[Federal Register Volume 87, Number 196 (Wednesday, October 12, 2022)]
[Notices]
[Pages 61575-61590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22150]
[[Page 61575]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC326]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys in the Area of Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf (OCS) Lease
Areas OCS-A 0486, 0487, and 0500
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 (IHA) to
Orsted Wind Power North America LLC (Orsted) to incidentally harass, by
Level B harassment only, marine mammals during marine site
characterization surveys offshore from Rhode Island to Massachusetts,
including the areas of Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf Lease Areas
OCS-A 0486, 0487, 0500, and along potential export cable routes (ECR)s
to landfall locations between Raritan Bay and Falmouth, MA.
DATES: This authorization is effective for one year from the date of
issuance.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, 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: www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act-other-energy-activities-renewable. 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 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 April 19, 2022, NMFS received a request from Orsted for an IHA
to take small numbers of marine mammals incidental to marine site
characterization surveys in federal waters located in the OCS
Commercial Lease Areas off the coasts from Rhode Island to
Massachusetts, and along potential ECRs to landfall locations between
Raritan Bay (part of the New York Bight) and Falmouth, Massachusetts.
Following NMFS' review of the draft application, a revised version was
submitted on July 8, 2022. The application was deemed adequate and
complete on August 3, 2022. Orsted's request is for take of 16 species
of marine mammals (consisting of 16 stocks) by Level B harassment only.
Neither Orsted nor NMFS expect serious injury or mortality to result
from this activity and, therefore, an IHA is appropriate.
NMFS previously issued IHAs and a renewal IHA to Orsted for marine
site characterization HRG surveys in the OCS-A 0486, 0487, and 0500
Lease Areas (84 FR 52464, October 2, 2019; 85 FR 63508, October 8,
2020; 87 FR 13975, March 11, 2022). Orsted complied with all the
requirements (e.g., mitigation, monitoring, and reporting) of the
previous IHAs and information regarding their monitoring results may be
found in the Effects of the Specified Activity on Marine Mammals and
their Habitat section in the proposed Federal Register notice (87 FR
52515). There are no changes from the proposed IHA to the final IHA.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations to further reduce
the likelihood of mortalities and serious injuries to endangered right
whales from vessel collisions, which are a leading cause of the
species' decline and a primary factor in an ongoing Unusual Mortality
Event (87 FR 46921). Should a final vessel speed rule be issued and
become effective during the effective period of this IHA (or any other
MMPA incidental take authorization), the authorization holder would be
required to comply with any and all applicable requirements contained
within the final rule. Specifically, where measures in any final vessel
speed rule are more protective or restrictive than those in this or any
other MMPA authorization, authorization holders would be required to
comply with the requirements of the rule. Alternatively, where measures
in this or any other MMPA authorization are more restrictive or
protective than those in any final vessel speed rule, the measures in
the MMPA authorization would remain in place. These changes would
become effective immediately upon the effective date of any final
vessel speed rule and would not require any further action on NMFS's
part.
Description of Authorized Activity
Overview
Orsted plans to conduct HRG surveys in the Lease Areas OCS-A 0486,
0487, 0500 and ECR Area in federal and state waters from New York to
Massachusetts to support the characterization of the existing seabed
and subsurface geological conditions, which is necessary for the
development of an offshore electric transmission system. The project
will use active acoustic sources, including some with potential to
result in the incidental take of marine mammals by Level B harassment.
This take of marine mammals is anticipated to be in the form of
behavioral harassment only. In-water work will include approximately
400 survey days using multiple vessels for a period of one year.
Dates and Duration
As described above, HRG surveys are expected to consist of
approximately 400 survey days (Table 1) over the course of one year.
Orsted plans to conduct continuous HRG survey operations 12-hours per
day and 24-
[[Page 61576]]
hours per day using multiple vessels. A survey day is defined as a 24-
hour activity day in which an assumed number of line kilometer (km) are
surveyed. The number of anticipated survey days was calculated as the
number of days needed to reach the overall level of effort required to
meet survey objectives assuming any single vessel covers, on average 70
line kilometer (km) per 24-hour operations. A survey day accounts for
multiple vessels such that two vessels operating within one 24-hour
period equates to two survey days. A maximum of three vessels will work
concurrently in the project area in any combination of 24-hour and 12-
hour vessels. To be conservative, our exposure analysis assumes daily
24-hour operations. Although vessels may complete 20-80 km/day of
actual source operations, we anticipate that vessels will average 70
line km of active sources assumed to potentially cause take of marine
mammals per day. As shown by Table 1, the estimated number of survey
days varies by Lease Area and ECR.
Table 1--Number of Survey Days for Each Lease Area and ECR
------------------------------------------------------------------------
Total number
Area of survey days
\1\
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OCS-A-0486.............................................. 10
OCA-A-0487.............................................. 10
OCS-A-0500.............................................. 200
ECR..................................................... 180
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Total............................................... 400
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\1\ Up to three total survey vessels may be operating within both of the
survey areas concurrently.
Specific Geographic Region
Orsted's survey activities will occur in the Lease Areas located
approximately 14 miles (22.5 km) south of Martha's Vineyard,
Massachusetts at its closest point to land, as well as along potential
export cable route (ECR) corridors off the coast of New York,
Connecticut, Rhode Island, and Massachusetts to landfall locations
between Raritan Bay and Falmouth, MA, as shown in Figure 1. Water
depths in the project area extend out from shoreline to approximately
90 m in depth.
[GRAPHIC] [TIFF OMITTED] TN12OC22.003
Orsted plans to conduct HRG survey operations, including multibeam
depth sounding, seafloor imaging, and shallow and medium penetration
sub-bottom profiling. The HRG surveys will include the use of seafloor
mapping equipment with operating frequencies above 180 kilohertz (kHz)
(e.g., side-scan sonar (SSS), multibeam echosounders (MBES));
magnetometers and gradiometers that have no acoustic output; and
shallow- to medium-penetration sub-bottom profiling (SBP) equipment
(e.g., parametric sonars, compressed high-intensity radiated pulses
(CHIRPs), boomers, sparkers) with operating frequencies below 180
kilohertz (kHz). No deep-penetration SBP surveys (e.g., airgun or
bubble gun surveys) will be conducted. A detailed description of the
planned HRG surveys is provided in the Federal Register notice for the
proposed IHA (87 FR 52515; August 26, 2022). Since that time, no
changes have been made to the planned HRG survey activities. Therefore,
a detailed description is not provided here. Please refer to that
Federal Register notice for the description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Orsted was published
in the
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Federal Register on August 26, 2022 (87 FR 52515), initiating a 30-day
public comment period. The proposed notice described, in detail,
Orsted'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.
