[Federal Register Volume 89, Number 4 (Friday, January 5, 2024)]
[Notices]
[Pages 753-772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00008]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD557]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off New York, New Jersey, Delaware, and Maryland
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental harassment authorization; request
for comments on proposed authorization and possible renewal.
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SUMMARY: NMFS has received a request from Atlantic Shores Offshore
Wind, LLC (Atlantic Shores) for authorization to take marine mammals
incidental to marine site characterization surveys in waters off of New
York, New Jersey, Delaware, and Maryland, including in the Bureau of
Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf (OCS) Lease
Areas OCS-A 0499, OCS-A 0541, OCS-A 0549, and associated export cable
corridor (ECC) areas. Pursuant to the Marine Mammal Protection Act
(MMPA), NMFS is requesting comments on its proposal to issue an
incidental harassment authorization (IHA) to incidentally take marine
mammals during the specified activities. NMFS is also requesting
comments on a possible one-time, 1-year renewal that could be issued
under certain circumstances and if all requirements are met, as
described in Request for Public Comments at the end of this notice.
NMFS will consider public comments prior to making any final decision
on the issuance of the requested MMPA authorization and agency
responses will be summarized in the final notice of our decision.
DATES: Comments and information must be received no later than February
5, 2024.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service and should be submitted via email to
[email protected]. Electronic copies of the application and
supporting documents, as well as a list of the references cited
[[Page 754]]
in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of
problems accessing these documents, please call the contact listed
below.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. All comments received are a part of
the public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable without change.
All personal identifying information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information.
FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, Office of
Protected Resources, NMFS, (301) 427-8401.
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.
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 NAO 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has preliminarily determined
that the issuance of the proposed IHA qualifies to be categorically
excluded from further NEPA review.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process or making a final decision on the
IHA request.
Summary of Request
On August 31, 2023, NMFS received a request from Atlantic Shores
for an IHA to take marine mammals incidental to conducting marine site
characterization surveys in waters off of New York, New Jersey,
Delaware, and Maryland, specifically within BOEM Lease Areas OCS-A
0499, OCS-A 0541, OCS-A 0549, and associated ECC areas. Following NMFS'
review of the application, Atlantic Shores submitted revised versions
on October 11 and November 17, 2023. The application was deemed
adequate and complete on November 20, 2023. Atlantic Shores' request is
for take of small numbers of 14 species (15 stocks) of marine mammals
by Level B harassment. Neither Atlantic Shores nor NMFS expect serious
injury or mortality to result from this activity and, therefore, an IHA
is appropriate.
NMFS previously issued IHAs to Atlantic Shores for similar work (85
FR 21198, April 16, 2020; 86 FR 21289, April 22, 2021; 87 FR 24103,
April 20, 2022; 87 FR 50293, August 10, 2022; 88 FR 38821, June 9,
2023; 88 FR 54575, August 10, 2023). Atlantic Shores complied with all
the requirements (e.g., mitigation, monitoring, and reporting) of the
previous IHAs and did not exceed authorized levels of take under
previous IHAs issued for surveys offshore of New York and New Jersey.
These previous monitoring results are available to the public on our
website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization and https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-bight-llcs-marine-site.
Description of Proposed Activity
Overview
Atlantic Shores proposes to conduct marine site characterization
surveys, including high-resolution geophysical (HRG) surveys, in waters
off of New York, New Jersey, Delaware, and Maryland, specifically
within BOEM Lease Areas OCS-A 0499, OCS-A 0541, OCS-A 0549, and
associated ECC areas, collectively considered the Survey Area.
Atlantic Shores currently has two active IHAs associated with
ongoing HRG survey activities: one in BOEM Lease Areas OCS-A 0499 and
OCS-A 0549 effective June 9, 2023 through June 8, 2024 (88 FR 38821)
and another in BOEM Lease Area OCS-A 0541 effective August 10, 2023
through August 9, 2024 (88 FR 54575). The purpose of the IHA request
addressed herein is to combine all ongoing HRG survey activities,
including remaining survey activity associated with the two existing
IHAs as well as new activity, under a single IHA. The new activity
includes additional areas not currently covered under either currently
active Atlantic Shores HRG survey IHAs. If NMFS ultimately makes the
required determinations and issues the requested IHA, NMFS will
concurrently modify the effective dates of the two active IHAs to
reflect an end date that is one day earlier in time than the start date
of the requested IHA.
The proposed marine site characterization surveys are designed to
obtain data sufficient to meet BOEM guidelines for providing
geophysical, geotechnical, and geohazard information for site
assessment plan surveys and/or construction and operations plan
development. The objective of the surveys is to support the site
characterization, siting, and engineering design of offshore wind
project facilities including wind turbine generators, offshore
substations, and submarine cables within the Survey Area. Up to two
vessels may conduct survey efforts concurrently. Underwater sound
resulting from Atlantic Shores'
[[Page 755]]
marine site characterization survey activities, specifically HRG
surveys, have the potential to result in incidental take of marine
mammals in the form of Level B harassment.
Dates and Duration
The proposed activity is planned to begin on April 1, 2024. The
proposed surveys are estimated to require a maximum of 300 survey days
within a single year across a maximum of two vessels, which would
include one vessel operating nearshore (less than 10 meters (m; 33 feet
(ft)) depth) and one vessel operating offshore (greater than 10 m (33
ft) depth). The survey days are proposed to occur any month throughout
the year as the exact timing of the surveys during the year is not yet
certain. A ``survey day'' is defined as a 24-hour (hr) activity period
in which an active acoustic sound source is used offshore and a 12-hr
activity period when a vessel is operating nearshore. Surveyed at a
speed of approximately 3.5 knots (kn; 6.5 kilometer (km) per hr (km/
hr)), it is expected that the nearshore vessel would cover
approximately 30 km (18.6 miles (mi)) of trackline per day, and the
offshore vessel would cover approximately 140 km (87 mi) of trackline
per day, based on Atlantic Shores' data acquisition efficiency
expectations.
Table 1--Proposed Survey Days
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Number of active
Survey area survey days Survey distance Annual survey
expected per day (km) distance (km)
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Nearshore........................................... 120 30 3,600
Offshore............................................ 180 140 25,200
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Specific Geographic Region
Atlantic Shores' proposed activities would occur in the Northwest
Atlantic Ocean within Federal and State waters off of New York, New
Jersey, Delaware, and Maryland in BOEM Lease Areas OCS-A 0499, OCS-A
0541, OCS-A 0549, and along the associated ECC areas (Figure 1).
Overall, the Survey Area is approximately 20,251 square kilometers
(km2; 7,819 mi2) and extends from the shoreline
to approximately 74 km (46 mi) offshore and a maximum depth of
approximately 60 m (197 ft).
BILLING CODE 3510-22-P
[[Page 756]]
[GRAPHIC] [TIFF OMITTED] TN05JA24.000
BILLING CODE 3510-22-C
Detailed Description of the Specified Activity
Atlantic Shores' marine site characterization surveys within the
Survey Area include geotechnical and geophysical surveys, including
depth sounding to determine water depth, site bathymetry, and general
seafloor topography using a single beam and multibeam echosounder
(MBES); magnetic intensity measurements using a gradiometer; seafloor
imaging using a side scan sonar; shallow penetration sub-bottom
profilers (SBPs; parametric); and a medium penetration SBP (sparker).
NMFS does not expect the following acoustic sources to present a
reasonably anticipated risk of causing incidental take of marine
mammals, and these activities are not discussed further in this notice:
Single and MBES and side-scan sonars are used to determine
water depths and general seafloor topography. The proposed MBES and
side-scan sonar both have operating frequencies greater than 180
kilohertz (kHz) and are,
[[Page 757]]
therefore, outside the general hearing range of marine mammals.
Gradiometers are used to detect local variations in
regional magnetic field from geological strata and potential ferrous
objects on and below the seafloor. The proposed gradiometer has an
operating frequency greater than 180 kHz and is, therefore, outside the
general hearing range of marine mammals.
Parametric SBPs are shallow penetration non-impulsive
sources used to map the near-surface stratigraphy (soil down to 5 m) of
sediment below seabed and can provide high data density in subsurface
profiles that are typically required for cable routes, very shallow
water, and archaeological surveys. These sources generate short, very
narrow-beam (1 to 3.5 degrees ([deg])) signals at high frequencies
(generally around 85-115 kHz). The narrow beamwidth significantly
reduces the potential that a marine mammal could be exposed to the
signal while the high frequency of operation means that the signal is
rapidly attenuated in seawater (and cannot be heard by mysticetes).
These sources are typically deployed on a pole rather than towed behind
the vessel.
Atlantic Shores proposes to use a sparker during HRG survey
activities that has the potential to cause incidental take of marine
mammals. Sparkers are medium penetration impulsive sources used to map
deep subsurface stratigraphy (soils down to at least 100 m (328 ft)
below the seabed in sand and at least 125 m (410 ft) below the seabed
in mixed sediments). Sparkers create omnidirectional acoustic pulses
from 50 hertz (Hz) to 4 kHz, are typically towed behind the vessel, and
may be operated with different numbers of electrode tips to allow
tuning of the acoustic waveform for specific applications. There is one
sparker system planned for use: GeoMarine Geo-Source 400, which would
collect two-dimensional (2D) single-channel ultra-high resolution
seismic (SUHRS) data while operating 400 tips at a power level of 400
Joules (J; table 2).
Table 2--Representative Survey Equipment Expected To Result in Take of Marine Mammals
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Operational Typical pulse Pulse
HRG survey equipment (sub-bottom Representative equipment Operating frequency ranges source level Beamwidth duration RMS90 repetition
profiler) type (kHz) (dBRMS) (degree) (ms) rate (Hz)
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Sparker............................... Geo Marine Survey System 0.2 to 5................... 195 180 7.2 0.41
2D SUHRS.
