[Federal Register Volume 89, Number 15 (Tuesday, January 23, 2024)]
[Rules and Regulations]
[Pages 4370-4471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00297]
[[Page 4369]]
Vol. 89
Tuesday,
No. 15
January 23, 2024
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Coastal Virginia Offshore Wind
Commercial Project Offshore of Virginia; Final Rule
Federal Register / Vol. 89 , No. 15 / Tuesday, January 23, 2024 /
Rules and Regulations
[[Page 4370]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240104-0001]
RIN 0648-BL74
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Coastal Virginia Offshore Wind
Commercial Project Offshore of Virginia
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates
regulations to govern the incidental taking of marine mammals
incidental to the Virginia Electric and Power Company, doing business
as Dominion Energy Virginia (Dominion Energy), construction of the
Coastal Virginia Offshore Wind Commercial (CVOW-C) Project (hereafter,
the CVOW-C Project or the Project) in Federal and State waters offshore
of Virginia, specifically within the Bureau of Ocean Energy Management
(BOEM) Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0483
(Lease Area) and along export cable routes to sea-to-shore transition
points (collectively referred to as the ``Project Area''), over the
course of 5 years (February 5, 2024 through February 4, 2029). These
regulations, which allow for the issuance of a Letter of Authorization
(LOA) for the incidental take of marine mammals during construction-
related activities within the Project Area during the effective dates
of the regulations, prescribe the permissible methods of taking and
other means of effecting the least practicable adverse impact on marine
mammal species or stocks and their habitat, as well as requirements
pertaining to the monitoring and reporting of such taking.
DATES: This rulemaking is effective from February 5, 2024, through
February 4, 2029.
FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Dominion Energy's Incidental Take Authorization (ITA)
application, supporting documents, received public comments, and the
proposed rulemaking, as well as a list of the references cited 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 above (see FOR FURTHER
INFORMATION CONTACT).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the
authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to authorize
the take of marine mammals incidental to construction of the Project
within the Project Area. NMFS received a request from Dominion Energy
to incidentally take 21 species of marine mammals, comprising 22 stocks
(7 stocks by Level A harassment and Level B harassment and 15 stocks by
Level B harassment only), incidental to Dominion Energy's 5 years of
construction activities. No mortality or serious injury is anticipated
or authorized in this final rulemaking. Please see the Legal Authority
for the Final Action section below for definitions of harassment,
serious injury, and incidental take.
Legal Authority for the Final Action
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, regulations are
promulgated (when applicable), and public notice and an opportunity for
public comment are provided.
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). If such findings are made, NMFS must prescribe the
permissible methods of taking (e.g., ``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 as ``mitigation'')) and requirements pertaining to the monitoring
and reporting of such takings.
As noted above, no serious injury or mortality is anticipated or
authorized in this final rule. Relevant definitions of MMPA statutory
and regulatory terms are included below:
U.S. Citizens--individual U.S. citizens or any corporation
or similar entity if it is organized under the laws of the United
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR
216.103);
Take--to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13);
50 CFR 216.3);
Incidental harassment, incidental taking, and incidental,
but not intentional, taking--an accidental taking. This does not mean
that the taking is unexpected, but rather it includes those takings
that are infrequent, unavoidable, or accidental (see 50 CFR 216.103);
Serious Injury--any injury that will likely result in
mortality (50 CFR 216.3);
Level A harassment--any act of pursuit, torment, or
annoyance which has the potential to injure a marine mammal or marine
mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and
Level B harassment--any act of pursuit, torment, or
annoyance which 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 (16 U.S.C. 1362(18); 50 CFR 216.3).
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I provide the legal basis for proposing
and, if appropriate, issuing regulations and an associated LOA(s). This
final rule establishes permissible methods of taking and mitigation,
monitoring, and reporting requirements for Dominion Energy's
construction activities.
Summary of Major Provisions Within the Final Rule
The major provisions of this final rule are:
The authorized take of marine mammals by Level A
harassment and/or Level B harassment;
No authorized take of marine mammals by mortality or
serious injury;
[[Page 4371]]
The establishment of a seasonal moratorium on pile driving
of foundation piles during the months of the highest presence of North
Atlantic right whales (Eubalaena glacialis) in the Lease Area (November
1st through April 30th, annually);
A requirement for both visual and passive acoustic
monitoring to occur by NOAA Fisheries-approved Protected Species
Observers (PSOs) and Passive Acoustic Monitoring (PAM) operators (where
required) before, during, and after select activities;
A requirement of training for all Dominion Energy
personnel to ensure marine mammal protocols and procedures are
understood;
The establishment of clearance and shutdown zones for all
in-water construction activities to prevent or reduce the risk of Level
A harassment and to minimize the risk of Level B harassment;
A requirement to use sound attenuation devices during all
foundation pile driving installation activities to reduce noise levels
to those modeled assuming 10 decibels (dB);
A delay to the start of foundation installation if a North
Atlantic right whale is observed at any distance by PSOs or
acoustically detected within the PAM Monitoring Zone (10 kilometer
(km));
A delay to the start of foundation installation if other
marine mammals are observed entering or within their respective
clearance zones;
A requirement to shut down pile driving (if feasible) if a
North Atlantic right whale is observed at any distance or if any other
marine mammals are observed entering their respective shutdown zones;
A requirement to conduct sound field verification (SFV)
during foundation pile driving to measure in-situ noise levels for
comparison against the modeled results;
A requirement to implement soft-starts during impact pile
driving using the least amount of hammer energy necessary for
installation;
A requirement to implement ramp-up during the use of high-
resolution geophysical (HRG) marine site characterization survey
equipment;
A requirement to monitor relevant Right Whale Sightings
Advisory System and Channel 16, as well as reporting any sightings to
the sighting network;
A requirement to implement various vessel strike avoidance
measures;
A requirement to implement measures during fisheries
monitoring surveys, such as removing gear from the water if marine
mammals are considered at-risk or are interacting with gear; and
A requirement to submit frequently scheduled and
situational reports including, but not limited to, information
regarding activities occurring, marine mammal observations and acoustic
detections, and sound field verification monitoring results.
NMFS must withdraw or suspend any LOA issued under these
regulations, after notice and opportunity for public comment, if it
finds the methods of taking or the mitigation, monitoring, or reporting
measures are not being substantially complied with (16 U.S.C.
1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with
the requirements of the LOA may result in civil monetary penalties and
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50
CFR 216.206(g)).
Fixing America's Surface Transportation Act (FAST-41)
This project is covered under Title 41 of the Fixing America's
Surface Transportation Act or ``FAST-41.'' FAST-41 includes a suite of
provisions designed to expedite the environmental review for covered
infrastructure projects, including enhanced interagency coordination as
well as milestone tracking on the public-facing Permitting Dashboard.
FAST-41 also places a 2-year limitations period on any judicial claim
that challenges the validity of a Federal agency decision to issue or
deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-
6(a)(1)(A)).
Dominion Energy's project is listed on the Permitting Dashboard,
where milestones and schedules related to the environmental review and
permitting for the Project can be found at https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/coastal-virginia-offshore-wind-commercial-project.
Summary of Request
On February 16, 2022, Dominion Energy submitted a request for the
promulgation of regulations and issuance of an associated LOA to take
marine mammals incidental to construction activities associated with
the Project. The request was for the incidental, but not intentional,
taking of a small number of 21 marine mammal species (comprising 22
stocks) by Level B harassment (all 22 stocks) and by Level A harassment
(7 species or stocks). Dominion Energy did not request, and NMFS
neither expects nor authorizes, incidental take by serious injury or
mortality.
In response to our questions and comments and following extensive
information exchange between Dominion Energy and NMFS, Dominion Energy
submitted a final revised application on August 5, 2022. NMFS deemed it
adequate and complete on August 12, 2022. This final application is
available on NMFS' website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
On September 15, 2022, NMFS published a notice of receipt (NOR) of
Dominion Energy's adequate and complete application in the Federal
Register (87 FR 56634), requesting public comments and information on
Dominion Energy's request during a 30-day public comment period. During
the NOR public comment period, NMFS received a single comment letter
from an environmental non-governmental organization: the Southern
Environmental Law Center (SELC). We also received a single comment from
a government agency: the United States Geological Survey. These
comments entailed broader comments very similar to those we received
during the proposed notice's comment period, including, but not limited
to: vessel strike avoidance measures; the use of best available science
when evaluating a seasonal pile driving moratorium; suggestions on
proposed clearance and shutdown (termed ``exclusion'') zones for North
Atlantic right whales; cumulative impacts; and additional suggested
mitigation, monitoring, and reporting measures in a supplemental
attachment provided by the commenter. In June 2022, Duke University's
Marine Spatial Ecology Laboratory released updated habitat-based marine
mammal density models (Roberts et al., 2023). Because Dominion Energy
applied marine mammal densities to their analysis in their application,
Dominion Energy submitted a final Updated Density and Take Estimation
Memo (herein referred to as Updated Density and Take Estimation Memo)
on January 10, 2023 that included marine mammal densities and take
estimates based on these new models which NMFS posted on our website in
May 2023.
In January 2023, BOEM informed NMFS that the proposed activity had
changed from what is presented in the adequate and complete MMPA
application. Specifically, the changed proposed activity involved the
reduction of maximum wind turbine generators (WTGs) built (from 205 to
202 WTGs) as under the original Project Design Envelope (PDE) and the
offshore substations (OSSs) would be located in the vessel transit
routes. Under the 202
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build-out, three WTGs would be removed and the three OSSs would be
shifted into these WTG positions. However, in late January 2023,
Dominion Energy confirmed that their Preferred Layout of 176 WTGs is
the base case for construction, but that they could possibly need up to
7 WTGs re-piled in alternate positions due to unstable sediment
conditions, which could necessitate up to 183 independent piling
events. WTG positions have been removed from consideration for one or
more of the following reasons: impracticable due to foundation
technical design risk, shallow gas presence, commercial shipping and
navigation risk concerns, erosion risk, and presence of a designated
fish haven. Based on the information provided, NMFS carried forward the
analysis assuming a total build-out of 176 WTGs plus seven re-piled
WTGs (a total of 183 independent piling events for WTGs) and the 3
originally planned OSSs. Due to the significant reduction of turbines
from the original proposed action found in the adequate and complete
ITA application (reduction of approximately 14 percent), Dominion
Energy, in consultation with NMFS, provided an updated proposed action
summary, revised exposure estimates, revised take requests, and an
updated piling schedule in mid-February 2023 (hereinafter referred to
as the Revised Proposed Action Memo). NMFS posted this to our website
in May 2023.
On May 4, 2023, NMFS published a proposed rule in the Federal
Register for the CVOW-C Project (88 FR 28656). In the proposed rule,
NMFS synthesized all of the information provided by Dominion Energy,
all best available scientific information and literature relevant to
the proposed project, outlined, in detail, proposed mitigation designed
to effect the least practicable adverse impacts on marine mammal
species and stocks as well as proposed monitoring and reporting
measures, and made preliminary negligible impact and small numbers
determinations. The public comment period on the proposed rule was open
for 30 days on https://www.regulations.gov starting on May 4, 2023 and
closed after June 5, 2023. The public comments can be viewed at https://www.regulations.gov/docket/NOAA-NMFS-2023-0030; a summary of public
comments received during this 30-day period and NMFS responses are
described in the Comments and Responses section.
NMFS has previously issued six Incidental Harassment Authorizations
(IHAs) to Dominion Energy. Two of those IHAs, issued in 2018 (83 FR
39062, August 8, 2018) and 2020 (85 FR 30930, May 21, 2020) supported
the development of the Coastal Virginia Offshore Wind project, known as
the CVOW Pilot Project (wherein two turbines were constructed). The
remaining four IHAs (two of which were modified IHAs) were high
resolution site characterization surveys within and around the CVOW-C
Lease Area (see 85 FR 55415, September 8, 2020; 85 FR 81879, December
17, 2020; 86 FR 21298, April 22, 2021; and 87 FR 33730, June 3, 2022).
To date, Dominion Energy has complied with all the requirements (e.g.,
mitigation, monitoring, and reporting) of the previous IHAs and
information regarding their monitoring results may be found in the
Estimated Take section. These monitoring reports can be found on NMFS'
website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations (87 FR 46921,
August 1, 2022) 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 (UME). Should a final vessel
speed rule be issued and become effective during the effective period
of these regulations (or any other MMPA incidental take authorization),
the authorization holder will be required to comply with any and all
applicable requirements contained within the final vessel speed 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 will be required to comply with
the requirements of the vessel speed 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 will remain in place. The responsibility to
comply with the applicable requirements of any vessel speed rule will
become effective immediately upon the effective date of any final
vessel speed rule, and when notice is published on the effective date,
NMFS will also notify Dominion Energy if the measures in the vessel
speed rule were to supersede any of the measures in the MMPA
authorization.
Description of the Specified Activities
Overview
Dominion Energy plans to construct and operate the Project, a 2,500
to 3,000-megawatt (MW) offshore wind farm, in the Project Area. The
Project will allow the Commonwealth of Virginia to meet its renewable
energy goals under the Virginia Clean Economy Act (HB 1526/SB 851).
Dominion Energy's precursor pilot project (i.e., CVOW Pilot
Project) was a 12 MW, two-turbine test project and the first to be
installed in Federal waters. Designed as a research/test project, the
two turbines associated with the CVOW Pilot Project became operational
in October 2020 approximately 27 miles (mi; 43.45 kilometers (km)) off
of Virginia Beach, Virginia. Information on this Pilot Project was used
to inform the CVOW-C project. More information on the Pilot Project can
be found on BOEM's website (https://www.boem.gov/renewable-energy/state-activities/coastal-virginia-offshore-wind-project-cvow) and in
the IHA authorized by NMFS in May 2020 for BOEM Lease Area OCS-A-0497
(https://www.bfisheries.bnoaa.bgov/action/incidental-take-authorization-dominion-energy-virginia-offshore-wind-construction-activities).
The Project will consist of several different types of permanent
offshore infrastructure, including 176 WTGs (e.g., the Siemens Gamesa
SG-14-222 DD 14-MW model with power boost technology potentially
allowing up to 14.7-MW, equating to a total of 2,587.2-MW for full
build-out) and associated foundations, three OSSs, offshore substation
array cables, offshore export cables, and substation interconnector
cables. Overall, Dominion Energy will conduct the following specified
activities: install 176 WTGs and 3 OSS on monopile foundations via
vibratory and impact pile driving; install and subsequently remove up
to 9 cofferdams, by vibratory pile driving, and install up to 108 goal
posts (12 goal posts for each of 9 Direct Pipe locations), by impact
pile driving, to assist in the installation of the export cable;
conduct several types of fishery and ecological monitoring surveys;
place scour protection; trenching, laying, and burial activities
associated with the installation of the export cable from OSSs to
shore-based converter stations and inter-array cables between turbines;
conduct HRG vessel-based site characterization surveys using active
acoustic sources with frequencies of less than 180 kilohertz (kHz);
transit within the Project Area and between ports and the Lease Area to
transport crew,
[[Page 4373]]
supplies, and materials to support construction activities; and WTG
operation. From the sea-to-shore transition point, onshore underground
export cables are then connected in series to switching stations/
substations, overhead transmission lines, and ultimately to the grid
connection, which will be located in a parking lot found west of the
firing range at the State Military Reservation located in Virginia
Beach, Virginia.
Marine mammals exposed to elevated noise levels during vibratory
and impact pile driving and site characterization surveys may be taken
by Level A harassment and/or Level B harassment, depending on the
specified activity and species.
A detailed description of the specified activities is provided in
the proposed rule as published in the Federal Register (88 FR 28656,
May 4, 2023). Since the proposed rule was published, Dominion Energy
has not modified the specified activities. Please refer to the proposed
rule for more information on the description of the specified
activities.
Dates and Duration
Dominion Energy anticipates its specified activities to occur
throughout all 5 years of the effective period of the regulations,
beginning on February 5, 2024 and continuing through February 4, 2029.
Dominion Energy's anticipated construction schedule can be found in
Table 1. Dominion Energy has noted that these are the best, and
conservative, estimates for activity durations but that the schedule
may shift due to weather, mechanical, or other related delays.
Table 1--Construction Schedule a
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Project activity Expected timing Expected duration (approximate)
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Scour Protection Pre-Installation........ Q2 through Q4 of 2024....... 9 months.
Q2 through Q4 of 2025....... 9 months.
WTG Foundation Installation b e.......... Q2 through Q4 of 2024....... 6 months.
Q2 through Q4 of 2025....... 6 months.
Scour Protection Post-installation....... Q2 through Q4 of 2024....... 9 months.
Q2 through Q4 of 2025....... 9 months.
OSS Foundation Installation b e.......... Q2 through Q4 of 2024....... 6 months.
Q2 through Q4 of 2025....... 6 months.
Cable Landfall Construction (Goal Posts Q1 through Q4 of 2024....... 6 months.
and Cofferdams) \h\.
HRG Surveys c d.......................... Q1 2024 through Q4 2028..... Any time of year.
Site Preparation......................... Q1 2024 through Q2 2024..... 6 months.
Inter-array Cable Installation........... Q2 2025 through Q4 2026..... 19 months.
Export Cable Installation................ Q3 2024 through Q3 2025..... 14 months.
Fishery Monitoring Surveys: f g
Surf Clam............................ Q2 2023..................... 1 week.
Whelk................................ Q2 2023 through Q1 2025..... 24 months.
Black Sea Bass....................... Q2 2023 through Q1 2025..... 24 months.
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Note: ``Q1, Q2, Q3, and Q4'' each refer to a quarter of the year, starting in January and comprising 3 months
each. Therefore, Q1 represents January through March, Q2 represents April through June, Q3 represents July
through September, and Q4 represents October through December.
\a\ While the effective period of the final regulations would extend a few months into 2029, no activities are
planned to occur in 2029 by Dominion Energy, so these were not included in this table.
\b\ Activities would only occur from May 1st through October 31st annually.
\c\ Activities would begin in February 2024, upon the issuance of an associated LOA, and continue through
construction and post-construction.
\d\ For HRG surveys, Dominion Energy anticipates up to 65 days of surveys would occur during the pre-
construction period (2024), up to 307 days during the primary construction years (2025 and 2026), and up to
736 days would be needed during the post-construction years (2027 and 2028) with a 50/50 split of 368 days
each year. No surveys are planned for 2029.
\e\ Dominion Energy anticipates that all WTGs and OSS foundations will be installed by October 31, 2025;
however, unanticipated delays may require some foundation pile driving to occur in 2026 and/or 2027.
\f\ Some fishery monitoring survey activities are planned prior to February 2024 but are not included here as
they would not occur during the effective dates of the rule and an associated LOA.
\g\ Dates displayed here are for field work, as that would be the only component that could impact marine
mammals.
\h\ Although cable landfall activities are anticipated to occur over 9-12 months total, activities capable of
harassing marine mammals would only occur for the specified duration described here as other activities
necessary for landfall construction (i.e., area preparation, material transportation, etc.) would also occur.
Specified Geographic Region
A detailed description of the Specified Geographic Region is
provided in the proposed rule as published in the Federal Register (88
FR 28656, May 4, 2023). Since the proposed rule was published, no
changes have been made to the Specified Geographic Region. Generally,
Dominion Energy's specified activities (i.e., vibratory and impact pile
driving of WTGs on monopile and OSS on jacket foundations; vibratory
pile driving (installation and removal) of temporary cofferdams; impact
pile driving (installation) of goal posts; placement of scour
protection; trenching, laying, and burial activities associated with
the installation of the export cable and inter-array cables; HRG site
characterization surveys; and WTG operation) are concentrated in the
Project Area (Figure 1). A couple of Dominion Energy's specified
activities (i.e., fishery and ecological monitoring surveys and
transport vessels) will occur in the Mid-Atlantic Bight.
BILLING CODE 3510-22-P
[[Page 4374]]
Figure 1--Project Area
[GRAPHIC] [TIFF OMITTED] TR23JA24.000
BILLING CODE 3510-22-C
Comments and Responses
A notice of proposed rulemaking was published in the Federal
Register on May 4, 2023 (88 FR 28656). The proposed rulemaking
described, in detail, Dominion Energy's specified activities, the
specified geographic region of the specified activities, the
[[Page 4375]]
marine mammal species that may be affected by those activities, and the
anticipated effects on marine mammals. In the proposed rule, we
requested that interested persons submit relevant information,
suggestions, and comments on Dominion Energy's request for the
promulgation of regulations and issuance of an associated LOA described
therein, our estimated take analyses, the preliminary determinations,
and the proposed regulations. The proposed rule was available for a 30-
day public comment period.
In total, NMFS received 169 comment submissions, comprising 161
individual comments from private citizens and 6 comment letters from
organizations or public groups including, but not limited to: the
Marine Mammal Commission (the Commission), Oceana, Inc. (Oceana), SELC,
Responsible Offshore Development Alliance (RODA), West Coast Pelagic
Conservation Group (WCPCG); and the Virginia Department of Wildlife
Resources (VDWR). Some of the comments received are considered out-of-
scope, including, but not limited to, comments related to the non-
offshore wind farm development; concerns for other species outside of
NMFS' jurisdiction (i.e., birds, tortoises, bats, insects); costs
associated with offshore wind development; recycling of turbine
components; national security concerns; other projects that are not the
CVOW-C Project; and project decommissioning, which would occur outside
the effective period of this rule. These comments are not described
herein or discussed further. Moreover, where comments recommended that
the final rule include mitigation, monitoring, or reporting measures
that were already included in the proposed rule and such measures are
carried forward in this final rule, they are not included here, as
those comments did not raise significant points for NMFS to consider.
Furthermore, if a comment received was unclear, we do not include it
here as we could not determine whether it raised a significant point
for NMFS to consider. NMFS also received a comment letter from Gatzke
Dillion & Ballance LLP on behalf of the Committee for a Constructive
Tomorrow (CFACT), the American Coalition for Ocean Protection (ACOP),
and the Heartland Institute after the close of the public comment
period.
The six letters (i.e., Oceana, RODA, WCPCG, SELC, VDWR, and the
Commission), as well as individual comments, received during the public
comment period contained significant points that NMFS considered in its
estimated take analysis, including: required mitigation, monitoring,
and reporting measures; final determinations; and final regulations.
These are described and responded to below. All substantive comments
and letters are available on NMFS' website: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Please review the corresponding public
comment link for full details regarding the comments and letters.
Modeling and Take Estimates
Comment 1: The Commission claimed NMFS ``underestimated the numbers
of Level A harassment and Level B harassment takes (including failing
to round up to group size) . . .'' Specifically, the Commission claimed
NMFS underestimated the number of takes for harbor seals because harbor
seals occur in much greater numbers than gray seals off Virginia (see
Jones and Rees, 2022).
Response: NMFS incorporated group size into the estimated take
analysis (see the Estimated Take of Marine Mammals section in the
proposed rule (88 FR 28656, May 4, 2023) and Estimated Take section of
this final rule). The Commission did not provide specific
recommendations to adjust any take estimates other than for harbor and
gray seals. NMFS has reviewed the number of takes by Level A harassment
and Level B harassment for all species and disagrees it is an
underestimate.
While the Commission does indeed cite a relevant paper, Jones and
Rees (2022), as the basis for their observation, NMFS does not believe
this paper alone is enough justification for adjusting take. The study
sites in Jones and Rees (2022) are not applicable to Dominion Energy's
activities (i.e., they are located in estuarine habitat) as NMFS does
not expect these specific areas to be impacted by the construction work
for CVOW-C.
Specifically in addressing the Commission's concerns with the 50/50
allocation of take for pinnipeds between each species, NMFS disagrees
that this method is incorrect and that this approach over- or under-
estimates take. The Duke University density models (Roberts et al.,
2023) group some species together (including phocid seals) to provide a
single density estimate. While we acknowledge that more harbor seals
have been observed in inland Chesapeake Bay waters than gray seals,
there is not sufficient at-sea data to better proportion the number of
takes by species; therefore, we assumed a 50/50 split consistent with
Roberts et al. (2023). Importantly, for each species, we believe the
maximum number of takes authorized in any given year (n=84 for each
species) is a reasonable estimate of the number of harassment takes
that may occur incidental to the specified activities given the
majority of work that may result in marine mammal harassment would be
occurring during times (May 1st through October 31st) when seals are
less likely to be present in Virginia waters. For these reasons, we
disagree with the Commission's claim and have not modified the take
estimate approach in this final rule.
Comment 2: A commenter disagreed with NMFS' preliminary small
numbers determination based on the sum of takes for all species.
Response: Under the MMPA, the Secretary of Commerce, as delegated
to NMFS, shall allow the incidental taking of ``small numbers of marine
mammals of a species or population stock'' if specific findings are
made (16 U.S.C. 1371(a)(5)(a)(i)). Thus, the small numbers finding is
done at the species or population level. In practice, where estimated
numbers are available, NMFS compares the number of individuals
estimated to be 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. NMFS has
made the necessary small numbers finding for all affected species and
stocks.
Comment 3: A commenter stated that there is the potential for
repeated exposures to adversely affect species' or stocks' annual rates
of recruitment or survival.
Response: NMFS fully considered the potential for repeated
exposures in the proposed rule and this final rule when determining if
the specified activities would result in a negligible impact to the
affected species and stocks. The Negligible Impact Analysis and
Determination section in both the proposed and final rules discusses
the potential for repeated exposures and the potential related impacts.
As described in those sections, NMFS has determined that the impacts
resulting from the specified activities (recognizing that the potential
for repeated exposures varies with the species due to habitat use
(e.g., migrating whales versus species that may remain in the area over
longer periods of time)), will have a negligible impact on the affected
species and stocks.
Comment 4: Commenters stated that there is no evidence or research
proving that the CVOW-C Project would not cause the mortality or
serious injury of marine mammals. The commenters further stated that
there is no evidence proving that the estimated take
[[Page 4376]]
proposed by NMFS in the proposed rule is accurate or the maximum total.
Response: Regarding take by serious injury or mortality, the
proposed rule clearly states that no serious injury and/or mortality is
expected or proposed for authorization, and the same carries into the
final rule for which no take by serious injury or mortality has been
authorized (see also 50 CFR 217.292(c)).
Regarding the claim that there is no evidence proving the take
estimates are accurate, the take numbers, as shown in the proposed and
final rule, are based on the best available marine mammal density data,
published and peer reviewed scientific literature, on-the-water reports
from other nearby projects or past MMPA actions, and highly complex
statistical models of which real-world assumptions and inputs have been
incorporated to estimate on a project-by-project basis. In the
Estimated Take section, NMFS has provided detailed rationale for why
the number and manner of takes authorized in this final rule are
reasonable and based on the best available science. The commenter did
not provide any information to support their claim that take estimates
are not representative of the take that may occur incidental to the
project. NMFS disagrees with the commenter and expects that the take
numbers authorized for this action are sufficient given the activity
proposed and planned by Dominion Energy.
Mitigation
Comment 5: The commenter stated that the LOA must include
conditions for the survey and construction activities that will first
avoid adverse effects on North Atlantic right whales in and around the
area and then minimize and mitigate the effects that cannot be avoided.
This should include a full assessment of which activities, technologies
and strategies are truly necessary to achieve site characterization and
construction to inform development of the offshore wind projects and
which are not critical, asserting that NMFS should prescribe the most
appropriate techniques that would produce the lowest impact while
achieving the same goals while prohibiting those other tools/techniques
that would cause more frequent, intense, or long-lasting effects.
Response: The MMPA requires that we include measures that will
effect the least practicable adverse impact on the affected species and
stocks and, in practice, NMFS agrees that the rule should include
conditions for the construction activities that will first avoid
adverse effects on North Atlantic right whales in and around the
project area, where practicable, and then minimize the effects that
cannot be avoided. NMFS has determined that this final rule meets this
requirement to effect the least practicable adverse impact. The
commenter does not make any specific recommendations of measures to add
to the rulemaking.
NMFS is required to authorize the requested incidental take if it
finds such incidental take of small numbers of marine mammals by the
requestor while engaging in the specified activities within the
specified geographic region will have a negligible impact on such
species or stock and, where relevant, will not have an unmitigable
adverse impact on the availability of such species or stock for
subsistence uses. As described in this notice of final rulemaking, NMFS
finds that small numbers of marine mammals may be taken relative to the
population size of the affected species or stocks and that the
incidental take of marine mammal from all of Dominion Energy's
specified activities combined will have a negligible impact on all
affected marine mammal species or stocks. It is not within NMFS'
authority to determine if the requestor's specified activities are
truly necessary or critical; however, NMFS does identify and has
required in this final rule mitigation measures the effect the least
practicable adverse impact on marine mammals.
Comment 6: The commenter stated that the LOA should use buffer
zones to avoid any effects of turbine presence on North Atlantic right
whales and foraging.
Response: Buffer zones have been suggested to mitigate impacts from
offshore wind related activities near areas of significance (e.g.,
known feeding grounds). As described in the proposed rule and herein,
the project area, located offshore Virginia, is not considered foraging
habitat and while some opportunistic foraging may occur, it is
primarily a migratory corridor. Therefore, NMFS disagrees that a new
mitigation measure creating a buffer zone is necessary to effect the
least practicable adverse impact on North Atlantic right whales.
Comment 7: One commenter recommended that NMFS require clearance
and shutdown zones for all protected species that included (1) a
minimum of 5,000 m (3.1 mi) for the visual and acoustic clearance
zones; and (2) an acoustic shutdown zone that would extend at least
2,000 m (1.2 mi) in all directions from the driven pile location.
Commenters also recommended that NMFS require pile-driving clearance
and shutdown zones for large whales (other than North Atlantic right
whale) that are large enough to avoid all take by Level A harassment
and minimize Level B harassment to the most practicable extent.
Response: The required shutdown and clearance zones (equally sized)
for large whales (other than North Atlantic right whale) are based on
the largest Level A harassment exposure range calculated for a
mysticete, other than humpback whales, rounded up to the nearest
hundred for PSO clarity. For all other species (e.g., dolphins, harbor
porpoise, seals), clearance and shutdown zones have been developed in
consideration of modeled distances to relevant PTS thresholds with
respect to minimizing the potential for take by Level A harassment,
which were rounded up for PSO clarity. NMFS has determined that these
zone sizes effect the least practicable adverse impact on marine
mammals. Further, delaying the project unnecessarily due to very large
clearance and shutdown zones could have unintended adverse impacts on
marine mammals by extending the construction schedule. The commenters
do not provide additional scientific information to support their
suggestion to expand clearance and shutdown zones to the distances
recommended. NMFS has not incorporated this recommendation into this
final rule.
NMFS agrees that mitigation measures should be designed to avoid
and minimize the potential for PTS and has included such measures in
this rulemaking to effect the least practicable adverse impact on
marine mammals. Specifically, in addition to requiring shutdown of pile
driving if North Atlantic right whales are detected at any distance,
NMFS has identified and required reasonable mitigation measures to
avoid or minimize adverse impacts to marine mammals, such as setting
this Project's impact pile driving clearance zones to be larger than
the Level A harassment (PTS) zones for all other large whale species.
NMFS believes that these measures are effective and would result in
avoiding (North Atlantic right whale) or minimizing (other large
whales) the takes by Level A harassment. We anticipate that where there
is potential for Level A harassment, any auditory injury will be
minimized through the implementation of noise abatement, soft starts,
and clearance and shutdown zones. NMFS has made its required negligible
impact finding based on the amount of take that may be authorized in
the LOA.
NMFS agrees with the commenter that impacts should be minimized to
the maximum extent practicable and we have done so with the required
[[Page 4377]]
mitigation measures. Enlargement of these zones is not practicable as
it could interrupt and delay the project such that construction
activities would occur over longer timeframes, which would incur
additional costs but, importantly, also potentially increase the number
of days that marine mammals are exposed to the disturbance. Conducting
activities as expeditiously as possible when large whales are less
likely to occur in the area is a means by which to minimize harassment.
Accordingly, NMFS has determined that enlargement of these zones is not
warranted, and that the existing required clearance and shutdown zones
support a suite of measures that will effect the least practicable
adverse impact on other large whales.
Comment 8: A commenter recommended that, to protect all protected
species, NMFS should restrict pile driving at night while another
recommended pile driving should only be allowed to continue after dark
if the activity was started during daylight hours and must continue due
to human safety or installation feasibility (i.e., stability) concerns,
but that nighttime monitoring protocols be required. A commenter
suggested that if pile driving must continue after dark, Dominion
Energy should be required to notify NMFS with these reasons and an
explanation for exemption and that a summary of the frequency of these
exceptions must be made publicly available to ensure that these are
indeed exceptions, rather than the norm, for the project.
Response: Dominion Energy did not request, and NMFS did not
evaluate, nighttime pile driving except in the following circumstance.
In the proposed rule, we indicated that Dominion Energy must initiate
pile driving prior to 1.5 hours before civil sunset and not before 1
hour after civil sunrise unless they submit to NMFS, for approval, an
Alternative Monitoring Plan for nighttime pile driving activities.
Within the final regulations and consistent with the commenter's
recommendation, Dominion Energy will be allowed, due to safety and
stability concerns, to finish piles at night when the pile has been
started during daylight hours, in which they still must provide an
Alternative Monitoring Plan for NMFS review and approval to ensure that
they can appropriately monitor and mitigate for marine mammals in
reduced visibility conditions. This Plan will describe the alternative
monitoring technologies that would be used to observe for marine
mammals, which as described in the proposed rule and carried over into
the final rule, includes technologies such as infrared or thermal
cameras, that are considered practical in low-light conditions and
other periods of reduced visibility to allow for the continuation of
monitoring the applicable clearance and shutdown zones. This
Alternative Monitoring Plan is also applicable to reduced visibility
conditions.
Regarding the reporting requirement specified by the commenter,
required weekly and monthly reports during foundation installation must
contain information that would inform how long and when pile driving
occurred, as Dominion Energy is required to document the daily start
and stop times of all pile-driving activities. At minimum, a final
annual report with this information will be made available to the
public, as recommended by the commenter.
Comment 9: Given the potential of the project to increase the
vessel traffic in and around the project area, a commenter suggests
that the regulations include a vessel traffic plan to minimize the
effects of service vessels on marine wildlife and include the following
requirements for all project vessels, regardless of their function,
ownership, or operator, to further reduce impacts to marine mammals:
(1) all vessels associated with the proposed construction should be
required to carry and use PSOs at all times when under way; and (2)
limit all vessels, regardless of size, to speeds less than 10 knots
(kn) at all times with no exceptions allowed. Alternatively, commenters
suggest that project proponents could work with NMFS to develop an
``Adaptive Plan'' that modifies vessel speed restrictions if the
monitoring methods informing the Adaptive Plan are proven as effective
when for vessels traveling 10 kn or less and must follow a scientific
study design. One commenter further suggested that if the Adaptive Plan
is scientifically proven to be equally or more effective than a 10-kn
speed restriction, that the Adaptive Plan could be used as an
alternative to the 10-kn speed restriction. Identical or similar vessel
mitigation measures were suggested by others.
Response: Dominion Energy is required to abide by a suite of vessel
strike avoidance measures that include, for example, seasonal and
dynamic vessel speed restrictions to 10 kn (18.5 km/hour) or less;
required use of dedicated observers (i.e., visual PSOs during
construction activities or trained lookouts during vessel transit) on
all transiting vessels; and a requirement to maintain awareness of
North Atlantic right whale presence and occurrence through monitoring
of North Atlantic right whale sighting systems (i.e., RWSAS, U.S. Coast
Guard Channel 16, the establishment of any Dynamic Management Areas
(DMAs)). Additionally, as included in the proposed rule and required in
this final rule, Dominion Energy is required to submit a North Atlantic
Right Whale Vessel Strike Avoidance Plan to NMFS for review and
approval (see Sec. 217.294(b)(16)). While a year-round 10-kn
requirement could potentially fractionally reduce the already
discountable probability of a vessel strike, this theoretical reduction
is not expected to manifest in measurable real-world differences in
impact. Further, additional limitations on speed have significant
practicability impacts on applicants, in that, given the distance of
CVOW-C's Lease Area offshore of Virginia, vessels trips to and from
shore would significantly increase in duration to the extent that
delays to the project and planned construction schedule would be likely
to occur resulting in impracticable economic and resource (e.g., vessel
availability) constraints. Additionally, requiring a PSO on all
transiting vessels (in lieu of trained crew members) also contribute to
unnecessary and impracticable economic and resources issues (as space
on vessels is limited), which could also extend the number of days
necessary to complete all pile driving of foundations. While NMFS is
requiring a dedicated observer to be aboard all transiting vessels, we
find a dedicated trained crew member is sufficient to observe for
marine mammals, particularly large whales, to further reduce risk of
vessel strike. Furthermore, Dominion Energy has committed to the use of
PAM within the vessel transit corridor to further aid in the detection
of marine mammals. NMFS has determined that these and other included
measures ensure the least practicable adverse impact on species or
stocks and their habitat. Therefore, we are not requiring project-
related vessels to travel 10 kn or less at all times.
Regarding an ``Adaptive Plan'', the proposed rule and this final
rule contain adaptive management provisions that allows NMFS to modify
mitigation, monitoring, or reporting measures if doing so creates a
reasonable likelihood of more effectively accomplishing the goal(s) of
the measure (see Sec. 217.297(c)). Dominion Energy may also request
modifications to the mitigation and monitoring measures (see Sec.
217.297(a)-(b)). Therefore, NMFS disagrees that an Adaptive Plan is
necessary to affect the least practicable adverse impact on marine
mammals.
Comment 10: Commenters recommended that NMFS require
[[Page 4378]]
Dominion Energy to implement the best, commercially available combined
NAS technology to achieve the greatest level of noise reduction and
attenuation possible for pile driving, with a specific recommendation
that NMFS require, at a minimum, a 10-dB reduction in SEL. The
commenter further stated that NMFS should require field measurements to
be taken throughout the construction process, including on the first
pile installed, to ensure compliance with noise reduction requirements.
Response: NMFS agrees with the suggestion made by the commenters
that underwater noise levels should be reduced to the greatest degree
practicable to reduce impacts on marine mammals. As described in both
the proposed and final rule, NMFS has included requirements for sound
attenuation methods that successfully (evidenced by required sound
field verification measurements) reduce real-world noise levels
produced by impact pile driving of foundation installation to, at a
minimum, the levels modeled assuming 10-dB reduction, as analyzed in
this rulemaking. Preliminary sound measurements from South Fork Wind
indicate that with multiple NAS systems, measured sound levels during
impact driving foundation piles using a 4,000 kilojoules (kJ) hammer
are below those modeled assuming a 10-dB reduction and suggest, in
fact, that two systems may sometimes be necessary to reach the targeted
10-dB reductions. While NMFS is requiring that Dominion Energy reduce
sound levels to at or below the model outputs analyzed (assuming a
reduction of 10 dB), we are not requiring greater reduction as it is
currently unclear (based on measurements to date) whether greater
reductions are consistently practicable for these activities, even if
multiple NAS systems are used.
In response to the recommendation by the commenters for NMFS to
confirm that a 10-dB reduction is achieved, NMFS clarifies that,
because no unattenuated piles would be driven, there is no way to
confirm a 10-dB reduction; rather, in-situ SFV measurements will be
required to confirm that sound levels are at or below those modeled
assuming a 10-dB reduction.
In addition to the SFV requirements in the proposed rule, we added
to this final rule the requirement that Dominion Energy must conduct
abbreviated SFV monitoring (consisting of a single acoustic recorder
placed at an appropriate distance from the pile) on all foundation
installations for which the complete SFV monitoring, as required in the
proposed rule, is not carried out consistent with the Biological
Opinion. NMFS is requiring that these SFV results must be included in
the weekly reports. Any indications that distances to the identified
Level A harassment and Level B harassment thresholds for whales must be
addressed by Dominion Energy, including an explanation of factors that
contributed to the exceedance and corrective actions that were taken to
avoid exceedance on subsequent piles.
Comment 11: Commenters recommended that, for HRG surveys, NMFS
require the use of PAM and include a 1,000-m (0.62-mi) acoustic
clearance zone for North Atlantic right whales and also increase the
visual clearance zone to 1,000 m for right whales. Another commenter
recommended that NMFS increase the size of the visual clearance and
shutdown zones during HRG surveys to 500 m (0.31 mi) for all other
large whales. They also suggested that HRG surveys should be halted or
shut down if North Atlantic right whales or other large whales are
acoustically detected.
One commenter who also supported PAM during HRG surveys, stated
that the real-time PAM system should be capable of detecting protected
species at least 10,000 m (6.2 mi) and would be undertaken by a vessel
other than the pile driving vessel or from a stationary unit to avoid
masking effects of the hydrophone. The commenter also suggested that
PAM be used during all impact pile driving, during vibratory pile
driving of the cofferdams, and during HRG surveys.
Response: NMFS disagrees PAM is necessary during HRG surveys. While
NMFS agrees that PAM can be an important tool for augmenting detection
capabilities in certain circumstances, its utility in further reducing
impacts during HRG survey activities is limited. First, it is generally
accepted that, even in the absence of additional acoustic sources,
using a towed passive acoustic sensor to detect baleen whales
(including North Atlantic right whales) is not typically effective
because the noise from the vessel, the flow noise, and the cable noise
are in the same frequency band and will mask the vast majority of
baleen whale calls. Vessels produce low-frequency noise, primarily
through propeller cavitation, with main energy in the 5-300 Hertz (Hz)
frequency range. Source levels range from about 140 to 195 decibel (dB)
re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003; Hildebrand, 2009),
depending on factors such as ship type, load, and speed, and ship hull
and propeller design. Studies of vessel noise show that it appears to
increase background noise levels in the 71-224 Hz range by 10-13 dB
(Hatch et al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM
systems employ hydrophones towed in streamer cables approximately 500 m
behind a vessel. Noise from water flow around the cables and from
strumming of the cables themselves is also low-frequency and typically
masks signals in the same range. Experienced PAM operators
participating in a recent workshop (Thode et al., 2017) emphasized that
a PAM operation could easily report no acoustic encounters, depending
on species present, simply because background noise levels rendered any
acoustic detection impossible. The same workshop report stated that a
typical eight-element array towed 500 m behind a vessel could be
expected to detect delphinids, sperm whales, and beaked whales at the
required range, but not baleen whales, due to expected background noise
levels (including seismic noise, vessel noise, and flow noise).
Second, for HRG surveys, the area expected to be ensonified above
the Level B harassment threshold is relatively small (a maximum of 100
m via the GeoMarine Dual 400 Sparker at 800 joules); this reflects the
fact that the source level is comparatively low and the intensity of
any resulting impacts would be lower level. Further, the small
harassment zone (and 500 m clearance and shutdown zones) are likely to
be effectively monitored via visual means and PAM will only detect a
portion of any animals exposed within these small zones. Together these
factors support the limited value of PAM for use in reducing take with
smaller zones.
NMFS also disagrees that the zones for North Atlantic right whales
and other large whales should be expanded. As described in the proposed
and final rules, the required 500-m clearance zone for North Atlantic
right whales exceeds the modeled distance to the largest 160-dB Level B
harassment isopleth (100 m (0.06 mi) during sparker use) by a large
margin, minimizing the likelihood that they will be harassed in any
manner by this activity. The 500-m distance is five times the estimated
isopleth for the largest 160-dB Level B harassment threshold and we do
not see a need to increase this further. Further, the commenters do not
provide scientific information for NMFS to consider to support their
recommendation to expand the clearance zone. As such, NMFS recognizes
that requiring zones beyond those that meet the least practicable
adverse impact standard could delay the project such that construction
activities are extended to
[[Page 4379]]
the point that it is actually less beneficial for the species. Given
that these surveys are relatively low impact, and that NMFS has
prescribed a precautionary North Atlantic right whale clearance zone
that is larger (500 m) than the largest estimated harassment zone (100
m), NMFS has determined that an increase in the size of the clearance
and shutdown zones for North Atlantic right whales to 1,000 m is not
warranted or practicable and the commenter does not provide new
information supporting this comment. Similarly, increasing the size of
the clearance and shutdown zones for other large whales to 500 m during
HRG surveys is also not warranted or practicable and the commenter does
not provide new information supporting this comment.
Regarding the use of PAM during cable landfall construction,
although distances above the Level B harassment threshold are larger
than for HRG surveys (3,100 m for temporary cofferdams and 1,450 m for
temporary goal posts), the effects are not expected to rise to the
level that would constitute Level A harassment (injurious take). Noise
generated during cable landfall construction is of relatively short
duration, low level, and in nearshore waters (which tend to be calmer
than offshore) where PSO monitoring will be sufficient for detecting
marine mammals to implement mitigation that effects the least
practicable adverse impact on marine mammals. Similar to HRG surveys,
given that the effects to marine mammals from cable landfall
construction are expected to be limited to low level behavioral
harassment (Level B harassment) even in the absence of mitigation
(i.e., no Level A harassment is expected or authorized), the limited
additional benefit anticipated by adding this detection method for the
short term cable landfall pile driving is not warranted or necessary to
ensure the least practicable adverse impact on the affected species or
stocks and their habitat.
Regarding the use of passive acoustic monitoring to implement the
clearance and shutdown zones during foundation installation, as
described in the proposed rule, NMFS is requiring the use of PAM to
monitor 10 km zones around the piles and that the systems be capable of
detecting marine mammals during pile driving within this zone. In this
final rule, Tables 25 and 26 clearly specify this 10-km PAM monitoring
zone. Dominion Energy is required to submit a PAM Plan to NMFS for
approval at least 180 days prior to the planned foundation pile driving
start date. NMFS will not approve a Plan where hydrophones used for PAM
would be deployed from the pile driving vessel as this would result in
hydrophones inside the bubble curtains, which would clearly be
ineffective for monitoring; therefore, there is no need to explicitly
state in this rule that this would not be allowed.
