[Federal Register Volume 87, Number 54 (Monday, March 21, 2022)]
[Notices]
[Pages 15922-15942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05935]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB845]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off of Delaware
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental harassment authorization; request
for comments on proposed authorization and possible renewal.
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SUMMARY: NMFS has received a request from Orsted Wind Power North
America, LLC, (Orsted) on behalf of Garden State Offshore Energy, LLC
(Garden State) and Skipjack Offshore Energy, LLC (Skipjack) for
authorization to take marine mammals incidental to site
characterization surveys off the coast of Delaware. Pursuant to the
Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its
proposal to issue an incidental harassment authorization (IHA) to
incidentally take marine mammals during the specified activities. NMFS
is also requesting comments on a possible one-time, one-year renewal
that could be issued under certain circumstances and if all
requirements are met, as described in Request for Public Comments at
the end of this notice. NMFS will consider public comments prior to
making any final decision on the issuance of the requested MMPA
authorization and agency responses will be summarized in the final
notice of our decision.
DATES: Comments and information must be received no later than April
20, 2022.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division,
[[Page 15923]]
Office of Protected Resources, National Marine Fisheries Service.
Written comments should be submitted via email to
[email protected].
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. All comments received are a part of
the public record and will generally be posted online at
www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying
information (e.g., name, address) voluntarily submitted by the
commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are proposed or, if the taking is limited to harassment, a notice of a
proposed incidental harassment 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) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has
preliminarily determined that the issuance of the proposed IHA
qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process or making a final decision on the
IHA request.
Summary of Request
On October 1, 2021, NMFS received a request from Orsted on behalf
of Garden State Offshore Energy, LLC and Skipjack Offshore Energy, LLC,
both subsidiaries of Orsted, for an IHA to take marine mammals
incidental to marine site characterization surveys off the coast of
Delaware. Hereafter, we refer to the applicant as Orsted. Following
NMFS' review of the draft application, a revised version was submitted
on November 24, 2021. The application was deemed adequate and complete
on February 11, 2022. Orsted's request is for take of a small number of
16 species of marine mammals by Level B harassment only. Neither Orsted
nor NMFS expects serious injury or mortality to result from this
activity and, therefore, an IHA is appropriate.
NMFS previously issued IHAs to Garden State (86 FR 33664; June 25,
2021)) and Skipjack (86 FR 18943; April 12, 2021)) for related work.
However, work has not been completed under these IHAs at this time,
which are effective until April 4, 2022 and June 10, 2022,
respectively. Orsted plans to survey the combined survey area of the
aforementioned projects, and the same two Lease Area currently being
surveyed under those IHAs (see Figure 1).
Description of Proposed Activity
Overview
As part of their overall marine site characterization survey
operations, Orsted plans to conduct high-resolution geophysical (HRG)
and geotechnical surveys in Lease Areas OCS-A 0482 and 0519 (Lease
Areas), and the associated export cable route (ECR) area off the coast
of Delaware (Figure 1).
The purpose of the marine site characterization surveys is to
collect data concerning seabed (geophysical, geotechnical, and
geohazard), ecological, and archeological conditions within the
footprint of offshore wind facility development. Surveys are also
conducted to support engineering design and to map Unexploded Ordnance
(UXO). Underwater sounds resulting from the site characterization
survey activities, specifically HRG surveys, has the potential to
result in incidental take of marine mammals in the form of Level B
harassment. Table 1 identifies representative survey equipment with the
expected potential to result in take of marine mammals.
Dates and Duration
The proposed site characterization surveys are anticipated to occur
between May 10, 2022 and May 9, 2023. The exact dates have not yet been
established. The activity is expected to include up to 350 survey days
over the course of a single year (``survey day'' defined as a 24-hour
(hr) activity period in which the assumed number of line kilometers
(km) are surveyed). The number of anticipated survey days was
calculated as the number of days needed to reach the overall level of
effort required to meet survey objectives assuming any single vessel
travels 4 knots (kn) and surveys cover, on average, 70 line km per 24-
hr period. The applicant assumes the use of sparker systems, which
produce the largest estimated harassment isopleths, on all survey days
(see Table 1).
Specific Geographic Region
The proposed activities will occur within the survey area which
includes the Lease Area and potential ECRs to landfall locations in
Delaware, as shown in Figure 1. This survey area combines
[[Page 15924]]
the survey areas in the previously issued Garden State (86 FR 33664;
June 25, 2021) and Skipjack (86 FR 18943; April 12, 2021) IHAs. The
combined Lease Areas (Garden State Lease Area OCS-A-0482 and Skipjack
Lease Area OCS-A-0519) are comprised of approximately 568 square
kilometers (km\2\) within the WEA of BOEM's Mid-Atlantic planning area
(see Figure 1). Water depths in the Lease Area range from approximately
15 to 40 meters (m).
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN21MR22.037
BILLING CODE 3510-22-C
Detailed Description of Specific Activity
Orsted proposes to conduct HRG survey operations, including
multibeam depth sounding, seafloor imaging, and shallow and medium
penetration sub-bottom profiling. The HRG surveys will include the use
of seafloor mapping
[[Page 15925]]
equipment with operating frequencies above 180 kilohertz (kHz) (e.g.,
side-scan sonar (SSS), multibeam echosounders (MBES)); magnetometers
and gradiometers that have no acoustic output; and shallow- to medium-
penetration sub-bottom profiling (SBP) equipment (e.g., parametric
sonars, compressed high-intensity radiated pulses (CHIRPs), boomers,
sparkers) with operating frequencies below 180 kilohertz (kHz). No
deep-penetration SBP surveys (e.g., airgun or bubble gun surveys) will
be conducted. Survey equipment will be deployed from as many as three
vessels or remotely operated vehicles (ROVs) during the site
characterization activities within the Lease area and ECR area.
Equipment deployed on the ROVs would be identical to that deployed on
the vessel; however, the sparker systems are not normally deployed from
an ROV due to the power supply required. For Orsted's proposed survey
activity, ROVs would be used for smaller impact sources (i.e., CHIRPs)
or de minimus sources. The extent of ROV usage in this project is
unknown at this time, however NMFS expects the use of ROVs to have de
minimus impacts relative to the use of vessels given the smaller
sources and inherent nature of utilizing an ROV (e.g., much smaller
size of an ROV relative to a vessel and less acoustic exposure given
location of their use in the water column). For these reasons, our
analysis focuses on the acoustic sources themselves and the use of
vessels to deploy such sources, rather than the specific use of ROVs to
deploy the survey equipment. Therefore, ROVs are not further analyzed
in this notice.
Orsted assumes that vessels would generally conduct survey effort
at a transit speed of approximately 4 kn, which equates to 70 line km
per 24-hour operation period. On this basis a total of 350 vessel
survey days are expected within Lease Areas OCS-A 0482, OCS-A 0519, and
the associated ECR area. Water depths in the Lease Areas range from
approximately 15 to 40 meters (m). Water depths within the ECR area
extend from the shoreline to approximately 40 m deep.
Acoustic sources planned for use during HRG survey activities
proposed by Orsted include the following. Survey equipment can either
be towed, pole mounted, hull-mounted on the vessel (or on an ROV as
noted above), or mounted on other survey equipment (e.g., transponders)
(Table 1):
Shallow penetration, non-impulsive, intermittent, mobile,
non-parametric SBPs (i.e., CHIRP SBPs) are used to map the near-surface
stratigraphy (top 0 to 10 m) of sediment below seabed. A CHIRP system
emits sonar pulses that increase in frequency from approximately 2 to
20 kHz over time. The frequency range can be adjusted to meet project
variables. These sources are typically mounted on a pole, either over
the side of the vessel or through a moon pool in the bottom of the
hull. The operational configuration and relatively narrow beamwidth of
these sources reduce the likelihood that an animal would be exposed to
the signal.
Medium penetration SBPs (boomers) are used to map deeper
subsurface stratigraphy as needed. A boomer is a broad-band sound
source operating in the 3.5 Hz to 10 kHz frequency range. This system
is commonly mounted on a sled and towed behind the vessel. Boomers are
impulsive and mobile sources. The sound levels produced by this
equipment type have the potential to result in Level B harassment of
marine mammals; and
Medium penetration SBPs (sparkers) are used to map deeper
subsurface stratigraphy as need. Sparkers create acoustic pulses from
50 Hz to 4 kHz omnidirectionally from the source, and are considered to
be impulsive and mobile sources. Sparkers are typically towed behind
the vessel with adjacent hydrophone arrays to receive the return
signals. The sound levels produced by this equipment type have the
potential to result in Level B harassment of marine mammals.
Operation of the following survey equipment types is not reasonably
expected to result in take of marine mammals and will not be discussed
further beyond the brief summaries provided below:
Parametric SBPs, also commonly referred to as sediment
echosounders, are used to provide high data density in sub-bottom
profiles that are typically required for cable routes, very shallow
water, and archaeological surveys. Parametric SPBs are typically
mounted on a pole, either over the side of the vessel or through a moon
pool in the bottom of the hull. Crocker and Fratantonio (2016) does not
provide relevant measurements or source data for parametric SBPs,
however, some source information is provided by the manufacturer. For
the proposed project, the SBP used would generate short, very narrow-
beam (1[deg] to 3.5[deg]) sound pulses at relatively high frequencies
(generally around 85 to 100 kHz). The narrow beamwidth significantly
reduces the potential for exposure while the high frequencies of the
source are rapidly attenuated in sea water. Given the narrow beamwidth
and relatively high frequency. NMFS does not reasonably expect there to
be potential for marine mammals to be exposed to the signal;
Acoustic Cores are seabed-mounted sources with three
distinct sound sources: A high-frequency parametric source, a high-
frequency CHIRP sonar, and a low-frequency CHIRP sonar. The beamwidth
is narrow (3.5[deg] to 8[deg]) and the source is operated roughly 3.5 m
above the seabed from a seabed mount, with the transducer pointed
directly downward;
Ultra-short baseline (USBL) positioning systems are used
to provide high accuracy ranges by measuring the time between the
acoustic pulses transmitted by vessel transceiver and a transponder (or
beacon) necessary to produce the acoustic profile. It is a two-
component system with a moon pool- or side pole mounted transceiver and
one or several transponders mounted on other survey equipment. USBLs
are expected to produce extremely small acoustic propagation distances
in their typical operating configuration;
Multibeam echosounders (MBES) are used to determine water
depths and general bottom topography. MBES sonar systems project sonar
pulses in several angled beams from a transducer mounted to a ship's
hull. The beams radiate out form the transducer in a fan-shaped pattern
orthogonally to the ship's direction. The proposed MBESs all have
operating frequencies >180 kHz and are therefore outside the general
hearing range of marine mammals; and
Side scan sonars (SSS) are used for seabed sediment
classification purposes and to identify natural and man-made acoustic
targets on the seafloor. The sonar device emits conical or fan-shaped
pulses down toward the seafloor in multiple beams at a wide angle,
perpendicular to the path of the sensor through the water column. The
proposed SSSs all have operating frequencies >180 kHZ and are therefore
outside the general hearing range of marine mammals.
