[Federal Register Volume 75, Number 140 (Thursday, July 22, 2010)]
[Notices]
[Pages 42698-42708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17968]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XW81


Takes of Marine Mammals Incidental to Specified Activities; 
Installation of Meteorological Data Collection Facilities in the Mid-
Atlantic Outer Continental Shelf

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS has received two applications from Bluewater Wind 
(Bluewater) for an Incidental Harassment Authorization (IHA) to take 
marine mammals, by harassment, incidental to pile driving associated 
with installation of two meteorological data collection facilities 
(MCDFs); one each off the coast of Delaware and New Jersey. Pursuant to 
the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on 
its proposal to issue an IHA to Bluewater to incidentally harass, by 
Level B Harassment only, eight species of marine mammals during the 
installation of both MDCFs. The IHA would be effective from October 1-
November 15, 2010.

DATES: Comments and information must be received no later than August 
23, 2010.

ADDRESSES: Comments on the applications should be addressed to Michael 
Payne, Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225. The mailbox address for 
providing e-mail comments is [email protected]. NMFS is not 
responsible for e-mail comments sent to addresses other than the one 
provided here. Comments sent via e-mail, including all attachments, 
must not exceed a 10-megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The following associated 
document is also available at the same internet address: Environmental 
Assessment (EA) on the Issuance of Leases for Wind Resource Data 
Collection on the Outer Continental Shelf Offshore Delaware and New 
Jersey (MMS, 2009). Documents cited in this notice may also be viewed, 
by appointment, during regular business hours, at the aforementioned 
address.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 151.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of

[[Page 42699]]

marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as:

any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].

Summary of Request

    On May 5, 2010, NMFS received two applications from Bluewater for 
the taking, by Level B harassment, of marine mammals incidental to pile 
driving associated with installation of a MDCF in Federal waters 
approximately 16.5 miles off the coast of Delaware and one 
approximately 20 miles off the coast of New Jersey during October 2010. 
Bluewater provided supplemental information to NMFS on June 8, 2010, 
completing the applications. In summary, to build each MDCF, Bluewater 
must drive, via an impact hammer, a single 3-meter pile into the seabed 
which will act as the foundation to elevate and support the data 
collection device. Pile driving has the potential to result in the 
take, by Level B harassment, of eight species marine mammals within the 
action area as it elevates underwater noise levels. The IHA would be 
effective from October 1-November 15, 2010.

Description of the Specified Activity

    In November 2009, the Mineral Management Service (MMS) issued a 
lease to Bluewater for construction and operation of MDCFs designed to 
support future development of Bluewater's planned Delaware and New 
Jersey Offshore Wind Parks. The purpose of installing the MDCFs is to 
determine the feasibility of a commercial-scale offshore wind energy 
park at the proposed project site. Bluewater would collect and analyze 
at least one full year of meteorological data inclusive of wind speed 
and direction at multiple heights, information on other seasonal 
meteorological conditions (e.g., turbulence, temperature, pressure, and 
atmospheric stability), the marine environment (e.g., ocean currents, 
tides, and waves), and avian and bat activity (e.g., activity within 
the potential rotor swept area, flight altitude). The proposed IHA 
would authorize the take, by Level B harassment only, of marine mammals 
incidental to pile driving the monopole foundation required to support 
the wind data collection devices, not future installation of wind 
turbines.
    Bluewater has proposed installing a single 3-meter diameter pile 
foundation to elevate and stabilize a data collection device at two 
locations; one located in the Outer Continental Shelf (OCS) Official 
Protraction Diagram (OPD) lease block Salisbury, NJ 18-05 Lease Block 
6325 (approximately 16 miles off Delaware) and one at OCS OPD lease 
block Wilmington, NJ 18-02 Block 6936 (approximately 20 miles off NJ). 
The mean lower low water depth (MLLW) at the Delaware and New Jersey 
site is approximately 69 feet (21 m) and 82 feet (25 m), respectively. 
Sediments in the region of the project area are characterized by 
terrigenous quartz sand, typical of the majority of sediments found in 
the Mid-Atlantic to Northern continental shelf. No bedrock (which is 
difficult to pile drive through) was encountered during Bluewater's 
sub-bottom profiling operations in 2009 at either location. Pile 
driving is scheduled to occur during in October 2010; however, given 
unforeseen construction or weather related delays, NMFS is proposing to 
make the IHA effective until November 15, 2010.
    To install the monopole foundation, Bluewater would use a IHC-S 900 
Hydraulic Impact Hammer (or equal) with a maximum rated impact force of 
900 kilojoules (KJ). Noise emissions are proportional to hammer blow 
energy, which is determined by the weight of the falling mass and 
height of the fall. The IHC-S 900 hammer is a relatively larger hammer 
than those needed for coastal construction projects. Therefore, source 
levels generated from this hammer are higher than those from impact 
hammers used to drive piles in shallow, coastal waters. To be 
conservative in its acoustic modeling, Bluewater has assumed the full 
impact force of 900 KJ will be required for construction; however, full 
force may not be necessary.
    Bluewater anticipates it will take approximately 8 to 12 hours to 
mobilize and demobilize the construction vessels on site; however, only 
3-8 of these hours would be spent pile driving. The two MDCFs would not 
be installed simultaneously; the Delaware MDCF would be installed first 
followed by the New Jersey MDCF approximately 1-2 weeks later. Because 
of physical parameters associated with this project (e.g., pile size, 
water depth), Bluewater has indicated a vibratory hammer cannot be 
used. Pile driving activities would be restricted to daylight hours 
between one-half hour after sunrise and one-half hour prior to sunset.
    Bluewater would transport the MDCF foundation materials and 
equipment to the project site slowly (less than 10 knots) on a deck 
cargo barge. In addition, installation of the fixed MDCF will also 
necessitate the use of crew boats, tugs, and crane barge support 
vessels. Contrary to Bluewater's original proposal during the MMS 
leasing process, no aircraft will be used during the MDCF installation. 
Bluewater estimates the construction radius (total work area needed 
during construction operations centered on the MDCF construction site) 
would be approximately 450 meters. All vessels would abide by NOAA 
Fisheries Northeast Regional Viewing Guidelines (http://www.nmfs.noaa.gov/pr/pdfs/education/viewing_northeast.pdf).

Description of Marine Mammals in the Area of the Specified Activity

    Several species of marine mammals are known to traverse or 
occasionally inhabit the waters within the action area of project 
construction activities, including some species listed as threatened or 
endangered under the

[[Page 42700]]

Endangered Species Act (ESA). Thirty-four marine mammal species 
including 29 cetaceans, four pinnipeds, and one sirenian species have 
confirmed occurrences in the mid-Atlantic OCS (Table 1).