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Note: Atlantic Shores proposes to use the data provided for the SIG ELC 820 operating at a power of 400 J using 100 electrode tips as a proxy for the
sparker system listed above (see Estimated Take section for additional discussion).
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Proposed
Mitigation and Proposed Monitoring and Reporting).
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions instead of reprinting the information. Additional
information regarding population trends and threats may be found in
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
Table 3 lists all species or stocks for which take is expected and
proposed to be authorized for this activity 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 proposed
to be authorized here, PBR and annual serious injury and mortality
(annual M/SI) from anthropogenic sources are included here as gross
indicators of the status of the species or stocks 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. 2022 SARs. All values presented in table 3 are the most
recent available at the time of publication and are available online
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.
Table 3--Species and Stocks Likely Impacted by the Specified Activities \1\
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ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
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Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
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Family Balaenidae:
N Atlantic Right Whale \5\...... Eubalaena glacialis.... Western Atlantic....... E, D, Y 338 (0, 332, 2020).... 0.7 31.2
Family Balaenopteridae (rorquals):
Fin Whale....................... Balaenoptera physalus.. Western N Atlantic..... E, D, Y 6,802 (0.24, 5,573, 11 1.8
2016).
Humpback Whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, N 1,396 (0, 1380, 2016). 22 12.15
Minke Whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31, 17,002, 170 10.6
acutorostrata. Coastal. 2016).
[[Page 758]]
Sei Whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02, 3,098, 6.2 0.8
2016).
Family Delphinidae:
Long-Finned Pilot Whale......... Globicephala melas..... Western N Atlantic..... -, -, N 39,215 (0.30, 30,627, 306 9
2016).
Atlantic Spotted Dolphin........ Stenella frontalis..... Western N Atlantic..... -, -, N 39,921 (0.27, 32,032, 320 0
2016).
Atlantic White-Sided Dolphin.... Lagenorhynchus acutus.. Western N Atlantic..... -, -, N 93,233 (0.71, 54,443, 544 27
2016).
Bottlenose Dolphin.............. Tursiops truncatus..... Northern Migratory -, -, Y 6,639 (0.41, 4,759, 48 12.2-
Coastal. 2016). 21.5
Bottlenose Dolphin.............. Tursiops truncatus..... Western N Atlantic -, -, N 62,851 (0.23, 51,914, 519 28
Offshore. 2016).
Risso's Dolphin................. Grampus griseus........ Western N Atlantic..... -, -, N 35,215 (0.19, 30,051, 301 34
2016).
Common Dolphin.................. Delphinus delphis...... Western N Atlantic..... -, -, N 172,974 (0.21, 1,452 390
145,216, 2016).
Family Phocoenidae (porpoises):
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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Family Phocidae (earless seals):
Gray Seal \6\................... Halichoerus grypus..... Western N Atlantic..... -, -, N 27,300 (0.22, 22,785, 1,458 4,453
2016).
Harbor Seal..................... Phoca vitulina......... Western N Atlantic..... -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
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\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal SARs online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.
CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
\5\ Linden (2023) estimated the population size in 2022 as 356 individuals, with a 95 percent credible interval ranging from 346 to 363. NMFS
acknowledges this most recent estimation in addition to the 2022 SAR stock abundance estimate.
\6\ NMFS's stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 451,600. The annual M/SI given is for the total stock.
As indicated above, all 14 species (15 managed stocks) in table 3
temporally and spatially co-occur with the proposed activity to the
degree that take is reasonably likely to occur. While other species
have been documented in the area (see table 3-1 of the IHA
application), the temporal and/or spatial occurrence of these species
is such that take is not expected to occur, and they are not discussed
further.
North Atlantic Right Whale
North Atlantic right whales (NARW) range from calving grounds in
the southeastern United States to feeding grounds in New England waters
and into Canadian waters (Hayes et al., 2023). They are observed year
round in the Mid-Atlantic Bight, and surveys have demonstrated the
existence of seven areas where NARW congregate seasonally in Georges
Bank, off Cape Cod, and in Massachusetts Bay (Hayes et al., 2023). In
the late fall months (e.g., October), NARW are generally thought to
depart from the feeding grounds in the North Atlantic and move south to
their calving grounds off Georgia and Florida. However, recent research
indicates our understanding of their movement patterns remains
incomplete (Davis et al., 2017). A review of passive acoustic
monitoring data from 2004 to 2014 throughout the western North Atlantic
demonstrated nearly continuous year-round NARW presence across their
entire habitat range (for at least some individuals), including in
locations previously thought of as migratory corridors, suggesting that
not all of the population undergoes a consistent annual migration
(Davis et al., 2017). Given that Atlantic Shores' surveys would be
concentrated in the New York Bight and Mid-Atlantic Bight, some NARW
may be present year round. However, the majority of NARW in the
vicinity of the Survey Area are likely to be transient, migrating
through the area.
Recent aerial surveys in the New York Bight showed NARW in the
proposed Survey Area in the winter and spring, preferring deeper waters
near the shelf break (NARW observed in depths ranging from 33-1,041 m)
but were observed throughout the aerial survey area (Zoidis et al.,
2021, Robinson et al., 2021). Similarly, passive acoustic data
collected from 2018 to 2020 in the New York Bight showed detections of
NARW throughout the year (Estabrook et al., 2021). Seasonally, NARW
acoustic presence was highest in the fall. NARW can be anticipated to
occur in the proposed Survey Area year-round but with lower levels in
the summer from July-September.
Since 2010, the NARW population has been in decline (Pace III et
al., 2017), with a 40 percent decrease in calving rate (Kraus et al.,
2016). In 2018, no new NARW calves were documented in their calving
grounds; this represented the first time since annual NOAA aerial
surveys began in 1989 that no new NARW calves were observed. Calf
numbers have increased since 2018 with 20 NARW calves documented in
2021 and 15 in 2022.
Elevated NARW mortalities have occurred since June 7, 2017, along
the U.S. and Canadian coast. This event has been declared an unusual
mortality event (UME), with human interactions, including entanglement
in fixed fishing gear and vessel strikes, implicated in at least 60 of
the mortalities or serious injuries thus far. As of October 4, 2023, a
total of 121 confirmed cases of mortality, serious injury, or morbidity
(sublethal injury or illness) have been documented. The preliminary
cause of most of these cases is from rope entanglements or vessel
strikes. More information is available online at: https://
www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-
[[Page 759]]
north-atlantic-right-whale-unusual-mortality-event.
The proposed Survey Area is within a migratory corridor
biologically important area (BIA) for NARW that extends from
Massachusetts to Florida (LaBrecque et al., 2015). There is possible
migratory behavior that could occur in this area between November and
April. Off the coast of New Jersey, the migratory BIA extends from the
coast to beyond the shelf break.
NMFS' regulations at 50 CFR 224.105 designated nearshore waters of
the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal Management Areas
(SMA) for NARW in 2008. SMAs were developed to reduce the threat of
collisions between ships and NARW around their migratory route and
calving grounds. The New York/New Jersey SMA, which occurs in the New
York Bight, is in the proposed Survey Area and is active from November
1 through April 30 of each year. Within SMAs, the regulations require a
mandatory vessel speed (less than 10 kn (18.52 km/hr)) or 5.14 m/sec
for all vessels longer than 19.8 m (65 ft).
On August 1, 2022, NMFS announced proposed changes to the existing
NARW 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,
August 1, 2022). 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.
Fin Whale
Fin whales are present north of 35[deg] N latitude in every season
and are broadly distributed throughout the western North Atlantic for
most of the year (Hayes et al., 2022). They are typically found in
small groups of up to five individuals (Brueggeman et al., 1987). The
main threats to fin whales are fishery interactions and vessel
collisions (Hayes et al., 2022).
The western North Atlantic stock of fin whales includes the area
from central Virginia to Newfoundland/Labrador, Canada. This region is
primarily a feeding ground for this migratory species that tend to
calve and breed in lower latitudes or offshore. There is currently no
critical habitat designated for this species.
Aerial surveys in the New York Bight observed fin whales year-round
throughout the proposed Survey Area, but they preferred deeper waters
near the shelf break (Robinson et al., 2021). Passive acoustic data
from 2018-2020 also detected fin whales throughout the year (Estabrook
et al., 2021).
Humpback Whale
On September 8, 2016, NMFS divided the once single species of
humpback whales into 14 distinct population segments (DPSs), removed
the current species-level listing, and, instead, listed four DPSs as
endangered and one DPS as threatened (81 FR 62259, September 8, 2016).
The remaining nine DPSs were not listed. The West Indies DPS, which is
not listed under the ESA, is the only DPS of humpback whale that is
expected to occur in the Survey Area. Members of the West Indies DPS
disperse to multiple western North Atlantic feeding populations,
including the Gulf of Maine stock designated under the MMPA. Whales
occurring in the proposed survey area are considered to be from the
West Indies DPS but are not necessarily from the Gulf of Maine stock.
Barco et al. (2002) estimated that, based on photo-identification, only
39 percent of individual humpback whales observed along the mid- and
south Atlantic U.S. coast are from the Gulf of Maine stock. Bettridge
et al. (2015) estimated the size of this population at 12,312 (95
percent confidence interval (CI) 8,688-15,954) whales in 2004-2005,
which is consistent with previous population estimates of approximately
10,000-11,000 whales (Stevick et al., 2003, Smith et al., 1999) and the
increasing trend for the West Indies DPS (Bettridge et al., 2015).
Humpback whales utilize the mid-Atlantic as a migration pathway
between calving/mating grounds to the south and feeding grounds in the
north (Waring et al., 2007a, Waring et al., 2007b). A key question with
regard to humpback whales off the Mid-Atlantic States is to which
feeding population whales in these waters belong.
