the ITA is not
subject to Federal consistency review.
List of Subjects in 50 CFR Part 217
Administrative practice and procedure, Endangered and threatened
species, Fish, Fisheries, Marine mammals, Penalties, Reporting and
recordkeeping requirements, Wildlife.
Dated: September 26, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES
0
1. The authority citation for part 217 continues to read:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Add subpart II, consisting of Sec. Sec. 217.340 through 217.349, to
read as follows:
Subpart II--Taking Marine Mammals Incidental to the Maryland Offshore
Wind Project Offshore of Maryland
Sec.
217.340 Specified activity and specified geographical region.
217.341 Effective dates.
217.342 Permissible methods of taking.
217.343 Prohibitions.
217.344 Mitigation requirements.
217.345 Monitoring and reporting requirements.
217.346 Letter of Authorization.
217.347 Modifications of Letter of Authorization.
[[Page 84716]]
217.348-217.349 [Reserved]
Subpart II--Taking Marine Mammals Incidental to the Maryland
Offshore Wind Project Offshore of Maryland
Sec. 217.340 Specified activity and specified geographical region.
(a) Regulations in this subpart apply to activities associated with
the Maryland Offshore Wind Project (hereafter referred to as the
``Project'') by US Wind, Inc. (hereafter referred to as ``LOA
Holder''), and those persons it authorizes or funds to conduct
activities on its behalf in the area outlined in paragraph (b) of this
section. Requirements imposed on LOA Holder must be implemented by
those persons it authorizes or funds to conduct activities on its
behalf.
(b) The specified geographical region is the Mid-Atlantic Bight,
defined as waters from Cape Hatteras, North Carolina to Cape Cod,
Massachusetts and extending into the west Atlantic to the 100-meter (m)
isobath, and includes, but is not limited to, the Bureau of Ocean
Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A
0490 Commercial Lease of Submerged Lands for Renewable Energy
Development, along the relevant Export Cable Corridors (ECC), and at
the sea-to-shore transition points located within Delaware Seashore
State Park.
(c) The specified activities are impact pile driving of wind
turbine generator (WTG), offshore substation (OSS), and a
meteorological tower (Met tower) foundations; high-resolution
geophysical (HRG) site characterization surveys; vessel transit within
the specified geographical region to transport crew, supplies, and
materials; WTG and OSS operation; fishery and ecological monitoring
surveys; placement of scour protection; and trenching, laying, and
cable burial activities.
Sec. 217.341 Effective dates.
Regulations in this subpart are effective from January 1, 2025,
through December 31, 2029.
Sec. 217.342 Permissible methods of taking.
Under the LOA, issued pursuant to Sec. Sec. 216.106 of this
chapter and 217.346, the LOA Holder, and those persons it authorizes or
funds to conduct activities on its behalf, may incidentally, but not
intentionally, take marine mammals within the vicinity of BOEM Lease
Area OCS-A 0490 Commercial Lease of Submerged Lands for Renewable
Energy Development and associated cable corridor, provided the LOA
Holder is in complete compliance with all terms, conditions, and
requirements of the regulations in this subpart and the appropriate
LOA:
(a) By Level B harassment associated with the acoustic disturbance
of marine mammals by impact pile driving (WTG, OSS, and Met tower
foundation installation) and HRG site characterization surveys.
(b) By Level A harassment associated with auditory injury of marine
mammals by impact pile driving of WTG foundations.
(c) Take by mortality or serious injury of any marine mammal
species is not authorized.
(d) The incidental take of marine mammals by the activities listed
in paragraphs (a) and (b) of this section is limited to the following
species.
Table 1 to Paragraph (d)
------------------------------------------------------------------------
Marine mammal species Scientific name Stock
------------------------------------------------------------------------
North Atlantic right whale.. Eubalaena glacialis. Western Atlantic.
Fin whale................... Balaenoptera Western North
physalus. Atlantic.
Humpback whale.............. Megaptera Gulf of Maine.
novaeangliae.
Minke whale................. Balaenoptera Canadian Eastern
acutorostrata. Coastal.
Sei whale................... Balaenoptera Nova Scotia.
borealis.
Killer whale................ Orcinus orca........ Western North
Atlantic.
Atlantic spotted dolphin.... Stenella frontalis.. Western North
Atlantic.
Pantropical spotted dolphin. Stenella attenuata.. Western North
Atlantic.
Bottlenose dolphin.......... Tursiops truncatus.. Western North
Atlantic--Offshore.
Northern Migratory
Coastal.
Common dolphin.............. Delphinus delphis... Western North
Atlantic.
Long-finned pilot whale..... Globicephala melas.. Western North
Atlantic.
Short-finned pilot whale.... Globicephala Western North
macrorhynchus. Atlantic.
Risso's dolphin............. Grampus griseus..... Western North
Atlantic.
Rough-toothed dolphin....... Steno bredanensis... Western North
Atlantic.
Striped dolphin............. Stenella Western North
coeruleoalba. Atlantic.
Harbor porpoise............. Phocoena phocoena... Gulf of Maine/Bay of
Fundy.
Gray seal................... Halichoerus grypus.. Western North
Atlantic.
Harbor seal................. Phoca vitulina...... Western North
Atlantic.
Harp seal................... Pagophilus Western North
groenlandicus. Atlantic.
------------------------------------------------------------------------
Sec. 217.343 Prohibitions.
Except for the takings described in Sec. 217.342 and authorized by
the LOA issued under this subpart, it is unlawful for any person to do
any of the following in connection with the activities described in
this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or the LOA issued under this subpart.
(b) Take any marine mammal not specified in Sec. 217.342(d).
(c) Take any marine mammal specified in the LOA in any manner other
than as specified in the LOA.
(d) Take any marine mammal specified in Sec. 217.342(d), after
National Marine Fisheries Service (NMFS) Office of Protected Resources
determines such taking results in more than a negligible impact on the
species or stocks of such marine mammals.
Sec. 217.344 Mitigation requirements.
When conducting the activities identified in Sec. 217.340(c)
within the area described in Sec. 217.340(b), LOA Holder must
implement the mitigation measures contained in this section and any LOA
issued under Sec. Sec. 217.346 and 217.347. These mitigation measures
include, but are not limited to:
(a) General conditions. LOA Holder must comply with the following
general measures:
(1) A copy of any issued LOA must be in the possession of LOA
Holder and its designees, all vessel operators, visual protected
species observers (PSO), passive acoustic monitoring (PAM)
[[Page 84717]]
operators, pile driver operators, and any other relevant designees
operating under the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, and
vessel personnel and the marine mammal monitoring team (PSO and PAM
operators) prior to the start of all in-water construction activities
in order to explain responsibilities, communication procedures, marine
mammal detection and identification, mitigation, monitoring, and
reporting requirements, safety and operational procedures, and
authorities of the marine mammal monitoring team(s). This training must
be repeated for new personnel who join the work during the Project. A
description of the training program must be provided to NMFS at least
60 days prior to the initial training before in-water activities begin.
Confirmation of all required training must be documented on a training
course log sheet and reported to NMFS Office of Protected Resources
prior to initiating Project activities;
(3) Prior to and when conducting any in-water activities and vessel
operations, LOA Holder personnel and contractors (e.g., vessel
operators, PSOs) must use available sources of information on North
Atlantic right whale presence in or near the project area including
daily monitoring of the Right Whale Sightings Advisory System, and
monitoring of U.S. Coast Guard VHF Channel 16 throughout the day to
receive notification of any sightings and/or information associated
with any slow zones (i.e., Dynamic Management Areas (DMA) and/or
acoustically-triggered slow zones) to provide situational awareness for
both vessel operators, PSO(s), and PAM operator(s); the marine mammal
monitoring team must monitor these systems no less than every 4 hours;
(4) Any large whale observation by any project personnel or
acoustic detection by a PAM operator must be conveyed to all vessel
captains and on-duty PSOs. Any marine mammal observed by project
personnel during pile driving must be conveyed to on-duty PSOs;
(5) In the event that a large whale is sighted or acoustically
detected that cannot be confirmed as a non-North Atlantic right whale,
it must be treated as if it were a North Atlantic right whale for
purposes of mitigation;
(6) PSOs and PAM operators have the authority to call for a delay
or shutdown to an activity, and LOA Holder must instruct all personnel
regarding the authority of the PSOs and PAM operators. Any
disagreements between a PSO, PAM operator, and the activity operator
regarding delays or shutdowns may only be discussed after the
mitigative action has occurred;
(7) If an individual from a species for which authorization has not
been granted, or a species for which authorization has been granted but
the authorized take number has been met, is observed entering or within
the relevant Level B harassment zone prior to or during a specified
activity, the activity must be delayed or shut down, unless doing so
would result in imminent risk of injury or loss of life to an
individual, pile refusal, or pile instability. The activity must not
commence or resume until the animal(s) has been confirmed to have left
and is on a path away from the Level B harassment zone or after 15
minutes for small odontocetes and pinnipeds, and 30 minutes for all
other species with no further sightings;
(8) For in-water construction heavy machinery activities other than
pile driving, if a marine mammal is on a path towards or comes within
10 m (32.8 feet (ft)) of equipment, LOA Holder must cease operations
until the marine mammal has moved more than 10 m on a path away from
the activity to avoid direct interaction with equipment;
(9) All vessels must be equipped with a properly installed,
operational Automatic Identification System (AIS) device and LOA Holder
must report all Maritime Mobile Service Identity (MMSI) numbers to NMFS
Office of Protected Resources prior to commencing initial transits;
(10) By accepting the issued LOA, LOA Holder consents to on-site
observation and inspections by Federal agency personnel (including NOAA
personnel) during activities described in this subpart, for the
purposes of evaluating the implementation and effectiveness of measures
contained within the LOA and this subpart;
(11) It is prohibited to assault, harm, harass (including sexually
harass), oppose, impede, intimidate, impair, or in any way influence or
interfere with a PSO, PAM Operator, or vessel crew member acting as an
observer, or attempt the same. This prohibition includes, but is not
limited to, any action that interferes with an observer's
responsibilities, or that creates an intimidating, hostile, or
offensive environment. Personnel may report any violations to the NMFS
Office of Law Enforcement; and
(12) The LOA Holder must also abide by the reasonable and prudent
measures and terms and conditions of the Biological Opinion and
Incidental Take Statement, as issued by NMFS, pursuant to section 7 of
the Endangered Species Act.