As described in the Mitigation section, NMFS has determined that
the prescribed mitigation requirements are sufficient to effect the
least practicable adverse impact on all affected species or stocks.
Comment 12: The Commission suggested that NMFS' proposed minimum
visibility zone (2 km) during foundation pile driving is insufficient
given that the Level A harassment zone for impact pile driving ranges
from 3.2 to 5.7 km and that the Level B harassment zones range from 5.5
to 6.2 km for North Atlantic right whales.
Response: NMFS appreciates the suggestion by the Commission but
does not agree that an increase of the minimum visibility zone is
warranted. When modeling the PTS threshold zone sizes, Tetra Tech
produced acoustic ranges (R95). Acoustic ranges
represent the distance to a harassment threshold based on sound
propagation through the environment independent of any receiver. That
is, the R95 values represent the distance at which
an animal would have to remain from a pile for the entire duration of
exposure within a 24 hours period (in this case up to 2 monopiles per
day or 2 pin piles per day). This assumption is unrealistic as we
anticipate animals will move away from the source upon exposure as the
area is primarily a North Atlantic right whale migration corridor and
we do not anticipate whales to remain in the area for extended periods
of time throughout the days. Further, the acoustic ranges are
conservative in that they are calculated from 3D sound fields and then,
at each horizontal sampling range, the maximum received level that
occurs within the water column is used as the received level at that
range. These maximum-over-depth (Rmax) values are then
compared to predetermined threshold levels to determine acoustic and
exposure ranges to Level A harassment and Level B harassment zone
isopleths. However, the ranges to a threshold typically differ among
radii from a source, and also might not be continuous along a radii
because sound levels may drop below threshold at some ranges and then
exceed threshold at farther ranges. To minimize the influence of these
inconsistencies, 5 percent of the farthest such footprints are
typically excluded from the model data. The resulting range,
R95, is then chosen to identify the area over which
marine mammals may be exposed above a given threshold, because,
regardless of the shape of the maximum-over-depth footprint, the
predicted range encompasses at least 95 percent of the horizontal area
that would be exposed to sound at or above the specified threshold.
R95 excludes ends of protruding areas or small
isolated acoustic foci not representative of the nominal ensonified
zone. Finally, pile driving would occur during times when North
Atlantic right whales are least likely to be in the Project Area.
Creating a large minimum visibility distance despite the rarity of
whales would unnecessarily delay the project such that work would be
extended; thereby increasing the timeframe over which marine mammals
may be exposed to construction activities.
For these reasons, NMFS does not believe it necessary to increase
this zone size. Furthermore, even with the larger acoustic ranges
produced from the conservative modeling, the minimum visibility zone
does not differ greatly from those presented for other nearby projects
which calculated distances to thresholds in consideration of animal
movement (off of New Jersey, final Ocean Wind 1-1.65 km in the summer
and 2.5 km in the winter; proposed Atlantic Shores South--1.9 km).
Comment 13: A commenter questioned why there was a depth
restriction in Dominion Energy's Protected Species Mitigation and
Monitoring Plan (PSMMP) when vessel speeds apply and recommended
additional vessel restrictions regarding 10 kn or less within specific
areas to reduce the risk of vessel strike on cetaceans.
Response: NMFS did not restrict any of the vessel speed measures to
apply at specific depths; instead the measures are designed to apply to
any and all vessel usage by Dominion Energy. Dominion Energy's project
vessels would be restricted to 10 kn or less in certain circumstances,
which include and in cases, go beyond existing vessel speed
regulations. NMFS has included several measures in both the proposed
and final rules that are sufficient to reasonably avoid vessel strike
(see response to Comment 9 above for additional information). NMFS
disagrees with the commenter that additional measures are necessary to
avoid vessel strike.
Comment 14: A commenter suggested the NMFS should require Dominion
to deploy additional noise attenuation technologies that, together with
the double bubble curtain, reach a 15-
[[Page 4380]]
decibel (dB) reduction or greater in sound exposure level (``SEL'').
Response: NMFS acknowledges that underwater noise levels should be
reduced to the greatest degree practicable to reduce impacts on marine
mammals. As described in both the proposed and final rules, NMFS has
included requirements for sound noise attenuation methods that
successfully reduce foundation installation noise levels to, at a
minimum, the levels modeled assuming 10-dB reduction. While NMFS is
requiring that Dominion Energy reduce sound levels to equal or be below
the model outputs analyzed (assuming a reduction of 10 dB), we are not
assuming greater reduction as it is currently unclear (based on
measurements to date) whether greater reductions are consistently
practicable for these activities, even if multiple NAS systems are
used. Preliminary sound measurements from South Fork Wind indicate that
with multiple NAS systems, measured sound levels during impact driving
foundation piles using a 4,000-kJ hammer are at or below those modeled
assuming a 10-dB reduction and suggest, in fact, that two systems may
sometimes be necessary to reach the targeted 10-dB reductions. In
response to the recommendation by the commenters for NMFS to confirm
that a 10-dB reduction is achieved, NMFS clarifies that, because no
unattenuated piles would be driven, there is no way to confirm a 10-dB
reduction; rather, in-situ SFV measurements will be required to confirm
that sound levels are at or below those modeled assuming a 10-dB
reduction. To further clarify, Dominion Energy must achieve an
activity's modeled sound reduction during foundation installation. If
the modeled sound reduction is not achieved, additional measures are
required to reduce those noise levels.
Comment 15: A commenter expresses concern that NMFS' enhanced
measures for North Atlantic right whales are not broadly applied to
other ESA-listed large whale species. They also expressed concern over
the Potential Biological Removal (PBR) for each stock not being
assessed cumulatively based on the take authorized for CVOW-C and other
threats to large whales.
Response: The commenter inappropriately conflates Level A
harassment (e.g., auditory injury, PTS) and Level B harassment (i.e.,
behavioral disturbance) with mortality and serious injury through their
reference to PBR levels. A stock's PBR level is ``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.'' PBR is not an appropriate metric to
evaluate the take allowed under the CVOW regulations in the manner
suggested by the commenter, which is take by Level A harassment or
Level B harassment, not mortality or serious injury (i.e., removals
from the population). NMFS has described and used an analytical
framework that is appropriate. We consider levels of ongoing
anthropogenic mortality from other sources, such as commercial
fisheries, in relation to calculated PBR levels as part of the
environmental baseline in our negligible impact analysis.
Regarding cumulative impacts, NMFS refers the commenter to the
response found in Comment 28 as the same information applies here.
Furthermore, while the commenter is correct that enhanced mitigation
and monitoring measures are required for North Atlantic right whales
specifically, given their unique and precarious position, and that some
of these measures will have beneficial effects on other species as
well. For example, while PAM detections of a North Atlantic right
whale, at any distance, would necessitate a shutdown/delay to any
specified activity, we expect that other low-frequency specialists will
benefit from the use of PAM (i.e., detections) as these will provide
additional awareness to complement PSOs on visual observation. While we
do acknowledge that the ``at any distance'' provision is not a blanket
requirement across all species, we believe that the additional
awareness provided by PAM, in addition to the conservative zone sizes
will also reduce negative impacts to these other species. Requiring
shutdowns/delays ``at any distance'' for all large whale species,
regardless of status, could potentially extend the duration project
activities would be necessary, as more frequent shutdowns/delays would
otherwise be needed. There are offsetting benefits to completing the
project activities (specifically foundation installation) in a shorter
amount of time, as extending these construction periods due to more
frequent shutdowns runs the risk of extending activities into months
where species densities are higher in the Project Area.
Comment 16: A commenter recommended that NMFS work more to
encourage the use of gravity-based and suction bucket foundations
rather than piled foundations, as these foundations have demonstrated a
potential for reduced impacts to marine mammals while providing
potentially more flexibility to developers. They further suggested
that, if this isn't possible for CVOW-C or other future projects, which
NMFS works with BOEM to encourage measures that could lead to greater
levels of noise reduction during pile driving.
Response: NMFS agrees that there are sound minimization benefits to
marine mammals when using non-pile driven foundations, such as the
results shown in recent publications (e.g., Potlock et al., 2023).
However, it is not within NMFS' authority to determine the applicant's
specified activities. NMFS is required to authorize the requested
incidental take if it finds such incidental take of small numbers of
marine mammals by the requestor while engaging in the specified
activities within the specified geographic region will have a
negligible impact on such species or stock and, where relevant, will
not have an unmitigable adverse impact on the availability of such
species or stock for subsistence uses. As described in this notice of
final rulemaking, NMFS finds that small numbers of marine mammals may
be taken relative to the population size of the affected species or
stocks and that the incidental take of marine mammals from all of the
specified activities combined will have a negligible impact on all
affected marine mammal species or stocks.
NMFS continually supports efforts to reduce ocean noise across
various industries, including OSW. For example, NOAA's Ocean Noise
Strategy (https://oceannoise.noaa.gov/) articulates the agency's vision
for addressing ocean noise impacts to marine species, and NMFS supports
BOEM's Recommendations for Offshore Wind Project Pile Driving Sound
Exposure Modeling and Sound Field Measurement document and BOEM's
Nationwide Recommendations for Impact Pile Driving Sound Exposure
Modeling and Sound Field Measurement for Offshore Wind Construction and
Operations Plans (https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/FINAL%20Nationwide%20Recommendations%20for%20Impact%20Pile%20Driving%20Sound%20Exposure%20Modeling%20and%20Sound%20Field%20Measurement%20%28Acoustic%20Modeling%20Guidance%29.pdf). NMFS and BOEM also are jointly
working on the North Atlantic Right Whale and Offshore Wind Strategy
(https://www.noaa.gov/news-release/noaa-and-boem-announce-draft-offshore-wind-north-atlantic-right-whale-strategy). All of these
documents encourage reducing ocean noise,
[[Page 4381]]
including BOEM's establishment of quieting performance standards for
OSW and conducting some level of SFVs on every pile installed, which
NMFS has provided feedback on and supports. Finally, NMFS is
collaborating with BOEM and the Department of Energy (DOE) on a recent
funding notice focused on installation noise reduction and reliable
moorings for offshore wind and marine energy (found here at: https://www.energy.gov/eere/wind/articles/funding-notice-installation-noise-reduction-and-reliable-moorings-offshore-wind?utm_medium=email&utm_source=govdelivery).
Comment 17: The commenters recommend that NMFS prohibit site
assessment and site characterization activities during times of highest
risk to North Atlantic right whales, using the best available science
to define high-risk timeframes. In addition, the commenters suggest
that NMFS should develop a real-time mitigation and monitoring protocol
to dynamically manage the timing of site assessment and
characterization activities to ensure those activities are undertaken
during times of lowest risk for all relevant large whale species.
Response: As discussed in Comment 9, given the required vessel
strike avoidance mitigation measures and small Level A harassment and
Level B harassment isopleths for HRG surveys (54.2 m and 100 m,
respectively), no Level A harassment, serious injury, or mortality is
anticipated or authorized for this activity for any species, and the
comparatively limited number of authorized takes by Level B harassment
is expected to result in low-level impacts. The largest modeled Level B
harassment zone size for the GeoMarine Dual 400 sparker (100 m) is
already much smaller than the required separation and shutdown
distances for North Atlantic right whale (500 m) and any unidentified
large whale that would be treated as if it were a North Atlantic right
whale. Furthermore, the proposed rule and this final rule include a
framework of mitigation and monitoring measures designed to effect the
least practicable adverse impact on marine mammals (see 50 CFR
217.294(e), 217.295). Therefore, NMFS disagrees there is a need to
prohibit such surveys during ``high-risk timeframes'' and develop a
dynamic management system.
Comment 18: One commenter recommended that all vessels responsible
for crew transport (i.e., service operating vessels) should use
automated thermal detection systems to assist monitoring efforts while
vessels are in transit.
Response: NMFS is requiring that all vessels, when transiting, must
utilize trained, dedicated observers and, in the case of reduced
visibility, use alternate technology to maintain visual monitoring,
which may include infrared technologies (a type of thermal detection
system). Dominion Energy is required to submit a Vessel Strike
Avoidance Plan which will describe the type of technologies they
propose to use to monitor for marine mammals. NMFS will evaluate that
plan and determine if different or additional technology is required.
Comment 19: The commenter asserted that to minimize the impacts of
underwater noise from HRG surveys to the fullest extent feasible,
project proponents should select and operate sub-bottom profiling
systems at power settings that achieve the lowest practicable source
level for the objective.
Response: NMFS agrees with the suggestion made by the commenters
that underwater noise levels should be reduced to the greatest degree
practicable to reduce impacts on marine mammals. NMFS also agrees with
the suggestion that Dominion Energy should utilize its HRG acoustic
sources at the lowest practicable source level to meet the survey
objective and has incorporated this requirement into the final rule
(see Sec. 217.294(e)(4)).
Comment 20: A commenter suggested that NMFS require: (1) at least
15 dB of sound attenuation from pile driving, with a minimum of 10 dB
to be required; (2) field measurements be conducted on the first pile
installed and the data must be collected from a random sample of piles
through the construction period, although the commenter specifically
notes that they do not support field testing of unmitigated piles; and
(3) that all sound source validation reports of field measurements be
evaluated by both NMFS and BOEM prior to additional piles being
installed and that these reports be made publicly available. Another
commenter has suggested that NMFS strengthen its requirement to
maximize the level of noise reduction possible for the CVOW-C Project,
utilizing 10 dB as the minimum only but meeting upwards of 20 dB of
noise reduction. To support their assertion, they cited datasets by
Bellmann et al. (2020 and 2022). They also recommended that NMFS
require the ``best commercially available combined NAS technology'' to
achieve noise reduction and attenuation.
Response: NMFS acknowledges that previous measurements (see
Bellmann, 2019; Bellmann et al., 2020) indicate that the deployment of
double big bubble curtains should result in noise reductions beyond the
assumed 10 dB. However, when sound field verifications (SFV)
measurements are conducted during construction, several factors come
into play in determining how well modeled levels/isopleths correspond
to those measured in the field, such as the level at the source, how
well the noise travels in the environment, and the effectiveness of the
deployed NAS across a broad range of frequencies. For these reasons,
NMFS conservatively assumes only a 10-dB noise reduction. Furthermore,
if SFV measurements consistently demonstrate that distances to
harassment thresholds are less than those modeled assuming 10 dB
attenuation, adjustments in monitoring and mitigation can be made by
NMFS, upon request by Dominion Energy. We reiterate that there is no
requirement to achieve 10-dB attenuation as no unattenuated piles would
be driven; therefore, it is not possible to collect the data necessary
to enforce this requirement. However, as described in Comments 10 and
14, we are requiring the developer to meet the noise levels modeled,
assuming 10-dB attenuation. NMFS is also actively engaged with other
agencies and offshore wind developers on furthering quieting
technologies.
It is important to note that the assumed 10-dB reduction is not a
limit, it is a conservative estimate of the likely achievable noise
reduction, which along with all other modeling assumptions, allows for
estimation of marine mammal impacts and informs monitoring and
mitigation. However, we have incorporated requirements to add or modify
NAS in the event that noise levels exceed those modeled.
NMFS notes that Dominion Energy must conduct SFV on three monopiles
and on all OSS foundations (n=12 pin piles total) and, at this time,
NMFS does not support unmitigated field testing for pile installation.
If SFV acoustic measurements indicate that ranges to isopleths
corresponding to the Level A harassment and Level B harassment
thresholds are less than the ranges predicted by modeling (assuming 10
dB attenuation), Dominion Energy may request a modification of the
clearance and shutdown zones for foundation pile driving of monopiles.
If requested and upon receipt of an interim SFV report, NMFS may adjust
zones (i.e., Level A harassment, Level B harassment, clearance,
shutdown, and/or minimum visibility zone) to reflect SFV measurements.
As part of the updates to the final rule, NMFS also requires
maintenance checks and testing of NAS
[[Page 4382]]
systems before each use to ensure the NAS is usable and the system is
able to achieve the modeled reduction, this information would be
required to be reported to NMFS within 72 hours of an installation but
before the next installation occurs.
Lastly, NMFS agrees that SFV reports (sound source validation
reports) to NMFS should be required and evaluated by the agencies prior
to further work commencing. NMFS agrees that the final SFV reports that
have undergone quality assurance/quality control (QA/QC) by the
agencies and include all of the required information to support full
understanding of the results will be made publicly available; however,
interim results without full review and all of the other supporting
information are not ripe or appropriate for public availability.
Comment 21: A commenter stated that the seasonal restriction put
into place for foundation pile driving for North Atlantic right whales
should be assessed with regards to other marine mammal species, such as
humpback whales, which may be present in higher numbers in the summer.
They further suggested that additional protective approaches are needed
for other species that may be present, such as the use of a real-time
monitoring and mitigation system. Other commenters suggested dynamic
management of activity temporal restrictions during project
construction based on near real-time monitoring.
Response: NMFS acknowledges that the seasonal restriction for
impact pile driving is to effect the least practicable adverse impact
on North Atlantic right whales; however, NMFS notes that this seasonal
restriction provides additional protections to large whale species that
occur off of Virginia during summer months. For example, humpback
whales, based on the Duke University density models (Roberts et al.,
2023), have higher occurrences in the late winter/early spring period
(January through April) and reach their highest numbers within May and/
or June. Subsequent declines in densities are noted after peak summer.
Fin whales demonstrate a fairly year-round presence off of Virginia,
with the highest densities occurring from November through May. We note
that the highest densities are located in more offshore waters than the
CVOW-C Project would be located and generally more northern in
distribution. Harbor porpoises are primarily located off of Virginia
from November through April, per Roberts et al. (2023). These durations
almost all fall within the large seasonal restriction required by NMFS
(November through April), which would reduce much of the impact to
animals transiting through the area. Furthermore, Dominion Energy's
analysis and take numbers were run assuming average seasonal densities,
which may be slightly higher given increased densities when averaged
with lower ones. Given that we expect marine mammals to actively be
transiting through the area, rather than residing, impacts should be
further lessened. While we acknowledge that some whales, such as the
North Atlantic right whale, are acoustically detected year-round off of
Virginia (Salisbury et al., 2015), no scientific information or data
supports the offshore Virginia waters as a Biologically Important Area
for any other protected marine mammal species (besides the North
Atlantic right whale migratory corridor). However, this is not to say
that these species do not occur in these waters, but simply that the
Virginia offshore waters are not primary habitat for essential life
functions, such as foraging or calving, for other protected species.
Instead, marine mammals primarily utilize these waters to transit to or
from a more viable/important habitat.
Lastly, NMFS agrees that a near real-time monitoring system and
protocols for North Atlantic right whales and other large whale species
is a prudent and practicable measure and, as such, included real-time
PSO monitoring and near real-time PAM (where practicable and effective
(i.e., foundation pile driving) in the proposed rule and the final rule
(see Comments 21 and 22). Monitoring will inform whether other
mitigation measures, such as delaying or shutting down a source, are
triggered.
Monitoring, Reporting, and Adaptive Management
Comment 22: Commenters recommended that NMFS require real-time
notifications of project activities (e.g., HRG surveys, pile driving,
etc.) and immediate notifications of any strandings or sightings of
North Atlantic right whales or other protected species. Commenters also
recommended NMFS make reports publicly available.
Response: The commenter did not identify why real-time notification
to NMFS regarding project activities is necessary and NMFS does not
agree this is necessary or practicable. Dominion Energy is required to
submit weekly reports to NMFS during foundation installation, which
includes project activities. It is not necessary for NMFS to track, in
real-time, project activities.
NMFS agrees with the commenter that North Atlantic right whale
reporting should be done in a timely manner. The proposed and final
rule each contain situational reporting requirements for every North
Atlantic right whale sighting or acoustic detection immediately but
also recognizes the potential for immediate communication to be
challenging. In both of the proposed and final rules, NMFS has included
a requirement that if a North Atlantic right whale is observed at any
time by PSOs or project personnel, Dominion Energy must ensure the
sighting is immediately (if not feasible, as soon as possible and no
longer than 24 hours after the sighting) reported to NMFS, the U.S.
Coast Guard, and the Right Whale Sightings Advisory System (RWSAS).
This includes stranded animals. If the North Atlantic right whale is
stranded, the report (via phone or email) must include contact (name,
phone number, etc.), the time, date, and location of the first
discovery (and updated location information if known and applicable);
species identification (if known) or description of the animal(s)
involved; condition of the animal(s) (including carcass condition if
the animal is dead); observed behaviors of the animal(s), if alive; if
available, photographs or video footage of the animal(s); and general
circumstances under which the animal was discovered. Any acoustic
detection of a North Atlantic right whale would be reported to NMFS as
soon as possible, but no longer than 24 hours after the detection via
the 24-hour North Atlantic right whale Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates).
PSOs and PAM operators are required to follow strict reporting
requirements (i.e., weekly and monthly (during foundation
installation), and annually and situationally (all activities)) to
document the sighting, behavior, species, etc. NMFS does not consider
real-time reporting necessary, nor have we required it. ``Real-time''
reporting constitutes immediate or instantaneous notifications at the
time of the sighting or observation. Instead, NMFS does, in the
Monitoring and Reporting section, require ``near real-time'', which
allows the notification to happen in a timely manner but after a
reasonable delay when on the water. Weekly and monthly reports would be
required for the duration of foundation installation. The final rule
requires annual reports on sightings, activities, and take resulting
from the project, and a 5-year report on all visual and acoustic
monitoring. Situational reporting is required for any event that might
need more direct NMFS-intervention (such as an adaptive
[[Page 4383]]
management need), due to the sighting of a large whale species, or an
unexpected marine mammal interaction occurred or was detected. We also
note that the commenter does not provide justification regarding what
actions NMFS would be expected to undertake for real-time reporting, or
why that would be necessary. In the event of sighting a dead or injured
marine mammal, NMFS has included specific situational reporting
requirements that would need to be undertaken as soon as feasible but
within 24 hours. This feasibility requirement is necessary as there are
many different situations that could occur on the water that could
reduce communication potential, so NMFS allows the developer some time
to maintain or recover communication if necessary. Because of this,
NMFS does not see any issues with its requirements for situational
reporting and feasibility and has opted not to change anything herein.
The only circumstance wherein immediate reporting is required is in the
unforeseen instance that a Project vessel strikes a marine mammal. The
non-auditory injury or death of a marine mammal caused by vessel strike
must be immediately reported to NMFS, and Dominion Energy must
immediately cease all on-water activities until the NMFS Office of
Protected Resources is able to review the circumstances of the incident
and determine what, if any, additional measures are appropriate to
ensure compliance with the terms of the LOA. All final reports
submitted to NMFS will be included on the website for availability to
the public.
Comment 23: The commenter expressed concern regarding the PAM
details and protocol as there is some variation on the ``target''
frequencies detectable based on the type of equipment chosen. The
commenter stated that because of this ambiguity, ``it is not possible
to assess what the detection capabilities will be based on the
information.''
The commenter suggested that the use of a PAM system with
localization capabilities, if available, should provide sufficient
information regarding presence within the clearance/shutdown zone, but
also recommended the use of other technologies (e.g., semi-automated
infrared systems, drones) to aid in marine mammal observation.
Response: As described in the proposed rule (88 FR 28656, May 4,
2023), Dominion Energy is required to submit a detailed PAM Plan to
NMFS for approval that describes the PAM system(s) proposed for use.
While the systems are not yet finalized (hence the variability noted by
the commenter), NMFS has established criteria in the proposed and final
rules (e.g., the system must be capable of detecting baleen whales out
to 10 km from the pile being installed). NMFS will evaluate if the
bandwidth capabilities of the PAM system proposed meet these criteria.
Furthermore, our Adaptive Management provision within the final rule
allows us to adapt to new technology and information, which allows us,
in discussions with Dominion Energy, to modify the PAM monitoring, as
determined to be applicable.
NMFS disagrees that PAM alone should be used to monitor marine
mammals and is requiring both visual and acoustic monitoring for
specific specified activities. As described in the proposed rule, NMFS
requires that Dominion Energy employ both visual and PAM methods as
both approaches aid and complement each other (Van Parijs et al.,
2021). NMFS has also considered the use of semi-automated infrared
systems to support visual monitoring. While Dominion Energy is free to
propose using such systems, we are not requiring Dominion Energy to use
such systems at this time (see Comment 23). Similar to the PAM Plan,
NMFS requires Dominion Energy to submit, for approval, a Pile Driving
Monitoring Plan that meets the criteria required in this final rule
(e.g., visually observe for marine mammals to select distances).
Similar to PAM, the Adaptive Management provision in the final rule
allows for technological developments in monitoring or mitigation to be
implemented, in coordination with Dominion Energy.
Comment 24: Commenter suggested that NMFS require tracking and
monitoring for ``unusual patterns'' in protected species strandings
specifically related to HRG surveys and other construction activities.
Response: As NMFS has explained in the proposed rule and in this
final rule, strandings (e.g., mortality) are not an anticipated outcome
of the specified activities, including HRG surveys, and there is no
evidence to suggest otherwise. Further, marine mammal strandings are
fully tracked and monitored via NMFS' Marine Mammal Health and
Stranding Response Program (https://www.fisheries.noaa.gov/national/marine-life-distress/marine-mammal-health-and-stranding-response-program). As such, NMFS disagrees that Dominion Energy should be
required to track strandings.
Comment 25: A commenter requested NMFS define the frequency at
which we would review any new information for modifications to the LOA
via the Adaptive Management provision. A commenter recommended this
occur once a quarter, while allowing for a mechanism to undertake
review and adaptive management on an ad hoc basis if a serious issue is
identified (e.g., if unauthorized takes by Level A harassment are
reported or if serious injury or mortality occurs). They have also
recommended that NMFS incorporate review by independent subject-matter
experts to increase transparency, to provide an opportunity to share
information, and to allow for the input of additional scientific
expertise.
Response: We disagree that the frequency at which information is
reviewed should be defined in the Adaptive Management provision. The
purpose of the Adaptive Management is to allow for the incorporation of
new information as it becomes available, which could mean advancements
and new information becomes available quickly (i.e., days or weeks)
that would necessitate NMFS to consider adapting the issued LOA, or
over long periods of time as robust and conclusive information becomes
available (i.e., months or years). NMFS will be reviewing interim
reports as they are submitted; hence, the quarterly review, as
suggested by the commenter, is not necessary. NMFS retains the ability
to make decisions as information becomes available, and after
discussions with Dominion Energy about feasibility and practicability.
Regarding the suggestion for ad hoc changes in the event that
additional take by Level A harassment or take via serious injury/
mortality of a marine mammal occurs, we do not agree with the
suggestion by the commenter. NMFS has included two relevant provisions
in its final rule that state that ``[t]ake by mortality or serious
injury of any marine mammal species is not authorized'' and that ``it
is unlawful for any person to . . . take any marine mammal specified in
the LOA in any manner other than as specified in the LOA.'' We refer
the commenter to the ``Prohibitions'' portion of the regulatory text
(see Sec. 217.293). In the event Dominion Energy's project takes any
marine mammals in a manner that has not been authorized in the final
rule (see Sec. 217.293) these would be in violation of the MMPA and
regulations and NMFS would undertake appropriate actions, as determined
to be necessary (see 16 U.S.C. 1371(a)(5)(B)).
Lastly, regarding independent review, NMFS disagrees that such
reviews should be incorporated into the adaptive management process.
The MMPA and its implementing regulations require that incidental take
[[Page 4384]]
regulations be established based on the best available information and
the MMPA does not proscribe use of independent, subject matter expert
review of NMFS' determinations outside of the public comment process.
Comment 26: Commenters stated that the regulations must include a
requirement for all phases of the CVOW-C site characterization to
subscribe to the highest level of transparency, including frequent
reporting to federal agencies, requirements to report all visual and
acoustic detections of North Atlantic right whales and any dead,
injured, or entangled marine mammals to NMFS or the U.S. Coast Guard as
soon as possible and no later than the end of the PSO shift. A
commenter stated that to foster stakeholder relationships and allow
public engagement and oversight of the permitting, the ITA should
require all reports and data to be accessible on a publicly available
website. Another commenter also suggested that all quarterly reports of
PSO sightings must be made publicly available to continue to inform
marine mammal science and protection.
Response: NMFS notes the commenters' recommendations to report all
visual and acoustic detections of North Atlantic right whales and any
dead, injured, or entangled marine mammals to NMFS are consistent with
the proposed rule and this final rule (see Situational Reporting). We
refer the reader to Sec. 217.295(g)(13), (15)(i)-(v) of the
regulations for more information on situational reporting. NMFS
requires North Atlantic right whale sightings to be reported
immediately (if not feasible, as soon as possible and no longer than 24
hours after the sighting). Similarly, if a North Atlantic right whale
is acoustically detected at any time by a project-related PAM system,
Dominion Energy must report the detection as soon as possible to NMFS,
but no longer than 24 hours after the detection. Daily visual and
acoustic detections of North Atlantic right whales and other large
whale species along the Eastern Seaboard, as well as Slow Zone
locations, are publicly available on WhaleMap (https://whalemap.org/whalemap.html). Further, recent acoustic detections of North Atlantic
right whales and other large whale species are available to the public
on NOAA's Passive Acoustic Cetacean Map website (https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map).
Given the open access to the resources described above, NMFS does not
concur that public access to quarterly PSO reports is warranted and we
have not included this measure in the authorization. However, NMFS will
post all final reports to our website. We refer the commenters to Sec.
217.295(g) for more information on reporting requirements in the
regulations.
Effects Assessment
Comment 27: Commenters stated that NMFS must use the more recent
and best available science, including population estimates, in
evaluating impacts to North Atlantic right whales, given its critically
endangered status. This includes using updated population estimates,
recent habitat usage patterns for the project area, and a revised
discussion of the acute, chronic, and cumulative stress on North
Atlantic right whales in the region.
Response: NMFS has used the best available science in its analysis.
Since issuance of the proposed rule, NMFS has finalized the 2022 Stock
Assessment Report (SAR) indicating the North Atlantic right whale
population abundance is estimated as 338 individuals (confidence
interval: 325-350; 88 FR 4162, January 24, 2023). NMFS has used this
most recent best available information in the analysis of this final
rule. This new estimate, which is based off the analysis from Pace et
al. (2017) and subsequent refinements found in Pace (2021), is included
by reference in the draft and final 2022 Stock Assessment Reports
(https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment reports) and provides the most recent
and best available estimate, including improvements to NMFS' right
whale abundance model. More recently, in October 2023, NMFS released a
technical report identifying that the North Atlantic right whale
population size based on sighting history through 2022 was 356 whales,
with a 95 percent credible interval ranging from 346 to 363 (Linden,
2023). NMFS conservatively relies on the lower SAR abundance estimate
in this final rule. The finalization of the draft to final 2022 SAR did
not change the estimated take of North Atlantic right whales or
authorized take numbers, nor affect our ability to make the required
findings under the MMPA for Dominion Energy's construction activities.
NMFS cannot require applicants to utilize specific models for the
purposes of estimating take incidental to offshore wind construction
activities, but we do require use of the Roberts et al. (2016, 2023)
density data for all species, which represents the best available
science regarding marine mammal occurrence.
The proposed rule includes discussion of North Atlantic right whale
habitat use in the Project Area, which is located off of Virginia (NMFS
notes the comments provided incorrectly reference southern New
England). The proposed rule also includes a discussion of the effects
of stress on marine mammals from exposure to noise from the project;
the discussion is informed by the best available science. NMFS has
carefully reviewed the best available scientific information in
assessing impacts to marine mammals and recognizes that Dominion
Energy's activities have the potential to impact marine mammals through
behavioral effects, stress responses, and temporary auditory masking.
However, and specifically given the predicted exposures and number of
authorized takes, NMFS does not expect that the generally short-term,
intermittent, and transitory marine site characterization survey
activities planned by Dominion Energy will create conditions of acute
or chronic acoustic exposure leading to long-term physiological stress
responses in marine mammals. For pile driving activities, and also
specifically given the predicted exposures and amount of authorized
take, we do not expect that the impacts from these activities would
result in acute or chronic acoustic exposure that would lead to long-
term physiological stress responses as these activities will all be
localized and performed for limited durations. Additionally, for all
activities, NMFS has prescribed a robust suite of mitigation and
monitoring measures, including extended distance shutdowns for North
Atlantic right whales, seasonal restrictions, dual-PSO and PAM usage,
and NAS use that are expected to further reduce the duration and
intensity of acoustic exposure, while limiting the potential severity
of any possible behavioral disruption. The potential for chronic stress
was evaluated in making the determinations presented in NMFS'
negligible impact analyses. Furthermore, the area in which CVOW-C is
located is not a known feeding habitat for North Atlantic right whales,
although it is found within the migratory corridor BIA for North
Atlantic right whales. NMFS does not anticipate that North Atlantic
right whales would be displaced from the area where Dominion Energy's
activities would occur, and the commenter does not provide evidence
that this effect should be a reasonably anticipated outcome of the
specified activity.
With respect to cumulative impacts, please see response to Comment
28.
Comment 28: Several commenters raised concerns regarding the
cumulative impacts of the multiple offshore wind projects being
developed
[[Page 4385]]
throughout the range of marine mammals, including North Atlantic right
whales, and specifically recommended that NMFS carefully consider the
discrete effects of each activity and the cumulative effects of the
suite of approved, proposed, and potential activities on marine mammals
to ensure that the cumulative effects are not ``excessive'' before the
promulgation of the final rule.
Another member of the public expressed concerns over the number of
North Atlantic right whales that have ``already been killed'' when
combined with other offshore wind projects along the East Coast.
A member of the public has asked how NOAA is tracking the takes of
several species, including marine mammals, and where this list can be
found for the public. They have also asked how NOAA will determine an
``acceptable'' number of possible harassment/injuries/deaths for each
species, annually, could occur.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of the take resulting from other
activities in the negligible impact analysis. The preamble for NMFS'
implementing regulations (54 FR 40338, September 29, 1989) states, in
response to comments, that the impacts from other past and ongoing
anthropogenic activities are to be incorporated into the negligible
impact analysis via their impacts on the baseline. Consistent with that
direction, NMFS has factored into its negligible impact analysis the
impacts of other past and ongoing anthropogenic activities via their
impacts on the baseline (e.g., as reflected in the density/distribution
and status of the species, population size and growth rate, and other
relevant stressors).
The 1989 final rule for the MMPA implementing regulations also
addressed public comments regarding cumulative effects from future,
unrelated activities. There, NMFS stated that such effects are not
considered in making findings under section 101(a)(5) concerning
negligible impact. In this case, this ITR as well as other ITRs
currently in effect or proposed within the specified geographic region,
are appropriately considered an unrelated activity relative to the
others. The ITRs are unrelated in the sense that they are discrete
actions under section 101(a)(5)(A) issued to discrete applicants.
Section 101(a)(5)(A) of the MMPA requires NMFS to make a determination
that the take incidental to a ``specified activity'' will have a
negligible impact on the affected species or stocks of marine mammals.
NMFS' implementing regulations require applicants to include in their
request a detailed description of the specified activity or class of
activities that can be expected to result in incidental taking of
marine mammals (see 50 CFR 216.104(a)(1)). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(A) is generally defined and described by the
applicant. Here, Dominion Energy was the applicant for the ITR, and we
are responding to the specified activity as described in that
application and making the necessary findings on that basis.
Through the response to public comments in the 1989 implementing
regulations (54 FR 40338, September 29, 1989), NMFS also indicated (1)
that we would consider cumulative effects that are reasonably
foreseeable when preparing a National Environmental Policy Act (NEPA)
analysis and (2) that reasonably foreseeable cumulative effects would
also be considered under section 7 of the ESA for listed species, as
appropriate. Accordingly, NMFS has adopted an Environmental Impact
Statement (EIS) written by BOEM and reviewed by NMFS as part of its
inter-agency coordination. This EIS addresses cumulative impacts
related to Dominion Energy and substantially similar activities in
similar locations. Cumulative impacts regarding the promulgation of the
regulations and issuance of a LOA for construction activities, such as
those planned by Dominion Energy, have been adequately addressed under
NEPA in the adopted EIS that supports NMFS' determination that this
action has been appropriately analyzed under NEPA. Separately, the
cumulative effects of Dominion Energy on ESA-listed species, including
North Atlantic right whales, was analyzed under section 7 of the ESA
when NMFS engaged in formal inter-agency consultation with the ESA
Interagency Cooperation Division within the Office of Protected
Resources. The Biological Opinion for CVOW-C determined that NMFS'
promulgation of the rulemaking and issuance of a LOA for construction
activities associated with leasing, individually and cumulatively, are
likely to adversely affect, but not jeopardize, listed marine mammals.
Given that each project is considered its own discrete action, for
final marine mammal sightings recorded during each relevant project,
NMFS directs the public to the relevant Project web page, where annual
and final reports will be published describing the number of marine
mammals detected within specific harassment zones to date and across
the entire effective period of the Project.
Regarding the number of North Atlantic right whales for which take
has been authorized--NMFS reiterates that only Level B harassment
(behavioral) is anticipated and has been authorized for this species.
In looking at the maximum annual authorized number, Dominion Energy is
authorized to harass no more than 7 North Atlantic right whales
(assuming each instance of harassment occurs to a different
individual), representing 2.04 percent of the total population. Over
the course of 5 years, Dominion Energy would be authorized to harass up
to 17 individual North Atlantic right whales. We expect that any
instance of harassment would result in short-term impacts such as
avoidance of the project area but not abandonment of their migratory
habitat. Further, as described in the Negligible Impact Analysis and
Determination Section, the location of the least area (44 km offshore)
and seasonal restriction on foundation installation pile driving (the
most impactful activity) provides high conservation benefit and greatly
minimizes impacts on North Atlantic right whales (as evidenced by the
very small amount of take authorized despite the size of the project).
We reiterate that we do not anticipate, nor have we proposed or
authorized, mortality or serious injury for any marine mammal species
for the CVOW-C Project. This includes for North Atlantic right whales,
where no Level A harassment is anticipated or authorized due to the
mitigation measures required to be implemented by Dominion Energy.
Comment 29: Several commenters stated that more time and research
is needed to understand what the impacts of offshore wind may be on the
ocean and marine life.
Response: NMFS is required to authorize the requested incidental
take if it finds the total incidental take of small numbers of marine
mammals by U.S. citizens while engaging in a specified activity within
a specified geographic region during a five-year period (or less) will
have a negligible impact on such species or stock and where
appropriate, will not have an unmitigable adverse impact on the
availability of such species or stock for subsistence uses (16 U.S.C.
1371(a)(5)(A)). While the incidental take authorization must be based
on the best scientific information available, the MMPA does not allow
NMFS to delay issuance of the requested authorization on the
presumption that new information will become available in the future.
NMFS has made the required findings, based on the best scientific
[[Page 4386]]
information available and has included mitigation measures to effect
the least practicable adverse impacts on marine mammals.
Other
Comment 30: Two commenters have encouraged NMFS to issue LOAs on an
annual basis, rather than a single 5-year LOA, to allow for the
continuous incorporation of the best available scientific and
commercial information and to modify mitigation and monitoring measures
as necessary and in a timely manner, as well as to account for the
quickly evolving situation for the North Atlantic right whale.
Response: NMFS appreciates the commenter regarding our ITA process.
While NMFS acknowledges the commenter's rationale, we do not think it
is necessary to issue annual LOAs as: (1) the final rule includes
requirements for annual reports (in addition to weekly and monthly
requirements) to support annual evaluation of the activities and
monitoring results, and (2) the final rule includes an Adaptive
Management provision (see Sec. 217.297(c)) that allows NMFS to make
modifications to the mitigation, monitoring, and reporting measures
found in the LOA if new information supports the modifications and
doing so creates a reasonable likelihood of more effectively
accomplishing the goals of the measures.
Comment 31: Several commenters have expressed concern regarding the
recent whale deaths, which they claim are the result of offshore wind
activities and pre-construction survey activities. Another commenter
has suggested that NMFS should consider whether or not authorizing
Level A harassment or Level B harassment should be permissible given
the recent elevated public concern about potential impacts on marine
mammals from offshore wind activities.
Another commenter has stated that NMFS cannot determine the cause
of the recent whale deaths accurately without doing necropsies. Because
of this, the commenter states that NMFS cannot determine that recent
whale mortalities were not related to ``the whales' diminished ability
to determine its location due to acoustic damage to its echolocation
systems'' from offshore wind-related surveys (i.e., HRG and site
assessment surveys).
Lastly, another commenter stated that funding should be made
available to: (1) train PSOs; (2) stranding network organizations to
carry out necessary carcass recovery, examination, and diagnostic tests
to exclude acoustic injuries as reasons for strandings associated with
HRG surveys and/or construction activities; and (3) understand how
strandings of protected species in unusual patterns during or around
times where HRG surveys/construction activities occur so that costs can
be calculated for the relevant response (e.g., offshore whale carcass
towing, heavy equipment rentals, etc.) as well as to provide
accountability on the cause of the stranding.
Response: There is no evidence that noise resulting from offshore
wind development-related site characterization surveys, which are
conducted prior to construction, could potentially cause marine mammal
strandings, and there is no evidence linking recent large whale
mortalities and currently ongoing surveys. This point has been well
supported by other agencies, including BOEM and the Marine Mammal
Commission. The commenters offer no such evidence or other scientific
information to substantiate their claim. NMFS will continue to gather
data to help us determine the cause of death for these stranded whales.
The Marine Mammal Commission's recent statement supports NMFS'
analysis: ``There continues to be no evidence to link these large whale
strandings to offshore wind energy development, including no evidence
to link them to sound emitted during wind development-related site
characterization surveys, known as HRG surveys. Although HRG surveys
have been occurring off New England and the mid-Atlantic coast, HRG
devices have never been implicated or causatively associated with
baleen whale strandings.'' (Marine Mammal Commission Newsletter, Spring
2023). There is an ongoing Unusual Mortality Event (UME) for humpback
whales along the Atlantic coast from Maine to Florida, which includes
animals stranded since 2016. Partial or full necropsy examinations were
conducted on approximately half of the whales. Necropsies were not
conducted on other carcasses because they were too decomposed, not
brought to land, or stranded on protected lands (e.g., national and
state parks) with limited or no access. Of the whales examined (roughly
90), about 40 percent had evidence of human interaction, either ship
strike or entanglement. Vessel strikes and entanglement in fishing gear
are the greatest human threats to large whales. The remaining 50
necropsied whales either had an undetermined cause of death (due to a
limited examination or decomposition of the carcass) or had other
causes of death including parasite-caused organ damage and starvation.
The best available science indicates that only Level B harassment, or
disruption of behavioral patterns (e.g., avoidance), may occur as a
result of Dominion Energy's HRG surveys. NMFS emphasizes that there is
no credible scientific evidence available suggesting that mortality
and/or serious injury is a potential outcome of the planned survey
activity.
Additionally, NMFS has not authorized mortality or serious injury
in this final rule, and such taking is prohibited under Sec.
217.292(c) of the regulations and may result in modification,
suspension, or revocation of an LOA issued under these regulations.
NMFS notes there has never been a report of any serious injuries or
mortalities of a marine mammal associated with site characterization
surveys.
Furthermore, while NMFS agrees in the value of necropsies in
determining the cause of death of a stranded marine mammal, NMFS
stranding partners cannot perform necropsies on every dead animal as
some of the carcasses were either too decomposed, not brought to land,
or stranded on protected lands (e.g., national and state parks) with
limited or no access. Furthermore, and as described on our website,
large whale necropsies are very complicated, requiring many people and
typically heavy equipment (e.g., front loaders, etc.). Some whales are
found dead floating offshore and need to be towed to land for an
examination. There can be limitations for access and using heavy
equipment depending on the location where the whale stranded, including
protected lands (parks or concerns for other endangered species) and
accessibility (remote areas, tides that prevent access at times of
day). Also, necropsies are the most informative when the animal died
relatively recently. Some whales are not found until they are already
decomposed, which limits the amount of information that can be
obtained. Finally, funding is limited, and varies by location and
stranding network partner. For more information on offshore wind and
whales, we reference the commenter to our website: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales.
Additionally, a commenter raised a concern regarding potential
injury to ``echolocation systems''. All large whales that have stranded
since December 2011, with the exception of three sperm whales, have
been mysticete (baleen) whales (e.g., humpback whales, minke whales),
[[Page 4387]]
which do not have the ability to echolocate, a process by which toothed
whales (e.g., sperm whales) and dolphins emit high-frequency sounds
from their melon to obtain information about objects (typically prey)
in the water. Because baleen whales do not echolocate like toothed
whales and dolphins, there is no concern over impeding such ability.
Additionally, several species of delphinids and beaked whales have
stranded off Virginia since 2011; however, there is no evidence that
the acoustic sources used during HRG surveys contributed to these
events.
Regarding available funding, as suggested by another commenter,
Dominion Energy is responsible for acquiring NMFS-approved PSOs to
conduct marine mammal monitoring as prescribed in its rule. PSOs
working on the CVOW-C Project would not be involved in stranding
response beyond the required reporting measures (i.e., reporting
sightings of dead or injured marine mammals to the Stranding Response
Network. The Marine Mammal Health and Stranding Response Program
(MMHSRP) coordinates emergency responses to sick, injured, distressed,
or dead seals, sea lions, dolphins, porpoises, and whales. The MMHSRP
works with volunteer stranding and entanglement networks as well as
local, tribal, State, and Federal government agencies to coordinate and
conduct emergency responses to stranded or entangled marine mammals.
The Prescott Grant Program (https://www.fisheries.noaa.gov/grant/john-h-prescott-marine-mammal-rescue-assistance-grant-program) provides
funding for members of the national marine mammal stranding network
through a competitive grant process for (1) recovery and treatment
(i.e., rehabilitation) of stranded marine mammals; (2) data collection
from living or dead stranded marine mammals; and (3) facility upgrades,
operation costs, and staffing needs directly related to the recovery
and treatment of stranded marine mammals and the collection of data
from living or dead stranded marine mammals. From 2001 through 2023,
the Program awarded more than $75.4 million in funding through 893
competitive grants to Stranding Network members in 26 states, the
District of Columbia, two territories, and three tribes.
