[Federal Register Volume 87, Number 130 (Friday, July 8, 2022)]
[Notices]
[Pages 40796-40820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14569]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC057]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys off New Jersey by NextEra Energy Transmission MidAtlantic
Holdings, LLC
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an Incidental Harassment Authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an Incidental Harassment Authorization to NextEra
Energy Transmission MidAtlantic Holdings, LLC (NEETMA) to incidentally
harass marine mammals during site characterization surveys off New
Jersey.
DATES: This Authorization is effective from July 1, 2022 through June
30, 2023.
FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, 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 (IHA) is provided to the
public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the 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.
Summary of Request
On February 4, 2022, NMFS received a request from NEETMA for an IHA
to take marine mammals incidental to marine site characterization
surveys occurring in two locations (Northern and Southern survey areas)
off the coast of New Jersey in the New Jersey Offshore Transmission
Facilities Project (NJOTF or Project). The application was deemed
adequate and complete on April 1, 2022. NEETMA's request was for take
of a small number of 15 marine mammal species (consisting of 16 stocks)
by Level B harassment only. Neither NEETMA nor NMFS expects serious
injury or mortality to result from this activity and, therefore, an IHA
is appropriate.
NMFS considered all public comments received and determined that no
changes to the final IHA were necessary.
Description of Survey Activities
Overview
NEETMA proposes to conduct HRG and geotechnical surveys as part of
the NJOTF off the coast of New Jersey. The surveys will take place
along proposed submarine export cable routes and at locations for
potential offshore platforms. Geotechnical survey activities will
include the use of vibracores and/or cone penetration tests (CPTs), to
identify and characterize the seabed conditions vertically for project
planning and design, and to collect data to identify paleolandscapes.
The purpose of these surveys are to support the siting and design
of offshore facilities, including offshore platforms for converter
stations and offshore submarine transmission cables. Up to 320 days are
planned for survey activities (Table 1). As many as three survey
vessels may operate concurrently as part of the site characterization
surveys. Underwater sound resulting from NEETMA's survey activities,
specifically HRG surveys, has the potential to result in incidental
take of marine mammals in the form of behavioral harassment.
Table 1--Number of Survey Days That NEETMA Plans To Perform the
Described HRG Survey Activities
------------------------------------------------------------------------
Number of
active survey
Survey area days expected
\1\
------------------------------------------------------------------------
Northern................................................ 248
Southern................................................ 72
---------------
Total:.............................................. 320
------------------------------------------------------------------------
\1\ Up to three total survey vessels may be operating within the survey
areas concurrently.
Table 2 identifies the representative survey equipment with the
expected potential to cause the take of marine mammals that may be used
in support
[[Page 40797]]
of planned geophysical survey activities. The make and model of the
listed 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. Geophysical
surveys are expected to use several equipment types concurrently in
order to collect multiple aspects of geophysical data along one
transect. Selection of equipment combinations is based on specific
survey objectives.
Table 2--Summary of Representative Equipment Specifications
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Operational Source level0-
HRG survey Operating source level peak (dB re 1 Beamwidth ranges Typical pulse Pulse
Equipment category equipment type frequency ranges (dB re [mu]Pa m) (degrees) durations repetition
ranges (kHz) 1 [mu]Pa m) (millisecond) rate (Hz)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-parametric shallow penetration SBPs (non-impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHIRPs........................ ET 216 (2000DS or 2-16 195 .............. 24................. 20 6
3200 top unit). 2-8
ET 424............. 4-24 176 .............. 71................. 3.4 2
ET 512............. 0.7-12 179 .............. 80................. 9 8
GeoPulse 5430A..... 2-17 196 .............. 55................. 50 10
Teledyne Benthose 2-7 197 .............. 100................ 60 15
Chirp III--TTV 170.
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Medium penetration SBPs (impulsive)
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Sparker....................... AA, Dura-spark UHD 0.3-1.2 203 211 Omnidirectional.... 1.1 4
(400 tips, 500 J)
\1\.
GeoMarine Geo Spark 0.05-3 203 213 Omnidirectional.... 3.4 1
2000 (400 tip) \1\.
Boomer........................ AA, triple plate S- 0.1-5 205 211 80................. 0.6 4
Boom (700-1,000 J)
\2\.
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Note: = not applicable; [mu]Pa = microPascal; AA = Applied Acoustics; dB = decibel; ET = EdgeTech; J = joule; Omni = omnidirectional source; re =
referenced to; SL = source level; 0-PK = zero-to-peak; RMS = root mean squared; UHD = ultra-high definition.
\1\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems planned for NEETMA's
survey. These include variants of the Dura-spark sparker system and various configurations of the GeoMarine Geo-Source sparker system. 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\ 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.
A detailed description of the surveys planned by NEETMA was
provided in the Federal Register notice of the proposed IHA (87 FR
27575; May 9, 2022). Since that time, no changes have been made to the
planned survey activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for
additional description of the specified activities.
Mitigation, monitoring, and reporting measures are described in
detail later in this document (please see the Mitigation and Monitoring
and Reporting sections).
Comments and Responses
A notice of NMFS' proposal to issue an IHA to NEETMA was published
in the Federal Register on May 9, 2022 (87 FR 27575), initiating a 30-
day public comment period. That notice described, in detail, NEETMA's
activities, the marine mammal species that may be affected by the
activities, and the anticipated effects on marine mammals. In that
notice, we requested public input on the request for authorization
described therein, our analyses, the proposed authorization, and any
other aspect of the notice of proposed IHA, and requested that
interested persons submit relevant information, suggestions, and
comments.
NMFS received letters from two environmental non-governmental
organizations (eNGOs) (Oceana, Inc. and Clean Ocean Action (COA)) and
from a local citizen group (Save Long Beach Island (LBI)). All
substantive comments, and NMFS' responses, are provided below, and the
letters are available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-nextera-energy-transmission-midatlantic-holdings-llc-marine). Please review the letters for full details
regarding the comments and underlying justification.
Comment 1: Oceana, COA, and LBI asserted that NMFS must fully
consider the discrete effects of each activity and the cumulative
effects of the suite of approved, proposed and potential activities on
marine mammals and North Atlantic right whales in particular and ensure
that the cumulative effects are not excessive before issuing or
renewing an IHA. The commenters additionally state that NMFS should
[[Page 40798]]
include nearby survey activities in the analysis performed in support
of this IHA, specifically related to surveys and activities occurring
in the Ocean Wind 1 (OCS-A-0498) and Atlantic Shores (OCS-A-0499)
leases, as the activities are occurring during similar timeframes and
in similar spatial locations.
NMFS response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of other unrelated activities and
their impacts on populations. The preamble for NMFS' implementing
regulations (54 FR 40338; September 29, 1989) states in response to
comments that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the species' density/distribution and
status, population size and growth rate, and other relevant factors
(see Negligible Impact Analysis and Determination section). The 1989
final rule for the MMPA implementing regulations also addressed public
comments regarding cumulative effects from future, unrelated
activities. There NMFS stated that such effects are not considered in
making findings under section 101(a)(5) concerning negligible impact.
In this case, this IHA, as well as other IHAs currently in effect or
proposed within the specified geographic region, are appropriately
considered an unrelated activity relative to the others. The IHAs are
unrelated in the sense that they are discrete actions under section
101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, NEETMA was the applicant for the IHA, and we are
responding to the specified activity as described in that application
(and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated (1) that we would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis,
and (2) that reasonably foreseeable cumulative effects would also be
considered under section 7 of the ESA for ESA-listed species, as
appropriate. Accordingly, NMFS has written Environmental Assessments
(EA) that addressed cumulative impacts related to substantially similar
activities, in similar locations, e.g., the 2017 Ocean Wind, LLC EA for
site characterization surveys off New Jersey; the 2018 Deepwater Wind
EA for survey activities offshore Delaware, Massachusetts, and Rhode
Island; the 2019 Avangrid EA for survey activities offshore North
Carolina and Virginia; and the 2019 Orsted EA for survey activities
offshore southern New England. Cumulative impacts regarding issuance of
IHAs for site characterization survey activities such as those planned
by NEETMA have been adequately addressed under NEPA in prior
environmental analyses that support NMFS' determination that this
action is appropriately categorically excluded from further NEPA
analysis. NMFS independently evaluated the use of a categorical
exclusion for issuance of NEETMA's IHA, which included consideration of
extraordinary circumstances.
For ESA-listed species, the cumulative effects of substantially
similar activities in the same geographic region have been analyzed in
the past under Section 7 of the ESA when NMFS has engaged in formal
intra-agency consultation, such as the 2013 programmatic Biological
Opinion for BOEM Lease and Site Assessment Rhode Island, Massachusetts,
New York, and New Jersey Wind Energy Areas (https://repository.library.noaa.gov/view/noaa/29291). Analyzed activities
included those for which NMFS issued Atlantic Shores' 2020 IHA and
subsequent 2021 renewal IHA (85 FR 21198; April 16, 2020 and 86 FR
21289; April 22, 2021), which are substantially similar to those
planned by NEETMA under this current IHA request. This Biological
Opinion determined that NMFS' issuance of IHAs for site
characterization survey activities associated with leasing,
individually and cumulatively, are not likely to adversely affect
listed marine mammals. NMFS notes, that while issuance of this IHA is
covered under a different consultation, this Biological Opinion (BiOp)
remains valid.
In addition, NMFS disagrees with LBI's assertion that separate
specified activities should be considered together in each MMPA
analysis on the basis that they share a similar regional location.
Under the MMPA, NMFS is required to consider applications upon request.
To date, NMFS has not received any joint application from Orsted,
Atlantic Shores, and NEETMA regarding their site characterization
surveys off of New Jersey. While an individual company owning multiple
lease areas may apply for a single authorization to conduct site
characterization surveys across a combination of those lease areas,
such as what was done by Orsted in their recent surveys from New York
to Massachusetts (see 85 FR 63508, October 8, 2020; 87 FR 13975, March
11, 2022), this is not applicable in this case to the surveys being
performed by Atlantic Shores, Orsted, and NEETMA off New Jersey. In the
future, if applicants wish to undertake this approach, NMFS is open to
the receipt of joint applications and additional discussions on joint
actions.
NMFS notes that these actions (Atlantic Shores', Orsted's, and
NEETMA's site characterization surveys) are occurring in spatially
distinct areas and not within overlapping areas. The entities' survey
activities will not occur in the same location at any one time. Any
other authorization issued to Orsted or Atlantic Shores, relating to
activities in or around OCS-A-0498 or OCS-A-0499, respectively, would
be considered a discrete activity with its own separate and independent
action.
Comment 2: LBI asserts that it is not clear where the source level
information for the GeoMarine Geo Spark 2000 acoustic unit came from.
NMFS response: NEETMA states in their IHA application (https://media.fisheries.noaa.gov/2022-05/NEETMA_2022IHA_App_OPR1.pdf) that the
information and source level for the GeoMarine Geo Spark 2000 unit,
with the same tips (400) and source level (203 dB re 1 [mu]Pa m), was
previously used in the analysis supporting issuance of the Vineyard
Wind 1 Marine Site Characterization Survey (86 FR 40469; June 7, 2021),
which can be found on NMFS' website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-marine-site-characterization-surveys. Within the Vineyard Wind 1 IHA application,
the same approach as recently used in the Atlantic Shores HRG survey
(87 FR 24103; April 22, 2022) is described where the SIG ELC 820
sparker was used as a proxy for the GeoMarine Geo Spark 2000 unit
[[Page 40799]]
(Atlantic Shores used the SIG ELC 820 as a proxy for the Applied
Acoustics Dura-Spark 240), given the same source level, peak source
level, energy source level, and pulse duration were present for all
three acoustic sources.
Please refer to Table 5 of the proposed Federal Register notice for
NEETMA (87 FR 27575; May 9, 2022) where all the distances to the Level
B harassment threshold are 141 m for the Applied Acoustics Dura-Spark
UHG (500 J/400 tip), the Applied Acoustics Dura-Spark UHD (440 + 400),
and the GeoMarine Geo Spark 2000 (400 tips).
Comment 3: LBI states that NMFS' assumption that use of a 20logR
transmission loss factor (i.e., spherical spreading) is inappropriate,
and suggests that NMFS must use a 15 dB propagation loss factor. LBI
goes on to comment that the use of the higher propagation loss
coefficient is not consistent with what NMFS' analyses for previous
actions and underestimates the distance to the Level B harassment
threshold, which would cause an underestimation of marine mammal takes.
NMFS response: A major component of transmission loss is spreading
loss and, from a point source in a uniform medium, sound spreads
outward as spherical waves (``spherical spreading'') (Richardson et
al., 1995). In water, these conditions are often thought of as being
related to deep water, where more homogenous conditions may be likely.
However, the theoretical distinction between deep and shallow water is
related more to the wavelength of the sound relative to the water
depth, versus the water depth itself. Therefore, when the sound
produced is in the kilohertz range, where wavelength is relatively
short, much of the continental shelf may be considered ``deep'' for
purposes of evaluating likely propagation conditions.