During the 30-day public comment period, NMFS received one comment
from a private citizen that did not provide relevant information to
NMFS' decision, and one comment letter from Responsible Offshore
Development Alliance (RODA). A summary of comments from RODA and NMFS'
responses is provided below; the letter is available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-marine-site-0. Please review the letter
for full details regarding the comments and underlying justification.
Comment 1: RODA states that, to their knowledge, there are no
resources easily accessible to the public to understand what
authorizations are required for each of these activities (pre-
construction surveys, construction, operations, monitoring surveys,
etc.). RODA recommends that NMFS improve the transparency of this
process and move away from what it refers to as a ``segmented phase-by-
phase and project-by-project approach to IHAs.''
NMFS' response: The MMPA, and its implementing regulations, allows,
upon request, the incidental take of small numbers of marine mammals by
U.S. citizens who engage in a specified activity (other than commercial
fishing) within a specified geographic region. NMFS responds to these
requests by authorizing the incidental take of marine mammals if it is
found that the taking would be of small numbers, have no more than a
``negligible impact' on the marine mammal species or stock, and not
have an ``unmitigable adverse impact'' on the availability of the
species or stock for subsistence use. NMFS emphasizes that an IHA does
not authorize the activity itself but authorizes the take of marine
mammals incidental to the ``specified activity'' for which incidental
take coverage is being sought. In this case, NMFS is responding to the
applicant, Orsted, and the specified activity described in their
application and making necessary findings on the basis of what was
provided in their application. The authorization of Orsted's activity
(note, not the authorization of takes incidental to that activity) is
not within the jurisdiction of NMFS. NMFS refers RODA to the Permitting
Dashboard for Federal Infrastructure Projects for further information
on timelines and proposed authorizations planned for application for
each of these activities: https://www.permits.performance.gov/.
NMFS is required to consider applications upon request. To date,
NMFS has not received any joint applications. 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 (see 85 FR 63508, October 8, 2020; 87
FR 13975, March 11, 2022), this is not applicable in this case. 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.
Comment 2: RODA expressed concern regarding the potential for
increased uncertainty in estimates of marine mammal abundance resulting
from wind turbine presence during aerial surveys and potential effects
of NMFS' ability to continue using current aerial survey methods to
fulfill its mission of precisely and accurately assessing protected
species.
NMFS' response: NMFS has determined that offshore wind development
projects may impact several surveys carried out by its Northeast
Fisheries Science Center (NEFSC), including aerial surveys for
protected species. NEFSC has developed a federal survey mitigation
program to mitigate the impacts to these surveys, and is in the early
stages of implementing this program. However, this impact is outside
the scope of analysis related to the authorization of take incidental
to Orsted's specified activity under the MMPA.
Comment 3: RODA expressed concerns with the high amount of
increased vessel traffic associated with the OSW projects throughout
the region in areas transited or utilized by certain protected
resources, as well as concern for vessel noise.
NMFS' response: Orsted did not request authorization for take
incidental to vessel traffic during Orsted's marine site
characterization survey. 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 Orsted were to strike a marine mammal
with a vessel, this would be an unauthorized take and be in violation
of the MMPA. This gives Orsted 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. Orsted proposed
a very conservative suite of mitigation measures related to vessel
strike avoidance, including measures specifically designed to avoid
impacts to North Atlantic right whales. Section 4(g) 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 any site characterization vessel from
surveys reporting a vessel strike within the United States. When
considered in the context of low overall probability of any vessel
strike by Orsted 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 North Atlantic right whale Sighting Advisory System,
WhaleAlert app, and USCG Channel 16 for situational awareness regarding
North Atlantic right whale presence in the survey area, communication
protocols if whales are observed by any Orsted personnel, vessel
operational protocol should any marine mammal be observed, and visual
monitoring.
The potential for impacts related to an overall increase in the
amount of vessel traffic due to OSW development is separate from the
aforementioned analysis of potential for vessel strike during Orsted's
specified survey activities.
Comment 4: RODA defers to the Marine Mammal Commission's previous
comments on the matter of effects on marine mammals from offshore wind
development, expressing that ``they are more knowledgeable on impacts
of pile driving and acoustics to marine mammals''.
NMFS' response: In response to RODA's deferral to the Marine Mammal
Commission, the Commission, the agency charged with advising federal
agencies on the impacts of human activity on marine mammals, has
questioned in its previous public comment whether incidental take
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authorizations are even necessary for surveys utilizing HRG equipment
(i.e., take is unlikely to occur), and has subsequently informed NMFS
that they would no longer be commenting on such actions, including
Orsted's activity described herein. Additionally, comments related to
pile driving and OSW construction are outside the scope of this IHA
and, therefore, are not discussed.
Comment 5: RODA defers to the September 9, 2020 letter submitted by
seventeen Environmental NRGs and echoes their concerns.
NMFS' response: NMFS refers RODA to the Federal Register notice 85
FR 63508 (October 8, 2020) for previous responses to the Environmental
NGOs' previous letter of which RODA references and defers expertise to.
Comment 6: RODA expressed concern that negative impacts to local
fishermen and coastal communities as a result of a potentially adverse
impact to marine mammals (e.g., vessel strike resulting in death or
severe injury) were not mentioned nor evaluated in ``the IHA request
for this project''. RODA also emphasized concern about the lack of
adequate analysis of individual and cumulative impacts to marine
mammals, noting existing fishery restrictions as a result of other
North Atlantic right whale protections.
NMFS' response: Neither the MMPA nor our implementing regulations
require NMFS to analyze impacts to other industries (e.g., fisheries)
or coastal communities from issuance of an ITA. Nevertheless, as
detailed in the proposed IHA notice and in our response to comment 3,
NMFS has analyzed the potential for adverse impacts such as vessel
strikes to marine mammals, including North Atlantic right whales, as a
result of Orsted's planned site characterization survey activities and
determined that no serious injury or mortality is anticipated. In fact,
as discussed in the Negligible Impact Analysis and Determination
section, later in this document, no greater than low-level behavioral
harassment is expected for any affected species. For North Atlantic
right whale in particular it is considered unlikely, as a result of the
required precautionary shutdown zone (i.e., 500 m versus the estimated
maximum Level B harassment zone of 141 m), that the authorized take
would occur at all. Thus, NMFS would also not anticipate the impacts
RODA raises as a result of issuing this IHA for site characterization
survey activities to Orsted.