(b) Vessel strike avoidance measures. LOA Holder must comply with
the following vessel strike avoidance measures while in the specified
geographical region, unless a deviation is necessary to maintain safe
maneuvering speed and justified because the vessel is in an area where
oceanographic, hydrographic, and/or meteorological conditions severely
restrict the maneuverability of the vessel; an emergency situation
presents a threat to the health, safety, or life of a person; or when a
vessel is actively engaged in emergency rescue or response duties,
including vessel-in-distress or environmental crisis response. An
emergency is defined as a serious event that occurs without warning and
requires immediate action to avert, control, or remedy harm. Speed over
ground will be used to measure all vessel speed restrictions.
(1) Prior to the start of the Project's activities involving
vessels, all vessel personnel must receive a protected species training
that covers, at a minimum, identification of marine mammals that have
the potential to occur where vessels would be operating; detection
observation methods in both good weather conditions (i.e., clear
visibility, low winds, low sea states) and bad weather conditions
(i.e., fog, high winds, high sea states, with glare); sighting
communication protocols; all vessel speed and approach limit mitigation
requirements (e.g., vessel strike avoidance measures); and information
and resources available to the project personnel regarding the
applicability of Federal laws and regulations for protected species.
This training must be repeated for any new vessel personnel who join
the Project. Confirmation of the observers' training and understanding
of the Incidental Take Authorization (ITA) requirements must be
documented on a training course log sheet and reported to NMFS Office
of Protected Resources prior to vessel activities;
(2) LOA Holder, regardless of their vessel's size, must maintain a
vigilant watch for all marine mammals and slow down, stop their vessel,
or alter course to avoid striking any marine mammal;
(3) LOA Holder's underway vessels (e.g., transiting, surveying)
operating at any speed must have a dedicated visual observer on duty at
all times to monitor for marine mammals within a 180[deg] direction of
the forward path of the vessel (90[deg] port to 90[deg] starboard)
located at an appropriate vantage point for ensuring vessels are
maintaining appropriate separation distances. Visual
[[Page 84718]]
observers must be equipped with alternative monitoring technology
(e.g., night vision devices, infrared cameras) for periods of low
visibility (e.g., darkness, rain, fog, etc.). The dedicated visual
observer must receive prior training on protected species detection and
identification, vessel strike minimization procedures, how and when to
communicate with the vessel captain, and reporting requirements in this
subpart. Visual observers may be third-party observers (i.e., NMFS-
approved PSOs) or trained crew members, as defined in paragraph (b)(1)
of this section;
(4) LOA Holder must continuously monitor the U.S. Coast Guard VHF
Channel 16 at the onset of transiting through the duration of
transiting, over which North Atlantic right whale sightings are
broadcasted. At the onset of transiting and at least once every 4
hours, vessel operators and/or trained crew member(s) must also monitor
the Project's Situational Awareness System, WhaleAlert, and relevant
NOAA information systems such as the Right Whale Sighting Advisory
System (RWSAS) for the presence of North Atlantic right whales;
(5) All LOA Holder's vessels, regardless of size, must transit at
10 kn (11.5 mph) or less from November 1-April 30 in the specified
geographic region;
(6) All LOA Holder's vessels, regardless of size, must travel 10 kn
(11.5 mph) or less in any Seasonal Management Area (SMA) or active Slow
Zones (i.e., DMAs or acoustically triggered slow zone);
(7) LOA Holder's vessels, regardless of size, must immediately
reduce speed to 10 kn or less for at least 24 hours when a North
Atlantic right whale is sighted at any distance by any project-related
personnel or acoustically detected by any project-related PAM system.
Each subsequent observation or acoustic detection in the project area
shall trigger an additional 24-hour period. If a North Atlantic right
whale is reported via any of the monitoring systems (refer back to
(b)(4) of this section) within 10 kilometers (km; 6.2 miles (mi)) of a
transiting vessel(s), that vessel must operate at 10 knots (kn; 11.5
miles per hour (mph)) or less for 24 hours following the reported
detection;
(8) LOA Holder's vessels, regardless of size, must immediately
reduce speed to 10 kn or less when any large whale (other than a North
Atlantic right whale) or large assemblages of cetaceans is observed
within 500 m (1,640 ft) of an underway vessel;
(9) If LOA Holder's vessel(s) are traveling at speeds greater than
10 kn (i.e., no speed restrictions are enacted) in a transit corridor
from a port to the Lease Area (or return), in addition to the required
dedicated visual observer, LOA Holder must monitor the transit corridor
in real-time with PAM prior to and during transits. If a North Atlantic
right whale is detected via visual observation or PAM within or
approaching the transit corridor, all crew transfer vessels must travel
at 10 kn (11.5 mph) or less for 24 hours following the detection. Each
subsequent detection shall trigger a 24-hour reset. A slowdown in the
transit corridor expires when there has been no further visual or
acoustic detection in the transit corridor in the past 24 hours;
(10) LOA Holder's vessels must maintain a minimum separation
distance of 100 m (328 ft) from sperm whales and non-North Atlantic
right whale baleen whales. If one of these species is sighted within
100 m of a transiting vessel, LOA Holder's vessel must turn away from
the whale(s), reduce speed, and shift the engine(s) to neutral. Engines
must not be engaged until the whale has moved outside of the vessel's
path and beyond 100 m; (328 ft);
(11) LOA Holder's vessels must maintain a minimum separation
distance of 50 m (164 ft) from all delphinid cetaceans and pinnipeds
with an exception made for those that approach the vessel (i.e., bow-
riding dolphins). If a delphinid cetacean or pinniped is sighted within
50 m (164 ft) of a transiting vessel, LOA Holder's vessel must turn
away from the animal(s), shift the engine to neutral, with an exception
made for those that approach the vessel (e.g., bow-riding dolphins).
Engines must not be engaged until the animal(s) has moved outside of
the vessel's path and beyond 50 m;
(12) When a marine mammal(s) is sighted while LOA Holder's
vessel(s) is transiting, the vessel must take action as necessary to
avoid violating the relevant separation distances (e.g., attempt to
remain parallel to the animal's course, slow down, and avoid abrupt
changes in direction until the animal has left the area). This measure
does not apply to any vessel towing gear or any situation where
respecting the relevant separation distance would be unsafe (i.e., any
situation where the vessel is navigationally constrained);
(13) LOA Holder's vessels underway must not divert or alter course
to approach any marine mammal;
(14) LOA Holder must check, daily, for information regarding the
establishment of mandatory or voluntary vessel strike avoidance areas
(i.e., DMAs, SMAs, Slow Zones) and any information regarding North
Atlantic right whale sighting locations; and
(15) LOA Holder must submit a Marine Mammal Vessel Strike Avoidance
Plan to NMFS Office of Protected Resources for review and approval at
least 180 days prior to the planned start of vessel activity if vessels
will operate over 10 kn (11.5 mph). The plan must provide details on
the vessel-based observer and PAM protocols for transiting vessels. If
a plan is not submitted or approved by NMFS prior to vessel operations,
all project vessels transiting, year-round, must travel at speeds of 10
kn (11.5 mph) or less. LOA Holder must comply with the approved Marine
Mammal Vessel Strike Avoidance Plan.
(c) WTG, OSS, Met tower foundation installation. LOA Holder must
comply with the following mitigation measures during impact pile
driving activities associated with the installation of WTG, OSS, and
Met tower foundations unless compliance is not practicable due to
imminent risk of injury or loss of life to an individual, risk of
damage to a vessel that creates risk of injury or loss of life for
individuals, or the lead engineer determines there is risk of pile
refusal or pile instability.
(1) Impact pile driving (i.e., foundation and Met Tower
installation) must not occur December 1 through April 30;
(2) Monopiles must be no larger than 11 m (36.1 ft) in diameter. No
more than one monopile may be installed per day, unless otherwise
approved in writing by NMFS. Pin piles for the OSSs must be no larger
than 3 m in diameter. No more than four 3-m pin piles may be installed
per day. Met tower pin piles must be no larger than 1.8 m in diameter.
No more than two 1.8-m pin piles may be installed per day. The minimum
amount of hammer energy necessary to effectively and safely install and
maintain the integrity of the piles must be used. The impact hammer
rating must not exceed 4,400 kJ;
(3) LOA Holder must not initiate pile driving earlier than 1 hour
prior to civil sunrise or later than 1.5 hours prior to civil sunset,
and may only continue pile driving into darkness if stopping operations
represents a risk to human health, safety, and/or pile stability,
unless the LOA Holder submits, and NMFS approves, an Alternative
Monitoring Plan, which would allow pile driving to begin after daylight
hours have ended. Until this is submitted, reviewed, and approved by
NMFS, LOA Holder may not begin any new pile driving outside of the
daylight hours previously defined in this subsection;
[[Page 84719]]
(4) Soft-start must occur at the beginning of impact driving and at
any time following a cessation of impact pile driving of 30 minutes or
longer. Soft-start involves initiating hammer operation at a reduced
energy level (relative to full operating capacity) followed by a
waiting period. The LOA Holder must comply with a soft-start protocol
as described in the approved Pile Driving Plan;
(5) LOA Holder must implement clearance and shutdown zones, which
must be measured using the radial distance around the pile being
driven;
(6) LOA Holder must utilize PSO(s) and PAM operator(s), as
described in Sec. 217.345. At least three on-duty PSOs must be
stationed and observing on the foundation installation vessel/platform.