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. Partial or
full necropsy examinations have been conducted on approximately half of
the 209 known cases (as of November 2, 2023). Of the whales examined,
about 40 percent had evidence of human interaction, either vessel
strike or entanglement. While a portion of the whales have shown
evidence of pre-mortem vessel strike, this finding is not consistent
across all whales examined and more research is needed. NOAA is
consulting with researchers that are conducting studies on the humpback
whale populations, and these efforts may provide information on changes
in whale distribution and habitat use that could provide additional
insight into how these vessel interactions occurred. More information
is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.
Minke Whale
Minke whales can be found in temperate, tropical, and high-latitude
waters. The Canadian East Coast stock can be found in the area from the
western half of the Davis Strait (45[deg] W longitude) to the Gulf of
Mexico (Hayes et al., 2022). This species generally occupies waters
less than 100 m deep on the continental shelf. There appears to be a
strong seasonal component to minke whale distribution in the Survey
Area, in which spring to fall are times of relatively widespread and
common occurrence while during winter the species appears to be largely
absent (Hayes et al., 2022). Aerial surveys in the New York Bight area
found that minke whales were observed throughout the proposed Survey
Area with highest numbers sighting in the spring months (Robinson et
al., 2021).
Since January 2017, elevated minke whale mortalities have occurred
along the Atlantic coast from Maine through South Carolina, with a
total of 160 strandings (as of September 26, 2023). This event has been
declared a UME; as of 2023, it is pending closure. Full or partial
necropsy examinations were conducted on more than 60 percent of the
stranded whales. Preliminary findings in several of the whales have
shown evidence of human interactions or infectious disease, but these
findings are not consistent across all of the whales examined, so more
research is needed. More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast.
[[Page 760]]
Sei Whale
The Nova Scotia stock of sei whales can be found in deeper waters
of the continental shelf edge waters of the northeastern U.S. and
northeastward to south of Newfoundland. Sei whales occur in shallower
waters to feed. Currently there is no critical habitat for sei whales,
though they can be observed along the shelf edge of the continental
shelf. The main threats to this stock are interactions with fisheries
and vessel collisions.
Aerial surveys conducted in the New York Bight observed sei whales
in both winter and spring, though they preferred deeper waters near the
shelf break (Robinson et al., 2021). Passive acoustic data in the
proposed Survey Area detected sei whales throughout the year except
January and July with highest detections in March and April (Estabrook
et al., 2021).
Long-Finned Pilot Whale
Only long-finned pilot whales are expected to occur in this project
area due to their more northerly distribution and association with
colder water compared to short-finned pilot whales (Garrison and Rosel,
2017). Long-finned pilot whales are found from North Carolina to
Iceland, Greenland, and the Barents Sea (Hayes et al., 2022). In U.S.
Atlantic waters, the Western North Atlantic stock is distributed
principally along the continental shelf edge off the northeastern U.S.
coast in winter and early spring. In late spring, pilot whales move
onto Georges Bank and into the Gulf of Maine and more northern waters
and remain in these areas through late autumn (Hayes et al., 2022).
Atlantic Spotted Dolphin
Atlantic spotted dolphins are found in tropical and warm temperate
waters ranging from southern New England, south to the Gulf of Mexico
and the Caribbean to Venezuela (Hayes et al., 2020). The Western North
Atlantic stock regularly occurs in continental shelf waters south of
Cape Hatteras, North Carolina and in continental shelf edge and
continental slope waters north of this region (Hayes et al., 2020).
Atlantic White-Sided Dolphin
White-sided dolphins are found in temperate and sub-polar waters of
the North Atlantic, primarily in continental shelf waters to the 100-m
depth contour from central west Greenland to North Carolina (Hayes et
al., 2022). The Gulf of Maine stock is most common in continental shelf
waters from Hudson Canyon to Georges Bank and in the Gulf of Maine and
lower Bay of Fundy. Sighting data indicate seasonal shifts in
distribution (Northridge et al., 1997). During January to May, low
numbers of white-sided dolphins are found from Georges Bank to Jeffreys
Ledge (off New Hampshire) with even lower numbers south of Georges Bank
as documented by a few strandings collected on beaches of Virginia to
South Carolina. From June through September, large numbers of white-
sided dolphins are found from Georges Bank to the lower Bay of Fundy.
From October to December, white-sided dolphins occur at intermediate
densities from southern Georges Bank to southern Gulf of Maine (Payne
and Heinemann, 1990). Sightings south of Georges Bank, particularly
around Hudson Canyon, occur year round but at low densities. Aerial
studies confirmed observations in fall and winter in the New York Bight
area with preference for deep water at the shelf break throughout the
year (Robinson et al., 2021).
Bottlenose Dolphin
There are two distinct bottlenose dolphin morphotypes in the
Western North Atlantic: coastal and offshore (Hayes et al., 2020, Hayes
et al., 2021). Coastal morphotype dolphins generally reside in waters
along the inner continental shelf (within 7.5 km (4.6 mi) of shore),
around islands, and are continuously distributed south of Long Island,
New York, into the Gulf of Mexico. Coastal dolphins in this area are
expected to belong to the Northern Migratory Coastal Stock. Torres et
al. (2003) found a statistically significant break in the distribution
of the morphotypes at 34 km from shore based upon the genetic analysis
of tissue samples collected in nearshore and offshore waters from New
York to central Florida. Both morphotypes are likely to occur in the
proposed Survey Area. The offshore stock is distributed primarily along
the outer continental shelf and continental slope in the Northwest
Atlantic Ocean from Georges Bank to the Florida Keys.
Risso's Dolphin
The Western North Atlantic stock of Risso's dolphin occurs from
Florida to eastern Newfoundland. They are common on the northwest
Atlantic continental shelf in summer and fall with lower abundances in
winter and spring. Aerial surveys in the New York Bight area sighted
Risso's dolphins throughout the year at the shelf break with highest
abundances in spring and summer (Robinson et al., 2021).
Common Dolphin
Common dolphins within the U.S. Atlantic Exclusive Economic Zone
(EEZ) belong to the Western North Atlantic stock, generally occurring
from Cape Hatteras to the Scotian Shelf (Hayes et al., 2022). Common
dolphins are a highly seasonal, migratory species. Within the U.S.
Atlantic EEZ, this species is distributed along the continental shelf
and typically associated with Gulf Stream features (Cetacean and Turtle
Assessment Program, 1982, Hamazaki, 2002, Selzer and Payne, 1988, Hayes
et al., 2022). They are commonly found over the continental shelf
between the 100-m and 2,000-m isobaths and over prominent underwater
topography and east to the mid-Atlantic Ridge (Hayes et al., 2022).
Common dolphins occur from Cape Hatteras northeast to Georges Bank
(35[deg] N to 42[deg] N latitude) during mid-January to May and move as
far north as the Scotian Shelf from mid-summer to fall (Selzer and
Payne, 1988). Migration onto the Scotian Shelf and continental shelf
off Newfoundland occurs when water temperatures exceed 51.8 [deg]F
(11[deg] Celsius; (Sergeant et al., 1970, Gowans and Whitehead, 1995).
Breeding usually takes place between June and September (Hayes et al.,
2022). Summer surveys included observations of the most individuals
followed by fall, winter, and then spring.
Harbor Porpoise
In the project area, only the Gulf of Maine/Bay of Fundy stock of
harbor porpoises may be present in the fall and winter. This stock is
found in U.S. and Canadian Atlantic waters and is concentrated in the
northern Gulf of Maine and southern Bay of Fundy region, generally in
waters less than 150 m deep (Hayes et al., 2022). During fall (October-
December) and spring (April-June), they are more widely dispersed from
New Jersey to Maine with lower densities farther north and south. In
winter (January-March), intermediate densities of harbor porpoises can
be found in waters off New Jersey to North Carolina with lower
densities found in waters off New York to New Brunswick, Canada (Hayes
et al., 2022). They are seen from the coastline to deep waters (greater
than 1,800 m; (Westgate and Read, 1998), although the majority of the
population is found over the continental shelf (Hayes et al., 2022).
The main threat to the species is interactions with fisheries, with
documented take in the U.S. northeast sink gillnet, mid-Atlantic
gillnet, and northeast bottom trawl fisheries and in the Canadian
herring weir fisheries (Hayes et al., 2022).
[[Page 761]]
Pinnipeds (Gray Seal and Harbor Seal)
Gray seals have been observed in the proposed Survey Area and these
seals belong to the western North Atlantic stock. The range for this
stock is thought to be from New Jersey to Labrador Sea. Current
population trends show that gray seal abundance is likely increasing in
the U.S. Atlantic EEZ (Hayes et al., 2021). Although the rate of
increase is unknown, surveys conducted since their arrival in the 1980s
indicate a steady increase in abundance in both Maine and Massachusetts
(Hayes et al., 2021). It is believed that recolonization by Canadian
gray seals is the source of the U.S. population increase (Hayes et al.,
2021). Documented haulouts for gray seals exist in the Long Island
area, with a possible rookery on Little Gull Island.
Since June 2022, elevated numbers of sick and dead harbor seals and
gray seals have been documented along the southern and central coast of
Maine. This event has also been declared a UME; as of late 2023, it is
pending closure. Preliminary testing of samples found that some harbor
and gray seals were positive for the highly pathogenic avian influenza.
NMFS and other partners are working on an ongoing investigation of this
UME. From June 1, 2022-July 16, 2023, there have been 492 seal
strandings. Information on these UMEs are available online at: https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast.
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), Southall et al. (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 dB threshold from the normalized composite audiograms,
with the exception for lower limits for low-frequency cetaceans where
the lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in table 4.
Table 4--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans (dolphins, 150 Hz to 160 kHz.
toothed whales, beaked whales, bottlenose
whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus cruciger
& L. australis).