In regards to cumulative impacts, 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 density/distribution
and status of the species, population size and growth rate, and other
relevant stressors. 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, Orsted 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 Endangered Species Act (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 2019 Avangrid EA for survey activities offshore North
Carolina and Virginia; the 2017 Ocean Wind, LLC EA for site
characterization surveys off New Jersey; and the 2018 Deepwater Wind EA
for survey activities offshore Delaware, Massachusetts, and Rhode
Island. Cumulative impacts regarding issuance of IHAs for site
characterization survey activities such as those planned by Orsted 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 (CE) for issuance of
Orsted's IHA, which included consideration of extraordinary
circumstances.
Separately, the cumulative effects of substantially similar
activities in the northwest Atlantic Ocean 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
include those for which NMFS issued previous IHAs (82 FR 31562; July 7,
2017, 83 FR 28808; June 21, 2018, 83 FR 36539; July 30, 2018; and 86 FR
26465; May 10, 2021), which are similar to those planned by Orsted
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
BiOp remains valid.
Comment 7: RODA expressed interest in understanding the outcome if
the number of actual takes exceed the number authorized during
construction of an offshore wind project (i.e., would the project be
stopped mid-construction or operation), and how offshore wind
developers will be held accountable for impacts to protected species
such that impacts are not inadvertently assigned to fishermen, should
they occur. Lastly, RODA maintains that the OSW industry must be
accountable for incidental takes from construction and operations
separately from the take authorizations for managed commercial fish
stocks.
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NMFS' response: It is important to recognize that an IHA does not
authorize the activity but authorizes take of marine mammals incidental
to the activity. As described in condition 3(b) and (c) of the IHA,
authorized take, by Level B harassment only, is limited to the species
and numbers listed in Table 1 of the final IHA, and any taking
exceeding the authorized amounts listed in Table 1 is prohibited and
may result in the modification, suspension, or revocation of the IHA.
As described in condition 4(f)(vii), shutdown of acoustic sources is
required upon observation of either a species for which incidental take
is not authorized or a species for which incidental take has been
authorized but the authorized number of takes has been met, entering or
within the Level B harassment zone as described in Table 2 of the IHA.
It is unclear why RODA would be concerned that the OSW developers
are responsible for their own impacts and ``the burdens of those are
not also assigned to fishermen''. Fishing impacts generally center on
entanglement in fishing gear, which is a very acute, visible, and
severe impact. In contrast, the pathway by which impacts occur
incidental to construction or site characterization survey activities,
such as those planned by Orsted here, is primarily acoustic in nature.
Regardless, NMFS reiterates that this IHA does not authorize take
incidental to construction activities, but site characterization survey
activities, and any take beyond that authorized would be in violation
of the MMPA. It is BOEM's responsibility as the permitting agency to
make decisions regarding ceasing Orsted's overall offshore wind
development activities, not NMFS. If the case suggested by RODA does
occur, NMFS would work with BOEM and Orsted to determine the most
appropriate means by which to ensure compliance with the MMPA. The
impacts of commercial fisheries on marine mammals and incidental take
for said fishing activities are indeed managed separately from those of
non-commercial fishing activities such as offshore wind site
characterization surveys (MMPA section 118).
Comment 8: RODA urges NMFS to use the best available science
including the most comprehensive models for estimating marine mammal
take and developing robust mitigation measures.
NMFS' response: 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. To
limit the potential severity of any possible behavioral disruptions,
NMFS has prescribed a robust suite of mitigation measures, including
extended distance shutdowns for North Atlantic right whale, that are
expected to further reduce the duration and intensity of acoustic
exposure. 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.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, incorporated here by reference, instead of
reprinting the information. Additional information regarding population
trends and threats may be found in NMFS' Stock Assessment Reports
(SARs; 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 2 lists all species or stocks for which take is expected and
authorized for these activities, and summarizes information related to
the population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS' SARs). While no
serious injury or mortality is anticipated or authorized here, PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. 2021 U.S. Atlantic and Gulf of Mexico SARs. All values
presented in Table 2 are the most recent available at the time of
publication and are available in the 2021 SARs (Hayes et al., 2022).
Table 2--Marine Mammal Species \6\ Likely Impacted by the Specified Activities
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ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
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Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
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Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western Atlantic....... E/D, Y 368 (0; 364; 2019) \5\ 0.7 7.7
Family Balaenopteridae (rorquals):
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -/-, Y 1,396 (0; 1,380; 2016) 22 12.15
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E/D, Y 6,802 (0.24; 5,573; 11 1.8
2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E/D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
Minke whale..................... Balaenoptera Canadian East Coastal.. -/-, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. 2016).
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Odontoceti (toothed whales, dolphins, and porpoises)
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Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E/D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
[[Page 61580]]
Family Delphinidae:
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -/-, N 39,215 (0.3; 30,627; 306 29
2016).
Striped dolphin................. Stenella coeruleoalba.. Western North Atlantic. -, -, N 67,036 (0.29, 52,939, 529 0
2016).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -/-, N 93,233 (0.71; 54,443; 544 27
2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -/-, N 62,851 (0.23; 51,914; 519 28
Offshore. 2016).
Short-beaked Common dolphin..... Delphinus delphis...... Western North Atlantic. -/-, N 172,974(0.21, 145,216, 1,452 390
2016).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -/-, N 39,921 (0.27; 32,032; 320 0
2016).
Risso's dolphin................. Grampus griseus........ Western North Atlantic -/-, N 35,215 (0.19; 30,051; 301 34
Sock. 2016).
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -/-, N 95,543 (0.31; 74,034; 851 164
Fundy. 2016).
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Order Carnivora--Pinnipedia
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Harbor seal......................... Phoca vitulina......... Western North Atlantic. -/-, N 61,336 (0.08; 57,637; 1,729 339
2018).
Gray seal \4\....................... Halichoerus grypus..... Western North Atlantic. -/-, N 27,300 (0.22; 22,785; 1,389 4,453
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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. In some cases, CV is not applicable.
\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 NARWs is now
below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).