As described in the notice of proposed IHA, the area of water
ensonified at or above the root mean square (RMS) 160 dB threshold was
calculated using a simple model of sound propagation loss, which
accounts for the loss of sound energy over increasing range. Our use of
the spherical spreading model (where transmission loss = 20 * log
[range]; such that there would be a 6-dB reduction in sound level for
each doubling of distance from the source) is a reasonable
approximation over the relatively short distances involved. Even in
conditions where cylindrical spreading (where transmission loss = 10 *
log [range]; such that there would be a 3-dB reduction in sound level
for each doubling of distance from the source) may be appropriate
(e.g., non-homogenous conditions where sound may be trapped between the
surface and bottom), this effect does not begin at the source. In any
case, spreading is usually more or less spherical from the source out
to some distance, and then may transition to cylindrical (Richardson et
al., 1995). For these types of surveys, NMFS has determined that
spherical spreading is a reasonable assumption even in relatively
shallow waters (in an absolute sense) as the reflected energy from the
seafloor will be much weaker than the direct source and the volume of
water influenced by the reflected acoustic energy would be much smaller
over the relatively short distances involved.
The assumption of a 20-dB transmission loss coefficient is also
supported by more recent data on sound transmission by sparker sources
collected by the U.S. Geological Survey (USGS) in waters offshore
California in spring 2021 (Pers. Comm., C. Ruppel, 2022). Unpublished
data from these recent sound source verification experiments indicate
that, at the frequencies of many HRG instruments, spherical, not
cylindrical, spreading applies even in waters only tens of meters deep.
For a sparker source, even at 25-m water depth, the signal spreading
was almost completely spherical. As noted previously, at the higher
frequency of most HRG sources, the spreading is expected to be
spherical because the wavelength of the signal is very small compared
to the water depth. That is the criterion for spherical spreading,
which is why spherical spreading applies to most HRG sources,
regardless of water depth. This would not be the case for lower
frequency (i.e., larger wavelength) sources, such as airguns.
In support of its position, LBI cites several examples of use of
practical spreading (a useful real-world approximation of conditions
that may exist between the theoretical spreading modes of spherical and
cylindrical; 15logR) in asserting that this approach is also
appropriate here. However, these examples (U.S. Navy construction at
Newport, RI, and NOAA construction in Ketchikan, AK) are not relevant
to the activity at hand. First, these actions occur in even shallower
water (e.g., less than 10 m for Navy construction). Of greater
relevance to the action here, pile driving activity produces sound with
longer wavelengths than the sound produced by the acoustic sources
planned for use here. As noted previously, a determination of
appropriate spreading loss is related to the ratio of wavelength to
water depth more than to a strict reading of water depth. NMFS indeed
uses practical spreading in typical coastal construction applications,
but for reasons described here, uses spherical spreading when
evaluating the effects of HRG surveys on the continental shelf.
In addition, this analysis is likely conservative for other
reasons, e.g., the lowest frequency was used for systems that are
operated over a range of frequencies and other sources of propagation
loss (e.g., interference effects) are neglected.
NMFS has determined that spherical spreading is the most
appropriate form of propagation loss for these surveys and has relied
on this approach for past IHAs with similar equipment, locations, and
depths. Please refer back to the Garden State HRG IHA (83 FR 14417;
April 4, 2018) and the 2019 Skipjack HRG IHA (84 FR 51118; September
27, 2019) for examples. Prior to the issuance of these IHAs
(approximately 2018 and older), NMFS typically relied upon practical
spreading for these types of survey activities. However, as additional
scientific evidence became available, including numerous sound source
verification reports, NMFS determined that this approach was
inappropriately conservative and, since that time, as consistently used
spherical spreading. Furthermore, NMFS' User Spreadsheet tool assumes a
``safe distance'' methodology for mobile sources where propagation loss
is spherical spreading (20LogR) (https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null), and NMFS calculator tool for
estimating isopleths to Level B harassment thresholds also incorporates
the use of spherical spreading.
Comment 4: LBI asserts that NMFS has not appropriately considered
the location of North Atlantic Right Whales (NARW) migratory habitat in
relation to the survey and, in so doing, has not correctly evaluated
the potential for impacts to NARW migratory habitat.
NMFS response: NMFS disagrees with LBI's assertion that the close
proximity of the NARW migratory corridor is not discussed or accounted
for in the proposed Federal Register notice. Page 27581 (https://www.federalregister.gov/d/2022-09917/p-42) includes an overview of the
NARW and its habitat, including text noting that any NARWs in the
``survey areas are expected to be transient, most likely migrating
through the area'' due to the overlap of the Project area with the
migratory corridor. More information is presented on Page 27582
(https://www.federalregister.gov/d/2022-09917/p-44) and NMFS reiterates
it here: ``The proposed survey
[[Page 40800]]
area is part of a migratory corridor Biologically Important Area (BIA)
for North Atlantic right whales (effective March-April and November-
December) that extends from Massachusetts to Florida (LeBrecque et al.,
2015). Off the coast of New Jersey, the migratory BIA extends from the
coast to beyond the shelf break. This important migratory area is
approximately 269,488 square kilometers (km\2\) in size (compared with
the approximately 5,183.97 km\2\ of total estimated Level B harassment
ensonified area associated with the 320 planned survey days) 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 Delaware Bay, overlaps spatially
with a section of the proposed survey area. The SMA, which occurs off
the mouth of Delaware Bay, is active from November 1 through April 30
of each year. Within SMAs, the regulations require a mandatory vessel
speed (less than 10 kn) for all vessels greater than 65 ft. A portion
of one SMA overlaps spatially with the northern section of the proposed
survey area.''
NMFS also reiterates the language found on Page 27596 within the
Negligible Impact Analysis and Determination section, which has not
changed since the initial publication of the proposed Federal Register
notice and is carried forward into this final notice: ``The status of
the North Atlantic right whale population is of heightened concern and,
therefore, merits additional analysis. As noted previously, elevated
North Atlantic right whale 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. As noted previously,
the proposed survey area overlaps a migratory corridor BIA for North
Atlantic right whales. Due to the fact that the proposed survey
activities are temporary and the spatial extent of sound produced by
the survey 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.''
Comment 5: LBI and COA assert that Level A harassment may occur
during site characterization surveys and that it was not accounted for
in the proposed Federal Register notice. LBI asserts specifically that
Level A harassment will result from cumulative noise exposure,
contradicting NMFS' analysis.
NMFS response: NMFS acknowledges the concerns brought up by LBI
regarding the potential for Level A harassment of marine mammals.
However, no Level A harassment is expected to result, even in the
absence of mitigation, given the characteristics of the sources planned
for use. This is additionally supported by the required mitigation and
very small estimated Level A harassment zones described in NEETMA's IHA
application in Table 1-4 (https://media.fisheries.noaa.gov/2022-05/NEETMA_2022IHA_App_OPR1.pdf). Furthermore, the commenters do not
provide any support for the apparent contention that Level A harassment
is a potential outcome of these activities. As discussed in the notice
of proposed IHA, NMFS considers this category of survey operations to
be near de minimis, with the potential for Level A harassment for any
species to be discountable.
As described in the Estimated Take section of the proposed Federal
Register notice (87 FR 27575; May 9, 2022), NMFS has established a PTS
(Level A harassment) threshold of 183 dB cumulative SEL for low
frequency cetaceans (which include North Atlantic right whales).
Estimated Level A harassment zones for similar equipment (i.e., the
Applied Acoustics Dura-Spark 240 sparker, GeoMarine Geo Spark 2000 (400
tip)) were provided in Table 1-4 in NEETMA's IHA application (https://media.fisheries.noaa.gov/2022-05/NEETMA_2022IHA_App_OPR1.pdf), showing
that a NARW would have to come within 1 m of the sparker source to
potentially incur PTS. Due to the mitigation measures being
implemented, including the required vessel strike reduction measures,
NMFS considers it impossible that a NARW will reasonably be in
sufficiently close proximity to the active acoustic source (i.e., the
sparker) to incur PTS. NMFS has reviewed the analysis and confirmed
that it is accurate and relevant to this action.
Not only are any NARWs in the area migrating, meaning that their
occurrence in the area is expected to be of relatively brief duration
and the likelihood of exposures of longer duration or at closer range
minimized, NEETMA is also required to not approach any NARW within 500
m or operate the sparker within 500 m of a NARW. As such, there is
essentially no potential for a NARW to experience PTS (i.e., Level A
harassment) from the described surveys.
Comment 6: LBI discusses their belief that all pathways to the
Level B harassment threshold and/or masking of cetacean communication
that could lead to the serious injury and/or mortality of the animal
have not been fully analyzed by NMFS.
NMFS response: NMFS disagrees that the potential impacts of masking
were not properly considered and expects that the masking effects to
any one individual whale from one survey are expected to be minimal.
Masking is referred to as a chronic effect because one of the key
harmful components of masking is its duration--the fact that an animal
would have reduced ability to hear or interpret critical cues becomes
much more likely to cause a problem the longer it is occurring. Also,
inherent in the concept of masking is the fact that the potential for
the effect is only present during the times that the animal and the
source are in close enough proximity for the effect to occur (and
further this time period would need to coincide with a time that the
animal was utilizing sounds at the masked frequency) and, as our
analysis (both quantitative and qualitative components) indicates,
because of the relative movement of whales and vessels, we do not
expect these exposures with the potential for masking to be of a long
duration within a given day. Further, because of the relatively low
density of mysticetes, and relatively large area over which the vessels
travel, we do not expect any individual whales to be exposed to
potentially masking levels from these surveys for more than a few days
in a year.
As noted previously, any masking effects of this survey are
expected to be limited and brief, if present. Given the likelihood of
significantly reduced received levels beyond even short distances from
the survey vessel, combined with the short duration of potential
masking and the lower likelihood of extensive additional contributors
to background noise offshore and within these short exposure periods,
we believe that the incremental addition of the survey vessel is
unlikely to result in more than minor and short-term masking effects,
likely occurring to some small number of the same individuals captured
in the estimate of behavioral harassment.
NMFS recognizes that acute stress from acoustic exposure is one
potential
[[Page 40801]]
impact of these surveys, and that chronic stress can have fitness,
reproductive, etc. impacts at the population-level scale. NMFS has
carefully reviewed the best available scientific information in
assessing impacts to marine mammals, and recognizes that the surveys
have the potential to impact marine mammals through behavioral effects,
stress responses, and auditory masking. However, NMFS does not expect
that the generally short-term, intermittent, and transitory marine site
characterization survey activities planned by NEETMA will create
conditions of acute or chronic acoustic exposure leading to long-term
physiological stress responses in marine mammals. NMFS has also
prescribed a robust suite of mitigation measures, including extended
distance shutdowns for NARWs, which are expected to further reduce the
duration and intensity of acoustic exposure, while limiting the
potential severity of any possible behavioral disruption. The potential
for chronic stress was evaluated in making the determinations presented
in NMFS's negligible impact analyses. Because NARWs generally use this
location in a transitory manner, specifically for migration, any
potential impacts from these surveys are lessened for other behaviors
due to the brief periods where exposure is possible. In context of
these expected low-level impacts, which are not expected to
meaningfully affect important behavior, we also refer again to the
large size of the migratory corridor (BIA of 269,448 km\2\) compared
with the survey area (5,184 km\2\). Thus, the transitory nature of
NARWs at this location means it is unlikely for any exposure to cause
chronic effects as NEETMA's planned survey area and ensonified zones
are much smaller than the overall migratory corridor. Because of this,
NMFS does not expect any acute or cumulative stress, including any
masking, to be a detrimental factor to the health, fitness, or survival
of NARWs from NEETMA's described survey activities.
NMFS continues to maintain that the best available science
indicates that only Level B harassment, or minor disruptions of
behavioral patterns, may occur from the planned site characterization
surveys. No mortality or serious injury is expected to occur as a
result of the planned surveys, and there is no scientific evidence
indicating that any marine mammal could experience these as a direct
result of noise from geophysical survey activity. Authorization of
mortality and serious injury may not occur via IHAs, only within
Incidental Take Regulations (ITRs), and such authorization was neither
requested nor proposed. NMFS notes that in its history of authorizing
take of marine mammals, there has never been a report of any serious
injuries or fatalities of a marine mammal related to the site
characterization surveys, including for NARW. We emphasize that an
estimate of take numbers alone is not sufficient to assess impacts to a
marine mammal population. Take numbers must be viewed contextually with
other factors, as explained in the Negligible Impact Analysis and
Determination section of this notice.
Comment 7: LBI asserts that the criteria for determining
``negligible impact'' to the NARW have not been clearly or well
defined.
NMFS response: NMFS disagrees with LBI's position regarding the
negligible impact analysis, and the commenters do not provide a
reasoned basis for finding that the effects of the specified activity
will be greater than negligible on any species or stock. The Negligible
Impact Analysis and Determination section of the proposed IHA (87 FR
27575; May 9, 2022) provides a detailed qualitative discussion
supporting NMFS' determination that any anticipated impacts from this
action will be negligible. The section contains a number of factors
that were considered by NMFS based on the best available scientific
data and why we concluded that impacts resulting from the specified
activity are not reasonably expected to, or reasonably likely to,
adversely affect the species or stock through effects on annual rates
of recruitment or survival.