Phocid pinnipeds (PW) (underwater) (true 50 Hz to 86 kHz.
seals).
Otariid pinnipeds (OW) (underwater) (sea 60 Hz to 39 kHz.
lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006, Kastelein et al., 2009, Reichmuth et al.,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
Detailed descriptions of the potential effects of similar specified
activities have been provided in other recent Federal Register notices,
including for survey activities using the same methodology by Atlantic
Shores (87 FR 4200, January 27, 2022; 87 FR 24103, April 22, 2022; 87
FR 38067, June 27, 2022; 87 FR 50293, August 16, 2022). At present,
there is no new information on potential effects that would impact our
analysis and we incorporate by reference the detailed discussions in
those documents rather than repeating the details here.
The Estimated Take section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The Negligible Impact Analysis and
Determination section considers the content of this section, the
Estimated Take section, and the Proposed Mitigation section, to draw
conclusions regarding the likely impacts of these activities on the
reproductive success or survivorship of individuals and whether those
impacts are reasonably expected to, or reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.
Summary on Specific Potential Effects of Acoustic Sound Sources
For general information on sound, its interaction with the marine
environment, and a description of acoustic terminology, please see,
e.g., (Institute, 1986, Institute, 1995, Au and Hastings, 2008,
Hastings and Popper, 2005, Mitson, 1995, Health, 1998, Southall et al.,
2007, Urick, 1983). Underwater sound from active acoustic sources can
cause one or more of the following: temporary or permanent hearing
impairment, behavioral disturbance, masking, stress, and non-auditory
physical effects. The degree of effect is intrinsically related to the
signal characteristics, received level, distance from the source, and
duration of the sound exposure. Marine mammals exposed to high-
intensity sound, or to lower-intensity sound for
[[Page 762]]
prolonged periods, can experience hearing threshold shift (TS), which
is the loss of hearing sensitivity at certain frequency ranges
(Finneran, 2015). TS can be permanent (PTS; permanent threshold shift),
in which case the loss of hearing sensitivity is not fully recoverable,
or temporary (TTS; temporary threshold shift), in which case the
animal's hearing threshold would recover over time (Southall et al.,
2007).
When PTS occurs, there is physical damage to the sound receptors in
the ear (i.e., tissue damage), whereas TTS represents primarily tissue
fatigue and is reversible (Southall et al., 2007). In addition, other
investigators have suggested that TTS is within the normal bounds of
physiological variability and tolerance and does not represent physical
injury (e.g., Ward, 1997). Therefore, NMFS does not consider TTS to
constitute auditory injury.
Animals in the vicinity of Atlantic Shores' proposed HRG survey
activities are unlikely to incur even TTS due to the characteristics of
the sound source, which include generally very short pulses and
potential duration of exposure. These characteristics mean that
instantaneous exposure is unlikely to cause TTS because it is unlikely
that exposure would occur close enough to the vessel for received
levels to exceed peak pressure TTS criteria, and the cumulative
duration of exposure would be insufficient to exceed cumulative sound
exposure level (SEL) criteria. Even for high-frequency cetacean species
(e.g., harbor porpoises), which have the greatest sensitivity to
potential TTS, individuals would have to make a very close approach and
remain very close to the vessel operating the source in order to
receive multiple exposures at relatively high levels as would be
necessary to cause TTS. Intermittent exposures--as would occur due to
the brief, transient signals produced by these sources--require a
higher cumulative SEL to induce TTS than would continuous exposures of
the same duration (i.e., intermittent exposure results in lower levels
of TTS). Moreover, most marine mammals would more likely avoid a loud
sound source rather than swim in such close proximity as to result in
TTS. Kremser et al. (2005) noted that the probability of a cetacean
swimming through the area of exposure when a sub-bottom profiler emits
a pulse is small--because if the animal was in the area, it would have
to pass the transducer at close range in order to be subjected to sound
levels that could cause TTS and would likely exhibit avoidance behavior
to the area near the transducer rather than swim through at such a
close range.
Behavioral disturbance to marine mammals from sound may include a
variety of effects, including subtle changes in behavior (e.g., minor
or brief avoidance of an area or changes in vocalizations), more
conspicuous changes in similar behavioral activities, and more
sustained and/or potentially severe reactions, such as displacement
from or abandonment of high-quality habitat. Behavioral responses to
sound are highly variable and context-specific and any reactions depend
on numerous intrinsic and extrinsic factors (e.g., species, state of
maturity, experience, current activity, reproductive state, auditory
sensitivity, time of day), as well as the interplay between factors.
Available studies show wide variation in response to underwater sound;
therefore, it is difficult to predict specifically how any given sound
in a particular instance might affect marine mammals perceiving the
signal.
In addition, sound can disrupt behavior through masking, or
interfering with, an animal's ability to detect, recognize, or
discriminate between acoustic signals of interest (e.g., those used for
intraspecific communication and social interactions, prey detection,
predator avoidance, navigation). Masking occurs when the receipt of a
sound is interfered with by another coincident sound at similar
frequencies and at similar or higher intensity, and may occur whether
the sound is natural (e.g., snapping shrimp, wind, waves,
precipitation) or anthropogenic (e.g., shipping, sonar, seismic
exploration) in origin. Marine mammal communications would not likely
be masked appreciably by the acoustic signals given the directionality
of the signals for the HRG survey equipment planned for use (table 2)
and the brief period for when an individual mammal would likely be
exposed.
Sound may affect marine mammals through impacts on the abundance,
behavior, or distribution of prey species (e.g., crustaceans,
cephalopods, fish, zooplankton) (i.e., effects to marine mammal
habitat). Prey species exposed to sound might move away from the sound
source, experience TTS, experience masking of biologically relevant
sounds, or show no obvious direct effects. The most likely impacts, if
any, for most prey species in a given area would be temporary avoidance
of the area. Surveys using active acoustic sound sources move through
an area, limiting exposure to multiple pulses. In all cases, sound
levels would return to ambient once a survey ends and the noise source
is shut down and, when exposure to sound ends, behavioral and/or
physiological responses are expected to end relatively quickly.
Finally, the HRG survey equipment will not have significant impacts to
the seafloor and does not represent a source of pollution.
Vessel Strike
Vessel collisions with marine mammals, or vessel strikes, can
result in death or serious injury of the animal. These interactions are
typically associated with large whales, which are less maneuverable
than are smaller cetaceans or pinnipeds in relation to large vessels.
Vessel strikes generally involve commercial shipping vessels, which are
normally larger and of which there is much more traffic in the ocean
than geophysical survey vessels. Jensen et al. (2003) summarized vessel
strikes of large whales worldwide from 1975-2003 and found that most
collisions occurred in the open ocean and involved large vessels (e.g.,
commercial shipping). For vessels used in geophysical survey
activities, vessel speed while towing gear is typically only 4-5 kn
(2.1-2.6 m/s). At these speeds, both the possibility of striking a
marine mammal and the possibility of a strike resulting in serious
injury or mortality are so low as to be discountable. At average
transit speed for geophysical survey vessels, the probability of
serious injury or mortality resulting from a strike is less than 50
percent. However, the likelihood of a strike actually happening is
again low given the smaller size of these vessels proposed for use and
generally slower speeds. Notably in the Jensen and Silber study, no
strike incidents were reported for geophysical survey vessels during
that time period.
The potential effects of Atlantic Shores' specified survey activity
are expected to be limited to Level B behavioral harassment. No
permanent or temporary auditory effects or significant impacts to
marine mammal habitat, including prey, are expected.
Estimated Take
This section provides an estimate of the number of incidental takes
proposed for authorization through 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);
[[Page 763]]
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to sound produced by the sparker. Based on the
characteristics of the signals produced by the acoustic source planned
for use (i.e., sparker), Level A harassment is neither anticipated
(even absent mitigation) nor proposed to be authorized. As described
previously, no serious injury or mortality is anticipated or proposed
to be authorized for this activity. Below, we describe how the proposed
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 proposed 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, Southall et al., 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 RMS pressure received levels (RMS SPL) of 120 dB (referenced to 1
microPascal (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.
Generally speaking, Level B harassment take estimates based on
these behavioral harassment thresholds are expected to include any
likely takes by TTS as, in most cases, the likelihood of TTS occurs at
distances from the source less than those at which behavioral
harassment is likely. TTS of a sufficient degree can manifest as
behavioral harassment, as reduced hearing sensitivity and the potential
reduced opportunities to detect important signals (e.g., conspecific
communication, predators, prey) may result in changes in behavior
patterns that would not otherwise occur.
Atlantic Shores' marine site characterization surveys include the
use of an impulsive (i.e., sparker) source, and therefore the SPL
threshold of 160 dB re 1 [mu]Pa is applicable.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0;
(NMFS, 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).
The references, analysis, and methodology used in the development
of the thresholds are described in NMFS' 2018 Technical Guidance, which
may be accessed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
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 estimating the
extent of the Level B harassment isopleths associated with relevant HRG
survey equipment (NMFS, 2020). This methodology incorporates frequency
and directionality (when relevant) to refine estimated ensonified
zones. For acoustic sources that operate with different beamwidths, the
maximum beamwidth was used, and the lowest frequency of the source was
used when calculating the frequency-dependent absorption coefficient
(table 2). Atlantic Shores used 180[deg] beamwidth in the calculation
for the proposed sparker system as is appropriate for an
omnidirectional source.
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG survey 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 where the source level for a specific type of HRG
equipment is not provided in Crocker and Fratantonio (2016), NMFS
recommends that, in instances where data from a suitable proxy is
presented, Crocker and Fratantonio (2016) be used, or, alternatively,
when no suitable proxy is available, source levels provided by the
manufacturer may be used instead. Table 2 shows the HRG equipment type
used during the proposed surveys and the source levels associated with
the HRG equipment type.