A minimum of three PSOs must be active on each of the two dedicated PSO
vessels. On-duty PSOs must be located at the best vantage point(s) on
any platform, as determined by the Lead PSO, in order to obtain 360-
degree visual coverage of the entire clearance and shutdown zones
around the activity area, and as much of the Level B harassment zone as
possible. Concurrently, PAM operator(s) must be actively monitoring for
marine mammals with PAM 60 minutes before, during, and 30 minutes after
pile driving in accordance with a NMFS-approved PAM Plan;
(7) PSOs must visually monitor clearance zones for marine mammals
for a minimum of 60 minutes prior to commencing pile driving. The
entire minimum visibility zone must be visible (i.e., not obscured by
dark, rain, fog, etc.) for a full 60 minutes immediately prior to
commencing pile driving. If PSOs cannot visually monitor the minimum
visibility zone prior to foundation pile driving at all times), pile
driving operations must not commence;
(8) All clearance zones must be confirmed to be free of marine
mammals for 30 minutes immediately prior to the beginning of soft-start
procedures. If a marine mammal is detected within or about to enter the
applicable clearance zones, prior to the beginning of soft-start
procedures, impact pile driving must be delayed until the animal has
been visually observed exiting the clearance zone or until a specific
time period has elapsed with no further sightings. The specific time
periods are 15 minutes for small odontocetes and pinnipeds, and 30
minutes for all other species. PAM operators must immediately
communicate all detections of marine mammals at any distance to the
Lead PSO, including any determination regarding species identification,
distance, and bearing and the degree of confidence in the
determination;
(9) For North Atlantic right whales, any visual observation or
acoustic detection within the PAM monitoring zone must trigger a delay
to the commencement of pile driving. The clearance zone may only be
declared clear if no North Atlantic right whale acoustic or visual
detections have occurred within the clearance zone during the 60-minute
monitoring period. If pile driving has been shut down due to the
presence of a North Atlantic right whale, pile driving may not restart
until the North Atlantic right whale has neither been visually nor
acoustically detected for 30 minutes;
(10) If a marine mammal is detected (visually or acoustically)
entering or within the respective shutdown zone after pile driving has
begun, the PSO or PAM operator must call for a shutdown of pile driving
and LOA Holder must stop pile driving immediately, unless shutdown is
not practicable due to imminent risk of injury or loss of life to an
individual or risk of damage to a vessel that creates risk of injury or
loss of life for individuals, or the lead engineer determines there is
pile refusal or pile instability. If pile driving is not shut down in
one of these situations, LOA Holder must reduce hammer energy to the
lowest level practicable and the reason(s) for not shutting down must
be documented and reported to NMFS Office of Protected Resources within
the applicable monitoring reports (e.g., weekly, monthly) (see Sec.
217.345);
(11) If pile driving has been shut down due to the presence of a
marine mammal other than a North Atlantic right whale, pile driving
must not restart until either the marine mammal(s) has voluntarily left
the specific clearance zones and has been visually or acoustically
confirmed beyond that clearance zone, or, when specific time periods
have elapsed with no further sightings or acoustic detections have
occurred. The specific time periods are 15 minutes for small
odontocetes and pinnipeds and 30 minutes for all other marine mammal
species. In cases where these criteria are not met, pile driving may
restart only if necessary to maintain pile stability at which time LOA
Holder must use the lowest hammer energy practicable to maintain
stability;
(12) LOA Holder must deploy at least two functional noise abatement
systems that reduce noise levels to the modeled harassment isopleths,
assuming 10-dB attenuation, during all impact pile driving and comply
with the following measures:
(i) A single bubble curtain must not be used;
(ii) Any bubble curtain(s) must distribute air bubbles using an air
flow rate of at least 0.5 m\3\/(minute*m). The bubble curtain(s) must
surround 100 percent of the piling perimeter throughout the full depth
of the water column. In the unforeseen event of a single compressor
malfunction, the offshore personnel operating the bubble curtain(s)
must adjust the air supply and operating pressure such that the maximum
possible sound attenuation performance of the bubble curtain(s) is
achieved;
(iii) The lowest bubble ring must be in contact with the seafloor
for the full circumference of the ring, and the weights attached to the
bottom ring must ensure 100-percent seafloor contact;
(iv) No parts of the ring or other objects may prevent full
seafloor contact with a bubble curtain ring;
(v) Construction contractors must train personnel in the proper
balancing of airflow to the bubble curtain ring. LOA Holder must
provide NMFS Office of Protected Resources with a bubble curtain
performance test and maintenance report for review. For piles for which
thorough sound field verification (SFV) is carried out, this report
must be submitted as soon as it is available but no later than when the
thorough interim SFV report is submitted for the respective pile.
Performance reports for piles with abbreviated SFV must be submitted
with the weekly pile driving reports. Additionally, a full maintenance
check (e.g., manually clearing holes) must occur prior to each pile
being installed. LOA Holder must develop and implement a maintenance
plan that identifies the frequency of hose inspection, flushing,
pressure tests, and re-drilling and that is designed to minimize the
potential for sediment clogging to affect bubble curtain performance.
Adjustments to the frequency of these maintenance steps must be made as
necessary to ensure optimal performance of the bubble curtain system;
and
(vi) Corrections to the bubble ring(s) to meet the performance
standards in paragraph (c)(12) of this section must occur prior to
impact pile driving of monopiles, 3-m (9.8 ft) pin piles, and 1.8-m
(5.9 ft) pin piles. If LOA Holder uses a noise mitigation device in
addition to the bubble curtain, LOA Holder must maintain similar
quality control measures as described in this paragraph (c)(11) of this
section.
(13) LOA Holder must implement PAM in accordance with the NMFS-
[[Page 84720]]
approved PAM Plan, as described in paragraph (c)(18) of this section.
The PAM system components (i.e., acoustic buoys) must not be placed
closer than 1 km (3,280 ft) to the pile being driven so that the
activities do not mask the PAM system. LOA Holder must demonstrate and
prove the detection range of the system they plan to deploy while
considering potential masking from concurrent pile driving and vessel
noise. The PAM system must be designed to detect all marine mammals to
the maximum extent practicable, maximize baleen whale detections, and
must be capable of detecting North Atlantic right whales within the PAM
monitoring zone;
(14) LOA Holder must conduct thorough SFV measurements during pile
driving activities associated with the installation of, at minimum, the
first three monopile foundations, the first three full jacket
foundations (inclusive of all pin piles for a specific jacket
foundation), and the first foundation for any foundation scenarios that
were modeled for the exposure analysis (e.g., rated hammer energy,
number of strikes, representative location) that does not fall into one
of the previously listed categories for each of the three construction
campaigns. Thorough SFV measurements must be conducted as follows:
(i) SFV measurements must be made at a minimum of four distances
from the pile(s) being driven, along a single transect, in the
direction of lowest transmission loss (i.e., projected lowest
transmission loss coefficient), including, but not limited to, 750 m
(2,460 ft) and three additional ranges selected such that measurement
of Level A harassment and Level B harassment isopleths are accurate,
feasible, and avoids extrapolation. At least one additional measurement
at an azimuth 90 degrees from the array at 750 m (2,460 ft) must be
made. At each measurement location, there must be a near bottom and
mid-water column hydrophone (measurement systems);
(ii) The recordings must be continuous throughout the duration of
pile driving for each foundation;
(iii) The SFV measurement systems must have a sensitivity
appropriate for the expected sound levels from pile driving received at
the nominal ranges throughout the installation of the pile. The
frequency range of SFV measurement systems must cover the range of at
least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems
must be designed to have omnidirectional sensitivity so that the
broadband received level of all pile driving exceeds the system noise
floor by at least 10 dB. The dynamic range of the SFV measurement
system must be sufficient such that at each location, the signals
prevent poor signal-to-noise ratios for low amplitude signals and avoid
clipping, nonlinearity, and saturation for high amplitude signals;
(iv) All hydrophones used in SFV measurements systems are required
to have undergone a full system, traceable laboratory calibration
conforming to International Electrotechnical Commission (IEC) 60565, or
an equivalent standard procedure, from a factory or accredited source
to ensure the hydrophone receives accurate sound levels, at a date not
to exceed 2 years before deployment. Additional in-situ calibration
checks using a pistonphone are required to be performed before and
after each hydrophone deployment. If the measurement system employs
filters via hardware or software (e.g., high-pass, low-pass, etc.),
which is not already accounted for by the calibration, the filter
performance (i.e., the filter's frequency response) must be known,
reported, and the data corrected before analysis;
(v) LOA Holder must be prepared with additional equipment
(hydrophones, recording devices, hydrophone calibrators, cables,
batteries, etc.), which exceeds the amount of equipment necessary to
perform the measurements, such that technical issues can be mitigated
before measurement; and
(vi) LOA Holder must submit interim SFV reports within 48 hours
after each foundation is measured (see Sec. 217.345(g) for interim and
final reporting requirements).
(15) For thorough SFV on monopile and jacket foundations:
(i) During thorough SFV, installation of the next foundation (of
the same type/foundation method) may not proceed until LOA Holder has
reviewed the initial results from the thorough SFV and determined that
there were no exceedances of any distances to the identified thresholds
based on modeling assuming 10 dB attenuation. Subsequent SFV
measurements are also required should larger piles be installed or if
additional monopiles are driven that may produce louder sound fields
than those previously measured (e.g., higher hammer energy, greater
number of strikes, etc.);
(ii) If any of the thorough SFV measurements from any foundation
(monopile or jacket) indicate that the distances to the NMFS' marine
mammal Level A harassment or Level B harassment thresholds for marine
mammals (peak or cumulative) are greater than the modeled distances
(assuming 10 dB attenuation), before the next foundation is installed,
LOA Holder must notify NMFS by email within 24 hours of reviewing the
thorough SFV measurements as well as identify and propose for review
and concurrence: additional, modified, and/or alternative noise
attenuation measures or operational changes that present a reasonable
likelihood of reducing sound levels to the modeled distances on
subsequent foundations; provide a written explanation to NMFS Office of
Protected Resources supporting that determination and requesting
concurrence to proceed; and, following NMFS Office of Protected
Resource's concurrence, deploy those additional measures or
modifications on any subsequent foundation of the same pile type/
installation methodology that are installed;
(iii) LOA Holder must also increase the clearance and shutdown
zones for subsequent piles of the same type (e.g., if triggered by SFV
results for a monopile, for the next monopile) so that they are at
least the size of the distances to those thresholds as indicated by
SFV. For every 1,500 m that a marine mammal clearance or shutdown zone
is expanded, additional PSOs must be deployed from additional
platforms/vessels to ensure adequate and complete monitoring of the
expanded shutdown and/or clearance zone. LOA Holder must deploy any
additional PSOs consistent with the approved Marine Mammal Monitoring
Plan in consideration of the size of the new zones and the species that
must be monitored;
(iv) Following installation of a pile with additional, alternative,
or modified noise attenuation measures or operational changes if
thorough SFV results indicate that sound fields are within Level A
harassment and B harassment thresholds, assuming 10 dB attenuation,
thorough SFV must be conducted on two additional piles of the same
type/installation method (for a total of at least three piles with
consistent noise attenuation measures). If the thorough SFV results
from all three of those piles are within the distances to isopleths of
concern modeled assuming 10 dB attenuation, then LOA Holder must
continue to implement the approved additional, alternative, or modified
noise attenuation measures/operational changes. Use of the expanded
clearance and shutdown zones must continue for additional piles until
LOA Holder requests and receives concurrence from NMFS Office of
Protected Resources and Greater Atlantic Regional Fisheries
[[Page 84721]]
Office (GARFO) to revert to the original clearance and shutdown zones;
(v) If, after all practicable measures that could be taken to
reduce noise levels have been successfully implemented and exhausted,
thorough SFV measurements continue to indicate that the distances to
the marine mammal harassment thresholds are greater than those modeled
assuming 10 dB attenuation, LOA Holder must consult with NMFS Office of
Protected Resources to evaluate the circumstances before additional
piles are installed; and
(vi) If, after additional measurements conducted pursuant to
requirements of paragraph (14)(i) of this section, acoustic
measurements indicate that ranges to the Level A harassment and Level B
harassment thresholds are less than the ranges predicted by modeling
(assuming 10-dB attenuation), LOA Holder may request a modification of
the clearance and shutdown zones from the NMFS Office of Protected
Resources. For NMFS Office of Protected Resources to consider a
modification request for reduced zone sizes, LOA Holder must have
conducted SFV measurements on an additional three foundations (for
either/or monopile and jackets) and ensure that subsequent foundations
would be installed under conditions that are predicted to produce
smaller harassment zones than those modeled assuming 10 dB of
attenuation.