Comment 32: A commenter has stated that there is a data need for
information related to vessel density as it relates to changes in
vessel routing and traffic patterns. The commenter further stated that
the acquisition of this information would be beneficial when compared
to species distribution and habitat data. They also stated that this
data would provide context to any observed changes in rates of vessel
strikes, fishing gear, entanglements, and impacts on fisheries in terms
of gear loss and protected species interactions. They also suggested
that NMFS should require vessels to maintain a specific transit (east
and northeast of the Lease Area) to avoid nearshore areas.
Response: NMFS provided information related to the amount and types
of vessels to be used for CVOW-C and is requiring that that all of
Dominion Energy's vessels must be equipped with properly installed and
operational AIS devices and that Dominion Energy must report all
Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of
Protected Resources. This will allow for an evaluation of Dominion
Energy vessel traffic movement. NMFS is not requiring Dominion Energy
vessels to maintain a specific transit (East and Northeast of the Lease
Area) to avoid nearshore areas as Dominion Energy must use ports and
some aspects of work are located in nearshore waters requiring vessel
use in that area. Therefore, restricting Dominion Energy vessels waters
outside of the nearshore area (which is undefined by the commenter) is
not practicable.
Comment 33: A commenter insisted that NOAA Marine Mammal Health and
Stranding Program staff be guaranteed site access for response to and
rescue of stranded animals. The commenter also expressed a desire for
clarification on the photographs that could be taken during a sighting
of a stranding, and that specific parameters should be discussed for
these photos to allow for the appropriate response to be taken.
Response: NMFS cannot require access be given in all cases for
stranded animals, as sometimes the carcass never returns to shore or
strands on protected lands, such as national or state parks, with
limited access. Given these instances are situational and the
appropriate actions are determined by trained specialists, we defer to
their knowledge and expertise instead.
Regarding the comment on the photographs in the event of a
stranding or dead animal, NMFS does not see a reason to require very
specific parameters for these photographs, as all observations would be
taken in the offshore environment where conditions are typically
difficult. Additionally, we expect that few, if any, of the crew would
be trained in proper necropsy technique to know which photographs to
take or what to look for; instead, we ask the developer and their crew
(alongside the NMFS-approved PSOs and PAM operators) to collect any
evidence, information, and photographs they are capable of and have
access to, instead of providing additional restrictions that may
complicate the acquisition of important data. If a decision is made to
retrieve or tow a carcass to shore, we expect that trained stranding
specialists would be on hand to handle the specifics the commenter is
referring to. Because of this, we do not see the need to require the
suggestion by the commenter.
Comment 34: The commenter has stated that an oil spill contingency
plan should be created in the event of an oil spill from CVOW-C.
Response: NMFS agrees with the commenter that this is an important
consideration for the CVOW-C Project. We direct the commenter to BOEM,
as an oil spill response plan was included in Appendix Q of the CVOW-C
COP (https://www.boem.gov/renewable-energy/state-activities/cvow-construction-and-operations-plan) and within the final EIS developed
for the project (https://www.boem.gov/renewable-energy/state-activities/CVOW-C). Given NMFS is not authorizing incidental take from
oil spills, we do not analyze this directly in our MMPA ITA and this is
not discussed further.
Comment 35: A commenter recommended that Dominion Energy test and
deploy an all-weather, semi-, or fully-automated whale detection system
in the mouth of the Chesapeake Bay to reduce the risk of vessel strike.
[[Page 4388]]
Response: NMFS does not agree with the commenter that Dominion
Energy must deploy an all-weather, semi-, or fully-automated whale
detection system in the mouth of the Chesapeake Bay to reduce the risk
of vessel strike. The commenter did not provide a description of
additional benefits this type of system would achieve compared to the
dual-PAM and visual observation requirements NMFS proposed and requires
for vessel transit. Furthermore, the Woods Hole Oceanographic
Institution, in collaboration with the CMA CGM Group, have deployed an
acoustic monitoring buoy approximately 33 miles (53.12 km) off Norfolk,
Virginia (see the press release at: https://www.whoi.edu/press-room/news-release/whoi-and-cma-cgm-group-deploy-acoustic-monitoring-buoy-near-norfolk-virginia/). While not located in the mouth of the Bay,
this buoy provides near real-time detection for North Atlantic right
whale calls, that will be publicly displayed on a website called
Roborts4Whales (http://robots4whales.whoi.edu/) and shared with
mariners, including vessel captains. Based on the parameters suggested
by the commenter along with the publicly available data from existing
systems, we disagree with the commenter's recommendation.
Comment 36: The commenter has stated that nowhere in Dominion
Energy's PSMMP does it describe a need for baseline information on
species presence, distribution, and behavior. They further compound
that while short-term impacts from surveys and construction activities
are likely, long-term impacts from operation would be challenging to
assess without baseline information. Because of this, the commenter has
suggested that additional investments into gathering baseline
information should occur, which would allow for increased monitoring
during the construction and operation phases and that it should be
mandated that baseline data is collected for all projects before
approvals are given.
Response: NMFS notes to the commenter that this information would
not be found in Dominion Energy's PSMMP, but information regarding
species and baseline/known information is found in the ITA application
itself (see NMFS' web page at https://www.fisheries.noaa.gov/action/incidental-take-authorization-dominion-energy-virginia-construction-coastal-virginia). NMFS also included some information about species
that have established BIAs or known UMEs in the proposed rule (see 88
FR 28656, 28672), with updates included where applicable in the final
rule. We additionally point the commenter to our website (https://www.fisheries.noaa.gov/find-species) and to the SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) for more information.
The MMPA requires NMFS to evaluate the effects of the specified
activities based on the best scientific evidence available and to issue
the requested incidental take authorization if it makes the necessary
findings. The MMPA does not allow NMFS to delay issuance of the
requested authorization on the presumption that new information will
become available in the future. If new information becomes available in
the future, NMFS may modify the mitigation and monitoring measures in
an LOA issued under these regulations through the adaptive management
provisions. Furthermore, NMFS is required to withdraw or suspend an LOA
if it determines that the authorized incidental take may be having more
than a negligible impact on a species or stock. This determination is
made following notice and opportunity for public comment, unless and
emergency exists that poses a significant risk to the well-being of the
marine mammal species or stock.
NMFS has duly considered the best scientific evidence available in
its effects analysis. The Potential Effects of Underwater Sound on
Marine Mammals section of the proposed rule included a broad overview
of the potential impacts on marine mammals from anthropogenic noise and
provided summaries of several studies regarding the impacts of noise
from several different types of sources (e.g., airguns, Navy sonar,
vessels) on large whales, including North Atlantic right whales.
Offshore wind farm construction generates noise that is similar, or, in
the case of vessel noise, identical, to noise sources included in these
studies (e.g., impact pile driving and airguns both produce impulsive,
broadband sounds where the majority of energy is concentrated in low
frequency ranges), and the breadth of the data from these studies helps
us predict the impacts from wind activities. In addition, as described
in the proposed rule, it is general scientific consensus that
behavioral responses to sound are highly variable and context-specific
and are impacted by multiple factors including, but not limited to,
behavioral state, proximity to the source, and the nature and novelty
of the sound. Overall, the ecological assessments from offshore wind
farm development in Europe and peer-reviewed literature on the impacts
of noise on marine mammals both in the U.S. and worldwide provides the
information necessary to conduct an adequate analysis of the impacts of
offshore wind construction and operation on marine mammals in the
Atlantic Outer Continental Shelf. NMFS acknowledges that studies in
Europe typically focus on smaller porpoise and pinniped species, as
those are more prevalent in the North Sea and other areas where
offshore wind farms have been constructed. The commenter did not
provide additional scientific information for NMFS to consider.
Comment 37: A commenter asserts that the ITR and LOA process lacks
transparency and there are no resources easily accessible to the public
to understand what authorizations are required for each of these
activities (pre-construction surveys, construction, operations,
monitoring surveys, etc.). They requested NMFS improve the transparency
of this process and move away from a ``segmented phase-by-phase and
project-by-project approach'' for authorization. In addition, they
requested NMFS provide a comprehensive list/table of all takes by Level
A harassment and Level B harassment under currently approved and
requested authorizations per project.
Response: The MMPA, and its implementing regulations allow, upon
request, the incidental take of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographic region. NMFS authorizes the
requested incidental take of marine mammals if it finds that the taking
would be of small numbers, have no more than a ``negligible impact' on
the marine mammal species or stock, and not have an ``unmitigable
adverse impact'' on the availability of the species or stock for
subsistence use. NMFS refers the public to its website for more
information on the marine mammal incidental take authorization process
and timelines (https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act).
NMFS emphasizes that an IHA or rulemaking/LOA does not authorize
the activity itself but authorizes the take of marine mammals
incidental to the ``specified activity'' for which incidental take
coverage is being sought. In this case, NMFS is responding to Dominion
Energy's request to incidentally take marine mammals in the course of
constructing the CVOW-C Project. The authorization of the specified
activities is not within NMFS' jurisdiction; instead, this falls under
BOEM's
[[Page 4389]]
purview and NMFS refers the public to BOEM's website: https://www.boem.gov/renewable-energy. Additionally, for the commenter's
awareness, NMFS maintains a list of all proposed and issued
authorizations for renewable energy activities, including the
requested, proposed, and/or authorized take is available on the agency
website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
Lastly, regarding the commenter's concern about assessing all
offshore wind projects cumulatively, NMFS will not repeat the response
but instead refers the commenter to Comment 28, where we explain why
each project is considered discrete and as its own separate action.
Comment 38: A commenter stated that the presence of wind turbines
will impact NMFS' ability to conduct low-altitude (1,000 m) marine
mammal assessment aerial surveys, thus impacting NMFS' ability to
continue using current methods to fulfill its mission of precisely and
accurately assessing and managing protected species.
Response: NMFS and BOEM have collaborated to establish the Federal
Survey Mitigation Strategy for the Northeast U.S. Region (Hare et al.,
2022). This interagency effort is intended to guide the development and
implementation of a program to mitigate impacts of wind energy
development on fisheries surveys. For more information on this effort,
please see https://repository.library.noaa.gov/view/noaa/47925.
Comment 39: Expressing concerns regarding enforcement, commenters
expressed interest in understanding the outcome if the number of actual
takes exceeds the number authorized during construction of an offshore
wind project (i.e., if the project would be stopped mid-construction or
operation), and how offshore wind developers will be held accountable
for impacts to protected species such that impacts are not
inadvertently assigned to fishermen, should they occur.
Another member of the public recommended that if a marine mammal is
killed during the specified construction activities for CVOW-C, then
Dominion Energy should ``be fined a considerable sum.''
Response: NMFS carefully reviews models and take estimate
methodology to authorize a number of takes, by species and manner of
take, which is a likely outcome of the project. There are several
conservative assumptions built into the models to ensure the number of
takes authorized is sufficient based on the description of the project.
Dominion Energy would be required to submit frequent reports which
would identify the number of takes applied to the project.
In the unexpected event that Dominion Energy exceeds the number of
takes authorized for a given species, the MMPA and its implementing
regulations state that NMFS shall withdraw or suspend the LOA issued
under these regulations, after notice and opportunity for public
comment, if it finds the methods of taking or the mitigation,
monitoring, or reporting measures are not being substantially complied
with, or the taking allowed is having, or may have, more than a
negligible impact on the species or stock concerned (16 U.S.C.
1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with
the requirements of the LOA may result in civil monetary penalties and
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50
CFR 216.206(g)).
Moreover, as noted previously, fishing impacts (and NMFS'
assessment of them) generally center on entanglement in fishing gear,
which is a very acute, visible, and severe impact (mortality or serious
injury). In contrast, the impacts incidental to the specified
activities are primarily acoustic in nature and limited to Level A
harassment and Level B harassment, there is no anticipated or
authorized serious injury or mortality that the fishing industry could
theoretically be held accountable for. Any take resulting from the
specified activities would not be associated with take authorizations
related to commercial fish stocks. The impacts of commercial fisheries
on marine mammals and incidental take for said fishing activities are
managed separately from those of non-commercial fishing activities such
as offshore wind site characterization surveys, under MMPA section 118.
Comment 40: A commenter suggested that NMFS require Dominion Energy
to utilize direct-drive turbines instead of gearboxes.
Response: Dominion Energy has indicated they intend to use direct
drive turbines for the CVOW-C Project, based on Section 3.3.1.1 of
their COP, specifically the Siemens Gamesa SG 14-222 DD WTG model (see
https://www.boem.gov/renewable-energy/state-activities/cvow-construction-and-operations-plan). Furthermore, as already described
above in Comment 37, the applicant is the one to determine the project
(i.e., the Proposed Action), not NMFS.
Comment 41: A commenter suggested various mitigation and monitoring
measures in the event that gravity-based and/or suction-bucket
foundations are used instead of impact/vibratory-driven foundations
(i.e., clearance and shutdown zones at distances that they assert would
eliminate all take by Level A harassment of North Atlantic right whales
and other large whales; visual and acoustic monitoring for large
whales; shutdown for large whale visual observations or acoustic
detections; restart of construction after shutdown; use of near-real
time PAM for vessel(s); alternative monitoring technologies for
monitoring (infrared drones, hydrophones); mandatory vessel speed
restrictions; and required reporting).
Response: NMFS appreciates the suggestions by the commenter and
refers to Comment 16 above where we discuss gravity-based and other
foundation types for the CVOW-C Project. However, Dominion Energy did
not include the potential to use gravity-based and/or suction-bucket
foundations in their MMPA application; therefore, NMFS has not
analyzed, authorized incidental take, or promulgated mitigation,
monitoring, or reporting measures for gravity-based or suction-bucket
foundations.
Comment 42: Commenters expressed concern that whales would be
displaced from the Project Area into shipping lanes or areas of higher
vessel traffic, which could result in higher risks of vessel strike and
that NMFS has not accounted for this impact in its analysis.
Response: NMFS acknowledges that whales may temporarily avoid the
area where the specified activities occur. However, NMFS does not
anticipate that whales will be displaced in a manner that would result
in a higher risk of vessel strike, and the commenter does not provide
evidence that either of these effects should be a reasonably
anticipated outcome of the specified activity. Vessel traffic is
concentrated closer to shore as vessels leave and return to ports such
as the Port of Virginia, most notably within designated shipping lanes
and as they enter the Chesapeake Bay. The density of vessel traffic
dissipates as one moves offshore.
NMFS disagrees with the commenter that the risk of vessel strike
was not considered in the analysis. NMFS takes the risk of vessel
strike seriously and while we acknowledge that vessel strikes can
result in injury or mortality, we have analyzed and determined that the
potential for vessel strike is so low as to be discountable. Dominion
Energy must abide by a suite of vessel strike avoidance measures that
include, for
[[Page 4390]]
example, seasonal and dynamic vessel speed restrictions to 10 kn (18.5
km/hour) or less; required use of dedicated observers on all transiting
vessels; maintaining awareness of North Atlantic right whale presence
through monitoring of North Atlantic right whale sighting systems.
Further, any observations of a North Atlantic right whale by project-
related personnel would be reported to sighting networks, alerting
other mariners to North Atlantic right whale presence. Both Dominion
Energy and other mariners are required to abide by all existing
approach and speed regulations designed to minimize the risk of vessel
strike. Notably, Dominion Energy is restricted from installing
foundations during the time of year when North Atlantic right whales
are expected to be present in greatest abundance (November 1st through
April 30th). Therefore, the potential for this activity to result in
harassment is very small, as indicated by the low amount of take
authorized. Further, NMFS has determined that any harassment from any
specified activity is anticipated to, at most, result in some avoidance
that would be limited spatially and temporally. It is unlikely that any
impacts from the project would increase the risk of vessel strike from
non-Dominion Energy vessels. The commenter has presented no information
supporting the speculation that whales would be displaced from the
Project Area into shipping lanes or areas of higher vessel traffic in a
manner that would be expected to result in higher risks of vessel
strike.
Comment 43: Commenters stated that it is ``against the law to
knowingly interfere with an endangered species and depletion of an
entire population,'' and they cited the Endangered Species Act (ESA) in
support of this claim. They further state that the CVOW-C Project would
``disrupt'' the migration path of the North Atlantic right whale and,
therefore, result in the extinction of this species.
Response: Under Section 7(a)(2) of the ESA, Federal agencies are
required to consult with NMFS or the U.S. Fish and Wildlife Service, as
appropriate, to ensure that the actions they fund, permit, authorize,
or otherwise carry out will not jeopardize the continued existence of
any listed species or result in the destruction or adverse modification
of designated critical habitats. For the CVOW-C Project, our office
(i.e., the Office of Protected Resources) requested initiation of a
Section 7 consultation for ESA-listed species with the NMFS Greater
Atlantic Regional Fisheries Office on April 4, 2023. A Biological
Opinion was completed on September 19, 2023 (found here: https://repository.library.noaa.gov/view/noaa/55495), which concluded that the
promulgation of the rule and issuance of LOAs thereunder is not likely
to jeopardize the continued existence of threatened and endangered
species under NMFS' jurisdiction and is not likely to result in the
destruction or adverse modification of designated or proposed critical
habitat. Because of this, NMFS' action of finalizing the rulemaking and
issuing LOAs for the CVOW-C Project is consistent with the ESA.
Furthermore, NMFS disagrees that the CVOW-C Project would
``completely disrupt and destroy the North Atlantic Right Whale
population and migration path,'' as suggested by the commenters. NMFS
is aware of no evidence to support this claim, nor did the commenters
provide any. In total, the CVOW-C Project Area consists of
approximately 456.5 km\2\ of the entire 269,448 km\2\ migratory BIA. No
take by injury, serious injury, or mortality is authorized for the
species. NMFS emphasizes that the authorized incidental take of North
Atlantic right whales is limited to Level B harassment (i.e.,
behavioral disturbance). As described in the proposed rule and this
final rule (see Negligible Impact Analysis and Determination section),
NMFS has determined that the Level B harassment of North Atlantic right
will not result in impacts to the population through effects on annual
rates or recruitment or survival.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
(88 FR 28656, May 4, 2023), NMFS has made changes, where appropriate,
that are reflected in the final regulatory text and preamble text of
this final rule. These changes are briefly identified below, with more
information included in the indicated sections of the preamble to this
final rule.
Changes to Information Provided in the Preamble
The information found in the preamble of the proposed rule was
based on the best available information at the time of publication.
Since publication of the proposed rule, new information has become
available and has been incorporated into this final rule, as discussed
below.
The following changes are reflected in the Description of Marine
Mammals in the Specified Geographic Region section of the preamble to
this final rule:
Given the release of NMFS' final 2022 SARs (Hayes et al., 2023), we
have updated the North Atlantic right whale total mortality/serious
injury (M/SI) amount from 8.1 to 31.2. This increase is due to the
inclusion of undetected annual M/SI in the total annual serious injury/
mortality. We have also updated the North Atlantic right whale
abundance estimate based on Linden (2023).
Given the availability of new information, we have made updates to
the UME summaries for multiple species (i.e., North Atlantic right
whale, humpback whale, minke whale).
The following changes are reflected in the Mitigation section of
the preamble to this final rule:
We have added a general requirement that noise levels must not
exceed those modeled, assuming 10 dB attenuation.
Because Dominion Energy has informed NMFS that the soft-start
procedure in the proposed rule raises engineering feasibility and
practicability concerns, we have removed the specific soft-start
procedure identified in the proposed rule (i.e., ``four to six strikes
per minute at 10 to 20 percent of the maximum hammer energy, for a
minimum of 20 minutes''). This final rule still requires a soft-start
for each WTG and OSS impact pile driving event.
In Tables 25 and 26, we have added the requirement for clearance
and shutdown of pile driving based on PAM detections at 10 km (6.2 mi)
that applies to all species except North Atlantic right whales, which
would still require shutdown at any distance upon a detection.
We have added a requirement in the Reporting section for Dominion
Energy to report operational sound levels from all installed piles, in
alignment with a requirement from the Biological Opinion.
Changes in the Regulatory Text
We have made the following changes to the regulatory text, which
are reflected, as appropriate, throughout this final rule and
described, as appropriate, in the preamble.
For clarity and consistency, we revised two paragraphs in Sec.
217.290 Specified activity and specified geographical region of the
regulatory text to fully describe the specified activity and specified
geographical region.
The following changes are reflected in Sec. 217.294 Mitigation
Requirements and the associated Mitigation section of the preamble to
this final rule:
For clarity and consistency, we have reorganized and revised, as
applicable,
[[Page 4391]]
the paragraphs in Sec. 217.294 Mitigation requirements.
We have clarified the requirement that Dominion Energy deploy at
least two functional noise abatement systems requires at least a double
bubble curtain.
As described above, we updated the WTG and OSS impact pile driving
soft-start procedural requirements.
The following changes are reflected in Sec. 217.295 Monitoring and
Reporting Requirements and the associated Monitoring and Reporting
section of the preamble of this final rule:
For clarity and consistency, we have reorganized and revised, as
applicable, the paragraphs in Sec. 217.295 Monitoring and reporting
requirements.
We have updated the process for obtaining NMFS approval for PSO and
PAM operators to be similar to requirements typically included for
seismic (e.g., airgun) surveys and have clarified education, training,
and experience necessary to obtain NMFS' approval.
We have added a requirement that the Lead PSO must have a minimum
of 90 days of at-sea experience and must have obtained this experience
within the last 18 months.
We have added a requirement to have at least three PSOs on pile
driving vessels rather than two PSOs, as was originally described in
the proposed rule.
We have added requirements that SFV must be conducted on every pile
until measured noise levels are at or below the modeled noise levels,
assuming 10 dB, for at least three consecutive monopiles.
We have removed the requirement to include HRG survey activities in
the weekly report. This requirement is inconsistent with previously
promulgated and issued incidental take authorizations for HRG survey
activities and a rationale was not included in the preamble of proposed
rule to support this change. Consistent with previous authorizations,
HRG survey activities are to be included in the annual report (see
Sec. 217.295(g)(7)).
We have removed the requirements for reviewing data on an annual
and biennial basis for adaptive management and instead will make
adaptive management decisions as new information warrants it.
Description of Marine Mammals in the Specified Geographic Region
As noted in the Changes From the Proposed to Final Rule section,
updates have been made to the UME summaries of multiple species. These
changes are described in detail in the sections below. We have also
included new data on North Atlantic right whale abundance information
(Linden, 2023) and updated the annual M/SI value presented in Table 2,
based upon updates found in the final SARs (see Hayes et al., 2023).
Otherwise, this section has not changed since the publication of the
proposed rule in the Federal Register (88 FR 28656, May 4, 2023).
Several marine mammal species occur within the specified geographic
region. Sections 3 and 4 of Dominion Energy's ITA application summarize
available information regarding status and trends, distribution and
habitat preferences, and behavior and life history of the potentially
affected species (Dominion Energy, 2023). NMFS fully considered all of
this information, and we refer the reader to these descriptions in the
application, adopted here by reference, instead of reprinting the
information. Additional information regarding population trends and
threats may be found in NMFS' 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 2 lists all species or stocks for which take is authorized
under this final rule and summarizes information related to the species
or stock, including regulatory status under the MMPA, ESA, and PBR,
where known. PBR is defined 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; (16 U.S.C.
1362(20))). While no mortality is anticipated or authorized here, PBR
and annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock,
or the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Atlantic and Gulf of Mexico SARs. Values presented in Table
2 are the most recent available data at the time of publication which
can be found in NMFS' 2022 final SARs (Hayes et al., 2023), available
online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.
Table 2--Marine Mammal Species \e\ That May Occur in the Project Area and Be Taken, by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\a\ abundance survey) \b\ SI \c\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western Atlantic....... E, D, Y 338 (0, 332, 2020); 0.7 \i\ 31.2
356 (346-363, 2022)
\j\.
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24; 5,573; 11 1.8
2016).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, Y 1,396 (0; 1,380; 2016) 22 12.15
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Coastal. 2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Family Kogiidae:
Pygmy sperm whale g h........... Kogia breviceps........ Western North Atlantic. -, -, N 7,750 (0.38; 5,689; 46 0
2016).
[[Page 4392]]
Family Delphinidae:
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 39,921 (0.27; 32,032; 320 0
2016).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71; 54,433; 544 27
2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic-- -, -, N 62,851 (0.23; 51,914; 519 28
Offshore. 2016).
Southern Migratory -, -, Y 3,751 (0.6; 185; See 23 0-18.3
Coastal. SAR).
Clymene dolphin \g\............. Stenella clymene....... Western North Atlantic. -, -, N 4,237 (1.03; 2,071; 21 0
2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 172,974 (0.21; 1,452 390
145,216; 2016).
False killer whale \g\.......... Pseudorca crassidens... Western North Atlantic. -, -, N 1,791 (0.56; 1,154; 12 0
2016).
Melon-headed whale \g\.......... Peponocephala electra.. Western North Atlantic. -, -, N UNK (UNK; UNK; 2016).. UNK 0
Long-finned pilot whale \f\..... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3; 30,627; 306 29
2016).
Short-finned pilot whale \f\.... Globicephala Western North Atlantic. -, -, Y 28,924 (0.24, 23,637, 236 136
macrorhynchus. See SAR).
Pantropical spotted dolphin..... Stenella attenuata..... Western North Atlantic. -, D, N 6,593 (0.52, 4,367, 44 0
See SAR).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 35,215 (0.19; 30,051; 301 34
2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31; 74,034; 851 16
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \d\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,300 (0.22; 22,785; 1,389 4,453
2016).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08; 57,637; 1,729 339
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ 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.
\b\ NMFS' marine mammal stock assessment reports can be found online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\c\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike).
\d\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 451,431. The annual M/SI value given is for the total stock.
\e\ 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 (2023)).
\f\ Although both species are described here, the authorized take for both short-finned and long-finned pilot whales has been summarized into a single
group (pilot whales spp.).
\g\ While these species were not originally included in Dominion Energy's request, given recorded sightings/detections of these species during previous
Dominion Energy IHAs in the same general area, NMFS included Level B harassment of these species both in the proposed rule and this final rulemaking.
\h\ Estimate is for Kogia spp. only.
\i\ In the proposed rule (88 FR 28656, May 4, 2023), the best available science (i.e., the NMFS draft 2022 SARs) included a North Atlantic right whale M/
SI value of 8.1 which accounted for detected mortality/serious injury. In the final 2022 SAR, released in June 2023, the total annual average observed
North Atlantic right whale mortality was updated from 8.1 to 31.2. Numbers presented in this table (31.2 total mortality (22 of which are attributed
to fishery-induced mortality) are 2015-2019 estimated annual means, accounting for both detected and undetected mortality and serious injury (Hayes et
al., 2023).
\j\ The current SAR includes an estimated population (Nbest 338) based on sighting history through November 2020 (Hayes et al., 2023). In October 2023,
NMFS released a technical report identifying that, based on sighting data through December 2022 (versus the SAR which includes sighting data through
November 2020), the North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95 percent credible
interval ranging from 346 to 363 (Linden, 2023).
A detailed description of the species likely to be affected by the
Project, including brief introductions to the species and relevant
stocks as well as available information regarding population trends and
threats, and information regarding local occurrence, were provided in
the Federal Register notice for the proposed rule (88 FR 28656, May 4,
2023). Since that time, a new SAR (Hayes et al., 2023) has become
available for the North Atlantic right whale. Annual M/SI increased
from 8.1 to 31.2. This large increase in annual serious injury/
mortality is a result of NMFS including undetected annual M/SI in the
total annual M/SI. Additionally, NMFS released a technical report,
which includes a recently released population estimate of 356 (Linden,
2023). We are not aware of any additional changes in the status of the
species and stocks listed in Table 2; therefore, detailed descriptions
are not provided here. Please refer to the proposed rule Federal
Register notice for these descriptions (88 FR 28656, May 4, 2023).
Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.
North Atlantic Right Whale
In June 2023, NMFS released its final 2022 SARs, which updated the
annual M/SI value from 8.1 to 31.2 due to the addition of estimated
undetected mortality and serious injury, as described above, which had
not been previously included in the SAR. The
[[Page 4393]]
population estimate is slightly lower than the North Atlantic Right
Whale Consortium's 2022 Report Card, which identifies the population
estimate as 340 individuals (Pettis et al., 2023). Elevated North
Atlantic right whale mortalities have occurred since June 7, 2017,
along the U.S. and Canadian coast, with the leading category for the
cause of death for this UME determined to be ``human interaction,''
specifically from entanglements or vessel strikes. Since publication of
the proposed rule, the number of animals considered part of the UME has
increased. As of December 19, 2023, there have been 36 confirmed
mortalities (dead, stranded, or floaters), 0 pending mortalities, and
34 seriously injured free-swimming whales for a total of 70 whales. As
of October 14, 2022, the UME also considers animals (n=51) with
sublethal injury or illness (called ``morbidity'') bringing the total
number of whales in the UME to 121. More information about the North
Atlantic right whale UME is available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event.
Humpback Whale
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. This event was
declared a UME in April 2017. Partial or full necropsy examinations
have been conducted on approximately half of the 212 known cases (as of
December 19, 2023). Of the whales examined (approximately 90), about 40
percent had evidence of human interaction, either vessel strike or
entanglement (refer to https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast). 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.
Since December 1, 2022, the number of humpback strandings along the
mid-Atlantic coast, including Virginia, has been elevated. In some
cases, the cause of death is not yet known. In others, vessel strike
has been deemed the cause of death. As the humpback whale population
has grown, they are seen more often in the Mid-Atlantic. These whales
may be following their prey (small fish) which are reportedly close to
shore in the winter. These prey also attract fish that are of interest
to recreational and commercial fishermen. This increases the number of
boats and fishing gear in these areas. More whales in the vicinity of
areas traveled by boats of all sizes increases the risk of vessel
strikes. Vessel strikes and entanglement in fishing gear are the
greatest human threats to large whales.
Minke Whale
Since January 2017, a UME has been declared based on elevated minke
whale mortalities detected along the Atlantic coast from Maine through
South Carolina. As of December 19, 2023, a total of 160 minke whales
have stranded during this UME. Full or partial necropsy examinations
were conducted on more than 60 percent of the whales. Preliminary
findings have shown evidence of human interactions or infectious
disease in several of the whales, but these findings are not consistent
across all of the whales examined, so more research is needed. This UME
has been declared non-active and is pending closure. More information
is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast.
Phocid Seals
Since June 2022, elevated numbers of harbor seal and gray seal
mortalities have occurred across the southern and central coast of
Maine. This event was declared a UME in July 2022. Preliminary testing
of samples has found some harbor and gray seals are positive for highly
pathogenic avian influenza. While the UME is not occurring in the
Project Area, the populations affected by the UME are the same as those
potentially affected by the Project. However, due to the two states
being approximately 677.6 km (421 mi) apart, by water (from the most
northern point of Virginia to the most southern point of Maine), NMFS
does not expect that this UME would be further conflated by the
activities related to the Project. Information on this UME is available
online at: https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast.
The above event was preceded by a different UME, occurring from
2018-2020 (closure of the 2018-2020 UME is pending). Beginning in July
2018, elevated numbers of harbor seal and gray seal mortalities
occurred across Maine, New Hampshire, and Massachusetts. Additionally,
stranded seals have shown clinical signs as far south as Virginia,
although not in elevated numbers, therefore the UME investigation
encompassed all seal strandings from Maine to Virginia. A total of
3,152 reported strandings (of all species) occurred from July 1, 2018,
through March 13, 2020. Full or partial necropsy examinations have been
conducted on some of the seals and samples have been collected for
testing. Based on tests conducted thus far, the main pathogen found in
the seals is phocine distemper virus. NMFS is performing additional
testing to identify any other factors that may be involved in this UME.
Information on this UME is available online at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 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
[[Page 4394]]
associated hearing ranges are provided in Table 3.
Table 3--Marine Mammal Hearing Groups
(NMFS, 2018)
------------------------------------------------------------------------
Hearing group Generalized [hearing range] *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013). For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
NMFS notes that in 2019a, Southall et al. recommended new names for
hearing groups that are widely recognized. However, this new hearing
group classification does not change the weighting functions or
acoustic thresholds (i.e., the weighting functions and thresholds in
Southall et al. (2019a) are identical to NMFS 2018 Revised Technical
Guidance). When NMFS updates our Technical Guidance, we will be
adopting the updated Southall et al. (2019a) hearing group
classification.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the Project's specified
activities have the potential to result in the harassment of marine
mammals in the specified geographic region. The proposed rule (88 FR
28656, May 4, 2023) included a discussion of the effects of
anthropogenic noise on marine mammals and the potential effects of
underwater noise from Dominion Energy's project activities on marine
mammals and their habitat. That information and analysis is adopted by
reference into this final rule and is not repeated here; please refer
to the notice of the proposed rule (88 FR 28656, May 4, 2023).
Since publication of the proposed rule, new scientific information
has become available that provides additional insight into the sound
fields produced by turbine operation. Recently, Holme et al. (2023)
stated that Tougaard et al. (2020) and St[ouml]ber and Thomsen (2021)
extrapolated levels for larger turbines and should be interpreted with
caution since both studies relied on data from smaller turbines (0.45
to 6.15 MW) collected over a variety of environmental conditions. They
demonstrated that the model presented in Tougaard et al. (2020) tends
to overestimate levels (up to approximately 8 dB) measured to those in
the field, especially with measurements closer to the turbine for
larger turbines. Holme et al. (2023) measured operational noise from
larger turbines (6.3 and 8.3 MW) associated with three wind farms in
Europe and found no relationship between turbine activity (power
production, which is proportional to the blade's revolutions per
minute) and noise level, although it was noted that this missing
relationship may have been masked by the area's relatively high ambient
noise sound levels. Sound levels (root-mean-square (RMS)) of a 6.3 MW
direct-drive turbine were measured to be 117.3 dB at a distance of 70
meters. However, measurements from 8.3 MW turbines were inconclusive as
turbine noise was deemed to have been largely masked by ambient noise.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through this rulemaking, which will inform both NMFS'
consideration of ``small numbers'' and the negligible impact
determination.
Authorized takes would be primarily by Level B harassment, as use
of the acoustic sources (i.e., impact and vibratory pile driving and
site characterization surveys) have the potential to result in
disruption of marine mammal behavioral patterns due to exposure to
elevated noise levels. Impacts such as masking and TTS can contribute
to behavioral disturbances. There is also some potential for auditory
injury (Level A harassment) to occur in select marine mammal species
incidental to the specified activities (i.e., WTG and OSS foundation
pile driving). For this action, this potential for PTS is limited to
mysticetes, high-frequency cetaceans, and phocids due to their hearing
sensitivities and the nature of the activities. The required mitigation
and monitoring measures are expected to minimize the severity and
magnitude of the taking to the extent practicable. As described
previously, no serious injury or mortality is anticipated or authorized
for this project. Below we describe how the take numbers were
estimated.
Generally speaking, we estimate take by considering: (1) acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and (4) and
the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the authorized take
estimates.
Marine Mammal 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).
[[Page 4395]]
A summary of all NMFS' thresholds can be found at (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance).
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., other noises in the area, ambient noise), and the
receiving animals (e.g., hearing, motivation, experience, demography,
behavior at time of exposure, life stage, depth) and can be difficult
to predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above the
received root-mean-square sound pressure levels (RMS SPL) of 120 dB
(referenced to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g.,
vibratory pile-driving, drilling) and above the received 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 (conspecific communication, predators, prey) may
result in changes in behavior patterns that would not otherwise occur.
Dominion Energy's construction activities include the use of
continuous (i.e., vibratory pile driving) and intermittent (i.e.,
impact pile driving, HRG acoustic sources) sources, and therefore, the
120 and 160 dB re 1 [mu]Pa (rms) thresholds are applicable.
Level A Harassment
NMFS' Technical Guidance for Assessing the Effects of Anthropogenic
Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018)
identifies dual criteria to assess auditory injury (Level A harassment)
to five different marine mammal groups (based on hearing sensitivity)
as a result of exposure to noise from two different types of sources
(impulsive or non-impulsive). As dual metrics, NMFS considers onset of
PTS (Level A harassment) to have occurred when either one of the two
metrics is exceeded (i.e., metric resulting in the largest isopleth).
Dominion Energy's planned activities include the use of non-impulsive
sources.
These thresholds are provided in Table 4 below. 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.
Table 4--Onset of Permanent Threshold Shift (PTS)
[NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
PTS onset thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lp,0-pk,flat: 219 Cell 2: LE,p, LF,24h: 199 dB.
dB; LE,p, LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lp,0-pk,flat: 230 Cell 4: LE,p, MF,24h: 198 dB.
dB; LE,p, MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lp,0-pk,flat: 202 Cell 4: LE,p, HF,24h: 198 dB.
dB; LE,p,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lp,0-pk.flat: 218 Cell 8: LE,p,PW,24h: 201 dB.
dB; LE,p,PW,24h: 185 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
exposure level (LE,p) has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to be
more reflective of International Organization for Standardization (ISO) standards (ISO, 2017). The subscript
``flat'' is included to indicate peak sound pressure are flat weighted or unweighted within the generalized
hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative sound
exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF
cetaceans, and PW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted cumulative
sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and
durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under
which these thresholds will be exceeded.
Dominion Energy would not conduct high-order detonation of
unexploded ordnances or munitions and explosives of concern (UXOs/MECs)
as part of the Project. As Dominion Energy has not requested, and NMFS
has not authorized, any take related to the detonation of UXOs/MECs,
the acoustic (i.e., PTS onset and TTS onset for underwater explosives)
and the pressure thresholds (i.e., lung and gastrointestinal tract
injuries) are not discussed or included in this action.
Acoustic and Exposure Modeling Methods
As described above, underwater noise associated with the
construction of offshore components of CVOW-C would predominantly
result from installation of the WTG monopile and the OSS jacket
foundations using a dual-vibratory and impact pile driving approach
while noise from cable landfall construction activities (i.e.,
temporary cofferdam and temporary goal post installation and removal)
will primarily result from either impact pile driving (for the
temporary goal posts) or vibratory pile driving (for the temporary
cofferdams). Acoustic modeling was performed for some activities for
which there was a pile driving component, including WTG and OSS
foundation installation and temporary cofferdam installation and
removal. The basic modeling approach is to characterize the sounds
produced by the source, determine how the sounds propagate within the
surrounding water column,
[[Page 4396]]
and then estimate species-specific exposure probability by considering
the range- and depth-dependent sound fields in relation to animal
movement in simulated representative construction scenarios.
Animat exposure modeling was only performed for foundation
installation. For other activities planned by Dominion Energy (i.e.,
temporary cofferdam installation and removal, temporary goal post
installation and removal, HRG surveys), take was estimated using a
``static'' approach for representing animal distribution and density,
as detailed later in the Static Take Estimate Method section.
Dominion Energy employed Tetra Tech, Inc. (Tetra Tech) to conduct
the acoustic modeling and Marine Acoustics, Inc. (MAI) for the animal
movement modeling to better understand both the sound fields produced
during foundation and cofferdam installation and to estimate any
potential exposures (see the Acoustic Modeling report in Appendix A of
Dominion Energy's ITA application). Dominion Energy also collaborated
with the Institute for Technical and Applied Physics (iTAP) for
information related to vibratory pile driving of foundation piles.
Tetra Tech also performed the acoustic analysis related to temporary
cofferdam installation and removal via vibratory pile driving. Acoustic
source modeling of vibratory pile driving related to cofferdam
installation and removal was incorporated into the static method to
yield estimated and requested take values. Tetra Tech applied the
source modeling methods from the CVOW Pilot Project with modifications
based on newly available data and the additional availability of
research studies. The approach is summarized here; more detail can be
found in the Acoustic Modeling report in Appendix A of Dominion
Energy's ITA application.
Acoustic Source Modeling
Based on a literature review of pile driving measurement reports,
theoretical modeling reports, and peer-reviewed research papers (see
the references in Attachment Z-2 in Appendix A of Dominion Energy's COP
(2023)), Tetra Tech developed an empirical modeling approach for
calculating the acoustic source of impact pile driving foundation
installation activities for the CVOW-C Project. A collaboration between
Dominion Energy and iTAP assessed the estimated acoustic source levels
produced from vibratory pile driving of foundation piles based on
empirical data collected and assessed from the CVOW Pilot Project and
other European offshore wind farms. These two modeling approaches are
discussed separately here.
Foundation Impact Pile Driving Source Level Empirical Model
An empirical model developed by Tetra Tech was used to determine
the peak sound level (Lpk) and sound exposure level (SEL) at
the source for the foundation pile driving scenarios. To feed into the
model, Tetra Tech obtained sound levels from relevant scenarios for a
variety of pile diameter sizes, driven with hammers of varying
energies, and collected or analyzed at different ranges from the
impacted pile. This empirical model was implemented by using the
following steps:
1. Normalizing the received sound pressure levels to a common
received range, assuming a transmission loss of 15LogR (i.e., practical
spreading), where R is the distance ratio;
2. Scaling the source levels to an energy of 4,000 kJ, assuming a
relationship between the hammer energy and radiated sound as 10 times
the base 10 logarithm of the ratio of hammer energy to the referenced
hammer energy (as in the scaling laws outlined in von Pein et al.,
2022); and
3. Calculating a linear regression of the adjusted source levels
(which has been normalized for range and hammer energy) as a function
of the base 10 logarithm of the pile diameters, which is then used to
predict the broadband SEL and peak sound levels for the planned energy
and diameter.
The above empirical model was used in determining Lpk
and SEL, however, a similar technique for sound pressure level (SPL)
was not possible due to a lack of data. For this reason, SPL was
derived from SEL using the average pulse duration of measurements used
in the empirical model. One-third octave band levels from 12.5 Hz to 20
kHz were derived from surrogate spectra taken from published data for
piles of similar diameters and adjusted based on the empirical model
above. For the Lpk underwater acoustic modeling scenario
(evaluating a single pile-driving strike), the pile driving sound
source was represented as a point source at a mid-water depth. To
estimate SEL, the monopile and pin pile driving scenarios were modeled
using a vertical array of point sources spaced at 1 m intervals and
assuming a specific number of strikes for each type of pile (see
Formula 2 in Attachment Z-1 of Appendix A in the application). The SPL
scenario was set up in an identical manner to the SEL scenario, with
the primary difference being that the model did not incorporate the
total number of pile driving strikes needed for each of the monopile
and pin pile scenarios within a 24-hour period. Instead, only a single
pile driving strike was incorporated.
Information on the impact pile driving scenarios and source levels
for WTGs, OSSs, and goal posts can be found in Table Z-7 of Appendix A
of Dominion Energy's ITA application. These impact modeling scenarios
assumed no sound attenuation. For all WTG monopile modeling (i.e.,
Scenarios 1-3 including standard driving and hard-to-drive installation
approaches), a single strike SEL source level of 226 was assumed. For
OSS modeling using pin piles, a single strike SEL source level of 214
dB was assumed. For goal post installation, a single strike SEL source
level of 183 dB was assumed (California Department of Transportation
(CALTRANS), 2015).
Foundation Vibratory Pile Driving Source Level Empirical Model
Limited empirical data exists for the installation of large
foundation piles by vibratory driving, with most being measured by iTAP
(see Remmers and Bellmann (2021) in Appendix A of the application
(Attachment Z-3)). Current datasets contain a variety of different
information, including ranges of water depths from several meters to
depths of 40 m, different sediment types, and measured receiver
distances from several meters away from the source up to 750 m away.
To predict the expected underwater noise levels during vibratory
pile driving of 2.4 m pin piles for the OSS and 9.5 m monopiles, iTAP
used the limited empirical data from several existing offshore wind
farms from different pile diameters. All data were normalized to a
distance from the source of 750 m assuming a propagation loss of
15LogR. Given this normalization, uncertainties of <3 dB were expected.
The data were plotted as a function of the pile diameter and then fit
with a statistical regression curve (see the figure in Remmers and
Bellmann (2021) Attachment Z-3 in Appendix A of Dominion Energy's
application). Using the resulting regression, iTAP predicted noise
levels of 151 dB SPL for 2.4 m pin piles and 159 dB SPL for 9.5 m
monopiles (the maximum size piles Dominion Energy plans to install), at
a range of 750 m from the driven piles (Remmers and Bellmann (2021)).
Based on possible influences of friction between the head of the
vibratory hammer and the top of the piles, iTAP states that these
results at 750 m from the piles may be overestimating the source level
for vibratory pile driving.
[[Page 4397]]
For vibratory installation of cofferdams, adjusted one-third-octave
band source levels (with a broadband source level of 195 dB SEL) were
obtained from similar offshore construction projects and then adjusted
to account for the estimated force needed to drive cofferdam sheet
piles (see Schultz-von Glahn et al., 2006).
Acoustic Propagation Modeling
To predict acoustic levels at range during foundation installation
(impact and vibratory pile driving) and temporary cofferdam
installation and removal (vibratory pile driving), Tetra Tech used
sound propagation models, discussed below. For the installation and
removal of goal posts and HRG surveys, Dominion Energy assumed a
practical spreading loss rate (15logR). Below we describe the more
sophisticated sound propagation modeling methodology.