With specific regard to NARW, we note that take is authorized for
only a very small percentage of the right whale population (see Table
11). Furthermore, NMFS notes that while a species may be taken during
activities, this is not always the case. For example, we note that
Ocean Wind's (Orsted) previous monitoring report (https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-jersey) indicates that no
right whales experienced harassment during the previous activity,
although take of the species (Level B harassment only) was authorized.
However, the numbers of potential incidents of take or animals taken
are only part of an assessment and are not, alone, decisively
indicative of the degree of impact. In order to adequately evaluate the
effects of noise exposure at the population level, the total number of
take incidents must be further interpreted in context of relevant
biological and population parameters and other biological,
environmental, and anthropogenic factors and in a spatially and
temporally explicit manner. The effects to individuals of a ``take''
are not necessarily equal. Some take events represent exposures that
only just exceed a Level B harassment threshold, which would be
expected to result in lower-level impacts, while other exposures occur
at higher received levels and would typically be expected to have
comparatively greater potential impacts on an individual. Further,
responses to similar received levels may result in significantly
different impacts on an individual dependent upon the context of the
exposure or the status of the individuals (e.g., if it occurred in an
area and time where concentrated feeding was occurring, or to
individuals weakened by other effects). In this case, NMFS reiterates
that no such higher level takes are expected to occur. The maximum
anticipated Level B harassment zone is 141 m, a distance smaller than
the precautionary shutdown zone of 500 m. To the extent that any
exposure of NARW does occur, it would be expected to result in lower-
level impacts that are unlikely to result in significant or long-
lasting impacts to the exposed individual and, given the relatively
small amount of exposures expected to occur, it is unlikely that these
exposures would result in population-level impacts. NMFS acknowledges
that impacts of a similar degree on a proportion of the individuals in
a stock may have differing impacts to the stock based on its status,
i.e., smaller stocks may be less able to absorb deaths or reproductive
suppression and maintain similar growth rates as larger stocks.
However, even given the precarious status of the NARW, the low-level
nature of the impacts expected to occur for only a few individuals
means that the population status does not weigh meaningfully in NMFS'
consideration of population-level impacts. The commenters provide no
substantive reasoning to contradict this finding, and do not support
their assertions of effects greater than NMFS has assumed may occur.
Additionally, NMFS evaluated the impacts of HRG surveys on ESA-
listed species under ESA section 7, with NMFS Greater Atlantic Regional
Fisheries Office (GARFO) as the consulting agency. NMFS GARFO
determined that issuance of the IHA to NEETMA was not likely to
adversely affect listed species or the critical habitat of any ESA-
listed species or result in the take of any marine mammals in violation
of the ESA.
[[Page 40802]]
Comment 8: LBI asserts that the criteria for ``small numbers'' is
not scientifically supported, nor consistent with a prior judicial
decision.
NMFS response: NMFS disagrees with LBI's arguments on the topic of
small numbers. Although there is limited legislative history available
to guide NMFS and an apparent lack of biological underpinning to the
concept, we have worked to develop a reasoned approach to small
numbers. NMFS explains the concept of ``small numbers'' in recognition
that there could also be quantities of individuals taken that would
correspond with ``medium'' and ``large'' numbers. As such, NMFS
considers that one-third of the most appropriate population abundance
number--as compared with the assumed number of individuals taken--is an
appropriate limit with regard to ``small numbers.'' This relative
approach is consistent with the statement from the legislative history
that ``[small numbers] is not capable of being expressed in absolute
numerical limits'' (H.R. Rep. No. 97-228, at 19 (September 16, 1981)),
and relevant case law (Center for Biological Diversity v. Salazar, 695
F.3d 893, 907 (9th Cir. 2012) (holding that the U.S. Fish and Wildlife
Service reasonably interpreted ``small numbers'' by analyzing take in
relative or proportional terms)). In regards to LBI's suggestion that
the one-third number is inconsistent with prior case law, we note that
LBI cited the NRDC v. Evans decision of October 31, 2002 (232 F. Supp.
2d 1003, N.D. Cal. 2002), which was related to the plaintiffs' motion
for a preliminary injunction. Ultimately, after parties' cross-motions
for summary judgment, the Evans court held that NMFS' regulatory
definition of small numbers (which NMFS did not apply here) improperly
conflated the small numbers and negligible impact issues. NRDC v.
Evans, 279 F. Supp. 2d at 1129. Contrary to LBI's suggestion, the Evans
court expressly stated that it was not setting any numerical limit for
small numbers. NRDC v. Evans, 279 F. Supp. 2d at 1153. As for LBI's
suggestion to reconsider small numbers specifically for NARW, the
argument to establish a small numbers threshold on the basis of stock-
specific context is unnecessarily duplicative of the required
negligible impact finding, in which relevant biological and contextual
factors are considered in conjunction with the amount of take.
Comment 9: LBI asserts that NMFS' 160 dB harassment criterion for
intermittent sound sources is too high, and that the 120 dB criterion
for continuous noise sources should be used instead.
NMFS response: NMFS disagrees with LBI's comment, which references
a Marine Mammal Commission recommendation made in reference to the
proposed authorization of take incidental to use of scientific sonars
(such as echosounders). We refer the reader to the original response
(84 FR 46788; October 7, 2019) for full detail and provide a summary
here.
First, we provide some necessary background on implementation of
acoustic thresholds. NMFS has historically used generalized acoustic
thresholds based on received levels to predict the occurrence of
behavioral harassment, given the practical need to use a relatively
simple threshold based on information that is available for most
activities. Thresholds were selected in consideration largely of
measured avoidance responses of mysticete whales to airgun signals and
to industrial noise sources, such as drilling. The selected thresholds
of 160 dB rms SPL and 120 dB rms SPL, respectively, have been extended
for use since then for estimation of behavioral harassment associated
with noise exposure from sources associated with other common
activities as well.
Sound sources can be divided into broad categories based on various
criteria or for various purposes. As discussed by Richardson et al.
(1995), source characteristics include strength of signal amplitude,
distribution of sound frequency and, importantly in context of these
thresholds, variability over time. With regard to temporal properties,
sounds are generally considered to be either continuous or transient
(i.e., intermittent). Continuous sounds, which are produced by the
industrial noise sources for which the 120-dB behavioral harassment
threshold was selected, are simply those whose sound pressure level
remains above ambient sound during the observation period (ANSI, 2005).
Intermittent sounds are defined as sounds with interrupted levels of
low or no sound (NIOSH, 1998). Simply put, a continuous noise source
produces a signal that continues over time, while an intermittent
source produces signals of relatively short duration having an obvious
start and end with predictable patterns of bursts of sound and silent
periods (i.e., duty cycle) (Richardson and Malme, 1993). It is this
fundamental temporal distinction that is most important for
categorizing sound types in terms of their potential to cause a
behavioral response. For example, Gomez et al. (2016) found a
significant relationship between source type and marine mammal
behavioral response when sources were split into continuous (e.g.,
shipping, icebreaking, drilling) versus intermittent (e.g., sonar,
seismic, explosives) types. In addition, there have been various
studies noting differences in responses to intermittent and continuous
sound sources for other species (e.g., Neo et al., 2014; Radford et
al., 2016; Nichols et al., 2015).
Sound sources may also be categorized based on their potential to
cause physical damage to auditory structures and/or result in threshold
shifts. In contrast to the temporal distinction discussed previously,
the most important factor for understanding the differing potential for
these outcomes across source types is simply whether the sound is
impulsive or not. Impulsive sounds, such as those produced by airguns,
are defined as sounds which are typically transient, brief (< 1 sec),
broadband, and consist of a high peak pressure with rapid rise time and
rapid decay (ANSI, 1986; NIOSH, 1998). These sounds are generally
considered to have greater potential to cause auditory injury and/or
result in threshold shifts. Non-impulsive sounds can be broadband,
narrowband or tonal, brief or prolonged, continuous or intermittent,
and typically do not have the high peak pressure with rapid rise/decay
time that impulsive sounds do (ANSI, 1995; NIOSH, 1998). Because the
selection of the 160-dB behavioral threshold was focused largely on
airgun signals, it has historically been commonly referred to as the
``impulse noise'' threshold (including by NMFS). However, this
longstanding confusion in terminology--i.e., the erroneous impulsive/
continuous dichotomy--presents a narrow view of the sound sources to
which the thresholds apply, and inappropriately implies a limitation in
scope of applicability for the 160-dB behavioral threshold in
particular.
Following the background discussion provided previously, we note
that LBI apparently misunderstands the crux of the Marine Mammal
Commission argument that it references, i.e., that because scientific
sonars are not impulsive sound sources, they must be assessed using the
120-dB behavioral threshold appropriate for continuous noise sources.
The sparker source at issue here is in fact an impulsive source.
Therefore, the historical confusion regarding terminology associated
with the 160 dB threshold (i.e., impulsive versus intermittent) is not
relevant, and there is no reasonable argument to be made in support of
using the 120 dB threshold versus the 160 dB threshold.
[[Page 40803]]
Comment 10: LBI states that, based on their contention that serious
injury and/or mortality is a potential outcome of the specified
activity for NARWs, authorization under section 101(a)(5)(A) of the
MMPA (Incidental Take Regulation (ITR) with subsequent Letters of
Authorization (LOA)) is required.
NMFS response: NMFS acknowledges that authorization under section
101(a)(5)(A) of the MMPA would be required were mortality or serious
injury an expected outcome of the action. However, as noted previously,
there is no scientific evidence suggesting that such outcomes are
possible and, therefore, an IHA issued under section 101(a)(5)(D) is
appropriate. Similarly, if the analysis presented by LBI were
considered credible, the results would necessitate a revision to NMFS'
negligible impact determination. However, as detailed in previous
comment responses and Federal Register notices, the LBI analysis is not
based on the best scientific evidence available, and NMFS does not
consider it to be a credible analysis. Separately, it appears that LBI
equates Level A harassment with serious injury and mortality in
suggesting that Incidental Take Regulations are required. As discussed
herein, Level A harassment is not an expected outcome of the specified
activity. However, we clarify that section 101(a)(5)(D) of the MMPA,
which governs the issuance of IHAs, indicates that the ``the Secretary
shall authorize . . . . taking by harassment [. . . .]'' The definition
of ``harassment'' in the MMPA clearly includes both Level A and Level B
harassment.
To reiterate, NMFS does not expect any serious injury or mortality,
even absent mitigation efforts, because of the nature of the activities
described in the proposed Federal Register notice. Furthermore, NMFS
included a vessel strike analysis in the proposed notice under the
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat section. We identified that at average transit speed for
geophysical survey vessels, the probability of serious injury or
mortality resulting from a strike is low enough to be discountable.
However, the likelihood of a strike actually happening is again low
given the smaller size of these vessels and generally slower speeds
during transit. Further, NEETMA is required to implement monitoring and
mitigation measures during transit, including observing for marine
mammals and maintaining defined separation distances between the vessel
and any marine mammal (see the Mitigation and Monitoring and Reporting
sections). Finally, despite several years of marine site
characterization surveys occurring off the U.S. east coast, no vessels
supporting offshore wind development have struck a marine mammal either
in transit or during surveying. Because vessel strikes are not
reasonably expected to occur, no such take is authorized. The
mitigation measures in the IHA related to vessel strike avoidance are
not limited to vessels operating within the survey area or cable
corridors and therefore apply to transiting vessels. Because of these
reasons and the addition of mitigation efforts, including required
vessel separation distances to further reduce any risk, we do not find
that a Rulemaking is necessary for NEETMA's HRG surveys.
Comment 11: LBI recommends that NMFS should require Passive
Acoustic Monitoring (PAM) at all times to maximize the probability of
detection for NARW. LBI provided recommendations that NMFS should
require PAM at all times, both day and night, to maximize the
probability of detection for NARW, as well as other species and stocks.
NMFS response: LBI does not explain why it expects that PAM would
be effective in detecting vocalizing mysticetes, nor does NMFS agree
that this measure is warranted, as it is not expected to be effective
for use in detecting the species of concern. It is generally accepted
that, even in the absence of additional acoustic sources, using a towed
passive acoustic sensor to detect baleen whales (including NARWs) is
not typically effective because the noise from the vessel, the flow
noise, and the cable noise are in the same frequency band and will mask
the vast majority of baleen whale calls. Vessels produce low-frequency
noise, primarily through propeller cavitation, with main energy in the
5-300 Hertz (Hz) frequency range. Source levels range from about 140 to
195 decibel (dB) re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003;
Hildebrand, 2009), depending on factors such as ship type, load, and
speed, and ship hull and propeller design. Studies of vessel noise show
that it appears to increase background noise levels in the 71-224 Hz
range by 10-13 dB (Hatch et al., 2012; McKenna et al., 2012; Rolland et
al., 2012). PAM systems employ hydrophones towed in streamer cables
approximately 500 m behind a vessel. Noise from water flow around the
cables and from strumming of the cables themselves is also low-
frequency and typically masks signals in the same range. Experienced
PAM operators participating in a recent workshop (Thode et al., 2017)
emphasized that a PAM operation could easily report no acoustic
encounters, depending on species present, simply because background
noise levels rendered any acoustic detection impossible. The same
workshop report stated that a typical eight-element array towed 500 m
behind a vessel could be expected to detect delphinids, sperm whales,
and beaked whales at the required range, but not baleen whales, due to
expected background noise levels (including seismic noise, vessel
noise, and flow noise).