(16) Abbreviated SFV measurements must be conducted on the
remaining piles for which thorough SFV is not conducted. Abbreviated
SFV must be conducted as follows:
(i) SFV measurements must be made at a single acoustic recorder,
consisting of a near-bottom and mid-water hydrophone, at approximately
750 m from the pile being driven, in the direction of lowest
transmission loss to record sounds throughout the duration of all pile
driving of each foundation. Reports of abbreviated SFV monitoring must
be included in the weekly pile driving reports;
(ii) The abbreviated SFV data collected will be used to compare the
noise levels defined as a result of thorough SFV;
(iii) Abbreviated SFV monitoring duration and equipment must comply
with the conditions specified in paragraphs (c)(14)(ii) through (14)(v)
of this section;
(iv) LOA Holder must review abbreviated SFV results for each pile
within 24 hours of completion of the foundation installation. If
measured levels at 750 m did not exceed the expected levels defined
during thorough SFV, LOA Holder does not need to take any additional
action. If measured levels from abbreviated SFV for any pile are
greater than expected levels (as defined by thorough SFV), LOA Holder
must evaluate the available information from the pile installation to
determine if there is an identifiable cause of the greater than
expected sound levels (i.e., a failure of the noise attenuation
system), identify and implement corrective action, and report this
information (inclusive of an explanation of the suspected or identified
cause) to NMFS Office of Protected Resources and Greater Atlantic
Regional Fisheries Office within 48 hours of completion of the
installation of the pile, during which the greater than expected sound
levels occurred. If LOA Holder can demonstrate that this greater than
expected sound level was the result of a failure of the noise
attenuation system (e.g., loss of a generator supporting a bubble
curtain such that one bubble curtain failed during pile driving) that
can be remedied in a way that returns the noise attenuation system to
pre-failure conditions, or if there is another satisfactory explanation
for the increase in sound that is not expected to be repeated for
subsequent piles, LOA Holder can request concurrence from NMFS to
proceed without thorough SFV monitoring that would otherwise be
required within 72 hours. LOA Holder is required to remedy any such
failure of the noise attenuation system prior to carrying out any
additional pile driving;
(v) If results of abbreviated SFV monitoring for any pile exceed
the expected noise levels at 750 m established through the initial
thorough SFV, LOA Holder must resume thorough SFV monitoring (as
described in paragraph (c)(15)(i) of this section) for installation of
the same foundation type and installation method within 72 hours after
the completion of pile driving with an exceedance. LOA Holder can
request concurrence from NMFS Office of Protected Resources and Greater
Atlantic Regional Fisheries Office to resume abbreviated SFV following
submission of an interim report from thorough SFV that demonstrates
ranges to the Level A harassment and Level B harassment thresholds
within expected values (assuming 10 dB attenuation). LOA Holder may
automatically resume abbreviated SFV monitoring if three consecutive
thorough SFV reports indicate ranges to the Level A harassment and
Level B harassment thresholds are within modeled distances (assuming 10
dB attenuation); and
(vi) If results from any thorough SFV monitoring triggered by
results from abbreviated SFV indicate that ranges to the Level A
harassment and Level B harassment thresholds (assuming 10 dB
attenuation) are larger than expected values, NMFS Office of Protected
Resources and Greater Atlantic Regional Fisheries Office will meet
within 3 business days to discuss the results of SFV monitoring, the
severity of exceedance of distances to identified isopleths of concern,
the species affected, and modeling assumptions, and whether the SFV
results demonstrate the magnitude and degree of impacts from the
Project are greater than those considered in this final rulemaking.
Implementation of additional measures to reduce pile driving noise and/
or additional thorough SFV may also be required.
(17) LOA Holder must conduct SFV measurements during turbine
operations to estimate turbine operational source levels, in accordance
with a NMFS-approved SFV Plan. SFV must be conducted in the same manner
as previously described in paragraphs (c)(14)(ii) and (iii) of this
section, with appropriate adjustments to measurement distances, number
of hydrophones, and hydrophone sensitivities being made, as necessary.
(18) LOA Holder must submit a SFV Plan to NMFS Office of Protected
Resources for review and approval at least 180 days prior to planned
start of foundation installation activities and abide by the Plan if
approved. At minimum, the SFV Plan must describe how LOA Holder would
ensure that the first three monopile foundation/entire jacket
foundation (inclusive of all pin piles for a jacket foundation)
installation sites selected for SFV measurements are representative of
the rest of the monopile and/or jacket foundation installation sites
such that future pile installation events are anticipated to produce
similar sound levels to those piles measured. In the case that these
sites/scenarios are not determined to be representative of all other
pile installation sites, LOA Holder must include information in the SFV
Plan on how additional sites/scenarios would be selected for SFV
measurements. The SFV Plan must also include methodology for
collecting, analyzing, and preparing SFV measurement data for
submission to NMFS Office of Protected Resources and describe how the
effectiveness of the sound attenuation methodology would be evaluated
based on the results. SFV for pile driving may not occur until NMFS
approves the SFV Plan for this activity;
(19) LOA Holder must submit a Foundation Installation Pile Driving
Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for
review and approval at least 180 days prior to the planned start of
pile driving
[[Page 84722]]
and abide by the Plan if approved. LOA Holder must obtain both NMFS
Office of Protected Resources and NMFS GARFO Protected Resources
Division's concurrence with this plan prior to the start of any pile
driving. The plan must include a description of all monitoring
equipment and PAM and PSO protocols (including number and location of
PSOs) for all pile driving. No foundation pile installation can occur
without NMFS' approval of the plan; and
(20) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM
Plan) to NMFS Office of Protected Resources for review and approval at
least 180 days prior to the planned start of foundation installation
activities (impact pile driving) and abide by the PAM Plan if approved.
The PAM Plan must include a description of all proposed PAM equipment
and hardware, the calibration data, bandwidth capacity, address how the
proposed PAM must follow standardized measurement, processing methods,
reporting metrics, and metadata standards for offshore wind as
described in NOAA and BOEM Minimum Recommendations for Use of Passive
Acoustic Listening Systems in Offshore Wind Energy Development
Monitoring and Mitigation Programs (2021). The PAM Plan must describe
all proposed PAM equipment, procedures, and protocols including proof
that vocalizing North Atlantic right whales will be detected within the
clearance and shutdown zones. No pile installation can occur if LOA
Holder's PAM Plan does not receive approval from NMFS Office of
Protected Resources and NMFS GARFO Protected Resources Division.
(21) In the event of a cetacean live stranding (or near-shore
atypical milling) event within 50 km of the pile driving activities,
where the NMFS Stranding Network is engaged in herding or other
interventions to return animals to the water, NMFS will advise of the
need to implement shutdown procedures for all active pile driving
activities operating within 50 km of the stranding. Shutdown procedures
for live stranding or milling cetaceans include the following:
(i) If at any time, the marine mammal(s) die or are euthanized, or
if herding/intervention efforts are stopped, NMFS will advise that the
shutdown around the animals' location is no longer needed;
(ii) Otherwise, shutdown procedures will remain in effect until
NMFS determines and advises that all live animals involved have left
the area (either of their own volition or following an intervention);
and
(iii) If further observations of the marine mammals indicate the
potential for re-stranding, additional coordination will be required to
determine what measures are necessary to minimize that likelihood
(e.g., extending the shutdown or moving operations farther away) and to
implement those measures as appropriate.