Table 1--Marine Mammal Occurrence on the OCS Off Delaware and New Jersey
------------------------------------------------------------------------
             Species                    Status            Population
------------------------------------------------------------------------
                   Suborder Mysticeti (baleen whales)
------------------------------------------------------------------------
North Atlantic right whale        Endangered........  306.
 (Eubaleana glacialis).
Humpback whale (Megaptera         Endangered........  902.
 novaeangliae).
Fin whale (Balaenoptera           Endangered........  2,269.
 physalus).
Sei whale (Balaenoptera           Endangered........  Unknown.
 borealis).
Blue whale (Balaenoptera          Endangered........  Unknown.
 musculus).
Minke whale (Balaenoptera         None..............  2,998.
 acutorostrata).
------------------------------------------------------------------------
                  Suborder Odontoceti (toothed whales)
------------------------------------------------------------------------
Sperm whale (Physeter             Endangered........  4,804.
 macrocephalus).
Pygmy sperm whale (Kogia          None..............  395.
 breviceps).
Dwarf sperm whale (Kogia sima)..  None..............  395.
Cuvier's beaked whale (Ziphius    None..............  3,513.
 cavirostris).
True's beaked whale (Mesoplodon   None..............  3,513.
 mirus).
Gervais' beaked whale             None..............  3,513.
 (Mesoplodon europaeus).
Sowerby's beaked whale            None..............  3,513.
 (Mesoplodon bidens).
Blainville's beaked whale         None..............  3,513.
 (Mesoplodon densirostris).
Bottlenose dolphin (Tursiops      Coastal Stock--     Coastal--Unknown;
 truncatus).                       Depleted.           Offshore--81,588.
Pantropical spotted dolphin       None..............  4,439.
 (Stenella attenuata).
Atlantic spotted dolphin          None..............  50,978.
 (Stenella frontalis).
Spinner dolphin (Stenella         None..............
 longirostris).
Clymene dolphin (Stenella         None..............  Unknown.
 clymene).
Striped dolphin (Stenella         None..............
 coeruleoalba).
Common dolphin (Delphinus         None..............  120,743.
 delphis).
White-beaked dolphin              None..............
 (Lagenorhychus albirostris).
Atlantic White-Sided dolphin      None..............
 (Lagenorhynchus acutus).
Risso's dolphin (Grampus          None..............  15,053.
 griseus).
Melon-headed whale                None..............
 (Peponocephala electra).
Pygmy killer whale (Feresa        None..............
 attenuate).
Long-finned pilot whale           None..............  31,139.
 (Globicephala melas).
Short-finned pilot whale          None..............
 (Globicephala macrorhynchus).
Harbor porpoise (Phocoena         None..............  89,054.
 phocoena).
------------------------------------------------------------------------
                             Order Carnivora
            Suborder Pinnipedia (seals, sea lions, walruses)
------------------------------------------------------------------------
Harbor seal (Phoca vitulina)....  None..............  99,340.
Gray seal (Halichoerus grypus)..  None..............  Unknown.
Hooded seal (Cystophora           None..............  Unknown.
 cristata).
Harp seal (Pagophilus             None..............  Unknown.
 groenlandicus).
------------------------------------------------------------------------
                              Order Sirenia
------------------------------------------------------------------------
West Indian manatee (Trichechus   None..............  1,822.
 manatus).
------------------------------------------------------------------------

    Some marine mammals species are likely to occur within the action 
area more so than others; however, marine mammal occurrence within the 
action areas during the 3-8 hours of pile driving is expected to be 
minimal. During July-October 2009, multiple geophysical and 
geotechnical (G&G) surveys were conducted by three wind park developers 
off the coast of New Jersey, all of which had dedicated protected 
species observers onboard the survey vessel. In general, sightings of 
marine mammals were uncommon. No marine mammals were sighted during G&G 
surveys conducted between July 24-August 1, 2009, approximately 17 
miles off the New Jersey coast (RPS GeoCet, 2009). Similarly, during 
nine days of G&G surveys from August 25-September 21, no marine mammals 
were sighted approximately 12 miles of the southeast coast of New 
Jersey (AIS, 2009). Only during geophysical surveys conducted by 
Bluewater from August 14-17, 2009 (within lease block 6936) were marine 
mammals observed; one group was confirmed Tursiops comprised of two 
individuals; the other group was of an unknown species and contained 
five individuals (Geo-Marine, 2009).
    In addition to the G&G survey, from January to December 2008, the 
New Jersey Department of the Environment (NJDOE) conducted monthly 
marine mammal and avian surveys off of New Jersey out to approximately 
20 nautical miles (NM) (37 km); however, no surveys were conducted in 
October or November. Shipboard surveys were conducted over 3 days in 
July and August each and four days in September. Total on-effort 
transect length per month equaled approximately 417 NM (773 km), 481 NM 
(891 km), and 440 NM (816 km), respectively. The abundance data from

[[Page 42701]]

the July-October quarterly report is presented in Table 2. Based on 
these data and the data from the G&G surveys, the potential for marine 
mammals to occur within the action area exists; however, given the 
limited duration of pile driving associated with the project (3-8 
hours), it is unlikely many individual marine mammals would be harassed 
by the specified activity.

  Table 2--Summary of Marine Mammal Sightings From the NJDOE Shipboard Surveys From July Through September 2008
                                               (Geo-Marine, 2008).
----------------------------------------------------------------------------------------------------------------
                                                                    Number of sightings per survey month
                          Species                          -----------------------------------------------------
                                                                  July             August           September
----------------------------------------------------------------------------------------------------------------
Humpback whale............................................                 0                 2                 3
Fin whale.................................................                 1                37                 1
Bottlenose dolphin........................................                44                 0                 7
Harbor porpoise...........................................                 1                 0                 0
Unidentified dolphin......................................                 1                 0                 2
Unidentified large whale..................................                 0                 0                 1
----------------------------------------------------------------------------------------------------------------