Table 1 identifies representative survey equipment with the
expected potential to result in exposure of marine mammals and thus
potentially result in take. The make and model of the listed
geophysical equipment may vary depending on availability and the final
equipment choices will vary depending upon the final survey design,
vessel availability, and survey contractor selection.
[[Page 15926]]
Table 1--Summary of Representative HRG Survey Equipment
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SL (SPL dB SL (SEL dB SL (PK dB Pulse
Operating re 1 re 1 re 1 duration Repetition Beamwidth
Equipment Reference for SL frequency [micro]Pa [micro]Pa\2\ [micro]Pa (width) rate (Hz) (degrees)
(kHz) m) m\2\ s) m) (ms)
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ET 216 (2000DS or 3200 top unit)........ MAN.................... 2-16 195 178 .......... 20 6 24
2-8
ET 424 3200-XS.......................... CF..................... 4-24 176 152 .......... 3.4 2 71
ET 512i................................. CF..................... 0.7-12 179 158 .......... 9 8 80
GeoPulse 5430A.......................... MAN.................... 2-17 196 183 .......... 50 10 55
Teledyne Benthos Chirp III--TTV 170..... MAN.................... 2-7 197 185 .......... 60 15 100
Pangeo SBI.............................. MAN.................... 4.5-12.5 188.2 165 .......... 4.5 45 120
AA, Dura-spark UHD Sparker (400 tips, CF..................... 0.3-1.2 203 174 211 1.1 4 Omni
500 J) \1\.
AA, Dura-spark UHD Sparker Model 400 x CF..................... 0.3-1.2 203 174 211 1.1 4 Omni
400 \4\.
GeoMarine, Dual 400 Sparker, Model Geo- CF..................... 0.4-5 203 174 211 1.1 2 Omni
Source 800 \1\ \2\.
GeoMarine Sparker, Model Geo-Source 200- CF..................... 0.3-1.2 203 174 211 1.1 4 Omni
400 \1\ \2\.
GeoMarine Sparker, Model Geo-Source 200 CF..................... 0.3-1.2 203 174 211 1.1 4 Omni
Lightweight \1\ \2\.
AA, triple plate S[dash]Boom (700-1,000 CF..................... 0.1-5 205 172 211 0.6 4 80
J) \3\.
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[micro]Pa = micropascal; AA = Applied Acoustics; CF = Crocker and Fratantonio (2016); CHIRP = compressed high-intensity radiated pulses; dB = decibel;
EM = equipment mounted; ET = edgetech; J = joule; Omni = omnidirectional source; re = referenced to; PK = zero-to-peak sound pressure level; PM = pole
mounted; SBI = sub-bottom imager; SEL = sound exposure level; SL = source level; SPL = root-mean-square sound pressure level; T = towed; TB = Teledyne
benthos; UHD = ultra-high definition; WFA = weighting factor adjustment.
\1\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
The data provided in Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods
and settings when manufacturer or other reliable measurements are not available.
\2\ The AA Dura-spark (500 J, 400tips) was used as a proxy source.
\3\ Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was
used in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted
in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Proposed
Mitigation and Proposed Monitoring and Reporting).
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (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's website
(https://www.fisheries.noaa.gov/find-species).
Table 2 lists all species or stocks for which take is expected and
proposed to be authorized for this action, and summarizes information
related to the population or stock, including regulatory status under
the MMPA and Endangered Species Act (ESA) and potential biological
removal (PBR), where known. For taxonomy, we follow Committee on
Taxonomy (2021). PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS's SARs). 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's 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's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al.,
2021). All values presented in Table 2 are the most recent available at
the time of publication and are available in the 2020 SARs (Hayes et
al., 2021) and the draft 2021 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).
Table 2--Marine Mammal Species Likely To Occur Near the Survey Area That May Be Affected by Orsted's Activity
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ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
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Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western Atlantic....... E, D, Y 368 (0, 364, 2019).... 0.7 7.7
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6802 (0.24, 5573, 11 1.8
2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6292 (1.02, 3098, 6.2 0.8
2016).
Minke whale..................... Balaenoptera Canadian Eastern -,-, N 21,968 (0.31, 17002, 170 10.6
acutorostrata. Coastal. 2016).
[[Page 15927]]
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -,-, Y 1396 (0, 1380, 2016).. 22 12.15
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 4349 (0.28, 3451, See 3.9 0
SAR).
Family Delphinidae:
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71, 54443, 544 27
See SAR).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 39,921 (0.27, 32032, 320 0
See SAR).
Common bottlenose dolphin....... Tursiops truncatus..... Western North Atlantic -, -, N 62,851 (0.23, 51914, 519 28
Offshore. See SAR).
Western North Atlantic -, -, Y 6,639 (0.41, 4759, 48 12.2-21.5
Northern Migratory 2016).
Coastal.
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3, 30627, 306 29
See SAR).
Short-finned pilot whale........ Globicephala Western North Atlantic. -, -, Y 28,924 (0.24, 23637, 236 136
macrorhynchus. See SAR).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 35,215 (0.19, 30051, 301 34
2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 172,974 (0.21, 145216, 1,452 390
2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31, 74034, 851 164
Fundy. 2016).
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Order Carnivora--Superfamily Pinnipedia
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Family Phocidae (earless seals):
Gray seal \4\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27300 (0.22, 22785, 1,389 4453
2016).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08, 57637, 1,729 339
2018).
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\1\ Endangered Species Act (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.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The NMFS stock abundance estimate (and associated PBR value) applies to the U.S. population only, however the actual stock abundance is
approximately 451,431 (including animals in Canada). The annual mortality and serious injury (M/SI) value given is for the total stock.
As indicated above, all 16 species (with 17 managed stocks) in
Table 2 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur, and we have proposed
authorizing it. In addition to what is included in Sections 3 and 4 of
Orsted's application, the SARs, and NMFS' website, further detail
informing the baseline for select species (e.g., information regarding
current Unusual Mortality Events (UMEs) and important habitat areas) is
provided below.
North Atlantic Right Whales
The western North Atlantic right whale population ranges from
calving grounds in coastal waters of the southeastern United States to
feeding grounds in New England waters and the Canadian Bay of Fundy,
Scotian Shelf, and Gulf of St. Lawrence (Hayes et al., 2021). In the
late fall months (e.g., November), right whales are generally thought
to depart from the feeding grounds in the northeast Atlantic and
migrate south to their calving grounds off the coast of Georgia and
Florida. However, passive acoustic studies of right whales have
demonstrated their year-round presence in the Gulf of Maine (Morano et
al., 2012; Bort et al., 2015), New Jersey (Whitt et al., 2013), and
Virginia (Salisbury et al., 2016). Off the coast of New Jersey, right
whales were acoustically detected in all seasons, with peak detections
occurring in April and May (Whitt et al., 2013), and visually observed
in winter, spring, and summer during an environmental baseline study
(EBS) conducted by the New Jersey Department of Environment Protection
(NJDEP, 2010). A comprehensive study of passive acoustic monitoring
data from 2004 through 2014 by Davis et al. (2017) demonstrated year-
round presence of certain individual right whales across their entire
habitat range (southeastern Atlantic to northern Atlantic), suggesting
that not all individuals undergo consistent annual migration.
The proposed survey area is located within the migratory corridor
Biologically Important Area (BIA) for North Atlantic right whales
(March-April and November-December) that extends from Massachusetts to
Florida (LaBrecque et al., 2015). Off the coast of New Jersey and
Delaware, the migratory BIA extends from the coast to beyond the shelf
break. This important migratory area is approximately 269,488 km\2\ in
size and is comprised of the waters of the continental shelf offshore
the East Coast of the United States, extending from Florida through
Massachusetts.
NMFS' regulations at 50 CFR part 224.105 designated nearshore
waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal
Management Areas (SMA) for right whales in 2008. SMAs were developed to
reduce the threat of collisions between ships and right whales around
their migratory route and calving grounds. A portion of one SMA, which
occurs off the mouth of the Delaware Bay, overlaps spatially for the
proposed survey area (https://apps-nefsc.fisheries.noaa.gov/psb/surveys/MapperiframeWithText.html). This SMA is active from November 1
through April 30 of each year.
[[Page 15928]]
In addition to active SMAs, Dynamic Management areas (DMAs) may be
established by NOAA Fisheries based on visual sightings documenting the
presence of three or more right whales within a discrete area. DMAs are
voluntary slow-speed zones and mariners are encouraged to avoid these
areas or reduce speeds to 10 kn or less while transiting through these
areas. More information, as well as the most up-to-date DMA
establishments can be found on NMFS' website (https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales).
Elevated right whale mortalities have been documented since June 7,
2017 along the U.S. and Canadian coast and have collectively been
declared an UME. As of January 7, 2022, there have been a total of 34
dead stranded whales (21 in Canada; 13 in the United States), and the
leading category for cause of death for this UME is ``human
interaction'', specifically from entanglements or vessel strikes. The
cumulative total number of animals in the North Atlantic right whale
UME has been updated to 50 individuals to include both the confirmed
mortalities (dead, stranded or floating) (n=34) and seriously injured
free-swimming whales (n=16). This number better reflects the number of
whale likely removed from the population during the UME and more
accurately reflects the population impacts. More information is
available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-north-atlantic-right-whale-unusual-mortality-event.
Humpback Whales
Humpback whales are found worldwide in all oceans. In winter,
humpback whales from waters off New England, Canada, Greenland,
Iceland, and Norway, migrate to mate and calve primarily in the West
Indies, where spatial and genetic mixing among these groups occurs.
NMFS currently defines humpback whale stocks on the basis of feeding
locations, i.e., Gulf of Maine. However, our reference to humpback
whales in this document refers to any individual of the species that
are found in the specific geographic region. These individuals may be
from the same breeding population (e.g., West Indies breeding
population of humpback whales) but visit different feeding areas.
Based on photo-identification, only 39 percent of individual
humpback whales observed along the mid- and south Atlantic U.S. coasts
are from the Gulf of Marine stock (Barco et al., 2002). Therefore, the
SAR abundance estimate is an underrepresentation of the relevant
population, i.e., the West Indies breeding population.
Prior to 2016, humpback whales were listed under the ESA as an
endangered species worldwide. Following a 2015 global status review
(Bettridge et al., 2015), NMFS established 14 DPSs with different
listing statuses (81 FR 62259; September 8, 2016) pursuant to the ESA.
Humpback whales in the survey area are expected to be from the West
Indies DPS, which consists of the whales whose breeding range includes
the Atlantic margin of the Antilles from Cuba to northern Venezuela,
and whose feeding range primarily includes the Gulf of Marine, eastern
Canada, and western Greenland. This DPS is not ESA listed. Bettridge et
al. (2003) estimated the size of the West Indies DPS at 12,312 (95% CI
8,688-15,954) whales in 2004-2005, which is consistent with previous
population estimates of approximately 10,000-11,000 whales (Stevick et
al., 2003; Smith et al., 1999) and the increasing trend for the West
Indies DPS (Bettridge et al., 2015).