(d) HRG surveys. The following requirements apply to HRG surveys
operating sub-bottom profilers (SBP) (i.e., boomers, sparkers, and
Compressed High Intensity Radiated Pulse (CHIRPS)):
(1) LOA Holder must establish and implement clearance and shutdown
zones for HRG surveys using visual monitoring, as described in this
paragraph (d);
(2) LOA Holder is required to have at least one PSO on active duty
per HRG vessel during HRG surveys that are conducted during daylight
hours (i.e., from 30 minutes prior to civil sunrise through 30 minutes
following civil sunset) and at least two PSOs on active duty per vessel
during HRG surveys that are conducted during nighttime hours;
(3) SBPs (hereinafter referred to as ``acoustic sources'') must be
deactivated when not acquiring data or preparing to acquire data,
except as necessary for testing. Acoustic sources must be used at the
lowest practicable source level to meet the survey objective, when in
use, and must be turned off when they are not necessary for the survey;
(4) LOA Holder is required to ramp-up acoustic sources prior to
commencing full power, which involves initiating source operation at a
reduced energy level (relative to full operating capacity) followed by
a waiting period, unless the equipment operates on a binary on/off
switch. LOA Holder is also required to ensure visual clearance zones
are observable (e.g., not obscured from observation by darkness, rain,
fog, etc.) and clear of marine mammals, as determined by the Lead PSO,
for at least 30 minutes immediately prior to the initiation of survey
activities using acoustic sources specified in the LOA. Ramp-up and
activation must be delayed if a marine mammal(s) enters its respective
shutdown zone. Ramp-up and activation may only be reinitiated if the
animal(s) has been observed exiting its respective shutdown zone or
until 15 minutes for small odontocetes and pinnipeds, and 30 minutes
for all other species, has elapsed with no further sightings;
(5) Prior to a ramp-up procedure starting or activating acoustic
sources, the acoustic source operator (operator) must notify a
designated PSO of the planned start of ramp-up as agreed upon with the
Lead PSO. The notification time should not be less than 60 minutes
prior to the planned ramp-up or activation in order to allow the PSOs
time to monitor the clearance zone(s) for 30 minutes prior to the
initiation of ramp-up or activation (pre-start clearance). During this
30-minute pre-start clearance period, the entire applicable clearance
zones must be visible, except as indicated in paragraph (d)(11) of this
section;
(6) Ramp-ups must be scheduled so as to minimize the time spent
with the source activated;
(7) A PSO conducting pre-start clearance observations must be
notified again immediately prior to reinitiating ramp-up procedures and
the operator must receive confirmation from the PSO to proceed;
(8) LOA Holder must implement a 30-minute clearance period of the
clearance zones immediately prior to the commencing of the survey or
when there is more than a 30-minute break in survey activities or PSO
monitoring. A clearance period is a period when no marine mammals are
detected in the relevant zone;
(9) If a marine mammal is observed within a clearance zone during
the clearance period, ramp-up or acoustic surveys may not begin until
the animal(s) has been observed voluntarily exiting its respective
clearance zone or until a specific time period has elapsed with no
further sighting. The specific time period is 15 minutes for small
odontocetes and pinnipeds, and 30 minutes for all other species;
(10) In any case when the clearance process has begun in conditions
with good visibility, including via the use of night vision equipment
(infrared (IR)/thermal camera), and the Lead PSO has determined that
the clearance zones are clear of marine mammals, survey operations may
commence (i.e., no delay is required) despite periods of inclement
weather and/or loss of daylight. Ramp-up may occur at times of poor
visibility, including nighttime, if effective visual monitoring has
occurred with no detections of marine mammals in the 30 minutes prior
to beginning ramp-up;
(11) Once the survey has commenced, LOA Holder must shut down
acoustic sources if a marine mammal enters a respective shutdown zone.
In cases when the shutdown zones become obscured for brief periods due
to inclement weather, survey operations may continue (i.e., no shutdown
is required) so long as no marine mammals have been detected. The
shutdown requirement does not apply to small delphinids of the
following genera:
[[Page 84723]]
Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is
uncertainty regarding the identification of a marine mammal species
(i.e., whether the observed marine mammal belongs to one of the
delphinid genera for which shutdown is waived), the PSOs must use their
best professional judgment in making the decision to call for a
shutdown. Shutdown is required if a delphinid that belongs to a genus
other than those specified in this paragraph (d)(11) is detected in the
shutdown zone;
(12) If an acoustic source has been shut down due to the presence
of a marine mammal, the use of an acoustic source may not commence or
resume until the animal(s) has been confirmed to have left the Level B
harassment zone or until a full 15 minutes (for small odontocetes and
seals) or 30 minutes (for all other marine mammals) have elapsed with
no further sighting;
(13) LOA Holder must immediately shut down any acoustic source if a
marine mammal is sighted entering or within its respective shutdown
zones. If there is uncertainty regarding the identification of a marine
mammal species (i.e., whether the observed marine mammal belongs to one
of the delphinid genera for which shutdown is waived), the PSOs must
use their best professional judgment in making the decision to call for
a shutdown. Shutdown is required if a delphinid that belongs to a genus
other than those specified in paragraph (d)(11) of this section is
detected in the shutdown zone; and
(14) If an acoustic source is shut down for a period longer than 30
minutes, all clearance and ramp-up procedures must be initiated. If an
acoustic source is shut down for reasons other than mitigation (e.g.,
mechanical difficulty) for less than 30 minutes, acoustic sources may
be activated again without ramp-up only if PSOs have maintained
constant observation and no additional detections of any marine mammal
occurred within the respective shutdown zones.
(e) Fisheries monitoring surveys. The following measures apply to
fishery monitoring surveys:
(1) Survey gear must be deployed as soon as possible once the
vessel arrives on station. Gear must not be deployed if there is a risk
of interaction with marine mammals. Gear may be deployed after 15
minutes of no marine mammal sightings within 1 nautical mile (nmi;
1,852 m) of the sampling station;
(2) LOA Holder and its cooperating institutions, contracted
vessels, or commercially hired captains must implement the following
``move-on'' rule: If marine mammals are sighted within 1 nmi(1,852 m)
of the planned location and 15 minutes before gear deployment, then LOA
Holder and its cooperating institutions, contracted vessels, or
commercially hired captains, as appropriate, must move the vessel away
from the marine mammal to a different section of the sampling area. If,
after moving on, marine mammals are still visible from the vessel, LOA
Holder and its cooperating institutions, contracted vessels, or
commercially hired captains must move again or skip the station;
(3) If a marine mammal is at risk of interacting with or becoming
entangled in the gear after the gear is deployed or set, all gear must
be immediately removed from the water. If marine mammals are sighted
before the gear is fully removed from the water, the vessel must slow
its speed and maneuver the vessel away from the animals to minimize
potential interactions with the observed animal;
(4) LOA Holder must maintain visual marine mammal monitoring effort
during the entire period of time that gear is in the water (i.e.,
throughout gear deployment, fishing, and retrieval) as well as for 15
minutes prior to deploying gear and for 15 minutes after haul back;
(5) All fisheries monitoring gear must be fully cleaned and
repaired (if damaged) before each use/deployment;
(6) LOA Holder's fixed gear must comply with the Atlantic Large
Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries
monitoring surveys;
(7) All gear must be emptied as close to the deck/sorting area and
as quickly as possible after retrieval;
(8) During any survey that uses vertical lines, buoy lines must be
weighted and must not float at the surface of the water and all
groundlines must consist of sinking lines. All groundlines must be
composed entirely of sinking lines. Buoy lines must utilize weak links.
Weak links must break cleanly leaving behind the bitter end of the
line. The bitter end of the line must be free of any knots when the
weak link breaks. Splices are not considered to be knots. The
attachment of buoys, toggles, or other floatation devices to
groundlines is prohibited;
(9) All in-water survey gear, including buoys, must be properly
labeled with the scientific permit number or identification as LOA
Holder's research gear. All labels and markings on the gear, buoys, and
buoy lines must also be compliant with the Atlantic Large Whale Take
Reduction Plan regulations at 50 CFR 229.32, and all buoy markings must
comply with instructions received by the GARFO Protected Resources
Division;
(10) All survey gear must be removed from the water whenever not in
active survey use (i.e., no wet storage); and
(11) All reasonable efforts, that do not compromise human safety,
must be undertaken to recover gear.
Sec. 217.345 Monitoring and reporting requirements.
(a) PSO and PAM operator qualifications. LOA Holder must implement
the following measures applicable to PSOs and PAM operators:
(1) LOA Holder must use independent, NMFS-approved PSOs and PAM
operators, meaning that the PSOs and PAM operators must be employed by
a third-party observer provider, must have no tasks other than to
conduct observational effort, collect data, and communicate with and
instruct relevant crew with regard to the presence of protected species
and mitigation requirements;
(2) All PSOs and PAM operators must have successfully attained a
bachelor's degree with a major in one of the natural sciences. The
educational requirements may be waived if the PSO or PAM operator has
acquired the relevant skills through a suitable amount of alternate
experience. Requests for such a waiver must be submitted to NMFS Office
of Protected Resources and must include written justification
containing alternative experience. Alternate experience that may be
considered includes, but is not limited to previous work experience
conducting academic, commercial, or government-sponsored marine mammal
visual and/or acoustic surveys, or previous work experience as a PSO/
PAM operator;
(3) PSOs must have visual acuity in both eyes (with correction of
vision being permissible) sufficient enough to discern moving targets
on the water's surface with the ability to estimate the target size and
distance (binocular use is allowable); ability to conduct field
observations and collect data according to the assigned protocols;
sufficient training, orientation, or experience with the construction
operation to provide for personal safety during observations; writing
skills sufficient to document observations, including but not limited
to, the number and species of marine mammals observed, the dates and
times when in-water construction activities were conducted, the dates
and time when in-water construction activities were suspended to avoid
potential incidental take of marine mammals from construction noise
within a defined
[[Page 84724]]
shutdown zone, and marine mammal behavior; and the ability to
communicate orally, by radio, or in-person, with project personnel to
provide real-time information on marine mammals observed in the area;
(4) All PSOs must be trained in northwestern Atlantic Ocean marine
mammal identification and behaviors and must be able to conduct field
observations and collect data according to assigned protocols.