Atlantic Shores proposes to use the GeoMarine Geo-Source 400 Marine
Multi-tip Sparker System (400 tip/400 J). No data are provided by
Crocker and Fratantonio (2016) for the GeoMarine Geo-Source sparker
system, therefore, Atlantic Shores proposes to use the data provided
for the SIG ELC 820 operating at 400 J with 100 electrode tips as a
proxy for the GeoMarine Geo-Source operating at 400 J with 400
electrode tips. Crocker and Fratantonio (2016) indicates an operational
source level of 195 dBRMS for the SIG ELC 820 while
operating at a power of 400 J using 100 electrode tips, and Atlantic
Shores has determined that an increase in the number of electrode tips
decreases the overall peak source pressure translating to a lower
operational source level. NMFS concurs with this selection, which is
described in table 2. Using the proxy source level of 195 dB RMS SPL
[[Page 764]]
results in an estimated distance of 56 m to the Level B harassment
isopleth.
Marine Mammal Occurrence
In this section, we provide information about the occurrence of
marine mammals, including density or other relevant information which
will inform the take calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2023) represent the best
available information regarding marine mammal densities in the proposed
Survey Area. These density data incorporate aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporate
data from numerous physiographic and dynamic oceanographic and
biological covariates, and controls for the influence of sea state,
group size, availability bias, and perception bias on the probability
of making a sighting. These density models were originally developed
for all cetacean taxa in the U.S. Atlantic in 2016 and models for all
taxa were updated in 2022 (Roberts et al., 2023). More information is
available online at: https://seamap.env.duke.edu/models/Duke/EC/.
Marine mammal density estimates in the proposed Survey Area (animals/
km\2\) were obtained using the most recent model results for all taxa.
For the exposure analysis, density data from Roberts et al. (2023)
were mapped using a geographic information system (GIS). For the
proposed Survey Area, the monthly densities of each species as reported
by Roberts et al. (2023) were averaged by season; thus, a density was
calculated for each species for spring, summer, fall, and winter.
Density seasonal averages were calculated for both the nearshore and
offshore areas (i.e., inside and outside the 10-m isobath) for each
species to assess the greatest average seasonal densities for each
species. To be conservative since the exact timing for the survey
during the year is uncertain, the greatest average seasonal density
calculated for each species was carried forward in the exposure
analysis, with exceptions noted later in this discussion. Estimated
greatest average seasonal densities (animals/km\2\) of marine mammal
species that may be taken incidental to the proposed survey can be
found in tables C-1 and C-2 of Atlantic Shores' IHA application. Below,
we discuss how densities were assumed to apply to specific species for
which the Roberts et al. (2023) models provide results at the genus or
guild level.
There are two stocks of bottlenose dolphins that may be impacted by
the surveys (Western North Atlantic Northern Migratory Coastal Stock
(coastal stock) and Western North Atlantic Offshore Stock (offshore
stock)), however, Roberts et al. (2023) do not differentiate by stock.
These two stocks are considered geographically separated and multiple
isobaths, including the 20-m (Hayes et al. 2021) and 25-m (Hayes et al.
2020), have been considered as the delineation between the two.
Atlantic Shores used the 25-m isobath in their calculation and NMFS has
accepted this interpretation. The nearshore area of the proposed Survey
Area is considered waters less than 10 m depth and only the coastal
stock would occur and potentially be taken by survey effort in that
area. Both stocks could occur in the offshore area (greater than 10 m
depth), so Atlantic Shores calculated separate mean seasonal densities
to use for estimating take of the coastal and offshore stocks of
bottlenose dolphins, respectively.
In addition, the Roberts et al. (2023) density model does not
differentiate between the different pinniped species. For seals, given
their size and behavior when in the water, seasonality, and feeding
preferences, there is limited information available on species-specific
distribution. Density estimates from Roberts et al. (2023) include all
seal species that may occur in the Western North Atlantic combined
(i.e., gray, harbor, harp, hooded). For this IHA, only gray seals and
harbor seals are reasonably expected to occur in the proposed Survey
Area; densities of seals were split evenly between these two species.
Finally, the Roberts et al. (2023) density model does not
differentiate between pilot whale species. While the exact latitudinal
ranges of the two species are uncertain, only long-finned pilot whales
are expected to occur in this project area due to their more northerly
distribution and tolerance of shallower, colder shelf waters (Hayes et
al., 2022). Short-finned pilot whales are not anticipated to occur as
far north as the Survey Area so we assume that all pilot whales near
the project area would be long-finned pilot whales (Garrison and Rosel,
2017). For this IHA, densities of pilot whales are assumed to be only
long-finned pilot whale.
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 and proposed for authorization.
In order to estimate the number of marine mammals predicted to be
exposed to sound levels that would result in harassment, radial
distances to predicted isopleths corresponding to Level B harassment
thresholds were calculated, as described above. The distance (i.e., 56
m distance associated with the sparker system) to the Level B
harassment criterion and the total length of the survey trackline were
then used to calculate the total ensonified area, or harassment zone,
around the survey vessel. Atlantic Shores proposes to conduct HRG
surveys for a maximum total of 28,800 km trackline length, of which
25,200 km are in the offshore area and 3,600 km are in the nearshore
area. Based on the maximum estimated distance to the Level B harassment
threshold (56 m) for the sparker system and maximum total survey
length, the total ensonified area is 3,228 km\2\ (2,824 km\2\ offshore
area and 404 km\2\ nearshore area), based on the following formula,
where the total estimated trackline length (Distance/day) in each area
was used and buffered with the horizontal distance to the Level B
harassment threshold (r) to determine the total area ensonified to 160
dB SPL.
Harassment Zone = (Distance/day x 2r) + [pi]r\2\
The number of marine mammals expected to be incidentally taken
during the total survey is then calculated by estimating the number of
each species predicted to occur within the ensonified area (animals/
km\2\), incorporating the greatest seasonal estimated marine mammal
densities as described above. The product is then rounded to generate
an estimate of the total number of instances of harassment expected for
each species over the duration of the survey (up to 300 days). A
summary of this method is illustrated in the following formula, where
the Harassment Zone is multiplied by the highest seasonal mean density
(D) of each species or stock (animals/km\2\; except for pilot whales
where annual density was used based on data availability).
Estimated Take = Harassment Zone x D x number of days
The resulting take of marine mammals (Level B harassment) is shown
in table 5.
[[Page 765]]
Table 5--Estimated Take Numbers and Total Take Proposed for Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nearshore survey Offshore survey
area maximum Nearshore area maximum Offshore Total adjusted Estimated
Species seasonal density survey area seasonal density survey area estimated take takes as a
(No./100 km\2\) calculated (No./100 km\2\) calculated requested (No.) percentage of
\a\ take \a\ take population
--------------------------------------------------------------------------------------------------------------------------------------------------------
N Atlantic right whale.............................. 0.058 0 0.075 2 2 <1
Fin whale........................................... 0.004 0 0.135 4 4 <1
Humpback whale...................................... 0.058 0 0.105 3 3 <1
Minke whale......................................... 0.04 0 0.585 17 17 <1
Sei whale........................................... 0.004 0 0.046 1 \d\ 2 <1
Long-finned pilot whale \b\......................... 0 0 0.071 2 \d\ 9 <1
Atlantic spotted dolphin............................ 0.002 0 0.657 19 \d\ 25 <1
Atlantic white-sided dolphin........................ 0.009 0 0.731 21 21 <1
Bottlenose dolphin Northern migratory coastal stock. 64.596 261 17.155 \e\ 194 455 6.9
Bottlenose dolphin offshore stock................... NA NA 17.155 \e\ 291 291 <1
Risso's dolphin..................................... 0 0 0.078 2 \d\ 8 <1
Common dolphin...................................... 0.128 0.5 6.517 184 185 <1
Harbor porpoise..................................... 0.393 2 3.374 95 97 <1
Gray seal \c\....................................... 10.022 41 5.886 166 207 <1
Harbor seal \c\..................................... 10.022 41 5.886 166 207 <1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The nearshore survey area is delineated as waters less than 10 m depth while the offshore survey area is delineated as waters greater than 10 m
depth.
\a\ Cetacean density values from Duke University (Roberts et al., 2023).
\b\ Pilot whale density models from Duke University (Roberts et al., 2023) represent pilot whales as a `guild' rather than by species. However, since
the Survey Area is only expected to contain long-finned pilot whales, it is assumed that pilot whale densities modeled by Roberts et al. (2023) in the
Survey Area only reflect the presence of long-finned pilot whales.
\c\ Pinniped density models from Duke University (Roberts et al., 2023) represent `seals' as a guild rather than by species. These each represent 50
percent of a generic seal density value.
\d\ The number of authorized takes (Level B harassment only) for these species has been increased from the calculated take to consider the mean group
size. Source for Atlantic spotted dolphin, long-finned pilot whale, Risso's dolphin, and sei whale group size estimates is Annual Report of a
Comprehensive Assessment of Marine Mammal, Marine Turtle, and Seabird Abundance and Spatial Distribution in U.S. waters of the Western North Atlantic
Ocean (AMAPPS; NEFSC and SEFSC, 2022).
\e\ Density and take numbers were proportioned per stock as a function of depth. More information provided in Section 6.3 of the IHA application.
Proposed Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, 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.
Pursuant to section 7 of the ESA, Atlantic Shores is also 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).
NMFS proposes the following mitigation measures be implemented
during Atlantic Shores' proposed marine site characterization surveys.
Visual Monitoring and Shutdown Zones
Atlantic Shores must employ independent, dedicated, trained
protected species observers (PSOs), meaning that the PSOs must (1) be
employed by a third-party observer provider, (2) have no tasks other
than to conduct observational effort, collect data, and communicate
with and instruct relevant vessel crew with regard to the presence of
marine mammals and mitigation requirements (including brief alerts
regarding maritime hazards), and (3) have successfully completed an
approved PSO training course appropriate for geophysical surveys.