Although humpback whales are migratory between feeding areas and
calving areas, individual variability in the timing of migrations may
result in the presence of individuals in high-latitude areas throughout
the year (Straley, 1990). Records of humpback whales off the U.S. mid-
Atlantic coast (New Jersey to North Carolina) from January through
March suggest these waters may represent a supplemental winter feeding
ground used by juvenile and mature humpback whales of the U.S. and
Canadian North Atlantic stocks (LaBrecque et al., 2015).
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. Partial or
full necropsy examinations have been conducted on approximately half of
stranded humpback whales. Of the whales examined, about 50 percent had
evidence of human interactions, either ship strike or entanglement. In
total, 10 humpback whale strandings occurred in 2021. While a portion
of the whales have shown evidence of pre-mortem vessel strike, this
finding is not consistent across all whales examined and more research
is needed. NOAA is consulting with researchers that are conducting
studies on the humpback whale populations, and these efforts may
provide information on changes in whale distribution and habitat use
that could provide additional insight into how these vessel
interactions occurred. More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2022-humpback-whale-unusual-mortality-event-along-atlantic-coast.
Fin Whales
Fin whales are common in waters off the U.S. Atlantic Exclusive
Economic Zone (EEZ), primarily from Cape Hatteras northward (Hayes et
al., 2021). Fin whales are present north of 35[deg] latitude in every
season and are broadly distributed throughout the western North
Atlantic for most of the year (Hayes et al., 2021). They are typically
found in small groups of up to five individuals (Brueggeman et al.,
1987). The main threats to fin whales are fishery interactions and
vessel collisions (Hayes et al., 2021).
Sei Whales
The Nova Scotia stock of sei whales can be found in deeper waters
of the continental shelf edge of the northeastern U.S. and
northeastward to south of Newfoundland. The southern portion of the
stock's range during spring and summer includes the Gulf of Maine and
Georges Bank. Spring is the period of greatest abundance in the U.S.
waters, with sightings concentrated along the eastern margin of Georges
Bank and into the Northeast Channel area, and along the southwestern
edge of Georges Bank in the area of Hydrographer Canyon (Hayes et al.,
2021). Sei whales occur in shallower waters to feed. Although sightings
of sei whales are uncommon in the survey area, sightings have occurred
in waters off of Maryland and Delaware during previous surveys (Garden
State Offshore Energy 2019; Atlantic Shores 2020). The main threats to
this stock are human interactions with fisheries and vessel collisions.
Minke Whales
Minke whales can be found in temperate, tropical, and high-latitude
waters. The Canadian East Coast stock can be found in the area from the
western half of the Davis Strait (45[deg] W) to the Gulf of Mexico
(Hayes et al., 2021). This species generally occupies waters less than
100 m deep on the continental shelf. Strong seasonal distribution has
been documented with minke whales in the survey areas, in which spring
through fall are times are relatively widespread and common occurrence
whereas during the winter whales are largely absent (Hayes et al.,
2021).
Since January 2017, elevated minke whale mortalities have occurred
along the Atlantic coast from Maine through South Carolina leading to a
declared UME. As of January 7, 2022, 122 minke
[[Page 15929]]
whale strandings have occurred since the UME was declared in 2017. Full
or partial necropsy examinations were conducted on more than 60 percent
of the whales. Preliminary findings of the whales have shown evidence
of human interactions or infectious disease. These findings are not
consistent across all of the whales examined, so more research is
needed. More information on this UME is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-minke-whale-unusual-mortality-event-along-atlantic-coast.
Sperm Whales
The distribution of sperm whales in the U.S. EEZ occurs on the
continental shelf edge, over the continental slope, and into the mid-
ocean regions (Hayes et al., 2021). The basic social unit of the sperm
whale appears to be the mixed school of adult females plus their calves
and some juveniles of both sexes, normally numbering 20-40 animals in
all. There is evidence that some social bonds persist for many years
(Christal et al., 1998). This species forms stable social groups, site
fidelity, and latitudinal range limitations in groups of females and
juveniles (Whitehead, 2002). In winter, sperm whales concentrate east
and northeast of Cape Hatteras. In spring, distribution shifts
northward to the east of Delaware and Virginia, and is widespread
throughout the central Mid-Atlantic Bight and the southern part of
Georges Bank. In the fall, sperm whale occurrence on the continental
shelf (inshore of the 100 m isobaths) south of New England reaches peak
levels, and there remains a continental shelf edge occurrence in the
Mid-Atlantic Bight (Hayes et al., 2021). No sperm whales were recorded
during the Mid-Atlantic Bight surveys or the NJDEP EBS surveys. CETAP
and NMFS Northeast Fisheries Science Center sightings in the shelf-edge
and off-shelf waters included many social groups with calves and
juveniles (CETAP, 1982). Sperm whales were usually seen at the tops of
seamounts and rises and did not generally occur over slops. Sperm
whales were recorded at depths varying from 800 to 3,500 m. Although
the likelihood of occurrence within the survey area remains very low,
the sperm whale was included as an affected species due to its high
seasonal densities east of the survey area.
Atlantic White-Sided Dolphin
White-sided dolphins are found in temperate and sub-polar waters of
the North Atlantic, primarily in continental shelf waters to the 100 m
depth contour from central West Greenland to North Carolina (Hayes et
al., 2021). The Gulf of Maine stock is most common in continental shelf
waters from Hudson Canyon to Georges Bank, and in the Gulf of Maine and
lower Bay of Fundy. Sighting data indicate seasonal shifts in
distribution (Northridge et al., 1997). During January to May, low
numbers of white-sided dolphins are found from Georges Bank to Jeffreys
Ledge (off New Hampshire), with even lower numbers south of Georges
Bank, as documented by a few strandings collected on the beaches of
Virginia to South Carolina. From June through September, large numbers
of white-sided dolphins are found from Georges Bank to the lower Bay of
Fundy. From October to December, white-sided dolphins occur at
intermediate densities from southern Georges Bank to southern Gulf of
Maine (Payne and Heinemann, 1990). Sightings south of Georges Bank,
particularly around Hudson Canyon, occur year round but at low
densities.
Atlantic Spotted Dolphin
Atlantic spotted dolphins are found in tropical and warm temperate
waters ranging from southern New England, south to the Gulf of Mexico
and the Caribbean to Venezuela (Hayes et al., 2021). This stock
regularly occurs in continental shelf waters south of Cape Hatteras and
in continental shelf edges and slope waters north of this region (Hayes
et al., 2021). There are two forms of this species, with the larger
ecotype inhabiting the continental shelf and usually found within or
near the 200 m isobaths (Hayes et al., 2021).
Bottlenose Dolphin
There are two distinct bottlenose dolphin morphotypes in the
western North Atlantic: The coastal and offshore forms (Hayes et al.,
2021). The offshore form is distributed primarily along the outer
continental shelf and continental slope in the Northwest Atlantic Ocean
from Georges Bank to the Florida Keys. The coastal morphotype is
morphologically and genetically distinct from the larger, more robust
morphotype that occupies habitats further offshore. Spatial
distribution data, tag-telemetry studies, photo-ID studies and genetic
studies demonstrate the existence of a distinct Northern Migratory
coastal stock of coastal bottlenose dolphins (Hayes et al., 2021).
North of Cape Hatteras, there is separation of the offshore and
coastal morphotypes across bathymetric contours during summer months.
Aerial surveys flown from 1979 through 1981 indicated a concentration
of bottlenose dolphins in waters <25 m deep that corresponded with the
coastal morphotype, and an area of high abundance along the shelf break
that corresponded with the offshore stock (Hayes et al., 2020). Torres
et al. (2003) found a statistically significant break in the
distribution of the morphotypes; almost all dolphins found in waters
>34 m depth and >34 km from shore were of the offshore morphotype. The
coastal stock is best defined by its summer distribution, when it
occupies coastal waters from the shoreline to the 20-m isobath between
Virginia and New York (Hayes et al., 2021). This stock migrates south
during late summer and fall, and during colder months it occupies
waters off Virginia and North Carolina (Hayes et al., 2021). Therefore,
during the summer, dolphins found inside the 20-m isobath in the survey
area are likely to belong to the coastal stock, while those found in
deeper waters or observed during cooler months belong to the offshore
stock.
Long-Finned Pilot Whale
Long-finned pilot whales are found from North Carolina to Iceland,
Greenland and the Barents Sea (Hayes et al., 2021). In the U.S.
Atlantic waters the species is distributed principally along the
continental shelf edge off the northeastern U.S. coast in winter and
early spring and in late spring, pilot whales move onto Georges Bank
and into the Gulf of Maine northward, and remain in these areas through
late fall (Hayes et al., 2021). Long-finned and short-finned pilot
whales overlap spatially along the mid-Atlantic shelf break between
Delaware and the southern flank of Georges Bank. Long-finned pilot
whales have occasionally been observed stranded as far south as South
Carolina, but sightings of long-finned pilot whales south of Cape
Hatteras would be considered unusual (Hayes et al., 2021). The main
threats to this species include interactions with fisheries and habitat
issues including exposure to high levels of polychlorinated biphenyls
and chlorinated pesticides, and toxic metals including mercury, lead,
and cadmium, and selenium (Hayes et al., 2021).
Short-Finned Pilot Whale
As described above, long-finned and short-finned pilot whales
overlap spatially with the survey area and along the mid-Atlantic
shelf. There is limited information on the distribution of short-finned
pilot whales. They prefer warmer tropical waters and deeper waters
offshore, and in the northeastern United States they are often sighted
near the Gulf Stream (Hayes et al., 2021). Short-finned pilot whales
have occasionally been observed stranded as far north as
[[Page 15930]]
Massachusetts but north of ~42[deg]N short-finned pilot whale sightings
would be considered unusual while south of Cape Hatteras most pilot
whales would expected to be short-finned pilot whales (Hayes et al.,
2021). As with long-finned pilot whales, the main threats to this
species include interactions with fisheries and habitat issues
including exposure to high levels of polychlorinated biphenyls and
chlorinated pesticides, and toxic metals including mercury, lead,
cadmium, and selenium (Hayes et al., 2021).
Risso's Dolphin
Risso's dolphins are large dolphins with a characteristic blunt
head and light coloration, often with extensive scarring. They are
widely distributed in tropical and temperate seas. In the Western North
Atlantic they occur from Florida to eastern Newfoundland (Leatherwood
et al., 1976; Baird and Stacey, 1991). Off the U.S. Northeast Coast,
Risso's dolphins are primarily distributed along the continental shelf,
but can also be found swimming in shallower waters to the mid-shelf
(Hayes et al., 2021).