Additionally, PSOs must have the ability to work with all required and
relevant software and equipment necessary during observations (as
described in paragraphs (b)(6) and (8) of this section;
(5) All PSOs and PAM operators must successfully complete a
relevant training course within the last 5 years, including obtaining a
certificate of course completion that must be submitted to NMFS. This
requirement is waived for any PSOs and PAM operators that completed a
relevant training course more than five years prior to seeking approval
but have been working consistently as a PSO or PAM operator within the
past five years;
(6) PSOs are responsible for obtaining NMFS' approval. NMFS may
approve PSOs as conditional or unconditional. A conditionally-approved
PSO may be one who has completed training in the last 5 years but has
not yet attained field experience. An unconditionally approved PSO is
one who has completed training within the last 5 years and attained the
necessary experience (i.e., demonstrate experience with monitoring for
marine mammals at clearance and shutdown zone sizes similar to those
produced during the respective activity). Lead PSOs must be
unconditionally approved and have a minimum of 90 days in a
northwestern Atlantic Ocean offshore environment performing the role
(either visual or acoustic), with the conclusion of the most recent
relevant experience not more than 18 months previous. A conditionally
approved PSO must be paired with an unconditionally approved PSO;
(7) PSOs for HRG surveys may be unconditionally or conditionally
approved. PSOs for foundation installation activities must be
unconditionally approved;
(8) At least one on-duty PSO and PAM operator, where applicable,
for each activity (e.g., impact pile driving, vibratory pile driving,
and HRG surveys) must be designated as the Lead PSO or Lead PAM
operator;
(9) LOA Holder must submit previously approved PSOs and PAM
operators to NMFS Office of Protected Resources for review and
confirmation of their approval for specific roles at least 30 days
prior to commencement of the activities requiring PSOs/PAM operators or
15 days prior to when new PSOs/PAM operators are required after
activities have commenced;
(10) For prospective PSOs and PAM operators not previously
approved, or for PSOs and PAM operators whose approval is not current,
LOA Holder must submit resumes for approval at least 60 days prior to
PSO and PAM operator use. Resumes must include information related to
relevant education, experience, and training, including dates,
duration, location, and description of prior PSO or PAM operator
experience. Resumes must be accompanied by relevant documentation of
successful completion of necessary training;
(11) PAM operators are responsible for obtaining NMFS approval. To
be approved as a PAM operator, the person must meet the following
qualifications: The PAM operator must have completed a PAM operator
training course and demonstrate prior experience using PAM software,
equipment, and real-time acoustic detection systems. They must
demonstrate that they have prior experience independently analyzing
archived and/or real-time PAM data to identify and classify baleen
whale and other marine mammal vocalizations by species, including North
Atlantic right whale and humpback whale vocalizations, and experience
with deconflicting multiple species' vocalizations that are similar
and/or received concurrently. PAM operators must be independent
observers (i.e., not construction personnel), trained to use relevant
project-specific PAM software and equipment, and must also be able test
software and hardware functionality prior to beginning real-time
monitoring. The PAM operator must be able to identify and classify
marine mammal acoustic detections by species in real-time (prioritizing
North Atlantic right whales and noting other marine mammal
vocalizations, when detected). At a minimum, for each acoustic
detection, the PAM operator must be able to categorically determine
whether a North Atlantic right whale is detected, possibly detected, or
not detected, and notify the Lead PSO of any confirmed or possible
detections, including baleen whale detections that cannot be identified
to species. If the PAM software is capable of localization of sounds or
deriving bearings and distance, the PAM operator must demonstrate
experience using this technique. A Lead PAM operator must meet all of
these requirements and have a minimum of 90 days in the specified role
or sufficient alternative experience;
(12) PSOs may work as PAM operators and vice versa, pending NMFS-
approval; however, they may only perform one role at any time and must
not exceed work time restrictions, which must be tallied cumulatively;
and
(13) All PSOs and PAM operators must complete a Permits and
Environmental Compliance Plan training and a 2-day refresher session
that must be held with the PSO provider and Project compliance
representative(s) prior to the start of in-water project activities
(e.g., HRG survey, foundation installation, etc.).
(b) General PSO and PAM operator requirements. The following
measures apply to PSOs and PAM operators and must be implemented by LOA
Holder:
(1) PSOs must monitor for marine mammals prior to, during, and
following impact pile driving and HRG surveys that use sub-bottom
profilers (with specific monitoring durations and needs described in
paragraphs (c) through (f) of this section, respectively). Monitoring
must be done while free from distractions and in a consistent,
systematic, and diligent manner;
(2) PAM operator(s) must acoustically monitor for marine mammals
prior to, during, and following all pile driving activities. PAM
operators may be located on a vessel or remotely on-shore but must have
the appropriate equipment (i.e., computer station equipped with a data
collection software system available wherever they are stationed) and
be in real-time communication with PSOs and transiting vessel captains.
The PAM operator must monitor to and past the clearance zone for large
whales;
(3) For foundation installation, PSOs must visually clear (i.e.,
confirm no observations of marine mammals) the entire minimum
visibility zone for a full 30 minutes immediately prior to commencing
activities. For HRG surveys, which do not have a minimum visibility
zone, the entire clearance zone must be visually cleared and as much of
the Level B harassment zone as possible;
(4) All PSOs must be located at the best vantage point(s) on any
platform, as determined by the Lead PSO, in order to obtain 360-degree
visual coverage of the entire clearance and shutdown zones around the
activity area, and as much of the Level B harassment zone as possible.
The PAM operator(s) must assist PSOs in ensuring full coverage of the
clearance and shutdown zones;
(5) All on-duty PSOs must remain in real-time contact with the on-
duty PAM operator(s), PAM operators must immediately communicate all
acoustic
[[Page 84725]]
detections of marine mammals to PSOs, including any determination
regarding species identification, distance, and bearing (where
relevant) relative to the pile being driven and the degree of
confidence (e.g., possible, probable detection) in the determination.
All on-duty PSOs and PAM operator(s) must remain in contact with the
on-duty construction personnel responsible for implementing mitigations
(e.g., delay to pile driving) to ensure communication on marine mammal
observations can easily, quickly, and consistently occur between all
on-duty PSOs, PAM operator(s), and on-water project personnel;
(6) The PAM operator must inform the Lead PSO(s) on duty of animal
detections approaching or within applicable ranges of interest to the
activity occurring via the data collection software system (i.e.,
Mysticetus or similar system) who must be responsible for requesting
that the designated crewmember implement the necessary mitigation
procedures (i.e., delay);
(7) Any visual observations of marine mammals by any project
personnel must be communicated immediately to on-duty PSOs and vessel
captains associated with other project vessels to increase situational
awareness;
(8) PSOs must use high magnification (25x) binoculars, standard
handheld (7x) binoculars, and the naked eye to search continuously for
marine mammals. During foundation installation, at least two PSOs on
the pile driving vessel must be equipped with functional Big Eye
binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus;
height control); these must be pedestal mounted on the deck at the best
vantage point that provides for optimal sea surface observation and PSO
safety. A minimum of three on-duty PSOs must be active on a dedicated
PSO vessel. PAM operators must have the appropriate equipment (i.e., a
computer station equipped with a data collection software system
available wherever they are stationed) in accordance with the NMFS-
approved PAM Plan as described in Sec. 217.344(c)(20);
(9) PSOs and PAM operators must not exceed 4 consecutive watch
hours on duty at any time, must have a 2-hour (minimum) break between
watches, and must not exceed a combined watch schedule of more than 12
hours in a 24-hour period. If the schedule includes PSOs and PAM
operators on-duty for 2-hour shifts, a minimum 1-hour break between
watches must be allowed;
(10) During periods of low visibility (e.g., darkness, rain, fog,
poor weather conditions, etc.), PSOs must use alternative technology
(e.g., infrared or thermal cameras) to monitor the clearance and
shutdown zones as approved by NMFS; and
(11) PSOs must remain in real-time contact with the PAM operators
and construction personnel responsible for implementing mitigation
(e.g., delay to pile driving) to ensure communication on marine mammal
observations can easily, quickly, and consistently occur between all
on-duty PSOs, PAM operator(s), and on-water project personnel
(c) PSO and PAM operator requirements during WTG, OSS, and Met
Tower foundation installation. The following measures apply to PSOs and
PAM operators during WTG, OSS, and Met tower foundation installation
and must be implemented by LOA Holder:
(1) PSOs and PAM operator(s), using a NMFS-approved PAM system,
must monitor for marine mammals 60 minutes prior to, during, and 30
minutes following all pile driving activities. If PSOs cannot visually
monitor the minimum visibility zone prior to impact pile driving at all
times using the equipment described in paragraphs (b)(6) and (7) of
this section, pile driving operations must not commence or must
shutdown if they are currently active;
(2) At least three on-duty PSOs must be stationed and observing
from the activity platform during impact pile driving and at least
three on-duty PSOs must be stationed on each dedicated PSO vessel.
There must be a minimum of three PSO observation platforms during
impact pile driving. Concurrently, at least one PAM operator per
acoustic data stream (equivalent to the number of acoustic buoys) must
be actively monitoring for marine mammals 60 minutes before, during,
and 30 minutes after impact pile driving in accordance with a NMFS-
approved PAM Plan; and
(3) LOA Holder must conduct PAM for at least 24 hours immediately
prior to pile driving activities. The PAM operator must review all
detections from the previous 24-hour period immediately prior to pile
driving activities.
(d) PSO requirements during HRG surveys. The following measures
apply to PSOs during HRG surveys using acoustic sources that have the
potential to result in harassment and must be implemented by LOA
Holder:
(1) At least one PSO must be on active duty monitoring during HRG
surveys conducted during daylight (i.e., from 30 minutes prior to civil
sunrise through 30 minutes following civil sunset) and two PSOs during
nighttime surveying (if it occurs);
(2) PSOs on HRG vessels must begin monitoring 30 minutes prior to
activating acoustic sources, during the use of these acoustic sources,
and for 30 minutes after use of these acoustic sources has ceased;
(3) Any observations of marine mammals must be communicated to PSOs
on all nearby survey vessels during concurrent HRG surveys; and
(4) During daylight hours when survey equipment is not operating,
LOA Holder must ensure that visual PSOs conduct, as rotation schedules
allow, observations for comparison of sighting rates and behavior with
and without use of the specified acoustic sources.
(e) Monitoring requirements during fisheries monitoring surveys.
The following measures apply during fisheries monitoring surveys and
must be implemented by LOA Holder:
(1) All captains and crew conducting fishery surveys must be
trained in marine mammal detection and identification; and
(2) Marine mammal monitoring must be conducted within 1 nmi from
the planned survey location by the trained captain and/or a member of
the scientific crew for 15 minutes prior to deploying gear, throughout
gear deployment and use, and for 15 minutes after haul back.