\6\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
A detailed description of the species likely to be affected by
Orsted's activities, including information regarding population trends,
threats, and local occurrence, was provided in the Federal Register
notice for the proposed IHA (87 FR 52515; August 26, 2022); since that
time, we are not aware of any changes in the status of these species
and stocks; therefore, detailed descriptions are not provided here.
Please refer to that Federal Register notice for these descriptions.
Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.
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. 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, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 3.
Table 3--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, 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) 50 Hz to 86 kHz.
(true seals).
[[Page 61581]]
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
16 marine mammal species (14 cetacean and 2 pinniped (both phocid)
species) have the reasonable potential to co-occur with the planned
survey activities. Please refer to Table 2. Of the cetacean species
that may be present, five are classified as low-frequency cetaceans
(i.e., all mysticete species), eight are classified as mid-frequency
cetaceans (i.e., all delphinid species and the sperm whale), and one is
classified as high-frequency cetaceans (i.e., harbor porpoise and Kogia
spp.).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
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 52515; August 26, 2022) included a discussion of
the effects of anthropogenic noise on marine mammals and their habitat,
therefore that information is not repeated here; please refer to the
Federal Register notice (87 FR 52515; August 26, 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 determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to certain HRG sources. Based on the nature of
the activity and the anticipated effectiveness of the mitigation
measures (i.e., shutdown measures, vessel strike avoidance procedures)
discussed in detail below in the Mitigation section, Level A harassment
is neither anticipated nor authorized.
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
authorized take numbers are estimated.
For acoustic impacts, 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 potential 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 estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment.
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (re 1 [mu]Pa)
for continuous (e.g., vibratory pile-driving, drilling) and above RMS
SPL 160 dB re 1 [mu]Pa for non-explosive impulsive (e.g., seismic
airguns) or intermittent (e.g., scientific sonar) sources.
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).
These thresholds are provided in the table below. The references,
analysis, and methodology used in the development of the thresholds are
[[Page 61582]]
described in NMFS' 2018 Technical Guidance, which may be accessed at:
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Orsted's activity includes the use of impulsive (i.e., boomers and
sparkers) and non-impulsive (i.e., CHIRP SBPs) sources. However, as
discussed above, NMFS has concluded that Level A harassment is not a
reasonably likely outcome for marine mammals exposed to noise from the
sources planned for use here, and the potential for Level A harassment
is not evaluated further in this document. Please see Orsted's
application (Section 1.4) for a quantitative Level A exposure analysis
exercise. The results indicated that maximum estimated distances to
Level A harassment isopleths were less than 3 m for all sources and
hearing groups, with the exception of an estimated 18.9 m and 11.4 m
distance to the Level A harassment isopleth for high-frequency
cetaceans (i.e., harbor porpoises) during use of the GeoPulse 5430 and
TB CHIRP III, respectively (see Table 2 in the Federal Register notice
for the proposed IHA for source characteristics; 87 FR 52515; August
26, 2022). Orsted did not request authorization of take by Level A
harassment and no take by Level A harassment is authorized by NMFS.
Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
------------------------------------------------------------------------
PTS onset thresholds * (received
level)
Hearing group ---------------------------------------
Impulsive Non-impulsive
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.... Cell 1: Lp,0- Cell 2:
pk,flat: 219 dB; LE,p,LF,24h: 199
LE,p,LF,24h: 183 dB.
dB.
Mid-Frequency (MF) Cetaceans.... Cell 3: Lp,0- Cell 4:
pk,flat: 230 dB; LE,p,MF,24h: 198
LE,p,MF,24h: 185 dB.
dB.
High-Frequency (HF) Cetaceans... Cell 5: Lp,0- Cell 6:
pk,flat: 202 dB; LE,p,HF,24h: 173
LE,p,HF,24h: 155 dB.
dB.
Phocid Pinnipeds (PW) Cell 7: Lp,0- Cell 8:
(Underwater). pk.flat: 218 dB; LE,p,PW,24h: 201
LE,p,PW,24h: 185 dB.
dB.
Otariid Pinnipeds (OW) Cell 9: Lp,0- Cell 10:
(Underwater). pk,flat: 232 dB; LE,p,OW,24h: 219
LE,p,OW,24h: 203 dB.
dB.
------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in
the largest isopleth for calculating PTS onset. If a non-impulsive
sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds are
recommended for consideration. Note: Peak sound pressure level (Lp,0-
pk) has a reference value of 1 [mu]Pa, and weighted cumulative sound
exposure level (LE,p) has a reference value of 1[mu]Pa\2\s. In this
Table, thresholds are abbreviated to be more reflective of
International Organization for Standardization standards (ISO 2017).
The subscript ``flat'' is being included to indicate peak sound
pressure are flat weighted or unweighted within the generalized
hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript
associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and
HF cetaceans, and PW and OW pinnipeds) and that the recommended
accumulation period is 24 hours. The weighted cumulative sound
exposure level thresholds could be exceeded in a multitude of ways
(i.e., varying exposure levels and durations, duty cycle). When
possible, it is valuable for action proponents to indicate the
conditions under which these thresholds will be exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
NMFS has developed a user-friendly methodology for determining the
rms sound pressure level (SPLrms) at the 160-dB isopleth for
the purpose of estimating the extent of Level B harassment isopleths
associated with HRG survey equipment (NMFS, 2020). This methodology
incorporates frequency and some directionality to refine estimated
ensonified zones. Orsted used NMFS's methodology, using the source
level and operation mode of the equipment planned for use during the
survey, to estimate the maximum ensonified area over a 24-hr period
also referred to as the harassment area (Table 5). Potential takes by
Level B harassment are estimated within the ensonified area (i.e.,
harassment area) as an SPL exceeding 160 dB re 1 [mu]Pa for impulsive
sources (e.g., sparkers, boomers) within an average day of activity.
The harassment zone, also known as the Zone of Influence (ZOI), is
a representation of the maximum extent of the ensonified area around a
sound source over a 24-hr period. The ZOI was calculated for mobile
sound sources per the following formula:
ZOI = (Distance/day x 2r) + [pi]r\2\
Where r is the linear distance from the source to the isopleth for the
Level B harassment threshold.