There are several additional reasons why we do not agree that use
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM
can be an important tool for augmenting detection capabilities in
certain circumstances, its utility in further reducing impact during
HRG survey activities is limited. First, for this activity, the area
expected to be ensonified above the Level B harassment threshold is
relatively small (a maximum of 141 m); this reflects the fact that, to
start with, the source level is comparatively low and the intensity of
any resulting impacts would be lower level and, further, it means that
inasmuch as PAM will only detect a portion of any animals exposed
within a zone, the overall probability of PAM detecting an animal in
the harassment zone is low. Together these factors support the limited
value of PAM for use in reducing take with smaller zones. PAM is only
capable of detecting animals that are actively vocalizing, while many
marine mammal species vocalize infrequently or during certain
activities, which means that only a subset of the animals within the
range of the PAM would be detected (and potentially have reduced
impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for NARW and other low frequency cetaceans, species for
which PAM has limited efficacy), and the cost and impracticability of
implementing a full-time PAM program, we have determined the current
requirements for visual monitoring are sufficient to ensure the least
practicable adverse impact on the affected species or stocks and their
[[Page 40804]]
habitat. NMFS has previously provided discussions on why PAM isn't a
required monitoring measure during HRG survey IHAs in past Federal
Register notices (see 86 FR 21289, April 22, 2021; 87 FR 13975, March
11, 2022; 87 FR 24103; April 22, 2022 for examples).
Comment 12: LBI, Oceana, and COA all express concern regarding the
potential for vessel strike and recommendations to reduce the potential
for vessel strike. Oceana and COA recommended that NMFS restrict all
vessels of all sizes associated with the proposed survey activities to
speeds less than 10 knots (kn)(5.14 meters per second) at all times due
to the risk of vessel strikes to NARWs and other large whales. Oceana
and LBI both provide recommendations for additional mitigation
measures, including a larger exclusion zone (from 500 m for NARWs and
100 m for all other species to 736 m from LBI and a suggestion of a
1,000 m Exclusion Zone for NARWs from Oceana); a prohibition of site
characterization surveys at night unless a PAM system is employed; a
736 m buffer on the NARW's migratory corridor during primary migration
months (January, February, March, April, and November), and the
development of additional Seasonal Management Areas (SMAs) adjacent to
the survey area to reduce against ship strike.
NMFS response: NMFS notes that the 500 m Exclusion Zone for NARWs
exceeds the modeled distance to the largest 160 dB Level B harassment
isopleth distance (141 m during sparker use) by a substantial margin.
LBI does not provide a compelling rationale for why the Exclusion Zone
should be even larger. Given that these surveys are relatively low
impact and that, regardless, NMFS has prescribed a NARW Exclusion Zone
that is significantly larger (500 m) than the conservatively estimated
largest harassment zone (141 m), NMFS has determined that the Exclusion
Zone is appropriate. Further, Level A harassment is not expected to
result even in the absence of mitigation, given the characteristics of
the sources planned for use. As described in the Mitigation section,
NMFS has determined that the prescribed mitigation requirements are
sufficient to effect the least practicable adverse impact on all
affected species or stocks.
Regarding the recommendation for PAM usage, NMFS refers to the
response provided for Comment #11.
LBI's recommendation to implement a 736 m buffer zone on the NARW
migratory corridor is based on its own analysis using the a 15LogR
transmission loss coefficient. Regarding assumptions related to
transmission loss, we refer the reader to the response to Comment #3,
which invalidates the premise that a larger zone is appropriate (as
discussed previously). In addition, as previously stated, given the
large size of the migratory corridor (BIA of 269,448 km\2\) compared
with the survey area (5,184 km\2\), an additional buffer is
unnecessary. This would unnecessarily slow down NEETMA's site
characterization surveys, prolonging the duration of the survey effort
to make up for the lost survey days.
While NMFS acknowledges that vessel strikes can result in injury or
mortality, we have analyzed the potential for ship strike resulting
from NEETMA's activities and have determined that based on the nature
of the activity and the required mitigation measures specific to vessel
strike avoidance included in the IHA, potential for vessel strike is so
low as to be discountable. These mitigation measures, most of which
were included in the proposed IHA and all of which are required in the
final IHA, include: A requirement that all vessel operators comply with
10 kn (18.5 km/hour) or less speed restrictions in any SMA, DMA or Slow
Zone while underway, and check daily for information regarding the
establishment of mandatory or voluntary vessel strike avoidance areas
(SMAs, DMAs, Slow Zones) and information regarding NARW sighting
locations; a requirement that all vessels greater than or equal to 19.8
m in overall length operating from November 1 through April 30 operate
at speeds of 10 kn (18.5 km/hour) or less; a requirement that all
vessel operators reduce vessel speed to 10 kn (18.5 km/hour) or less
when any large whale, any mother/calf pairs, pods, or large assemblages
of non-delphinid cetaceans are observed near the vessel; a requirement
that all survey vessels maintain a separation distance of 500 m or
greater from any ESA-listed whales or other unidentified large marine
mammals visible at the surface while underway; a requirement that, if
underway, vessels must steer a course away from any sighted ESA-listed
whale at 10 kn(5.14 m/s) or less until the 500 m minimum separation
distance has been established; a requirement that, if an ESA-listed
whale is sighted in a vessel's path, or within 500 m of an underway
vessel, the underway vessel must reduce speed and shift the engine to
neutral; a requirement that all vessels underway must maintain a
minimum separation distance of 100 m from all non-ESA-listed baleen
whales; and a requirement that all vessels underway 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). We have determined that the ship strike avoidance measures
in the IHA are sufficient to ensure the least practicable adverse
impact on species or stocks and their habitat. Furthermore, no
documented vessel strikes have occurred for any marine site
characterization surveys which were issued IHAs from NMFS during the
survey activities themselves or while transiting to and from survey
sites. Existing and permanent SMAs have been previously established
under a different rulemaking (73 FR 60173; October 10, 2008) and can
also be found on NMFS' website at https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales#speedlimit).
Comment 13: LBI asserts that NMFS has not complied with the
Endangered Species Act (ESA) through the use of the NMFS Greater
Atlantic Regional Office (GARFO) Programmatic Consultation regarding
geophysical surveys along the U.S. Atlantic coast in the three Atlantic
Renewable Energy Regions (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).
NMFS response: NMFS disagrees with LBI's assertion that NMFS has
not complied with ESA section 7. LBI suggests that a BiOp is required,
and that because GARFO's programmatic consultation is not a BiOp, NMFS
is not compliant with the requirements of Section 7. LBI misunderstands
the relevant legal requirements, as an informal consultation concluding
that the effects of an action are not likely to adversely affect ESA-
listed species (as GARFO's consultation document does) is a sufficient
endpoint of consultation under section 7. LBI's additional complaints
regarding GARFO's analysis are misdirected.
Comment 14: LBI has stated its opposition to the use of a
categorical exclusion under NEPA, asserting that, at minimum, an EA is
the appropriate level of review.
NMFS response: NMFS does not agree with LBI's comment. A
categorical exclusion (CE) is a category of actions that an agency has
determined does not
[[Page 40805]]
individually or cumulatively have a significant effect on the quality
of the human environment, and is appropriately applied for such
categories of actions so long as there are no extraordinary
circumstances present that would indicate that the effects of the
action may be significant. Extraordinary circumstances are situations
for which NOAA has determined further NEPA analysis is required because
they are circumstances in which a normally excluded action may have
significant effects. A determination of whether an action that is
normally excluded requires additional evaluation because of
extraordinary circumstances focuses on the action's potential effects
and considers the significance of those effects in terms of both
context (consideration of the affected region, interests, and
resources) and intensity (severity of impacts). Potential extraordinary
circumstances relevant to this action include (1) adverse effects on
species or habitats protected by the MMPA that are not negligible; (2)
highly controversial environmental effects; (3) environmental effects
that are uncertain, unique, or unknown; and (4) the potential for
significant cumulative impacts when the proposed action is combined
with other past, present, and reasonably foreseeable future actions.
The relevant NOAA CE associated with issuance of incidental take
authorizations is CE B4, ``Issuance of incidental harassment
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the
incidental, but not intentional, take by harassment of marine mammals
during specified activities and for which no serious injury or
mortality is anticipated.'' This action falls within CE B4. In
determining whether a CE is appropriate for a given incidental take
authorization, NMFS considers the applicant's specified activity and
the potential extent and magnitude of takes of marine mammals
associated with that activity along with the extraordinary
circumstances listed in the Companion Manual for NAO 216-6A and
summarized previously. The evaluation of whether extraordinary
circumstances (if present) have the potential for significant
environmental effects is limited to the decision NMFS is responsible
for, which is issuance of the incidental take authorization. While
there may be environmental effects associated with the underlying
action, potential effects of NMFS' action are limited to those that
would occur due to the authorization of incidental take of marine
mammals. NMFS prepared numerous EA) analyzing the environmental impacts
of the categories of activities encompassed by CE B4 which resulted in
Findings of No Significant Impacts (FONSIs) and, in particular,
numerous EAs prepared in support of issuance of IHAs related to similar
survey actions are part of NMFS' administrative record supporting CE
B4. These EAs demonstrate the issuance of a given incidental harassment
authorization does not affect other aspects of the human environment
because the action only affects the marine mammals that are the subject
of the incidental harassment authorization. These EAs also addressed
factors in 40 CFR 1508.27 regarding the potential for significant
impacts and demonstrate the issuance of incidental harassment
authorization for the categories of activities encompassed by CE B4 do
not individually or cumulatively have a significant effect on the human
environment.
Specifically for this action, NMFS independently evaluated the use
of the CE for issuance of NEETMA's IHA, which included consideration of
extraordinary circumstances. As part of that analysis, NMFS considered
including whether this IHA issuance would result in cumulative impacts
that could be significant. In particular, the issuance of an IHA to
NEETMA is expected to result in minor, short-term behavioral effects on
marine mammal species due to exposure to underwater sound from site
characterization survey activities. Behavioral disturbance is expected
to occur intermittently in the vicinity of NEETMA's survey area during
the one-year timeframe. Level B harassment will be reduced through use
of mitigation measures described herein. Additionally, as discussed
elsewhere, NMFS has determined that NEETMA's activities fall within the
scope of activities analyzed in GARFO's programmatic consultation
regarding geophysical surveys along the U.S. Atlantic coast in the
three Atlantic Renewable Energy Regions (completed June 29, 2021;
revised September 2021), which concluded surveys such as those planned
by NEETMA are not likely to adversely affect endangered listed species
or adversely modify or destroy critical habitat. Accordingly, NMFS has
determined that the issuance of this IHA will result in no more than
negligible (as that term is defined by the Companion Manual for NAO
216-6A) adverse effects on species protected by the ESA and the MMPA.
Further, the issuance of this IHA will not result in highly
controversial environmental effects or result in environmental effects
that are uncertain, unique, or unknown because numerous entities have
been engaged in site characterization surveys that result in Level B
harassment of marine mammals in the United States. This type of
activity is well documented; prior authorizations and analysis
demonstrates issuance of an IHA for this type of action only affects
the marine mammals that are the subject of the specific authorization
and, thus, no potential for significant cumulative impacts are
expected, regardless of past, present, or reasonably foreseeable
actions, even though the impacts of the action may not be significant
by itself. Based on this evaluation, we concluded that the issuance of
the IHA qualifies to be categorically excluded from further NEPA
review.
Comment 15: LBI requests that NMFS conduct an analysis and submit a
Federal consistency determination to the State of New Jersey pursuant
to the Coastal Zone Management Act (CZMA), if NMFS had not done so
already. Referencing a March 2015 consistency determination issued by
the New Jersey Department of Environmental Protection (NJDEP) involving
a separate and unrelated proposed marine geophysical survey in the
Atlantic Ocean off the Coast of New Jersey, LBI expressed concern that
the survey proposed by NEETMA may not be consistent with New Jersey
Coastal Zone Management rules.
NMFS response: NMFS cannot submit a Federal consistency
determination to the State of New Jersey, because this activity is not
a Federal agency activity proposed by NMFS under NOAA's CZMA
regulations at 15 CFR part 930, subpart C. Rather, NMFS is reviewing an
application for a Federal authorization for NEETMA's proposed survey.
As such, whether a CZMA review is required is determined by the
regulations governing CZMA Federal consistency review of Federal
license or permit activities found at 15 CFR part 930, subpart D. If an
applicant for a Federal license or permit activity is not required by
15 CFR part 930, subpart D to submit a CZMA consistency certification
to a state, then the authorizing Federal agency, in this case, NMFS
cannot compel or require the applicant to submit a consistency
certification.