Tetra Tech utilized a software called dBSea, which was developed by
Marshall Day Acoustics (https://www.dbsea.co.uk/), to predict the
underwater noise in similar environments to what might be encountered
in the CVOW-C Project Area. Per Attachment Z-1 of the COP, Tetra Tech
used different ``solvers'' (i.e., algorithms) for the low and high-
frequency ranges, including:
dBSeaPE (Parabolic Equation Method): The dBSeaPE solver
makes use of the range-dependent acoustic model (RAM) parabolic
equation method, a versatile and robust method of marching the sound
field out in range from the sound source. This method is one of the
most widely used in the underwater acoustics community, offers
excellent performance in terms of speed and accuracy in a range of
challenging scenarios, and was used for low frequencies.
dBSeaRay (Ray Tracing Method): The dBSeaRay solver forms a
solution by tracing rays from the source to the receiver. Many rays
leave the source covering a range of angles, and the sound level at
each point in the receiving field is calculated by coherently summing
the components from each ray. This is currently the only
computationally efficient method at high frequencies and was used for
frequencies of 800 Hz and greater.
Each model utilizes imported environmental data and manually placed
noise sources in the aquatic environment, which could consist of either
equipment in the standard dBSea database or a user-specific database
(i.e., the empirically determined source levels and spectra, discussed
above). The software then allows the user to include properties
specific to the project site including bathymetry, seabed, and water
column characteristics (e.g., sound speed profiles, temperature,
salinity, and current). Tetra Tech also incorporated variables for each
pile to account for the soft-start of impact pile driving of foundation
piles and pile penetration progression.
For the CVOW-C Project's modeled environment using dBSea,
bathymetry data were obtained by Tetra Tech from the National
Geophysical Data Center and U.S Coastal Relief Model (NOAA Satellite
and Information Service, 2020) and consisted of a horizontal resolution
of 3 arc seconds (defined as 90 m (295.28 ft)). The data covered an
area consisting of 138 km x 144 km (452,755.91 ft x 472,440.94 ft) with
a maximum depth of 459 m (1,505.91 ft). Sound sources were placed near
the middle of the bathymetry area. The bathymetry data were imported
into the dBSea model and extents were set for displaying the received
sound levels. Relatedly, sediment data were also included into the
model as bottom sedimentation has the potential to directly impact the
sound propagation. Dominion Energy's site assessment surveys revealed
the Project Area primarily consists of a predominantly sandy seabed.
While not reiterated here, Appendix A of Dominion Energy's application
contains the tables that include the geoacoustic properties of the sub-
bottom sediments for modeling scenarios involving the more offshore WTG
and OSS foundations (see Table Z-5) and for the nearshore temporary
cofferdams (see Table Z-6).
Given that the sound speed profile in an aquatic environment varies
throughout the year, Tetra Tech calculated seasonal sound speed
profiles based on the planned installation schedule presented for the
CVOW-C Project. Dominion Energy would only install WTG and OSS
foundations between May 1st and October 31st, annually, hence an
average sound speed profile was calculated for this time period. Sound
speed profile data were obtained from the NOAA Sound Speed Manager
software incorporating World Ocean Atlantic 2009 extension algorithms.
A sensitivity analysis was performed on the monthly sound speed
information to determine the most conservative sound modeling results.
The average sound speed profile obtained from this dataset was directly
included into the dBSea model (see Figure 3 in Attachment Z-1 in
Dominion Energy's application (Appendix A)). This same approach was
undertaken for temporary cofferdam installation.
The scenarios for WTG monopile and OSS jacket pin pile installation
were modeled using a vertical array (based on third-octave band sound
characteristics that was adjusted for site-specific parameters,
including expected hammer energy and the number of hammers strikes
needed per each scenario) of point sources spaced at 1-m intervals.
Each of the third octave band center frequencies from 12.5 Hz up to 20
kHz of the source spectra was modeled. In order to conservatively
account for the presence of pile driving sound at high-frequencies, a
constant 15 dB/decade roll-off is applied to the modeled spectra after
the second spectral peak. The spectra source levels for impact driving
of monopile and pin piles can be found in Figure 10 of the CVOW-C ITA
application. The vibratory pile driving spectra, which is available in
Figure 11 of the ITA application, used reference information from iTAP
(Gerke and Bellmann, 2012), the California Department of Transportation
(CALTRANS, 2015), and from measurements of vibratory driving collected
by Tetra Tech. Based on the description above, Tetra Tech determined an
appropriate sound speed profile to input into dBSea by pulling the
average sound speed profile for the construction period (May 1st to
October 31st), following the schedule provided by Dominion Energy. No
information was pulled for November 1st through April 30th, as no pile
driving is planned due to seasonal restrictions regarding the North
Atlantic right whale. The monthly sound speed profile for the planned
WTG and OSS foundation construction period is found in Figure 12 in the
CVOW-C ITA application.
The sound level estimates are calculated from the generated three-
dimensional sound fields and then, at each sampling range, the maximum
received level that occurs within the water column is used as the
received level at that range. The dBSea model allows for a maximum
received level-over-depth approach (i.e., the maximum received level
that occurs within the water column at each calculation point). These
maximum-over-depth (Rmax) values are then compared to
predetermined threshold levels to determine exposure and acoustic
ranges to Level A harassment and Level B harassment threshold
isopleths. However, the ranges to a threshold typically differ among
radii from a source and also might not be continuous along a radii
because sound levels may drop below threshold at some ranges and then
exceed threshold at farther ranges. Both the Rmax (the
maximum
[[Page 4398]]
range in the model at which the sound level was calculated) and
R95 (excludes ends of protruding areas or small
isolated acoustic foci not representative of the nominal ensonified
zone) were calculated for each of the relevant regulatory thresholds.
The difference between Rmax and R95
depends on the source directivity and the heterogeneity of the acoustic
environment. To minimize the influence of these inconsistencies, 5
percent of the farthest such footprints were excluded from the model
data. The resulting range, R95, was chosen to
identify the area over which marine mammals may be exposed above a
given threshold because, regardless of the shape of the maximum-over-
depth footprint, the predicted range encompasses at least 95 percent of
the horizontal area that would be exposed to sound at or above the
specified threshold.
Here we note that Tetra Tech and MAI did not calculate or provide
exposure ranges to the Level A harassment SELcum thresholds
in the ITA application as provided by other offshore wind developers in
their ITA application. Instead, Dominion Energy chose to utilize
acoustic ranges (R95) values in its analysis, which
NMFS concurs is also a reasonable and more conservative approach and
likely results in somewhat comparatively larger zones. Dominion
Energy's application and this rule include the R95
ranges as these are representative of the expected underwater acoustic
footprints during foundation and cofferdam installation.
Temporary cofferdams followed a similarly described approach. To
estimate the distances to the harassment isopleths from the vibratory
installation of sheet piles, it was assumed that the vibratory pile
driver would use approximately 1,800 kilonewtons of vibratory force
over 60 minutes. Given the close proximity of all temporary cofferdams
in the nearshore environment and the relatively same installation depth
(3.3. m), a single representative location (i.e., the centermost
cofferdam) was used for the modeling analysis. As already described
above for foundation modeling, the same dBSea process using unique
environmental variables and sediment data (i.e., predominantly sand)
was applied for cofferdams. Dominion Energy applied a summary sound
speed profile to estimate propagation from cable landfall pile driving
given this work would most likely occur between May 1st and October
31st. To calculate the ranges to acoustic thresholds, Tetra Tech
utilized a maximum received level-over-depth approach where the maximum
received sound level that occurs within the water column at each
sampling point was used. Tetra Tech calculated both the Rmax
and the R95 for each of the marine mammal regulatory
thresholds.
Animal Movement Modeling
To estimate the probability of exposure of animals to sound above
NMFS' harassment thresholds during foundation installation, MAI
integrated the sound fields generated from the source and propagation
models described above with marine mammal species-typical behavioral
parameters (e.g., dive parameters, swimming speed, and course/direction
changes). Animal movement modeling was performed for all marine mammal
species determined to potentially occur within the CVOW-C Project Area
to estimate the amount of potential acoustic exposures above NMFS'
Level A (PTS) harassment and Level B (behavioral) harassment
thresholds. Animat modeling was conducted for four scenarios (three for
WTGs, one for OSS) that were determined to be representative of the
types of construction activities expected at three different locations
(two for WTGs (one shallow (21 m (69 ft)) and one deep (37 m (121 ft))
location) and one for OSSs (28 m (92 ft))). These locations were
selected to appropriately observe the range of effects of sound
propagation. The modeled areas are shown in Figure Z-4 in Dominion
Energy's Underwater Acoustic Assessment (Appendix A in the
application).
MAI's animat modeling was conducted using the Acoustic Integration
Model (AIM; Frankel et al., 2002), which is a Monte Carlo based
statistical model in which multiple iterations of realistic predictions
of acoustic source use as well as animal distribution and movement
patterns are conducted to provide statistical predictions of estimated
effects from exposure to underwater sound transmissions. By using AIM,
each acoustic source and receiver were modeled using the same concept
as animats. For each species, separate AIM simulations were developed
and iterated for each modeling scenario and activity location. During
the simulations, animats were randomly distributed within the model
simulation area and the predicted received sound level was estimated
every 30 seconds to create a history over a 24-hour period. Animats
were also pre-programmed to move every 30 seconds based upon species-
specific behaviors. At the end of each 30 second interval, the received
sound level (in dB RMS) for each animat was recorded.
Animats that exceed NMFS' acoustic thresholds were identified and
the range for the exceedances determined. The output of the simulation
is the exposure history for each animat within the simulation, and the
combined history of all animats gives a probability density function of
exposure during the project. The number of animals expected to exceed
the regulatory thresholds is determined by scaling the probability of
exposure by the species-specific density of animals in the area. By
programming animats to behave like marine species that may be exposed
to foundation installation noise during pile driving, the animats are
exposed to the sound fields in a manner similar to that expected for
real animals.
Static Take Estimate Method
Take estimates from cable landfall construction activities
(cofferdam and goal post installation and removal) and HRG surveys were
calculated based on a static method (i.e., animal movement modeling was
not conducted for these activities). Take estimates produced using the
static method are the product of density, ensonified area, and number
of days of pile driving work. Specifically, take estimates are
calculated by multiplying the expected densities of marine mammals in
the activity area(s) by the area of water likely to be ensonified above
the NMFS defined threshold levels in a single day (24-hour period).
Next that product is multiplied by the number of days pile driving is
likely to occur. A summary of this method is illustrated in the
following formula:
Estimated Take = D x ZOI x # of days
Where:
D = average species density (per 100 km\2\); and
ZOI = maximum daily ensonified area to relevant thresholds.
This methodology was utilized for impact pile driving associated
with goal posts, vibratory pile driving associated with temporary
cofferdams, and active acoustic source use from HRG surveys as no
exposure modeling was conducted.
Density and Occurrence
In this section, we provide information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations. As noted above, depending on the species and activity
type, and as described in the Estimated Take section for each activity
type, the calculated number of takes and the number of takes that NMFS
authorizes is based on the highest estimate of take resulting from
[[Page 4399]]
full consideration of density models, average group sizes, or site-
specific survey data.
Dominion Energy applied the Duke University Marine Geospatial
Ecology Laboratory marine mammal habitat-based density models (https://seamap.env.duke.edu/models/Duke/EC/ EC/) to estimate take from WTG and OSS
foundation installation, temporary goal post installation and removal,
temporary cofferdam installation and removal, and HRG surveys.
The Duke habitat-based density models delineate species' density
into 5 x 5 km (3.1 x 3.1 mi) grid cells (as opposed to the 10 x 10 km
(6.2 x 6.2 mi) grid cells previously used in past Roberts et al.
datasets for all species, with exception for the North Atlantic right
whale). Although the density grid cells are 25 km\2\ (9.7 mi\2\), the
values are still reported per 100 km\2\ (38.6 mi\2\). Based on the area
across which different specified activities are conducted (i.e., WTG
and OSS foundation installation, nearshore cable landfall activities,
and HRG surveys), appropriate averaged density estimates are applied to
exposure and/or take calculations for each area.
For foundation installation, densities were extracted from grid
cells within the Lease Area and those extending 8.9 km (5.53 mi) beyond
the Lease Area boundaries. The grid cells within the 8.9 km perimeter
area were incorporated to account for the largest ensonified area to
the Level B harassment threshold; thereby representing the furthest
extent where potential impacts to marine mammals could be expected. The
density in the grid cells selected were averaged for each month to
provide a mean monthly density for each marine mammal species and/or
stock. In some cases, the density models combine multiple species
(i.e., long-finned and short-finned pilot whales, gray and harbor
seals) or stocks (i.e., Southern migratory coastal and the Western
North Atlantic offshore bottlenose dolphin stocks), or it may not be
possible to derive monthly/seasonal densities for some species so
annual densities were used instead (i.e., pantropical spotted dolphins,
pilot whale spp.).
Group Size and PSO Data Considerations
The exposure estimates from the animal movement modeling or static
methods described above directly informed the take estimates. In some
cases, adjustments to the density-based exposure estimates may be
necessary to fully account for all animals that could be taken during
the specified activities. This could consist of an adjustment based on
species group size or observations or acoustic detections provided in
monitoring reports.
For some species, observational data from PSOs aboard HRG survey
vessels indicate that the density-based exposure estimates may be
insufficient to account for the number of individuals or type of
species that may be encountered during the planned activities. As an
example, pantropical spotted dolphins have been included in the
requested take request based on prior PSO observation data, obtained
via the 2020-2021 monitoring report from under previously issued (and
subsequently modified) HRG IHAs to Dominion Energy occurring in and
around the Lease Area (see RPS (2018), AIS, Inc. (2020), and RPS
(2021)). For other less-common species, the predicted densities from
Roberts et al. (2023) are very low and the resulting density-based
exposure estimate was less than a single animal or a typical group size
for the species. In such cases, the mean group size was considered as
an alternative to the density-based take estimates to account for
potential impacts on a group during an activity.
Regardless of methodology used (i.e., density-based, group size,
PSO data), Dominion Energy requested, and NMFS has conservatively
authorized, take based on the highest amount of exposures estimated
from any given method. Below we present the results of the
methodologies described above, including distances to NMFS thresholds,
and take estimates associated with each activity.
WTG and OSS Foundation Installation
Here, we present the construction scenarios Dominion Energy applied
to its analysis, which NMFS is carrying forward in this rule, and the
resulting acoustic ranges to Level A harassment and Level B harassment
thresholds, exposure estimates, and take estimates from WTG and OSS
foundation installation following the aforementioned modeling
methodologies.
To complete the project, Dominion Energy has prepared four
foundation installation construction schedules (three for WTG
installation and one for OSS installation), as construction schedules
cannot be fully predicted due to uncontrollable environmental factors
(e.g., weather) and installation schedules include variability (e.g.,
due to drivability). Since three locations had been identified where
OSSs would be constructed, the modeling relied on a single site that
would result in further propagation distance. This site was determined
to be representative of all three OSS locations.
For the monopile scenarios, two types of pile driving conditions
are expected for each monopile installed: a standard pile driving
situation (Scenario 1) and a hard-to-drive (Scenario 2) situation.
During the installation of one monopile for WTG foundations per day,
either a standard or hard-to-drive scenario may be necessary, which
would determine the duration of vibratory driving and the number of
impact hammer strikes needed. In situations where two monopile WTGs
would be installed per day (i.e., Scenario 3), Dominion Energy assumed
that only one monopile would consist of a hard-to-drive scenario and
the other would always be standard. Dominion Energy has committed to
not installing two hard-to-drive foundations in a single day. For OSS
jacket foundations, a single installation approach (i.e., Scenario 4;
impact pile driving only) is expected for the installation of up to two
pin piles per day.
Dominion Energy has assumed that a maximum of two monopiles may be
installed per day or that a maximum of two pin piles would be installed
per day. No concurrent pile driving would occur. Due to the risk of
pile run, Dominion Energy expects to utilize a joint vibratory-impact
pile driving installation approach on all WTG and OSS foundation piles.
All scenarios, including associated pile driving details, expected to
occur can be found in Table 5 below.
Table 5--WTG and OSS Foundation Installation Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
Installation scenario Foundation installed \c\ Installation details Duration of installation activity \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 1: Standard Driving.......... 9.5 m diameter monopile foundation (1 Vibratory pile driving... 60 minutes.
pile per day).
Impact pile driving...... 3,240 hammer strikes (4,000 kJ).
[[Page 4400]]
Scenario 2: Hard-to-drive............. 9.5 m diameter monopile foundation (1 Vibratory pile driving... 30 minutes.
pile per day).
Impact pile driving...... 3,720 hammer strikes (4,000 kJ).
Scenario 3: One standard and one hard- 9.5 m diameter monopile foundations (2 Vibratory pile driving... 90 minutes.
to-drive \b\. piles per day).
Impact pile driving...... 6,960 hammer strikes (4,000 kJ).
Scenario 4: OSS Jacket Foundation..... 2.8 m diameter pin piles (2 piles per Vibratory pile driving... 120 minutes.
day).
Impact pile driving...... 15,120 hammer strikes (3,000 kJ).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The hammer energy of 4,000 kJ represents the maximum hammer energy; however, Dominion Energy anticipates the energy will be less than this.
\b\ Two hard-to-drive piles would never be installed on the same day.
\c\ Dominion Energy may build up to two foundations per day, consisting of either WTG monopiles or pin piles per jacket foundations. However, on some
days, only one monopile may be built per day and would consist of a single standard driven pile or a hard-to-drive pile.
As described above, underwater noise associated with the
construction of offshore components of CVOW-C would predominantly
result from vibratory and impact pile driving monopile and jacket
foundations. As previously described, Dominion Energy employed Tetra
Tech to conduct acoustic modeling and MAI to conduct animal movement
exposure modeling to better understand sound fields produced during
these activities and to estimate exposures. For installation of
foundation piles, animal movement modeling was used to estimate
exposures.
Presented below are the acoustic ranges to the Level A harassment
and Level B harassment thresholds for WTG installation in the deeper
environment (Table 6), WTG installation in the shallower water (Table
7), and OSS installation in the single representative location (Table
8). All ranges shown are assuming 10 dB of sound attenuation as
Dominion Energy would employ a noise attenuation system (NAS;
consisting of at least a double bubble curtain) during all vibratory
and impact pile driving of monopile and jacket foundations. Although
three attenuation levels were evaluated, and Dominion Energy has not
yet finalized its mitigation strategy, Dominion Energy and NMFS both
anticipate that the noise attenuation system ultimately chosen will be
capable of reliably reducing source levels by 10 dB. Therefore,
modeling results assuming 10-dB attenuation are carried forward in this
analysis for WTG and OSS foundation installation. See the Mitigation
section for more information regarding the justification for the 10 dB
assumption.
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Dominion Energy provided seasonal density estimates during the time
of year when WTG and OSS foundations would be installed following the
methodology provided in the Density and Occurrence section above. The
resulting densities used in the exposure estimate calculations for
foundation installation are provided in Table 9.
Table 9--Mean Seasonal Density Estimates for WTG and OSS Foundation Installation
[Inclusive of the 8.9 Km perimeter applied for the largest Level B harassment zone from vibratory pile driving]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mean density (individual/km\2\)
----------------------------------------------------------------------
Marine mammal species Stock Spring Summer (June to Fall (September to October) Annual
(May) August) \c\ density
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *.................. Western North Atlantic........... 0.00015 0.00004 0.00005 .........
Fin whale *................................... Western North Atlantic........... 0.00069 0.00036 0.00019 .........
Humpback whale................................ Gulf of Maine.................... 0.00136 0.00023 0.00040 .........
Minke whale................................... Canadian East Coast.............. 0.00519 0.00028 0.00011 .........
Sei whale *................................... Nova Scotia...................... 0.00021 0.00001 0.00004 .........
Sperm whale *................................. North Atlantic................... 0.00003 0.00000 0.00000 .........
Pygmy sperm whale............................. Western North Atlantic........... \a\ n/a \a\ n/a \a\ n/a .........
Atlantic spotted dolphin...................... Western North Atlantic........... 0.00507 0.05873 0.03822 .........
Atlantic white-sided dolphin.................. Western North Atlantic........... \a\ n/a \a\ n/a \a\ n/a .........
Bottlenose dolphin \d\........................ Southern Migratory Coastal....... 0.13098 0.13509 0.13852 .........
Western North Atlantic, Offshore. 0.07352 0.07415 0.06439 .........
Clymene dolphin............................... Western North Atlantic........... \a\ n/a \a\ n/a \a\ n/a .........
Common dolphin................................ Western North Atlantic........... 0.05355 0.00559 0.00103 .........
False killer whale............................ Western North Atlantic........... \a\ n/a \a\ n/a \a\ n/a .........
Melon-headed whale............................ Western North Atlantic........... \a\ n/a \a\ n/a \a\ n/a .........
Long-finned pilot whale \e\................... Western North Atlantic........... (\b\) (\b\) (\b\) 0.00098
Short-finned pilot whale \e\.................. Western North Atlantic........... (\b\) (\b\) (\b\) 0.00098
Pantropical spotted dolphin................... Western North Atlantic........... (\b\) (\b\) (\b\) 0.00008
Risso's dolphin............................... Western North Atlantic........... 0.00084 0.00042 0.00021 .........
Harbor porpoise............................... Western North Atlantic........... 0.00315 0.00000 0.00000 .........
Gray seal..................................... Western North Atlantic........... 0.01828 0.00001 0.00047 .........
Harbor seal................................... Western North Atlantic........... 0.01828 0.00001 0.00047 .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ These species were added to the list of marine mammal species that could potentially be harassed by project activities after the animat analysis was
completed so no exposure estimates were calculated. Instead, a standard group size of animals was used instead for any analysis pertaining to this
species.
\b\ For these species, monthly densities were not available. Instead, annual densities were used.
\c\ As no foundation installation is planned to occur in November or December, the relevant values were not included.
\d\ Within the Roberts et al. (2023) data, bottlenose dolphin densities are reported as a single ``bottlenose dolphin'' group and are not identified by
stock. Given that the WTG and OSS foundation installation would be occurring beyond the 20-m isobath, where the stocks are split, estimated take was
assumed to come from the offshore stock.
\e\ Pilot whale spp. are reported as a single group (Globicephala spp.) and are not species-specific. Because of this, Dominion Energy assumed that the
density was a collective pilot whale group and could be attributed to either the short-finned or long-finned species.
MAI set the modeled marine mammal animats to populate each of the
model areas with the representative nominal densities provided. During
the modeling, some of the obtained densities were higher than the real-
world density, as to ensure that the results of the animat model
simulations were not unduly influenced by the spontaneous placement of
some of the simulated marine mammals and to provide additional
statistical robustness within the modeling exercise. To obtain the
final exposure estimates, the modeled results were normalized by the
ratio of the modeled animat density to the real-world seasonal
densities. The exposure estimates were derived based on the history of
exposure within the modeling exercise for each marine mammal species or
species group. The modeled SEL received by each animat over the
duration of the construction activity period (e.g., estimated 3 hours
of driving on a single monopile) and the peak sound pressure level were
used to calculate the potential for an individual animat to have
experienced PTS, in accordance with the NOAA Fisheries (2018)
physiological acoustic thresholds for marine mammals. If an animat was
not predicted to have experienced PTS, then the sound energy received
by each individual animat over the 24-hour modeled period was used to
assess the potential risk of biologically significant behavioral
reactions. The modeled RMS sound pressure levels were used to estimate
the potential for behavioral responses, in accordance with the NOAA
Fisheries (2005b) behavioral criteria.
For the monopile WTG installation, the exposure calculations
assumed 176 WTG monopiles would be installed over 2 years, but also
took into account the need for Dominion Energy to possibly re-pile for
up to 7 WTG foundations (equating to a total of 183 modeled piling
events for WTGs). For the jacket foundations using pin piles for the
OSSs, the modeling assumed that up to 12 pin piles (4 per OSS for up to
3 total OSSs) would be installed over 2 years. Both of these were
modeled in accordance with the schedule provided by Dominion Energy.
Overall, for Year 1 (2024), it was assumed that up to a maximum of
95 monopiles and all 12 pin piles would be installed. For Year 2, it
was assumed that a maximum of 88 monopiles (which does account for the
7 possible re-piling events that may be necessary) would be installed.
As construction of the WTGs and OSSs are only anticipated to occur in
the first 2 years of the project (2024 and 2025), animats were only
calculated for these. Although schedule delays due to weather or other
unforeseen activities may require Dominion Energy to not complete all
piling in Year 2, but instead push a limited number of piles to Year 3
(2026) and/or Year 4 (2027), no modeling was completed for 2026 or
2027. This is because any piles not completed in 2025 (Year 2) would be
pushed to 2026 (Year 3) and/or 2027 (Year 4), which means that the
current analysis has accounted for the total scenario for foundation
installation activities in Year 2 would be less than estimated here and
instead would shift some to Years 3 or 4. Please see Table 10 for the
derived exposure estimates during WTG and OSS foundation installation
over 2 years (2024 and 2025).
The exposure estimates for both the installation of WTGs and OSSs
over 2
[[Page 4407]]
years (2024 and 2025) were then adjusted, for some species, based on
group size characteristics known through the scientific literature and
received sighting reports from previous projects and/or surveys. As
indicated below, when density-based exposure estimates were lower than
numbers that were found in the scientific literature or via real-world
sighting reports, these estimates were adjusted by either a standard
group size for the species/stock or by PSO observational data. The
species-specific requested and authorized take estimates are listed
below, in accounting for these adjustments, where applicable:
North Atlantic right whale: Take by Level B harassment for
foundation installation adjusted for group size of one individual for
months with monthly density <0.01 per 100 km\2\ (Roberts et al., 2023)
when construction may occur (May-October) and two individuals for
months with monthly density >0.01 when construction may occur (May-
October);
Fin whale: Adjusted based on PSO data (max daily number x
days of activity);
Humpback whale: Adjusted based on PSO data (max daily
number x days of activity);
Sperm whale: Adjusted based on one group size per year
(three per Barkaszi et al., 2019);
Atlantic white-sided dolphin: Adjusted based on 1 group
size per year (15 per Reeves et al., 2002);
Pantropical spotted dolphin: Adjusted based on 1 group
size per year (20 per Reeves et al., 2002);
Short-beaked common dolphin: Adjusted based on 1 group
size (20 individuals per group) per day (Dominion Energy, 2021);
Clymene dolphin: Adjusted based on one group size (five
per AIS, Inc. (2020));
False killer whale: Adjusted based on one group size per
year (four per RPS (2021));
Melon-headed whale: Adjusted based on one group size per
year (five per RPS (2018)); and
Pygmy sperm whale: Adjusted based on one group size per
year (one per RPS (2021)).
In Table 10, we present the calculated exposure estimates and the
maximum amount of take authorized during foundation installation of
WTGs and OSSs during the 5-year effective period for the CVOW-C
Project. As demonstrated by the exposure modeling results, which do not
consider mitigation other than the use of a sound attenuation
device(s), the potential for Level A harassment is very low. However,
there may be some situations where pile driving cannot be stopped due
to safety concerns related to pile instability.
As previously discussed, only 176 WTG and 3 OSS (using a maximum of
12 pin piles) foundations would be permanently installed for the CVOW-C
Project; however, Dominion Energy has considered the possibility that
some piles may be started but not fully installed at some locations due
to installation feasibility issues. Conservatively, Dominion Energy has
estimated up to seven additional pile driving events may be needed in
the event this occurs. Per Dominion Energy's estimated construction
schedule, it is anticipated that all of these foundation installation
activities would occur in Year 1 (2024) and Year 2 (2025); therefore,
the take estimates below reflect the foundation pile driving activities
associated with 183 WTG foundations and 3 OSSs, to account for the 7
additional re-piling events that may occur if monopiles were started in
one location but then needed to be re-driven at another WTG position.
Table 10--Exposures Estimates and Maximum Amount of Take Authorized by Level A Harassment and Level B Harassment From Vibratory and Impact Pile Driving
Associated With 183 WTG \f\ and 3 OSS Total Installation Events, Assuming 10 dB of Noise Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated exposures Takes authorized
-----------------------------------------------------------------------------------------------
2024 2025 2024 2025 \e\
Marine mammal species Stock -----------------------------------------------------------------------------------------------
Level A Level B Level A Level B Level A Level B Level A Level B
harassment harassment harassment harassment harassment harassment harassment harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale * \c\.. Western North \c\ 1 3 \c\ 1 2 0 6 0 6
Atlantic.
Fin whale *....................... Western North 4 21 3 19 4 112 3 90
Atlantic.
Humpback whale.................... Gulf of Maine....... 4 18 4 14 4 29 4 104
Minke whale....................... Canadian East Coast. 8 53 7 48 8 53 7 48
Sei whale *....................... Nova Scotia......... 1 3 1 2 1 3 1 2
Sperm whale *..................... North Atlantic...... 0 1 0 1 0 3 0 3
Pygmy sperm whale \g\............. Western North \a\ n/a \a\ n/a \a\ n/a \a\ n/a 0 1 0 1
Atlantic.
Atlantic spotted dolphin.......... Western North 0 2,108 0 1,896 0 2,108 0 1,896
Atlantic.
Atlantic white-sided dolphin \d\.. Western North \h\ n/a \h\ n/a \h\ n/a \h\ n/a 0 15 0 15
Atlantic.
Bottlenose dolphin \a\............ Southern Migratory 0 0 0 0 0 0 0 0
Coastal.
Western North 0 4,290 0 3,602 0 4,290 0 3,602
Atlantic, Offshore.
Clymene dolphin \g\............... Western North \h\ n/a \h\ n/a \h\ n/a \h\ n/a 0 5 0 5
Atlantic.
Common dolphin.................... Western North 0 594 0 559 0 1,720 0 1,380
Atlantic.
False killer whale \g\............ Western North \h\ n/a \h\ n/a \h\ n/a \h\ n/a 0 4 0 4
Atlantic.
Melon-headed whale \g\............ Western North \h\ n/a \h\ n/a \h\ n/a \h\ n/a 0 5 0 5
Atlantic.
Pilot whale spp................... Western North 0 61 0 50 0 61 0 50
Atlantic.
Pantropical spotted dolphin....... Western North 0 4 0 4 0 20 0 20
Atlantic.
Risso's dolphin................... Western North 0 25 0 23 0 25 0 23
Atlantic.
Harbor porpoise................... Western North 1 23 1 20 1 23 1 20
Atlantic.
Gray seal \b\..................... Western North 1 62 1 53 1 62 1 53
Atlantic.
Harbor seal \b\................... Western North 1 62 1 53 1 62 1 53
Atlantic.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Given foundation installation would be confined to an area beyond the 20-m isobath, all of the estimated take has been allocated to the offshore
stock.
\b\ The take request for pinnipeds was allocated to an even 50 percent split to each harbor seal and gray seal.
\c\ Although Level A harassment exposure estimates were calculated for North Atlantic right whales, Dominion Energy has not requested, nor does NMFS
propose to authorize, any take by Level A harassment for this species as the enhanced mitigation measures would reduce these to zero.
\d\ Atlantic white-sided dolphins are not expected, but due to shifts in habitat use, have been included in the take request based on a standard group
size annually. We note that animat/exposure modeling was not done for this species.
\e\ In the event that the construction schedule is delayed in 2025, some WTGs may need to be constructed in 2026 and/or 2027 instead, which would reduce
the number of WTGs constructed in 2025 but it would not change the maximum number of takes of marine mammals authorized in this rule. Instead, the
values shown here for 2025 would be reduced with the remaining take carried over into 2026 and/or 2027.
[[Page 4408]]
\f\ This analysis conservatively assumes 183 independent piling events for WTG monopile foundations would occur, although only 176 permanent WTGs would
be installed.
\g\ While these species were not originally included in Dominion Energy's request, given recorded sightings/detections of these species during previous
Dominion Energy IHAs in the same general area, NMFS has included these as species that may be harassed (by Level B harassment only) during the 5-year
effective period of this rulemaking.
\h\ This species was incorporated after the animat analysis was completed so no take was estimated. Instead, a standard group size of animals was used
instead for any analysis pertaining to this species.
Additionally, as previously discussed above in the Description of
the Specified Activities section, Dominion Energy's construction
schedule may shift during the project due to bad weather or other
uncontrollable and unforeseen events, which may require foundation
installation to shift and occur in 2026 and/or 2027 instead. However,
in this situation, the maximum amount of take authorized would not
change; instead, some of the take that would have occurred in 2025
would instead occur in 2026 and/or 2027, which means that the take of
marine mammals during 2025 would be less than predicted here, as those
takes would be shifted into 2026 and/or 2027.
Cable Landfall Construction
Dominion Energy plans to install and remove both temporary goal
posts comprised of steel pipe piles (to guide the placement of casing
pipes installed using a trenchless installation method that does not
produce noise levels with the potential to result in marine mammal
harassment) and temporary cofferdams comprised of steel sheet piles at
cable landfall locations.
Temporary Cofferdams
Dominion Energy would install and remove up to nine temporary
cofferdams adjacent to the firing range at the State Military
Reservation in Virginia Beach using a vibratory hammer. Dominion Energy
assumed that a maximum of 6 days would be needed to install and remove
a single cofferdam (3 days to install and 3 days to remove). Vibratory
pile driving would occur for up to 60 minutes per day (1 hour) and up
to 20 sheet piles could be installed per day (each cofferdam would
necessitate 30 to 40 sheet piles, depending on the final chosen
configuration). Table 11 includes details for the cofferdam scenario.
Table 11--Temporary Cofferdam Scenario
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sound source level (dB re: 1 [mu]Pa at Duration of installation
Installation scenario Foundation installed Installation details 1 m) activity for a single pile
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cofferdam Installation............. Sheet piles........... Vibratory pile driving 195 SEL RMS........................... 60 minutes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Underwater noise associated with the construction of temporary
cofferdams would only result from vibratory pile driving of steel sheet
piles. As already described previously, Dominion Energy employed Tetra
Tech to conduct the acoustic modeling to better understand the sound
fields produced during these activities. These results also utilized
information provided by iTAP (see Remmers and Bellmann (2021)
Attachment Z-3 in Appendix A of Dominion Energy's application).
Following a similar approach to the one described for foundation
installation, Tetra Tech calculated the ranges to the defined acoustic
thresholds using a maximum received level-over-depth approach where the
maximum received sound level that occurs within the water column at
each sampling point was used. Tetra Tech calculated both the
Rmax and the R95% for each of the marine mammal
regulatory thresholds. The results of this analysis are presented below
in Table 12 and are presented in terms of the R95% range,
based on the cofferdam modeling scenario found in Table 11 above. Given
the nature of vibratory pile driving and the very small distances to
Level A harassment thresholds (0-108 m (0-354 ft); assuming 10 dB of
sound attenuation), which accounts for 1 hour of vibratory pile driving
per day, vibratory driving is not expected to result in Level A
harassment. As Dominion Energy did not request any Level A harassment
incidental to the installation and/or removal of sheet piles for
temporary cofferdams, and based on these small distances, NMFS is not
authorizing any in this action.
Table 12--Acoustic Ranges (R95%), in Meters, to Level A Harassment (PTS) and Level B Harassment Thresholds From Vibratory Pile Driving During Sheet Pile
Installation for Marine Mammal Function Hearing Groups, Assuming an Average Sound Speed Profile
--------------------------------------------------------------------------------------------------------------------------------------------------------
Distance to marine mammal thresholds
--------------------------------------------------------------------------
Level A harassment (PTS) Level B
-------------------------------------------------------- harassment
Activity Pile parameters Approach used (behavior)
LFC (199 MFC (198 HFC (173 ------------------
SEL) SEL) SEL) PP (201 SEL) All species (120
SPL RMS)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Temporary Cofferdams............. 2.8 m diameter Pin Vibratory Pile 108 0 0 0 3,097
pile. Driving.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds.
[[Page 4409]]
dBSea was used to derive the acoustic ranges to the Level B
harassment threshold, assuming no sound attenuation, around the cable
landfall site. This included the ensonified area that was truncated by
any land, which yielded an area (approximately 1 km\2\) smaller than
the radius of a circle (assuming 3,097 m). For the vibratory pile
driving for temporary cofferdams associated with the sheet pile
installation and removal, the daily ensonified area was 29.04 km\2\
(11.21 mi\2\), based on the acoustic range to the Level B harassment
threshold (3,097 m), with a total ensonified area of 4,980 km\2\
(1,922.8 mi\2\) over 54 days of installation.
Density data from Roberts et al. (2023) were mapped within the
boundary of the CVOW-C Project Area using geographic information system
(GIS) software (ESRI, 2017). To estimate marine mammal density around
the temporary cofferdams, the greatest ensonified area was intersected
with the density grid cells for each individual species to select all
of those grid cells that the ensonified area intersects, representing
the furthest extent where potential impacts to marine mammals could be
expected. Maximum monthly densities (i.e., the maximum density found in
each grid cell) were averaged by season (spring (May), summer (June
through August), and fall (September through October). Since the timing
of landfall construction activities may vary somewhat from the prepared
schedule, the highest average seasonal density from May through October
(Dominion Energy's planned construction period for temporary
cofferdams) for each species was selected and used to estimate
exposures from temporary cofferdam installation and removal (Table 13).
Table 13--Highest Average Seasonal Marine Mammal Densities for Nearshore
Trenchless Installation (Temporary Cofferdam and Temporary Goal Post
Installation) Activities
------------------------------------------------------------------------
Highest average
Marine mammal species Stock seasonal density
(individual/100 km\2\)
------------------------------------------------------------------------
North Atlantic right whale *. Western North 0.024
Atlantic.
Fin whale *.................. Western North 0.041
Atlantic.
Humpback whale............... Gulf of Maine... 0.054
Minke whale.................. Canadian East 0.124
Coast.
Sei whale *.................. Nova Scotia..... 0.015
Sperm whale *................ North Atlantic.. 0.001
Pygmy sperm whale............ Western North \a\ n/a
Atlantic.
Atlantic spotted dolphin..... Western North 2.370
Atlantic.
Atlantic white-sided dolphin. Western North 0.325
Atlantic.
Bottlenose dolphin........... Southern 17.054
Migratory
Coastal.
Clymene dolphin.............. Western North \a\ n/a
Atlantic.
Common dolphin............... Western North 1.808
Atlantic.
False killer whale........... Western North \a\ n/a
Atlantic.
Melon-headed whale........... Western North \a\ n/a
Atlantic.
Pilot whale spp.............. Western North 0.065
Atlantic.
Pantropical spotted dolphin.. Western North 0.007
Atlantic.
Risso's dolphin.............. Western North 0.030
Atlantic.
Harbor porpoise.............. Western North 0.438
Atlantic.
Gray seal.................... Western North 1.775
Atlantic.
Harbor seal.................. Western North 1.775
Atlantic.
------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ These species were added to the list of species that could be
potentially impacted by the project after the adequate and complete
date. However, given the rare occurrence of these species in the
Project Area, authorized take was included only for foundation
installation, and not for nearshore cable landfall activities.
For some species where little density information is available
(i.e., pilot whales), the annual density was used instead. Given
overlap with the pinniped density models as the Roberts et al. (2023)
dataset does not distinguish between some species, a collective
``pinniped'' density was used for both harbor and gray seal species and
later split for the take estimates and request (Roberts et al., 2016).
This approach was the same as described in the WTG and OSS Foundation
Installation section. Refer back to Table 13 for the densities used for
temporary cofferdam installation and removal.
Given that use of the vibratory hammer during cofferdam
installation and removal may occur on up to 6 days per cofferdam (3
days for installation and 3 days for removal), a max total of 54 days
was assumed necessary for all 9 cofferdams. To calculate exposures, the
highest average seasonal marine mammal densities were multiplied by the
daily ensonified area (29.04 km\2\) for installation and removal of
sheet piles for temporary cofferdams. To yield the total estimated take
for the activity, the per day take was multiplied by the ensonified
area by the total number of days for the activity. To do this, the
ensonified area was overlaid over the Roberts et al. (2023) densities
to come up with a per day take which was then multiplied by 54 to
account for the total number of days. This produced the results shown
in Table 14. 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 work.
Given the small distances to the Level A harassment isopleths,
Level A harassment incidental to this activity is not anticipated, even
absent mitigation. Therefore, Dominion Energy did not request, and NMFS
is not authorizing, Level A harassment related to cofferdam
installation and removal.
Calculated take estimates for temporary cofferdams were then
adjusted, for some species, based on group size characteristics known
through the scientific literature and received sighting reports from
previous projects and/or surveys. These group size estimates for
cofferdam installation and removal are described below and were
incorporated into the estimated take to yield the requested and
authorized take estimate:
[[Page 4410]]
Atlantic spotted dolphin: Adjusted based on 1 group size
per day (20 per Dominion Energy, 2020, Jefferson et al., 2015);
Bottlenose dolphin (Combined Southern Migratory Coastal,
Western North Atlantic Offshore): Adjusted based on 1 group size per
day (15 per Jefferson et al., 2015); and
Common dolphin (short-beaked): Adjusted based on 1 group
size per day (20 per Dominion Energy, 2021).
Given that take by Level B harassment is precautionarily
authorized, assuming 2 years of foundation installation, for Clymene
dolphins, false killer whales, melon-headed whales, and pygmy sperm
whales, and given the nearshore nature of cable landfall activities, no
additional takes (and therefore, no group size adjustments) have been
authorized for temporary cofferdam installation and removal activities.
Additionally, beyond group size adjustments, some slight
modifications were performed for some species, including for harbor
seals, gray seals, short- and long-finned pilot whales, and bottlenose
dolphins. More specifically, the takes requested were accrued based on
a 50/50 split for both pinniped species, as the Roberts et al. (2023)
data does not differentiate the density by specific pinniped species.
The density for pilot whales represents a single group (Globicephala
spp.) and is not species-specific. Due to the minimal occurrence of
both short-finned and long-finned pilot whales to occur in this area
due to the shallow water, the requested take was allocated to a
collective group, although short-finned pilot whales are more commonly
seen in southern waters. Bottlenose dolphin stocks were split by the
20-m isobath cutoff, and then allocated specifically to the coastal
stock of bottlenose dolphins (migratory southern coastal) due to the
nearshore nature of these activities.
Below we present the estimated take and maximum amount of take
authorized during temporary cofferdam installation and removal during
the 5-year effective period for the CVOW-C Project (Table 14). Take by
Level A harassment was not requested by Dominion Energy, and it is
neither expected nor authorized by NMFS. The take authorized accounts
for three days for installation and 3 days for removal, for a total of
6 days for each of 9 cofferdams (54 days total). To be conservative,
Dominion Energy has requested take, by Level B harassment, based on the
highest exposures predicted by the density-based take estimates, with
some slight modifications to account for group sizes for some species.
Although North Atlantic right whales do migrate in coastal waters
and have been seen off Virginia Beach, Virginia, they are not expected
to occur in the nearshore waters where work will be occurring. The
amount of work considered here is limited and would be conducted during
a time when North Atlantic right whales are less likely to be migrating
in this area. The distance to the Level B harassment isopleth (3.1 km)
for installation and removal of the sheet piles associated with the
cofferdams and the maximum distance to the Level A isopleth (0.11 km)
remain in shallow waters in the nearshore environment and for a very
short period of time (approximately 1 hour daily); thus, it is unlikely
that right whales (or most species of marine mammals considered here)
would be exposed to vibratory pile driving during cofferdam
installation and removal at levels close to the 120 dB Level B
harassment threshold or to the Level A harassment thresholds. Hence,
Dominion Energy did not request take of North Atlantic right whales
incidental to this activity and NMFS is not authorizing it.
We note that these would be the maximum number of animals that may
be harassed during vibratory pile driving for nearshore temporary
cofferdams as the analysis conservatively assumes each exposure is a
different animal. This is unlikely to be the case for all species shown
here but is the most comprehensive assessment of the level of impact
from this activity.
Table 14--Density-Based Exposures and Authorized Take by Level B Harassment From Vibratory Pile Driving
Associated With Temporary Cofferdam Installation and Removal
----------------------------------------------------------------------------------------------------------------
Density-based Authorized takes of
Marine mammal species Stock exposures marine mammals
----------------------------------------------------------------------------------------------------------------
Level B harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *.............. Western North Atlantic...... 0.376 0
Fin whale *............................... Western North Atlantic...... 0.643 1
Humpback whale............................ Gulf of Maine............... 0.847 1
Minke whale............................... Canadian East Coast......... 1.945 2
Sei whale *............................... Nova Scotia................. 0.235 0
Sperm whale *............................. North Atlantic.............. 0.016 0
Pygmy sperm whale......................... Western North Atlantic...... \d\ n/a \d\ n/a
Atlantic spotted dolphin.................. Western North Atlantic...... 37.169 240
Atlantic white-sided dolphin \c\.......... Western North Atlantic...... 5.097 5
Bottlenose dolphin........................ Southern Migratory Coastal.. 267.462 180
Western North Atlantic, \a\ n/a \a\ n/a
Offshore.
Clymene dolphin........................... Western North Atlantic...... \d\ n/a \d\ n/a
Common dolphin............................ Western North Atlantic...... 28.355 240
False killer whale........................ Western North Atlantic...... \d\ n/a \d\ n/a
Melon-headed whale........................ Western North Atlantic...... \d\ n/a \d\ n/a
Pilot whale spp........................... Western North Atlantic...... 1.019 1
Pantropical spotted dolphin............... Western North Atlantic...... 0.110 0
Risso's dolphin........................... Western North Atlantic...... 0.470 0
Harbor porpoise........................... Western North Atlantic...... 6.869 7
Gray seal \b\............................. Western North Atlantic...... 13.919 14
Harbor seal \b\........................... Western North Atlantic...... 13.919 14
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Given cofferdam installation and removal would be confined to an area below the 20-m isobath, all of the
estimated take has been allocated to the coastal stock.
[[Page 4411]]
\b\ The take request for pinnipeds was allocated to an even 50 percent split to each harbor seal and gray seal.
\c\ Atlantic white-sided dolphins are not expected, but due to shifts in habitat use, have been included in the
take request based on a standard group size annually. We note that animat/exposure modeling was not done for
this species.