Visual monitoring must be performed by qualified, NMFS-approved PSOs.
PSO resumes must be provided to NMFS for review and approval prior to
the start of survey activities.
During survey operations (e.g., any day in which use of the sparker
system is planned to occur, and whenever the sparker system is in the
water, whether activated or not), a minimum of one visual marine mammal
observer (PSO) must be on duty on each source vessel and conducting
visual observations at all times during daylight hours (i.e., from 30
minutes (min) prior to sunrise through 30 min following sunset). A
minimum of two PSOs must be on duty on each source vessel during
nighttime hours. Visual monitoring must begin no less than 30 min prior
to ramp-up (described below) and must continue until 30 min after use
of the sparker system ceases.
Visual PSOs shall coordinate to ensure 360[deg] visual coverage
around the vessel from the most appropriate observation posts and shall
conduct visual observations using binoculars and the naked eye while
free from distractions and in a consistent, systematic, and diligent
manner. PSOs shall establish and monitor applicable pre-start clearance
and shutdown zones (see below). These zones shall be based upon the
radial distance from the
[[Page 766]]
sparker system (rather than being based around the vessel itself).
Two pre-start clearance and shutdown zones are defined, depending
on the species and context. Here, an extended pre-start clearance and
shutdown zone encompassing the area at and below the sea surface out to
a radius of 500 m from the sparker system (0-500 m) is defined for
NARW. For all other marine mammals, the pre-start clearance and
shutdown zone encompasses a standard distance of 100 m (0-100 m) during
the use of the sparker. Any observations of marine mammals by crew
members aboard any vessel associated with the survey shall be relayed
to the PSO team.
Visual PSOs may be on watch for a maximum of 4 consecutive hours
followed by a break of at least 1 hr between watches and may conduct a
maximum of 12 hr of observation per 24-hr period.
Pre-Start Clearance and Ramp-Up Procedures
A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
sparker system when technically feasible. If technically feasible,
operators must ramp up sparker to half power for 5 min and then proceed
to full power. A 30 min pre-start clearance observation period of the
pre-start clearance zones must occur prior to the start of ramp-up. The
intent of the pre-start clearance observation period (30 min) is to
ensure no marine mammals are within the pre-start clearance zones prior
to the beginning of ramp-up. The intent of the ramp-up is to warn
marine mammals of pending operations and to allow sufficient time for
those animals to leave the immediate vicinity. All operators must
adhere to the following pre-start clearance and ramp-up requirements:
The operator must notify a designated PSO of the planned
start of ramp-up as agreed upon with the lead PSO; the notification
time should not be less than 60 min prior to the planned ramp-up in
order to allow the PSOs time to monitor the pre-start clearance zones
for 30 min prior to the initiation of ramp-up (pre-start clearance).
During this 30 min pre-start clearance period the entire pre-start
clearance zone must be visible, except as indicated below.
Ramp-ups shall be scheduled so as to minimize the time
spent with the sparker activated.
A visual PSO conducting pre-start clearance observations
must be notified again immediately prior to initiating ramp-up
procedures and the operator must receive confirmation from the PSO to
proceed.
Any PSO on duty has the authority to delay the start of
survey operations if a marine mammal is detected within the applicable
pre-start clearance zone.
The operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
acoustic source to ensure that mitigation commands are conveyed swiftly
while allowing PSOs to maintain watch.
If there is uncertainty regarding identification of a marine mammal
species, PSOs may use best professional judgment in making the decision
to call for a shutdown.
Ramp-up may not be initiated if any marine mammal to which
the pre-start clearance requirement applies is within the pre-start
clearance zone. If a marine mammal is observed within the pre-start
clearance zone during the 30 min pre-start clearance period, ramp-up
may not begin until the animal(s) has been observed exiting the zones
or until an additional time period has elapsed with no further
sightings.
PSOs must monitor the pre-start clearance zones 30 min
before and during ramp-up, and ramp-up must cease and the sparker must
be shut down upon observation of a marine mammal within the applicable
pre-start clearance zone.
Ramp-up may occur at times of poor visibility, including
nighttime, if appropriate visual monitoring has occurred with no
detections of marine mammals in the 30 min prior to beginning ramp-up.
Sparker activation may only occur at night where operational planning
cannot reasonably avoid such circumstances.
If the sparker is shut down for brief periods (i.e., less than 30
min) for reasons other than implementation of prescribed mitigation
(e.g., mechanical difficulty), it may be activated again without ramp-
up if PSOs have maintained constant visual observation and no
detections of marine mammals have occurred within the applicable pre-
start clearance zone. For any longer shutdown, pre-start clearance
observation and ramp-up are required.
Shutdown Procedures
All operators must adhere to the following shutdown requirements:
Any PSO on duty has the authority to call for shutdown of
the sparker system if a marine mammal is detected within the applicable
shutdown zones.
The operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
source to ensure that shutdown commands are conveyed swiftly while
allowing PSOs to maintain watch.
When the sparker system is active and a marine mammal
appears within or enters the applicable shutdown zones, the sparker
must be shut down. When shutdown is instructed by a PSO, the sparker
system must be immediately deactivated and any dispute resolved only
following deactivation.
Two shutdown zones are defined, depending on the species
and context. An extended shutdown zone encompassing the area at and
below the sea surface out to a radius of 500 m from the sparker system
(0-500 m) is defined for NARW. For all other marine mammals, the
shutdown zone encompasses a standard distance of 100 m (0-100 m) during
the use of the sparker.
The shutdown requirement is waived for small delphinids and
pinnipeds. If a small delphinid (individual belonging to the following
genera of the Family Delphinidae: Delphinus, Lagenorhynchus, Stenella,
and Tursiops) or pinniped is visually detected within the shutdown
zones, no shutdown is required unless the PSO confirms the individual
to be of a genus other than those listed, in which case a shutdown is
required.
If there is uncertainty regarding identification of a marine mammal
species (i.e., whether the observed marine mammal(s) belongs to one of
the delphinid genera for which shutdown is waived or one of the species
with a larger shutdown zone), PSOs may use best professional judgment
in making the decision to call for a shutdown.
Upon implementation of shutdown, the sparker may be reactivated
after the marine mammal has been observed exiting the applicable
shutdown zone or following a clearance period (30 min for all baleen
whale species, long-finned pilot whales, and Risso's dolphins; 15 min
for harbor porpoises) with no further detection of the marine mammal.
If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
Level B harassment zone (56 m), shutdown must occur.
Vessel Strike Avoidance
Crew and supply vessel personnel must use an appropriate reference
guide that includes identifying information on all marine mammals that
may be encountered. Vessel operators must comply with the below
measures except under extraordinary circumstances when the safety of
the vessel or crew is in doubt or the safety of life at sea is in
[[Page 767]]
question. These requirements do not apply in any 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
marine mammals and slow down, stop their vessel(s), or alter course, as
appropriate and regardless of vessel size, to avoid striking any marine
mammals. A single marine mammal at the surface may indicate the
presence of submerged animals in the vicinity of the vessel; therefore,
precautionary measures should always be exercised. A visual observer
aboard the vessel must monitor a vessel strike avoidance zone around
the vessel (species-specific distances are detailed 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 marine mammal from other phenomena, and (2) broadly to
identify a marine mammal as a NARW, other whale (defined in this
context as baleen whales other than NARWs), or other marine mammals.
All survey vessels, regardless of size, must observe a 10-kn (18.52
km/hr) speed restriction in specific areas designated by NMFS for the
protection of NARWs from vessel strikes. These include all SMAs
established under 50 CFR 224.105 (when in effect), any dynamic
management areas (DMA) (when in effect), and Slow Zones. See https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for specific detail
regarding these areas.
All vessels must reduce speed to 10 kn or less when
mother/calf pairs, pods, or large assemblages of cetaceans are observed
near a vessel.
All vessels must maintain a minimum separation distance of
500 m from NARWs, other ESA-listed species, and any unidentified large
whales. If a NARW, other ESA-listed species, and any unidentified large
whale is sighted within the relevant separation distance, the vessel
must steer a course away at 10 kn or less until the 500-m separation
distance has been established. If a whale is observed but cannot be
confirmed as a species other than a NARW, the vessel operator must
assume that it is a NARW and take appropriate action.
All vessels must maintain a minimum separation distance of
100 m from all non-ESA-listed baleen 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 must 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, reduce speed and shift
the engine to neutral). This does not apply to any vessel towing gear
or any vessel that is navigationally constrained.
Atlantic Shores and members of the PSO team will consult the NMFS
NARW reporting system and Whale Alert, daily and as able, for the
presence of NARWs throughout survey operations, and for the
establishment of DMAs and/or Slow Zones. It is Atlantic Shores'
responsibility to maintain awareness of the establishment and location
of any such areas and to abide by these requirements accordingly.
Seasonal Operating Requirements
As described above, a section of the proposed Survey Area partially
overlaps with portions of two NARW SMAs off the ports of New York/New
Jersey and the entrance to Delaware Bay. These SMAs are active from
November 1 through April 30 of each year. The survey vessels,
regardless of length, would be required to adhere to vessel speed
restrictions (less than 10 kn) when operating within the SMAs during
times when the SMAs are active (table 6).
Table 6--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
Restrictions Within the Survey Area
----------------------------------------------------------------------------------------------------------------
Survey area Species DMA restrictions Slow zones SMA restrictions
----------------------------------------------------------------------------------------------------------------
Survey Area (outside SMA)....... North Atlantic If established by If established by N/A.
right whale. NMFS, all of NMFS, all of
Atlantic Shores' Atlantic Shores'
vessel will abide vessel will abide
by the described by the described
restrictions. restrictions.