Risso's dolphins occur along the continental shelf edge from Cape
Hatteras to Georges Bank during spring, summer, and autumn. In winter,
they are distributed in the Mid-Atlantic from the continental shelf
edge outward (Hayes et al., 2021). The majority of sightings during the
2011 surveys occurred along the continental shelf break with generally
lower sighting rates over the continental slope (Palka, 2012). Risso's
dolphins can be found in Mid-Atlantic waters year-round and are more
likely to be encountered offshore given their preference for deeper
waters along the shelf edge. However, previous surveys have commonly
observed this species in shallower waters, making it possible this
species could be encountered in the survey area, particularly in summer
when they are more abundant in this region (Curtice et al., 2019;
Williams et al., 2015a, b; Hayes et al., 2021).
Common Dolphin
The common dolphin is found world-wide in temperate to subtropical
seas. In the North Atlantic, common dolphins are commonly found over
the continental shelf between the 100-m and 2,000-m isobaths and over
prominent underwater topography and east to the mid-Atlantic Ridge
(Hayes et al., 2021). Common dolphins are distributed in waters off the
eastern U.S. coast from Cape Hatteras northeast to Georges Bank
(35[deg] to 42[deg] N) during mid-January to May and move as far north
as the Scotian Shelf from mid-summer to autumn (CETAP, 1982; Hayes et
al., 2020; Hamazaki, 2002; Selzer and Payne, 1988).
Harbor Porpoise
Harbor porpoises commonly occur throughout Massachusetts Bay from
September through April. During the fall and spring, harbor porpoises
are widely distributed along the east coast from New Jersey to Maine.
During the summer, the porpoises are concentrated in the Northern Gulf
of Maine and Southern Bay of Fundy in water depths <150 m. In winter,
densities increase in the waters off New Jersey to North Carolina and
decrease in the waters from New York to New Brunswick; however,
specific migratory timing or routes are not apparent. Although still
considered uncommon, harbor porpoises were regularly detected offshore
of Maryland during winter and spring surveys (Wingfield et al., 2017).
They were the second most frequently sighted cetacean during the NJDEP
EBS, with 90 percent of the sightings during the winter, three during
the spring, and one during the summer (Whitt et al., 2015). The lack of
sightings during the fall was attributed to low visibility conditions
during those months, but available data indicate this species is likely
present offshore New Jersey during fall and winter (Whitt et al.,
2015).
In the survey area, only the Gulf of Maine/Bay of Fundy stock may
be present. This stock is found in U.S. and Canadian Atlantic waters
and is concentrated in the northern Gulf of Maine and southern Bay of
Fundy region, generally in waters less than 150 m deep (Hayes et al.,
2021). They are seen from the coastline to deep waters (>1,800 m;
Westgate et al. 1998), although the majority of the population is found
over the continental shelf (Hayes et al., 2021). The main threat to the
species is interactions with fisheries, with documented take in the
U.S. northeast sink gillnet, mid-Atlantic gillnet, and northeast bottom
trawl fisheries and in the Canadian herring weir fisheries (Hayes et
al. 2021).
Harbor Seal
The harbor seal is found in all nearshore waters of the North
Atlantic and North Pacific Oceans and adjoining seas above 30 [deg]N
(Burns, 2009). In the western North Atlantic, harbor seals are
distributed from the eastern Canadian Arctic and Greenland south to
southern New England and New York, and occasionally to the Carolinas
(Hayes et al., 2021). The harbor seals within the survey area are part
of the single Western North Atlantic stock. Between September and May
they undergo seasonal migrations into southern New England and the Mid-
Atlantic (Hayes et al., 2021).
From July 2018 through March 2020, elevated numbers of harbor seal
and gray seal mortalities have occurred across Maine, New Hampshire and
Massachusetts. Additionally, stranded seals have shown clinical signs
as far south as Virginia, although no in elevated numbers, therefore
the UME investigation encompassed all seal strandings from Maine to
Virginia. A total of 3,152 reported strandings (of both harbor and gray
seals) occurred during the declared UME. Full or partial necropsy
examinations have been conducted on some of the seals and samples have
been collected for testing. Based on tests conducted as of April 30,
2021, the main pathogen found in the seals is phocine distemper virus.
NMFS is performing additional testing to identify any other factors
that may be involved in this UME. This event was declared a UME from
2018 through 2020, and is currently pending closure to become non-
active. Therefore, this UME will not be addressed further in this
document. Further information is available at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.
Gray Seal
There are three major populations of gray seals found worldwide;
eastern Canada (western North Atlantic stock), northwestern Europe, and
the Baltic Sea. Gray seals in the survey area belong to the Western
North Atlantic stock. The range for this stock is thought to be from
New Jersey to Labrador. Although gray seals are not regularly sighted
offshore of Delaware, their range has been expanding southward in
recent years, and have recently been observed as far south as the
barrier islands of Virginia. Current population trends show that gray
seal abundance is likely increasing in the U.S. Atlantic EEZ (Hayes et
al., 2021). It is believed that recolonization by Canadian gray seals
is the source of the U.S. population (Hayes et al., 2021). As described
above, elevated seal mortalities, including gray seals, have occurred
from Maine to Virginia from 2018 through 2020. Phocine distemper virus
has been the main pathogen found in stranded seals. More information is
available at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.
[[Page 15931]]
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. Note that no direct measurements
of hearing ability have been successfully completed for Mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 3.
Table 3--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans (dolphins, 150 Hz to 160 kHz.
toothed whales, beaked whales, bottlenose
whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus cruciger
& L. australis).
Phocid pinnipeds (PW) (underwater) (true 50 Hz to 86 kHz.
seals).
Otariid pinnipeds (OW) (underwater) (sea 60 Hz to 39 kHz.
lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
16 marine mammal species (14 cetacean and 2 pinniped (both phocid)
species) have the reasonable potential to co-occur with the proposed
survey activities. Please refer to Table 2. Of the cetacean species
that may be present, five are classified as low-frequency cetaceans
(i.e., all mysticete species), nine are classified as mid-frequency
cetaceans (i.e., all delphinid and ziphiid species and the sperm
whale), and one is classified as high-frequency cetaceans (i.e., harbor
porpoise and Kogia spp.).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section includes a summary and discussion of the ways that
Orsted's specified activity may impact marine mammals and their
habitat. Detailed descriptions of the potential effects of similar
specified activities have been provided in other recent Federal
Register notices, including for survey activities using the same
methodology, over a similar amount of time, and occurring in the Mid-
Atlantic region, including Delaware waters (e.g., 82 FR 20563, May 3,
2017; 85 FR 36537, June 17, 2020; 85 FR 37848, June 24, 2020; 85 FR
48179, August 10, 2020; 86 FR 11239, February 24, 2021, 86 FR 28061,
May 25, 2021). No significant new information is available, and we
refer the reader to these documents rather than repeating the details
here. The Estimated Take section includes a quantitative analysis of
the number of individuals that are expected to be taken by Orsted's
activity. The Negligible Impact Analysis and Determination section
considers the potential effects of the specified activity, the
Estimated Take section, and the Proposed Mitigation section, to draw
conclusions regarding the likely impacts of these activities on the
reproductive success or survivorship of individuals and how those
impacts on individuals are likely to impact marine mammal species or
stocks.
Summary on Specified Potential Effects of Acoustic Sound Sources
Underwater sound from active acoustic sources can include one or
more of the following: Temporary or permanent hearing impairment, non-
auditory physical or physiological effects, behavioral disturbance,
stress, and masking. The degree of effect is intrinsically related to
the signal characteristics, received level, distance from the source,
and duration of the sound exposure. Marine mammals exposed to high-
intensity sound, or to lower-intensity sound for prolonged periods, can
experience hearing threshold shift (TS), which is the loss of hearing
sensitivity at certain frequency ranges (Finneran, 2015). TS can be
permanent (PTS), in which case the loss of hearing sensitivity is not
fully recoverable, or temporary (TTS), in which case the animal's
hearing threshold would recover over time (Southall et al., 2007).
Animals in the vicinity of Orsted's proposed site characterization
survey activity are unlikely to incur even TTS due to the
characteristics of the sound sources, which include relatively low
sound source levels (176 to 205 dB re 1 [micro]Pa-m) and generally very
short pulses and potential duration of exposure. These characteristics
mean that instantaneous exposure is unlikely to cause TTS, as it is
unlikely that exposure would occur close enough to the vessel for
received levels to exceed peak pressure TTS criteria, and that the
cumulative duration of exposure would be insufficient to exceed
cumulative sound exposure level (SEL) criteria. Even for high-frequency
cetacean species (e.g., harbor porpoises), which have the greatest
sensitivity to potential TTS, individuals would have to make a very
close approach and also remain very close to vessels operating these
[[Page 15932]]
sources in order to receive multiple exposures at relatively high
levels, as would be necessary to cause TTS. Intermittent exposures--as
would occur due to the brief, transient signals produced by these
sources--require a higher cumulative SEL to induce TTS than would
continuous exposures of the same duration (i.e., intermittent exposure
results in lower levels of TTS). Moreover, most marine mammals would
more likely avoid a loud sound source rather than swim in such close
proximity as to result in TTS. Kremser et al., (2005) noted that the
probability of a cetacean swimming through the area of exposure when a
sub-bottom profiler emits a pulse is small--because if the animal was
in the area, it would have to pass the transducer at close range in
order to be subjected to sound levels that could cause TTS and would
likely exhibit avoidance behavior to the area near the transducer
rather than swim though at such a close range. Further, the restricted
beam shape of many of HRG survey devices planned for use (Table 1)
makes it unlikely that an animal would be exposed more than briefly
during the passage of the vessel.
Behavioral disturbances may include a variety of effects, including
subtle changes in behavior (e.g., minor or brief avoidance of an area
or changes in vocalizations), more conspicuous changes in similar
behavioral activities, and more sustained and/or potentially severe
reactions, such as displacement from or abandonment of high-quality
habitat. Behavioral responses to sound are highly variable and context-
specific and any reactions depend on numerous intrinsic and extrinsic
factors (e.g., species, state of maturity, experience, current
activity, reproductive state, auditory sensitivity, time of day), as
well as the interplay between factors. Available studies show wide
variation in response to underwater sound; therefore, it is difficult
to predict specifically how any given sound in a particular instance
might affect marine mammals perceiving the signal.
In addition, sound can disrupt behavior through masking, or
interfering with, an animal's ability to detect, recognize, or
discriminate between acoustic signals of interest (e.g., those used for
intraspecific communication and social interactions, prey detection,
predator avoidance, navigation). Masking occurs when the receipt of a
sound is interfered with by another coincident sound at similar
frequencies and at similar or higher intensity, and may occur whether
the sound is natural (e.g., snapping shrimp, wind, waves,
precipitation) or anthropogenic (e.g., shipping, sonar, seismic
exploration) in origin. Marine mammal communications would not likely
be masked appreciably by the acoustic signals given the directionality
of the signals for most HRG survey equipment types planned for use
(Table 1) and the brief period when an individual mammal is likely to
be exposed.