\d\ Given take by Level B harassment was precautionarily authorized during 2 years of foundation installation
for these species, no take has been calculated for cable landfall construction activities.
Temporary Goal Posts
To facilitate nearshore, trenchless installation for the export
cables to shore, Direct Steerable Pipe Tunneling equipment utilizing a
steerable tunnel boring machine would excavate ground while goal posts
are used to guide steel casing pipes behind the tunnel boring machine
using a pipe thruster. For tunneling and boring activities, only the
impact hammer is expected to cause harassment to marine mammals; all
other equipment (i.e., pipe thrusting machine, pumps, motors,
powerpacks, and drill mud processing system) produces lower source
levels. The pipe thrusting machine does not vibrate or produce any
noise as it only pushes the casing pipes so no harassment to marine
mammals is expected to occur from the use of this equipment. Each
temporary goal post, which would be installed via impact pile driving,
would consist of 1.07 m (42 in) diameter steel pipe piles. Up to two
steel pipes could be installed per day for a total duration of 130
minutes per goal post. The strike rate would require approximately 260
strikes per pile with a strike duration between 0.5 and 2 seconds. Up
to 12 goal posts would be needed for each of the 9 Direct Pipe
(temporary cofferdam) locations, equating to a total of 108 piles
necessary for the goal posts. Removal of the pipe piles would occur at
a rate of 2 per day over 54 days to remove all 108 piles. Unlike
installation, removal of pipe piles is not expected to cause take of
marine mammals as mechanical and/or hydraulic equipment is used that
does not produce noise. Because of this, the analysis described below
only pertains to the installation of goal posts.
Tetra Tech applied the Level A harassment cumulative PTS criteria
to a specific tab (for impact pile driving) spreadsheet (User
Spreadsheet) that reflects NOAA Fisheries' 2018 Revisions to Technical
Guidance (NOAA Fisheries, 2018a). The User Spreadsheet relies on
overriding default values, calculating individual adjustment factors,
and using the difference between levels with and without weighting
functions for each of the five categories of hearing groups. The new
adjustment factors in the spreadsheets allow for the calculation of
SELcum distances and peak sound exposure (PK) distances and
account for the accumulation (Safe Distance Methodology) using the
source characteristics (duty cycle and speed) after Silve et al.
(2014).
To calculate the distance to the acoustic threshold for Level B
harassment of marine mammals, Tetra Tech utilizing a spread calculation
to estimate the horizontal distance to the 160 dB re 1 [mu]Pa isopleth:
SPL(r) = SL-PL(r)
Where:
SPL = sound pressure level (dB re 1 [mu]Pa);
r = range (m), SL = source level (dB re 1 [mu]Pa m); and
PL = propagation loss as a function of distance (calculated as
20Log10(r)).
We note that while these methodologies provided by NOAA Fisheries
are able to calculate the maximum distances to the Level A harassment
and Level B harassment thresholds, these calculations do not allow for
the inclusion of site-specific environmental parameters, as was
described for activities analyzed through dBSea.
The results of this analysis are presented below in Table 15 and
are presented in terms of the R95 range. Table 15
demonstrates the maximum distances to both the regulatory thresholds
for Level A harassment and Level B harassment for each marine mammal
hearing group. Given the very small distances to the Level A harassment
thresholds (4.5-152 m; assuming 10 dB of sound attenuation), which
accounts for 130 minutes (approximately 2.2 hours) of impact pile
driving per day, impact driving is not expected to result in Level A
harassment. As Dominion Energy did not request any Level A harassment
incidental to the installation and/or removal of steel pipe piles for
temporary goal posts, and based on these small distances, NMFS is not
authorizing any in this action.
Table 15--Ranges, in Meters, to Level A Harassment (PTS) and Level B Harassment Thresholds From Impact Pile Driving During Steel Pipe Pile Installation of Goal Posts for Marine Mammal Function
Hearing Groups
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Distance to marine mammal thresholds (in meters)
---------------------------------------------------------------------------------------------------
Level A harassment (PTS onset) Level B harassment
Activity Pile parameters Approach used -------------------------------------------------------------------------------- (behavioral)
LFC (183 dB MFC (185 dB HFC (155 dB PP (185 dB SELcum) -------------------
SELcum) SELcum) SELcum) All (160 dB RMS)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Temporary Goal Posts.................. 1.07 m diameter Steel Impact Pile Driving...... 590.9 21.0 703.8 316.2 1,450
Pipe Piles.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds.
Given the small distances to Level A harassment isopleths, Level A
harassment incidental to this activity is not anticipated, even absent
mitigation. Therefore, Dominion Energy is not requesting, and NMFS is
no authorizing Level A harassment related to goal post installation.
The acoustic ranges to the Level B harassment threshold, assuming no
sound attenuation, were used to calculate the ensonified area around
the cable landfall site. The Ensonified Area is calculated as the
following:
Ensonified Area = pi x r2,
Where:
r is the linear acoustic range distance from the source to the
isopleth to the Level B harassment thresholds.
To accurately account for the greatest level of impact (via
behavioral harassment) to marine mammals, Tetra Tech applied the
evaluated maximum Level B harassment distance (1,450 m) as the basis
for determining potential takes. To get an accurate value of the total
ensonified area within the aquatic environment, the isopleth was
overlaid
[[Page 4412]]
on a map to determine if any truncation by land would occur due to the
nearshore proximity of the goal posts. For the vibratory pile driving
for temporary cofferdams associated with the sheet pile installation
and removal, it was assumed that the daily ensonified area was 4.98
km\2\ (1.92 mi\2\), or a total ensonified area of 268.92 km\2\ (103.83
mi\2\) over 54 days of installation and removal. The daily ensonified
area that resulted from this analysis (4.98 km\2\) was carried forward
into the take estimates as the daily ensonified area.
In the same approach as was undertaken by the temporary cofferdams,
the greatest ensonified area was intersected with the density grid
cells for each individual species to select all of those grid cells
that the ensonified area intersects to estimate the marine mammal
density relevant to the temporary goal posts. Maximum monthly densities
(i.e., the maximum density found in each grid cell) were averaged by
season. Since the timing of landfall construction activities may vary
somewhat from the prepared schedule, the highest average seasonal
density from May through October (Dominion Energy's planned
construction period for temporary goal posts) for each species was
selected and used to estimate exposures from temporary goal post
installation. For some species where little density information is
available (i.e., pilot whale spp, pantropical spotted dolphins), the
annual density was used instead. Given overlap with the pinniped
density models as the Roberts et al. (2023) dataset does not
distinguish between some species, a collective ``pinniped'' density was
used for both harbor and gray seal species and later split for the take
estimates and request (Roberts et al., 2016). This approach was the
same as described in the temporary cofferdams. Furthermore, given the
densities are the same as what was calculated for temporary cofferdams,
we refer the reader back to Table 13 above.
To calculate exposures, the highest average seasonal marine mammal
densities from Table 16 were multiplied by the daily ensonified area
(4.98 km\2\) for installation and removal of steel pipe piles for
temporary goal posts. Given that use of the impact hammer during goal
post installation may occur at a rate of 2 pipe piles per day for a
total of 54 days (based on 108 total steel pipe piles), the daily
estimated take was multiplied by 54 to produce the results shown in
Table 16. 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 work. Again, as previously noted, no take was
calculated for the removal of goal posts due to the equipment planned
for use.
The take estimates for Level B harassment related to temporary goal
post installation were then adjusted, for some species, based on group
size characteristics known through the scientific literature and
received sighting reports from previous projects and/or surveys. These
group size estimates for temporary goal post installation are described
below and were incorporated into the estimated take to yield the
requested and authorized take estimate:
Atlantic spotted dolphin: Adjusted based on 1 group size
per day (20 per Dominion Energy, 2020; Jefferson et al., 2015);
Bottlenose dolphin (Southern Migratory Coastal Stock):
Adjusted based on 1 group size per day (15 per Jefferson et al., 2015);
and
Short-beaked common dolphin: Adjusted based on 1 group
size per day (20 per Dominion Energy, 2021).
Take by Level B harassment is authorized as a precaution assuming 2
years of foundation installation, for Clymene dolphins, false killer
whales, melon-headed whales, and pygmy sperm whales. Given the
nearshore nature of cable landfall activities, no additional take (and
therefore, no group size adjustments) has been authorized for temporary
goal post installation and removal activities.
Additionally, beyond group size adjustments, some slight
modifications were performed for some species, including harbor seals,
gray seals, short- and long-finned pilot whales, and bottlenose
dolphins. More specifically, the takes requested were accrued based on
a 50/50 split for both pinniped species, as the Roberts et al. (2023)
data does not differentiate the density by specific pinniped species.
The density for pilot whales represents a single group (Globicephala
spp.) and is not species-specific. Due to the occurrence of both short-
finned and long-finned pilot whales in this area, the requested take
was allocated to a collective group, although short-finned pilot whales
are commonly seen in southern waters. Bottlenose dolphin stocks were
split by the 20-m isobath cutoff, and then allocated specifically to
the coastal stock of bottlenose dolphins (migratory southern coastal)
due to the nearshore nature of these activities. Lastly, due to the
size of the Level B harassment isopleth (1,450 m), Dominion Energy has
planned a 1,500 m (1,640.4 ft) shutdown zone to exceed this distance.
However, given the proximity to land, large whales are not anticipated
to occur this close to nearshore activities. Because of the required
mitigation zone and the nearshore location of the temporary goal posts,
as well as the calculated exposures, which were less than 0.5, Dominion
Energy has not requested, and NMFS has not authorized, takes for large
whales (i.e., mysticetes and sperm whales).
Below we present the estimated take and maximum amount of take
authorized during temporary goal post installation during the 5-year
effective period for the CVOW-C Project (Table 16). Take by Level A
harassment was not requested by Dominion Energy, and it is not expected
or authorized by NMFS. These authorized take estimates take into
account 54 days total for temporary goal post activities, including
installation and removal, at a rate of 2 steel pipe piles installed per
day over 130 minutes.
Table 16--Density-Based Exposures and Authorized Take by Level B Harassment From Impact Pile Driving Associated
With Temporary Goal Post Installation
----------------------------------------------------------------------------------------------------------------
Density-based Authorized
Marine mammal species Stock exposures take
----------------------------------------------------------------------------------------------------------------
Level B harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *................. Western North Atlantic.......... 0.065 0
Fin whale *.................................. Western North Atlantic.......... 0.110 0
Humpback whale............................... Gulf of Maine................... 0.145 0
Minke whale.................................. Canadian East Coast............. 0.333 0
Sei whale *.................................. Nova Scotia..................... 0.040 0
Sperm whale *................................ North Atlantic.................. 0.003 0
[[Page 4413]]
Pygmy sperm whale............................ Western North Atlantic.......... \d\ n/a \d\ n/a
Atlantic spotted dolphin..................... Western North Atlantic.......... 6.373 360
Atlantic white-sided dolphin \c\............. Western North Atlantic.......... 0.874 1
Bottlenose dolphin........................... Southern Migratory Coastal...... 45.862 270
Western North Atlantic, Offshore \a\ n/a \a\ n/a
Clymene dolphin.............................. Western North Atlantic.......... \d\ n/a \d\ n/a
Common dolphin............................... Western North Atlantic.......... 4.862 360
False killer whale........................... Western North Atlantic.......... \d\ n/a \d\ n/a
Melon-headed whale........................... Western North Atlantic.......... \d\ n/a \d\ n/a
Pilot whale spp.............................. Western North Atlantic.......... 0.175 0
Pantropical spotted dolphin.................. Western North Atlantic.......... 0.019 0
Risso's dolphin.............................. Western North Atlantic.......... 0.081 0
Harbor porpoise.............................. Western North Atlantic.......... 1.178 1
Gray seal \b\................................ Western North Atlantic.......... 2.387 2
Harbor seal \b\.............................. Western North Atlantic.......... 2.387 2
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Given temporary goal post installation would be confined to an area below the 20-m isobath, all of the
estimated take has been allocated to the coastal stock.
\b\ The take request for pinnipeds was allocated to an even 50 percent split to each harbor seal and gray seal.
\c\ Atlantic white-sided dolphins are not expected, but due to shifts in habitat use, have been included in the
take request based on a standard group size annually. We note that animat/exposure modeling was not done for
this species.
\d\ Given take by Level B harassment was precautionarily authorized during two years of foundation installation
for these species, no take has been calculated for cable landfall construction activities.
We note that these would be the maximum number of animals that may
be harassed during impact pile driving for nearshore temporary goal
posts as the analysis conservatively assumes each exposure is a
different animal. This is unlikely to be the case for all species shown
here but is the most comprehensive assessment of the level of impact
from this activity.
HRG Surveys
Dominion Energy's HRG survey activities include the use of
impulsive (i.e., boomers and sparkers) and non-impulsive (i.e.,
Compressed High Intensity Radiated Pulse (CHIRP) Sub-bottom Profilers
(SBP)) sources (see Table 4 in the proposed rule (88 FR 28656, May 4,
2023) for a representative list of the acoustic sources and their
operational parameters). Authorized takes are by Level B harassment
only, in the form of disruption of behavioral patterns for individual
marine mammals resulting from exposure to noise from certain HRG
acoustic sources. Based primarily on the characteristics of the signals
produced by the acoustic sources planned for use, Level A harassment is
neither anticipated, even absent mitigation, nor authorized.
Consideration of the anticipated effectiveness of the mitigation
measures (i.e., pre-start clearance and shutdown measures), discussed
in detail below in the Mitigation section, further strengthens the
conclusion that Level A harassment is not a reasonably expected outcome
of the survey activity. Therefore, the potential for Level A harassment
is not evaluated further in this document. Dominion Energy did not
request, and NMFS is not authorizing, take by Level A harassment
incidental to HRG surveys. Please see Dominion Energy's application for
the CVOW-C Project for details of a quantitative exposure analysis
(i.e., calculated distances to Level A harassment isopleths and Level A
harassment exposures). No serious injury or mortality is anticipated to
result from HRG survey activities.
Specific to HRG surveys, in order to better consider the narrower
and directional beams of the sources, NMFS has developed a tool for
determining the sound pressure level (SPLrms) at the 160-dB
isopleth for the purposes of estimating the extent of Level B
harassment isopleths associated with HRG survey equipment (NMFS, 2020).
This methodology incorporates frequency-dependent absorption and some
directionality to refine estimated ensonified zones. Tetra Tech used
NMFS' methodology with additional modifications to incorporate a
seawater absorption formula and account for energy emitted outside of
the primary beam of the source. For sources that operate with different
beamwidths, the maximum beam width was used, and the lowest frequency
of the source was used when calculating the frequency-dependent
absorption coefficient (see Table 4 in the proposed rule (88 FR 28656,
May 4, 2023)).
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described above to estimate ranges to the Level A harassment and
Level B harassment isopleths. In cases when the source level for a
specific type of HRG equipment is not provided in Crocker and
Fratantonio (2016), NMFS recommends that either the source levels
provided by the manufacturer be used, or, in instances where source
levels provided by the manufacturer are unavailable or unreliable, a
proxy from Crocker and Fratantonio (2016) be used instead. Tetra Tech
utilized the following criteria for selecting the appropriate inputs
into the NMFS User Spreadsheet Tool (NMFS, 2018):
(1) For equipment that was measured in Crocker and Fratantonio
(2016), the reported source level for the most likely operational
parameters was selected.
(2) For equipment not measured in Crocker and Fratantonio (2016),
the best available manufacturer specifications were selected. Use of
manufacturer
[[Page 4414]]
specifications represent the absolute maximum output of any source and
do not adequately represent the operational source. Therefore, they
should be considered an overestimate of the sound propagation range for
that equipment.
(3) For equipment that was not measured in Crocker and Fratantonio
(2016) and did not have sufficient manufacturer information, the
closest proxy source measured in Crocker and Fratantonio (2016) was
used.
The Geo Marine sparker measurements and specifications were
provided by the manufacturer. Crocker and Fratantonio (2016) provide S-
Boom measurements using two different power sources (CSP-D700 and CSP-
N). The CSP-D700 power source was used in the 700 joules (J)
measurements but not in the 1,000 J measurements. The CSP-N source was
measured for both 700 J and 1,000 J operations but resulted in a lower
source level; therefore, the single maximum source level value was used
for both operational levels of the S-Boom.
Table 17 identifies all the representative survey equipment that
operates below 180 kHz (i.e., at frequencies that are audible and have
the potential to disturb marine mammals) that may be used in support of
planned survey activities and are likely to be detected by marine
mammals given the source level, frequency, and beamwidth of the
equipment. This table also provides all operating parameters used to
calculate the distances to threshold for marine mammals.
Table 17--Summary of Representative HRG Survey Equipment With Operating Parameters To Calculate Harassment
Distances for Marine Mammals
----------------------------------------------------------------------------------------------------------------
Source level
Operating (SLRMS) (dB re
Equipment classification Survey equipment frequency 1[mu]Pa)
(kHz)
----------------------------------------------------------------------------------------------------------------
Multibeam Echosounder......................... R2Sonics 2026................... 170-450 191
Synthetic Aperture Sonar, combined bathymetric/ Kraken Aquapix \a\.............. 337 N/A
sidescan.
Sidescan Sonar................................ Edgetech 4200 dual frequency \a\ 300 and 600 N/A
Parametric SBP................................ Innomar SES-2000 Medium 100..... 2-22 241
Non-Parametric SBP............................ Edgetech 216 CHIRP.............. 2-16 193
Edgetech 512 CHIRP.............. 0.5-12 177
Medium Penetration SBP........................ Geo Marine Dual 400 Sparker 800 0.25-4 200
J \b\.
Applied Acoustics S-Boom (Triple 0.5-3.5 203
Plate Boomer 1000 J).
----------------------------------------------------------------------------------------------------------------
Note: dB re 1 [micro]Pa m--decibels referenced to 1 MicroPascal at 1 meter; kHz--kilohertz.
\a\ Operating frequencies are above marine mammal hearing thresholds.
\b\ Source levels for the GeoMarine Dual 400 Sparker (800 J) were provided by the manufacturer for the stacked
400 tip configuration.
Results of modeling using the methodology described above indicated
that, of the HRG equipment planned for use by Dominion Energy that has
the potential to result in Level B harassment of marine mammals, sound
produced by the GeoMarine Dual 400 sparker would propagate furthest to
the Level B harassment isopleth (100 m (328 ft); Table 17). For the
purposes of take estimation, it was conservatively assumed that sparker
would be the dominant acoustic source for all survey days (although,
again, this may not always be the case). Thus, the range to the
isopleth corresponding to the threshold for Level B harassment and the
boomer and sparkers (100 m) were used as the basis of take calculations
for all marine mammals. This is a conservative approach, as the actual
sources used on individual survey days, or during a portion of a survey
day, may produce smaller distances to the Level B harassment isopleth.
Table 18--Summary of Representative HRG Survey Equipment Distances to the Level B Harassment Threshold
----------------------------------------------------------------------------------------------------------------
Distance (m) to Level B
Equipment classification Survey equipment harassment threshold
----------------------------------------------------------------------------------------------------------------
Multibeam Echosounder........................... R2Sonics 2026..................... 0.3
Synthetic Aperture Sonar, combined bathymetric/ Kraken Aquapix \a\................ N/A
sidescan.
Sidescan Sonar.................................. Edgetech 4200 dual frequency \a\.. N/A
Parametric SBP.................................. Innomar SES-2000 Medium 100....... 0.7
Non-Parametric SBP.............................. Edgetech 216 CHIRP................ 10.2
Edgetech 512 CHIRP................ 2.4
Medium Penetration SBP.......................... Geo Marine Dual 400 Sparker 800 J. 100.0
Applied Acoustics S-Boom (Triple 21.9
Plate Boomer 1000 J).
----------------------------------------------------------------------------------------------------------------
Note: dB re 1 [micro]Pa m--decibels referenced to 1 MicroPascal at 1 meter; kHz--kilohertz.
\a\ Operating frequencies are above marine mammal hearing thresholds.
To estimate densities for the HRG surveys occurring both within the
Lease Area and within the Export Cable Routes for the CVOW-C Project
based on the Roberts et al. (2023) dataset the relevant density models
using GIS (ESRI, 2017) were overlaid to the CVOW-C Project Area. The
boundary of the CVOW-C HRG Project Area corresponds to the Lease Area
and Export Cable Routes, for which the area was not increased due to an
additional
[[Page 4415]]
perimeter, as was done for foundation installation. For each survey
segment, the average densities (i.e., the average density of each grid
cell) were averaged by season over the survey duration (spring, summer,
fall, and winter) for the entire HRG survey area. The average seasonal
density within the HRG survey area was then selected for inclusion into
the take calculations. Refer to Table 20 for the densities used for HRG
surveys.
As previously stated, of the HRG equipment planned for use by
Dominion Energy that has the potential to result in Level B harassment
of marine mammals, sound produced by the GeoMarine Dual 400 sparker
would propagate furthest to the Level B harassment isopleth (100 m).
This maximum range to the Level B harassment threshold and the
estimated trackline distance traveled per day by a given survey vessel
(i.e., 58 km (36 mi); Table 19), assuming a travel speed of 1.3 kn
(1.49 miles per hour), were then used to calculate the daily ensonified
area, or zone of influence (ZOI) around the survey vessel.
Table 19--Survey Durations and Daily/Annual Trackline Distances Planned To Occur During the CVOW-C Project
----------------------------------------------------------------------------------------------------------------
Number of Estimated
Survey year Survey segment active survey distances per Annual line
vessel days day (km) kilometers
----------------------------------------------------------------------------------------------------------------
2024................................. Pre-lay surveys......... 65 58 3,770
2025................................. As-built surveys and pre- 249 14,442
lay surveys.
2026................................. As-built surveys........ 58 3,364
2027................................. Post-construction 368 21,344
surveys.
2028................................. Post-construction 368 21,344
surveys.
----------------------------------------------------------------------------------------------------------------
The ZOI is a representation of the maximum extent of the ensonified
area around a HRG sound source over a 24-hr period. The ZOI for each
piece of equipment operating at or below 180 kHz was calculated per the
following formula:
Mobile Source ZOI = (Distance/day x 2r) + pi x r2
Where:
Distance/day is the maximum distance a survey vessel could travel in
a 24-hour period; and
r is the linear distance from the source to the harassment
threshold.
The largest daily ZOI (111.6 km\2\ (4.48 mi\2\)), associated with
the use of the sparker, was applied to all planned survey days.
As previously described, this assumes a total length of surveys
that will occur within the CVOW-C Project Area as 64,264 km\2\
(24,812.5 mi\2\). As Dominion Energy is not sure of the exact
geographic locations of the survey effort, these values cannot
discreetly be broken up between the Lease Area and the Export Cable
Routes. However, the values presented in Table 19 provide a
comprehensive accounting of the total annual survey effort anticipated
to occur.
For HRG surveys, density data from Roberts et al. (2023) were
mapped within the boundary of the CVOW-C Project Area using GIS
software (ESRI, 2017). The boundary of the CVOW-C HRG Project Area
corresponds to the Lease Area and Export Cable Routes, for which the
area was not increased due to an additional perimeter, as was done for
foundation installation. For each survey segment, the average densities
(i.e., the average density of each grid cell) were averaged by season
over the survey duration (spring, summer, fall, and winter) for the
entire HRG survey area. The average seasonal density within the HRG
survey area was then selected for inclusion into the take calculations.
The potential Level B density-based harassment exposures are estimated
by multiplying the average seasonal density of each species within the
survey area by the daily ZOI. That product was then multiplied by the
number of planned survey days in each sector during the approximately
5-year construction timeframe (refer back to Table 19) and the product
was rounded to the nearest whole number. As described above, this is a
reasonable, but conservative estimate as it assumes the HRG source that
results in the greatest isopleth distance to the Level B harassment
threshold would be operated at all times during the entire survey,
which may not ultimately occur. These density values are found in Table
20.
Table 20--Highest Average Seasonal Marine Mammal Densities for HRG Survey Activities
----------------------------------------------------------------------------------------------------------------
Highest average
Marine mammal species Stock seasonal density
(individual/100 km\2\)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *................... Western North Atlantic................ 0.095
Fin whale *.................................... Western North Atlantic................ 0.080
Humpback whale................................. Gulf of Maine......................... 0.103
Minke whale.................................... Canadian East Coast................... 0.344
Sei whale *.................................... Nova Scotia........................... 0.038
Sperm whale *.................................. North Atlantic........................ 0.002
Pygmy sperm whale.............................. Western North Atlantic................ \a\ n/a
Atlantic spotted dolphin....................... Western North Atlantic................ 4.649
Atlantic white-sided dolphin................... Western North Atlantic................ 0.678
Bottlenose dolphin............................. Combined Southern Migratory Coastal, 24.157
Western North Atlantic Offshore.
Clymene dolphin................................ Western North Atlantic................ \a\ n/a
Common dolphin................................. Western North Atlantic................ 6.599
False killer whale............................. Western North Atlantic................ \a\ n/a
Melon-headed whale............................. Western North Atlantic................ \a\ n/a
Pilot whale spp................................ Western North Atlantic................ 0.065
Pantropical spotted dolphin.................... Western North Atlantic................ 0.007
[[Page 4416]]
Risso's dolphin................................ Western North Atlantic................ 0.057
Harbor porpoise................................ Western North Atlantic................ 1.477
Gray seal...................................... Western North Atlantic................ 5.402
Harbor seal.................................... Western North Atlantic................ 5.402
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ This species was incorporated after the animat analysis was completed so no take was estimated. Instead, a
standard group size of animals was used instead for any analysis pertaining to this species.
For most species or species groups, monthly densities are
available, though in some cases insufficient data are available or we
are unable to differentiate species groups by individual genus (e.g.,
gray and harbor seals). In these situations, additional adjustments are
necessary and are described here. For pinnipeds, the density values
derived from the Roberts et al. (2023) data were considered unrealistic
given a reduced occurrence near the CVOW-C Project Area in the summer
(Hayes et al., 2021). Based on information found in Hayes et al.
(2021), a conservative density estimate of 0.00001 animals/km\2\ was
used to represent the summer density of both pinniped species within
the modeled CVOW-C Project Area and Lease Area plus the 8.9 km
perimeter. Any take by Level B harassment derived from these densities
would be further split by an even percentage (50/50) for each species.
For bottlenose dolphins, due to specific environmental characteristics
that were used to partition the Southern Migratory Coastal and Western
North Atlantic Offshore stocks, both the coastal and the offshore
stocks were divided based on the location of the 20-m isobath.
Information by Hayes et al. (2021) indicates a boundary between the two
stocks at the 20-m isobath located north of Cape Hatteras, North
Carolina. Therefore, all bottlenose dolphins whose grid cells were less
than the 20-m isobath in the CVOW-C modeling area or within the 8.9 km
of the Lease Area were allocated to the Southern Migratory Coastal
stock. All density grid cells greater than the 20-m isobath from the
CVOW-C modeling area or within the 8.9 km of the Lease Area were
allocated to the offshore stock. The number of marine mammals expected
to be incidentally taken per day is then calculated by estimating the
number of each species predicted to occur within the daily ensonified
area (animals/km\2\), incorporating the maximum seasonal estimated
marine mammal densities as described above. Estimated numbers of each
species taken per day across all survey sites are then multiplied by
the total number of survey days annually. The product is then rounded,
to generate an estimate of the total number of instances of harassment
expected for each species over the duration of the survey. A summary of
this method is illustrated in the following formula:
Estimated Take = D x ZOI x # of days
Where:
D is the average seasonal density for each species; and
ZOI is the maximum daily ensonified area to the harassment
threshold.
The take estimates were then adjusted, for some species, based on
group size and sighting reports from previous projects and/or surveys.
These group size estimates for HRG surveys are described below and were
incorporated into the estimated take to yield the requested and
authorized take estimate:
Atlantic white-sided dolphin: Adjusted based on 1 group
size per year (15 per Reeves et al., 2002);
Risso's dolphin: Adjusted based on 1 group size per year
(25 per Dominion Energy, 2021; Jefferson et al., 2015);
Bottlenose dolphin (Combined Southern Migratory Coastal,
Western North Atlantic Offshore): Adjusted based on 1 group size per
day (15 per Jefferson et al., 2015);
Pantropical spotted dolphins: Adjusted based on 1 group
size per day (20 individuals);
Common dolphins: Adjusted based on 1 group size per day
(20 individuals);
Common dolphins: Adjusted based on 1 group size per year
(20 individuals); and
Pilot whale spp.: Adjusted based on 1 group size per year
(20 individuals).
Given the very small zone sizes associated with HRG surveys and the
lower density/occurrence of these species, no take in addition to that
already authorized for foundation installation (which has much larger
acoustic ranges) has been authorized for the following species: false
killer whales, melon-headed whales, Clymene dolphins, and pygmy sperm
whales. Similar to other activities, the density-based exposure
estimates were adjusted due to the manner in which density data is
presented in the Duke models for harbor seals, gray seals, short- and
long-finned pilot whales, and bottlenose dolphins. More specifically,
the takes requested were split 50/50 for both pinniped species, as the
Roberts et al. (2023) data does not differentiate the density by
specific pinniped species. The density for pilot whales represents a
single group (Globicephala spp.) and is not species-specific. Due to
the occurrence of both short-finned and long-finned pilot whales in
this area, the requested take was allocated to a collective group,
although short-finned pilot whales are commonly seen in southern
waters. Due to a reduced spatial resolution at the current state of the
survey planning, bottlenose dolphin stocks were combined into a single
group for both the coastal stock of bottlenose dolphins (Migratory
Southern Coastal) and the offshore stock (Western North Atlantic
Offshore).
Below we present the maximum amount of take authorized during HRG
surveys occurring during the 5-year effective period for the CVOW-C
Project (Table 21). Take by Level A harassment was not requested by
Dominion Energy, and it is neither expected nor authorized by NMFS. We
note that these would be the maximum number of animals that may be
harassed during HRG surveys as the analysis conservatively assumes each
exposure is a different animal. This is unlikely to be the case for all
species shown here but is the most comprehensive assessment of the
level of impact from this activity.
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BILLING CODE 3510-22-C
Total Authorized Takes Across All Specified Activities
The number of Level A harassment and Level B harassment takes
authorized during WTG and OSS foundation installation, cable landfall
construction, and HRG surveys are presented in Table 22. The mitigation
and monitoring measures provided in the Mitigation and Monitoring and
Reporting sections are activity-specific and are designed to minimize,
to the extent practicable, acoustic exposures to marine mammal species.
The take numbers NMFS is authorizing (Tables 22 and 23) are
considered the maximum number that could occur for the following key
reasons:
The authorized take accounts for 183 pile driving events
when only 176 foundations may be installed. It could be that no piles
will require the need to be re-driven.
The amount of Level A harassment authorized considered the
maximum of up to two monopiles per day being installed and used
acoustic ranges that do not account for animal movement.
The number of authorized takes by Level A harassment does
not account for the likelihood that marine mammals will avoid a
stimulus when possible before the individual accumulates enough
acoustic energy to potentially cause auditory injury.
All take estimates assumed all piles are installed in the
month with the highest average seasonal and/or annual densities for
each marine mammal species and/or stock based on the construction
schedule.
Dominion Energy assumed the maximum number of temporary
cofferdams (up to 9) and goal posts (up to 108) would be installed
when, during construction, fewer piles may be installed and, in the
case of cofferdams, may not be installed at all (Dominion Energy may
use a gravity-cell structure in lieu of cofferdams which would not
generate noise levels that would result in marine mammal harassment).
The number of authorized takes by Level B harassment does
not account for the effectiveness of the required mitigation and
monitoring measures for any species, with the exception of spatio-
temporal restrictions on pile driving (i.e., no foundation pile driving
from November 1st through April 30th, annually and no foundation pile
driving may start during nighttime), and the required use of a noise
attenuation device (at least a double bubble curtain; 10 dB of sound
attenuation).
The Year 1 authorized take includes HRG surveys, vibratory and
impact installation of WTG and OSS foundations, the impact installation
and removal of temporary goal posts, and the vibratory installation and
removal of temporary cofferdams. Year 2 includes HRG surveys and the
vibratory and impact installation of WTG and OSS foundations. Years 3,
4, and 5 each include HRG surveys only. Dominion Energy has noted that
Year 3 and Year 4 may include some installation of foundation piles for
WTGs if they fall behind their construction schedule. However, if this
occurs, this would just reduce the number of WTGs installed in Year 2.
Exact durations for HRG surveys in each construction are not given
although estimates are provided above and are repeated here: 65 days in
2024, 249 days in 2025, 58 days in 2026, and 368 days in each of 2027
and 2028. These estimates are based on the effort of two concurrently
operating survey vessels.
Table 22 shows the authorized take of each species for each year
based on the planned activities. Tables 23 and 24 show the total
authorized take over 5 years and the maximum take authorized in any one
year, respectively.
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In making the negligible impact determination, NMFS assesses both
the greatest number of authorized takes of each marine mammal species
or stocks that could occur within any one year, which in the case of
this rule is based on the predicted take in either Year 1 (2024) or
Year 2 (2025), and the total taking of each marine mammal species or
stock during the five-year effective period of the rule. In this
calculation, the maximum estimated number of Level A harassment takes
in any one year is summed with the maximum estimated number of Level B
harassment takes in any one year for each species to yield the highest
number of estimated takes that could occur in any year. We recognize
that certain activities could shift within the 5-year effective period
of the rule; however, the rule allows for that flexibility and the
takes are not expected to exceed those shown in Table 24 in any one
year.
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BILLING CODE 3510-22-C
Mitigation
As described in the Changes From the Proposed to Final Rule
section, we have made changes to some mitigation measures since the
proposed rule. These changes are described in detail in the sections
below and, otherwise, the mitigation requirements have not changed
since the proposed rule.
In order to promulgate a rulemaking under section 101(a)(5)(A) of
the MMPA, NMFS must set forth the permissible methods of taking
pursuant to the activity, and other means of effecting the least
practicable adverse impact on the species or stock and its habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance, and on the availability of the species or stock
for taking for certain subsistence uses (latter not applicable for this
action). NMFS' regulations require applicants for incidental take
authorizations to include information about the availability and
feasibility (economic and technological) of equipment, methods, and
manner of conducting the activity or other means of effecting the least
practicable adverse impact upon the affected species or stocks and
their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and,
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, personnel safety, practicality of implementation, and, in
the case of a military readiness activity, impact on the effectiveness
of the military readiness activity.
The mitigation strategies described below are consistent with those
required and successfully implemented under previous incidental take
authorizations issued in association with in-water construction
activities (e.g., soft-start, establishing shutdown zones). Additional
measures have also been incorporated to account for the fact that the
construction activities would occur offshore. Modeling was performed to
estimate harassment zones, which were used to inform mitigation
measures for the project's activities to minimize Level A harassment
and Level B harassment to the extent practicable, while providing
estimates of the areas within which harassment might occur.
Generally speaking, the mitigation measures considered and required
here fall into three categories: spatio-temporal (seasonal and daily)
work restrictions, real-time measures (shutdown, clearance, and vessel
strike avoidance), and noise attenuation/reduction measures. Spatio-
temporal restrictions, such as seasonal work restrictions, are designed
to avoid or minimize operations when marine mammals are concentrated or
engaged in behaviors that make them more susceptible or make impacts
more likely. Such restrictions reduce both the number and severity of
potential takes and are effective in reducing both chronic (longer-
term) and acute effects. Real-time measures, such as implementation of
shutdown and clearance zones, as well as vessel strike avoidance
measures, are intended to reduce the probability or severity of
harassment by taking steps in real time once a higher-risk scenario is
identified (e.g., once animals are detected within an impact zone).
Noise attenuation measures, such as bubble curtains, are intended to
reduce the noise at the source, which reduces both acute impacts, as
well as the contribution to aggregate and cumulative noise that may
result in longer-term chronic impacts.
Below, we briefly describe the required training, coordination, and
vessel strike avoidance measures that apply to all specified activities
and then we describe the measures that apply to specific specified
activities (i.e., foundation installation, nearshore installation and
removal activities for cable laying, and HRG surveys). Specific
requirements can be found in Section 217.294 (Mitigation requirements)
as found in Part 217--Regulations Governing The Taking And Importing Of
Marine Mammals at the end of this rulemaking.
Training and Coordination
NMFS requires all Dominion Energy employees and contractors
conducting activities on the water, including, but not limited to, all
vessel captains and crew are trained in marine mammal detection and
identification, communication protocols, and all required measures to
minimize impacts on marine mammals and support Dominion Energy's
compliance with the LOA, if issued. Additionally, all relevant
personnel and the marine mammal species monitoring team(s) are required
to participate in joint, onboard briefings prior to the beginning of
project activities. The briefing must be repeated whenever new relevant
personnel (e.g., new PSOs, construction contractors, relevant crew)
join the project before work commences. During this training, Dominion
Energy is required to instruct all project personnel regarding the
authority of the marine mammal monitoring team(s). For example, the HRG
acoustic equipment operator, pile driving personnel, etc., is required
to immediately comply with any call for a delay or shut down by the
Lead PSO. Any disagreement between the Lead PSO and the project
personnel must only be discussed after delay or shutdown has occurred.
In particular, all captains and vessel crew must be trained in marine
mammal detection and vessel strike avoidance measures to ensure marine
mammals are not struck by any project or project-related vessel.
Prior to the start of in-water construction activities, vessel
operators and crews would receive training about marine mammals and
other protected species known or with the potential to occur in the
Project Area, making observations in all weather conditions, and vessel
strike avoidance measures. In addition, training would include
information and resources available regarding applicable Federal laws
and regulations for protected species. Dominion Energy will provide
documentation of training to NMFS.
North Atlantic Right Whale Awareness Monitoring
Dominion Energy must use available sources of information on North
Atlantic right whale presence, including daily monitoring of the Right
Whale Sightings Advisory System, monitoring of U.S. Coast Guard very
high frequency (VHF) Channel 16 throughout each day to receive
notifications of any sightings, and information associated with any
regulatory management actions (e.g., establishment of a zone
identifying the need to reduce vessel speeds). Maintaining daily
awareness and coordination affords increased protection of North
Atlantic right whales by understanding North Atlantic right whale
presence in the area through ongoing visual and passive acoustic
monitoring efforts and opportunities (outside of Dominion Energy's
efforts),
[[Page 4431]]
and allows for planning of construction activities, when practicable,
to minimize potential impacts on North Atlantic right whales.
Vessel Strike Avoidance Measures
This final rule contains numerous vessel strike avoidance measures
that reduce the risk that a vessel and marine mammal could collide.
While the likelihood of a vessel strike is generally low, they are one
of the most common ways that marine mammals are seriously injured or
killed by human activities. Therefore, enhanced mitigation and
monitoring measures are required to avoid vessel strikes to the extent
practicable. While many of these measures are proactive intending to
avoid the heavy use of vessels during times when marine mammals of
particular concern may be in the area, several are reactive and occur
when a project personnel sights a marine mammal. The mitigation
requirements are described generally here and in detail in the
regulation text at the end of this final rule (see 50 CFR 217.294(b)).
Dominion Energy will be required to comply with these measures except
under circumstances when doing so would create an imminent and serious
threat to a person or vessel or to the extent that a vessel is unable
to maneuver and because of the inability to maneuver, the vessel cannot
comply.
While underway, Dominion Energy is required to monitor for and
maintain a minimum separation distance from marine mammals and operate
vessels in a manner that reduces the potential for vessel strike.
Regardless of the vessel's size, all vessel operators, crews, and
dedicated visual observers (i.e., PSO or trained crew member) must
maintain a vigilant watch for all marine mammals and slow down, stop
their vessel, or alter course (as appropriate) to avoid striking any
marine mammal. The dedicated visual observer, equipped with suitable
monitoring technology (e.g., binoculars, night vision devices), must be
located at an appropriate vantage point for ensuring vessels are
maintaining required vessel separation distances from marine mammals
(e.g., 500 m from North Atlantic right whales).
All project vessels, regardless of size, must maintain the
following minimum separation zones: 500 m from North Atlantic right
whales; 100 m from sperm whales and non-North Atlantic right whale
baleen whales; and 50 m from all delphinid cetaceans and pinnipeds (an
exception is made for those species that approach the vessel (i.e.,
bow-riding dolphins)). If any of these species are sighted within their
respective minimum separation zone, the underway vessel must shift its
engine to neutral and the engines must not be engaged until the
animal(s) has been observed to be outside of the vessel's path and
beyond the respective minimum separation zone. If a North Atlantic
right whale is observed at any distance by any project personnel or
acoustically detected, project vessels must reduce speeds to 10 kn
(11.5078 miles per hour (mph)). Additionally, in the event that any
project-related vessel, regardless of size, observes any large whale
(other than a North Atlantic right whale) within 500 m of an underway
vessel, the vessel is required to shift engines into neutral. The
vessel shall remain in neutral until the North Atlantic right whale has
moved beyond 500 m and the 10 kn speed restriction will remain in
effect as outlined in 50 CFR 217.294(b).
All of the project-related vessels are required to comply with
existing NMFS vessel speed restrictions for North Atlantic right whales
and the measures within this rulemaking for operating vessels around
North Atlantic right whales and other marine mammals. When NMFS vessel
speed restrictions are not in effect and a vessel is traveling at
greater than 10 kn, in addition to the required dedicated visual
observer, Dominion Energy is required to monitor the crew transfer
vessel transit corridor (the path crew transfer vessels take from port
to any work area) in real-time with PAM prior to and during transits.
To maintain awareness of North Atlantic right whale presence, vessel
operators, crew members, and the marine mammal monitoring team would
monitor U.S. Coast Guard VHF Channel 16, WhaleAlert, the Right Whale
Sighting Advisory System (RWSAS), and the PAM system. Any marine mammal
observed by project personnel must be immediately communicated to any
on-duty PSOs, PAM operator(s), and all vessel captains. Any North
Atlantic right whale or large whale observation or acoustic detection
by PSOs or PAM operators must be conveyed to all vessel captains.
All vessels would be equipped with an AIS and Dominion Energy must
report all MMSI numbers to NMFS Office of Protected Resources prior to
initiating in-water activities. Dominion Energy would submit a NMFS-
approved North Atlantic Right Whale Vessel Strike Avoidance Plan at
least 180 days prior to commencement of vessel use. Dominion Energy's
compliance with these measures will reduce the likelihood of vessel
strike to the extent practicable. These measures increase awareness of
marine mammals in the vicinity of project vessels and require project
vessels to reduce speed when marine mammals are detected (by PSOs, PAM,
and/or through another source, e.g., RWSAS) and maintain separation
distances when marine mammals are encountered. While visual monitoring
is useful, reducing vessel speed is one of the most effective, feasible
options available to reduce the likelihood of and effects from a vessel
strike. Numerous studies have indicated that slowing the speed of
vessels reduces the risk of lethal vessel collisions, particularly in
areas where right whales are abundant and vessel traffic is common and
otherwise traveling at high speeds (Vanderlaan and Taggart, 2007; Conn
and Silber, 2013; Van der Hoop et al., 2014; Martin et al., 2015; Crum
et al., 2019).
Seasonal and Daily Restrictions
Spatio-temporal work restrictions in places where marine mammals
are concentrated, engaged in biologically important behaviors, and/or
present in sensitive life stages are effective measures for reducing
the magnitude and severity of human impacts. Seasonal work restrictions
provide additional benefit for marine mammals during periods where
there could be higher occurrence or presence in the Project Area and
specified geographic area. Dominion Energy proposed, and NMFS is
requiring, seasonal work restrictions to minimize the risk of noise
exposure to North Atlantic right whales incidental to certain specified
activities to the extent practicable. These seasonal work restrictions
are expected to greatly reduce the number of takes of North Atlantic
right whales. These seasonal restrictions also afford protection to
other marine mammals that are known to use the Project Area with
greater frequency from November 1st through April 30th, including other
baleen whales.
As described previously, Dominion Energy proposed, and NMFS is
requiring, that no foundation pile driving activities occur November
1st through April 30th. Dominion Energy has planned to construct the
cofferdams and goal posts from May 1st through October 31st within the
first year of the effective period of the regulations and LOA. However,
NMFS is not requiring any seasonal restrictions due to the relatively
short duration of work and low associated impacts to marine mammals.
Although North Atlantic right whales do migrate in coastal waters, they
do not typically migrate very close to shore off of Virginia and/or
within Virginia nearshore environments where work would be
[[Page 4432]]
occurring. Given the distance to the Level B harassment isopleth is
conservatively modeled at approximately 3.1 km (vibratory pile driving
for cofferdams) and 1.5 km (impact pile driving of goal posts), any
exposure to pile driving during cofferdams and goal posts installation
would be at levels closer to the 120-dB Level B harassment threshold
and not at louder source levels. NMFS is not adding seasonal
restrictions to HRG surveys given the limited duration in which survey
effort would occur (i.e., 65 days in 2024; 249 days in 2025; 58 days in
2026; and 368 days in each of 2027 and 2028 (assuming each day an
individual vessel is operating constitutes a day of vessel effort)) and
the limited impacts expected from HRG surveys on marine mammals.
North Atlantic right whales may be present in and around the
Project Area throughout the year (e.g., Davis et al., 2017; Roberts et
al., 2023; Salisbury et al., 2015). However, it would not be
practicable to restrict foundation pile driving year-round. Based upon
the best scientific information available (Roberts et al., 2023), the
highest densities of North Atlantic right whales in the specified
geographic region are expected during the months of January through
April, with densities starting to increase in November and taper off in
May. To further ensure impacts to North Atlantic right whales are
minimized, Dominion Energy proposed, and NMFS is carrying forward in
this final rule, a requirement to not install foundations in November.
Specifically, during Dominion Energy's planned foundation pile driving
window, May represents the highest density period of North Atlantic
right whales, even though it is relatively low when compared to other
high-density months.