Survey Area (within SMA)........ North Atlantic If established by If established by November 1 through
right whale. NMFS, all of NMFS, all of April 30 (Ports
Atlantic Shores' Atlantic Shores' of New York/New
vessel will abide vessel will abide Jersey and
by the described by the described entrance to the
restrictions. restrictions. Delaware Bay).
----------------------------------------------------------------------------------------------------------------
Note: More information on Vessel Strike Reduction for the NARW can be found at NMFS' website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales whales.
Based on our evaluation of the applicant's proposed measures, NMFS
has preliminarily determined that the proposed mitigation measures
provide the means of effecting the least practicable impact on the
affected species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.
Proposed Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present 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
[[Page 768]]
noise); (2) affected species (e.g., life history, dive patterns); (3)
co-occurrence of marine mammal species with the activity; or (4)
biological or behavioral context of exposure (e.g., age, calving or
feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
Mitigation and monitoring effectiveness.
Proposed Monitoring Measures
Visual monitoring must be performed by qualified, NMFS-approved
PSOs. Atlantic Shores must submit PSO resumes for NMFS review and
approval prior to commencement of the survey. Resumes should include
dates of training and any prior NMFS approval, as well as dates and
description of last experience, and must be accompanied by information
documenting successful completion of an acceptable training course.
For prospective PSOs not previously approved, or for PSOs whose
approval is not current, NMFS must review and approve PSO
qualifications. Resumes should include information related to relevant
education, experience, and training, including dates, duration,
location, and description of prior PSO experience. Resumes must be
accompanied by relevant documentation of successful completion of
necessary training.
NMFS may approve PSOs as conditional or unconditional. A
conditionally-approved PSO may be one who is trained but has not yet
attained the requisite experience. An unconditionally-approved PSO is
one who has attained the necessary experience. For unconditional
approval, the PSO must have a minimum of 90 days at sea performing the
role during a geophysical survey, with the conclusion of the most
recent relevant experience not more than 18 months previous.
At least one of the visual PSOs aboard the vessel must be
unconditionally-approved. One unconditionally-approved visual PSO shall
be designated as the lead for the entire PSO team. This lead should
typically be the PSO with the most experience, who would coordinate
duty schedules and roles for the PSO team and serve as primary point of
contact for the vessel operator. To the maximum extent practicable, the
duty schedule shall be planned such that unconditionally-approved PSOs
are on duty with conditionally-approved PSOs.
At least one PSO aboard each acoustic source vessel must have a
minimum of 90 days at-sea experience working in the role, with no more
than 18 months elapsed since the conclusion of the at-sea experience.
One PSO with such experience must be designated as the lead for the
entire PSO team and serve as the primary point of contact for the
vessel operator. (Note that the responsibility of coordinating duty
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the
lead PSO must devise the duty schedule such that experienced PSOs are
on duty with those PSOs with appropriate training but who have not yet
gained relevant experience.
PSOs must successfully complete relevant training, including
completion of all required coursework and passing (80 percent or more)
a written and/or oral examination developed for the training program.
PSOs must have successfully attained a bachelor's degree from an
accredited college or university with a major in one of the natural
sciences, a minimum of 30 semester hours or equivalent in the
biological sciences, and at least one undergraduate course in math or
statistics. The educational requirements may be waived if the PSO has
acquired the relevant skills through alternate experience. Requests for
such a waiver shall be submitted to NMFS and must include written
justification. Alternate experience that may be considered includes,
but is not limited to (1) secondary education and/or experience
comparable to PSO duties; (2) previous work experience conducting
academic, commercial, or government-sponsored marine mammal surveys;
and (3) previous work experience as a PSO (PSO must be in good standing
and demonstrate good performance of PSO duties).
Atlantic Shores must work with the selected third-party PSO
provider to ensure PSOs have all equipment (including backup equipment)
needed to adequately perform necessary tasks, including accurate
determination of distance and bearing to observed marine mammals, and
to ensure that PSOs are capable of calibrating equipment as necessary
for accurate distance estimates and species identification. Such
equipment, at a minimum, shall include:
At least one thermal (infrared) imaging device suited for
the marine environment;
Reticle binoculars (e.g., 7 x 50) of appropriate quality
(at least one per PSO, plus backups);
Global positioning units (GPS) (at least one plus
backups);
Digital cameras with a telephoto lens that is at least
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least
one plus backups). The camera or lens should also have an image
stabilization system;
Equipment necessary for accurate measurement of distances
to marine mammal;
Compasses (at least one plus backups);
Means of communication among vessel crew and PSOs; and,
Any other tools deemed necessary to adequately and
effectively perform PSO tasks.
The equipment specified above may be provided by an individual PSO,
the third-party PSO provider, or the operator, but Atlantic Shores is
responsible for ensuring PSOs have the proper equipment required to
perform the duties specified in the IHA. Reference materials must be
available aboard all project vessels for identification of protected
species.
The PSOs will be responsible for monitoring the waters surrounding
the survey vessel to the farthest extent permitted by sighting
conditions, including pre-start clearance and shutdown zones, during
all HRG survey operations. PSOs will visually monitor and identify
marine mammals, including those approaching or entering the established
pre-start clearance and shutdown zones during survey activities. It
will be the responsibility of the PSO(s) 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.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to shutdown 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, appropriate night-vision devices (e.g.,
night-vision goggles with thermal clip-ons and infrared
[[Page 769]]
technology) would be used. Position data would be recorded using hand-
held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs must 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 and between acquisition periods. Any
observations of marine mammals by crew members aboard the vessel
associated with the survey would be relayed to the PSO team.
Data on all PSO observations would be recorded based on standard
PSO collection requirements (see Proposed Reporting Measures). This
would include dates, times, and locations of survey operations; dates
and times of observations, location and weather; details of marine
mammal sightings (e.g., species, numbers, behavior); and details of any
observed marine mammal behavior that occurs (e.g., noted behavioral
disturbances). Members of the PSO team shall consult the NMFS NARW
reporting system and Whale Alert, daily and as able, for the presence
of NARWs throughout survey operations.
Proposed Reporting Measures
Atlantic Shores shall submit a draft comprehensive report to NMFS
on all activities and monitoring results within 90 days of the
completion of the survey or expiration of the IHA, whichever comes
sooner. The report must describe all activities conducted and sightings
of marine mammals, must provide full documentation of methods, results,
and interpretation pertaining to all monitoring, and must summarize the
dates and locations of survey operations and all marine mammals
sightings (dates, times, locations, activities, associated survey
activities). The draft report shall also include geo-referenced, time-
stamped vessel tracklines for all time periods during which acoustic
sources were operating. Tracklines should include points recording any
change in acoustic source status (e.g., when the sources began
operating, when they were turned off, or when they changed operational
status such as from full array to single gun or vice versa). GIS files
shall be provided in Environmental Systems Research Institute, Inc.
(ESRI) shapefile format and include the Coordinated Universal Time
(UTC) date and time, latitude in decimal degrees, and longitude in
decimal degrees. All coordinates shall be referenced to the WGS84
geographic coordinate system. In addition to the report, all raw
observational data shall be made available. The report must summarize
the information. A final report must be submitted within 30 days
following resolution of any comments on the draft report. All draft and
final marine mammal monitoring reports must be submitted to
[email protected], [email protected],
and [email protected].
PSOs must use standardized electronic data forms to record data.
PSOs shall record detailed information about any implementation of
mitigation requirements, including the distance of marine mammal to the
acoustic source and description of specific actions that ensued, the
behavior of the animal(s), any observed changes in behavior before and
after implementation of mitigation, and if shutdown was implemented,
the length of time before any subsequent ramp-up of the acoustic
source. If required mitigation was not implemented, PSOs should record
a description of the circumstances. At a minimum, the following
information must be recorded:
1. Vessel names (source vessel), vessel size and type, maximum
speed capability of vessel;
2. Dates of departures and returns to port with port name;
3. PSO names and affiliations;
4. Date and participants of PSO briefings;
5. Visual monitoring equipment used;
6. PSO location on vessel and height of observation location above
water surface;
7. Dates and times (Greenwich Mean Time) of survey on/off effort
and times corresponding with PSO on/off effort;
8. Vessel location (decimal degrees) when survey effort begins and
ends and vessel location at beginning and end of visual PSO duty
shifts;
9. Vessel location at 30-second intervals if obtainable from data
collection software, otherwise at practical regular interval;
10. Vessel heading and speed at beginning and end of visual PSO
duty shifts and upon any change;
11. Water depth (if obtainable from data collection software);
12. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including BSS and any other relevant weather conditions including cloud
cover, fog, sun glare, and overall visibility to the horizon;
13. Factors that may contribute to impaired observations during
each PSO shift change or as needed as environmental conditions change
(e.g., vessel traffic, equipment malfunctions); and,
14. Survey activity information (and changes thereof), such as
acoustic source power output while in operation, number and volume of
airguns operating in an array, tow depth of an acoustic source, and any
other notes of significance (i.e., pre-start clearance, ramp-up,
shutdown, testing, shooting, ramp-up completion, end of operations,
streamers, etc.).
15. Upon visual observation of any marine mammal, the following
information must be recorded:
a. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
b. Vessel/survey activity at time of sighting (e.g., deploying,
recovering, testing, shooting, data acquisition, other);
c. PSO who sighted the animal;
d. Time of sighting;
e. Initial detection method;
f. Sightings cue;
g. Vessel location at time of sighting (decimal degrees);
h. Direction of vessel's travel (compass direction);
i. Speed of the vessel(s) from which the observation was made;
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. Species reliability (an indicator of confidence in
identification);
l. Estimated distance to the animal and method of estimating
distance;
m. Estimated number of animals (high/low/best);
n. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
o. 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);
p. Detailed behavior observations (e.g., number of blows/breaths,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior before and after point of closest approach);
q. Mitigation actions; description of any actions implemented in
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or
course alteration, etc.) and time and location of the action;
r. Equipment operating during sighting;
s. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source; and,
[[Page 770]]
t. Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up) and time and location of the
action.