In this case, NEETMA was not, and is not, required to submit a CZMA
consistency certification to the State of New Jersey under 15 CFR part
930, subpart D, because NMFS MMPA IHAs are not, pursuant to 15 CFR
930.53, listed in New Jersey's federally-approved coastal management
program and New Jersey has not described a
[[Page 40806]]
geographic location in Federal waters for the NMFS authorization. In
addition, the State of New Jersey did not request approval from the
Director of NOAA's Office for Coastal Management (formerly known as the
Office of Ocean and Coastal Resource Management) to review NEETMA's
application to NMFS as an unlisted activity pursuant to 15 CFR 930.54,
and the time period to make such a request has passed. Regarding the
CZMA Federal consistency unlisted activity review request process under
15 CFR 930.54, NMFS published its Federal Register notice for NEETMA's
MMPA IHA application on May 9, 2022. The State of New Jersey then had
30 days to notify NEETMA, NMFS and the Director of NOAA's Office for
Coastal Management that it was seeking approval to review the activity
as an unlisted activity. The State of New Jersey did not make such a
request and the 30-day period ended on June 8, 2022. Accordingly,
NEETMA's IHA application is not subject to Federal consistency review
under the CZMA and NMFS denies LBI's request.
Comment 16: Oceana made comments objecting to NMFS' renewal process
regarding the extension of any one-year IHA with a 15-day public
comment period, and suggested a 30-day public comment period is
necessary for any renewal request.
NMFS response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about IHA renewals (e.g.,
84 FR 52464; October 2, 2019 and 85 FR 53342; August 28, 2020), NMFS
has explained how the renewal process, as implemented, is consistent
with the statutory requirements contained in section 101(a)(5)(D) of
the MMPA, and further, promotes NMFS' goals of improving conservation
of marine mammals and increasing efficiency in the MMPA compliance
process. Therefore, we intend to continue implementing the renewal
process.
In particular, we emphasize that any renewal IHA does have a 30-day
public comment period associated with initial issuance of the IHA, and
accordingly each renewal IHA is made available for a total 45-day
public comment period. The notice of the proposed IHA published in the
Federal Register on May 9, 2022 (87 FR 27575) made clear that NMFS was
seeking comment on the proposed IHA and the potential issuance of a
renewal for this survey. As detailed in the Federal Register notice for
the proposed IHA and on the agency's website, any renewal is limited to
another year of identical or nearly identical activities in the same
location or the same activities that were not completed within the 1-
year period of the initial IHA. NMFS' analysis of the anticipated
impacts on marine mammals caused by the applicant's activities covers
both the Initial IHA period and the possibility of a 1-year renewal.
Therefore a member of the public considering commenting on a proposed
initial IHA also knows the scope of activities (or subset of
activities) that would be included in a proposed renewal IHA, the
potential impacts of those activities, the maximum amount and type of
take that could be caused by those activities, the mitigation and
monitoring measures that would be required, and the basis for the
agency's negligible impact determinations, least practicable adverse
impact findings, small numbers findings, and (if applicable) the no
unmitigable adverse impact on subsistence use finding--all the
information needed to provide complete and meaningful comments on a
possible renewal at the time of considering the proposed initial IHA.
Reviewers have the information needed to meaningfully comment on both
the immediate proposed IHA and a possible 1-year renewal, should the
IHA holder choose to request one.
While there would be additional documents submitted with a renewal
request, for a qualifying renewal these would be limited to
documentation that NMFS would make available and use to verify that the
activities are the same as those in the initial IHA, are nearly
identical such that the changes would have either no effect on impacts
to marine mammals or would decrease those impacts, or are a subset of
activities already analyzed and authorized but not completed under the
initial IHA. NMFS would also need to confirm, among other things, that
the activities would occur in the same location; involve the same
species and stocks; provide for continuation of the same mitigation,
monitoring, and reporting requirements; and that no new information has
been received that would alter the prior analysis. The renewal request
would also contain a preliminary monitoring report, in order to verify
that effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. The additional 15-day public comment
period, which includes NMFS' direct notice to anyone who commented on
the proposed initial IHA, provides the public an opportunity to review
these few documents, provide any additional pertinent information, and
comment on whether they think the criteria for a renewal have been met.
Between the initial 30-day comment period on these same activities and
the additional 15 days, the total comment period for a renewal is 45
days.
In addition to the IHA renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress' intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for renewals in the regulations, description of the process
and express invitation to comment on specific potential renewals in the
Request for Public Comments section of each proposed IHA, the
description of the process on NMFS' website, further elaboration on the
process through responses to comments such as these, posting of
substantive documents on the agency's website, and provision of 30 or
45 days for public review and comment on all proposed initial IHAs and
Renewals respectively, NMFS has ensured that the public is ``invited
and encouraged to participate fully in the agency's decision-making
process'', as Congress intended.
Comment 17: Oceana and COA remarked that NMFS must utilize the best
available science. The commenters further suggest that NMFS has not
done so, specifically, referencing information regarding the NARW such
as updated population estimates and recent habitat usage patterns in
NEETMA's survey area. The commenters specifically asserted that NMFS is
not using the best available science with regards to the NARW
population estimate and state that NMFS should be using the 336
estimate presented in the recent North Atlantic Right Whale Report Card
(https://www.narwc.org/report-cards.html).
NMFS response: While NMFS agrees that the best available science
should be used for assessing NARW abundance estimates, we disagree that
the North Atlantic Right Whale Report Card (i.e., Pettis et al. (2022))
study represents the most recent and best available estimate for NARW
abundance. Rather the revised abundance estimate (368; 95 percent with
a confidence interval of 356-378) published by Pace (2021) (and
subsequently included in the 2021 draft Stock Assessment Reports (SARs;
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports)), which was used in the
proposed IHA, provides the most recent and best available estimate, and
introduced improvements to NMFS' right whale abundance model.
Specifically, Pace (2021) looked at a
[[Page 40807]]
different way of characterizing annual estimates of age-specific
survival. NMFS considered all relevant information regarding NARW,
including the information cited by the commenters. However, NMFS relies
on the SAR. Recently (after publication of the notice of proposed IHA),
NMFS has updated its species web page to recognize the population
estimate for NARWs is now below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale). (See the
footnote under Table 3 in the proposed Federal Register notice (87 FR
27575; May 9, 2022)). We anticipate that this information will be
presented in the draft 2022 SAR. We note that this change in abundance
estimate would not change our analysis regarding the estimated take of
NARWs, nor affect our ability to make the required findings under the
MMPA for NEETMA's survey activities.
NMFS further notes that Oceana seems to be conflating the phrase
``best available data'' with ``the most recent data.'' The MMPA
specifies that the ``best available data'' must be used, which does not
always mean the most recent. As is NMFS' prerogative, we referenced the
best available NARW abundance estimate of 368 from the draft 2021 SARs
as NMFS's determination of the best available data that we relied on in
our analysis. The Pace (2021) results strengthened the case for a
change in mean survival rates after 2010-2011, but did not
significantly change other current estimates (population size, number
of new animals, adult female survival) derived from the model.
Furthermore, NMFS notes that the draft SARs are peer reviewed by other
scientific review groups prior to being finalized and published and
that the North Atlantic Right Whale Report Card (Pettis et al., 2022)
does not undertake this process.
The commenters also noted their concern regarding NARW habitat
usage, stating that NMFS was not appropriately considering relevant
information on this topic. While this survey specifically intersects a
portion of migratory habitat for NARWs, year-round ``core'' NARW
foraging habitat (Oleson et al., 2020) is located much further north in
the southern area of Martha's Vineyard and Nantucket Islands, where
both visual and acoustic detections of NARWs indicate a nearly year-
round presence (Oleson et al., 2020). NMFS notes that prey for NARWs
are mobile and broadly distributed throughout the survey area;
therefore, NARW foraging efforts are not likely to be disturbed given
the location of these planned activities in relation to the broader
area that NARWs migrate through and the northern areas where NARWs
primarily forage. There is ample foraging habitat further north of this
survey area that will not be ensonified by the acoustic sources used by
NEETMA, such as in the Great South Channel and Georges Bank Shelf Break
feeding BIA. Furthermore, and as discussed in the proposed Notice (87
FR 27575; May 9, 2022), the spatial acoustic footprint of the survey is
very small relative to the spatial extent of the available foraging
habitat.
Lastly, as we stated in the Notice announcing the proposed IHA, any
impacts to marine mammals are expected to be temporary and minor and,
given the relative size of the survey area compared to the overall
migratory route leading to foraging habitat (which is not affected by
the specified activity). Comparatively, the survey area is
approximately 5,184 km\2\ and the NARW migratory BIA is 269,448 km\2\.
Because of this, and in context of the minor, low-level nature of the
impacts expected to result from the planned survey, such impacts are
not expected to result in disruption to biologically important
behaviors.
Comment 18: Oceana noted that chronic stressors are an emerging
concern for NARW conservation and recovery, and stated that chronic
stress may result in energetic effects for NARWs. Oceana suggested that
NMFS has not fully considered both the use of the area and the effects
of both acute and chronic stressors on the health and fitness of NARWs,
as disturbance responses in NARWs could lead to chronic stress or
habitat displacement, leading to an overall decline in their health and
fitness.
NMFS response: NMFS agrees with Oceana that both acute and chronic
stressors are of concern for NARW conservation and recovery. We
recognize that acute stress from acoustic exposure is one potential
impact of these surveys, and that chronic stress can have fitness,
reproductive, etc. impacts at the population-level scale. NMFS has
carefully reviewed the best available scientific information in
assessing impacts to marine mammals, and recognizes that the surveys
have the potential to impact marine mammals through behavioral effects,
stress responses, and auditory masking. However, NMFS does not expect
that the generally short-term, intermittent, and transitory marine site
characterization survey activities planned by NEETMA would create
conditions of acute or chronic acoustic exposure leading to long-term
physiological stress responses in marine mammals. NMFS has also
prescribed a robust suite of mitigation measures, including extended
distance shutdowns for NARW, that are expected to further reduce the
duration and intensity of acoustic exposure, while limiting the
potential severity of any possible behavioral disruption. The potential
for chronic stress was evaluated in making the determinations presented
in NMFS's negligible impact analyses. Because NARWs generally use this
location in a transitory manner, specifically for migration, any
potential impacts from these surveys are lessened for other behaviors
due to the brief periods where exposure is possible. In context of
these expected low-level impacts, which are not expected to
meaningfully affect important behavior, we also refer again to the
large size of the migratory corridor (BIA of 269,448 km\2\) compared
with the survey area (5,184 km\2\). Thus, the transitory nature of
NARWs at this location means it is unlikely for any exposure to cause
chronic effects as NEETMA's planned survey area and ensonified zones
are much smaller than the overall migratory corridor. Because of this,
NMFS does not expect acute or cumulative stress to be a detrimental
factor to NARWs from NEETMA's described survey activities.
Comment 19: Oceana states that NMFS must make an assessment of
which activities, technologies and strategies are truly necessary to
provide information to inform site characterization surveys and which
are not critical, asserting that NMFS should prescribe the appropriate
survey techniques. In general, Oceana stated that NMFS must require
that all IHA applicants minimize the impacts of underwater noise to the
fullest extent feasible, including through the use of best available
technology and methods to minimize sound levels from geophysical
surveys.
NMFS response: The MMPA requires that an IHA include measures that
will effect the least practicable adverse impact on the affected
species and stocks and NMFS agrees that the IHA should include
conditions for the survey activities that will first avoid adverse
effects on NARWs in and around the survey site, where practicable, and
then minimize the effects that cannot be avoided. NMFS has determined
that the IHA meets this requirement to effect the least practicable
adverse impact. Oceana does not make any specific recommendations of
measures to add to the IHA. As part of the analysis for all marine site
characterization survey IHAs, NMFS evaluates the effects expected as a
result of the specified activity, makes the necessary findings, and
prescribes
[[Page 40808]]
mitigation requirements sufficient to achieve the least practicable
adverse impact on the affected species and stocks of marine mammals. It
is not within NMFS' purview to make judgments regarding what may be
appropriate techniques or technologies for an operator's survey
objectives.
Comment 20: Oceana has requested NMFS prepare a vessel traffic plan
on the basis that the site characterization surveys will increase the
vessel traffic in and around the project area.
NMFS response: NMFS disagrees that vessel traffic would increase
significantly to a level where adverse impacts would occur to marine
mammals in and around NEETMA's survey site. NEETMA anticipates the use
of up to three concurrently operating survey vessels during the entire
effective period of the IHA, over the approximate survey area of
5,183.97 km\2\. Due to the size of the planned survey area and the
small number of vessels expected to be operating specifically relating
to NEETMA's project, NMFS considers it highly unlikely that this level
of additional vessels would increase the risk to the species in and
around the area.
Furthermore, NEETMA did not request authorization for take
incidental to vessel traffic during their site characterization
surveys. Nevertheless, NMFS analyzed the potential for vessel strikes
to occur during the survey, and determined that the potential for
vessel strike is so low as to be discountable. NMFS does not authorize
any take of marine mammals incidental to vessel strike resulting from
the survey. If NEETMA were to strike a marine mammal with a vessel,
this would be an unauthorized take and be in violation of the MMPA.