As described previously, no foundation pile driving activities may
occur November 1st through April 30th. Dominion Energy has planned to
construct the cofferdams and goal posts from May 1st through October
31st within the first year of the effective period of the regulations
and LOA. However, NMFS is not requiring any seasonal restrictions due
to the relatively short duration of work and low associated impacts to
marine mammals. Although North Atlantic right whales do migrate in
coastal waters, they do not typically migrate very close to shore off
of Virginia and/or within Virginia nearshore environments where work
would be occurring. Given the distance to the Level B harassment
isopleth is conservatively modeled at approximately 3.1 km (vibratory
pile driving for cofferdams) and 1.5 km (impact pile driving of goal
posts), any exposure to pile driving during cofferdams and goal posts
installation would be at levels closer to the 120-dB Level B harassment
threshold and not at louder source levels. NMFS is not adding seasonal
restrictions to HRG surveys; however, Dominion Energy would only
perform a predetermined amount of 24-hour survey effort for a specific
number of days within specific years (i.e., 65 days in 2024; 249 days
in 2025; 58 days in 2026; and 368 days in each of 2027 and 2028
(assuming each day an individual vessel is operating constitutes a day
of vessel effort)).
NMFS is also requiring spatio-temporal restrictions for some
activities. Within any 24-hour period, Dominion Energy would be limited
to installing a maximum of two monopile WTG foundations (one standard
and one hard-to-drive) or two pin piles for OSS jacket foundations,
although some days Dominion Energy would only install one monopile
foundation for WTGs. NMFS notes that Dominion Energy did not request to
initiate foundation pile driving during nighttime hours. Because of
this, Dominion Energy would only initiate foundation pile driving
(inclusive of both vibratory and impact) during daylight hours within
their specific pile driving window (i.e., May 1st through October
31st), defined as no earlier than 1 hour after civil sunrise and no
later than 1.5 hours before civil sunset. Because of this, no nighttime
pile driving (defined as pile driving beginning after defined nighttime
hours) is expected to occur during the effective period of the rule.
However, Dominion Energy may continue pile driving after dark if
installation of the same pile began during daylight hours (i.e., 1.5
hours before civil sunset). In either situation, Dominion Energy would
still need to adequately monitor all relevant zones to ensure the most
effective mitigative actions are being undertaken, in alignment with an
Alternative Monitoring Plan that would be submitted to NMFS for
approval prior to foundation pile driving beginning. This Plan would be
made public on NMFS' website upon approval. Subsequent monitoring
reports submitted by Dominion Energy will allow NMFS to continue to
evaluate the efficacy of the technologies and methodologies and to
initiate adaptive management approaches, if necessary. We also continue
to encourage Dominion Energy to further investigate and test advanced
technology detection systems.
Any and all vibratory pile driving associated with cofferdams and
goal posts installation and removal would only be able to occur during
daylight hours. Lastly, given the very small Level B harassment zone
associated with HRG survey activities and no anticipated or authorized
Level A harassment, NMFS is not requiring any daily restrictions for
HRG surveys.
More information on activity-specific seasonal and daily
restrictions can be found in the regulatory text at the end of this
rulemaking.
Noise Abatement Systems
Dominion Energy is required to employ NAS, also known as noise
attenuation systems, during all foundation installation (inclusive of
vibratory and impact pile driving) to reduce the sound pressure levels
that are transmitted through the water in an effort to reduce ranges to
acoustic thresholds and minimize, to the extent practicable, any
acoustic impacts resulting from these activities. Noise abatement
systems, such as bubble curtains, are used to decrease the sound levels
radiated from a source. Bubbles create a local impedance change that
acts as a barrier to sound transmission. The size of the bubbles
determines their effective frequency band, with larger bubbles needed
for lower frequencies. There are a variety of bubble curtain systems,
confined or unconfined bubbles, and some with encapsulated bubbles or
panels. Attenuation levels also vary by type of system, frequency band,
and location. Small bubble curtains have been measured to reduce sound
levels but effective attenuation is highly dependent on depth of water,
current, and configuration and operation of the curtain (Austin et al.,
2016; Koschinski and L[uuml]demann, 2013). Bubble curtains vary in
terms of the sizes of the bubbles and those with larger bubbles tend to
perform a bit better and more reliably, particularly when deployed with
two separate rings (Bellmann, 2014; Koschinski and L[uuml]demann, 2013;
Nehls et al., 2016). Encapsulated bubble systems (i.e., Hydro Sound
Dampers (HSDs)), can be effective within their targeted frequency
ranges (e.g., 100-800 Hz), and when used in conjunction with a bubble
curtain appear to create the greatest attenuation. The literature
presents a wide array of observed attenuation results for bubble
curtains. The variability in attenuation levels is the result of
variation in design as well as differences in site conditions and
difficulty in properly installing and operating in-water attenuation
devices.
The literature presents a wide array of observed attenuation
results for bubble curtains. The variability in attenuation levels is
the result of variation in design
[[Page 4433]]
as well as differences in site conditions and difficulty in properly
installing and operating in-water attenuation devices. D[auml]hne et
al. (2017) found that single bubble curtains that reduce sound levels
by 7 to 10 dB reduced the overall sound level by approximately 12 dB
when combined as a double bubble curtain for 6-m steel monopiles in the
North Sea. During installation of monopiles (consisting of
approximately 8-m in diameter) for more than 150 WTGs in comparable
water depths (>25 m) and conditions in Europe indicate that attenuation
of 10 dB is readily achieved (Bellmann, 2019; Bellmann et al., 2020)
using single big bubble curtains for noise attenuation. As a double
bubble curtain is required to be used (noting a single bubble curtain
is not allowed), Dominion Energy is required to maintain numerous
operational performance standards. These standards are defined in the
regulatory text at the end of this rulemaking, and include, but are not
limited to, construction contractors must train personnel in the proper
balancing of airflow to the bubble ring and Dominion Energy must submit
a performance test and maintenance report to NMFS within 72 hours
following the performance test. Corrections to the attenuation device
to meet regulatory requirements must occur prior to use during
foundation installation activities. In addition, a full maintenance
check (e.g., manually clearing holes) must occur prior to each pile
being installed. If Dominion Energy uses a noise mitigation device in
addition to a double bubble curtain, similar quality control measures
are required.
Dominion Energy is required to use at least a double bubble
curtain. Should the research and development phase of newer systems
demonstrate effectiveness, as part of adaptive management, Dominion
Energy may submit data on the effectiveness of these systems and
request approval from NMFS to use them during foundation installation
activities.
Dominion Energy is required to submit an SFV plan to NMFS for
approval at least 180 days prior to installing foundations. They are
also required to submit interim and final SFV data results to NMFS and
make corrections to the noise attenuation systems in the case that any
SFV measurements demonstrate noise levels are above those modeled,
assuming 10 dB. These frequent and immediate reports allow NMFS to
better understand the sound fields to which marine mammals are being
exposed and require immediate corrective action should they be
misaligned with anticipated noise levels within our analysis.
Noise abatement devices are not required during HRG surveys,
cofferdam (sheet pile) installation and removal, and goal post (pipe
pile) installation and removal. Regarding cofferdam sheet pile and goal
post pipe pile installation and removal, NAS is not practicable to
implement due to the physical nature of linear sheet piles and angled
pipe piles and here is a low risk for impacts to marine mammals due to
the short work duration and lower noise levels produced during the
activities. Regarding HRG surveys, NAS cannot practicably be employed
around a moving survey ship, but Dominion Energy is required to make
efforts to minimize source levels by using the lowest energy settings
on equipment that has the potential to result in harassment of marine
mammals (e.g., sparkers, CHIRPs, boomers) and turn off equipment when
not actively surveying. Overall, minimizing the amount and duration of
noise in the ocean from any of the project's activities through use of
all means required (e.g., noise abatement, turning off power) will
effect the least practicable adverse impact on marine mammals.
Clearance and Shutdown Zones
NMFS requires the establishment of both clearance and, where
technically feasible, shutdown zones during project activities that
have the potential to result in harassment of marine mammals. The
purpose of ``clearance'' of a particular zone is to minimize potential
instances of auditory injury and more severe behavioral disturbances by
delaying the commencement of an activity if marine mammals are near the
activity. The purpose of a shutdown is to prevent a specific acute
impact, such as auditory injury or severe behavioral disturbance of
sensitive species, by halting the activity.
All relevant clearance and shutdown zones during project activities
would be monitored by NMFS-approved PSOs and/or PAM operators (as
described in the regulatory text at the end of this rulemaking). At
least one PAM operator must review data from at least 24 hours prior to
any foundation installation and must actively monitor hydrophones for
60 minutes prior to commencement of these activities. Any sighting or
acoustic detection of a North Atlantic right whale triggers a delay to
commencing pile driving and shutdown.
Prior to the start of certain specified activities (foundation
installation, cofferdam install and removal, HRG surveys), Dominion
Energy must ensure designated areas (i.e., clearance zones; see Tables
25, 26, 27, 28, and 29) are clear of marine mammals prior to commencing
activities to minimize the potential for and degree of harassment. For
foundation installation, PSOs must visually monitor clearance zones for
marine mammals for a minimum of 60 minutes, where the zone must be
confirmed free of marine mammals at least 30 minutes directly prior to
commencing these activities. Clearance and shutdown zones have been
developed in consideration of modeled distances to relevant PTS
thresholds with respect to minimizing the potential for take by Level A
harassment. All required clearance and shutdown zones for large whales
are larger than the largest modeled acoustic range
(R95) distances to thresholds corresponding to Level
A harassment (SEL and peak). For foundation installation, the minimum
visibility zone would extend 2,000 m from the WTG monopile or OSS pin
piles. This is larger than the distance 1,750 m shutdown zone used
during the construction of the two CVOW Pilot Project turbines (then
called the ``exclusion zone''), given larger piles and higher hammer
energy planned for use, which creates a larger distance to the Level A
harassment threshold (see proposed rule for more information). Even
with the larger acoustic ranges produced from Tetra Tech's conservative
modeling for the CVOW-C project, the minimum visibility zone does not
differ greatly from those presented for other nearby projects which
calculated distances to thresholds in consideration of animal movement
(i.e., off of New Jersey for both the Ocean Wind 1 final rule--1.65 km
(1.03 mi) in the summer and 2.5 km (1.56 mi) in the winter (see 88 FR
62898, September 13, 2023) and the Atlantic Shores South proposed
rule--1.9 km (1.2 mi; see 88 FR 65430, September 22, 2023)).
For cofferdam and goal post pile driving and HRG surveys,
monitoring must be conducted for 30 minutes prior to initiating
activities and the clearance zones must be free of marine mammals
during that time.
For any other in-water construction heavy machinery activities
(e.g., trenching, cable laying, etc.), if a marine mammal is on a path
towards or comes within 10 m (32.8 ft) of equipment, Dominion Energy is
required to cease operations until the marine mammal has moved more
than 10 m on a path away from the activity to avoid direct interaction
with equipment.
Once an activity begins, any marine mammal entering their
respective shutdown zone would trigger the
[[Page 4434]]
activity to cease. In the case of pile driving, the shutdown
requirement may be waived if it is not practicable due to imminent risk
of injury or loss of life to an individual or risk of damage to a
vessel that creates risk of injury or loss of life for individuals, or
if the lead engineer determines there is pile refusal or pile
instability. In situations when shutdown is called for during
foundation pile driving but Dominion Energy determines shutdown is not
practicable due to aforementioned emergency reasons, reduced hammer
energy must be implemented when the lead engineer determines it is
practicable. Specifically, pile refusal or pile instability could
result in not being able to shut down pile driving immediately. Pile
refusal occurs when the pile driving sensors indicate the pile is
approaching refusal, and a shut-down would lead to a stuck pile which
then poses an imminent risk of injury or loss of life to an individual,
or risk of damage to a vessel that creates risk for individuals. Pile
instability occurs when the pile is unstable and unable to stay
standing if the piling vessel were to ``let go.'' During these periods
of instability, the lead engineer may determine a shut-down is not
feasible because the shut-down combined with impending weather
conditions may require the piling vessel to ``let go'' which then poses
an imminent risk of injury or loss of life to an individual, or risk of
damage to a vessel that creates risk for individuals. Dominion Energy
must document and report to NMFS all cases where the emergency
exemption is taken.
After shutdown, foundation pile driving may be reinitiated once all
clearance zones are clear of marine mammals for the minimum species-
specific periods, or, if required to maintain pile stability, at which
time the lowest hammer energy must be used to maintain stability. If
pile driving has been shut down due to the presence of a North Atlantic
right whale, pile driving must not restart until the North Atlantic
right whale has neither been visually nor acoustically detected for 30
minutes. Upon re-starting pile driving, soft-start protocols must be
followed if pile driving has ceased for 30 minutes or longer.
The clearance and shutdown zone sizes vary by species and are shown
in Tables 25 and 26, 27, 28, and 29 for each planned activity. Dominion
Energy is allowed to request modification to these zone sizes pending
results of sound field verification (see regulatory text at the end of
this rulemaking). Any changes to zone size would be part of adaptive
management and would require NMFS' approval.
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Table 27--Distances to Mitigation Zones During Nearshore Cable Landfall
Activities
[Temporary Cofferdams]
------------------------------------------------------------------------
Installation and removal of
temporary cofferdams
Marine mammals -----------------------------------
Clearance zone Shutdown zone
(m) (m)
------------------------------------------------------------------------
North Atlantic right whale--visual
detection.......................... Any distance
-----------------------------------
All other Mysticetes and sperm 1,000 1,000
whales.............................
Delphinids.......................... 250 100
Pilot whales........................ 1,000 1,000
Harbor porpoises.................... 250 100
Seals............................... 250 100
------------------------------------------------------------------------
Table 28--Distances to Mitigation Zones During Nearshore Cable Landfall
Activities
[Temporary goal posts]
------------------------------------------------------------------------
Installation and removal of
temporary goal posts
Marine mammals -----------------------------------
Clearance zone Shutdown zone
(m) (m)
------------------------------------------------------------------------
North Atlantic right whale--visual
detection.......................... Any distance
-----------------------------------
All other Mysticetes and sperm 1,000 1,000
whales.............................
Delphinids.......................... 250 100
Pilot whales........................ 1,000 1,000
Harbor porpoises.................... 750 100
Seals............................... 500 100
------------------------------------------------------------------------
Table 29--Distances to the Mitigation Zones During HRG Surveys
------------------------------------------------------------------------
HRG surveys
-----------------------------------
Marine mammals Clearance zone Shutdown zone
(m) (m)
------------------------------------------------------------------------
North Atlantic right whale--visual 500 500
detection..........................
Endangered species (excluding North 500 500
Atlantic right whales).............
All other marine mammals \a\........ 100 100
------------------------------------------------------------------------
\a\ Exceptions are noted for delphinids from genera Delphinus,
Lagenorhynchus, Stenella, Tursiops, and both seal species.
Soft-Start/Ramp-Up
The use of a soft-start or ramp-up procedure is believed to provide
additional protection to marine mammals by warning them or providing
them with a chance to leave the area prior to the hammer or HRG
equipment operating at full capacity. Soft-start typically involves
initiating hammer operation at a reduced energy level (relative to full
operating capacity) followed by a waiting period. Dominion Energy must
utilize a soft-start protocol for impact pile driving of foundation
piles (monopiles and pin piles). Typically, NMFS requires a soft-start
procedure of the applicant performing four to six strikes per minute at
10 to 20 percent of the maximum hammer energy, for a minimum of 20
minutes. NMFS notes that it is difficult to specify a reduction in
energy for any given hammer because of variation across drivers and
installation conditions. However, Dominion Energy's engineers have
expressed concern with this approach as it could potentially damage the
impact pile driving hammer. As such, specific soft start protocols
considering final design details, including site-specific soil
properties and other considerations, will be incorporated into the LOA,
if issued. Dominion Energy, with approval from NMFS, may also modify
the soft start procedures through adaptive management.
HRG survey operators are required to ramp-up sources when the
acoustic sources are used unless the equipment operates on a binary on/
off switch. The ramp-up would involve starting from the smallest
setting to the operating level over a period of approximately 30
minutes. No soft-start or ramp-up is required for nearshore cable
landfall activities given the type of activity (i.e., vibratory pile
driving for cofferdams) and the short duration of the activity (i.e.,
impact pile driving of goal posts).
Where required, soft-start and ramp-up will be required at the
beginning of each day's activity and at any time following a cessation
of activity of 30 minutes or longer. Prior to soft-start or ramp-up
beginning, the operator must receive confirmation from the PSO that the
clearance zone is clear of any marine mammals.
Fishery Monitoring Surveys
While the likelihood of Dominion Energy's fishery monitoring
surveys impacting marine mammals is minimal, NMFS requires Dominion
Energy to adhere to gear and vessel mitigation measures to reduce
potential impacts to the extent practicable. In addition, all crew
undertaking the fishery monitoring survey activities are required to
receive protected species identification training prior to activities
occurring and attend
[[Page 4440]]
the aforementioned onboarding training. The specific requirements that
NMFS has set for the fishery monitoring surveys can be found in the
regulatory text at the end of this rulemaking.
Based on our evaluation of the mitigation measures, as well as
other measures considered by NMFS, NMFS has determined that these
measures will provide the means of affecting 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.
Monitoring and Reporting
As noted in the Changes From the Proposed to Final Rule section, we
have added, modified, or clarified a number of monitoring and reporting
measures since the proposed rule. These changes are described in detail
in the sections below and, otherwise, the marine mammal monitoring and
reporting requirements have not changed since the proposed rule.
In order to promulgate a rulemaking for an activity, section
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements
pertaining to the monitoring and reporting of such taking. The MMPA
implementing regulations at 50 CFR 216.104(a)(13) indicate that
requests for authorizations must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the action area. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and/or
Mitigation and monitoring effectiveness.
Separately, monitoring is also regularly used to support mitigation
implementation, which is referred to as mitigation monitoring, and
monitoring plans typically include measures that both support
mitigation implementation and increase our understanding of the impacts
of the activity on marine mammals.
During the planned activities, visual monitoring by NMFS-approved
PSOs would be conducted before, during, and after all impact pile
driving, vibratory pile driving, and HRG surveys. PAM would also be
conducted during foundation pile driving. Visual observations and
acoustic detections would be used to support the activity-specific
mitigation measures (e.g., clearance zones). To increase understanding
of the impacts of the activity on marine mammals, PSOs must record all
incidents of marine mammal occurrence at any distance from the
foundation piling locations and near the HRG acoustic sources. PSOs
would document all behaviors and behavioral changes, in concert with
distance from an acoustic source. The required monitoring is described
below, beginning with PSO measures that are applicable to all the
aforementioned activities, followed by activity-specific monitoring
requirements.
Protected Species Observer (PSO) and Passive Acoustic Monitoring (PAM)
Operator Requirements
Dominion Energy is required to employ NMFS-approved PSOs and PAM
operators. PSOs are trained professionals who are tasked with visual
monitoring for marine mammals during pile driving and HRG surveys. The
primary purpose of a PSO is to carry out the monitoring, collect data,
and, when appropriate, call for the implementation of mitigation
measures. In addition to visual observations, NMFS requires Dominion
Energy to conduct PAM by PAM operators during foundation pile driving
and vessel transit. The inclusion of PAM, which would be conducted by
NMFS-approved PAM operators, following a standardized measurement,
processing methods, reporting metrics, and metadata standards for
offshore wind, alongside visual data collection is valuable to provide
the most accurate record of species presence as possible and, together,
these two monitoring methods are well understood to provide best
results when combined (e.g., Barlow and Taylor, 2005; Clark et al.,
2010; Gerrodette et al., 2011; Van Parijs et al., 2021). Acoustic
monitoring (in addition to visual monitoring) increases the likelihood
of detecting marine mammals within the shutdown and clearance zones of
project activities, which when applied in combination with required
shutdowns helps to further reduce the risk of marine mammals being
exposed to sound levels that could otherwise result in acoustic injury
or more intense behavioral harassment.
The exact configuration and number of PAM systems depends on the
size of the zone(s) being monitored, the amount of noise expected in
the area, and the characteristics of the signals being monitored. More
closely spaced hydrophones would allow for more directionality, and
perhaps, range to the vocalizing marine mammals; although, this
approach would add additional costs and greater levels of complexity to
the project. Larger baleen cetacean species (i.e., mysticetes), which
produce loud and lower-frequency vocalizations, may be able to be heard
with fewer hydrophones spaced at greater distances. However, smaller
cetaceans (such as mid-frequency delphinids (odontocetes)) may
necessitate more hydrophones and to be spaced closer together given the
shorter range of the shorter, mid-frequency acoustic signals (e.g.,
whistles and echolocation clicks). As there are no ``perfect fit''
single-optimal-array configurations, these set-ups would need to be
considered on a case-by-case basis.
NMFS does not formally administer any PSO or PAM operator training
program or endorse specific providers, but will approve PSOs and PAM
operators that have successfully completed courses that meet the
curriculum and trainer requirements referenced below and further
specified in the regulatory text at the end of this rulemaking.
NMFS will provide PSO and PAM operator approvals in the context of
the need to ensure that PSOs and PAM operators have the necessary
training and/or experience to carry out their duties competently. In
order for PSOs
[[Page 4441]]
and PAM operators to be approved, NMFS must review and approve PSO and
PAM operator resumes indicating successful completion of an acceptable
training course. PSOs and PAM operators must have previous experience
observing marine mammals and must have the ability to work with all
required and relevant software and equipment. NMFS may approve PSOs and
PAM operators as conditional or unconditional. A conditional approval
may be given to one who is trained but has not yet attained the
requisite experience. An unconditional approval is given to one who is
trained and has attained the necessary experience. The specific
requirements for conditional and unconditional approval can be found in
the regulatory text at the end of this rulemaking.
Conditionally-approved PSOs and PAM operators would be paired with
an unconditionally-approved PSO (or PAM operator, as appropriate) to
ensure that the quality of marine mammal observations and data
recording is kept consistent. Additionally, activities requiring PSO
and/or PAM operator monitoring must have a lead on duty. The visual PSO
field team, in conjunction with the PAM team (i.e., marine mammal
monitoring team), would have a lead member (designated as the ``Lead
PSO'') who would be required to meet the unconditional approval
standard.
Although PSOs and PAM operators must be approved by NMFS, third-
party observer providers and/or companies seeking PSO and PAM operator
staffing should expect that those having satisfactorily completed
acceptable training and with the requisite experience (if required)
will be quickly approved. Dominion Energy is required to request PSO
and PAM operator approvals 60 days prior to those personnel commencing
work. An initial list of previously approved PSO and PAM operators must
be submitted by Dominion Energy at least 30 days prior to the start of
the project. Should Dominion Energy require additional PSOs or PAM
operators throughout the project, Dominion Energy must submit a
subsequent list of pre-approved PSOs and PAM operators to NMFS at least
15 days prior to planned use of that PSO or PAM operator. A PSO may be
trained and/or experienced as both a PSO and PAM operator and may
perform either duty, pursuant to scheduling requirements (and vice
versa).
A minimum number of PSOs would be required to actively observe for
the presence of marine mammals during certain project activities with
more PSOs required as the mitigation zone sizes increase. A minimum
number of PAM operators would be required to actively monitor for the
presence of marine mammals during foundation installation. The types of
equipment required (e.g., big eyes on the pile driving vessel) are also
designed to increase marine mammal detection capabilities. Specifics on
these types of requirements can be found in the regulations at the end
of this rulemaking. In summary, at least three PSOs and one PAM
operator per acoustic data stream (equivalent to the number of acoustic
buoys) must be on-duty and actively monitoring per platform during
foundation installation; at least two PSOs must be on duty during cable
landfall construction impact vibratory pile installation and removal
(temporary cofferdams and temporary goal posts); at least one PSO must
be on-duty during HRG surveys conducted during daylight hours; and at
least two PSOs must be on-duty during HRG surveys conducted during
nighttime.
In addition to monitoring duties, PSOs and PAM operators are
responsible for data collection. The data collected by PSO and PAM
operators and subsequent analysis provide the necessary information to
inform an estimate of the amount of take that occurred during the
project, better understand the impacts of the project on marine
mammals, address the effectiveness of monitoring and mitigation
measures, and to adaptively manage activities and mitigation in the
future. Data reported includes information on marine mammal sightings,
activity occurring at time of sighting, monitoring conditions, and if
mitigative actions were taken. Specific data collection requirements
are contained within the regulations at the end of this rulemaking.
Dominion Energy is required to submit a Pile Driving Marine Mammal
Monitoring Plan and a PAM Plan to NMFS 180 days in advance of
foundation installation activities. The Plan must include details
regarding PSO and PAM monitoring protocols and equipment proposed for
use. More specifically, the PAM Plan must include a description of all
proposed PAM equipment, address how the proposed passive acoustic
monitoring must follow standardized measurement, processing methods,
reporting metrics, and metadata standards for offshore wind as
described in NOAA and BOEM Minimum Recommendations for Use of Passive
Acoustic Listening Systems in Offshore Wind Energy Development
Monitoring and Mitigation Programs (Van Parijs et al., 2021). NMFS must
approve the plan prior to foundation installation activities
commencing. Specific details on NMFS' PSO or PAM operator
qualifications and requirements can be found in Part 217--Regulations
Governing The Taking And Importing Of Marine Mammals at the end of this
rulemaking. Additional information can be found in Dominion Energy's
PSMMP found with their ITA application on NMFS' website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
Sound Field Verification (SFV)
Dominion Energy must conduct SFV measurements for all foundation
pile-driving activities associated with the installation of, at
minimum, the first 3 monopile foundations, and for all 3 jacket
foundations used for OSS, assuming all 12 pin piles are installed (n=4
pin piles per OSS). SFV measurements must continue until at least three
consecutive monopiles demonstrate distances to thresholds are at or
below those modeled, assuming 10 dB of attenuation. Subsequent SFV
measurements are also required should larger piles be installed, or
additional piles be driven that are anticipated to produce longer
distances to harassment isopleths than those previously measured (e.g.,
higher hammer energy, greater number of strikes, etc.). The
measurements and reporting associated with SFV can be found in the
regulatory text at the end of this rulemaking. The requirements are
extensive to ensure monitoring is conducted appropriately and the
reporting frequency is such that Dominion Energy is required to make
adjustments quickly (e.g., ensure bubble curtain hose maintenance,
check bubble curtain air pressure supply, add additional sound
attenuation, etc.) to ensure marine mammals are not experiencing noise
levels above those considered in this analysis. For recommended SFV
protocols for impact pile driving, please consult the ISO 18406
Underwater acoustics--Measurement of radiated underwater sound from
percussive pile driving (International Organization for
Standardization, 2017).
Reporting
Prior to any construction activities occurring, Dominion Energy
would provide a report to NMFS Office of Protected Resources that
demonstrates that all Dominion Energy personnel, including the vessel
crews, vessel captains, PSOs, and PAM operators, have completed all
required trainings.
[[Page 4442]]
NMFS would require standardized and frequent reporting from
Dominion Energy during the life of the regulations and LOA. All data
collected relating to the Project would be recorded using industry-
standard software (e.g., Mysticetus or a similar software) installed on
field laptops and/or tablets. Dominion Energy is required to submit
weekly, monthly, annual, and situational reports. The specifics of what
we require to be reported can be found in the regulatory text at the
end of this final rule.
Weekly Report--During foundation installation activities, Dominion
Energy would be required to compile and submit weekly marine mammal
monitoring reports for foundation installation pile driving to NMFS
Office of Protected Resources that document the daily start and stop of
all pile-driving activities, the start and stop of associated
observation periods by PSOs, details on the deployment of PSOs, a
record of all detections of marine mammals (acoustic and visual), any
mitigation actions (or if mitigation actions could not be taken,
provide reasons why), and details on the noise abatement system(s)
(e.g., system type, distance deployed from the pile, bubble rate,
etc.). Weekly reports will be due on Wednesday for the previous week
(Sunday to Saturday). The weekly reports are also required to identify
which turbines become operational and when (a map must be provided).
Once all foundation pile installation is complete, weekly reports would
no longer be required.
Monthly Report--Dominion Energy is required to compile and submit
monthly reports to NMFS Office of Protected Resources that include a
summary of all information in the weekly reports, including project
activities carried out in the previous month, vessel transits (number,
type of vessel, and route), number of piles installed, all detections
of marine mammals, and any mitigative actions taken. Monthly reports
would be due on the 15th of the month for the previous month. The
monthly report would also identify which turbines become operational
and when (a map must be provided). Once all foundation pile
installation is complete, monthly reports would no longer be required.
Annual Reporting--Dominion Energy is required to submit an annual
marine mammal monitoring (both PSO and PAM) report to NMFS Office of
Protected Resources no later than 90 days following the end of a given
calendar year describing, in detail, all of the information required in
the monitoring section above. A final annual report must be prepared
and submitted within 30 calendar days following receipt of any NMFS
comments on the draft report.
Final 5-Year Reporting--Dominion Energy must submit its draft 5-
year report(s) to NMFS Office of Protected Resources on all visual and
acoustic monitoring conducted under the LOA within 90 calendar days of
the completion of activities occurring under the LOA. A final 5-year
report must be prepared and submitted within 60 calendar days following
receipt of any NMFS comments on the draft report. Information contained
within this report is described at the beginning of this section.
Situational Reporting--Specific situations encountered during the
development of the Project require immediate reporting. For instance,
if a North Atlantic right whale is observed at any time by PSOs or
project personnel, the sighting must be immediately (if not feasible,
as soon as possible and no longer than 24 hours after the sighting)
reported to NMFS. If a North Atlantic right whale is acoustically
detected at any time via a project-related PAM system, the detection
must be reported as soon as possible and no longer than 24 hours after
the detection to NMFS via the 24-hour North Atlantic right whale
Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is
not necessary when reporting PAM detections via the template.
If a sighting of a stranded, entangled, injured, or dead marine
mammal occurs, the sighting would be reported to NMFS Office of
Protected Resources, the NMFS Greater Atlantic Stranding Coordinator
for the New England/Mid-Atlantic area (866-755-6622), and the U.S.
Coast Guard within 24 hours. If the injury or death was caused by a
project activity, Dominion Energy must immediately cease all activities
until NMFS Office of Protected Resources is able to review the
circumstances of the incident and determine what, if any, additional
measures are appropriate to ensure compliance with the terms of the
LOA. NMFS Office of Protected Resources may impose additional measures
to minimize the likelihood of further prohibited take and ensure MMPA
compliance. Dominion Energy may not resume their activities until
notified by NMFS Office of Protected Resources.
In the event of a vessel strike of a marine mammal by any vessel
associated with the Project, Dominion Energy must immediately report
the strike incident. If the strike occurs in the Greater Atlantic
Region (Maine to Virginia), Dominion Energy must call the NMFS Greater
Atlantic Stranding Hotline. Separately, Dominion Energy must also and
immediately report the incident to NMFS Office of Protected Resources
and NMFS Greater Atlantic Regional Fisheries Office (GARFO). Dominion
Energy must immediately cease all on-water activities until NMFS Office
of Protected Resources is able to review the circumstances of the
incident and determine what, if any, additional measures are
appropriate to ensure compliance with the terms of the LOA. NMFS Office
of Protected Resources may impose additional measures to minimize the
likelihood of further prohibited take and ensure MMPA compliance.
Dominion Energy may not resume their activities until notified by NMFS.
In the event of any lost gear associated with the fishery surveys,
Dominion Energy must report to the GARFO as soon as possible or within
24 hours of the documented time of missing or lost gear. This report
must include information on any markings on the gear and any efforts
undertaken or planned to recover the gear.
The specifics of what NMFS Office of Protected Resources requires
to be reported is listed at the end of this rulemaking in the
regulatory text.
Sound Field Verification--Dominion Energy is required to submit
interim SFV reports after each foundation installation as soon as
possible but within 48 hours. A final SFV report for all monopile
foundation installation would be required within 90 days following
completion of acoustic monitoring.
Adaptive Management
The regulations governing the take of marine mammals incidental to
Dominion Energy's construction activities contain an adaptive
management component. Our understanding of the effects of offshore wind
construction activities (e.g., acoustic and explosive stressors) on
marine mammals continues to evolve, which makes the inclusion of an
adaptive management component both valuable and necessary within the
context of 5-year regulations.
The monitoring and reporting requirements in this final rule
provide NMFS with information that helps us to better understand the
impacts of the project's activities on marine mammals and informs our
consideration of whether any changes to mitigation and monitoring are
appropriate.
The use of adaptive management allows NMFS to consider new
information and modify mitigation,
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monitoring, or reporting requirements, as appropriate, with input from
Dominion Energy regarding practicability, if such modifications will
have a reasonable likelihood of more effectively accomplishing the goal
of the measures. The following are some of the possible sources of new
information to be considered through the adaptive management process:
(1) results from monitoring reports, including the weekly, monthly,
situational, and annual reports required; (2) results from marine
mammal and sound research; and (3) any information which reveals that
marine mammals may have been taken in a manner, extent, or number not
authorized by these regulations or subsequent LOA. During the course of
the rule, Dominion Energy (and other LOA Holders conducting offshore
wind development activities) are required to participate in one or more
adaptive management meetings convened by NMFS and/or BOEM, in which the
above information will be summarized and discussed in the context of
potential changes to the mitigation or monitoring measures.
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'' by mortality, serious injury, Level A harassment and Level B
harassment, we consider other factors, such as the likely nature of any
behavioral responses (e.g., intensity, duration), the context of any
such responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of 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 environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
In the Estimated Take section, we discuss the estimated maximum
number of takes by Level A harassment and Level B harassment that could
occur incidental to Dominion Energy's specified activities based on the
methods described. The impact that any given take would have is
dependent on many case-specific factors that need to be considered in
the negligible impact analysis (e.g., the context of behavioral
exposures such as duration or intensity of a disturbance, the health of
impacted animals, the status of a species that incurs fitness-level
impacts to individuals, etc.). In this final rule, we evaluate the
likely impacts of the enumerated harassment takes that are authorized
in the context of the specific circumstances surrounding these
predicted takes. We also collectively evaluate this information, as
well as other more taxa-specific information and mitigation measure
effectiveness, in group-specific discussions that support our
negligible impact conclusions for each stock. As described above, no
serious injury or mortality is expected or authorized for any species
or stock.
The Description of the Specified Activities section of this
preamble describes Dominion Energy's specified activities that may
result in take of marine mammals and an estimated schedule for
conducting those activities. Dominion Energy has provided a realistic
construction schedule (e.g., Dominion Energy's schedule reflects the
maximum number of piles they anticipate to be able to drive each month
in which pile driving is authorized to occur), although we recognize
schedules may shift for a variety of reasons (e.g., weather or supply
delays). However, the total number of takes would not exceed the 5-year
totals and maximum annual total in any given year indicated in Tables
23 and 24, respectively.
We base our analysis and negligible impact determination on the
maximum number of takes that could occur and are authorized annually
and across the effective period of these regulations and extensive
qualitative consideration of other contextual factors that influence
the degree of impact of the takes on the affected individuals and the
number and context of the individuals affected. As stated before, the
number of takes, both maximum annual and 5-year total, alone are only a
part of the analysis.
To avoid repetition, we provide some general analysis in this
Negligible Impact Analysis and Determination section that applies to
all the species listed in Table 2, given that some of the anticipated
effects of Dominion Energy's construction activities on marine mammals
are expected to be relatively similar in nature. Then, we subdivide
into more detailed discussions for mysticetes, odontocetes, and
pinnipeds, which have broad life-history traits that support an
overarching discussion of some factors considered within the analysis
for those groups (e.g., habitat-use patterns, high-level differences in
feeding strategies).
Last, we provide a negligible impact determination for each species
or stock, providing species or stock-specific information or analysis,
where appropriate (e.g., North Atlantic right whales given their
population status). Organizing our analysis by grouping species or
stocks that share common traits or that would respond similarly to
effects of Dominion Energy's activities, and then providing species- or
stock-specific information allows us to avoid duplication while
ensuring that we have analyzed the effects of the specified activities
on each affected species or stock. It is important to note that in the
group or species sections, we base our negligible impact analysis on
the maximum annual take that is predicted under the 5-year rule;
however, the majority of the impacts are associated with WTG foundation
and OSS foundation installation, which is scheduled to occur largely
within the first 2 years (2024 through 2025) of the effective period of
these regulations. The estimated take in the other years is expected to
be notably less, which is reflected in the total take that would be
allowable under the rule (see Tables 22, 23, and 24).
As described previously, no serious injury or mortality is
anticipated or authorized in this rule. Any Level A harassment
authorized would be in the form of auditory injury (i.e., PTS). The
number of takes by harassment Dominion Energy has requested and NMFS is
authorizing is based on exposure models that consider the outputs of
acoustic source and propagation models and other data such as frequency
of occurrence or group sizes. Several conservative parameters and
assumptions are ingrained into these models, such as assuming forcing
functions that consider direct contact with piles (i.e., no cushion
allowances) and the broad application of an average seasonal sound
speed profile (i.e., between May 1st and October 31st) to all months
within a given season based on the foundation pile driving period. The
exposure model results do not reflect any mitigation measures (other
[[Page 4444]]
than 10 dB sound attenuation for foundation pile driving and spatio-
temporal restrictions (i.e., seasonal pile driving window; pile driving
cannot start at night)) or avoidance response. The number of takes
requested and authorized also reflects careful consideration of other
data (e.g., group size data) and for Level A harassment potential of
some large whales, the consideration of mitigation measures. For all
species, the number of takes authorized represents the maximum amount
of Level A harassment and Level B harassment that could occur.
Behavioral Disturbance
In general, NMFS anticipates that impacts on an individual that has
been harassed are likely to be more intense when exposed to higher
received levels and for a longer duration (though this is in no way a
strictly linear relationship for behavioral effects across species,
individuals, or circumstances) and less severe impacts result when
exposed to lower received levels and for a brief duration. However,
there is also growing evidence of the importance of contextual factors
such as distance from a source in predicting marine mammal behavioral
response to sound--i.e., sounds of a similar level emanating from a
more distant source have been shown to be less likely to evoke a
response of equal magnitude (DeRuiter and Doukara, 2012; Falcone et
al., 2017). As described in the Potential Effects to Marine Mammals and
their Habitat section of the proposed rule, the intensity and duration
of any impact resulting from exposure to Dominion Energy's activities
is dependent upon a number of contextual factors including, but not
limited to, sound source frequencies, whether the sound source is
moving towards the animal, hearing ranges of marine mammals, behavioral
state at time of exposure, status of individual exposed (e.g.,
reproductive status, age class, health) and an individual's experience
with similar sound sources. Southall et al. (2021), Ellison et al.
(2012) and Moore and Barlow (2013), among others, emphasize the
importance of context (e.g., behavioral state of the animals, distance
from the sound source) in evaluating behavioral responses of marine
mammals to acoustic sources. Harassment of marine mammals may result in
behavioral modifications (e.g., avoidance, temporary cessation of
foraging or communicating, changes in respiration or group dynamics,
masking) or may result in auditory impacts such as hearing loss. In
addition, some of the lower-level physiological stress responses (e.g.,
change in respiration, change in heart rate) discussed previously would
likely co-occur with the behavioral modifications, although these
physiological responses are more difficult to detect, and fewer data
exist relating these responses to specific received levels of sound.
Takes by Level B harassment, then, may have a stress-related
physiological component as well; however, we would not expect Dominion
Energy's activities to produce conditions of long-term and continuous
exposure to noise leading to long-term physiological stress responses
in marine mammals that could affect reproduction or survival.
In the range of behavioral effects that might be expected to be
part of a response that qualifies as an instance of Level B harassment
by behavioral disturbance (which by nature of the way it is modeled/
counted, occurs within 1 day), the less severe end might include
exposure to comparatively lower levels of a sound, at a greater
distance from the animal, for a few or several minutes. A less severe
exposure of this nature could result in a behavioral response such as
avoiding an area that an animal would otherwise have chosen to move
through or feed in for some amount of time or breaking off one or a few
feeding bouts. More severe effects could occur if an animal gets close
enough to the source to receive a comparatively higher level, is
exposed continuously to one source for a longer time or is exposed
intermittently to different sources throughout a day. Such effects
might result in an animal having a more severe flight response and
leaving a larger area for a day or more or potentially losing feeding
opportunities for a day. However, such severe behavioral effects are
expected to occur infrequently.
Many species perform vital functions, such as feeding, resting,
traveling, and socializing on a diel cycle (24-hour cycle). Behavioral
reactions to noise exposure, when taking place in a biologically
important context, such as disruption of critical life functions,
displacement, or avoidance of important habitat, are more likely to be
significant if they last more than 1 day or recur on subsequent days
(Southall et al., 2007) due to diel and lunar patterns in diving and
foraging behaviors observed in many cetaceans (Baird et al., 2008;
Barlow et al., 2020; Henderson et al., 2016; Schorr et al., 2014). It
is important to note the water depth in the Project Area is shallow (up
to 40 m) and deep diving species, such as sperm whales, are not
expected to be engaging in deep foraging dives when exposed to noise
above NMFS harassment thresholds during the specified activities.
Therefore, we do not anticipate impacts to deep foraging behavior to be
impacted by the specified activities.
It is also important to identify that the estimated number of takes
does not necessarily equate to the number of individual animals
Dominion Energy expects to harass (which is lower) but rather to the
instances of take (i.e., exposures above the Level B harassment
thresholds) that may occur. These instances may represent either brief
exposures for HRG surveys, or, in some cases, longer durations of
exposure within a day (e.g., pile driving). Some members of a species
or stock may experience one exposure as they move through an area while
other individuals of a species may experience recurring instances of
take over multiple days throughout the year while, in which case the
number of individuals taken is smaller than the total estimated takes.
In short, for species that are more likely to be migrating through the
area and/or for which only a comparatively smaller number of takes are
predicted (e.g., some of the mysticetes), it is more likely that each
take represents a different individual whereas for non-migrating
species with larger amounts of predicted take, we expect that the total
anticipated takes represent exposures of a smaller number of
individuals of which some would be taken across multiple days.
For Dominion Energy, impact pile driving of foundation piles is
most likely to result in a higher magnitude and severity of behavioral
disturbance than other activities (i.e., vibratory pile driving, HRG
surveys). Impact pile driving has higher source levels and longer
durations (on an annual basis) than vibratory pile driving and HRG
surveys. HRG survey equipment also produces much higher frequencies
than pile driving, resulting in minimal sound propagation and
associated exposure. While impact pile driving for foundation
installation is anticipated to be most impactful for these reasons,
impacts are minimized, to the extent practicable, through
implementation of mitigation measures, including use of a sound
attenuation system, soft-starts, the implementation of clearance zones
that would facilitate a delay to pile-driving commencement, and
implementation of shutdown zones. For example, given sufficient notice
through the use of soft-start, marine mammals are expected to move away
from a sound source that is disturbing prior to becoming exposed to
very loud noise levels. The requirement to couple visual monitoring and
PAM before and during all foundation installation will increase the
overall capability to detect marine mammals compared to one method
alone.
[[Page 4445]]
Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if
some smaller subset of the takes is in the form of a longer (several
hours or a day) and more severe response, if they are not expected to
be repeated over numerous or sequential days, impacts to individual
fitness are not anticipated. Also, the effect of disturbance is
strongly influenced by whether it overlaps with biologically important
habitats when individuals are present--avoiding biologically important
habitats will provide opportunities to compensate for reduced or lost
foraging (Keen et al., 2021). Nearly all studies and experts agree that
infrequent exposures of a single day or less are unlikely to impact an
individual's overall energy budget (Farmer et al., 2018; Harris et al.,
2017; King et al., 2015; National Academy of Science, 2017; New et al.,
2014; Southall et al., 2007; Villegas-Amtmann et al., 2015).
Temporary Threshold Shift (TTS)
TTS is one form of Level B harassment that marine mammals may incur
through exposure to Dominion Energy's activities and, as described
earlier, the authorized takes by Level B harassment may represent takes
in the form of behavioral disturbance, TTS, or both. As discussed in
the Potential Effects of Specified Activities on Marine Mammals and
their Habitat section of the proposed rule (88 FR 28656, May 4, 2023),
in general, TTS can last from a few minutes to days, be of varying
degree, and occur across different frequency bandwidths, all of which
determine the severity of the impacts on the affected individual, which
can range from minor to more severe. Impact and vibratory pile driving
generate sounds in the lower frequency ranges (with most of the energy
below 1-2 kHz but with a small amount energy ranging up to 20 kHz);
therefore, in general and all else being equal, we anticipate the
potential for TTS is higher in low-frequency cetaceans (i.e.,
mysticetes) than other marine mammal hearing groups and is more likely
to occur in frequency bands in which they communicate. Additionally,
though the frequency range of TTS that marine mammals might sustain
would overlap with some of the frequency ranges of their vocalizations,
the frequency range of TTS from Dominion Energy's pile driving
activities would not typically span the entire frequency range of one
vocalization type, much less span all types of vocalizations or other
critical auditory cues for any given species. The required mitigation
measures further reduce the potential for TTS for all species.
Generally, both the degree of TTS and the duration of TTS would be
greater if the marine mammal is exposed to a higher level of energy
(which would occur when the peak dB level is higher, or the duration is
longer). The threshold for the onset of TTS was discussed previously
(see the Estimated Take section of this preamble). However, source
level is not the sole predictor of TTS. An animal would have to
approach closer to the source or remain in the vicinity of the sound
source appreciably longer to increase the received SEL, which would be
difficult considering the required mitigation and the nominal speed of
the receiving animal relative to the stationary sources such as impact
pile driving. The recovery time of TTS is also of importance when
considering the potential impacts from TTS. In TTS laboratory studies
(as discussed in the Potential Effects of the Specified Activities on
Marine Mammals and their Habitat section of the proposed rule (88 FR
28656, May 4, 2023)), some using exposures of almost an hour in
duration or up to 217 SEL, almost all individuals recovered within 1
day (or less, often in minutes) and we note that while the pile-driving
activities last for hours a day, it is unlikely that most marine
mammals would stay in the close vicinity of the source long enough to
incur more severe TTS. Overall, given the small number of times that
any individual might incur TTS, the low degree of TTS and the short
anticipated duration, and the unlikely scenario that any TTS overlapped
the entirety of a critical hearing range, it is unlikely that TTS of
the nature expected to result from the project's activities would
result in behavioral changes or other impacts that would impact any
individual's (of any hearing sensitivity) reproduction or survival.