The estimated potential daily active survey distance of 70 km was
used as the estimated areal coverage over a 24-hr period. This distance
accounts for the vessel traveling at roughly 4 knots (kn) (2.1 m/s) and
only for periods during which equipment <180 kHz is in operation. A
vessel traveling 4 kn (2.1 m/s) can cover approximately 110 km per day;
however, based on data collected since 2017, survey coverage over a 24-
hour period is closer to 70 km per day as a result of delays due to,
e.g., weather, equipment malfunction. For daylight only vessels, the
distance is reduced to 20 km per day; however, to maintain the
potential for 24-hr surveys, the corresponding Level B harassment zones
provided in Table 5 were calculated for each source based on the Level
B threshold distances within a 24-hour (30 km) operational period.
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 above 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. Table 2 in the Federal Register
notice for the proposed IHA (87 FR 52515; August 26, 2022) shows the
HRG equipment types that may be used during the planned surveys and the
source levels associated with those HRG equipment types.
Based upon modeling results, of the HRG survey equipment planned
for use by Orsted that has the potential to result in Level B
harassment of marine mammals, the Applied Acoustics Dura-Spark UHD and
GeoMarine Geo-Source sparkers would produce the largest Level B
harassment isopleth (141 m) or ZOI. Estimated distances to Level B
harassment isopleths for all sources evaluated here, including the
sparkers, are provided in Table 5. Although Orsted does not expect to
use sparker
[[Page 61583]]
sources on all planned survey days, Orsted assumes for purposes of
analysis that the sparker would 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.
Table 5--Distance to Level B Harassment Thresholds
[160 dB rms]
------------------------------------------------------------------------
Distance to
Level B
Source harassment
threshold (m)
------------------------------------------------------------------------
Non-impulsive, non-parametric, shallow SBP (CHIRPs):
------------------------------------------------------------------------
ET 216 CHIRP........................................ 12
ET 424 CHIRP........................................ 4
ET 512i CHIRP....................................... 6
GeoPulse 5430....................................... 29
TB CHIRP III........................................ 54
Pangeo SBI.......................................... 22
------------------------------------------------------------------------
Impulsive, medium SBP (Boomers and Sparkers):
------------------------------------------------------------------------
AA Triple plate S-Boom (700/1,000 J)................ 76
AA, Dura-spark UHD Sparkers......................... 141
GeoMarine Sparkers.................................. 141
------------------------------------------------------------------------
AA = Applied Acoustics; CHIRP = compressed high-intensity radiated
pulses; ET = edgetech; HF = high-frequency; J = joules; LF = low-
frequency; MF = mid-frequency; PW = phocid pinnipeds in water; SBI =
sub-bottom imager; SBP = sub-bottom profiler; TB = Teledyne benthos;
UHD = ultra-high definition.
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information that
will inform the take calculations.
Habitat based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016, 2022) represent
the best available information regarding marine mammal densities in the
project area. The density data presented by Roberts et al. (2016, 2022)
incorporate aerial and shipboard line-transect data from NMFS and other
organizations and incorporate data from 8 physiographic and 16 dynamic
oceanographic and biological covariates, and control for the influence
of sea state, group size, availability bias, and perception bias on the
probability of making a sighting. These density models were originally
developed for all cetacean taxa in the U.S. Atlantic (Roberts et al.,
2016). In subsequent years, certain models have been updated based on
additional data as well as certain methodological improvements. More
information is available online at https://seamap.env.duke.edu/models/Duke/EC/. Marine mammal density estimates in the project area (animals/
km\2\) were obtained using the most recent model results for all taxa
(Roberts 2022). The updated models incorporate sighting data, including
sightings from NOAA's Atlantic Marine Assessment Program for Protected
Species (AMAPPS) surveys.
For exposure analysis, density data from Roberts (2022) were mapped
using a geographic information system (GIS). Density grid cells that
included any portion of the project area were selected for all survey
months (see Figure 3 of Orsted's application). Given the variability in
level of effort between the Lease Areas and the ECR area, densities
were separated for the three Lease Areas (OCS-A 0486, 0487, and 0500)
and the ECR area. The densities for each species as reported by Roberts
et al. (2022) for each of the Lease Areas and ECR were averaged by
month; those values were then used to calculate the mean annual density
for each species within the project area. Estimated mean monthly and
annual densities (animals per km\2\) of all marine mammal species that
may be taken by the survey are shown in Tables 8-11 of Orsted's
application. Please see Table 6 for density values used in the exposure
estimation process.
Given their size and behavior when in the water, seals are
difficult to identify during shipboard visual surveys and limited
information is currently available on their distribution. Therefore,
data used to establish the density estimates from Roberts et al. (2022)
are based on information for all seal species that may occur in the
Western North Atlantic (i.e., harbor, gray, hooded, harp). However,
only the harbor seal and gray seal are reasonably expected to occur in
the project area, and the densities were split evenly between both
species.
Long- and short-finned pilot whales are also difficult to
distinguish during shipboard surveys so individual habitat models were
not able to be developed for these species. As only long-finned pilot
whales are expected to occur within the study area, pilot whale
densities within the study area were attributed to this species.
For bottlenose dolphin densities, Roberts (2022) does not
differentiate by stock. As previously discussed, only the Western North
Atlantic offshore stock is expected to occur in the project area. Thus,
all bottlenose dolphin density estimates within the project area were
attributed to the offshore stock.
Table 6--Average Annual Marine Mammal Density Estimates Across Survey Sites
----------------------------------------------------------------------------------------------------------------
Average annual density (km\2\)
Species ---------------------------------------------------------------
OCS-A 0486 OCS-A 0487 OCS-A 0500 ECR
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans:
Fin whale................................... 0.0013 0.0021 0.0023 0.0015
Sei whale................................... 0.0000 0.0001 0.0001 0.0000
Minke whale................................. 0.0005 0.0008 0.0009 0.0005
Humpback whale.............................. 0.0012 0.0013 0.0015 0.0006
North Atlantic right whale.................. 0.0040 0.0020 0.0034 0.0008
Mid-frequency Cetaceans:
Sperm whale................................. 0.0001 0.0001 0.0001 0.0001
Atlantic white sided dolphin................ 0.0092 0.0234 0.0367 0.0163
Atlantic spotted dolphin.................... 0.0001 0.0003 0.0004 0.0003
Common bottlenose dolphin................... 0.0151 0.0078 0.0097 0.0266
Long-finned pilot whale..................... 0.0020 0.0074 0.0090 0.0043
Risso's dolphin............................. 0 0.0001 0.0001 0.0001
Common dolphin.............................. 0.0457 0.0924 0.0945 0.0562
Striped dolphin............................. 0.0000 0.0000 0.0000 0.0000
High-frequency Cetaceans:
Harbor porpoise............................. 0.0335 0.0399 0.0384 0.0337
[[Page 61584]]
Pinnipeds in-water \1\:
Gray seal................................... 0.0104 0.0110 0.0124 0.0182
Harbor seal................................. 0.0104 0.0110 0.0124 0.0182
----------------------------------------------------------------------------------------------------------------
\1\ Seal species are not separated in the Roberts (2022) data therefore densities were evenly split between the
two species expected to occur in the project area.