    On May 14, 2009, the NMFS Northeast Region concluded informal ESA 
consultation with MMS on issuance of lease blocks. In summary, NMFS 
determined that, given a 1,000 m exclusion zone (i.e., if ESA listed 
species are seen within 1,000 m of the active pile driver, operation 
will cease until that animal clears the area), ESA-listed marine 
mammals are not likely to be adversely affected by the specified 
activity. This determination was based on acoustical information 
provided, in part, by Bluewater which estimated the 160 dB re: 1 
microPa isopleth (NMFS' Level B harassment threshold for impulsive 
noise) to be approximately 500 m. Bluewater's IHA application presents 
a more recent and thorough acoustic analysis that reveals the Level B 
harassment threshold (160 dB) isopleth may extend to approximately 
7,000 m (not 500 m). Bluewater and NMFS consider the 7,000 m Level B 
harassment distance conservative.
    Given the timing of the activity (October) and short duration of 
pile driving (3-8 hours), North Atlantic right whales would be rare in 
the action area but are possible. The location of the proposed MDFC is 
within the main right whale migratory corridor (i.e., within 20 miles 
of shore in 5-15 fathoms of water). However, right whales are most 
likely to occur in the mid-Atlantic between November and April.
    Although ESA-listed whales may be present, Bluewater would 
implement mitigation measures such that no ESA-listed marine mammal, 
including right whales, would be exposed to sound levels at or above 
NMFS behavioral harassment threshold for impulsive noise (i.e., 160 dB 
rms). Therefore, Bluewater has determined that only eight species of 
marine mammals have the potential to be taken by harassment incidental 
to MDCF installation off Delaware and New Jersey. These include 
bottlenose dolphins, spotted dolphins, common dolphins, Atlantic white-
sided dolphins, Risso's dolphins, pilot whales, harbor porpoise, and 
harbor seals. None of these species are listed under the ESA. The 
western north Atlantic coastal stock of bottlenose dolphins is the only 
species listed as depleted under the MMPA. The action area does not 
provide significant reproductive, migratory and feeding habitat for any 
marine mammal. Animals will likely be transiting through the area or 
opportunistically resting or foraging. A detailed description on 
species status, abundance, and ecology of the eight species of 
cetaceans and pinnipeds that may be taken from the specified activity 
are provided in the IHA application and are summarized here with 
updates to some population size estimates.

Bottlenose Dolphins

    There are two morphologically and genetically distinct bottlenose 
dolphin stocks in the Western Atlantic Ocean: coastal and offshore. 
Coastal bottlenose dolphins are continuously distributed along the 
Atlantic coast south of Long Island, New York around the Florida 
peninsula and along the Gulf of Mexico coast. Initially, a single stock 
of coastal morphotype bottlenose dolphins was thought to migrate 
seasonally between New Jersey (summer months) and central Florida based 
on seasonal patterns in strandings during a large scale mortality event 
occurring during 1987-1988 (Scott et al., 1988). However, re-analysis 
of stranding data (McLellan et al., 2003) and extensive analysis of 
genetic, photo-identification, satellite telemetry, and stable isotope 
studies demonstrate a complex mosaic of coastal bottlenose dolphin 
stocks (NMFS 2001). Seven management units within the range of the 
coastal western North Atlantic bottlenose dolphin (Atlantic coast south 
of Long Island through the Gulf of Mexico) have been defined. Animals 
within the action area may belong to either the Southern Migratory 
Management Unit (MMU) or Northern Migratory Management Unit (NMMU).
    The coastal stock of bottlenose dolphins resides along the inner 
continental shelf and around islands preferring waters less than 30-40 
meters in depth, typically travel in groups of multiple animals, and 
may carry soft barnacles (Xenobalanus sp.) on the dorsal fin or flukes 
(NOAA Fisheries 2001, 2008; McLellan et al., 2003). The offshore form 
are large robust animals which tend to travel in small groups of 1-3 
individuals and are distributed primarily along the outer continental 
shelf and continental slope in the Northwest Atlantic Ocean. The best 
abundance estimates of the SMMU and NMMU come from summer aerial 
surveys which estimate the populations to be 10,341 and 7,489, 
respectively (NMFS, 2008). The offshore stock is estimated at 81,588 
individuals (NMFS, 2008).

Spotted Dolphins

    There are two species of spotted dolphin in the Atlantic Ocean, the 
Atlantic spotted dolphin (Stenella frontalis), and the pantropical 
spotted dolphin (S. attenuata) (Perrin, 1987). Where they co-occur, the 
two species can be difficult to differentiate (Waring et al., 2006). 
Atlantic spotted dolphins prefer tropical to warm temperate waters 
along the continental shelf 10 to 200 meters (33 to 650 feet) deep to 
slope waters greater than 500 meters (1,640 feet) deep. Recent surveys 
in the Navy's Virginia Capes Operating Area (VACAPES OPAREA), which 
includes waters off Delaware through North Carolina, indicate higher 
abundance of spotted dolphin in deep, continental slope waters east of 
North Carolina, but

[[Page 42702]]

few, if any, in the vicinity of the project area (DoN, 2007b). The best 
available population estimates for Atlantic and Pantropical spotted 
dolphins are 50,978 and 4,439, respectively.

Common Dolphin

    The common dolphin may be one of the most widely distributed 
species of cetaceans, as it is found world-wide in temperate, tropical, 
and subtropical seas. Mitochondrial DNA (mtDNA), and morphometric 
cranial analysis of North Atlantic specimens suggest that common 
dolphins in the western North Atlantic are composed of a single 
panmictic group whereas gene flow between western and eastern North 
Atlantic animals is limited (Westgate, 2005). Common dolphins can be 
found in pelagic waters of the Atlantic and Pacific Oceans along the 
200- to 2,000-meter (650- to 6,500-foot) isobaths over the continental 
shelf. They are present in the western Atlantic from Newfoundland to 
Florida. This species is especially common along shelf edges and in 
areas associated with Gulf Stream features and sharp bottom relief such 
as seamounts and escarpments (Reeves et al., 2002; NMFS, 2007)--
bathymetric features not found at the project site.
    Recent surveys in the Northeast Study Area (New Jersey through 
Maine) inclusive of the Navy's Atlantic City OPAREA, which includes 
waters off Delaware through North Carolina, indicate higher abundance 
of common dolphin in deep, continental slope waters throughout the Mid-
Atlantic region, but few, if any, in the vicinity of the project area 
(DoN, 2007a and b). The best abundance estimate for common dolphins in 
the western North Atlantic is 120,743 animals (NMFS, 2007).

Atlantic White-sided Dolphins

    Atlantic white-sided dolphins are typically found at depths greater 
than 330 feet (100 meters) in the cool temperate and subpolar waters of 
the North Atlantic, generally along the continental shelf between the 
Gulf Stream and the Labrador current to as far south as North Carolina 
(Bulloch 1993; Reeves et al. 2002). NMFS recognizes three stocks of the 
Atlantic white-sided dolphin in the western North Atlantic: a Gulf of 
Maine stock, a Gulf of St. Lawrence stock, and a Labrador Sea stock 
(Waring et al., 2006). Although this species is widely distributed, 
sightings in the vicinity of Hudson Canyon and points south have 
occurred at low densities (Waring et al. 2006). The best available 
current abundance estimate for white-sided dolphins in the western 
North Atlantic stock is 63,368 (NMFS, 2009).