Permanent Threshold Shift (PTS)
NMFS is authorizing a very limited number (i.e., single digits
annually) of takes by PTS to some marine mammal individuals. The
numbers of authorized annual takes by Level A harassment are relatively
low for all marine mammal stocks and species (Table 23). The only
activities incidental to which we anticipate PTS may occur is from
exposure to impact pile driving, which produces sounds that are both
impulsive and primarily concentrated in the lower frequency ranges
(below 1 kHz) (David, 2006; Krumpel et al., 2021).
There are no PTS data on cetaceans and only one instance of PTS
being induced in older harbor seals (Reichmuth et al., 2019). However,
available TTS data (of mid-frequency hearing specialists exposed to
mid- or high-frequency sounds (Southall et al., 2007; NMFS, 2018;
Southall et al., 2019)) suggest that most threshold shifts occur in the
frequency range of the source up to one octave higher than the source.
We anticipate a similar result for PTS. Further, no more than a small
degree of PTS is expected to be associated with any of the incurred
Level A harassment, given it is unlikely that animals would stay in the
close vicinity of a source for a duration long enough to produce more
than a small degree of PTS.
Any PTS incurred from these activities would consist of minor
degradation of hearing capabilities occurring predominantly at
frequencies one-half to one octave above the frequency of the energy
produced by pile driving (i.e., the low-frequency region below 2 kHz)
(Cody and Johnstone, 1981; McFadden, 1986; Finneran, 2015), not severe
hearing impairment. If hearing impairment occurs from impact pile
driving, it is most likely that the affected animal would lose a few
decibels in its hearing sensitivity, which in most cases is not likely
to meaningfully affect its ability to forage and communicate with
conspecifics. Given sufficient notice through use of soft-start prior
to implementation of full hammer energy during impact pile driving,
marine mammals are expected to move away from a sound source that is
disturbing prior to it resulting in severe PTS. For these reasons, any
PTS incurred as a result of exposure to these activities is not
expected to impact the reproduction or survival of any individuals.
Auditory Masking or Communication Implications
The ultimate potential impacts of masking on an individual are
similar to those discussed for TTS (e.g., decreased ability to
communicate, forage effectively, or detect predators), but an important
difference is that masking only occurs during the time of the signal,
versus TTS, which continues beyond the duration of the signal. Also,
though, masking can result from the sum of exposure to multiple
signals, none of which might individually cause TTS. Fundamentally,
masking is referred to as a chronic effect because one of the key
potential harmful components of masking is its duration--the fact that
an animal would have reduced ability to hear or interpret critical cues
becomes much more likely to cause a problem the longer it is
[[Page 4446]]
occurring. Inherent in the concept of masking is the fact that the
potential for the effect is only present during the times that the
animal and the source are in close enough proximity for the effect to
occur and further, this time period would need to coincide with a time
that the animal was utilizing sounds at the masked frequency.
As our analysis for this project has indicated, we expect that
impact pile driving foundations have the greatest potential to mask
marine mammal signals, and this pile driving may occur for several,
albeit intermittent, hours per day, for multiple days per year. Masking
is fundamentally more of a concern at lower frequencies (which are
pile-driving dominant frequencies), because low frequency signals
propagate significantly further than higher frequencies and because
they are more likely to overlap both the narrower low frequency calls
of mysticetes, as well as many non-communication cues related to fish
and invertebrate prey, and geologic sounds that inform navigation.
However, the area in which masking would occur for all marine mammal
species and stocks (e.g., predominantly in the vicinity of the
foundation pile being driven) is small relative to the extent of
habitat used by each species and stock. In summary, the nature of
Dominion Energy's activities, paired with habitat use patterns by
marine mammals, does not support the likelihood that the level of
masking that could occur would have the potential to affect
reproductive success or survival.
Impacts on Habitat and Prey
Construction activities may result in fish and invertebrate
mortality or injury very close to the source, and all of Dominion
Energy's activities may cause some fish to leave the area of
disturbance. It is anticipated that any mortality or injury would be
limited to a very small subset of available prey and the implementation
of mitigation measures such as the use of a noise attenuation system
(i.e., a double bubble curtain) during impact pile driving would
further limit the degree of impact. Behavioral changes in prey in
response to construction activities could temporarily impact marine
mammals' foraging opportunities in a limited portion of the foraging
range; however, due to the relatively small area of the habitat that
may be affected at any given time (e.g., around a pile being driven),
the impacts to marine mammal habitat are not expected to cause
significant or long-term negative consequences.
Cable presence is not anticipated to impact marine mammal habitat
as these would be buried, and any electromagnetic fields emanating from
the cables are not anticipated to result in consequences that would
impact marine mammals prey to the extent they would be unavailable for
consumption.
The presence of wind turbines within the Lease Area could have
longer-term impacts on marine mammal habitat, as the project would
result in the persistence of the structures within marine mammal
habitat for more than 30 years. The presence of structures such as wind
turbines is, in general, likely to result in certain oceanographic
effects in the marine environment and may alter aggregations and
distribution of marine mammal zooplankton prey through changing the
strength of tidal currents and associated fronts, changes in
stratification, primary production, the degree of mixing, and
stratification in the water column (Chen et al., 2021; Johnson et al.,
2021; Christiansen et al., 2022; Dorrell et al., 2022).
As discussed in the Potential Effects of the Specified Activities
on Marine Mammals and their Habitat section of the proposed rule (88 FR
28656, May 4, 2023), the project would consist of no more than 179
foundations (176 WTGs and 3 OSSs) in the Lease Area, which will
gradually become operational following construction completion. While
there are likely to be oceanographic impacts from the presence of the
CVOW-C Project, meaningful oceanographic impacts relative to
stratification and mixing that would significantly affect marine mammal
habitat and prey over large areas in key foraging habitats during the
effective period of the regulations are not anticipated (which
considers 2-3 years of turbine operation). For these reasons, if
oceanographic features are affected by the project during the effective
period of the regulations, the impact on marine mammal habitat and
their prey is likely to be comparatively minor.
The CVOW-C Biological Opinion provided an evaluation of the
presence and operation of the Project on, among other species, marine
mammals and their prey (see https://repository.library.noaa.gov/view/noaa/55495). While the consultation considered the life of the project
(approximately 33 years), we considered the potential for the habitat
and prey impacts to occur within the 5-year effective time frame of
this rule. Overall, the Biological Opinion concluded that impacts from
loss of sandy bottom habitat (from the presence of turbines and
placement of scour protection) as well as any beneficial reef effects
are expected to be so small that they cannot be meaningfully measured,
evaluated, or detected, and are therefore insignificant. The Biological
Opinion also concluded that the presence and operation of the wind farm
may change the distribution of plankton within the wind farm, but these
changes are not expected to affect the oceanographic forces
transporting zooplankton into the area. Therefore, the Biological
Opinion concluded that the overall reduction in biomass of plankton is
not an anticipated outcome of operating the Project. Thus, because
changes in the biomass of zooplankton are not anticipated, any higher
trophic level impacts are also not anticipated. That is, no effects to
pelagic fish or benthic invertebrates that depend on plankton as forage
food are expected to occur. Zooplankton, fish, and invertebrates are
all considered marine mammal prey and, as fully described in the
Biological Opinion, measurable, detectable, or significant changes to
marine mammal prey abundance and distribution from wind farm operation
are not anticipated.
Mitigation To Reduce Impacts on All Species
This rulemaking includes a variety of mitigation measures designed
to minimize to the extent practicable impacts on all marine mammals,
with a focus on North Atlantic right whales (the latter is described in
more detail below). For the dual approach of vibratory and impact pile
driving of foundation piles, ten overarching measures are required,
which are intended to reduce both the number and intensity of marine
mammal takes: (1) seasonal/time of day work restrictions; (2) use of
multiple PSOs to visually observe for marine mammals (with any
detection within specifically designated zones that would trigger a
delay or shutdown); (3) use of PAM to acoustically detect marine
mammals, with a focus on detecting baleen whales (with any detection
within designated zones triggering delay or shutdown); (4)
implementation of clearance zones; (5) implementation of shutdown
zones; (6) use of soft-start; (7) use of noise attenuation technology
(i.e., double bubble curtain); (8) maintaining situational awareness of
marine mammal presence through the requirement that any marine mammal
sighting(s) by Dominion Energy personnel must be reported to PSOs; (9)
sound field verification monitoring; and (10) Vessel Strike Avoidance
measures to reduce the risk of a collision with a marine mammal and
vessel. For temporary cofferdam and goal post installation and removal,
we are requiring five overarching measures: (1) seasonal/time of day
work restrictions; (2) use of multiple PSOs to visually
[[Page 4447]]
observe for marine mammals (with any detection with specifically
designated zones that would trigger a delay or shutdown); (3)
implementation of clearance zones; (4) implementation of shutdown
zones; and (5) maintaining situational awareness of marine mammal
presence through the requirement that any marine mammal sighting(s) by
Dominion Energy personnel must be reported to PSOs. Lastly, for HRG
surveys, we are requiring six measures: (1) measures specifically for
Vessel Strike Avoidance; (2) specific requirements during daytime and
nighttime HRG surveys; (3) implementation of clearance zones; (4)
implementation of shutdown zones; (5) use of ramp-up of acoustic
sources; and (6) maintaining situational awareness of marine mammal
presence through the requirement that any marine mammal sighting(s) by
Dominion Energy personnel must be reported to PSOs.
NMFS prescribes mitigation measures based on the following
rationale. For activities with large harassment isopleths, Dominion
Energy is committed to reducing the noise levels generated to the
lowest levels practicable and is required to ensure that they do not
exceed a noise footprint above that which was modeled, assuming a 10-dB
attenuation. Use of a soft-start during impact pile driving will allow
animals to move away from (i.e., avoid) the sound source prior to
applying higher hammer energy levels needed to install the pile
(Dominion Energy will not use a hammer energy greater than necessary to
install piles). Similarly, ramp-up during HRG surveys would allow
animals to move away and avoid the acoustic sources before they reach
their maximum energy level. For all activities, clearance zone and
shutdown zone implementation, which are required when marine mammals
are within given distances associated with certain impact thresholds
for all activities, will reduce the magnitude and severity of marine
mammal take. Additionally, the use of multiple PSOs (WTG and OSS
foundation installation, temporary cofferdam and goal post installation
and removal, HRG surveys), PAM operators (for foundation installation),
and maintaining awareness of marine mammal sightings reported in the
region (WTG and OSS foundation installation, temporary cofferdam and
goal post installation and removal, HRG surveys) will aid in detecting
marine mammals that would trigger the implementation of the mitigation
measures. The reporting requirements including SFV reporting (for
foundation installation and foundation operation,), will assist NMFS in
identifying if impacts beyond those analyzed in this final rule are
occurring, potentially leading to the need to enact adaptive management
measures in addition to or in place of the mitigation measures.
Mysticetes
Five mysticete species (comprising five stocks) of cetaceans (North
Atlantic right whale, fin whale, humpback whale, minke whale, and sei
whale) may be taken by harassment. These species, to varying extents,
utilize the specified geographic region, including the Project Area,
for the purposes of migration, foraging, and socializing. Mysticetes
are in the low-frequency hearing group.
Behavioral data on mysticete reactions to pile-driving noise are
scant. Kraus et al. (2019) predicted that the three main impacts of
offshore wind farms on marine mammals would consist of displacement,
behavioral disruptions, and stress. Broadly, we can look to studies
that have focused on other noise sources such as seismic surveys and
military training exercises, which suggest that exposure to loud
signals can result in avoidance of the sound source (or displacement if
the activity continues for a longer duration in a place where
individuals would otherwise have been staying, which is less likely for
mysticetes in this area), disruption of foraging activities (if they
are occurring in the area), local masking around the source, associated
stress responses, and impacts to prey, as well as TTS or PTS in some
cases.
Mysticetes encountered in the Project Area are expected to
primarily be migrating and may be engaged in opportunistic foraging
behaviors. The extent to which an animal engages in these behaviors in
the area is species-specific and varies seasonally. Many mysticetes are
expected to predominantly be migrating through the Project Area towards
or from feeding ground located further north (e.g., southern New
England region, Gulf of Maine, Canada). While we acknowledged above
that mortality, hearing impairment, or displacement of mysticete prey
species may result locally from impact pile driving, the very short
duration of and broad availability of prey species in the area and the
availability of alternative suitable foraging habitat for the mysticete
species most likely to be affected, any impacts on mysticete foraging
are expected to be minor. Whales that choose to opportunistically
forage and are temporarily displaced from the Project Area are expected
to have sufficient remaining similar feeding habitat available to them
in the area and, further, would not be prevented from feeding in other
areas within the biologically important feeding habitats found further
north. In addition, any displacement of whales or interruption of
opportunistic foraging bouts would be expected to be relatively
temporary in nature.
The potential for repeated exposures is dependent upon the
residency time of whales, with migratory animals unlikely to be exposed
on repeated occasions and animals remaining in the area to be more
likely exposed repeatedly. For mysticetes, where relatively low numbers
of species-specific take by Level B harassment are predicted (compared
to the abundance of each mysticete species or stock, such as is
indicated in Table 23) and movement patterns suggest that individuals
would not necessarily linger in a particular area for multiple days,
each predicted take likely represents an exposure of a different
individual; the behavioral impacts would, therefore, be expected to
occur within a single day within a year--an amount that is not be
expected to impact reproduction or survival. Species with longer
residence time in the Project Area may be subject to repeated exposures
across multiple days.
In general, for this project, the duration of exposures would not
be continuous throughout any given day, and pile driving would not
occur on all consecutive days within a given year due to weather delays
or any number of logistical constraints Dominion Energy has identified.
Species-specific analysis regarding potential for repeated exposures
and impacts is provided below.
Fin, humpback, minke, and sei whales are the only mysticete species
for which PTS is anticipated and authorized (refer back to Table 23).
As described previously, PTS for mysticetes from impact pile driving
may overlap frequencies used for communication, navigation, or
detecting prey. However, given the nature and duration of the activity,
the mitigation measures, and likely avoidance behavior, any PTS is
expected to be of a small degree, would be limited to frequencies where
pile-driving noise is concentrated (i.e., only a small subset of their
expected hearing range) and would not be expected to impact
reproductive success or survival.
North Atlantic Right Whale
North Atlantic right whales are listed as endangered under the ESA,
and the western Atlantic stock is considered depleted and strategic
under the MMPA.
[[Page 4448]]
As described in the Potential Effects to Marine Mammals and Their
Habitat section of the proposed rule (88 FR 28656, May 4, 2023), North
Atlantic right whales are threatened by a low population abundance,
higher than average mortality rates, and lower than average
reproductive rates. Recent studies have reported individuals showing
high stress levels (e.g., Corkeron et al., 2017) and poor health, which
has further implications on reproductive success and calf survival
(Christiansen et al., 2020; Stewart et al., 2021; Stewart et al.,
2022). As described below, a UME has been designated for North Atlantic
right whales. Given this, the status of the North Atlantic right whale
population is of heightened concern and, therefore, merits additional
analysis and consideration. No injury or mortality is anticipated or
authorized for this species.
For North Atlantic right whales, this rule authorizes up to 17
takes, by Level B harassment only, over the 5-year period, with a
maximum annual allowable take of 7 (equating to approximately 2.07
percent of the stock abundance, if each take were considered to be of a
different individual), with far lower numbers than that expected in the
years without foundation installation (e.g., years when only HRG
surveys would be occurring). The Project Area is known as a migratory
corridor for North Atlantic right whales and given the nature of
migratory behavior (e.g., continuous path), as well as the low number
of total takes, we anticipate that few, if any, of the instances of
take would represent repeat takes of any individual, though it could
occur if whales are engaged in opportunistic foraging behavior. While
opportunistic foraging may occur in the Project area, the habitat does
not support prime foraging habitat.
The Mid-Atlantic, including the Project Area, may be a stopover
site for migrating North Atlantic right whales moving to or from
southeastern calving grounds. Northward migration occurs mainly during
the months of March and April while southern transit typically takes
place during the months of November and December (LaBrecque et al.,
2015; Van Parijs et al., 2015). Overall, the Project Area contains
habitat less frequently utilized by North Atlantic right whales than
the foraging and calving grounds. Salisbury et al. (2015) detected
North Atlantic right whales year-round off the coast of Virginia, yet
they were only detected on 10 percent of the days from May through
October. The greatest detections occurred from October through December
through March, outside of the months of Dominion Energy's planned
foundation installation. Therefore, we anticipate that any individual
whales would typically be migrating through the Project Area and would
not be lingering for extended periods of time and, further, fewer would
be present in the months when foundation installation would be
occurring. Other activities planned by Dominion Energy involve either
much smaller harassment zones (i.e., HRG surveys) or are limited in
amount and nearshore in location (i.e., cable landfall construction)
but may occur during periods when North Atlantic right whales are more
likely to be migrating through the Project Area. As any North Atlantic
right whales within the Project Area would likely be engaged in
migratory behavior (LaBrecque et al., 2015), it is likely that the
authorized instances of take would occur to separate individual whales;
however, some may be repeat takes of the same animal across multiple
days for some short period of time. The only activity occurring from
December through May that may impact North Atlantic right whale would
be HRG surveys; no take from cable landfall construction is anticipated
or authorized. Across all years, while it is possible an animal could
have been exposed during a previous year, the low number of takes
authorized during the 5-year effective period of the final rulemaking
makes this scenario possible but unlikely (n=17). However, if an
individual were to be exposed during a subsequent year, the impact of
that exposure is likely independent of the previous exposure given the
duration between exposures.
North Atlantic right whales utilize areas outside of the Project
Area for their main feeding, breeding, and calving activities. In
general, North Atlantic right whales in the Project Area are expected
to be engaging in migratory behavior. Given the species' migratory
behavior in the Project Area, we anticipate individual whales would be
typically migrating through the area during most months when foundation
installation would occur (given the seasonal restrictions on foundation
installation, rather than lingering for extended periods of time).
Other work that involves either much smaller harassment zones (e.g.,
HRG surveys) or is limited in amount (e.g., cable landfall
construction) may also occur during periods when North Atlantic right
whales are using the habitat for migration. It is important to note the
activities occurring from November through May that may impact North
Atlantic right whale would be primarily HRG surveys, which would not
result in very high received levels. Across all years, if an individual
were to be exposed during a subsequent year, the impact of that
exposure is likely independent of the previous exposure given the
duration between exposures.
As described in the Description of Marine Mammals in the Specified
Geographic Region section, North Atlantic right whales are presently
experiencing an ongoing UME (beginning in June 2017). Preliminary
findings support human interactions, specifically vessel strikes and
entanglements, as the cause of death for the majority of North Atlantic
right whales. Given the current status of the North Atlantic right
whale, the loss of even one individual could significantly impact the
population. No mortality, serious injury, or injury of North Atlantic
right whales as a result of the project is expected or authorized. Any
disturbance to North Atlantic right whales due to Dominion Energy's
activities is expected to result in temporary avoidance of the
immediate area of construction. As no injury, serious injury, or
mortality is expected or authorized, and Level B harassment of North
Atlantic right whales will be reduced to the level of least practicable
adverse impact through use of mitigation measures, the authorized
number of takes of North Atlantic right whales would not exacerbate or
compound the effects of the ongoing UME.
As described in the general Mysticetes section above, foundation
installation is likely to result in the highest number of annual takes
and is of greatest concern given loud source levels. This activity is
expected to consist of approximately 213 days over a maximum of 2
years, assuming up to 30 days necessary for all 3 OSS foundations to be
installed and assuming that a single WTG monopile (n=176 WTG
foundations) is installed per day (i.e., 24-hour period), which we do
acknowledge is not the case as Dominion Energy would, on some days,
install up to 2 WTG monopile foundations, which would reduce this
overall estimate. We also acknowledge that this estimate represents 183
pile driving events, not WTGs planned to be installed, which slightly
overestimates the total number of pile driving days likely necessary.
In all cases, these activities would only occur during times when,
based on the best available scientific data, North Atlantic right
whales are less frequently encountered due to their migratory behavior.
The potential types, severity, and magnitude of impacts are also
anticipated to mirror that described in the general Mysticetes
[[Page 4449]]
section above, including avoidance (the most likely outcome), changes
in foraging or vocalization behavior, masking, a small amount of TTS,
and temporary physiological impacts (e.g., change in respiration,
change in heart rate). The effects of the activities are expected to be
sufficiently low-level and localized to specific areas as to not
meaningfully impact important behaviors such as migratory behavior of
North Atlantic right whales. These takes are expected to result in
temporary behavioral reactions, such as slight displacement (but not
abandonment) of migratory habitat or temporary cessation of feeding.
Further, given these exposures are generally expected to occur to
different individual right whales migrating through (i.e., many
individuals would not be impacted on more than 1 day in a year), with
some subset potentially being exposed on no more than a few days within
the year, they are unlikely to result in energetic consequences that
could affect reproduction or survival of any individuals.
Overall, NMFS expects that any behavioral harassment of North
Atlantic right whales incidental to the specified activities would not
result in changes to their migration patterns or foraging success, as
only temporary avoidance of an area during construction is expected to
occur. As described previously, North Atlantic right whales migrating
through the Project Area are not expected to remain in this habitat for
extensive durations, and any temporarily displaced animals would be
able to return to or continue to travel through and opportunistically
forage in these areas once activities have ceased.
Although acoustic masking may occur in the vicinity of the
foundation installation activities, based on the acoustic
characteristics of noise associated with pile driving (e.g., frequency
spectra, short duration of exposure) and construction surveys (e.g.,
intermittent signals), NMFS expects masking effects to be minimal
(e.g., impact pile driving) to none (e.g., HRG surveys). In addition,
masking would likely only occur during the period of time that a North
Atlantic right whale is in the relatively close vicinity of pile
driving, which would be rare, given pile driving is intermittent within
a day and confined to the months in which North Atlantic right whales
are at lower densities and primarily moving through the area, the
anticipated mitigation effectiveness, and the likely avoidance
behaviors. TTS is another potential form of Level B harassment that
could result in brief periods of slightly reduced hearing sensitivity
affecting behavioral patterns by making it more difficult to hear or
interpret acoustic cues within the frequency range (and slightly above)
of sound produced during impact pile driving; however, any TTS would
likely be of low amount, limited duration, and limited to frequencies
where most construction noise is centered (below 2 kHz). NMFS expects
that right whale hearing sensitivity would return to pre-exposure
levels shortly after migrating through the area or moving away from the
sound source.
As described in the Potential Effects to Marine Mammals and Their
Habitat section of the proposed rule (88 FR 28656, May 4, 2023), the
distance of the receiver to the source influences the severity of
response with greater distances typically eliciting less severe
responses. NMFS recognizes North Atlantic right whales migrating could
be pregnant females (in the fall) and cows with older calves (in
spring) and that these animals may slightly alter their migration
course in response to any foundation pile driving; however, as
described in the Potential Effects to Marine Mammals and Their Habitat
section of the proposed rule (88 FR 28656, May 4, 2023), we anticipate
that course diversion would be of small magnitude. Hence, while some
avoidance of the pile-driving activities may occur, we anticipate any
avoidance behavior of migratory North Atlantic right whales would be
similar to that of gray whales (Tyack et al., 1983), on the order of
hundreds of meters up to 1 to 2 km. This diversion from a migratory
path otherwise uninterrupted by the project's activities is not
expected to result in meaningful energetic costs that would impact
annual rates of recruitment of survival. NMFS expects that North
Atlantic right whales would be able to avoid areas during periods of
active noise production while not being forced out of this portion of
their habitat.
North Atlantic right whale presence in the Project Area is year-
round. However, abundance during summer months is lower compared to the
winter months with spring and fall serving as ``shoulder seasons''
wherein abundance waxes (fall) or wanes (spring). Given this year-round
habitat usage, in recognition that where and when whales may actually
occur during project activities is unknown as it depends on the annual
migratory behaviors, NMFS is requiring a suite of mitigation measures
designed to reduce impacts to North Atlantic right whales to the
maximum extent practicable. These mitigation measures (e.g., seasonal/
daily work restrictions, vessel separation distances, reduced vessel
speed) would not only avoid the likelihood of vessel strikes but also
would minimize the severity of behavioral disruptions by minimizing
impacts (e.g., through sound reduction using attenuation systems and
reduced spatio-temporal overlap of project activities and North
Atlantic right whales). This would further ensure that the number of
takes by Level B harassment that are estimated to occur are not
expected to affect reproductive success or survivorship by detrimental
impacts to energy intake or cow/calf interactions during migratory
transit. However, even in consideration of recent habitat-use and
distribution shifts, Dominion Energy would still be installing
foundations when the presence of North Atlantic right whales is
expected to be lower.
As described in the Description of Marine Mammals in the Specified
Geographic Region section, Dominion Energy would be constructed within
the North Atlantic right whale migratory corridor BIA, which represent
areas and months within which a substantial portion of a species or
population is known to migrate. The Lease Area is relatively small
compared with the migratory BIA area (approximately 456.5 km\2\ for
OCS-A 0483 versus the size of the full North Atlantic right whale
migratory BIA, 269,448 km\2\). Further, the BIA is approximately 177 km
(110 mi) in width (west to east), when measured at the widest point
beginning just off the Virginia coastline. The Lease Area begins
approximately 44 km (27.3 mi) east of Virginia Beach, Virginia, and is
approximately 25 km (15.5 mi) in width from east to west (when measured
horizontally). While construction activities would be occurring within
the migratory path, its placement in deeper waters no closer than 44 km
offshore and the fact the foundation installation (the most impactful
activity) would not be occurring during the migration period (i.e., no
foundation installation would occur November 1st through April 30th)
provide high conservation benefits. Overall North Atlantic right whale
migration is not expected to be impacted by the planned activities.
There are no known North Atlantic right whale feeding, breeding, or
calving areas within the Project Area. Prey species are mobile (e.g.,
calanoid copepods can initiate rapid and directed escape responses) and
are broadly distributed throughout the Project Area (noting again that
North Atlantic right whale prey is not particularly concentrated in the
Project Area relative
[[Page 4450]]
to nearby habitats). Therefore, any impacts to prey that may occur are
also unlikely to impact marine mammals.
The most significant measure to minimize impacts to individual
North Atlantic right whales is the seasonal moratorium on all
foundation installation activities from November 1st through April 30th
when North Atlantic right whale abundance in the Project Area is
expected to be highest. NMFS also expects this measure to greatly
reduce the potential for mother-calf pairs to be exposed to impact pile
driving noise above the Level B harassment threshold during their
annual spring migration through the Project Area from calving grounds
to primary foraging grounds (e.g., Cape Cod Bay). NMFS expects that
exposures to North Atlantic right whales would be reduced due to the
additional mitigation measures that would ensure that any exposures
above the Level B harassment threshold would result in only short-term
effects to individuals exposed.
Foundation pile driving may only begin in the absence of North
Atlantic right whales (based on visual and passive acoustic
monitoring). If foundation pile driving has commenced, NMFS anticipates
North Atlantic right whales would avoid the area, utilizing nearby
waters to carry on pre-exposure behaviors. However, foundation
installation activities must be shut down if a North Atlantic right
whale is sighted and acoustically detected at any distance, unless a
shutdown is not feasible due to risk of injury or loss of life.
Shutdown may occur anywhere if North Atlantic right whales are seen
within or beyond the Level B harassment zone, further minimizing the
duration and intensity of exposure. NMFS anticipates that if North
Atlantic right whales go undetected and they are exposed to foundation
installation noise, it is unlikely a North Atlantic right whale would
approach the sound source locations to the degree that they would
purposely expose themselves to very high noise levels. This is because
typical observed whale behavior demonstrates likely avoidance of
harassing levels of sound where possible (Richardson et al., 1985).
These measures are designed to avoid PTS and also reduce the severity
of Level B harassment, including the potential for TTS. While some TTS
could occur, given the mitigation measures (e.g., delay pile driving
upon a sighting or acoustic detection and shutting down upon a sighting
or acoustic detection), the potential for TTS to occur is low.
The clearance and shutdown measures are most effective when
detection efficacy is maximized, as the measures are triggered by a
sighting or acoustic detection. To maximize detection efficacy, NMFS
requires the combination of PAM and visual observers. NMFS is requiring
communication protocols with other project vessels, and other
heightened awareness efforts (e.g., daily monitoring of North Atlantic
right whale sighting databases) such that as a North Atlantic right
whale approaches the source (and thereby could be exposed to higher
noise energy levels), PSO detection efficacy would increase, the whale
would be detected, and a delay to commencing foundation installation or
shutdown (if feasible) would occur. In addition, the implementation of
a soft-start for impact pile driving would provide an opportunity for
whales to move away from the source if they are undetected, reducing
received levels. Further, Dominion Energy has committed to not
installing two WTG or OSS foundations simultaneously. North Atlantic
right whales would, therefore, not be exposed to concurrent impact pile
driving on any given day and the area ensonified at any given time
would be limited. We further note that Dominion Energy will not be
starting the installation of foundation piles at night.
Additionally, Dominion Energy anticipates a need to undertake a
dual vibratory and impact pile driving approach for foundation piles to
avoid risks associated with pile run due to softer sedimentation in the
Project Area. While Dominion Energy expects that up to 70 percent of
their piles may necessitate this joint approach (approximately 123
foundation piles), realistically not all piles would be at risk of pile
run and would be installed, instead, by impact pile driving alone.
However, as a conservative approach given uncertainty with the seabed
conditions for the location of each pile, Dominion Energy assumed all
foundation piles would undertake this approach. Furthermore, Dominion
Energy has already stated that no concurrent installation of foundation
piles is planned to occur, no concurrent vibratory and impact driving
is expected to occur either as a 1.2-hour gap between the end vibratory
driving to the start of impact pile driving (to allow for the moving
and set-up of equipment) would treat each installation approach as a
separate event and would not overlap.
Finally, for HRG surveys, the maximum distance to the Level B
harassment threshold is 100 m. The estimated take, by Level B
harassment only, associated with HRG surveys conservatively accounts
for the maximum number of North Atlantic right whale exposures that may
occur when HRG acoustic sources are active. However, because of the
short maximum distance to the Level B harassment threshold isopleth
(100 m via the GeoMarine Dual 400 Sparker 800 J), the requirement that
vessels maintain a distance of 500 m from any North Atlantic right
whales, the fact that whales are unlikely to remain in close proximity
to an HRG survey vessel for any length of time, and that the acoustic
source would be shut down if a North Atlantic right whale is observed
within 500 m of the source, any exposure to noise levels above the
harassment threshold (if any) would be very brief. To further minimize
exposures, ramp-up of boomers, sparkers, and CHIRPs (if applicable)
must be delayed during the clearance period if PSOs detect a North
Atlantic right whale (or any other ESA-listed species) within 500 m of
the acoustic source. With implementation of the mitigation
requirements, take by Level A harassment is not anticipated and,
therefore, not authorized. Potential impacts associated with Level B
harassment would include low-level, temporary behavioral modifications,
most likely in the form of avoidance behavior. Given the high level of
precautions taken to minimize both the number and intensity of Level B
harassment on North Atlantic right whales, it is unlikely that the
anticipated low-level exposures would lead to reduced reproductive
success or survival.
As described above, no serious injury or mortality, or Level A
harassment, of North Atlantic right whale is anticipated or authorized.
Extensive North Atlantic right whale-specific mitigation measures
(beyond the robust suite required for all species) are expected to
further minimize the number and severity of takes by Level B
harassment. Given the documented habitat use within the area, the
majority of the individuals predicted taken (including no more than 17
instances of take, by Level B harassment only, over the course of the
5-year rule, with an annual maximum of no more than 7) would be
impacted on a maximum of 2 days in a year as North Atlantic right
whales utilize this area for migration and would be transiting rather
than residing in the area for extended periods of time; and, further,
any impacts to North Atlantic right whales are expected to be in the
form of lower-level behavioral disturbance. Given the magnitude and
severity of the impacts discussed above, and in consideration of the
required mitigation and other information presented, Dominion
[[Page 4451]]
Energy's activities are not expected to result in impacts on the
reproduction or survival of any individuals, much less affect annual
rates of recruitment or survival. For these reasons, we have determined
that the take by Level B harassment anticipated and authorized would
have a negligible impact on the North Atlantic right whale stock.
Fin Whale
The fin whale is listed as Endangered under the ESA, and the
western North Atlantic stock is considered both Depleted and Strategic
under the MMPA. No UME has been designated for this species or stock.
No serious injury or mortality is anticipated or authorized for this
species.
The rule authorizes up to 215 takes, by harassment only, over the
5-year effective period of the rule. The maximum annual allowable take
by Level A harassment and Level B harassment, would be 4 and 113,
respectively (combined, this annual take (n=117) equates to
approximately 1.72 percent of the stock abundance, if each take were
considered to be of a different individual), with far lower numbers
than that expected in the years without foundation installation (e.g.,
years when only HRG surveys would be occurring). The Project Area does
not overlap with any known areas of specific biological importance to
fin whales. It is likely that some subset of the individual whales
exposed could be taken several times annually.
Level B harassment is expected to be in the form of behavioral
disturbance, primarily resulting in avoidance of the Project Area where
foundation installation is occurring, and some low-level TTS and
masking that may limit the detection of acoustic cues for relatively
brief periods of time. Any potential PTS would be minor (limited to a
few dB) and any TTS would be of short duration and concentrated at half
or one octave above the frequency band of pile-driving noise (most
sound is below 2 kHz) which does not include the full predicted hearing
range of fin whales.
Fin whales are present in the waters off of Virginia year-round and
are one of the most frequently observed large whales and cetaceans in
continental shelf waters, principally from Cape Hatteras in the Mid-
Atlantic northward to Nova Scotia, Canada (Sergeant, 1977; Sutcliffe
and Brodie, 1977; CETAP, 1982; Hain et al., 1992; Geo-Marine, 2010;
BOEM 2012; Edwards et al., 2015; Hayes et al., 2022). Fin whales have
high relative abundance in the Mid-Atlantic and Project Area, most
observations occur in the winter and summer months (Geo-Marine, 2010;
Hayes et al., 2022) though detections do occur in spring and fall
(Watkins et al., 1987; Clark and Gagnon 2002; Geo-Marine, 2010; Morano
et al., 2012). However, fin whales typically feed in waters off of New
England and within the Gulf of Maine, areas north of the Project Area,
as New England and Gulf of St. Lawrence waters represent major feeding
ground for fin whales (Hayes et al., 2022). Hain et al. (1992), based
on an analysis of neonate stranding data, suggested that calving takes
place during October to January in latitudes of the U.S. mid-Atlantic
region; however, it is unknown where calving, mating, and wintering
occur for most of the population (Hayes et al., 2022).
Given the documented habitat use within the area, some of the
individuals taken would likely be exposed on multiple days. However, as
described the Project Area does not include areas where fin whales are
known to concentrate for feeding or reproductive behaviors and the
predicted takes are expected to be in the form of lower-level impacts.
Given the magnitude and severity of the impacts discussed above
(including no more than 215 takes by harassment only over the course of
the 5-year rule, and a maximum annual allowable take by Level A
harassment and Level B harassment, of 4 and 113, respectively), and in
consideration of the required mitigation and other information
presented, Dominion Energy's activities are not expected to result in
impacts on the reproduction or survival of any individuals, much less
affect annual rates of recruitment or survival. For these reasons, we
have determined that the take by harassment anticipated and authorized
will have a negligible impact on the western North Atlantic stock of
fin whales.
Humpback Whale
The West Indies DPS of humpback whales is not listed as threatened
or endangered under the ESA, but the Gulf of Maine stock, which
includes individuals from the West Indies DPS, is considered Strategic
under the MMPA. However, as described in the Description of Marine
Mammals in the Specified Geographic Region section of this preamble,
humpback whales along the Atlantic Coast have been experiencing an
active UME as elevated humpback whale mortalities have occurred along
the Atlantic coast from Maine through Florida since January 2016. Of
the cases examined, approximately 40 percent had evidence of human
interaction (vessel strike or entanglement). The UME does not yet
provide cause for concern regarding population-level impacts and take
from vessel strike and entanglement is not authorized in this
rulemaking. Despite the UME, the relevant population of humpback whales
(the West Indies breeding population, or DPS of which the Gulf of Maine
stock is a part) remains stable at approximately 12,000 individuals.
The rule authorizes up to 250 takes by harassment only over the 5-
year period. The maximum annual allowable take by Level A harassment
and Level B harassment, is four and 130, respectively (combined, this
maximum annual take (n=134) equates to approximately 9.6 percent of the
stock abundance, if each take were considered to be of a different
individual), with far lower numbers than that expected in the years
without foundation installation (e.g., years when only HRG surveys
would be occurring). Given that humpback whales are known to forage off
of Virginia, it is likely that some subset of the individual whales
exposed could be taken several times annually.
Among the activities analyzed, pile driving is likely to result in
the highest number of Level A harassment annual takes (four) of
humpback whales. The maximum number of annual take authorized, by Level
B harassment, is highest for pile driving (n=104; WTGs plus OSS pin
piles).
As described in the Description of Marine Mammals in the Specified
Geographic Region section, Humpback whales are known to occur regularly
throughout the Mid-Atlantic Bight, including Virginia waters, with
strong seasonality where peak occurrences occur April to June (Barco et
al., 2002; Geo-Marine, 2010; Curtice et al., 2019; Hayes et al., 2022).
In the western North Atlantic, humpback whales feed during spring,
summer, and fall over a geographic range encompassing the eastern coast
of the U.S. Feeding is generally considered to be focused in areas
north of the Project Area, including a feeding BIA in the Gulf of
Maine/Stellwagen Bank/Great South Channel but has been documented
farther south and off the coast of Virginia. When foraging, humpback
whales tend to remain in the area for extended durations to capitalize
on the food sources.
Assuming humpback whales who are feeding in waters within or
surrounding the Project Area behave similarly, we expect that the
predicted instances of disturbance could be comprised of some
individuals that may be exposed on multiple days if they are utilizing
the area as foraging habitat. Also similar to other baleen whales, if
migrating, such individuals would likely be exposed to
[[Page 4452]]
noise levels from the project above the harassment thresholds only once
during migration through the Project Area.
For all the reasons described in the Mysticetes section above, we
anticipate any potential PTS and TTS would be concentrated at half or
one octave above the frequency band of pile-driving noise (most sound
is below 2 kHz) which does not include the full predicted hearing range
of baleen whales. If TTS is incurred, hearing sensitivity would likely
return to pre-exposure levels relatively shortly after exposure ends.
Any masking or physiological responses would also be of low magnitude
and severity for reasons described above.
Given the magnitude and severity of the impacts discussed above
(including no more than 250 takes over the course of the 5-year rule,
and a maximum annual allowable take by Level A harassment and Level B
harassment, of four and 130, respectively), and in consideration of the
required mitigation measures and other information presented, Dominion
Energy's activities are not expected to result in impacts on the
reproduction or survival of any individuals, much less affect annual
rates of recruitment or survival. For these reasons, we have determined
that the take by harassment anticipated and authorized will have a
negligible impact on the Gulf of Maine stock of humpback whales.
Minke Whale
Minke whales are not listed under the ESA, and the Canadian East
Coast stock is neither considered Depleted nor strategic under the
MMPA. There are no known areas of specific biological importance in or
adjacent to the Project Area. As described in the Description of Marine
Mammals in the Specified Geographic Region section, a UME has been
designated for this species but is pending closure. No serious injury
or mortality is anticipated or authorized for this species.
The rule authorizes up to 131 takes, by harassment only, over the
5-year period. The maximum annual allowable take by Level A harassment
and Level B harassment, would be eight and 56, respectively (combined,
this annual take (n=64) equates to approximately 0.29 percent of the
stock abundance, if each take were considered to be of a different
individual), with far lower numbers than that expected in the years
without foundation installation (e.g., years when only HRG surveys
would be occurring). As described in the Description of Marine Mammals
in the Specified Geographic Region section of the proposed rule, minke
whales are common offshore the U.S. Eastern Seaboard with a strong
seasonal component in the continental shelf and in deeper, off-shelf
waters (CETAP, 1982; Hayes et al., 2022). In the Project area, minke
whales are predominantly migratory and their known feeding areas are
north, including a feeding BIA in the southwestern Gulf of Maine and
George's Bank. Therefore, they would be more likely to be moving
through (with each take representing a separate individual), though it
is possible that some subset of the individual whales exposed could be
taken up to a few times annually.
As described in the Description of Marine Mammals in the Specified
Geographic Region section, there is a UME for Minke whales, along the
Atlantic coast from Maine through South Carolina, with highest number
of deaths in Massachusetts, Maine, and New York, and preliminary
findings in several of the whales have shown evidence of human
interactions or infectious diseases. However, we note that the
population abundance is greater than 21,000 and the take authorized
through this action is not expected to exacerbate the UME in any way.
Furthermore, this UME has been declared non-active and is pending
closure.
We anticipate the impacts of this harassment to follow those
described in the general Mysticetes section above. Any potential PTS
would be minor (limited to a few dB) and any TTS would be of short
duration and concentrated at half or one octave above the frequency
band of pile-driving noise (most sound is below 2 kHz) which does not
include the full predicted hearing range of minke whales. Level B
harassment would be temporary, with primary impacts being temporary
displacement of the Project Area but not abandonment of any migratory
or foraging behavior.
Given the magnitude and severity of the impacts discussed above
(including no more than 131 takes of the course of the 5-year rule, and
a maximum annual allowable take by Level A harassment and Level B
harassment, of 8 and 56, respectively), and in consideration of the
required mitigation and other information presented, Dominion Energy's
activities are not expected to result in impacts on the reproduction or
survival of any individuals, much less affect annual rates of
recruitment or survival. For these reasons, we have determined that the
take by harassment anticipated and authorized will have a negligible
impact on the Canadian Eastern Coastal stock of minke whales.
Sei Whale
Sei whales are listed as Endangered under the ESA, and the Nova
Scotia stock is considered both Depleted and Strategic under the MMPA.
There are no known areas of specific biological importance in or
adjacent to the Project Area and no UME has been designated for this
species or stock. No serious injury or mortality is anticipated or
authorized for this species.
The rule authorizes up to 10 takes, by harassment only, over the 5-
year period. The maximum annual allowable take by Level A harassment
and Level B harassment, would be one and three, respectively (combined,
this annual take (n=4) equates to approximately 0.06 percent of the
stock abundance if each take were considered to be of a different
individual). As described in the Description of Marine Mammals in the
Area of Specified Activities section of the proposed rule, most of the
sei whale distribution is concentrated in Canadian waters and
seasonally in northerly U.S. waters, though they are uncommonly
observed in the waters off of Virginia. Because sei whales are
migratory and their known feeding areas are east and north of the
Project Area (e.g., there is a feeding BIA in the Gulf of Maine), they
would be more likely to be moving through and, considering this and the
very low number of total takes, it is unlikely that any individual
would be exposed more than once within a given year.
With respect to the severity of those individual takes by
behavioral Level B harassment, we would anticipate impacts to be
limited to low-level, temporary behavioral responses with avoidance and
potential masking impacts in the vicinity of the turbine installation
to be the most likely type of response. Any potential PTS and TTS would
likely be concentrated at half or one octave above the frequency band
of pile-driving noise (most sound is below 2 kHz) which does not
include the full predicted hearing range of sei whales. Moreover, any
TTS would be of a small degree. Any avoidance of the Project Area due
to the Project's activities would be expected to be temporary.
Given the magnitude and severity of the impacts discussed above
(including no more than ten takes of the course of the 5-year rule, and
a maximum annual allowable take by Level A harassment and Level B
harassment, of one and three, respectively), and in consideration of
the required mitigation and other information presented, Dominion
Energy's activities are not expected to result in impacts on the
reproduction or survival of any
[[Page 4453]]
individuals, much less affect annual rates of recruitment or survival.
For these reasons, we have determined that the take by harassment
anticipated and authorized will have a negligible impact on the Nova
Scotia stock of sei whales.
Odontocetes
In this section, we include information here that applies to all of
the odontocete species and stocks addressed below. Odontocetes include
dolphins, porpoises, and all other whales possessing teeth, and we
further divide them into the following subsections: sperm whales,
dolphins and small whales, and harbor porpoises. These sub-sections
include more specific information, as well as conclusions for each
stock represented.
All of the takes of odontocetes authorized incidental to Dominion
Energy's specified activities are by pile driving and HRG surveys. No
serious injury or mortality is anticipated or authorized. We anticipate
that, given ranges of individuals (i.e., that some individuals remain
within a small area for some period of time), and non-migratory nature
of some odontocetes in general (especially as compared to mysticetes),
these takes are more likely to represent multiple exposures of a
smaller number of individuals than is the case for mysticetes, though
some takes may also represent one-time exposures to an individual.
Foundation installation is likely to disturb odontocetes to the
greatest extent, compared to HRG surveys. While we expect animals to
avoid the area during foundation installation, their habitat range is
extensive compared to the area ensonified during these activities.