(f) Reporting. LOA Holder must comply with the following reporting
measures:
(1) Prior to initiation of any on-water project activities, LOA
Holder must demonstrate in a report submitted to NMFS Office of
Protected Resources that all required training for LOA Holder personnel
(including the vessel crews, vessel captains, PSOs, and PAM operators)
has been completed;
(2) LOA Holder must use a standardized reporting system during the
effective period of the LOA. All data collected related to the Project
must be recorded using industry-standard software that is installed on
field laptops and/or tablets. Unless stated otherwise, all reports must
be submitted to NMFS Office of Protected Resources
(PR.ITP.MonitoringReports@noaa.gov), dates must be in MM/DD/YYYY
format, and location information must be provided in Decimal Degrees
and with the coordinate system information (e.g., NAD83, WGS84, etc.);
(3) For all visual monitoring efforts and marine mammal sightings,
the following information must be collected and reported to NMFS Office
of Protected Resources: the date and time that monitored activity
begins or ends; the construction activities occurring
[[Page 84726]]
during each observation period; the watch status (i.e., sighting made
by PSO on/off effort, opportunistic, crew, alternate vessel/platform);
the PSO who sighted the animal; the time of sighting; the weather
parameters (e.g., wind speed, percent cloud cover, visibility); the
water conditions (e.g., Beaufort sea state, tide state, water depth);
all marine mammal sightings, regardless of distance from the
construction activity; species (or lowest possible taxonomic level
possible); the pace of the animal(s); the estimated number of animals
(minimum/maximum/high/low/best); the estimated number of animals by
cohort (e.g., adults, yearlings, juveniles, calves, group composition,
etc.); the description (i.e., 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); the description of any marine mammal
behavioral observations (e.g., observed behaviors such as feeding or
traveling) and observed changes in behavior, including an assessment of
behavioral responses thought to have resulted from the specific
activity; the animal's closest distance and bearing from the pile being
driven or specified HRG equipment and estimated time entered or spent
within the Level A harassment and/or Level B harassment zone(s); the
activity at time of sighting (e.g., impact pile driving, construction
survey), use of any noise attenuation device(s), and specific phase of
activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off,
soft-start for pile driving, active pile driving, etc.); the marine
mammal occurrence in Level A harassment or Level B harassment zones;
the description of any mitigation-related action implemented, or
mitigation-related actions called for but not implemented, in response
to the sighting (e.g., delay, shutdown, etc.) and time and location of
the action; other human activity in the area, and; other applicable
information, as required in any LOAs issued under Sec. 217.346;
(4) LOA Holder must compile and submit weekly reports during
foundation installation to NMFS Office of Protected Resources that
document the type of pile, pile diameter, daily start and stop of all
pile driving associated with the Project; the start and stop of
associated observation periods by PSOs; hammer log (number of strikes,
max hammer energy, duration of piling), any changes to noise
attenuation systems and/or hammer schedule, details on the deployment
of PSOs; a record of all detections of marine mammals (acoustic and
visual); any mitigation actions (or if mitigation actions could not be
taken, provide reasons why); and details on the noise attenuation
system(s) used and its performance. Weekly reports must also include
abbreviated SFV results. The weekly reports must also confirm that the
required SFV was carried out for each pile and that results were
reviewed on the required timelines. Weekly reports are due on Wednesday
for the previous week (Sunday to Saturday) and must include the
information required under this section. The weekly report must also
identify which turbines become operational and when (a map must be
provided). Once all foundation pile installation is completed, weekly
reports are no longer required by LOA Holder;
(5) LOA Holder must compile and submit monthly reports to NMFS
Office of Protected Resources during foundation installation that
include a summary of all information in the weekly reports, including
project activities carried out in the previous month, vessel transits
(number, type of vessel, MMIS number, and route), number of piles
installed, all detections of marine mammals, and any mitigative action
taken. Monthly reports are due on the 15th of the month for the
previous month. The monthly report must also identify which turbines
become operational and when (a map must be provided);
(6) Full PAM detection data, metadata, and location of recorders
(or GPS tracks, if applicable) must be submitted within 90 calendar
days following completion of impact pile driving foundations and every
90 calendar days for transit lane PAM using the International
Organization for Standardization (ISO) standard metadata forms and
instructions available on the NMFS Passive Acoustic Reporting System
website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. Concurrently, the full acoustic
recordings from real-time systems must also be sent to the National
Centers for Environmental Information (NCEI, https://www.ncei.noaa.gov/products/passive-acoustic-data) for archiving.
(7) LOA Holder must submit a draft annual report to NMFS Office of
Protected Resources no later than one year following date of LOA
issuance within each given calendar year. LOA Holder must provide a
final report within 30 days following resolution of NMFS' comments on
the draft report. The draft and final reports must detail the
following: the total number of marine mammals of each species/stock
detected and how many were within the designated Level A harassment and
Level B harassment zone(s) with comparison to authorized take of marine
mammals for the associated activity type; marine mammal detections and
behavioral observations before, during, and after each activity; what
mitigation measures were implemented (i.e., number of shutdowns or
clearance zone delays, etc.) or, if no mitigative actions was taken,
why not; operational details (i.e., days and duration of impact and
vibratory pile driving, days, and amount of HRG survey effort, etc.);
any PAM systems used; the results, effectiveness, and which noise
attenuation systems were used during relevant activities (i.e., impact
pile driving); summarized information related to situational reporting;
and any other important information relevant to the Project, including
additional information that may be identified through the adaptive
management process;
(8) LOA Holder must submit its draft 5-year report to NMFS Office
of Protected Resources on all visual and acoustic monitoring conducted
within 90 calendar days of the completion of activities occurring under
the LOA. At a minimum, the draft and final 5-year report must include:
the total number (annually and across all 5 years) of marine mammals of
each species/stock detected and how many were detected within the
designated Level A harassment and Level B harassment zone(s) with
comparison to authorized take of marine mammals for the associated
activity type; a summary table(s) indicating the amount of each
activity type (e.g., pile installation, HRG) completed in each of the 5
years and total; GIS shapefile(s) of the final location of all piles,
cable routes, and other permanent structures including an indication of
what year installed and began operating; GIS shapefile of all North
Atlantic right whale sightings, including dates and group sizes; a 5-
year summary and evaluation of all SFV data collected; a 5-year summary
and evaluation of all PAM data collected; a 5-year summary and
evaluation of marine mammal behavioral observations; a 5-year summary
and evaluation of mitigation and monitoring implementation and
effectiveness; a list of recommendations to inform environmental
compliance assessments for future offshore wind actions. A 5-year
report must be prepared and submitted within 60 calendar days following
receipt of any NMFS Office of Protected Resources comments on the draft
report. If no comments are
[[Page 84727]]
received from NMFS Office of Protected Resources within 60 calendar
days of NMFS Office of Protected Resources receipt of the draft report,
the report shall be considered final;
(9) For those foundation piles requiring SFV measurements, LOA
Holder must provide the initial results of the SFV measurements to NMFS
Office of Protected Resources in an interim report after each
foundation installation event as soon as they are available and prior
to a subsequent foundation installation, but no later than 48 hours
after the installation of each pile for which thorough SFV is carried
out. The report must include, at minimum: a summary of pile
installation activities (pile diameter, pile weight, pile length, water
depth, sediment type, total installation time [start time, end time],
duration of pile driving), hammer energies/schedule used during pile
driving, including, the total number of strikes and the maximum hammer
energy; the model-estimated acoustic ranges (R95) to
compare with the real-world sound field measurements; peak sound
pressure level (SPLpk), root-mean-square sound pressure
level that contains 90 percent of the acoustic energy
(SPLrms), and sound exposure level (SEL, in single strike
for pile driving, SELss,), for each hydrophone, including at
least the maximum, arithmetic mean, minimum, median (L50) and L5 (95
percent exceedance) statistics for each metric; estimated marine mammal
Level A harassment and Level B harassment isopleths, calculated using
the maximum-over-depth L5 (95 percent exceedance level, maximum of both
hydrophones) of the associated sound metric; comparison of modeled
results assuming 10-dB attenuation against the measured marine mammal
Level A harassment and Level B harassment acoustic isopleths; estimated
transmission loss coefficients; pile identifier name, location of the
pile and each hydrophone array location in latitude/longitude; depths
of each hydrophone; one-third-octave band single strike SEL spectra; if
filtering is applied, full filter characteristics must be reported; and
hydrophone specifications including the type, model, and sensitivity.