Risso's Dolphin

    Risso's dolphins are typically an offshore dolphin whose inshore 
appearance is uncommon (Reeves et al., 2002). Risso's dolphins prefer 
temperate to tropical waters along the continental shelf edge and can 
range from Cape Hatteras to Georges Bank from spring through fall, and 
throughout the Mid-Atlantic Bight out to oceanic waters during winter 
(Payne et al., 1984). Risso's dolphins are usually seen in groups of 12 
to 40 individuals (NMFS, 2009). Loose aggregations of 100 to 200, or 
even several thousand, are seen occasionally (Reeves et al. 2002). 
Based on a survey from Maryland to the Bay of Fundy in 2004, the 
estimated population size for Risso's dolphins is 15,053 (NMFS, 2009).

Pilot Whale

    There are two species of pilot whales in the western North 
Atlantic--the Atlantic or long-finned pilot whale, Globicephala melas, 
and the short-finned pilot whale, G. macrorhynchus. Sightings of these 
animals in the U.S. Atlantic Exclusive Economic Zone (EEZ), which 
extends from the coastline to 200 nm, occur in oceanic waters and along 
the continental shelf and continental slope in the northern Gulf of 
Mexico (Hansen et al. 1996; Mullin and Hoggard 2000; Mullin and Fulling 
2003). Pilot whales are highly social and typical group size can range 
from the tens to hundreds and may reach up to 1,200 individuals 
(Zachariassen, 1993; Bloch, 1998). Information on stock differentiation 
for the Atlantic population based on morphological, genetic, and/or 
behavioral data is in progress. Pending these results, the western 
North Atlantic Globicephala sp. population(s) is provisionally being 
considered a separate stock from the northern Gulf of Mexico stock(s). 
Because these species are difficult to differentiate at sea, seasonal 
abundance estimates are reported for both long-finned and short-finned 
pilot whales. The best abundance estimate for Globicephala sp. is 
31,139 (NMFS 2009).

Harbor Porpoise

    The harbor porpoise inhabits shallow, coastal waters, often found 
in bays, estuaries, and harbors. During fall and spring, harbor 
porpoises are widely dispersed in the North Atlantic 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. They are seen from 
the coastline to deep waters (>1800 m; Westgate et al., 1998), although 
the majority of the population is found over the continental shelf. 
Gaskin (1984; 1992) proposed that there were four separate populations 
in the western North Atlantic: the Gulf of Maine/Bay of Fundy, Gulf of 
St. Lawrence, Newfoundland, and Greenland populations. As described in 
NMFS' most recent stock assessment report (2009), this hypothesis has 
been recently supported by mtDNA analysis, organochlorine contaminants, 
heavy metals, and life history parameters. The aggregation of porpoises 
found in the mid-Atlantic during winter may be composed of a mix of all 
these stocks; however, the Gulf of Main/Bay of Fundy stock is likely 
the largest contributor (NMFS, 2009). The best current abundance 
estimate of the Gulf of Maine/Bay of Fundy harbor porpoise stock is 
89,054 (NMFS, 2009).

Harbor Seals

    Harbor seals are the most abundant seals in eastern United States 
waters and are commonly found in all nearshore waters of the Atlantic 
Ocean and adjoining seas above northern Florida. However, their 
``normal'' southern range is probably only to the waters off the coast 
of New Jersey. In late autumn and winter, harbor seals may be at sea 
continuously for several weeks or more (Reeves et al., 2002). Although 
the stock structure of the western North Atlantic population is 
unknown, it is thought that harbor seals found along the eastern U.S. 
and Canadian coasts represent one population (Temte et al., 1991). In 
late autumn and winter, harbor seals may be at sea continuously for 
several weeks or more, presumably feeding to recover body mass lost 
during the reproductive and molting seasons and to fatten up for the 
next breeding season (Reeves et al. 2002). (Reeves et al., 2002). The 
population estimate for the western North Atlantic stock of harbor 
seals is 99,340 (Marine Mammal Center, 2002; NOAA, 1993; Waring et al., 
2006).

Potential Effects on Marine Mammals

    NMFS has preliminarily determined that open-water impact pile 
driving of the single monopole at each site, as outlined in the project 
description, has the potential to result in behavioral harassment of 
marine mammals if they are present near the action area. However, NMFS 
notes that the limited duration of pile driving (3-8 hours) will 
minimize the chance marine mammals are exposed to pile driving noise 
and

[[Page 42703]]

pile driving at the sites will not occur concurrently; therefore, no 
cumulative impacts are anticipated. Bluewater has proposed a mitigation 
and monitoring plan designed to eliminate potential for Level A 
(injurious) harassment of all marine mammals and also Level B 
harassment of ESA-listed marine mammals (see Proposed Mitigation 
section).
    Noise from pile driving may harass marine mammals. Sound is a 
physical phenomenon consisting of minute vibrations that travel through 
a medium, such as air or water. Sound is generally characterized by 
several variables, including frequency and sound level. Frequency 
describes the sound's pitch and is measured in hertz (Hz) or kilohertz 
(kHz), while sound level describes the sound's loudness and is measured 
in decibels (dB). Sound level increases or decreases exponentially with 
each dB of change. For example, 10-dB yields a sound level 10 times 
more intense than 1 dB, while a 20 dB level equates to 100 times more 
intense. Sound levels are compared to a reference sound pressure 
(micro-Pascal) to identify the medium. All underwater noise levels 
presented here are quantified in decibels relative to 1 micro Pascal 
(re: 1 microPa), unless otherwise noted.
    Marine mammals are continually exposed to many sources of sound. 
Naturally occurring noise from lightning, rain, sub-sea earthquakes, 
and biological sounds (e.g., snapping shrimp, whale songs) are 
ubiquitous throughout the world's oceans. Marine mammals produce sounds 
in various contexts and use sound for various biological functions 
including, but not limited to: (1) Social interactions; (2) foraging; 
(3) orientation; and (4) predator detection. Interference with 
producing or receiving these sounds may result in adverse impacts. Type 
and significance of marine mammal reactions to noise are likely to 
depend on a variety of factors including, but not limited to, received 
levels, the behavioral state (e.g., feeding, traveling, etc.) of the 
animal at the time it receives the stimulus, frequency of the sound, 
distance from the source, source characteristics (e.g., is the source 
moving or stationary) and the level of the sound relative to ambient 
conditions (Southall et al., 2007).
    NMFS is in the process of developing guidelines for determining 
sound pressure level (SPL) thresholds for acoustic harassment based on 
the best available science. In the interim, NMFS generally considers 
180 and 190 dB root mean square (rms) as the level at which cetaceans 
and pinnipeds, respectively, could be subjected to Level A (injurious) 
harassment. Level B (behavioral) harassment has the potential to occur 
if marine mammals are exposed to pulsed sounds (e.g. impact pile 
driving) at or above 160 dB rms, but below injurious thresholds. These 
thresholds are considered conservative.
    Bluewater's analyzed pile driving data collected during offshore 
wind farm construction in Europe to estimate the distances to NMFS' 
threshold levels during pile driving off Delaware and New Jersey (see 
sections 2.2 and 2.3 in Bluewater's IHA application. Table 3 below 
summarizes the estimated distances to NMFS' Level A and B harassment 
isopleths at each location based on Bluewater's modeling. Water depth 
is the main contributing factor to any discrepancy between the two 
proposed sites.