Sound may affect marine mammals through impacts on the abundance,
behavior, or distribution of prey species (e.g., crustaceans,
cephalopods, fish, zooplankton) (i.e., effects to marine mammal
habitat). Prey species exposed to sound might move away from the sound
source, experience TTS, experience masking of biologically relevant
sounds, or show no obvious direct effects. The most likely impacts (if
any) for most prey species in a given area would be temporary avoidance
of the area. Surveys using active acoustic sound sources move through
an area relatively quickly, limiting exposure to multiple pulses. In
all cases, sound levels would return to ambient once a survey ends and
the noise source is shut down and, when exposure to sound ends,
behavioral and/or physiological responses are expected to end
relatively quickly. Finally, the HRG survey equipment will not have
significant impacts to the seafloor and does not represent a source of
pollution.
Vessel Strike
Vessel collisions with marine mammals, or ship strikes, can result
in death or serious injury of the animal. These interactions are
typically associated with large whales, which are less maneuverable
than are smaller cetaceans or pinnipeds in relation to large vessels.
Ship strikes generally involve commercial shipping vessels, which are
generally larger and of which there is much more traffic in the ocean
than geophysical survey vessels. Jensen and Silber (2004) summarized
ship strikes of large whales worldwide from 1975-2003 and found that
most collisions occurred in the open ocean and involved large vessels
(e.g., commercial shipping). For vessels used in geophysical survey
activities, vessel speed while towing gear is typically only 4-5 kn (as
is the speed of the vessel for Orsted's proposed HRG survey). At these
speeds, both the possibility of striking a marine mammal and the
possibility of a strike resulting in serious injury or mortality are so
low as to be discountable. At average transit speed for geophysical
survey vessels, the probability of serious injury or mortality
resulting from a strike is less than 50 percent. However, the
likelihood of a strike actually happening is again low given the
smaller size of these vessels and generally slower speeds. Notably in
the Jensen and Silber study, no strike incidents were reported for
geophysical survey vessels during that time period.
The potential effects of Orsted's specified survey activity are
expected to be limited to Level B behavioral harassment. No permanent
or temporary auditory effects, or significant impacts to marine mammal
habitat, including prey, are expected.
Estimated Take
This section provides an estimate of the number of incidental takes
proposed for authorization through this IHA, which will inform both
NMFS' consideration of ``small numbers'' and the negligible impact
determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to noise from certain HRG acoustic sources.
Based primarily on the characteristics of the signals proposed by the
acoustic sources planned for use, Level A harassment is neither
anticipated (even absent mitigation), nor proposed to be authorized.
Consideration of the anticipated effectiveness of the measures (i.e.,
exclusion zones and shutdown measures), discussed in detail below in
the Proposed Mitigation section, further strengthens the conclusion
that Level A harassment is not a reasonably anticipated outcome of the
survey activity. As described previously, no serious injury or
mortality is anticipated or proposed to be authorized for this
activity. Below we describe how the take is estimated.
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; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the
[[Page 15933]]
density or occurrence of marine mammals within these ensonified areas;
and, (4) the number of days of activities. We note that while these
basic 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 (e.g.,
previous monitoring results or average group size). Below, we describe
the factors considered here in more detail and present the proposed
take estimate.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment for non-explosive sources--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 (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed in a manner we consider Level B
harassment when exposed to underwater anthropogenic noise above
received levels of 160 dB re 1 [mu]Pa (rms) for impulsive (e.g.,
sparkers and boomers) evaluated here for Orsted's proposed activity.
Level A harassment for non-explosive sources--NMFS' Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual
criteria to assess auditory injury (Level A harassment) to five
different marine mammal groups (based on hearing sensitivity) as a
result of exposure to noise from two different types of sources
(impulsive or non-impulsive). For more information, see NMFS 2018
Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Orsted's proposed HRG survey includes the use of impulsive sources.
However, as described above, NMFS has concluded that Level A harassment
is not a reasonably likely outcome for marine mammals exposed to noise
through use of the sources proposed for use here, and the potential for
Level A harassment is not evaluated further in this document. Please
see Orsted's application for details of a quantitative exposure
analysis exercise, i.e., calculated Level A harassment isopleths and
estimated Level A harassment exposures. Orsted did not request
authorization of take by Level A harassment, and no take by Level A
harassment is proposed for authorization by NMFS.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
NMFS has developed a user-friendly methodology for determining the
rms sound pressure level (SPLrms) at the 160-dB isopleth for
the purpose of estimating the extent of Level B harassment isopleths
associated with HRG survey equipment (NMFS, 2020). This methodology
incorporates frequency and some directionality to refine estimated
ensonified zones. Orsted used NMFS's methodology, using the source
level and operation mode of the equipment planned for used during the
proposed survey, to estimate the maximum ensonified area over a 24-hr
period also referred to as the harassment area (Table 1). Potential
takes by Level B harassment are estimated within the ensonified area
(i.e., harassment area) as an SPL exceeding 160 dB re 1 [micro]Pa for
impulsive sources (e.g., sparkers, boomers) within an average day of
activity.
The harassment zone is a representation of the maximum extent of
the ensonified area around a sound source over a 24-hr period. The
harassment area was calculated per the following formula:
Stationary Source: Harassment zone = [pi]r\2\
Mobile Source: Harassment zone = (Distance/day 2r) + [pi]r\2\
Where r is the linear distance from the source to the isopleth for
the Level B harassment threshold and day = 1 (i.e., 24 hours).
The estimated potential daily active survey distance of 70 km was
used as the estimated areal coverage over a 24-hr period. This distance
accounts for the vessel traveling at roughly 4 kn and only for periods
during which equipment <180 kHz is in operation. A vessel traveling 4
kn can cover approximately 110 km per day; however, based on data from
2017, 2018, and 2019 surveys, survey coverage over a 24-hour period is
closer to 70 km per day as a result of delays due to, e.g., weather,
equipment malfunction. For daylight only vessels, the distance is
reduced to 35 km per day; however, to maintain the potential for 24-hr
surveys, the corresponding Level B harassment zones provide in Table 4
were calculated for each source based on the Level B threshold
distances within a 24-hour (70 km) operational period.
Table 4--Calculated Harassment Zones Encompassing Level B \1\ Thresholds
for Each Sound Source or Comparable Sound Source Category
------------------------------------------------------------------------
Level B Level B
Source harassment harassment zone
isopleths (m) (km\2\) \2\
------------------------------------------------------------------------
ET 216 CHIRP...................... 9 1.3
ET 424 CHIRP...................... 4 0.6
ET 512i CHIRP..................... 6 0.8
GeoPulse 5430..................... 21 2.9
TB CHIRP III...................... 48 6.7
Pangeo SBI........................ 22 3.1
AA Triple plate S-Boom (700-1,000 34 4.8
J)...............................
AA, Dura-spark UHD Sparkers....... 141 \3\ 19.8
[[Page 15934]]
GeoMarine Sparkers................ 141 \3\ 19.8
------------------------------------------------------------------------
AA = Applied Acoustics; CHIRP = compressed high-intensity radiated
pulses; ET = edgetech; HF = high-frequency; J = joules; LF = low-
frequency; MF = mid-frequency; PW = phocid pinnipeds in water; SBI =
sub-bottom imager; SBP = sub-bottom profiler; TB = Teledyne benthos;
UHD = ultra-high definition.
\1\ The applicant calculated both Level A and B isopleths to
comprehensively assess the potential impacts of the predicted source
operations as required for this Application. However, as described
previously throughout this document, Level A takes are not expected
and thus, are not proposed to be authorized, therefore they are not
discussed in this document. Please refer to Orsted's application for
more information.
\2\ Based on maximum threshold distances provided in Table 4 of Orsted's
application and calculated for Level B root-mean-square sound pressure
level thresholds.
Marine Mammal Occurrence
In this section, we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
Habitat based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020)
represent the best available information regarding marine mammal
densities in the survey area. The density data presented by Roberts et
al. (2016, 2017, 2018, 2020) incorporate aerial and shipboard line-
transect data from NMFS and other organizations and incorporate data
from 8 physiographic and 16 dynamic oceanographic and biological
covariates, and control for the influence of sea state, group size,
availability bias, and perception bias on the probability of making a
sighting. These density models were originally developed for all
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In
subsequent years, certain models have been updated based on additional
data as well as certain methodological improvements. More information
is available online at https://seamap.env.duke.edu/models/Duke/EC/.
Marine mammal density estimates in the survey area (animals/km\2\) were
obtained using the most recent model results for all taxa (Roberts et
al., 2016, 2017, 2018, 2020, 2021). The updated models incorporate
sighting data, including sightings from NOAA's Atlantic Marine
Assessment Program for Protected Species (AMAPPS) surveys.
For exposure analysis, density data from Roberts et al., (2016,
2017, 2018, 2020, 2021) were mapped using a geographic information
system (GIS). Density grid cells that included any portion of the
proposed survey Area were selected for all survey months (see Figure 3
of Orsted's application). For the survey area (i.e., Lease Areas OCS-A-
0482, 5219), the densities for each species as reported by Roberts et
al., 2016, 2017, 2018, 2020, 2021) were averaged by month; those values
were then used to calculate the mean annual density for each species
within the survey Area. Estimated mean monthly and annual densities
(animals per km\2\) of all marine mammal species that may be taken by
the proposed survey are shown in Table 7 of Orsted's application. The
mean annual density values used to estimate take numbers are shown in
Table 5 below.
Due to limited data availability and difficulties identifying
individuals to species level during visual surveys, individual
densities are not able to be provided for all species and they are
instead grouped into ``guilds'' (Roberts et al., 2021). These guilds
include pilot whales, and seals. Long- and short-finned pilot whales
are difficult to distinguish during shipboard surveys so individual
habitat models were not able to be developed and thus, densities are
assumed to apply to both species. Similarly, Roberts et al. (2018)
produced density models for all seals but did not differentiate by seal
species. Because the seasonality and habitat use by gray seals roughly
overlaps with that of harbor seals in the survey areas, it was assumed
that the mean annual density could refer to either of the represented
species and was, therefore, divided equally between the two species.
For bottlenose dolphin densities, Roberts et al. (2016, 2017, 2018,
2020, 2021) does not differentiate by stock. As previously discussed,
both the northern migratory coastal stock and the Western North
Atlantic offshore stock are expected to occur in the proposed survey
Area. To estimate densities for both stocks, the density blocks from
within the survey Area were divided using the 20 m isobath (Hayes et
al. 2021). Therefore, any density blocks located between the coastline
and the 20 m isobath were attributed to the migratory coastal stock,
and density blocks beyond this isobath were attributed to the offshore
stock (see Table 5 for average annual densities calculated).