If a NARW is observed at any time by PSOs or personnel on the
project vessel, during surveys or during vessel transit, Atlantic
Shores must report the sighting information to the NMFS NARW Sighting
Advisory System (866-755-6622) within 2 hr of occurrence, when
practicable, or no later than 24 hr after occurrence. NARW sightings in
any location may also be reported to the U.S. Coast Guard via channel
16 and through the Whale Alert app (https://www.whalealert.org).
In the event that personnel involved in the survey activities
discover an injured or dead marine mammal, the incident must be
reported to NMFS as soon as feasible by phone (866-755-6622) and by
email ([email protected] and
[email protected]). The report must include the
following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. General circumstances under which the animal was discovered.
In the event of a vessel strike of a marine mammal by any vessel
involved in the activities, Atlantic Shores must report the incident to
NMFS by phone (866-755-6622) and by email ([email protected] and [email protected]) as soon as
feasible. The report would include the following information:
1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. 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;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
11. 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
12. 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 3, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar in nature. Where there are meaningful differences between
species or stocks, or groups of species, in anticipated individual
responses to activities, impact of expected take on the population due
to differences in population status, or impacts on habitat, they are
included as separate sub-sections below. Specifically, we provide
additional discussion related to NARW and to other species currently
experiencing UMEs.
NMFS does not anticipate that serious injury or mortality would
occur as a result from HRG surveys, even in the absence of mitigation,
and no serious injury or mortality is proposed to be authorized. As
discussed in the Potential Effects of Specified Activities on Marine
Mammals and Their Habitat section, non-auditory physical effects,
auditory physical effects, and vessel strike are not expected to occur.
NMFS expects that all potential takes would be in the form of Level B
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, Ellison et al., 2012).
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 56 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 proposed
Survey Area; therefore, marine mammals that may be temporarily
displaced during survey activities are expected to be able to resume
foraging once they have moved away from areas with disturbing levels of
underwater noise. Because of the temporary nature of the disturbance
and the availability of similar habitat and resources in the
surrounding area, the impacts to marine mammals and the food sources
that they utilize are not expected to cause significant or long-term
consequences for individual marine mammals or their populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the proposed Survey
Area and there are no feeding areas known to be biologically important
to marine mammals within the Survey Area. There is no designated
critical habitat for any ESA-listed marine mammals in the Survey Area.
[[Page 771]]
North Atlantic Right Whales
The status of the NARW population is of heightened concern and,
therefore, merits additional analysis. As noted previously, elevated
NARW mortalities began in June 2017 and there is an active UME.
Overall, preliminary findings attribute human interactions,
specifically vessel strikes and entanglements, as the cause of death
for the majority of NARWs. As noted previously, the Survey Area
overlaps a migratory corridor BIA for NARWs that extends from
Massachusetts to Florida and from the coast to beyond the shelf break.
Due to the fact that the proposed survey activities are temporary (will
occur for up to 1 year) and the spatial extent of sound produced by the
survey would be small relative to the spatial extent of the available
migratory habitat in the BIA, NARW migration is not expected to be
impacted by the survey. This important migratory area is approximately
269,488 km\2\ in size (compared with the approximately 3,228 km\2\ of
total estimated Level B harassment ensonified area associated with the
Survey Area) and is comprised of the waters of the continental shelf
offshore the East Coast of the United States, extending from Florida
through Massachusetts.
Given the relatively small size of the ensonified area, it is
unlikely that prey availability would be adversely affected by HRG
survey operations. Required vessel strike avoidance measures will also
decrease risk of vessel strike during migration; no vessel strike is
expected to occur during Atlantic Shores' proposed activities.
Additionally, only very limited take by Level B harassment of NARWs has
been requested and is being proposed for authorization by NMFS as HRG
survey operations are required to maintain and implement a 500-m
shutdown zone. The 500-m shutdown zone for NARWs is conservative,
considering the Level B harassment zone for the acoustic source (i.e.,
sparker) is estimated to be 56 m, and thereby minimizes the intensity
and duration of any potential incidents of behavioral harassment for
this species. As noted previously, Level A harassment is not expected
due to the small estimated zones in conjunction with the aforementioned
shutdown requirements. NMFS does not anticipate NARW takes that would
result from Atlantic Shores' proposed activities would impact annual
rates of recruitment or survival. Thus, any takes that occur would not
result in population level impacts.
Other Marine Mammal Species With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of Atlantic Shores' Survey Area. Elevated humpback whale
mortalities have occurred along the Atlantic coast from Maine through
Florida since January 2016. Of the cases examined, approximately half
had evidence of human interaction (i.e., vessel strike, 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.
Elevated numbers of harbor seal and gray seal mortalities were
first observed from 2018-2020 and, as part of a separate UME, again in
2022. These have occurred across Maine, New Hampshire, and
Massachusetts. Based on tests conducted so far, the main pathogen found
in the seals is phocine distemper virus (2018-2020) and avian influenza
(2022), although additional testing to identify other factors that may
be involved in the UMEs is underway. The UMEs do not provide cause for
concern regarding population-level impacts to any of these stocks. For
harbor seals, the population abundance is over 60,000 and annual M/SI
(339) is well below PBR (1,729) (Hayes et al., 2022). The population
abundance for gray seals in the United States is over 27,000, with an
estimated abundance, including seals in Canada, of approximately
450,000. In addition, the abundance of gray seals is likely increasing
in the U.S. Atlantic as well as in Canada (Hayes et al., 2021, Hayes et
al., 2022).
The required mitigation measures are expected to reduce the number
and/or severity of takes for all species listed in table 3, including
those with active UMEs, to the level of least practicable adverse
impact. In particular, they would 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 sound levels
that have the potential to cause injury. No Level A harassment is
anticipated, even in the absence of mitigation measures, or proposed
for authorization.
NMFS expects that takes would be in the form of short-term Level B
harassment by way of brief startling reactions and/or temporary
vacating of the area, or decreased foraging (if such activity was
occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures would
further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect any of the species
or stocks through effects on annual rates of recruitment or survival:
No serious injury or mortality is anticipated or proposed
to be authorized;
No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or proposed to be 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 ensonified areas
during the proposed survey to avoid exposure to sounds from the
activity;
Take is anticipated to be by Level B harassment only
consisting of brief startling reactions and/or temporary avoidance of
the ensonified area;
Survey activities would occur in such a comparatively
small portion of the BIA for the NARW migration that any avoidance of
the area due to survey activities would not affect migration. In
addition, mitigation measures require shutdown at 500 m (over eight
times the size of the Level B harassment zone of 56 m) to minimize the
effects of any Level B harassment take of the species; and
The proposed mitigation measures, including visual
monitoring and shutdowns, are expected to minimize potential impacts to
marine mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
[[Page 772]]
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
NMFS proposes to authorize incidental take by Level B harassment
only of 14 marine mammal species with 15 managed stocks. The total
amount of takes proposed for authorization relative to the best
available population abundance is less than 1 percent for 14 of the 15
managed stocks (less than 7 percent for the Western North Atlantic
Northern Migratory Coastal Stock of bottlenose dolphins; table 5). The
take numbers proposed for authorization are considered conservative
estimates for purposes of the small numbers determination as they
assume all takes represent different individual animals, which is
unlikely to be the case.
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals would be taken relative to the population
size of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the ESA of 1973 (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 consults
internally whenever we propose to authorize take for endangered or
threatened species.
NMFS' Office of Protected Resources is proposing to authorize take
of three species of marine mammals which are listed under the ESA
(i.e., NARW, fin whale, and sei whale) and has determined these
activities fall within the scope of activities analyzed in the NMFS
GARFO programmatic consultation regarding geophysical surveys along the
U.S. Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021).
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
issue an IHA to Atlantic Shores for conducting marine site
characterization surveys in waters off of New York, New Jersey,
Delaware, and Maryland for a period of 1 year, provided the previously
mentioned mitigation, monitoring, and reporting requirements are
incorporated. A draft of the proposed IHA can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
Request for Public Comments
We request comment on our analyses, the proposed authorization, and
any other aspect of this notice of proposed IHA for the proposed marine
site characterization surveys. We also request comment on the potential
renewal of this proposed IHA as described in the paragraph below.
Please include with your comments any supporting data or literature
citations to help inform decisions on the request for this IHA or a
subsequent renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, 1-year renewal
IHA following notice to the public providing an additional 15 days for
public comments when (1) up to another year of identical or nearly
identical activities as described in the Description of Proposed
Activity section of this notice is planned or (2) the activities as
described in the Description of Proposed Activity section of this
notice would not be completed by the time the IHA expires and a renewal
would allow for completion of the activities beyond that described in
the Dates and Duration section of this notice, provided all of the
following conditions are met:
A request for renewal is received no later than 60 days
prior to the needed renewal IHA effective date (recognizing that the
renewal IHA expiration date cannot extend beyond one year from
expiration of the initial IHA).
The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the
requested renewal IHA are identical to the activities analyzed under
the initial IHA, are a subset of the activities, or include changes so
minor (e.g., reduction in pile size) that the changes do not affect the
previous analyses, mitigation and monitoring requirements, or take
estimates (with the exception of reducing the type or amount of take).
(2) A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
Upon review of the request for renewal, the status of the affected
species or stocks, and any other pertinent information, NMFS determines
that there are no more than minor changes in the activities, the
mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
Dated: December 27, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-00008 Filed 1-4-24; 8:45 am]
BILLING CODE 3510-22-P