 Table 3--Estimated Distances to NMFS' Harassment Thresholds for Impact
                Pile Driving Off Delaware and New Jersey
------------------------------------------------------------------------
                                    190 dB re:   180 dB re:   160 dB re:
          Site location             1 microPa    1 microPa    1 microPa
                                    (rms) \1\    (rms) \2\    (rms) \3\
------------------------------------------------------------------------
OCS--Delaware....................        330 m        760 m      7,230 m
OCS--New Jersey..................        375 m      1,000 m      6,600 m
------------------------------------------------------------------------
\1\ Level A harassment threshold for pinnipeds in water.
\2\ Level A harassment threshold for cetaceans.
\3\ Level B harassment thresholds for pinnipeds and cetaceans from
  impulsive noise.

Hearing Impairment

    Temporary or permanent hearing impairment is a possibility when 
marine mammals are exposed to very loud sounds. Hearing impairment is 
measured in two forms: Temporary threshold shift (TTS) and permanent 
threshold shift (PTS). There are no empirical data for onset of PTS in 
any marine mammal; therefore, PTS-onset must be estimated from TTS-
onset measurements and from the rate of TTS growth with increasing 
exposure levels above the level eliciting TTS-onset. PTS is presumed to 
be likely if the hearing threshold is reduced by >= 40 dB (i.e., 40 dB 
of TTS). Due to proposed mitigation measures, NMFS does not expect that 
marine mammals will be exposed to levels that could elicit PTS; 
therefore, it will not be discussed further.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). While experiencing TTS, the 
hearing threshold rises and a sound must be louder in order to be 
heard. TTS can last from minutes or hours to, in cases of strong TTS, 
days. For sound exposures at or somewhat above the TTS-onset threshold, 
hearing sensitivity recovers rapidly after exposure to the noise ends. 
Few data on sound levels and durations necessary to elicit mild TTS 
have been obtained for marine mammals. Southall et al. (2007) considers 
a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) sufficient 
to be recognized as an unequivocal deviation and thus a sufficient 
definition of TTS-onset. Because it is non-injurious, NMFS considers 
TTS as Level B harassment that is mediated by physiological effects on 
the auditory system; however, NMFS does not consider onset TTS to be 
the lowest level at which Level B harassment may occur.
    Of all marine mammals which could be encountered during the very 
short pile driving period (3-8 hours), bottlenose and spotted dolphins 
are the species most likely to come within the action area as they are 
the most abundant. Bottlenose dolphins have been the subject for most 
TTS studies and can be considered a surrogate for other delphinids 
(e.g., spotted dolphins, common dolphins) that may be exposed to 
Bluewater's pile driving activity. For bottlenose dolphins, eight 
different captive individuals have been exposed to impulsive 
anthropogenic sound, with TTS being induced in five individuals 
(Schlundt et al., 2000; Nachtigall et al., 2004; Finneran et al., 2007; 
Mooney et al., 2009). TTS onset occurred when animals were exposed to 
sound levels

[[Page 42704]]

ranging from 182 to 203 dB re: 1[mu]Pa2-s (SEL), with a median TTS 
onset level of 192.5 dB SEL. For pinnipeds, underwater TTS experiments 
involving exposure to pulse noise is limited to a single study. 
Finneran et al. (2003) found no measurable TTS when two California sea 
lions were exposed to sounds up to 183 dB re: 1 microPa (peak-to-peak). 
No TTS studies have been conducted on mysticetes; therefore, no data 
exist. However, if the pattern holds true as that for mid-frequency 
cetaceans and pinnipeds, one can assume that TTS occurs in mysticetes 
at levels much higher than NMFS' Level B behavioral harassment 
threshold for impulsive noise (i.e., 160 dB) and likely above NMFS' 
Level A (injurious) harassment thresholds.
    Bluewater is proposing to pile drive continuously for 3-8 hours. 
Until recently, previous marine mammal TTS studies have generally 
supported an equal energy relationship hypothesis whereby as amplitude 
and duration of sound exposure increase, generally, so does the amount 
of TS and recovery time (Southall et al., 2007). However, two recent 
studies by Mooney et al. (2009a, 2009b) on a single bottlenose dolphin 
exposed to playbacks of Navy mid-frequency active sonar or octave-band 
(non-impulsive) noise (4-8 kHz) and one by Kastak et al. (2007) on a 
single California sea lion exposed to airborne octave-band noise 
(centered at 2.5 kHz) concluded that for all noise exposure situations, 
the equal energy relationship may not be the best indicator to predict 
TTS onset levels. Generally, with sound exposures of equal energy, 
those that were quieter SPLs with longer duration were found to induce 
TTS onset more than those of louder (higher SPLs) and shorter duration. 
For intermittent sounds, less TS will occur than from a continuous 
exposure with the same energy (some recovery will occur between 
exposures) (Kryter et al., 1966; Ward, 1997). Although Bluewater's pile 
driving would be both loud and continous for 3-8 hours, NMFS 
anticipates that if TTS does occur, it would be short in duration as: 
(1) Pile driving would cease if animals come within the 190 or 180 dB 
isopleth for pinnipeds and cetaceans, respectively; and (2) marine 
mammals will likely not linger in areas with sound pressure levels high 
enough to induce long-term TTS.