Table 5--Estimated Average Annual Densities (Animals per km\2\) of
Potentially Affected Marine Mammals Within the Proposed Survey Area
Based on Monthly Habitat Density Models
[Roberts et al., 2017, 2018, 2020, 2021]
------------------------------------------------------------------------
Average annual
Species density (km\2\)
------------------------------------------------------------------------
Fin whale............................................ 0.001
Sei Whale............................................ 0
Minke Whale.......................................... 0.0003
Humpback whale....................................... 0.0005
North Atlantic Right Whale........................... 0.0017
Sperm Whale.......................................... 0.0001
Atlantic White-Sided Dolphin......................... 0.0015
Atlantic Spotted Dolphin............................. 0.0007
[[Page 15935]]
Bottlenose Dolphin (Offshore) \1\.................... 0.0569
Bottlenose Dolphin (Migratory) \1\................... 0.3972
Long-finned Pilot Whale \2\.......................... 0.0004
Short-Finned Pilot Whale \2\......................... 0.0004
Risso's Dolphin...................................... 0
Common Dolphin....................................... 0.0101
Harbor Porpoise...................................... 0.0085
Gray Seal \3\ \4\.................................... 0.0007
Harbor Seal \3\ \4\.................................. 0.0007
------------------------------------------------------------------------
\1\ Bottlenose dolphin stocks were delineated based on the 20-m isobath
as identified in NMFS 2021 Stock Assessment Report; all density blocks
falling inshore of the 20-m depth contour were assumed to belong to
the migratory coastal stock, and those beyond this depth were assumed
to belong to the offshore stock.
\2\ Roberts (2021) only provides density estimates for ``generic'' pilot
whales, so individual densities for each species are unavailable and
densities were therefore assumed to apply to both species as both
species have the same potential to occur in the survey area.
\3\ Seal densities are not given by individual months or species,
instead, seasons are divided as summer (June, July, August) and Winter
(September-May) and applied to ``generic'' seals; as a result,
reported seasonal densities for spring and fall are the same and are
not provided for each species (Roberts, 2021) (See Table 7 in Orsted's
application).
\4\ Data used to establish the density estimates from Roberts (2021) are
based on information for all seal species that may occur in the
Western North Atlantic (e.g., harbor, gray, hooded, harp). However,
only the harbor seal and gray seal are reasonably expected to occur in
the survey area, and the densities were split evenly between both
species.
Take Calculation and Estimation
Here, we describe how the information provided above is brought
together to produce a quantitative take estimate.
For most species, the potential Level B harassment exposures were
estimated by multiplying the average annual density of each species
(Table 5) within the Lease Area and ECR area by the largest daily
harassment zone (19.8 km\2\) (Table 4). That product was then
multiplied by the number of operating vessel days (350), and the
product is rounded to the nearest whole number:
Estimated take = species density x harassment zone x # of Survey Days
For bottlenose dolphin densities, Roberts et al. (2016a, 2016b,
2017, 2018, 2020) does not differentiate by individual stock. The WNA
offshore stock is assumed to be located in depths exceeding the 20 m
isobath, while the WNA Northern migratory coastal stock is assumed to
be found in shallower depths than the 20 m isobath north of Cape
Hatteras (Reeves et al., 2002; Waring et al., 2016). The maximum
potential Level B harassment takes calculated for each stock of
bottlenose dolphins are based on the full survey duration occurring
inside or outside the 20 m isobath; however only a portion of the
survey will occur in each area. At this time, Orsted does not know the
exact number of survey days that may occur within each area, and could
not differentiate the maximum number of calculated instances of take
(2,752, calculated for the migratory stock) between the two stocks of
bottlenose dolphins potentially present during the proposed survey
activities. Orsted therefore requested, and NMFS proposes to authorize,
2,752 instances of take of bottlenose dolphins, regardless of stock.
No takes were calculated for sei whale, sperm whale, or Risso's
dolphin; however, based on anticipated species distributions and data
from previous surveys in the same general area it is possible that
these species could be encountered. Therefore, Orsted requested, and
NMFS proposes to authorize, takes of these species based on estimated
group sizes (Kenney and Vigness-Raposa, 2010; Barkaszi and Kelly,
2019). For common dolphins, only 70 takes were calculated. However,
draft Protected Species Observer (PSO) reports from the ongoing Garden
State and Skipjack surveys near the proposed action area and completed
surveys from 2018 through 2020 indicate the potential for more common
dolphins to be encountered in the area. Therefore, Orsted requested,
and NMFS proposes to authorize, take of 400 common dolphins. Calculated
exposure estimates and proposed take authorizations are shown in Table
6.
Table 6--Proposed Authorized Amount of Taking, by Level B Harassment Only, by Species and Stock and Percent of
Take by Stock
----------------------------------------------------------------------------------------------------------------
Level B takes Max percent of
Species Stock Abundance \a\ population
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans:
Fin whales........................ Western North Atlantic.. 6,802 7 0.10
Sei whales........................ Nova Scotia............. 6,292 0 (1) 0.02
Minke whales...................... Canadian Eastern Coastal 21,968 2 0.01
Humpback whales................... Gulf of Maine........... 1,396 4 0.29
North Atlantic right whale........ Western Atlantic........ 368 11 2.99
Mid-frequency cetaceans:
Sperm whale....................... North Atlantic.......... 4,349 0 (3) 0.07
Atlantic white-sided dolphin...... Western North Atlantic.. 93,233 10 (50) 0.05
Atlantic spotted dolphin.......... Western North Atlantic.. 39,921 5 (15) 0.04
Common bottlenose dolphin \b\..... WNA Offshore............ 62,851 \c\ 2,752 4.38
[[Page 15936]]
WNA Northern Migratory 6,639 .............. 41.45
Coastal.
Pilot whales...................... Short-finned............ 28,924 3 (20) 0.07
Long-finned............. 39,215 3 (20) 0.05
Risso's dolphin................... Western North Atlantic.. 35,215 0 (30) 0.09
Common dolphin.................... Western North Atlantic.. 172,974 70 (400) 0.23
High-frequency cetaceans:
Harbor porpoise................... Gulf of Maine/Bay of 95,543 82 0.09
Fundy.
Pinnipeds:
Gray seal......................... Western North Atlantic.. 27,300 4 0.01
Harbor seal....................... Western North Atlantic.. 61,336 4 0.01
----------------------------------------------------------------------------------------------------------------
\a\ Parentheses denote proposed take authorization where different from Orsted's calculated take estimates.
Calculated takes were adjusted for the proposed take authorization in one of two ways: (1) For species for
which calculated take was significantly less than the number of individuals reported in the available
monitoring reports and any available draft data (e.g., ongoing surveys) in the area, the total number of
individuals reported were used for take requests; (2) For species with no calculated takes, or takes were less
than mean group size, requested takes were based the mean group sizes derived from the following references:
Sei whale: Kenney and Vigness-Raposa, 2010
Sperm whale: Barkaszi and Kelly, 2018
Atlantic white-sided dolphin: NMFS, 2021
Atlantic spotted dolphin: NMFS, 2021
Pilot whales: Kenney and Vigness-Raposa, 2010
\b\ Risso's dolphin: Barkaszi and Kelly, 2018; and Take estimate is based on the maximum number of calculated
instances of take for either stock and is assumed to apply to all bottlenose dolphins potentially present in
the survey area. Therefore takes could consist of individuals from either the Offshore or the Northern
Migratory Coastal stock. Although unlikely, for purposes of calculating max percentage of population, we
assume all takes could be allocated to either stock.
\c\ Assumes multiple repeated takes of same individuals from each stock. Please see the Small Numbers section
for additional information.
Proposed Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, 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 (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations.
Mitigation for Marine Mammals and Their Habitat
NMFS proposes the following mitigation measures be implemented
during Orsted's proposed marine site characterization surveys. Pursuant
to section 7 of the ESA, Orsted would also be required to adhere to
relevant Project Design Criteria (PDC) of the NMFS Greater Atlantic
Regional Office (GARFO) programmatic consultation (specifically PDCs 4,
5, and 7) regarding geophysical surveys along the U.S. Atlantic coast
(see NOAA GARFO, 2021; https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation).
Marine Mammal Exclusion Zones and Harassment Zones
Marine mammal Exclusion Zones (EZ) would be established around the
HRG survey equipment and monitored by NMFS-approved protected species
observers (PSOs):
500 m EZ for North Atlantic right whales (NARW) during use
of acoustic sources <180 kHz (e.g., Sparkers, Non-parametric sub-bottom
profilers); and
100 m EZ for all other marine mammals, with certain
exceptions specified below, during operation of impulsive acoustic
sources (boomer and/or sparker).
If a marine mammal is detected approaching or entering the EZs
during the HRG survey, the vessel operator would adhere to the shutdown
procedures described below to minimize noise impacts on the animals.
These stated requirements will be included in the site-specific
training to be provided to the survey team.
Pre-Start Clearance
Marine mammal clearance zones would be established around the HRG
survey equipment and monitored by protected species observers (PSOs):
500 m for all ESA-listed marine mammals; and
100 m for all other marine mammals.
Orsted would implement a 30-minute pre-start clearance period prior
to the initiation of ramp-up of specified HRG equipment. During this
period, clearance zones will be monitored by PSOs, using the
appropriate visual technology. Ramp-up may not be initiated if any
marine mammal(s) is within its respective clearance zone. If a marine
mammal is observed within a
[[Page 15937]]
clearance zone during the pre-star clearance period, ramp-up may not
begin until the animal(s) has been observed exiting its respective
exclusion zone or until an additional time period has elapsed with no
further sighting (i.e., 15 minutes for small odontocetes and seals, and
30 minutes for all other species).
Ramp-Up of Survey Equipment
A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
acoustic source when technically feasible. The ramp-up procedure would
be used at the beginning of HRG survey activities in order to provide
additional protection to marine mammals near the survey area by
allowing them to vacate the area prior to the commencement of survey
equipment operation at full power. Operators should ramp-up sources to
half power for 5 minutes and then proceed to full power.
Ramp-up activities will be delayed if a marine mammal(s) enters its
respective exclusion zone. Ramp-up will continue if the animal has been
observed exiting its respective exclusion zone or until an additional
time period has elapsed with no further sighting (i.e., 15 minutes for
small odontocetes and 30 minutes for all other species).
Ramp-up may occur at times of poor visibility, including nighttime,
if appropriate visual monitoring has occurred with no detections of
marine mammals in the 30 minutes prior to beginning ramp-up. Acoustic
source activation may only occur at night where operational planning
cannot reasonably avoid such circumstances.
Shutdown Procedures
An immediate shutdown of the impulsive HRG survey equipment would
be required if a marine mammal is sighted entering or is within its
respective exclusion zone. The vessel operator must comply immediately
with any call for shutdown by the Lead PSO. Any disagreement between
the Lead PSO and vessel operatory should be discussed only after
shutdown has occurred. Subsequent restart of the survey equipment can
be initiated if the animal has been observed exiting its respective
exclusion zone or until an additional time period has elapsed (i.e., 15
minutes for small odontocetes and 30 minutes for all other species).
If species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorization
number of takes have been met, approaches or is observed within the
Level B harassment zone (Table 4), shutdown would occur.