Take Estimation
Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur.
Level B exposures were estimated by multiplying the average annual
density of each species within the project area (Table 6) by the
largest ZOI that was estimated to be ensonified to an SPL exceeding 160
dB re 1 [micro]Pa (141m; Table 5). That result was then multiplied by
the number of survey days in that Lease Area or ECR (Table 1), and
rounded to the nearest whole number to arrive at estimated take. This
final number equals the instances of take for the entire operational
period. It was assumed the sparker systems were operating all 400
survey days as it is the sound source expected to produce the largest
harassment zone. A summary of this method is illustrated in the
following formula with the resulting authorized take of marine mammals
is shown below in Table 7:
Estimated take = species density x ZOI x # of survey days
Table 7--Total Estimated and Authorized Take Numbers
[By Level B harassment only]
----------------------------------------------------------------------------------------------------------------
Estimated Authorized Max percent
Species Abundance Level B takes Level B takes population
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans:
Fin whale................................... 6,802 14 14 0.21
Sei whale................................... 6,292 0 3 0.05
Minke whale................................. 21,968 6 13 0.06
Humpback whale.............................. 1,396 8 34 2.44
North Atlantic right whale.................. 368 17 17 4.62
Mid-frequency Cetaceans
Sperm whale................................. 4,349 0 2 0.05
Atlantic white-sided dolphin:............... 93,233 210 210 0.23
Atlantic spotted dolphin.................... 39,921 3 29 0.07
Common bottlenose dolphin................... 62,851 139 139 0.22
Pilot whale................................. 39,215 17 17 0.13
Risso's dolphin............................. 35,215 1 30 0.09
Common dolphin.............................. 172,974 601 6,000 3.47
Striped dolphin............................. 67,036 0 20 0.03
High-frequency Cetaceans:
Harbor porpoise............................. 95,543 287 287 0.30
Pinnipeds:
Seals
Gray seal............................... 27,300 118 118 0.43
Harbor seal............................. 61,336 118 118 0.19
----------------------------------------------------------------------------------------------------------------
Additional data regarding average group sizes from survey effort in
the region was considered to ensure adequate take estimates are
evaluated. Take estimates for several species were adjusted based upon
observed group sizes in the area. The adjusted take estimates for these
species are indicated in Table 7. These calculated take estimates were
adjusted for these species as follows:
Sei whale: Although no takes were estimated, prior
Protected Species Observer (PSO) monitoring documented the presence of
sei whales in the area. One take was requested based on the most common
group size reported in Kenney and Vigness-Raposa (2010);
Minke and humpback whales: Requested takes were increased
to the number recorded within 500 m of an active source based on draft
PSO data (see Table 13 in the application);
Sperm whale: No takes were estimated but based on their
occurrence in PSO data, 1 group of 2 (Barkaszi and Kelly, 2019) was
added to the requested takes;
Atlantic spotted dolphin: Requested takes were increased
to the average number of dolphins in a group reported in Palka et al.
(2017, 2021);
Risso's dolphin: Only one take was estimated but based on
their occurrence in PSO data, 1 group of 30 (Kenney and Vigness-Raposa,
2010) was added to the requested takes.
Common dolphin: Requested takes were increased to 6,000.
This is based on the average group size of 15 from the PSO data
(calculated by dividing the total number of individuals [14,250] by the
total number of detections [927] in Table 13 of the application)
multiplied by the planned number of survey days (400) in Table 1.
Striped dolphin: No takes were estimated but based on
their occurrence in PSO data, one group of 20 dolphins
[[Page 61585]]
(Kenney and Vigness-Raposa, 2010) was added to the requested takes.
PSO data for adjusting take estimates of minke whales, humpback
whales, common bottlenose dolphins, and common dolphins was derived
from draft PSO observer reports from surveys conducted in the project
lease areas and ECR from 2020-2021, as shown in Table 13 of Orsted's
application.
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, NMFS
considers 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 has determined that the following mitigation measures be
implemented during Orsted's marine site characterization surveys.
Pursuant to section 7 of the ESA, Orsted 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 Shutdown Zones
Marine mammal shutdown zones will be established around impulsive
HRG survey equipment (<180 kHz; e.g., sparkers and boomers) for all
marine mammals, and around impulsive HRG survey equipment and non-
impulsive, non-parametric sub-bottom profilers (e.g., CHIRPs) for North
Atlantic right whales. Shutdown zones will be monitored by protected
species observers (PSOs) based upon the radial distance from the
acoustic source rather than being based around the vessel itself. An
immediate shutdown of impulsive HRG survey equipment will be required
if a whale is sighted at or within the corresponding marine mammal
shutdown zones to minimize noise impacts on the animals. If a shutdown
is required, a PSO will notify the survey crew immediately. Vessel
operators and crews will comply immediately with any call for shutdown.
The shutdown zone may or may not encompass the Level B harassment zone.
Shutdown zone distances are as follows:
A 500-meter (m) Shutdown Zone for North Atlantic right
whales for use of impulsive acoustic sources (e.g., boomers and/or
sparkers) and non-impulsive, non-parametric sub-bottom profilers; and
A 100-m shutdown zone for use of impulsive acoustic
sources for all other marine mammals, with the exception of delphinids
belonging to the Family Delphinidae and one of the following genera:
Delphinus, Lagenorhynchus, Stenella, or Tursiops, and pinnipeds.
Shutdown will remain in effect until the minimum separation
distances (detailed above) between the animal and noise source are re-
established. If a marine mammal enters the respective shutdown zone
during a shutdown period, the equipment may not restart until that
animal is confirmed outside the clearance zone as stated in the pre-
start clearance procedures. 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 at the following
distances around the HRG survey equipment and monitored by PSOs:
500 m for all ESA-listed marine mammals;
100 m for all other whales; and
50 m for dolphins and porpoises.