Behavioral Impacts

    NMFS has discussed behavioral impacts resulting from impact pile 
driving for various other projects (e.g., 73 FR 38180; 74 FR 18492; 74 
FR 63724) which are relevant here. Additionally, in 2009, the MMS 
prepared an EA and associated Finding of No Significant Impact (FONSI) 
on the Issuance of Leases for Wind Resource Data Collection on the 
Outer Continental Shelf Offshore Delaware and New Jersey which analyzes 
the impacts of constructing, operating, and decommissioning MDCFs 
similar to ones proposed by Bluewater in their MMPA application. In 
summary, MMS found that noise from pile driving could disturb normal 
marine mammal behaviors (e.g., feeding, social interactions), mask 
calls from conspecifics, disrupt echolocation capabilities, and mask 
sounds generated by predators. Behavioral effects may be incurred at 
ranges of many miles, and hearing impairment may occur at close range 
(Madsen et al., 2006). Behavioral reactions may include avoidance of, 
or flight from, the sound source and its immediate surroundings, 
disruption of feeding behavior, interruption of vocal activity, and 
modification of vocal patterns (Watkins and Scheville, 1975; Malme et 
al., 1984; Bowles et al., 1994; Mate et al., 1994). These impacts are 
similar to those previous identified by NMFS for the previous pile 
driving projects discussed above. NMFS characterizes the potential 
effects described here as indicative of Level B (behavioral) 
harassment.
    In addition to noise related impacts to marine mammals, NMFS has 
considered the specified activity includes the impacts from vessel 
traffic (i.e., ship strikes) and potential operational discharges from 
MCDF construction and operation. The marine mammals most vulnerable to 
vessel strikes are slow-moving and/or spend extended periods of time at 
the surface in order to restore oxygen levels within their tissues 
after deep dives (e.g., right whales, fin whales, sperm whales). 
Smaller marine mammals such as delphinids, are agile and move more 
quickly through the water, making them less susceptible to ship 
strikes. Vessels used for construction include crew boats and slow 
moving support vessels such as tugs and barges. To prevent ship 
strikes, crew aboard all vessels associated with the specified activity 
transiting to and from the construction site would actively watch for 
whales and other marine mammals and vessel operators would abide by 
NMFS' Northeast Marine Mammal Viewing Guidelines. As a result, NMFS 
does not anticipate a ship strike is likely to occur.
    MMS's EA also analyzed impacts from operational waste generated 
from vessels includes bilge and ballast waters, trash and debris, and 
sanitary and domestic wastes. Operational discharges from construction 
vessels would be released into the open ocean where they would be 
rapidly diluted and dispersed, or collected and taken to shore for 
treatment and disposal. Sanitary and domestic wastes would be processed 
through on-site waste treatment facilities before being discharged 
overboard or would be tanked to shore for disposal there. Deck drainage 
would also be processed prior to discharge. The discharge or disposal 
of solid debris into offshore waters from OCS structures and vessels is 
prohibited by the MMS (30 CFR 250.300) and the USCG (MARPOL, Annex V, 
Public Law 100-220 [101 Statute 1458]). MMS and USCG would enforce such 
prohibitions; hence, the entanglement in or ingestion of proposed 
action-related trash and debris by marine mammals would not be 
expected. Because of the limited amount of vessel traffic and 
construction activity that would occur from Bluewater's proposed 
activities, the release of liquid wastes would occur infrequently and 
cease following completion of tower construction. NMFS agrees with 
MMS's analysis and, as such, has preliminarily determined that impacts 
to marine mammals from the discharge of waste materials or the 
accidental release of fuels are expected to be negligible.

Anticipated Effects on Habitat

    The footprint of the foundation and scour protection (if used) is 
approximately 0.06 acre (30-foot radius around the monopile foundation) 
at the MDCF site. Under the terms of the MMS lease, within a period of 
one year after cancellation, expiration, relinquishment, or other 
termination of the lease, the lessee shall remove all devices, works 
and structures from the leased area and restore the leased area to its 
original condition before issuance of the lease (MMS 2008). Bluewater's 
consultation with the NMFS under section 7 of the ESA for the MMS 
lease, completed May 14, 2009, concluded that all effects of the 
proposed project, including those to habitat, will be insignificant or 
discountable. Under the MMPA, the same determination on effects to 
marine mammal habitat applies based on the factors in the earlier 
consultation.

Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying

[[Page 42705]]

particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
taking for certain subsistence uses.
    Bluewater has proposed, and NMFS supports, the following mitigation 
measures designed to eliminate the potential for serious injury/
mortality and Level A (injurious) harassment and minimize Level B 
(behavioral) harassment to marine mammals:

Establishment of Exclusion Zone

    Bluewater would establish and monitor a preliminary 1,000 m Level A 
harassment exclusion zone (EZ) around the pile driving site in order to 
eliminate the potential for injury (Level A harassment) of marine 
mammals. This zone is designed to include all areas where the 
underwater SPLs are anticipated to equal or exceed 180 dB rms. If the 
acoustic survey (see Acoustic Monitoring section) determines that the 
area ensonified by sounds exceeding 180 dB extends beyond the 
preliminary 1,000-meter EZ, a new safety exclusion zone would be 
established. Otherwise, the 1,000-meter EZ will remain in place. 
Triggers and protocol for pile driving shut down for this zone are 
described below.
    Bluewater would also establish a 7-km EZ at the Delaware site for 
ESA-listed marine mammals (i.e., large whales) to avoid Level B 
(behavioral) harassment to these species. Should acoustic monitoring at 
the Delaware site determine the estimated distance to the 160 dB 
isopleth (the Level B harassment threshold level) is not accurate, the 
large whale exclusion zone would be altered for the New Jersey site 
accordingly, after accounting for depth differences between the two 
sites.

Pile Driving Shut-Down and Delay Triggers and Procedures

    At least one protected species observer (PSO) stationed onboard the 
pile-driving vessel would monitor the established 1,000 m EZ for 30 
minutes prior to the soft-start of pile driving. If the PSO observes a 
marine mammal within this zone during this time, the PSO would notify 
the Resident Engineer (or other authorized individual) who would then 
delay pile driving. Pile driving would not commence until the PSO 
confirms that animal has moved out of and on a path away from the EZ or 
a PSO has not sighted the animal within the EZ for 15 minutes. If a 
marine mammal approaches or enters the exclusion zone after pile 
driving has begun, pile driving would cease until the PSO confirms that 
the animal has moved out of and on a path away from the EZ or the PSO 
has not sighted the animal within the EZ for 15 minutes. If pile 
driving ceases for 30 minutes or more, the PSO would observe for an 
additional 30-minute period before he/she would notify the Resident 
Engineer (or other authorized individual) that none of the 
aforementioned situations are triggered and pile driving could 
commence.
    On a separate vessel navigating at approximately 4-5 kms around the 
pile hammer, PSOs would monitor for large whales. Protocol for pile 
shut down and delay would follow the procedures described above for the 
1,000 EZ.