If the acoustic source is shut down for reasons other than
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it
may be activated again without ramp-up if SOs have maintained constant
observation and no detections of any marine mammal have occurred within
the respective exclusion zones. If the acoustic source is shut down for
a period longer than 30 minutes, then pre-clearance and ramp-up
procedures will be initiated as described in the previous section.
The shutdown requirement would be waived for pinnipeds and for
small delphinids of the following genera: Delphinus, Lagenorhynchus,
Stenella, and Tursiops. Specifically, if a delphinid from the specified
genera or a pinniped is visually detected approaching the vessel (i.e.,
to bow ride) or towed equipment, shutdown is not required. Furthermore,
if there is uncertainty regarding identification of a marine mammal
species (i.e,. whether the observed marine mammal(s) belongs to one of
the delphinid genera for which shutdown is waived), PSOs must use best
professional judgement in making the decision to call for a shutdown.
Additionally, shutdown is required if a delphinid or pinniped is
detected in the exclusion zone and belongs to a genus other than those
specified.
Shutdown, pre-start clearance, and ramp-up procedures are not
required during HRG survey operations using only non-impulsive sources
(e.g., echosounders) other than non-parametric sub-bottom profilers
(e.g., CHIRPs).
Vessel Strike Avoidance
Orsted must adhere to the following measures except in the case
where compliance would create an imminent and serious threat to a
person or vessel or to the extent that a vessel is restricted in its
ability to maneuver and, because of the restriction, cannot comply:
Vessel operators and crews must maintain a vigilant watch
for all protected species and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any protected species. A visual observer aboard the vessel must monitor
a vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish protected species from other phenomena, and (2) broadly
identify a marine mammal as a right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammal;
All survey vessels, regardless of size, must observe a 10-
knot speed restriction in specified areas designated by NMFS for the
protection of North Atlantic right whales from vessel strikes including
seasonal management areas (SMAs) and dynamic management areas (DMAs)
when in effect;
Members of the monitoring team will consult NMFS North
Atlantic right whale reporting system and Whale Alert, as able, for the
presence of North Atlantic right whales throughout survey operations,
and for the establishment of a DMA. If NMFS should establish a DMA in
the survey area during the survey, the vessels will abide by speed
restrictions in the DMA;
All vessels greater than or equal to 19.8 m in overall
length operating from November 1 through April 30 will operate at
speeds of 10 kn or less at all times;
All vessels must reduce their speed to 10 kn or less when
mother/calf pairs, pods, or large assemblages of any species of
cetaceans is observed near a vessel;
All vessels must maintain a minimum separation distance of
500 m from right whales and other ESA-listed large whales;
If a whale is observed but cannot be confirmed as a
species other than a right whale or other ESA-listed large whale, the
vessel operator must assume that it is a right whale and take
appropriate action;
All vessels must maintain a minimum separation distance of
100 m from non-ESA listed whales;
All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m from all
other marine mammals, with an understanding that at times this may not
be possible (e.g., for animals that approach the vessel);
When marine mammals are sighted while a vessel is
underway, the vessel shall take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area). If marine mammals are
sighted within the relevant separation distance, the vessel must reduce
speed and shift the engine to neutral, not engaging the engines until
animals are clear of the area. This does not apply to any vessel towing
gear
[[Page 15938]]
or any vessel that is navigationally constrained.
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements. Prior to implementation with
vessel crews, the training program will be provided to NMFS for review
and approval. Confirmation of the training and understanding of the
requirements will be documented on a training course log sheet. Signing
the log sheet will certify that the crew member understands and will
comply with the necessary requirements throughout the survey
activities.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered to by NMFS, NMFS has preliminarily
determined that the proposed mitigation measures provide the means of
effective the least practicable impact on marine mammal 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 IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
proposed 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 (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 (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other 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
Mitigation and monitoring effectiveness.
Proposed Monitoring Measures
Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Orsted would employ
independent, dedicated, trained PSOs, meaning that the PSOs must (1) be
employed by a third-party observer provider, (2) have no tasks other
than to conduct observational effort, collect data, and communicate
with and instruct relevant vessel crew with regard to the presence of
marine mammals and mitigation requirements (including brief alerts
regarding maritime hazards), and (3) have successfully completed an
approved PSO training course appropriate for their designated task. On
a case-by-case basis, non-independent observers may be approved by NMFS
for limited, specified duties in support of approved, independent PSOs
on smaller vessels with limited crew operating in nearshore waters.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including exclusion zones, during all HRG survey
operations. PSOs will visually monitor and identify marine mammals,
including those approaching or entering the established exclusion zones
during survey activities. It will be the responsibility of the Lead PSO
on duty to communicate the presence of marine mammals as well as to
communicate the action(s) that are necessary to ensure mitigation and
monitoring requirements are implemented as appropriate.
During all HRG survey operations (e.g., any day on which use of an
HRG source is planned to occur), a minimum of one PSO must be on duty
during daylight operations on each survey vessel, conducting visual
observations at all times on all active survey vessels during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) would ensure 360 degree visual coverage around
the vessel from the most appropriate observation posts and would
conduct visual observations using binoculars and/or night vision
goggles and the naked eye while free from distractions and in a
consistent, systematic, and diligent manner. PSOs may be on watch for a
maximum of 4 consecutive hours followed by a break of at least 2 hours
between watches and may conduct a maximum of 12 hours of observations
per 24-hr period. In cases where multiple vessels are surveying
concurrently, any observations of marine mammals would be communicated
to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to exclusion zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, night-vision goggles with thermal clip-ons
and infrared technology would be used. Position data would be recorded
using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
BSS) 3 or less), to the maximum extent practicable, PSOs would also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources. Any observations of marine mammals by crew
members aboard any vessel associated with the survey would be relayed
to the PSO team. Data on all PSO observations would be recorded based
on standard PSO collection requirements. This would include dates,
times, and locations of survey operations; dates and times of
observations, location and weather, details of marine mammal sightings
(e.g., species, numbers, behaviors); and details of any observed marine
mammal behavior that occurs (e.g., notes behavioral disturbances). For
more detail on the proposed monitoring requirements, see Condition 5 of
the draft IHA.
[[Page 15939]]
Proposed Reporting Measures
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a draft comprehensive report will
be provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys including what type of mitigation and the species and number of
animals that prompted the mitigation action, when known), and provides
an interpretation of the results and effectiveness of all mitigation
and monitoring. Any recommendations made by NMFS must be addressed in
the final report prior to acceptance by NMFS. A final report must be
submitted within 30 days following any comments on the draft report.
All draft and final marine mammal and acoustic monitoring reports must
be submitted to [email protected] and
[email protected]. The report must contain at minimum, the
following:
PSO names and affiliations;
Dates of departures and returns to port with port names;
Dates and times (Greenwich Mean Time) of survey effort and
times corresponding with PSO effort;
Vessel location (latitude/longitude) when survey effort
begins and ends; vessel location at beginning and end of visual PSO
duty shifts;
Vessel heading and speed at beginning and end of visual
PSO duty shifts and upon any line change;
Environmental conditions while on visual survey (at
beginning and end of PSO shift and whenever conditions change
significantly), including wind speed and direction, Beaufort sea state,
Beaufort wind force, swell height, weather conditions, cloud cover, sun
glare, and overall visibility to the horizon;
Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions); and
Survey activity information, such as type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-clearance
survey, ramp-up, shutdown, end of operations, etc.).
If a marine mammal is sighted, the following information should be
recorded:
Watch status (sighting made by PSO on/off effort,
opportunistic, crew, alternate vessel/platform);
PSO who sighted the animal;
Time of sighting;
Vessel location at time of sighting;
Water depth;
Direction of vessel's travel (compass direction);
Direction of animal's travel relative to the vessel;
Pace of the animal;
Estimated distance to the animal and its heading relative
to vessel at initial sighting;
Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified); also note the composition
of the group if there is a mix of species;
Estimated number of animals (high/low/best);
Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
Description (as many distinguishing features as possible
of each individual seen, including length, shape, color, pattern, scars
or markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
Detailed behavior observations (e.g., number of blows,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior);
Animal's closest point of approach and/or closest distance
from the center point of the acoustic source;
Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other); and
Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
If a North Atlantic right whale is observed at any time by PSOs or
personnel on any project vessels, during surveys or during vessel
transit, Orsted must immediately report sighting information to the
NMFS North Atlantic Right Whale Sighting Advisory System: (866) 755-
6622. North Atlantic right whale sightings in any location may also be
reported to the U.S. Coast Guard via channel 16.
In the event that Orsted personnel discover an injured or dead
marine mammal, Orsted will report the incident to the NMFS Office of
Protected Resources OPR) and the NMFS New England/Mid-Atlantic
Stranding Coordinator as soon as feasible. The report would include the
following information:
Time, date, and location (latitude/longitude) 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.
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in this activities covered by the IHA, Orsted would
report the incident to NMFS OPR and the NMFS New/England/Mid-Atlantic
Stranding Coordinator as soon as feasible. The report would include the
following information:
Time, date, and location (latitude/longitude) of the
incident;
Species identification (if known) or description of the
animal(s) involved;
Vessel's speed during and leading up to 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).
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
[[Page 15940]]
finding is based on the lack of likely adverse effects on annual rates
of recruitment or survival (i.e., population-level effects). An
estimate of the number of takes alone is not enough information on
which to base an impact determination. In addition to considering
estimates of the number of marine mammals that might be ``taken''
through harassment, NMFS considers other factors, such as the likely
nature of any responses (e.g., intensity, duration), the context of any
responses (e.g., critical reproductive time or location, migration), as
well as effects on habitat, and the likely effectiveness of the
mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's 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).
To avoid repetition, our analysis applies to all species listed in
Table 6, given that NMFS expects the anticipated effects of the
proposed survey to be similar in nature. Where there are meaningful
differences between species or stocks--as is the case of the North
Atlantic right whale--they are included as separate subsections below.
NMFS does not anticipate that serious injury or mortality would occur
as a result from HRG surveys, even in the absence of mitigation, and no
serious injury or mortality is proposed to be authorized. As discussed
in the Potential Effects of Specified Activities on Marine Mammals and
their Habitat section, non-auditory physical effects and vessel strike
are not expected to occur. NMFS expects that all potential takes would
be in the form of Level B behavioral harassment in the form of
temporary avoidance of the area or decreased foraging (if such activity
was occurring), reactions that are considered to be of low severity and
with no lasting biological consequences (e.g., Southall et al., 2007,
2021). Even repeated Level B harassment of some small subset of an
overall stock is unlikely to result in any significant realized
decrease in viability for the affected individuals, and thus would not
result in any adverse impact to the stock as a whole. As described
above, Level A harassment is not expected to occur given the nature of
the operations and the estimated small size of the Level A harassment
zones.