Orsted will implement a 30-minute pre-start clearance period prior
to the initiation of ramp-up of specified HRG equipment. During this
period, clearance zones will be monitored by PSOs, using the
appropriate visual technology. Ramp-up may not be initiated if any
marine mammal(s) is within its respective clearance zone. If a marine
mammal is observed within a 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).
Monitoring will be conducted throughout all pre-clearance and shutdown
zones as well as all visible waters surrounding the sound sources and
the vessel. All marine mammals detected will be recorded as described
in the Monitoring and Reporting section.
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 project 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.
The ramp-up procedure will not be initiated (i.e., equipment will
not be started) during periods of inclement conditions when the marine
mammal pre-start clearance zone cannot be adequately monitored by the
PSOs for a 30 minute period using the appropriate visual technology. If
any marine mammal enters the clearance zone, ramp-up will not be
initiated until the animal is confirmed outside the marine mammal
clearance zone, or until the appropriate time (30 minutes for whales,
15 minutes for dolphins, porpoises, and seals) has elapsed since the
last sighting of the animal in the clearance zone.
[[Page 61586]]
Shutdown, pre-start clearance, and ramp-up procedures are not
required during HRG survey operations using only non-impulsive sources
(e.g., echosounders) other than non-parametric sub-bottom profilers
(e.g., CHIRPs).
Vessel Strike Avoidance
Orsted must adhere to the following measures except in the case
where compliance would create an imminent and serious threat to a
person or vessel or to the extent that a vessel is restricted in its
ability to maneuver and, because of the restriction, cannot comply.
Vessel operators and crews must maintain a vigilant watch
for all protected species and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any protected species. A visual observer aboard the vessel must monitor
a vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish protected species from other phenomena, and (2) broadly
identify a marine mammal as a right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammal;
[cir] All survey vessels, regardless of size, must observe a 10-
knot speed restriction in specified areas designated by NMFS for the
protection of North Atlantic right whales from vessel strikes including
seasonal management areas (SMAs) and dynamic management areas (DMAs)
when in effect;
[cir] Members of the monitoring team will consult NMFS North
Atlantic right whale reporting system and Whale Alert, as able, for the
presence of North Atlantic right whales throughout survey operations,
and for the establishment of a DMA. If NMFS should establish a DMA in
the project area during the survey, the vessels will abide by speed
restrictions in the DMA;
[cir] 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 (5.1 m/s) or less at all times;
[cir] All vessels must reduce their speed to 10 kn (5.1 m/s) or
less when mother/calf pairs, pods, or large assemblages of any species
of cetaceans is observed near a vessel;
[cir] All vessels must maintain a minimum separation distance of
500 m from right whales and other ESA-listed large whales;
[cir] 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;
[cir] 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, NMFS has determined that the mitigation
measures provide the means of effecting the least practicable impact on
the affected species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.
Monitoring and Reporting
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 while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and,
Mitigation and monitoring effectiveness.
Monitoring Measures
Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Orsted 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
[[Page 61587]]
(3) have successfully completed an approved PSO training course
appropriate for their designated task. On a case-by-case basis, non-
independent observers may be approved by NMFS for limited, specified
duties in support of approved, independent PSOs on smaller vessels with
limited crew operating in nearshore waters.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including shutdown and pre-clearance zones, during all HRG
survey operations. PSOs will visually monitor and identify marine
mammals, including those approaching or entering the established
shutdown and pre-clearance 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 degree 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 observations 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, behaviors); and details of any observed marine mammal
behavior that occurs (e.g., notes behavioral disturbances). For more
detail on the monitoring requirements, see Condition 5 of the IHA.
Reporting Measures
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a draft comprehensive report will
be provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys including what type of mitigation and the species and number of
animals that prompted the mitigation action, when known), and provides
an interpretation of the results and effectiveness of all mitigation
and monitoring. Any recommendations made by NMFS must be addressed in
the final report prior to acceptance by NMFS. A final report must be
submitted within 30 days following any comments on the draft report.
All draft and final marine mammal and acoustic monitoring reports must
be submitted to [email protected] and
[email protected]. The report must contain at minimum, the following:
a. PSO names and affiliations;
b. Dates of departures and returns to port with port names;
c. Dates and times (Greenwich Mean Time) of survey effort and times
corresponding with PSO effort;
d. Vessel location (latitude/longitude) when survey effort begins
and ends; vessel location at beginning and end of visual PSO duty
shifts;
e. Vessel heading and speed at beginning and end of visual PSO duty
shifts and upon any line change;
f. 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;
g. 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
h. Survey activity information, such as type of survey equipment in
operation, acoustic source power output while in operation, and any
other notes of significance (i.e., pre-clearance survey, ramp-up,
shutdown, end of operations, etc.).
If a marine mammal is sighted, the following information should be
recorded:
a. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
b. PSO who sighted the animal;
c. Time of sighting;
d. Vessel location at time of sighting;
e. Water depth;
f. Direction of vessel's travel (compass direction);
g. Direction of animal's travel relative to the vessel;
h. Pace of the animal;
i. Estimated distance to the animal and its heading relative to
vessel at initial sighting;
j. 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;
k. Estimated number of animals (high/low/best);
l. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
m. 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);
n. 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);
o. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source;
[[Page 61588]]
p. Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other); and
q. Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
If a North Atlantic right whale is observed at any time by PSOs or
personnel on any project vessels, during surveys or during vessel
transit, Orsted must immediately report sighting information to the
NMFS North Atlantic Right Whale Sighting Advisory System: (866) 755-
6622. North Atlantic right whale sightings in any location may also be
reported to the U.S. Coast Guard via channel 16.
In the event that Orsted personnel discover an injured or dead
marine mammal, Orsted will report the incident to the NMFS Office of
Protected Resources (OPR) and the NMFS New England/Mid-Atlantic
Stranding Coordinator as soon as feasible. The report would include the
following information:
a. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
b. Species identification (if known) or description of the
animal(s) involved;
c. Condition of the animal(s) (including carcass condition if the
animal is dead);
d. Observed behaviors of the animal(s), if alive;
e. If available, photographs or video footage of the animal(s); and
f. General circumstances under which the animal was discovered.