This gives NEETMA a strong incentive to operate its vessels with all
due caution and to effectively implement the suite of vessel strike
avoidance measures called for in the IHA. NEETMA proposed a very
conservative suite of mitigation measures related to vessel strike
avoidance, including measures specifically designed to avoid impacts to
NARWs. Section 4(f) in the IHA contains a suite of non-discretionary
requirements pertaining to ship strike avoidance, including vessel
operation protocols and monitoring. To date, NMFS is not aware of site
characterization vessel from surveys reporting a ship strike within the
United States. When considered in the context of low overall
probability of any vessel strike by NEETMA vessels, given the limited
additional survey-related vessel traffic relative to existing traffic
in the survey area, the comprehensive visual monitoring, and other
additional mitigation measures described herein, NMFS believes these
measures are sufficiently protective to avoid ship strike. These
measures are described fully in the Mitigation section below, and
include, but are not limited to: Training for all vessel observers and
captains, daily monitoring of NARW Sighting Advisory System, WhaleAlert
app, and USCG Channel 16 for situational awareness regarding NARW
presence in the survey area, communication protocols if whales are
observed by any NEETMA personnel, vessel operational protocol should
any marine mammal be observed, and visual monitoring.
Comment 21: Oceana suggests that protected species observers (PSOs)
complement their survey efforts using additional technologies, such as
infrared detection devices when in low-light conditions.
NMFS response: NMFS agrees with Oceana regarding this suggestion
and a requirement to utilize a thermal (infrared) device during low-
light conditions was included in the proposed Federal Register notice.
That requirement is included as a requirement of the issued IHA.
Comment 22: Oceana suggests that NMFS require vessels maintain a
separation distance of at least 500 m from NARWs at all times.
NMFS response: NMFS agrees with Oceana regarding this suggestion
and a requirement to maintain a separation distance of at least 500 m
from NARWs at all times was included in the proposed Federal Register
notice and was included as a requirement in the issued IHA.
Comment 23: Oceana recommended that the IHA should require all
vessels supporting site characterization to be equipped with and using
Class A Automatic Identification System (AIS) devices at all times
while on the water. Oceana suggested this requirement should apply to
all vessels, regardless of size, associated with the survey.
NMFS response: NMFS is generally supportive of the idea that
vessels involved with survey activities be equipped with and using
Class A Automatic Identification System (devices) at all times while on
the water. Indeed, there is a precedent for NMFS requiring such a
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268,
December 7, 2018); however, those activities carried the potential for
much more significant impacts than the marine site characterization
surveys to be carried out by NEETMA, with the potential for both Level
A and Level B harassment take. Given the small isopleths and small
numbers of take authorized by this IHA, NMFS does not agree that the
benefits of requiring AIS on all vessels associated with the survey
activities outweighs and warrants the cost and practicability issues
associated with this requirement.
Comment 24: Oceana asserts that the IHA must include requirements
to hold all vessels associated with site characterization surveys
accountable to the IHA requirements, including vessels owned by the
developer, contractors, employees, and others regardless of ownership,
operator, and contract. They state that exceptions and exemptions will
create enforcement uncertainty and incentives to evade regulations
through reclassification and redesignation. They recommend that NMFS
simplify this by requiring all vessels to abide by the same
requirements, regardless of size, ownership, function, contract or
other specifics.
NMFS response: NMFS agrees with Oceana and required these measures
in the proposed IHA and final IHA. The IHA requires that a copy of the
IHA must be in the possession of NEETMA, the vessel operators, the lead
PSO, and any other relevant designees of NEETMA carrying out activities
subject to this IHA. The IHA also states that NEETMA must ensure that
the vessel operator and other relevant vessel personnel, including the
PSO team, are briefed on all responsibilities, communication
procedures, marine mammal monitoring protocols, operational procedures,
and IHA requirements prior to the start of survey activity, and when
relevant new personnel join the survey operations.
Comment 25: Oceana stated that the IHA must include a requirement
for all phases of the NEETMA's site characterization to subscribe to
the highest level of transparency, including frequent reporting to
Federal agencies, requirements to report all visual and acoustic
detections of NARWs and any dead, injured, or entangled marine mammals
to NMFS or the Coast Guard as soon as possible and no later than the
end of the PSO shift. Oceana states that to foster stakeholder
relationships and allow public engagement and oversight of the
permitting, the IHA should require all reports and data to be
accessible on a publicly available website
NMFS response: NMFS agrees with the need for reporting and indeed,
the MMPA calls for IHAs to incorporate reporting requirements. As
included in the proposed IHA, the final IHA includes requirements for
reporting that supports Oceana's recommendations.
[[Page 40809]]
NEETMA is required to submit a monitoring report to NMFS within 90 days
after completion of survey activities that fully documents the methods
and monitoring protocols, summarizes the data recorded during
monitoring, and describes, assesses and compares the effectiveness of
monitoring and mitigation measures. PSO datasheets or raw sightings
data must also be provided with the draft and final monitoring report.
Further the draft IHA and final IHA stipulate that if a NARW is
observed at any time by any survey vessels, during surveys or during
vessel transit, NEETMA must immediately report sighting information to
the NMFS North Atlantic Right Whale Sighting Advisory System and to the
U.S. Coast Guard, and that any discoveries of injured or dead marine
mammals be reported by Atlantic Shores to the Office of Protected
Resources, NMFS, and to the New England/Mid-Atlantic Regional Stranding
Coordinator as soon as feasible. All reports and associated data
submitted to NMFS are included on the website for public inspection.
Comment 26: Oceana recommends a shutdown requirement if a NARW or
other ESA-listed species is detected in the clearance zone as well as a
publically available explanation of any exemptions as to why the
applicant would not be able to shutdown in these situations.
NMFS response: There are several shutdown requirements described in
the Federal Register notice of the proposed IHA (87 FR 27575; May 9,
2022), and which are included in the final IHA, including the
stipulation that geophysical survey equipment must be immediately shut
down if any marine mammal is observed within or entering the relevant
Exclusion Zone while geophysical survey equipment is operational. There
is no exemption for the shutdown requirement. In regards to reporting,
NEETMA must notify NMFS if a NARW is observed at any time by any survey
vessels during surveys or during vessel transit. Additionally, NEETMA
is required to report the relevant survey activity information, such as
such as the 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.) as well as the estimated distance to an animal and its heading
relative to the survey vessel at the initial sighting and survey
activity information. We note that if a right whale is detected within
the Exclusion Zone before a shutdown is implemented, the right whale
and its distance from the sound source, including if it is within the
Level B harassment zone, would be reported in NEETMA's final monitoring
report and made publicly available on NMFS' website. NEETMA is required
to immediately notify NMFS of any sightings of NARWs and report upon
survey activity information. NMFS believes that these requirements
address the commenter's concerns.
Comment 27: Oceana recommended that when HRG surveys are allowed to
resume after a shutdown event, the surveys should be required to use a
ramp-up procedure to encourage any nearby marine life to leave the
area.
NMFS response: NMFS agrees with this recommendation and included in
the Federal Register notice of the proposed IHA (87 FR 27575; May 9,
2022) and in this final IHA, which includes a stipulation that, when
technically feasible, survey equipment must be ramped up at the start
or restart of survey activities. Operators must ramp up sources to half
power for 5 minutes and then proceed to full power. NMFS notes that
ramp-up would not be required for short periods where acoustic sources
were shut down (i.e., less than 30 minutes) if PSOs have maintained
constant visual observation and no detections of marine mammals
occurred within the applicable exclusion zone (EZ).
Comment 28: COA is concerned regarding the number of species that
could be impacted by the activities, as well as a lack of baseline data
being available for species in the area. In addition, COA has stated
that NMFS did not adequately address the potential for cumulative
impacts to bottlenose dolphins from Level B harassment over several
years of project activities.
NMFS response: We appreciate the concern expressed by COA. NMFS
utilizes the best available science when analyzing which species may be
impacted by an applicant's proposed activities. Based on information
found in the scientific literature, as well as based on density models
developed by Duke University, all marine mammal species included in the
proposed Federal Register notice have some likelihood of occurring in
NEETMA's survey areas. Furthermore, the MMPA requires us to evaluate
the effects of the specified activities in consideration of the best
scientific evidence available and, if the necessary findings are made,
to issue the requested take authorization. The MMPA does not allow us
to delay decision making in hopes that additional information may
become available in the future. Furthermore, NMFS notes that it has
previously addressed discussions on cumulative impact analyses in
previous comments and references COA back to these specific responses
in this notice.
Regarding the lack of baseline information cited by COA, with
specific concern pointed out for harbor seals, NMFS points towards two
sources of information for marine mammal baseline information: the
Ocean/Wind Power Ecological Baseline Studies, January 2008-December
2009 completed by the New Jersey Department of Environmental Protection
in July 2010 (https://dspace.njstatelib.org/xmlui/handle/10929/68435)
and the Atlantic Marine Assessment Program for Protected Species
(AMAPPS; https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected)
with annual reports available from 2010 to 2020 (https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species) that cover the areas across the
Atlantic Ocean. NMFS has duly considered this and all available
information.
Based on the information presented, NMFS has determined that no new
information has become available, nor do the commenters present
additional information, that would change our determinations since the
publication of the proposed notice.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of NEETMA's application summarize the 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' 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'
website (https://www.fisheries.noaa.gov/find-species).
Table 3 lists all species or stocks for which take is authorized
for this action, and summarizes information related to the species or
stock, including regulatory status under the MMPA and Endangered
Species Act (ESA) and potential biological removal (PBR), where known.
PBR is defined by the MMPA as the maximum number of animals, not
including natural mortalities, that may be removed from a marine mammal
stock while allowing that stock to reach or maintain its
[[Page 40810]]
optimum sustainable population (as described in NMFS' 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' 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 stocks managed under the MMPA in this region
are assessed in NMFS' U.S. Atlantic and Gulf of Mexico Marine Mammal
Stock Assessment Reports (SAR). NMFS has utilized the more recent SAR
information (in this case, the draft 2021 U.S. Atlantic and Gulf of
Mexico Marine Mammal SARs). All values presented in Table 3 are the
most recent available at the time of publication (including from the
draft 2021 SARs) and are available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments).
Table 3--Marine Mammal Species Likely To Occur Near the Project Area That May Be Affected by NEETMA's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA
status; Stock abundance (CV, Nmin, most recent Annual M/
Common name Scientific name Stock strategic (Y/ abundance survey) \2\ PBR SI \3\
N) \1\
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Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..... Eubalaena Western North E/D, Y 368 (0; 356; 2020) \5\.................. 0.8 18.6
glacialis. Atlantic.
Fin whale...................... Balaenoptera Western North E/D, Y 6,802 (0.24; 5,573; 2016)............... 11 2.35
physalus. Atlantic.
Humpback whale................. Megaptera Gulf of Maine..... -/-, Y 1,396 (0; 1,380; 2016).................. 22 12.15
novaengliae.
Minke whale.................... Balaenoptera Canadian East -/-, N 21,968 (0.31; 17,002; 2016)............. 170 10.6
acutorostrata. Coastal.
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale.................... Physeter North Atlantic.... E/D, Y 4,349 (0.28; 3,451; 2016)............... 3.9 0
macrocephalus.
Risso's dolphin................ Grampus griseus... Western North -/-, N 35,493 (0.19; 30,289; 2016)............. 303 54.3
Atlantic.
Long-finned pilot whale........ Globicephala melas Western North -/-, N 39,215 (0.3; 30,627; 2016).............. 306 21
Atlantic.
Short-finned pilot whale....... Globicephala Western North -/-, Y 28,924 (0.24; 23,637, 2016)............. 236 136
macrorhynchus. Atlantic.
Atlantic white-sided dolphin... Lagenorhynchus Western North -/-, N 93,233 (0.71; 54,443; 2016)............. 544 26
acutus. Atlantic.
Common dolphin................. Delphinus delphis. Western North -/-, Y 172,897 (0.21, 145,216, 2016)........... 526 399
Atlantic.
Common bottlenose dolphin...... Tursiops truncatus Western North -/-, N 62,851 (0.23; 51,914; 2016)............. 519 28
Atlantic--Offshor
e.
Western North -/D, Y 6,639 (0.41; 4,759; 2016)............... 48 12.2-21.5
Atlantic--Coastal
Migratory.
Atlantic spotted dolphin....... Stenella frontalis Western North -/-, N 39,921 (0.27; 32,032; 2016)............. 320 0
Atlantic.
Harbor porpoise................ Phocoena.......... Gulf of Maine/Bay -/-, N 95,543 (0.31; 74,034; 2016)............. 851 217
of Fundy.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal.................... Phoca vitulina.... Western North -/-, N 75,834 (0.15; 66,884; 2012)............. 2006 350
Atlantic.
Gray seal \4\.................. Halichoerus grypus Western North -/-, N 27,131 (0.19; 23,158; 2016)............. 1389 4,729
Atlantic.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 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: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV
is the coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
approximately 451,431. The annual M/SI value given is for the total stock.
\5\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for North Atlantic
right whales is now below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).
A detailed description of the species likely to be affected by
NEETMA's activities, including information regarding population trends
and threats, and local occurrence, were provided in the Federal
Register notice for the proposed IHA (87 FR 27575; May 9, 2022). Since
that time, we are not aware of any changes in the status of these
species and stocks or other relevant new information; therefore,
detailed descriptions are not provided here. Please refer to that
Federal Register notice for those descriptions.
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
[[Page 40811]]
(dB) threshold from the normalized composite audiograms, with the
exception for lower limits for low-frequency cetaceans where the lower
bound was deemed to be biologically implausible and the lower bound
from Southall et al. (2007) retained. Marine mammal hearing groups and
their associated hearing ranges are provided in Table 4.