In addition to being temporary, the maximum expected harassment
zone around the survey vessel is 141 m. Therefore, the ensonified area
surrounding each vessel is relatively small compared to the overall
distribution of the animals in the area and their use of the habitat.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the survey
area; therefore, marine mammals that may be temporarily displaced
during survey activities are expected to be able to resume foraging
once they have moved away from areas with disturbing levels of
underwater noise. Because of the temporary nature of the disturbance
and the availability of similar habitat and resources in the
surrounding area, the impacts to marine mammals and the food sources
that they utilize are not expected to cause significant or long-term
consequences for individual marine mammals or their populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the proposed survey
area and there are no feeding areas known to be biologically important
to marine mammals within the proposed survey area. The proposed survey
area lies significantly south (over 250 miles (402 km)) of where
Biologically Important Areas are defined for fin and humpback whales.
Therefore, they are not considered to be ``nearby'' the survey area and
are not discussed further. There is no designated critical habitat for
any ESA-listed marine mammals in the proposed survey area.
North Atlantic Right Whales
The status of the North Atlantic right whale (NARW) population is
of heightened concern and therefore, merits additional analysis. As
noted previously, elevated NARW mortalities began in June 2017 and
there is an active UME. Overall, preliminary findings support human
interactions, specifically vessel strikes and entanglements, as the
cause of death for the majority of right whales. The proposed survey
area overlaps with a migratory corridor Biologically Important Area
(BIA) for North Atlantic right whales (effective March-April; November-
December) that extends from Massachusetts to Florida (LaBrecque et al.,
2015). Off the coast of Delaware, this migratory BIA extends from the
coast to beyond the shelf break. Due to the fact that the proposed
survey activities would be very small relative to the spatial extent of
the available migratory habitat in the BIA, right whale migration is
not expected to be impacted by the proposed survey. Given the
relatively small size of the ensonified area, it is unlikely that prey
availability would be adversely affected by HRG survey operations.
Required vessel strike avoidance measures will also decrease risk of
ship strike during migration; no ship strike is expected to occur
during Orsted's proposed activities. Additionally, only very limited
take by Level B harassment of NARW has been requested and is being
proposed for authorization by NMFS as HRG survey operations are
required to maintain a 500 EZ and shutdown if a NARW is sighted at or
within the EZ. The 500 m shutdown zone for right whales is
conservative, considering the Level B harassment isopleth for the most
impactful sources (i.e., GeoMarine Sparkers, AA Dura-spark UHD
Sparkers, AA Triple plate S-Boom) is estimated to be 141 m, and thereby
minimizes the potential for behavioral harassment of this species. As
noted previously, Level A harassment is not expected, nor authorized,
due to the small PTS zones associated with HRG equipment types proposed
for use. NMFS does not anticipate NARW takes that result from the
proposed survey activities would impact annual rates of recruitment or
survival. Thus, any takes that occur would not result in population
level impacts.
Other Marine Mammals With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of Garden State's proposed survey area. Elevated humpback
whale mortalities have occurred along the Atlantic coast from Maine
through Florida since January 2016. Of the cases examined,
approximately half had evidence of human interaction (ship strike or
entanglement). The UME does not yet provide cause for concern regarding
population-level impacts. Despite the UME, the relevant population of
humpback whales (the West Indies breeding population, or DPS) remains
stable at approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales.
[[Page 15941]]
The required mitigation measures are expected to reduce the number
and/or severity of proposed takes for all species listed in Table 6,
including those with active UMEs, to the level of least practicable
adverse impact. In particular, they would provide animals the
opportunity to move away from the sound source throughout the survey
area before HRG survey equipment reaches full energy, thus preventing
them from being exposed to sound levels that have the potential to
cause injury (Level A harassment) or more severe Level B harassment. No
Level A harassment is anticipated, even in the absence of mitigation
measures, or proposed for authorization.
NMFS expects that takes would be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging (if such activity
was occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, the required mitigation measures
would further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect the species or stock
through effects on annual rates of recruitment or survival:
No mortality or serious injury is anticipated or proposed
for authorization;
No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or proposed for authorization;
Foraging success is not likely to be significantly
impacted as effects on species that serve as prey species for marine
mammals from the survey are expected to be minimal;
The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the survey area during
the planned survey to avoid exposure to sounds from the activity;
Take is anticipated to be of Level B behavioral harassment
only consisting of brief startling reactions and/or temporary avoidance
of the survey area;
While the survey area is within areas noted as a migratory
BIA for North Atlantic right whales, the activities would occur in such
a comparatively small area such that any avoidance of the survey area
due to activities would not affect migration. In addition, mitigation
measures require shutdown at 500 m (almost four times the size of the
Level B harassment isopleth (141 m), which minimizes the effects of the
take on the species; and
The proposed mitigation measures, including visual
monitoring and shutdowns, are expected to minimize potential impacts to
marine mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity 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 taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
The amount of take NMFS proposes to authorize is below one third of
the estimated stock abundance for all species (in fact, take of
individuals is less than 5 percent of the abundance of the affected
stocks for these species, see Table 6) except for the WNA northern
migratory coastal stock of bottlenose dolphins. The figures presented
in Table 6 are likely conservative estimates as they assume all takes
are of different individual animals which is likely not to be the case.
Some individuals may return multiple times in a day, but PSOs would
count them as separate takes if they cannot be individually identified.
This is the particularly the case for bottlenose dolphins.
As mentioned above, there are two bottlenose dolphin stocks that
could occur in the survey area: The WNA Offshore and WNA northern
migratory coastal stocks. Given the uncertainty regarding the number of
days Orsted's proposed survey may be within the 20 m isobath, the
proposed authorization of 2,752 instances of take by Level B harassment
is not allocated to a specific stock but rather could be of either
stock. However, based on the stocks' respective occurrence in the area
and the consideration of various factors as described below, we have
determined that the number of individuals taken would comprise of less
than one-third of the best available population abundance estimate of
either stock. Detailed descriptions of the stocks' ranges have been
provided in the Description of Marine Mammals in the Area of Specified
Activities section.
Both the northern migratory and offshore stocks have expansive
ranges and are the only dolphin stocks thought to make broad-scale,
seasonal migrations in the coastal waters of the North Atlantic. Given
the large ranges associated with these two stocks, it is unlikely that
large segments of either stock would consistently remain in the survey
area. The majority of both stocks are likely to be found widely
dispersed across their respective habitat ranges, and individuals
within each stock migrate on a seasonal basis.
The northern migratory stock spans from the shelf waters of Florida
to Long Island, New York and experience spatiotemporal overlap with
several other bottlenose dolphin stocks in the Western North Atlantic.
The stock is best defined by its distribution during summer water
months (July and August), when it overlaps with the fewest stocks,
during which it occupies coastal waters from the shoreline to
approximately the 20-m isobath between Assateague, Virginia and Long
Island, New York (Hayes et al., 2021). However, during the winter
months (e.g., January and February), the stock occupies coastal waters
from approximately Cape Lookout, North Carolina to the North Carolina/
Virginia border. A study of tagged individuals found that four dolphins
off the coast of New Jersey in the late summer moved south to North
Carolina and inhabited waters near and just south of Cape Hatteras
during cold water months. These animals then returned to the coastal
waters of New Jersey in the following warm weather months (Garrison et
al., 2017). Additionally, during aerial and ship surveys off the New
Jersey coast in 2008 and 2009, no sightings of common bottlenose
dolphins were made during November through February, and bottlenose
dolphins were sighted from early March to mid-October and were most
abundant
[[Page 15942]]
during May-August. Therefore, the stock is not expected to be present
in its entirety year round at the proposed project location.
Further, many of the dolphin observations in the Delaware Bay and
South of Cape May, NJ are likely repeated sightings of the same
individuals. A by Toth et al., (2010) conducted 73 boat-based photo-
identification surveys in southern New Jersey near the Bay from 2003-
2005 and found that of the 205 individuals identified, 44 percent were
sighted multiple times within or among the years. Multiple sightings of
the same individual would considerably reduce the number of individual
animals that are taken by harassment.
The offshore stock is distributed primarily along the outer
continental shelf and continental slope in the Northwest Atlantic Ocean
from Georges Band to the Florida Keys (Hayes et al., 2021). There is
suspected overlap of the two stocks south of Cape Hatteras, North
Carolina to some degree.
In summary and as described above, the following factors primarily
support our determination regarding the incidental take of small
numbers of the affected stocks of a species or stock:
The take of marine mammal stocks comprises less than 5
percent of any stock abundance (with the exception of the northern
migratory stock of bottlenose dolphins);
Potential bottlenose dolphin takes in the survey area are
likely to be allocated between both distinct stocks;
Bottlenose dolphin stocks in the survey area have
extensive ranges and it would be unlikely to find a high percentage of
individuals from either stock concentrated in a relatively small area
such as the proposed survey area;
Many of the takes would likely be repeats of the same
animals, especially during summer months.
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals will be taken relative to the population size
of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS Office of Protected Resources (OPR) consults internally whenever
we propose to authorize take for endangered or threatened species.
NMFS OPR is proposing to authorize the incidental take of four
species of marine mammals which are listed under the ESA, including the
North Atlantic right, fin, sei, and sperm whale, and NMFS has
determined that issuance of the proposed IHA falls within the scope of
activities analyzed in NMFS GARFO's programmatic consultation regarding
geophysical surveys along the U.S. Atlantic coast in the three Atlantic
Renewable Energy Regions (completed June 29, 2021; revised September
2021).
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
issue an IHA to Orsted for conducting marine site characterization
surveys off the coast of Delaware from May 10, 2022 through May, 2023,
provided the previously mentioned mitigation, monitoring, and reporting
requirements are incorporated. A draft of the proposed IHA can be found
at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
Request for Public Comments
We request comment on our analyses, the proposed authorization, and
any other aspect of this notice of proposed IHA for the proposed marine
site characterization survey. We also request at this time comment on
the potential Renewal of this proposed IHA as described in the
paragraph below. Please include with your comments any supporting data
or literature citations to help inform decisions on the request for
this IHA or a subsequent Renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, one-year
Renewal IHA following notice to the public providing an additional 15
days for public comments when (1) up to another year of identical or
nearly identical activities as described in the Description of Proposed
Activities section of this notice is planned or (2) the activities as
described in the Description of Proposed Activities section of this
notice would not be completed by the time the IHA expires and a Renewal
would allow for completion of the activities beyond that described in
the Dates and Duration section of this notice, provided all of the
following conditions are met:
A request for renewal is received no later than 60 days
prior to the needed Renewal IHA effective date (recognizing that the
Renewal IHA expiration date cannot extend beyond one year from
expiration of the initial IHA).
The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the
requested Renewal IHA are identical to the activities analyzed under
the initial IHA, are a subset of the activities, or include changes so
minor (e.g., reduction in pile size) that the changes do not affect the
previous analyses, mitigation and monitoring requirements, or take
estimates (with the exception of reducing the type or amount of take);
and
(2) A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
Upon review of the request for Renewal, the status of the affected
species or stocks, and any other pertinent information, NMFS determines
that there are no more than minor changes in the activities, the
mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
Dated: March 16, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-05935 Filed 3-18-22; 8:45 am]
BILLING CODE 3510-22-P