LOA Holder must also report any immediate observations which are
suspected to have a significant impact on the results including but not
limited to: observed noise mitigation system issues, obstructions along
the measurement transect, and technical issues with hydrophones or
recording devices. If any in-situ calibration checks for hydrophones
reveal a calibration drift greater than 0.75 dB, pistonphone
calibration checks are inconclusive, or calibration checks are
otherwise not effectively performed, LOA Holder must indicate full
details of the calibration procedure, results, and any associated
issues in the 48-hour interim reports;. All abbreviated SFV reports
must include the results from the hydrophones at 750m and a comparison
to the expected levels at 750 m based on the previously completed
thorough SFV for comparable pile type and installation method.;
(10) The final results of SFV measurements from each foundation
installation must be submitted as soon as possible, but no later than
90 days following completion of each event's SFV measurements. The
final reports must include all details prescribed above for the interim
report as well as, at minimum, the following: the peak sound pressure
level (SPLpk), the root-mean-square sound pressure level
that contains 90 percent of the acoustic energy (SPLrms),
the single strike sound exposure level (SELss), the
integration time for SPLrms, the spectrum, and the 24-hour
cumulative SEL extrapolated from measurements at all hydrophones. The
final report must also include at least the maximum, mean, minimum,
median (L50) and L5 (95 percent exceedance)
statistics for each metric; the SEL and SPL power spectral density and/
or one-third octave band levels (usually calculated as decidecade band
levels) at the receiver locations should be reported; the sound levels
reported must be in median, arithmetic mean, and L5 (95
percent exceedance) (i.e., average in linear space), and in dB; range
of transmission loss coefficients; the local environmental conditions,
such as wind speed, transmission loss data collected on-site (or the
sound velocity profile); baseline pre- and post-activity ambient sound
levels (broadband and/or within frequencies of concern); a description
of depth and sediment type, as documented in the Construction and
Operation Plan, at the recording and foundation installation locations;
the extents of the measured Level A harassment and Level B harassment
zone(s); hammer energies required for pile installation and the number
of strikes per pile; the hydrophone equipment and methods (i.e.,
recording device, bandwidth/sampling rate; distance from the pile where
recordings were made; the depth of recording device(s)); a description
of the SFV measurement hardware and software, including software
version used, calibration data, bandwidth capability and sensitivity of
hydrophone(s), any filters used in hardware or software, any
limitations with the equipment, and other relevant information; the
spatial configuration of the noise attenuation device(s) relative to
the pile; a description of the noise abatement system and operational
parameters (e.g., bubble flow rate, distance deployed from the pile,
etc.), and any action taken to adjust the noise abatement system. A
discussion which includes any observations which are suspected to have
a significant impact on the results including but not limited to:
observed noise mitigation system issues, obstructions along the
measurement transect, and technical issues with hydrophones or
recording devices;
(11) If at any time during the Project LOA Holder becomes aware of
any issue or issues which may (to any reasonable subject-matter expert,
including the persons performing the measurements and analysis) call
into question the validity of any measured Level A harassment or Level
B harassment isopleths to a significant degree, which were previously
transmitted or communicated to NMFS Office of Protected Resources, LOA
Holder must inform NMFS Office of Protected Resources within 1 business
day of becoming aware of this issue or before the next pile is driven,
whichever comes first;
(12) Performance reports for each bubble curtain deployed must
include water depth, current speed and direction, wind speed and
direction, bubble curtain deployment/retrieval date and time, bubble
curtain hose length, bubble curtain radius (distance from pile),
diameter of holes and hole spacing, air supply hose length, compressor
type (including rated cubic feet per minute (CFM) and model number),
number of operational compressors, performance data from each
compressor (including revolutions per minute (RPM), pressure, start
times, and stop times), free air delivery (m\3\/min), total hose air
volume (m\3\/(min m)), schematic of GPS waypoints during hose laying,
maintenance procedures performed (pressure tests, inspections,
flushing, re-drilling, and any other hose or system maintenance) before
and after installation and the time and date of each of these
procedures, and the length of time the bubble curtain was on the
seafloor prior to foundation installation. Additionally, the report
must include any important observations regarding performance (before,
during, and after pile installation), such as any observed weak areas
of low pressure. The report may also include any relevant video
[[Page 84728]]
and/or photographs of the bubble curtain(s) operating during pile
driving;
(13) If a North Atlantic right whale is acoustically detected at
any time by a project-related PAM system, LOA Holder must ensure the
detection is reported as soon as possible to NMFS, but no longer than
24 hours after the detection via the ``24-hour North Atlantic right
whale Detection Template'' (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the
hotline is not necessary when reporting PAM detections via the
template;
(14) Full detection data, metadata, and location of recorders (or
GPS tracks, if applicable) from all real-time hydrophones used for
monitoring during construction must be submitted within 90 calendar
days after pile driving has ended and instruments have been pulled from
the water. Reporting must use the webform templates on the NMFS Passive
Acoustic Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. Submit
the completed data templates to nmfs.nec.pacmdata@noaa.gov. The full
acoustic recordings from all real-time hydrophones must also be sent to
the National Centers for Environmental Information for archiving within
90 calendar days following completion of activities requiring PAM for
mitigation. Submission details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
(15) LOA Holder must submit situational reports if the following
circumstances occur (including all instances wherein an exemption is
taken must be reported to NMFS Office of Protected Resources within 24
hours):
(i) If a North Atlantic right whale is observed at any time by PSOs
or project personnel, LOA Holder must ensure the sighting is
immediately (if not feasible, as soon as possible, and no longer than
24 hours after the sighting) reported to NMFS and the Right Whale
Sightings Advisory System (RWSAS). If in the Northeast Region (Maine to
Virginia/North Carolina border) call (866-755-6622). If in the
Southeast Region (North Carolina to Florida) call (877-WHALE-HELP or
877-942-5343). If calling NMFS is not possible, reports can also be
made to the U.S. Coast Guard via channel 16 or through the WhaleAlert
app (https://www.whalealert.org). The sighting report must include the
time, date, and location of the sighting, number of whales, animal
description/certainty of sighting (provide photos/video if taken),
Lease Area/project name, PSO/personnel name, PSO provider company (if
applicable), and reporter's contact information;
(ii) If a North Atlantic right whale is observed at any time by
PSOs or project personnel, LOA Holder must submit a summary report to
GARFO (nmfs.gar.incidental-take@noaa.gov) and NMFS Office of Protected
Resources, and NMFS Northeast Fisheries Science Center (NEFSC;
ne.rw.survey@noaa.gov) within 24 hours with the above information and
the vessel/platform from which the sighting was made, activity the
vessel/platform was engaged in at time of sighting, project
construction and/or survey activity at the time of the sighting (e.g.,
pile driving, cable installation, HRG survey), distance from vessel/
platform to sighting at time of detection, and any mitigation actions
taken in response to the sighting;
(iii) If an observation of a large whale occurs during vessel
transit, LOA Holder must report the time, date, and location of the
sighting; the vessel's activity, heading, and speed (knots); Beaufort
sea state, water depth (meters), and visibility conditions; marine
mammal species identification to the best of the observer's ability and
any distinguishing characteristics; initial distance and bearing to
marine mammal from vessel and closest point of approach; and any
avoidance measures taken in response to the marine mammal sighting;
(iv) In the event that personnel involved in the Project discover a
stranded, entangled, injured, or dead marine mammal, LOA Holder must
immediately report the observation to NMFS. If in the Greater Atlantic
Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding
Hotline (866-755-6622); if in the Southeast Region (North Carolina to
Florida), call the NMFS Southeast Stranding Hotline (877-942-5343).
Separately, LOA Holder must report the incident to NMFS Office of
Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the
Greater Atlantic region (Maine to Virginia), GARFO
(nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if
in the Southeast region (North Carolina to Florida), NMFS Southeast
Regional Fisheries Office (SERO; secmammalreports@noaa.gov) as soon as
feasible. The report (via phone or email) must include contact (name,
phone number, etc.), the time, date, and location of the first
discovery (and updated location information if known and applicable);
species identification (if known) or description of the animal(s)
involved; condition of the animal(s) (including carcass condition if
the animal is dead); observed behaviors of the animal(s), if alive; if
available, photographs or video footage of the animal(s); and general
circumstances under which the animal was discovered;
(v) In the event of a vessel strike of a marine mammal by any
vessel associated with the Project or if other project activities cause
a non-auditory injury or death of a marine mammal, LOA Holder must
immediately report the incident to NMFS. If in the Greater Atlantic
Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding
Hotline (866-755-6622) and if in the Southeast Region (North Carolina
to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343).
Separately, LOA Holder must immediately report the incident to NMFS
Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and,
if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO
(nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if
in the Southeast region (North Carolina to Florida), NMFS SERO
(secmammalreports@noaa.gov). The report must include the time, date,
and location of the incident; species identification (if known) or
description of the animal(s) involved; vessel size and motor
configuration (inboard, outboard, jet propulsion); vessel's speed
leading up to and during the incident; vessel's course/heading and what
operations were being conducted (if applicable); status of all sound
sources in use; 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; environmental conditions (e.g.,
wind speed and direction, Beaufort sea state, cloud cover, visibility)
immediately preceding the strike; estimated size and length of animal
that was struck; description of the behavior of the marine mammal
immediately preceding and following the strike; if available,
description of the presence and behavior of any other marine mammals
immediately preceding the strike; 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 to the extent
practicable, photographs or video footage of the animal(s). LOA Holder
must immediately cease all on-water activities until the NMFS Office of
Protected Resources is able to review the circumstances of the incident
and determine what, if any, additional measures are appropriate to
ensure compliance with the terms of the LOA.
[[Page 84729]]
NMFS Office of Protected Resources may impose additional measures to
minimize the likelihood of further prohibited take and ensure MMPA
compliance. LOA Holder may not resume their activities until notified
by NMFS Office of Protected Resources; and
(16) LOA Holder must report any lost gear associated with the
fishery surveys to the NOAA GARFO Protected Resources Division
(nmfs.gar.incidental-take@noaa.gov) as soon as possible or within 24
hours of the documented time of missing or lost gear. This report must
include information on any markings on the gear and any efforts
undertaken or planned to recover the gear.
Sec. 217.346 Letter of Authorization.
(a) To incidentally take marine mammals pursuant to this subpart,
LOA Holder must apply for and obtain an LOA;
(b) The LOA, unless suspended or revoked, may be effective for a
period of time not to exceed December 31, 2029, the expiration date of
this subpart;
(c) In the event of projected changes to the activity or to
mitigation and monitoring measures required by the LOA, LOA Holder must
apply for and obtain a modification of the LOA as described in Sec.
217.347;
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the
level of taking must be consistent with the findings made for the total
taking allowable under the regulations of this subpart; and
(f) Notice of issuance or denial of the LOA must be published in
the Federal Register within 30 days of a determination.
Sec. 217.347 Modifications of Letter of Authorization.
(a) The LOA issued under Sec. Sec. 217.342 and 217.346 or this
section for the activity identified in Sec. 217.340 shall be modified
upon request by LOA Holder, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for this subpart (excluding changes made
pursuant to the adaptive management provision in paragraph (c)(1) of
this section); and
(2) NMFS Office of Protected Resources determines that the
mitigation, monitoring, and reporting measures required by the previous
LOA under this subpart were implemented.
(b) For a LOA modification request by the applicant that includes
changes to the activity or the mitigation, monitoring, or reporting
(excluding changes made pursuant to the adaptive management provision
in paragraph (c)(1) of this section), the LOA shall be modified,
provided that:
(1) NMFS Office of Protected Resources determines that the changes
to the activity or the mitigation, monitoring, or reporting do not
change the findings made for the regulations in this subpart and do not
result in more than a minor change in the total estimated number of
takes (or distribution by species or years); and
(2) NMFS Office of Protected Resources may, if appropriate, publish
a notice of proposed LOA in the Federal Register, including the
associated analysis of the change, and solicit public comment before
issuing the LOA.
(c) The LOA issued under Sec. Sec. 217.342 and 217.346 or this
section for the activities identified in Sec. 217.340 may be modified
by NMFS Office of Protected Resources under the following
circumstances:
(1) Through adaptive management, NMFS Office of Protected Resources
may modify (including delete, modify, or add to) the existing
mitigation, monitoring, or reporting measures (after consulting with
the LOA Holder regarding the practicability of the modifications), if
doing so creates a reasonable likelihood of more effectively
accomplishing the goals of the mitigation and monitoring;
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in the LOA
include, but are not limited to:
(A) Results from LOA Holder's monitoring;
(B) Results from other marine mammals and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent, or number not authorized by the regulations in
this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
Office of Protected Resources shall publish a notice of proposed LOA in
the Federal Register and solicit public comment.
(2) If NMFS Office of Protected Resources determines that an
emergency exists that poses a significant risk to the well-being of the
species or stocks of marine mammals specified in the LOA issued
pursuant to Sec. Sec. 217.342 and 217.346 or this section, the LOA may
be modified without prior notice or opportunity for public comment.
Notice would be published in the Federal Register within 30 days of the
action.
Sec. Sec. 217.348-217.349 [Reserved]
[FR Doc. 2024-22601 Filed 10-22-24; 8:45 am]
BILLING CODE 3510-22-P