Table 4--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
Generalized hearing range
Hearing group \1\
------------------------------------------------------------------------
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).
------------------------------------------------------------------------
\1\ 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.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the deployed acoustic sources
have the potential to result in behavioral harassment of marine mammals
in the vicinity of the study area. The Federal Register notice for the
proposed IHA (87 FR 27575; May 9, 2022) included a discussion of the
potential effects of the specified activity on marine mammals and their
habitat, therefore that information is not repeated here; please refer
to the Federal Register notice (87 FR 27575; May 9, 2022) for that
information.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through the 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).
For this IHA, authorized takes are 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 produced
by the acoustic sources planned for use, Level A harassment is neither
anticipated (even absent mitigation), nor authorized. Consideration of
the anticipated effectiveness of the measures (i.e., exclusion zones
and shutdown measures), discussed in detail below in the Mitigation
section, further strengthens the conclusion that Level A harassment is
not a reasonably anticipated outcome of the survey activity.
Furthermore and as previously described, no serious injury or mortality
is anticipated or 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 density or
occurrence of marine mammals within these ensonified areas; and, (4)
the number of days of activities. We note that while these factors can
contribute to a basic calculation to provide an initial prediction of
takes, additional information that can qualitatively inform take
estimates is also sometimes available (e.g., previous monitoring
results or average group size). Below, we describe the factors
considered here in more detail and present the authorized take numbers.
Acoustic Thresholds
NMFS uses acoustic thresholds that identify the received level of
underwater sound above which exposed marine mammals will 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--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). NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals may
be behaviorally harassed (i.e., Level B harassment) when exposed to
underwater anthropogenic noise above received levels of 160 dB re 1
[mu]Pa (rms) for the impulsive sources (i.e., boomers, sparkers) and
non-impulsive, intermittent sources (e.g., CHIRP SBPs) evaluated here
for NEETMA's survey activities.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). For more
information, see
[[Page 40812]]
NMFS' 2018 Technical Guidance, which may be accessed at
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
NEETMA's survey activities include the use of impulsive (i.e.,
sparkers and boomers) and non-impulsive, intermittent (e.g., CHIRP SBP)
sources. These can be found in Table 2.
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 estimating the
extent of the Level B harassment isopleths associated with relevant HRG
survey equipment (NMFS, 2020). This methodology incorporates frequency
and directionality to refine estimated ensonified zones. For acoustic
sources that operate with different beamwidths, the maximum beamwidth
was used, and the lowest frequency of the source was used when
calculating the frequency-dependent absorption coefficient.
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described previously to estimate isopleth distances to
harassment thresholds. In cases when the source level for a specific
type of HRG equipment is not provided in Crocker and Fratantonio
(2016), NMFS recommends that either the source levels provided by the
manufacturer be used, or, in instances where source levels provided by
the manufacturer are unavailable or unreliable, a proxy from Crocker
and Fratantonio (2016) be used instead. Refer back to Table 2 to see
the HRG equipment types that may be used during the planned surveys and
the source levels associated with those HRG equipment types. Table 5
depicts the estimated Level B harassment isopleths for each acoustic
source.
Table 5--Distances to Level B Harassment Threshold (160 dB rms)
------------------------------------------------------------------------
Distance to
Level B
Equipment category HRG equipment harassment
threshold in
meters (m)
------------------------------------------------------------------------
Shallow SBPs.............. ET 216 CHIRP................ 9
ET 424 CHIRP................ 4
GeoPulse 5430............... 21
TB CHIRP III................ 48
Medium SBPs............... AA, triple plate S-Boom (700- 34
1,000 J).
AA, Dura-spark UHD (500 J/ 141
400 tip.
AA, Dura-spark UHD 400+400.. 141
GeoMarine Geo Spark 2000 141
(400 tip).
------------------------------------------------------------------------
Results of modeling using the methodology described previously
indicated that, of the HRG survey equipment planned for use by NEETMA
that has the potential to result in Level B harassment of marine
mammals, the Applied Acoustics Dura-Spark UHDs and GeoMarine Geo-Source
sparkers will produce the largest Level B harassment isopleth (141 m).
Estimated Level B harassment isopleths for all sources evaluated here,
including the sparkers, are provided in Table 5. Although NEETMA does
not expect to use sparker sources on all planned survey days, it
assumed, for purposes of analysis, that the sparker will be used on all
survey days. This is a conservative approach, as the actual sources
used on individual survey days may produce smaller harassment
distances.
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 and the Marine-life Data and Analysis
Team, based on the best available marine mammal data from 1992-201
obtained in a collaboration between Duke University, the Northeast
Regional Planning Body, the University of North Carolina Wilmington,
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et
al., 2016a; Curtice et al., 2018), represent the best available
information regarding marine mammal densities in the survey area. More
recently, these data have been updated with new modeling results and
include density estimates for pinnipeds (Roberts et al., 2016b, 2017,
2018).
The density data presented by Roberts et al. (2016b, 2017, 2018,
2020) incorporates aerial and shipboard line-transect survey data from
NMFS and other organizations and incorporates data from eight
physiographic and 16 dynamic oceanographic and biological covariates,
and controls 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., 2016a). 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/ 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., 2016b, 2017,
2018, 2020). The updated models incorporate additional sighting data,
including sightings from NOAA's Atlantic Marine Assessment Program for
Protected Species (AMAPPS) surveys.
For the exposure analysis, marine mammal density data from Roberts
et al. (2016a, 2016b, 2017, 2018, 2020, 2021a, 2021b) were mapped for
the survey area using a geographic information system (GIS). NEETMA
used all 10 x 10 km (6.2 x 6.2 mile) grid cells (5 x 5 km (3.1 x 3.1
mile) for the North Atlantic right whale) where the centroid was within
each survey area in developing estimated density values for each
species. For data in which the Roberts et al. data does not provide
outputs at the species level (i.e., pilot whale spp. and pinnipeds) the
single annual density was used. For all other species, the monthly
densities were used to
[[Page 40813]]
yield the average annual density. Bottlenose dolphin density estimates
were also divided based on the specified stock.
In the Roberts et al. (2016b, 2017, 2018) models, species-specific
delineations were not made for some marine mammals, including some
pinniped species' (harbor seal and gray seal) and for pilot whale spp.
(long-finned and short-finned). For pilot whales, both species are
known to share similar habitat in the Project area, feed on similar
prey, and have overlapping distributions (Mintzer et al., 2008; Rone
and Pace, 2012). Hayes et al. (2017) noted a particular overlap between
the two species between New Jersey and George's Bank. Furthermore, due
to their similar appearances at sea and difficulty in distinguishing
species-specific characteristics, observers are likely to combine
sightings of pilot whales (Waring, 1993; Rone and Pace, 2012; Stepanuk
et al., 2018).
Regarding the pinniped species, because the seasonality, feeding
preferences, and habitat use by gray seals often overlaps with that of
harbor seals in the survey areas, it was assumed that modeled takes of
seals could occur to either of the respective species.
As discussed in the application, the single annual density for each
marine mammal group (pilot whale spp. and pinnipeds) was applied and
the results were divided between each species, resulting in an equal
split based on the lack of evidence to support a different allocation.
For the bottlenose dolphin densities, Roberts et al. (2016b, 2017,
2018) does not differentiate by stock. The Western North Atlantic
northern migratory coastal stock is generally expected to occur only in
coastal waters from the shoreline to approximately the 20-m (65-ft)
isobath (Hayes et al., 2018). Both of these stocks have the potential
to occur in the Northern and Southern survey areas. To account for the
potential for mixed stocks within the survey areas, the densities of
the two stocks were apportioned based on the 20-m isobaths contour. Any
grid cells in the Roberts et al. data that feel entirely inshore of the
20-m isobaths were assigned to the coastal migratory stock. Any grid
cells that fell outside this 20-m isobaths were apportioned to the
offshore stock.
Densities from both of the survey sites were averaged annually to
provide a density estimate for each species; please see Table 6 for
density values used in the exposure estimation process. Additional data
regarding average group sizes from survey effort in the region was
considered to ensure adequate take estimates are evaluated.
Table 6--Maximum Seasonal Marine Mammal Densities (Number of Animals per 100 km\2\) in the Northern and Southern
Survey Areas
----------------------------------------------------------------------------------------------------------------
Mean annual density (number
of animals/100km\2\) \a\
Species groups Marine mammal species Stock -------------------------------
Northern Southern
survey area survey area
----------------------------------------------------------------------------------------------------------------
Cetaceans......................... North Atlantic right Western North 0.169 0.102
whale. Atlantic.
Fin whale............ Western North 0.154 0.058
Atlantic.
Sperm whale.......... North Atlantic....... 0.017 0.002
Humpback whale....... Gulf of Maine........ 0.042 0.040
Common minke whale... Canadian East Coast.. 0.044 0.010
Risso's dolphin...... Western North 0.014 0.001
Atlantic.
Long-finned pilot Western North 0.108 0.005
whale. Atlantic.
Short-finned pilot Western North 0.108 0.005
whale. Atlantic.
Atlantic white-sided Western North 0.836 0.092
dolphin. Atlantic.
Common dolphin (short- Western North 5.692 0.739
beaked). Atlantic.
Common bottlenose Western North 2.616 8.158
dolphin. Atlantic--Offshore.
Western North 14.203 33.409
Atlantic--Coastal
Migratory.
Atlantic spotted Western North 0.129 0.004
dolphin. Atlantic.
Harbor porpoise...... Gulf of Maine/Bay of 3.012 0.874
Fundy.
Pinnipeds......................... Harbor seal.......... Western North 1.690 1.226
Atlantic.
Gray seal............ Western North 1.690 1.226
Atlantic.
----------------------------------------------------------------------------------------------------------------
\a\ All density data was derived from Roberts et al. (2016a, 2016b, 2017, 2018, 2020, 2021a, 2021b).
Take Calculation and Estimation
Here we describe how the information provided previously is brought
together to produce a quantitative take estimate.
In order to estimate the number of marine mammals predicted to be
exposed to sound levels that will result in harassment, radial
distances to predicted isopleths corresponding to Level B harassment
thresholds are calculated, as described previously. The maximum
distance (i.e., 141 m distance associated with the Medium SBPs) to the
Level B harassment criterion and the estimated distance traveled per
day by a given survey vessel (i.e., 62 km (38.5 mi)) are then used to
calculate the daily ensonified area, or zone of influence (ZOI) around
the survey vessel.
NEETMA estimates that the surveys will achieve a maximum daily
track line distance of 62 km per day (24-hour period). This distance
accounts for the vessel traveling at approximately 4-knots and accounts
for non-active survey periods. Based on the maximum estimated distance
to the Level B harassment threshold of 141 m (refer back to Table 5)
and the maximum estimated daily track line distance of 62 km across
both survey sites, an area of 5,183.97 km\2\ will be ensonified to the
Level B harassment threshold during NEETMA's surveys (Table 7) based on
the following formula:
Mobile Source ZOI = (Distance/day x 2r) + pr2
Where: Distance/day = the maximum distance a survey vessel could
travel in a 24-hour period; and r = the maximum radial distance from
a given sound source to the NOAA Level B harassment thresholds.
[[Page 40814]]
Table 7--ZOI for Each Type of Representative HRG Survey Equipment
----------------------------------------------------------------------------------------------------------------
Largest
harassment Distance/day in
Equipment type isopleth in km km ZOI (km\2\)
(m); r
----------------------------------------------------------------------------------------------------------------
Shallow SBP............................................ 0.048 (48) 62 5.98
Medium SBP (sparker)................................... 0.141 (141) ................. 17.61
----------------------------------------------------------------------------------------------------------------
These calculated ZOIs were than input to yield the total ensonified
area per day (in km\2\), as shown in Table 8 below.
Table 8--HRG Survey Area Distances for NEETMA's Project
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
HRG survey equipment type Specific equipment used Largest Survey Calculated
harassment distances ZOI per day
isopleth; per day (km\2\)
r (km) (km)\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shallow SBP.......................... TB CHIRP III 0.048 62 5.98
-------------------------------------------------------------------
Medium (SBP)......................... AA, Dura-spark UHD (500 AA, Dura-spark UHD GeoMarine Geo .............. 0.141 17.61
J/400 tip). 400+400. Spark 2000
(400 tip)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Assumes 24-hours of survey activity during the Project.
As described previously, this is a conservative estimate as it
assumes the HRG source that results in the greatest isopleth distance
to the Level B harassment threshold will be operated at all times
during the entire survey, which may not ultimately occur.
The number of marine mammals expected to be incidentally taken per
day is then calculated by estimating the number of each species
predicted to occur within the daily ensonified area (animals/km\2\),
incorporating the maximum seasonal estimated marine mammal densities as
described previously. Estimated numbers of each species taken per day
across both survey sites are then multiplied by the total number of
survey days (i.e., 320). The product is then rounded, to generate an
estimate of the total number of instances of harassment expected for
each species over the duration of the survey. A summary of this method
is illustrated in the following formula with the resulting authorized
take of marine mammals shown in Table 9:
Estimated Take = D x ZOI x # of days
Where: D = average species density (per km\2\); and ZOI = maximum
daily ensonified area to relevant thresholds.