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in this activities covered by the IHA, Orsted will
report the incident to NMFS OPR and the NMFS New/England/Mid-Atlantic
Stranding Coordinator as soon as feasible. The report will include the
following information:
a. Time, date, and location (latitude/longitude) of the incident;
b. Species identification (if known) or description of the
animal(s) involved;
c. Vessel's speed during and leading up to the incident;
d. Vessel's course/heading and what operations were being conducted
(if applicable);
e. Status of all sound sources in use;
f. 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;
g. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
h. Estimated size and length of animal that was struck;
i. Description of the behavior of the marine mammal immediately
preceding and following the strike;
j. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
k. 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
l. 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 impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), 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' 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 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, the discussion of our analysis applies to all
the species listed in Table 2, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar. 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 in the Federal
Register notice for the proposed IHA (87 FR 52515; August 26, 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
Level B behavioral harassment in the form of temporary avoidance of the
area or decreased foraging (if such activity was occurring), reactions
that are considered to be of low severity and with no lasting
biological consequences (e.g., Southall et al., 2007, 2021). As
described above, Level A harassment is not expected to occur given the
nature of the operations and the estimated small size of the Level A
harassment zones.
In addition to being temporary, the maximum expected harassment
zone around the survey vessel is 141 m. Therefore, the ensonified area
surrounding each vessel is relatively small compared to the overall
distribution of the animals in the area and their use of the habitat.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the project
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 project area.
Several harbor and gray seal haul out sites have been identified on
Block Island, Great Gull Island, and Fishers Island as wells as along
Narragansett and Nantucket Sounds. As the acoustic footprint of the HRG
activities is relatively small, hauled seals are not expected to be
impacted by these activities. In addition, cable landfall sites have
yet to be determined and may
[[Page 61589]]
not be in the vicinity of haul out sites. The ECR area encompasses a
feeding BIA for fin whales east of Montauk Point, NY that is active
from March through October (LaBrecque et al., 2015). The fin whale
feeding BIA is extensive and sufficiently large (2,933 km\2\), and the
acoustic footprint of the survey activities is sufficiently small
(project area) that feeding opportunities for fin whales will not be
reduced appreciably. Given the relatively small size of the ensonified
area, it is unlikely that prey availability will be adversely affected
by HRG survey operations. In addition, feeding success is not likely to
be significantly affected as minimal impacts to prey species are
expected, for reasons as described above in the Potential Effects of
Specified Activities on Marine Mammals and their Habitat section in the
Federal Register notice of the proposed IHA (87 FR 52515; August 26,
2022).
North Atlantic Right Whale
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.
The project area overlaps with a migratory corridor BIA for North
Atlantic right whales (effective March-April; November-December) that
extends from Massachusetts to Florida and, off the coast of NY and RI,
from the coast to beyond the shelf break (LaBrecque et al., 2015).
Right whale migration is not expected to be impacted by the survey
activities due to the very small size of the project area relative to
the spatial extent of the available migratory habitat in the BIA. The
project area also overlaps with the Block Island seasonal management
area (SMA), active from November 1 to April 30. North Atlantic right
whales may be feeding or migrating within the SMA. Required vessel
strike avoidance measures and following the speed restrictions of the
SMA will decrease the risk of ship strike during North Atlantic right
whale migration; no ship strike is expected to occur during Orsted's
activities. For reasons as described above, minimal impacts are
expected to prey availability and feeding success. Additionally, HRG
survey operations are required to maintain a 500 distance and shutdown
if a North Atlantic right whale is sighted at or within 500 m. The 500
m shutdown zone for right whales is conservative, considering the Level
B harassment isopleth for the most impactful sources (i.e., GeoMarine
Sparkers, AA Dura-spark UHD Sparkers, AA Triple plate S-Boom) is
estimated to be 141 m, and thereby minimizes the potential for
behavioral harassment of this species. Therefore only very limited take
by Level B harassment of North Atlantic right whale has been authorized
by NMFS. As noted previously, Level A harassment is not expected, nor
authorized, due to the small PTS zones associated with HRG equipment
types planned for use. NMFS does not anticipate North Atlantic right
whale takes that result from the survey activities will impact annual
rates of recruitment or survival. Thus, any takes that occur will not
result in population level impacts.
Other Marine Mammals With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of Orsted's project 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 2, 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 before HRG survey equipment reaches
full energy, thus preventing them from being exposed to more severe
Level B harassment. No Level A harassment is anticipated, even in the
absence of mitigation measures, or authorized.
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 in the area (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. Required mitigation
measures, such as shutdown zones and ramp up, will further reduce
exposure to sound that could result in more severe behavioral
harassment.
In summary and as described above, the following factors support
our determination that the impacts resulting from this activity are not
expected to adversely affect any of the species or stocks through
effects on annual rates of recruitment or survival:
No serious injury or mortality is anticipated or
authorized;
No Level A harassment (PTS) 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 of Level B behavioral harassment
only consisting of brief startling reactions and/or temporary avoidance
of the survey area;
While the project area is within areas noted as a
migratory BIA and SMA for North Atlantic right whales, the activities
will occur in such a comparatively small area such that any avoidance
of the ensonified 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 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 monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the planned
survey activities will have a negligible impact on all affected marine
mammal species or stocks.
[[Page 61590]]
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
The amount of take NMFS has authorized is below one third of the
estimated stock abundance for all species (in fact, take of individuals
is less than 6 percent of the abundance of the affected stocks for
these species, see Table 7). The figures presented in Table 7 are
likely conservative estimates as they assume all takes are of different
individual animals which is likely not to be the case. Some individuals
may return multiple times in a day, but PSOs will count them as
separate takes if they cannot be individually identified.
Based on the analysis contained herein of the planned survey
activities (including the 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.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that the issuance of the IHA qualifies to be categorically excluded
from further NEPA review.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS Office of Protected Resources (OPR) consults internally whenever
we propose to authorize take for endangered or threatened species.
NMFS OPR has authorized the incidental take of four species of
marine mammals which are listed under the ESA, including the North
Atlantic right, fin, sei, and sperm whale, and 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).
Authorization
NMFS has issued an IHA to Orsted for potential harassment of small
numbers of 16 marine mammal species incidental to HRG site
characterization surveys off the coast of New York and Rhode Island,
provided the previously mentioned mitigation, monitoring, and reporting
requirements are followed.
Dated: October 6, 2022.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2022-22150 Filed 10-11-22; 8:45 am]
BILLING CODE 3510-22-P