Ramp-Up Procedures

    A ramp-up or soft-start will be used at the beginning of pile 
driving in order to provide additional protection to marine mammals 
near the project area by allowing them time to vacate the area prior to 
the commencement of pile-driving activities. The soft-start requires an 
initial set of 3 strikes from the impact hammer at 40 percent energy 
with a one minute waiting period between subsequent 3-strike sets. The 
procedure will be repeated two additional times. If marine mammals are 
sighted within the exclusion zone prior to pile-driving, or during the 
soft start, the Resident Engineer (or other authorized individual) will 
delay pile driving until the animal has moved outside the exclusion 
zone and no marine mammals are sighted for a period of 30 minutes.

Use of Sound Attenuation Devices

    Bluewater has conducted a sound attenuation device feasibility 
study and has concluded that traditional devices (e.g., bubble curtain, 
wood cap, sleeve) are not practical or feasible for the proposed 
activity for various reasons (see Bluewater's application). However, 
Bluewater would continue to explore other options and, if found, would 
implement a sound attenuation device during pile driving.

Reduced Hammer Force

    Bluewater would not ramp-up to full power if, at decreased power, 
the pile can be driven to the desired depth. Recall that source levels 
are directly related to hammer force. The estimates to the Level A and 
Level B harassment thresholds are based on maximum hammer force (900 
kJ); hence if less energy is used, noise levels would be less than 
anticipated.

Time-of-Day and Weather Restrictions

    Pile-driving will be limited to day light hours between one-half 
hour after sunrise and one-half hour prior to sunset. If detection 
capability of a marine mammal within the EZ is obscured by foul weather 
(e.g., rough seas, fog), Bluewater would delay or suspend pile driving 
operations until the EZ is clear.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures in the context of ensuring that NMFS prescribes the means of 
effecting the least practicable adverse impact on the affected marine 
mammal species and stocks and their habitat. Our evaluation of 
potential measures included consideration of the following factors in 
relation to one another: the manner in which, and the degree to which, 
the successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals; the proven or likely efficacy of the 
specific measure to minimize adverse impacts as planned; and the 
practicability of the measure for applicant implementation, including 
consideration of personnel safety, and practicality of implementation.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed mitigation measures 
provide the means of effecting the least practicable adverse impacts on 
marine mammals species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs 
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.

Visual Monitoring

    Bluewater is proposing to conduct both visual and acoustic 
monitoring to better understand impacts to marine mammals from pile 
driving and estimate take. At least one PSO would be stationed at the 
pile hammer to monitor, and implement mitigation if necessary, the 
preliminary 1,000 m EZ and notify the Resident Engineer (or other 
authorized person) if shut down is necessary. In addition, at least one 
PSO, in a dedicated visual monitoring vessel circumnavigating the pile 
hammer at a distance of 4-5 kms, would monitor the

[[Page 42706]]

Level B harassment zone (i.e., those waters estimated to carry sound 
levels at or above 160 dB) to determine take numbers for non-listed 
marine mammals located at a distance to the pile hammer and call for 
pile driving shut down should a large whale enter this zone. PSOs would 
be stationed at the highest vantage point possible aboard support 
vessels (the higher the platform, the greater distance seen). In 
addition, a visual monitor would be aboard the acoustic monitoring 
vessel to observe for marine mammals. All PSOs will be in contact with 
each other at all times.

Acoustic Monitoring

    Bluewater would carry out an acoustic study as described in the 
application (Attachment 1--Underwater Noise Survey Protocol). The plan 
includes the use of hydrophone array deployed by vessel within the near 
field (i.e., within 1,000 m) which provides data in real time and two 
automous recorders in the far field (2 km and 5 km from the hammer) 
which will archive sound data until they are retrieved and downloaded. 
The plan is designed to: (1) Empirically verify the marine mammal 
exclusion and harassment zones; (2) estimate site specific underwater 
sound transmission loss decay rates in the action area; (3) provide a 
digital sound recording of acoustic measurements completed during pile 
driving; and (4) investigate background noise levels in absence of pile 
driving. As stated previously, the acoustic models contained within the 
application are likely an overestimate of sound levels; however, by how 
much cannot be determined at this time. Empirical data collection will 
help refine these numbers. Based on the data collected at the each 
site, the EZ would be adjusted accordingly (but not less than 1,000 m) 
and from the autonomous recorders at the Delaware site, estimates to 
the Level B isopleths may be refined for the New Jersey site after 
adjustment for water depth differences. In addition, MMS may also 
conduct an independent sound study during pile driving, providing 
further acoustical data.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as:

    Any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].
    As discussed in the Potential Effects section above, marine mammals 
exposed to certain levels of pile driving noise may be taken by Level B 
harassment. Monitoring and mitigation measures will prevent animals 
from being exposed to levels which could induce Level A (injury) 
harassment. Responses to the specified activity may include avoidance, 
altered patterns in foraging, traveling, and resting patterns, masking, 
and stress hormone production. Many of these effects are difficult to 
quantify; therefore, NMFS has established threshold criteria which 
indicate the levels at which any of these effects may occur and a take 
is possible. Hence these levels are conservative and currently are 
being refined to better reflect the best scientific data available.
    Bluewater has determined that eight species of marine mammals have 
the potential to be taken, by Level B harassment only, incidental to 
pile driving. Tables 4 and 5 below provide Bluewater's proposed 
estimated take levels for Delaware and New Jersey, respectively. For 
all species, the requested take is less than 1% of the population; 
therefore, take numbers can be considered small relative to the 
population size. Although some species have low average and maximum 
calculated take estimates based on density, these species (e.g., 
spotted dolphin, common dolphin) can travel in large groups, hence 
higher numbers of take are requested given the assumption that an 
entire group would come within the designated Level B harassment 
isopleths. Due to the short duration of pile driving (3-8 hours) it is 
unlikely single individuals would be exposed multiple times, further 
reducing impacts from Level B harassment. In addition, the number of 
requested takes proposed here are unlikely to all occur (i.e., it is 
unlikely all these species would be present within the action area over 
a period of 3-8 hours); however, it is difficult to determine which 
species may or may not be encountered. For example, only spotted 
dolphins may come within the Level B harassment zone during pile 
driving; however, these animals travel in large groups so all take for 
this species may be used. Bluewater would cease pile driving if marine 
mammals come within 1,000 m of the pile; therefore, no Level A takes 
are requested nor would any be authorized in the proposed IHA. In 
addition, no ESA-listed species would be taken by harassment (Level A 
or B) given the implementation of the mitigation and monitoring 
measures described above.