Table 9--Total Authorized Takes by Level B Harassment and Percent of Population/Stock for NEETMA's Project
----------------------------------------------------------------------------------------------------------------
Calculated level B take Authorized level B take
---------------------------------------------------------------
Marine mammal species Stock Northern Southern Total
survey area survey area authorized \a\ % stock \c\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale.... Western North 7.40 0.83 8 2.17
Atlantic.
Fin whale..................... Western North 6.73 0.47 7 0.10
Atlantic.
Sperm whale................... North Atlantic.. 0.73 0.02 3 0.07
Humpback whale................ Gulf of Maine... 1.83 0.33 3 (6) \b\ 0.21 (0.43)
\b\
Common minke whale............ Canadian East 1.92 0.08 2 0.01
Coast.
Risso's dolphin............... Western North 0.62 0.01 30 0.09
Atlantic.
Long-finned pilot whale....... Western North 4.72 0.04 20 0.05
Atlantic.
Short-finned pilot whale...... Western North 4.72 0.04 20 0.07
Atlantic.
Atlantic white-sided dolphin.. Western North 36.52 0.76 37 0.04
Atlantic.
Common dolphin (short-beaked). Western North 248.52 6.04 255 0.15
Atlantic.
Common bottlenose dolphin..... Western North 53.88 9.27 63 0.10
Atlantic--Offsh
ore.
Western North 325.25 235.27 561 8.45
Atlantic--Coast
al Migratory.
Atlantic spotted dolphin...... Western North 5.61 0.03 100 0.25
Atlantic.
Harbor porpoise............... Gulf of Maine/ 131.51 7.15 139 0.15
Bay of Fundy.
Harbor seal................... Western North 73.77 10.02 84 0.14
Atlantic.
Gray seal..................... Western North 73.77 10.02 84 0.31
Atlantic.
----------------------------------------------------------------------------------------------------------------
\a\ All of these values were requested by NEETMA, with exception for the value in parenthesis found for humpback
whales.
\b\ The values in parenthesis were a proposed adjustment by NMFS based on a proposed adjustment to account for
higher recorded occurrences of humpback whales in the New York Bight area (see King et al., 2021).
\c\ Calculated percentages of population/stock were based on the population estimates (Nest) found in the NMFS's
draft 2021 U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment on NMFS's website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports).
[[Page 40815]]
Adjustments were made for sperm whales (Barkaszi and Kelly, 2019),
Risso's dolphin (Baird et al., 1991; Barkaszi and Kelly, 2019), pilot
whales spp. (CETAP, 1982), and Atlantic spotted dolphins (Jefferson et
al., 2008) based on typical group sizes due to estimated takes lower
than the predicted group size. The take numbers shown in Table 9
represent those originally calculated and requested by NEETMA with
minor modifications adjusted by NMFS for one species.
Based on recent information from King et al. (2021) that
demonstrated that the humpback whale is commonly sighted along the New
York Bight area, NMFS determined that the humpback whale take request
may be too low given the occurrence of animals near the survey area.
Because of this, NMFS has increased the requested take to account for
underestimates to the actual occurrence of this species within the
density data.
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 and impact on
operations.
Mitigation for Marine Mammals and Their Habitat
NMFS requires that the following mitigation measures be implemented
during NEETMA's marine site characterization surveys. Pursuant to
Section 7 of the ESA, NEETMA will also be required to adhere to
relevant Project Design Criteria (PDC) of the NMFS' Greater Atlantic
Regional Fisheries Office (GARFO) programmatic consultation
(specifically PDCs 4, 5, and 7) regarding geophysical surveys along the
U.S. Atlantic coast (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 EZs will be established around the HRG survey
equipment and monitored by NMFS-approved PSOs:
500 m EZ for North Atlantic right whales during use of
specified acoustic sources (sparkers, boomers, and non-parametric sub-
bottom profilers).
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 will 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 will be established around the HRG
survey equipment and monitored by PSOs:
500 m for all ESA-listed marine mammals; and,
100 m for all other marine mammals.
NEETMA will implement a 30-minute pre-start clearance period prior
to the initiation of ramp-up of specified HRG equipment (see exception
to this requirement in the Shutdown Procedures section below). During
this period, clearance zones will be monitored by the PSOs, using the
appropriate visual technology. Ramp-up may not be initiated if any
marine mammal(s) is within its respective clearance zone. If a marine
mammal is observed within a clearance zone during the pre-start
clearance period, ramp-up may not begin until the animal(s) has been
observed exiting its respective exclusion zone or until an additional
time period has elapsed with no further sighting (i.e., 15 minutes for
small odontocetes and seals, and 30 minutes for all other species).
Ramp-Up of Survey Equipment
A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
acoustic source when technically feasible. The ramp-up procedure will
be used at the beginning of HRG survey activities in order to provide
additional protection to marine mammals near the 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 seals 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 will be
required if a marine mammal is sighted entering or 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 operator 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 harbor porpoise, 30 minutes for all other species).
[[Page 40816]]
If a species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
Level B harassment zone (refer back to Table 5), shutdown will 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 PSOs 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 will 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. 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), however, these procedure will be required for
non-parametric sub-bottom profilers (e.g., CHIRPs).
Vessel Strike Avoidance
NEETMA must adhere to the following measures except in the case
where compliance will 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 to
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.
Members of the monitoring team will consult NMFS North
Atlantic right whale reporting system and WhaleAlert (http://www.whalealert.org), 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 survey vessels, regardless of size, must observe a 10-
kn (5.14 m/s) speed restriction in specific 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;
All vessels greater than or equal to 19.8 m in overall
length operating from November 1 through April 30 will operate at
speeds of 10 kn (5.14 m/s) or less at all times;
All vessels must reduce their speed to 10 kn (5.14 m/s) or
less when mother/calf pairs, pods, or large assemblages of cetaceans
are 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 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 measures, as well as
other measures considered by NMFS, we have determined that the required
mitigation measures provide the means of effecting 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.
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
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).
[[Page 40817]]
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).
Mitigation and monitoring effectiveness.
Monitoring Measures
Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. NEETMA will 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, specific duties in support of approved, independent PSOs
on smaller vessels with limited crew capacity 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) will ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and will 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 observation per 24-hr
period. In cases where multiple vessels are surveying concurrently, any
observations of marine mammals will 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 will be used. Position data will 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 will 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 will be relayed to
the PSO team. Data on all PSO observations will be recorded based on
standard PSO collection requirements. This will 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, behavior); and details of any observed marine mammal
behavior that occurs (e.g., noted behavioral disturbances).
Reporting Measures
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a draft 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. A final report must be submitted within 30 days
following resolution of any comments on the draft report. All draft and
final marine mammal and acoustic monitoring reports must be submitted
to [email protected],[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 name;
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-start
clearance survey, ramp-up, shutdown, end of operations, etc.).
[[Page 40818]]
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, NEETMA 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 NEETMA personnel discover an injured or dead
marine mammal, NEETMA will report the incident to the NMFS Office of
Protected Resources (OPR) and the NMFS New England/Mid-Atlantic
Stranding Coordinator (978-282-8478 or 978-281-9291) as soon as
feasible. The report will 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 the activities covered by the IHA, NEETMA will
report the incident to the NMFS OPR and the NMFS New England/Mid-
Atlantic Stranding Coordinator (978-282-8478 or 978-281-9291) as soon
as feasible. The report will 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 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 the species listed
in Table 3 given that NMFS expects the anticipated effects of the
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 will occur as a result from
HRG surveys, even in the absence of mitigation, and no serious injury
or mortality is authorized.
As discussed in the Potential Effects of Specified Activities on
Marine Mammals and their Habitat section of the proposed Federal
Register notice (87 FR 27575; May 9, 2022), non-auditory physical
effects and vessel strike are not expected to occur. NMFS expects that
all potential takes will be in the form of short-term Level B
behavioral harassment in the form of temporary avoidance of the area or
decreased foraging (if such activity were occurring), reactions that
are considered to be of low severity and with no lasting biological
consequences (e.g., Southall et al., 2007). Even repeated Level B
harassment of some small subset of an
[[Page 40819]]
overall stock is unlikely to result in any significant realized
decrease in viability for the affected individuals, and thus will not
result in any adverse impact to the stock as a whole. As described
previously, Level A harassment is not expected to occur given the
nature of the operations and the estimated size of the Level A
harassment zones.
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141 m. Although this distance is assumed
for all survey activities in estimating take numbers and evaluated
here, in reality much of the survey activity will involve use of non-
impulsive acoustic sources with a reduced acoustic harassment zone of
48 m, producing expected effects of particularly low severity.
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 survey area and
there are no feeding areas known to be biologically important to marine
mammals within the survey area. There is no designated critical habitat
for any ESA-listed marine mammals in the survey area.
North Atlantic Right Whales
The status of the North Atlantic right whale population is of
heightened concern and, therefore, merits additional analysis. As noted
previously, elevated North Atlantic right whale 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.
As noted previously, the survey area overlaps a migratory corridor BIA
for North Atlantic right whales. Due to the fact that the survey
activities are temporary and the spatial extent of sound produced by
the survey will 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 survey. Given the relatively small size
of the ensonified area, it is unlikely that prey availability will 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 NEETMA's
activities. Additionally, only very limited take by Level B harassment
of North Atlantic right whales has been requested and is authorized by
NMFS, as HRG survey operations are required to maintain a 500 m EZ and
shutdown if a North Atlantic right whale 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
acoustic source (i.e., sparker) 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 due to the small
PTS zones associated with HRG equipment types planned for use. NMFS
does not anticipate North Atlantic right whales takes that will result
from NEETMA's survey activities will impact annual rates of recruitment
or survival. Thus, any takes that occur will not result in population
level impacts.
Other Marine Mammal Species With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of NEETMA's 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.
The required mitigation measures are expected to reduce the number
and/or severity of takes for all species listed in Table 3, including
those with active UMEs, to the level of least practicable adverse
impact. In particular they will 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 authorized
for this Project.
NMFS expects that takes will 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 will only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures will
further reduce exposure to sound that could result in more severe
behavioral harassment.
Biologically Important Areas for Other Species
As previously discussed, impacts from the Project are expected to
be localized to the specific area of activity and only during periods
of time where NEETMA's acoustic sources are active. While areas of
biological importance to fin whales, humpback whales, and harbor seals
can be found off the coast of New Jersey and New York, NMFS does not
expect this action to affect these areas. These important areas are
found outside of the range of this survey area, as is the case with fin
whales and humpback whales (BIAs found further north), and, therefore,
not expected to be impacted by NEETMA's survey activities.
There are three major haul-out sites exist for harbor seals along
New Jersey, including at Great Bay, Sand Hook, and Barnegat Inlet
(CWFNJ, 2015). As hauled out seals will be out of the water, no in-
water effects are expected.
Determinations
In summary and as described previously, the following factors
primarily support our determination that the impacts resulting from
this activity are not expected to adversely
[[Page 40820]]
affect the species or stock through effects on annual rates of
recruitment or survival:
No mortality or serious injury is anticipated or will be
authorized;
No Level A harassment is anticipated, even in the absence
of mitigation measures, or authorized;
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 by 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 will occur in such
a comparatively small area such that any avoidance of the survey area
due to activities will 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 required 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 required mitigation,
monitoring, and reporting measures, NMFS finds that the total marine
mammal take from NEETMA's survey activities will have a negligible
impact on all affected marine mammal species or stocks.
Small Numbers
As noted previously, 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.
NMFS proposes to authorize incidental take of 15 marine mammal
species (with 16 managed stocks). The total amount of takes authorized
relative to the best available population abundance is less than 8.5
percent for each stock which NMFS finds are small numbers of marine
mammals relative to the estimated overall population abundances for
those stocks (Table 3).
Based on the analysis of the specified activity contained herein
and in our Notice proposing issuance of the IHA (including the required
mitigation and monitoring measures) and the anticipated take of marine
mammals, NMFS finds that small numbers of marine mammals will be taken
relative to the population size of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks will not
have an unmitigable adverse impact on the availability of such species
or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the 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 is authorizing the incidental take of four species of marine
mammals which are listed under the ESA, including the North Atlantic
right, fin, sei, and sperm whale, and has determined that these
activities fall within the scope of activities analyzed in GARFO's
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021). The consultation
concluded that NMFS' authorization of take incidental to these types of
activities under the MMPA is not likely to adversely affect ESA-listed
marine mammals.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our action (i.e., the issuance of an IHA) with respect
to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for 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 will
preclude this categorical exclusion. Accordingly, NMFS has determined
that the issuance of the final IHA qualifies to be categorically
excluded from further NEPA review.
Authorization
As a result of these determinations, NMFS has issued an IHA to
NEETMA for conducting site characterization surveys off New Jersey from
July 1, 2022 through June 30, 2023, provided the previously mentioned
mitigation, monitoring, and reporting requirements are incorporated.
The final IHA and NEETMA's IHA application can be found on NMFS'
website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-nextera-energy-transmission-midatlantic-holdings-llc-marine.
Dated: July 5, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-14569 Filed 7-7-22; 8:45 am]
BILLING CODE 3510-22-P