                            Table 4--Requested Take Numbers, by Species, Off Delaware
----------------------------------------------------------------------------------------------------------------
                                                   Density Fall                                   Requested take
                     Species                         (No./100      Average take    Maximum take      (number of
                                                      km\2\)       estimate \a\    estimate \b\      animals)
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin..............................           3.969           4.95            11.90              15
Spotted dolphin.................................           8.730          14.06            28.11              35
Common dolphin..................................           5.275           8.09            16.99              20
Atlantic White-Sided dolphin....................           0.410            .066            1.32              15
Risso's dolphin.................................           3.288           5.29            10.59              15
Pilot whale.....................................           1.696           2.73             5.46              10
Harbor porpoise.................................           3.200           5.15            10.30              15
Harbor seal \c\.................................           9.743          16.69            31.37              35
----------------------------------------------------------------------------------------------------------------
\a\ Density values from Dept. of Navy (2007a,b).
\b\ Maximum take estimate 2x average take estimate.
\c\ Density estimate from Barlas (1999) used for this species.


[[Page 42707]]


                           Table 5--Requested Take Numbers, by Species, Off New Jersey
----------------------------------------------------------------------------------------------------------------
                                                   Density Fall                                   Requested take
                     Species                         (no./100      Average take    Maximum take      (number of
                                                    km\2\) \a\       estimate      estimate \b\      animals)
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin..............................           3.969           4.94             9.88              15
Spotted dolphin.................................           8.730          11.67            23.35              35
Common dolphin..................................           5.275           7.05            14.11              20
Atlantic White-Sided dolphin....................           0.410            .055            1.10              15
Risso's dolphin.................................           3.288           4.40             8.79              15
Pilot whale.....................................           1.696           2.27             4.54              10
Harbor porpoise.................................           3.200           4.28             8.56              10
Harbor seal \c\.................................           9.743          13.03            26.05              30
----------------------------------------------------------------------------------------------------------------
\a\ Density values from DoN (2007a,b).
\b\ Maximum take estimate 2x average take estimate.
\c\ Density estimate from Barlas (1999) used for this species.

    Bluewater would operate support vessels (e.g., small vessels, 
barges, tugs) to deliver and install equipment at the MDCF site; 
however, operation of these vessels is not anticipated to result in 
takes of marine mammals. Vessels would transit to the site slowly and 
operators would follow NMFS' Northeast Regional marine mammal viewing 
guidelines. Vessel transit speed is similar to that in NMFS' final rule 
concerning right whale vessel collision reduction strategy which 
established operational measures for the shipping industry to reduce 
the potential for large vessel collisions with North Atlantic right 
whales while transiting to and from mid-Atlantic ports during right 
whale migratory periods (73 FR 60173; October 10, 2008). For these 
reasons (slow transit, viewing guideline adherence) NMFS does not 
anticipate take of marine mammals incidental to support vessel 
operation.

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.'' In making a negligible impact determination, 
NMFS considers the following: number of anticipated mortalities; number 
and nature of anticipated injuries; number, nature, intensity, and 
duration of Level B harassment; is the nature of the anticipated takes 
such that we would expect it to actually impact rates of recruitment or 
survival; and context in which the takes occur--that is will the takes 
occur in areas (and/or times) of significance for marine mammals (e.g., 
feeding or resting areas, reproductive areas, rookeries, critical 
habitat, etc.).
    Due to the implementation of mitigation measures, no ESA-listed 
species would be exposed to sound levels exceeding those established by 
NMFS as indicative of harassment. Therefore, no take of ESA-listed 
marine mammals are anticipated to occur. Non-ESA listed marine mammals 
may be exposed temporarily to pile driving noise; however, at each 
location, pile driving would occur for only 3-8 hours in total. The 
waters in the mid-Atlantic OCS are not designated as critical habitat 
for ESA-listed marine mammals, nor do they provide significant habitat 
for any marine mammal species (i.e., no significant foraging or 
reproductive areas are known to be in this area). Animals within the 
action area are likely to be traveling, resting, socializing or 
opportunistically foraging. Noise from pile driving may temporarily 
disturb animals in these behavioral states and induce mild TTS; 
however, no significant or long-term impacts are anticipated given the 
implementation of mitigation measures, short duration of pile driving 
and the anticipation that individuals are not expected to linger within 
the action area. While pile driving noise may affect more than one 
individual, population level effects are not anticipated as impacts are 
anticipated to be limited to short term behavioral changes in 
individuals (e.g., avoidance, cessation of activity at time of noise 
exposure, change in vocalization patterns) and potential masking 
effects. These effects would not alter fitness or reproductive success. 
Bluewater would not conduct pile driving at both sites simultaneously; 
therefore, no cumulative impacts which could arise from exposure to 
noise from multiple pile hammers are expected. Finally, the project 
footprint is extremely small, and each MDCF would be removed after 1-2 
years. Therefore, no long term impacts to marine mammal habitat are 
anticipated.
    Bluewater has conducted a conservative analysis of estimated sound 
levels and used these estimates to determine take. Hence, the number of 
animals potentially taken is also likely an overestimated as it is not 
anticipated that all species listed in Tables 3 and 4 would be 
encountered during the short duration of pile driving. The number of 
animals requested to be taken is considered small (less than 1 percent) 
when compared to the estimated stock size for each species. Again, no 
ESA-listed species would be taken based on implementation of the 
proposed mitigation and monitoring measures and no Level A (injurious) 
harassment, serious injury, or mortality is anticipated nor would any 
be authorized in the proposed IHA.
    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 mitigation and monitoring 
measures, NMFS preliminarily finds that pile driving conducted by 
Bluewater during MDCF installation will result in the incidental take 
of small numbers of marine mammals, by Level B harassment only, and 
that the total taking from will have a negligible impact on the 
affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    Bluewater is not requesting, nor is NMFS proposing, take of ESA 
listed species; hence, ESA consultation is not necessary for issuance 
of the proposed IHA.

[[Page 42708]]

National Environmental Policy Act (NEPA)

    On June 2, 2009, the MMS issued an EA and associated Finding of No 
Significant Impact (FONSI) on the Issuance of Leases for Wind Resource 
Data Collection on the Outer Continental Shelf Offshore Delaware and 
New Jersey. The EA evaluates the impacts to the human environment, 
including those to marine mammals, from issuing seven leases in the 
Atlantic OCS for purposes of constructing, operating, and 
decommissioning a MDCF in each lease block. The MDCFs proposed by 
Bluewater are included in that analysis. NMFS will either adopt MMS's 
EA or conduct a separate NEPA analysis, as necessary, prior to making a 
final determination of the issuance of the IHA. The EA is available for 
comment on NMFS' Web site (http://www.nmfs.noaa.gov/pr/permits/incidental.htm) for the duration of the public comment period of the 
proposed IHA.

    Dated: July 15, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-17968 Filed 7-21-10; 8:45 am]
BILLING CODE 3510-22-P