As described earlier, Level B harassment may include direct
disruptions in behavioral patterns (e.g., avoidance, changes in
vocalizations (from masking) or foraging), as well as those associated
with stress responses or TTS. Odontocetes are highly mobile species and
similar to mysticetes, NMFS expects any avoidance behavior to be
limited to the area near the sound source. While masking could occur
during foundation installation, it would only occur in the vicinity of
and during the duration of the activity and would not generally occur
in a frequency range that overlaps most odontocete communication or any
echolocation signals. The mitigation measures (e.g., use of sound
attenuation systems, implementation of clearance and shutdown zones)
would also minimize received levels such that the severity of any
behavioral response would be expected to be less than exposure to
unmitigated noise exposure.
Any masking or TTS effects are anticipated to be of low-severity.
First, the frequency range of pile driving, the most impactful activity
to be conducted in terms of response severity, falls within a portion
of the frequency range of most odontocete vocalizations. However,
odontocete vocalizations span a much wider range than the low frequency
construction activities planned for the project. As described above,
recent studies suggest odontocetes have a mechanism to self-mitigate
(i.e., reduce hearing sensitivity) the impacts of noise exposure, which
could potentially reduce TTS impacts. Any masking or TTS is anticipated
to be limited and would typically only interfere with communication
within a portion of an odontocete's range and as discussed earlier, the
effects would only be expected to be of a short duration and, for TTS,
a relatively small degree.
Furthermore, odontocete echolocation occurs predominantly at
frequencies significantly higher than low frequency construction
activities. Therefore, there is little likelihood that threshold shift
would interfere with feeding behaviors. For HRG surveys, the sources
operate at higher frequencies than foundation installation activities.
However, sounds from these sources attenuate very quickly in the water
column, as described above. Therefore, any potential for PTS and TTS
and masking is very limited. Further, odontocetes (e.g., common
dolphins, spotted dolphins, bottlenose dolphins) have demonstrated an
affinity to bow-ride actively surveying HRG surveys. Therefore, the
severity of any harassment, if it does occur, is anticipated to be
minimal based on the lack of avoidance previously demonstrated by these
species.
The waters off the coast of Virginia are used by several odontocete
species. However, none except the sperm whale are listed under the ESA,
and there are no known habitats of particular importance. In general,
odontocete habitat ranges are far-reaching along the Atlantic coast of
the U.S. and the waters off of Virginia, including the Project Area, do
not contain any particularly unique odontocete habitat features.
Sperm Whale
Sperm whales are listed as endangered under the ESA, and the North
Atlantic stock is considered both Depleted and Strategic under the
MMPA. The North Atlantic stock spans the East Coast out into oceanic
waters well beyond the U.S. exclusive economic zone. Although listed as
endangered, the primary threat faced by the sperm whale across its
range (i.e., commercial whaling) has been eliminated. Current potential
threats to the species globally include vessel strikes, entanglement in
fishing gear, anthropogenic noise, exposure to contaminants, climate
change, and marine debris. There is no currently reported trend for the
stock and, although the species is listed as endangered under the ESA,
there are no specific issues with the status of the stock that cause
particular concern (e.g., no UMEs). There are no known areas of
biological importance (e.g., critical habitat or BIAs) in or near the
Project Area. No mortality or serious injury is anticipated or
authorized for this species.
The rule authorizes up to six takes, by Level B harassment only
over the 5-year period. The maximum annual allowable take by Level B
harassment, is three, which equates to approximately 0.07 percent of
the stock abundance, if each take were considered to be of a different
individual, with no take expected in the years without foundation
installation (e.g., years when only HRG surveys would be occurring).
Given sperm whale's preference for deeper waters, especially for
feeding, it is unlikely that individuals will remain in the Project
Area for multiple days, and therefore, the estimated takes likely
represent exposures of different individuals on 1 day annually.
If sperm whales are present in the Project Area during any Project
activities, they will likely be only transient visitors and not
engaging in any significant behaviors. Further, the potential for TTS
is low for reasons described in the general Odontocete section, but if
it does occur, any hearing shift would be small and of a short
duration. Because whales are not expected to be foraging in the Project
Area, any TTS is not expected to interfere with foraging behavior.
Given the magnitude and severity of the impacts discussed above
(including no more than six takes, by Level B harassment only, over the
course of the 5-year rule, and a maximum annual allowable take of
three), and in consideration of the required mitigation and other
information presented, Dominion Energy's activities are not expected to
result in impacts on the reproduction or survival of any individuals,
much less affect annual rates of recruitment or survival. For these
reasons, we have determined that the take by Level B harassment
anticipated and authorized will have a negligible impact on the North
Atlantic stock of sperm whales.
[[Page 4454]]
Dolphins and Small Whales (Inclusive of Delphinid Species, False Killer
Whale, Melon-headed Whale, Pygmy Sperm Whale, and Pilot Whales)
The 12 species and 13 stocks included in this group (which are
indicated in Table 2 in the Kogiidae and Delphinidae families) are not
listed under the ESA; however, the Southern Migratory Coastal stock of
bottlenose dolphins and short-finned pilot whales are listed as
Strategic under the MMPA, and pantropical spotted dolphins are listed
as Depleted under the MMPA. There are no known areas of specific
biological importance in or around the Project Area. As described above
for any of these species and no UMEs have been designated for any of
these species. No serious injury or mortality is anticipated or
authorized for these species.
The 11 delphinid species (constituting 12 stocks) with takes
authorized for the Project are Atlantic spotted dolphin, Atlantic
white-sided dolphin, bottlenose dolphin, Clymene dolphin, common
dolphin, false killer whale, melon-headed whale, long-finned pilot
whale, short-finned pilot whale, pantropical spotted dolphin, and
Risso's dolphin. The rule would allow for the total authorization of 8
to 26,764 takes (depending on species) by Level B harassment only, over
the 5-year period. The maximum annual allowable take for these species
by Level B harassment, would range from 4 (false killer whale) to 7,360
(both Atlantic spotted dolphin and common dolphin). Overall, this
annual take equates to approximately 0.04 (Atlantic white-sided
dolphin) to 18.44 (Atlantic spotted dolphin) percent of the stock
abundance (if each take were considered to be of a different
individual, which is not likely the case) depending on the species,
with far lower numbers than that expected in the years without
foundation installation (e.g., years when only HRG surveys would be
occurring).
Take has also been authorized for a single species (of a single
stock) of Family Kogiidae, the pygmy sperm whale. This rule allows for
the total authorization of two takes by Level B harassment only, over
the entire 5-year period. The maximum annual allowable take for this
species, by Level B harassment only, is one per year. Relative to the
total population estimate for this small whale species, this equates to
approximately 0.01 percent of the stock abundance, if each of the takes
were considered to be of a different individual.
The number of takes, likely movement patterns of the affected
species, and the intensity of any Level B harassment, combined with the
availability of alternate nearby foraging habitat suggests that the
likely impacts would not impact the reproduction or survival of any
individuals. While delphinids may be taken on several occasions, none
of these species are known to have small home ranges within the Project
Area or known to be particularly sensitive to anthropogenic noise. Some
TTS can occur, but it would be limited to the frequency ranges of the
activity and any loss of hearing sensitivity is anticipated to return
to pre-exposure conditions shortly after the animals move away from the
source or the source ceases.
Across these species, the maximum number of incidental takes, by
Level B harassment only, authorized in any one year ranges between 1
(pygmy sperm whale) and 7,360 (for both Atlantic spotted dolphins and
common dolphins). The number of takes authorized in the last 3 years of
the rule is notably less and the 5-year total number of take (by Level
B harassment only) authorized ranges between 2 (pygmy sperm whale) and
26,764 (Atlantic spotted dolphin). Further, though the estimated
numbers of take are comparatively higher than the numbers for
mysticetes, we note that for all species they are relatively low
relative to the population abundance.
For the Atlantic spotted dolphin, given both the comparatively
higher number of takes and the higher number of takes relative to the
stock abundance, while some of the takes likely represent exposures of
different individuals on 1 day a year, it is likely that some subset of
the individuals exposed could be taken several times annually. For all
three stocks of bottlenose dolphin (i.e., offshore, coastal, and joint-
offshore and coastal), given the number of takes and residential
tendencies of the species, while many of the takes likely represent
exposures of different individuals on 1 day a year, some subset of the
individuals exposed could be taken up to a few times annually.
As described above for odontocetes broadly, given the comparatively
higher number of estimated takes for some species and the behavioral
patterns of odontocetes, we anticipate that a fair number of these
instances of take in a day represent multiple exposures of a smaller
number of individuals, meaning the actual number of individuals taken
is lower. Although some amount of repeated exposure to some individuals
is likely given the duration of activity planned by Dominion Energy,
the intensity of any Level B harassment combined with the availability
of alternate nearby foraging habitat suggests that the likely impacts
would not impact the reproduction or survival of any individuals.
Overall, most of the populations of all delphinid and small whale
species and stocks for which we authorize take are stable (no declining
population trends). For others, two stocks are labeled as strategic
(i.e., Southern Migratory Coastal stock of bottlenose dolphins and
Western North Atlantic stock of short-finned pilot whale) and one is
labeled as depleted (i.e., pantropical spotted dolphin). None of these
stocks are experiencing existing UMEs. No mortality, serious injury or
Level A harassment is anticipated or authorized for any of these
species. Given the magnitude and severity of the impacts discussed
above and in consideration of the required mitigation and other
information presented, as well as the status of these stocks, Dominion
Energy's activities are not expected to result in impacts on the
reproduction or survival of any individuals, much less affect annual
rates of recruitment or survival. For these reasons, we have determined
that the take by harassment anticipated and authorized will have a
negligible impact on all of the following species and stocks: pygmy
sperm whales, Atlantic spotted dolphins, Atlantic white-sided dolphins,
bottlenose dolphins, Clymene dolphins, common dolphins, false killer
whales, melon-headed whales, pilot whale spp. (consisting of long-fined
pilot whales and short-finned pilot whales), pantropical spotted
dolphins, and Risso's dolphins.
Harbor Porpoises
Harbor porpoises are not listed under the ESA, and the Gulf of
Maine/Bay of Fundy stock is neither considered depleted or strategic
under the MMPA. The stock is found predominantly in northern U.S.
coastal waters (less than 150 m depth) and up into Canada's Bay of
Fundy (between New Brunswick and Nova Scotia). Although the population
trend is not known, there are no UMEs or other factors that cause
particular concern for this stock. No mortality or non-auditory injury
are anticipated or authorized for this stock.
The rule authorizes up to 143 takes, by harassment only, over the
5-year period. The maximum annual allowable take by Level A harassment
and Level B harassment, would be 1 and 40, respectively (combined, this
annual take (n=41) equates to approximately 0.04 percent of the stock
abundance if each take were considered to be of a different
individual). Given the number of takes, while many of the takes likely
represent exposures of different individuals on 1 day a year, some
subset of the
[[Page 4455]]
individuals exposed could be taken up to a few times annually.
Regarding the severity of takes by Level B harassment, because
harbor porpoises are particularly sensitive to noise, it is likely that
a fair number of the responses could be of a moderate nature,
particularly to pile driving. In response to pile driving, harbor
porpoises are likely to avoid the area during construction, as
previously demonstrated in Tougaard et al. (2009) in Denmark, in Dahne
et al. (2013) in Germany, and in Vallejo et al. (2017) in the United
Kingdom, although a study by Graham et al. (2019) may indicate that the
avoidance distance could decrease over time. However, foundation
installation is scheduled to occur off the coast of Virginia (based on
the density values (0.00000) presented for both summer (June to August)
and fall (September to October); Table 1) and, given alternative
foraging areas, any avoidance of the area by individuals is not likely
to impact the reproduction or survival of any individuals.
With respect to PTS and TTS, the effects on an individual are
likely relatively low given the frequency bands of pile driving (most
energy below 2 kHz) compared to harbor porpoise hearing (150 Hz to 160
kHz peaking around 40 kHz). Specifically, TTS is unlikely to impact
hearing ability in their more sensitive hearing ranges, or the
frequencies in which they communicate and echolocate. We expect any PTS
that may occur to be within the very low end of their hearing range
where harbor porpoises are not particularly sensitive, and any PTS
would be of small magnitude. As such, any PTS would not interfere with
key foraging or reproductive strategies necessary for reproduction or
survival.
As discussed in Hayes et al. (2022), harbor porpoises are
seasonally distributed. During fall (October through December) and
spring (April through June), harbor porpoises are widely dispersed from
New Jersey to Maine, with lower densities farther north and south.
During winter (January to March), intermediate densities of harbor
porpoises can be found in waters off New Jersey to North Carolina, and
lower densities are found in waters off New York to New Brunswick,
Canada. In non-summer months they have been seen from the coastline to
deep waters (<1,800 m; Westgate et al., 1998), although the majority
are found over the continental shelf. While harbor porpoises are likely
to avoid the area during any of the Project's construction activities,
as demonstrated during European wind farm construction, the time of
year in which work would occur is when harbor porpoises are not in
highest abundance, and any work that does occur would not result in the
species' abandonment of the waters off of Virginia.
Given the magnitude and severity of the impacts discussed above,
and in consideration of the required mitigation and other information
presented, Dominion Energy's activities are not expected to result in
impacts on the reproduction or survival of any individuals, much less
affect annual rates of recruitment or survival. For these reasons, we
have determined that the take by harassment anticipated and authorized
will have a negligible impact on the Gulf of Maine/Bay of Fundy stock
of harbor porpoises.
Phocids (Harbor Seals and Gray Seals)
The harbor seal and gray seal are not listed under the ESA, and
neither the western North Atlantic stock of gray seal nor the western
North Atlantic stock of harbor seal are considered depleted or
strategic under the MMPA. There are no known areas of specific
biological importance in or around the Project Area. As described in
the Description of Marine Mammals in the Specified Geographic Region
section, a UME has been designated for harbor seals and gray seals and
is described further below. No serious injury or mortality is
anticipated or authorized for this species.
For the 2 seal species, the rule authorizes up to 220 takes for
each species by harassment only over the 5-year period. The maximum
annual allowable take for each species by Level A harassment and Level
B harassment, would be one and 83, respectively (combined, this annual
take (n=84) equates to approximately 0.14 percent of the stock
abundance for harbor seals and 0.31 percent of the stock abundance for
gray seals, if each take were considered to be of a different
individual). Though harbor seals and gray seals are considered
migratory and no specific feeding areas have been designated in the
area, the higher number of takes relative to the stock abundance
suggests that while some of the takes likely represent exposures of
different individuals on 1 day a year, it is likely that some subset of
the individuals exposed could be taken several times annually.
Harbor and gray seals occur in Virginia waters most often during
the fall and winter, sometimes until early spring, with harbor seal
occurrences more common than gray seals (Hayes et al., 2022; Jones and
Rees, 2022; Ampela et al., 2023). Seals are more likely to be close to
shore (e.g., closer to the edge of the area ensonified above NMFS'
harassment threshold), such that exposure to foundation installation
would be expected to be at comparatively lower levels. There are no
known haul-out sites or other areas of importance for either harbor or
gray seals near the coastal cofferdam and goal post location (offshore
of the State Military Reservation in Virginia Beach, Virginia) or in
the Project Area. However, pinnipeds have been recorded at different
sites in the Chesapeake Bay and along Eastern Shore, Virginia (Jones
and Rees, 2022; Ampela et al., 2023). Given the distance for which we
expect Dominion Energy's activities to occur, away from the mouth and
in-water regions of the Chesapeake Bay, NMFS does not expect that in-
air sounds produced would cause the take of hauled-out pinnipeds.
Therefore, NMFS does not expect any harassment to occur and has not
authorized any take from in-air impacts on hauled-out seals.
As described in the Potential Effects to Marine Mammals and Their
Habitat section in the proposed rule (88 FR 28656, May 4, 2023),
construction of wind farms in Europe resulted in pinnipeds temporarily
avoiding construction areas but returning within short time frames
after construction was complete (Carroll et al., 2010; Hamre et al.,
2011; Hastie et al., 2015; Russell et al., 2016; Brasseur et al.,
2010). Effects on pinnipeds that are taken by Level B harassment in the
Project Area would likely be limited to reactions such as increased
swimming speeds, increased surfacing time, or decreased foraging (if
such activity were occurring). Most likely, individuals would simply
move away from the sound source and be temporarily displaced from those
areas (see Lucke et al., 2006; Edren et al., 2010; Skeate et al., 2012;
Russell et al., 2016).
Given the low anticipated magnitude of impacts from any given
exposure (e.g., temporary avoidance), even repeated Level B harassment
across a few days of some small subset of individuals, which could
occur, is unlikely to result in impacts on the reproduction or survival
of any individuals. Moreover, pinnipeds would benefit from the
mitigation measures described in 50 CFR part 217--Regulations Governing
the Taking and Importing of Marine Mammals Incidental to Specified
Activities.
As described above, noise from pile driving is mainly low frequency
and, while any PTS and TTS that does occur would fall within the lower
end of pinniped hearing ranges (50 Hz to 86 kHz), PTS and TTS would not
occur at frequencies around 5 kHz where
[[Page 4456]]
pinniped hearing is most susceptible to noise-induced hearing loss
(Kastelein et al., 2018). In summary, any PTS and TTS would be of small
degree and not occur across the entire, or even most sensitive, hearing
range. Hence, any impacts from PTS and TTS are likely to be of low
severity and not interfere with behaviors critical to reproduction or
survival.
Elevated numbers of harbor seal and gray seal mortalities were
first observed in July 2018 and occurred across Maine, New Hampshire,
and Massachusetts until 2020. Based on tests conducted so far, the main
pathogen found in the seals belonging to that UME was phocine distemper
virus, although additional testing to identify other factors that may
be involved in this UME are underway. Currently, the only active UME is
occurring in Maine with some harbor and gray seals testing positive for
highly pathogenic avian in[fllig]uenza (HPAI) H5N1. Although elevated
strandings continue, neither UME (alone or in combination) provides
cause for concern regarding population-level impacts to any of these
stocks. For harbor seals, the population abundance is over 61,000 and
annual mortality/serious injury (M/SI) (n=339) is well below PBR
(1,729) (Hayes et al., 2020). The population abundance for gray seals
in the United States is over 27,000, with an estimated overall
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., 2020).
Given the magnitude and severity of the impacts discussed above,
and in consideration of the required mitigation and other information
presented, Dominion Energy's activities are not expected to result in
impacts on the reproduction or survival of any individuals, much less
affect annual rates of recruitment or survival. For these reasons, we
have determined that the take by harassment anticipated and authorized
will have a negligible impact on harbor and gray seals.
Negligible Impact Determination
No mortality or serious injury is anticipated to occur or
authorized. As described in the analysis above, the impacts resulting
from the project's activities cannot be reasonably expected to, and are
not reasonably likely to, adversely affect any of the species or stocks
through effects on annual rates of recruitment or survival. Based on
the analysis contained herein of the likely effects of the specified
activity on marine mammals and their habitat, and, taking into
consideration the implementation of the required mitigation and
monitoring measures, NMFS finds that the marine mammal take from all of
Dominion Energy's specified activities combined will have a negligible
impact on all affected marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the maximum number of individuals
estimated to be taken in a year 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 less 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 is authorizing incidental take by Level A harassment and/or
Level B harassment of 21 species of marine mammals (with 22 managed
stocks). The maximum number of instances of takes by combined Level A
harassment and Level B harassment possible within any 1 year relative
to the best available population abundance is less than one-third for
all species and stocks potentially impacted.
For 13 stocks, less than 1 percent of the stock abundance is
authorized to be annually taken by harassment; for 7 stocks, less than
10 percent of the stock abundance is authorized to be taken annually by
harassment; and for 1 stock, less than 20 percent of the stock
abundance is authorized to be annually take by harassment. Specific to
the North Atlantic right whale, the maximum amount of take, which is by
Level B harassment only, is 7, or 2.07 percent of the stock abundance,
assuming that each instance of take represents a different individual.
While no population estimate is available for melon-headed whales, it
can be assumed that the low amount of maximum annual take authorized
(n=5; by Level B harassment only) would constitute small numbers. For
all species, please see Table 24 for information relating to this small
numbers analysis.
Based on the analysis contained herein of the activities (including
the required mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS 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.
Classification
Endangered Species Act (ESA)
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency ensure 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 promulgation of rulemakings, NMFS
consults internally whenever we propose to authorize take for
endangered or threatened species, in this case with the NOAA GARFO.
There are four marine mammal species under NMFS jurisdiction that
are listed as endangered or threatened under the ESA that may be taken,
by harassment, incidental to construction of the CVOW-C Project: the
North Atlantic right, sei, fin, and sperm whale. The Permit and
Conservation Division requested initiation of section 7 consultation on
April 4, 2023 with GARFO on the issuance of the CVOW-C regulations and
the associated 5-year LOA under section 101(a)(5)(A) of the MMPA.
NMFS issued a Biological Opinion on September 19, 2023 concluding
that the promulgation of the rule and issuance of LOAs thereunder is
not likely to jeopardize the continued existence of threatened and
endangered species under NMFS' jurisdiction and is not likely to result
in the destruction or adverse modification of designated or proposed
critical habitat. The Biological Opinion is available at https://repository.library.noaa.gov/view/noaa/55495.
Dominion Energy is required to abide by the promulgated
regulations, as well as the reasonable and prudent measures and terms
and conditions of the
[[Page 4457]]
Biological Opinion and Incidental Take Statement, as issued by NMFS.
National Environmental Policy Act (NEPA)
To comply with the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and NOAA Administrative Order 216-6A, NMFS must
evaluate our proposed action (i.e., promulgation of regulation) and
alternatives with respect to potential impacts on the human
environment. NMFS participated as a cooperating agency on the BOEM
final Environmental Impact Statement (FEIS) for the CVOW-C Project
offshore Virginia (2023 CVOW-C FEIS), which was finalized on September
29, 2023, and is available at https://www.boem.gov/renewable-energy/state-activities/coastal-virginia-offshore-wind-commercial-project-final. In accordance with 40 CFR 1506.3, NMFS independently reviewed
and evaluated the 2023 CVOW-C FEIS and determined that it is adequate
and sufficient to meet our responsibilities under NEPA for the
promulgation of this rule and issuance of the associated LOA. NMFS,
therefore, has adopted the 2023 CVOW-C FEIS through a joint Record of
Decision (ROD) with BOEM. The joint ROD for adoption of the 2023 CVOW-C
FEIS and promulgation of this final rule and subsequent issuance of a
LOA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
Executive Order 12866
The Office of Management and Budget has determined that this rule
is not significant for purposes of Executive Order 12866.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et
seq.), the Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not required and none was prepared.
Paperwork Reduction Act
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the Paperwork Reduction Act (PRA) unless that collection of
information displays a currently valid Office of Management and Budget
(OMB) control number. These requirements have been approved by OMB
under control number 0648-0151 and include applications for
regulations, subsequent LOA, and reports. Send comments regarding any
aspect of this data collection, including suggestions for reducing the
burden, to NMFS.
Coastal Zone Management Act (CZMA)
The Coastal Zone Management Act requires that any applicant for a
required Federal license or permit to conduct an activity, within the
coastal zone or within the geographic location descriptions (i.e.,
areas outside the coastal zone in which an activity would have
reasonably foreseeable coastal effects), affecting any land or water
use or natural resource of the coastal zone be consistent with the
enforceable policies of a state's federally approved coastal management
program. NMFS determined that Dominion Energy's application for an
incidental take regulations is an unlisted activity and, thus, is not
subject to Federal consistency requirements in the absence of the
receipt and prior approval of an unlisted activity review request from
the state by the Director of NOAA's Office for Coastal Management.
Pursuant to 15 CFR 930.54, NMFS published notice of receipt of Dominion
Energy's application in the Federal Register on September 15, 2022 (87
FR 56634) and published notice of the proposed rule on May 4, 2023 (88
FR 28656). The Commonwealth of Virginia did not request approval from
the Director of NOAA's Office for Coastal Management to review Dominion
Energy's application as an unlisted activity, and the time period for
making such request has expired. Therefore, NMFS has determined the
incidental take authorization is not subject to Federal consistency
review.
Waiver of Delay in Effective Date
The Assistant Administrator for Fisheries has determined that there
is a sufficient basis under the Administrative Procedure Act (APA) to
waive the 30-day delay in the effective date of the measures contained
in the final rule. Section 553 of the APA provides that the required
publication or service of a substantive rule shall be made not less
than 30 days before its effective date with certain exceptions,
including (1) for a substantive rule that relieves a restriction or (2)
when the agency finds and provides good cause for foregoing delayed
effectiveness (5 U.S.C 553(d)(1), (d)(3)). Here, the issuance of
regulations under section 101(a)(5)(A) of the MMPA is a substantive
action that relieves the statutory prohibition on the taking of marine
mammals, specifically, the incidental taking of marine mammals
associated with Dominion Energy's specified activities during the
construction of the CVOW-C Project offshore of Virginia. Until the
effective date of these regulations, Dominion Energy is prohibited from
taking marine mammals incidental to the Project.
In addition, good cause exists for waiving the delay in effective
date. Dominion Energy plans to conduct HRG surveys in early February
2024. Delays in this activity will impact construction activity
sequencing and potentially vessel and other service procurement and
availability. Moreover, offshore wind projects, such as the CVOW-C
Project, that are developed to generate renewable energy have great
societal and economic importance, and delays in completing the project
are contrary to the public interest.
Finally, Dominion Energy has informed NMFS that it does not require
30 days to prepare for implementation of the regulations and requests
that this final rule take effect on or before February 5, 2024. For
these reasons, the subject regulations will be made immediately
effective upon publication.
List of Subjects in 50 CFR Part 217
Administrative practice and procedure, Endangered and threatened
species, Fish, Fisheries, Marine mammals, Penalties, Reporting and
recordkeeping requirements, Wildlife.
Dated: January 4, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, NMFS amends 50 CFR part 217
to read as follows:
PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES
0
1. The authority citation for part 217 continues to read:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Add subpart DD, consisting of Sec. Sec. 217.290 through 217.299, to
read as follows:
[[Page 4458]]
Subpart DD--Taking Marine Mammals Incidental to the Coastal Virginia
Offshore Wind Commercial Project Offshore of Virginia
Sec.
217.290 Specified activity and specified geographical region.
217.291 Effective dates.
217.292 Permissible methods of taking.
217.293 Prohibitions.
217.294 Mitigation requirements.
217.295 Monitoring and reporting requirements.
217.296 Letter of Authorization.
217.297 Modifications of Letter of Authorization.
217.298-217.299 [Reserved]
Subpart DD--Taking Marine Mammals Incidental to the Coastal
Virginia Offshore Wind Commercial Project Offshore of Virginia
Sec. 217.290 Specified activity and specified geographical region.
(a) Regulations in this subpart apply to activities associated with
the Coastal Virginia Offshore Wind Commercial Project (hereafter
referred to as the ``Project'') by the Virginia Electric and Power
Company, doing business as Dominion Energy Virginia (hereafter referred
to as ``LOA Holder''), and those persons it authorizes or funds to
conduct activities on its behalf in the area outlined in paragraph (b)
of this section. Requirements imposed on the LOA Holder must be
implemented by those persons it authorizes or funds to conduct
activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight,
which includes, but is not limited to, the Bureau of Ocean Energy
Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 0483
Commercial Lease of Submerged Lands for Renewable Energy Development,
one export cable route, and one sea-to-shore transition point located
at the State Military Reservation in Virginia Beach, Virginia.
(c) The specified activities are vibratory and impact pile driving
of wind turbine generator (WTGs) and offshore substation (OSSs)
foundations; vibratory pile driving (install and subsequently removal)
of cofferdams; impact pile driving (install and subsequently removal)
of goal posts; fishery and ecological monitoring surveys; placement of
scour protection; trenching, laying, and burial activities associated
with the installation of the export cable from OSSs to shore-based
converter stations and inter-array cables between turbines; high-
resolution geophysical (HRG) site characterization surveys; vessel
transit within the specified geographical region to transport crew,
supplies, and materials; and WTG operation.
Sec. 217.291 Effective dates.
The regulations in this subpart are effective from February 5,
2024, through February 4, 2029.
Sec. 217.292 Permissible methods of taking.
Under a LOA, issued pursuant to Sec. Sec. 216.106 and 217.296, LOA
Holder and those persons it authorizes or funds to conduct activities
on its behalf may incidentally, but not intentionally, take marine
mammals within BOEM Lease Area OCS-A 0483 Commercial Lease of Submerged
Lands for Renewable Energy Development, along export cable routes, and
at the sea-to-shore transition point located at the State Military
Reservation in Virginia Beach, Virginia in the following ways, provided
LOA Holder is in complete compliance with all terms, conditions, and
requirements of the regulations in this subpart and the appropriate
LOA:
(a) By Level B harassment associated with the acoustic disturbance
of marine mammals by impact and vibratory pile driving (WTG and OSS
foundation installation), impact pile driving of goal posts, vibratory
pile driving of temporary cofferdams, and HRG site characterization
surveys; and
(b) By Level A harassment associated with the acoustic disturbance
of marine mammals by impact pile driving WTG and OSS foundations.
(c) Take by mortality or serious injury of any marine mammal
species is not authorized.
(d) The incidental take of marine mammals by the activities listed
in paragraphs (a) and (b) of this section is limited to the following
stocks:
Table 1 to Paragraph (d)
------------------------------------------------------------------------
Marine mammal species Scientific name Stock
------------------------------------------------------------------------
North Atlantic right whale...... Eubalaena Western North
glacialis. Atlantic.
Fin whale....................... Balaenoptera Western North
physalus. Atlantic.
Humpback whale.................. Megaptera Gulf of Maine.
novaeangliae.
Minke whale..................... Balaenoptera Canadian Eastern
acutorostrata. Coastal.
Sei whale....................... Balaenoptera Nova Scotia.
borealis.
Sperm whale..................... Physeter North Atlantic.
macrocephalus.
Pygmy sperm whale............... Kogia breviceps... Western North
Atlantic.
Atlantic spotted dolphin........ Stenella frontalis Western North
Atlantic.
Atlantic white-sided dolphin.... Lagenorhynchus Western North
acutus. Atlantic.
Bottlenose dolphin.............. Tursiops truncatus Western North
Atlantic--Offshor
e.
Southern Migratory
Coastal.
Clymene dolphin................. Stenella clymene.. Western North
Atlantic.
Common dolphin.................. Delphinus delphis. Western North
Atlantic.
False killer whale.............. Pseudorca Western North
crassidens. Atlantic.
Melon-headed whale.............. Peponocephala Western North
electra. Atlantic.
Long-finned pilot whale......... Globicephala melas Western North
Atlantic.
Short-finned pilot whale........ Globicephala Western North
macrorhynchus. Atlantic.
Pantropical spotted dolphin..... Stenella attenuata Western North
Atlantic.
Risso's dolphin................. Grampus griseus... Western North
Atlantic.
Harbor porpoise................. Phocoena phocoena. Gulf of Maine/Bay
of Fundy.
Gray seal....................... Halichoerus grypus Western North
Atlantic.
Harbor seal..................... Phoca vitulina.... Western North
Atlantic.
------------------------------------------------------------------------
Sec. 217.293 Prohibitions.
Except for the takings described in Sec. 217.292 and authorized by
an LOA issued under Sec. Sec. 217.296 or 217.297, it is unlawful for
any person to do any of the following in connection with the activities
described in this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or an LOA issued under Sec. Sec. 217.296
or 217.297;
[[Page 4459]]
(b) Take any marine mammal not specified in Sec. 217.292(d);
(c) Take any marine mammal specified in the LOA in any manner other
than as specified in the LOA; or
(d) Take any marine mammal specified in Sec. 217.292(d), after
NMFS determines such taking results in more than a negligible impact on
the species or stocks of such marine mammals.
Sec. 217.294 Mitigation requirements.
When conducting the activities identified in Sec. 217.290(c)
within the area described in Sec. 217.290(b), LOA Holder must
implement the mitigation measures contained in this section and any LOA
issued under Sec. Sec. 217.296 or 217.297. These mitigation measures
include, but are not limited to:
(a) General conditions. LOA Holder must comply with the following
general measures:
(1) A copy of any issued LOA must be in the possession of LOA
Holder and its designees, all vessel operators, visual protected
species observers (PSOs), passive acoustic monitoring (PAM) operators,
pile driver operators, and any other relevant designees operating under
the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, and
vessel personnel and the marine mammal monitoring team (PSO and PAM
operators) prior to the start of all in-water construction activities
in order to explain responsibilities, communication procedures, marine
mammal detection and identification, mitigation, monitoring, and
reporting requirements, safety and operational procedures, and
authorities of the marine mammal monitoring team(s). This training must
be repeated for new personnel who join the work during the project. A
description of the training program must be provided to NMFS at least
60 days prior to the initial training before in-water activities begin.
Confirmation of all required training must be documented on a training
course log sheet and reported to NMFS Office of Protected Resources
prior to initiating project activities;
(3) Prior to and when conducting any in-water construction
activities and vessel operations, LOA Holder personnel and contractors
(e.g., vessel operators, PSOs) must use available sources of
information on North Atlantic right whale presence in or near the
Project Area including daily monitoring of the Right Whale Sightings
Advisory System, and monitoring of U.S. Coast Guard VHF Channel 16
throughout the day to receive notification of any sightings and/or
information associated with any Slow Zones (i.e., DMAs and/or
acoustically-triggered slow zones) to provide situational awareness for
both vessel operators, PSO(s), and PAM operator(s). The marine mammal
monitoring team must monitor these systems no less than every 4 hours;
(4) Any marine mammal observed by project personnel must be
immediately communicated to any on-duty PSOs, PAM operator(s), and all
vessel captains. Any large whale observation or acoustic detection by
PSOs or PAM operators must be conveyed to all vessel captains;
(5) For North Atlantic right whales, any visual detection by a PSO
or acoustic detection by PAM operators at any distance (where
applicable for the specified activities) must trigger a delay to the
commencement of pile driving and HRG surveys;
(6) In the event that a large whale is sighted or acoustically
detected that cannot be confirmed as a non-North Atlantic right whale,
it must be treated as if it were a North Atlantic right whale for
purposes of mitigation;
(7) Any PSO has the authority to call for a delay or shutdown of
project activities. If a delay to commencing an activity is called for
by a PSO, LOA Holder must take the required mitigative action. If a
shutdown of an activity is called for by a PSO, LOA Holder must take
the required mitigative action unless shutdown would result in imminent
risk of injury or loss of life to an individual, pile refusal, or pile
instability. Any disagreements between the Lead PSO and the activity
operator or between the Lead PSO and another PSO regarding delays or
shutdowns must only be discussed after the mitigative action has
occurred;
(8) Any marine mammals observed within a clearance or shutdown zone
must be allowed to remain in the area (i.e., must leave of their own
volition) prior to commencing pile driving activities or HRG surveys;
(9) If an individual from a species for which authorization has not
been granted, or a species for which authorization has been granted but
the authorized take number has been met, is observed entering or within
the relevant clearance zone prior to beginning a specified activity,
the activity must be delayed. If an activity is ongoing and individual
from a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
take number has been met, is observed entering or within the relevant
shutdown zone, the activity must be shut down (i.e., cease)
immediately, unless shutdown would result in imminent risk of injury or
loss of life to an individual, pile refusal, or pile instability. The
activity must not commence or resume until the animal(s) has been
confirmed to have left the clearance or shutdown zones and is on a path
away from the applicable zone or after 15 minutes with no further
sightings for small odontocetes and pinnipeds or 30 minutes with no
further sightings for all other species;
(10) For in-water construction heavy machinery activities listed in
Sec. 217.290(c), if a marine mammal is on a path towards or comes
within 10 meters (m; 32.8 feet (ft)) of equipment, LOA Holder must
cease operations until the marine mammal has moved more than 10 m on a
path away from the activity to avoid direct interaction with equipment;
(11) All vessels must be equipped with a properly installed,
operational Automatic Identification System (AIS) device and LOA Holder
must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS
Office of Protected Resources;
(12) By accepting the LOA, LOA Holder consents to on-site
observation and inspections by Federal agency personnel (including NOAA
personnel) during activities described in this subpart, for the
purposes of evaluating the implementation and effectiveness of measures
contained within the LOA and this subpart; and
(13) It is prohibited to assault, harm, harass (including sexually
harass), oppose, impede, intimidate, impair, or in any way influence or
interfere with a PSO, PAM Operator, or vessel crew member acting as an
observer, or attempt the same. This prohibition includes, but is not
limited to, any action that interferes with an observer's
responsibilities, or that creates an intimidating, hostile, or
offensive environment. Personnel may report any violations to the NMFS
Office of Law Enforcement.
(b) Vessel strike avoidance measures. LOA Holder must comply with
the following vessel strike avoidance measures while in the specified
geographic region, unless an emergency situation presents a threat to
the health, safety, or life of a person, or when a vessel is actively
engaged in emergency rescue or response duties, including vessel-in-
distress or environmental crisis response, and requires speeds in
excess of 10 kn (11.5 miles per hour (mph)) to fulfill those
responsibilities. An emergency is defined as a serious event that
occurs without warning and requires immediate action to avert, control,
or remedy harm. Speed over
[[Page 4460]]
ground will be used to measure all vessel speeds:
(1) Prior to the start of the Project's activities involving
vessels, all vessel personnel must receive a protected species training
that covers, at a minimum, identification of marine mammals that have
the potential to occur where vessels would be operating; detection and
observation methods in both good weather conditions (i.e., clear
visibility, low winds, low sea states) and bad weather conditions
(i.e., fog, high winds, high sea states, with glare); sighting
communication protocols; all vessel speed and approach limit mitigation
requirements (e.g., vessel strike avoidance measures); and information
and resources available to the project personnel regarding the
applicability of Federal laws and regulations for protected species.
This training must be repeated for any new vessel personnel who join
the Project. Confirmation of the vessel personnel's training and
understanding of the Incidental Take Authorization (ITA) requirements
must be documented on a training course log sheet and reported to NMFS
within 30 days of completion of training;
(2) All vessel operators, operating at any speed and regardless of
their vessel's size, must slow down, stop their vessel, or alter course
to avoid striking any marine mammal;
(3) All vessels, regardless of their size, operating at any speed
must have a dedicated visual observer aboard and on duty at all times
whose sole responsibility (i.e., must not have duties other than
observing) is to monitor for marine mammals within a 180[deg] direction
of the forward path of the vessel (90[deg] port to 90[deg] starboard)
located at an appropriate vantage point for ensuring vessels are
maintaining appropriate separation distances. Visual observers must be
equipped with alternative monitoring technology (e.g., night vision
devices, infrared cameras) for periods of low visibility (e.g.,
darkness, rain, fog, etc.). The dedicated visual observer must receive
prior training on protected species detection and identification,
vessel strike minimization procedures, how and when to communicate with
the vessel captain, and reporting requirements in this subpart. These
visual observers may be third-party observers (i.e., NMFS-approved
PSOs; see Sec. 217.295(a)) or trained crew members (see (b)(1) of this
section);
(4) At the onset of transiting and continuously thereafter, vessel
operators must monitor the U.S. Coast Guard VHF Channel 16, over which
North Atlantic right whale sightings are broadcasted. At the onset of
transiting and at least once every 4 hours, vessel operators and/or
trained crew member(s) must also monitor the project's Situational
Awareness System (if applicable), WhaleAlert, and relevant NOAA
information systems such as the Right Whale Sighting Advisory System
(RWSAS) for the presence of North Atlantic right whales;
(5) Any large whale sighting by any project-personnel, including
any LOA Holder staff, contractors, or vessel crew, must be immediately
communicated to all project-associated vessel operators, PSOs, and PAM
operators for situational awareness. Conversely, any large whale
observation or detection via a sighting network (e.g., Mysticetus or
similar software) by PSOs or PAM operators must be conveyed to vessel
operators and crew. An ongoing large whale sighting log sheet must be
maintained on each vessel and retained for vessel operator(s) review
each day prior to first day's transit for awareness of recent
sightings;
(6) All vessel operators must abide by existing applicable vessel
speed regulations (see 50 CFR 224.105). Nothing in this subpart exempts
vessels from any other applicable marine mammal speed or approach
regulations. Vessels must not travel over 10 kn from November 1st
through April 30th, annually, in the specified geographic region, and
must transit at 10 kn or less within any active North Atlantic right
whale Slow Zone (i.e., Dynamic Management Areas (DMAs) or acoustically-
triggered slow zone);
(7) All vessel operators, regardless of their vessel's size, must
immediately reduce vessel speed to 10 kn or less for at least 24 hours
when a North Atlantic right whale is sighted at any distance by any
project-related personnel or acoustically detected by any project-
related PAM system. Each subsequent observation or acoustic detection
in the Project area shall trigger an additional 24-hour period. If a
North Atlantic right whale is reported by project personnel or via any
of the monitoring systems (refer back to paragraph (b)(4) of this
section) that vessel must operate at 10 kn (11.5 mph) or less for 24
hours following the reported detection;
(8) All vessels, regardless of size, must immediately reduce speed
to 10 kn or less when any large whale, mother/calf pairs, or large
assemblages of cetaceans are observed within 500 m (0.31 mi) of an
underway vessel;
(9) If vessel(s) are traveling at speeds greater than 10 kn (i.e.,
no speed restrictions are enacted) in the transit corridor (defined as
from a port to the Lease Area or return), in addition to the required
dedicated visual observer, LOA Holder must monitor the transit corridor
in real-time with PAM prior to and during transits. If a North Atlantic
right whale is detected via visual observation or PAM detection within
or approaching the transit corridor, all vessels in the transit
corridor must travel at 10 kn or less for 24 hours following the
detection. Each subsequent detection shall trigger a 24-hour reset. A
slowdown in the transit corridor expires when there has been no further
visual or acoustic detection in the transit corridor in the past 24
hours;
(10) All vessels must maintain a minimum separation distance of 500
m from North Atlantic right whales. If underway, all vessels must steer
a course away from any sighted North Atlantic right whale at 10 kn or
less such that the 500-m minimum separation distance requirement is not
violated. If a North Atlantic right whale is sighted within 500 m of an
underway vessel, that vessel operator must reduce speed and shift the
engine to neutral. Engines must not be engaged until the whale has
moved outside of the vessel's path and beyond 500 m. If a whale is
observed but cannot be confirmed as a species other than a North
Atlantic right whale, the vessel operator must assume that it is a
North Atlantic right whale and take the vessel strike avoidance
measures described in this paragraph (b)(7) of this section;
(11) All vessels must maintain a minimum separation distance of 100
m (328 ft) from sperm whales and non-North Atlantic right whale baleen
whales. If one of these species is sighted within 100 m of a transiting
vessel, the vessel must shift the engine(s) to neutral. Engines must
not be engaged until the whale has moved outside of the vessel's path
and beyond 100 m;
(12) All vessels must maintain a minimum separation distance of 50
m (164 ft) from all delphinoid cetaceans and pinnipeds with an
exception made for those that approach the vessel (i.e., bow-riding
dolphins). If a delphinid cetacean or pinniped is sighted within 50 m
of a transiting vessel, the vessel must shift the engine to neutral,
with an exception made for those that approach the vessel (e.g., bow-
riding dolphins). Engines must not be engaged until the animal(s) has
moved outside of the vessel's path and beyond 50 m;
(13) When a marine mammal(s) is sighted while the vessel(s) is
transiting, the vessel must take action as necessary to avoid violating
the relevant separation distances (e.g., attempt to remain parallel to
the animal's course, slow down, and avoid abrupt changes in direction
until the animal has left the
[[Page 4461]]
area). This measure does not apply to any vessel towing gear or any
situation where respecting the relevant separation distance would be
unsafe (i.e., any situation where the vessel is navigationally
constrained);
(14) All vessels underway must not divert or alter course to
approach any marine mammal;
(15) Vessel operators must check, daily, for information regarding
the establishment of mandatory or voluntary vessel strike avoidance
areas (i.e., DMAs, Seasonal Management Areas, Slow Zones) and any
information regarding North Atlantic right whale sighting locations;
and
(16) LOA Holder must submit a North Atlantic Right Whale Vessel
Strike Avoidance Plan to NMFS Office of Protected Resources for review
and approval at least 180 days prior to the planned start of vessel
activity. The plan must provide details on the vessel-based observer
and PAM protocols for transiting vessels in the vessel transit
corridor. If a plan is not submitted and approved by NMFS prior to
vessel operations, all project vessels must travel at speeds of 10 kn
(11.5 mph) or less. LOA Holder must comply with any approved North
Atlantic Right Whale Vessel Strike Avoidance Plan.
(c) WTG and OSS foundation installation. The following requirements
apply to pile driving activities associated with the installation of
WTG and OSS foundations:
(1) Vibratory and impact pile driving of foundation piles must not
occur November 1st through April 30th, annually;
(2) Monopiles must be no larger than 9.5-m in diameter,
representing the larger end of the tapered 9.5/7.5-m monopile design.
Pin piles must be no larger than 2.8-m in diameter. During all monopile
and pin pile installation, the minimum amount of hammer energy
necessary to effectively and safely install and maintain the integrity
of the piles must be used. Hammer energies must not exceed 4,000
kilojoules (kJ) for monopile installations and 3,000 kJ for pin pile
installation. No more than two monopile foundation or two pin piles for
jacket foundations may be installed per day;
(3) LOA Holder may initiate foundation pile driving (i.e.,
vibratory and impact) only from May 1st through October 31st, annually,
in accordance with the NMFS-approved Pile Driving Plan;
(4) LOA Holder must only perform foundation pile driving during
daylight hours, defined as no later than 1.5 hours prior to civil
sunset and no earlier than 1 hour after civil sunrise, and may only
continue into darkness if stopping operations represents a risk to
human health, safety, and/or pile stability and an Alternative
Monitoring Plan has been approved by NMFS. No new pile driving may
begin when pile driving continues into darkness;
(5) LOA Holder must utilize a soft-start protocol at the beginning
of foundation installation for each impact pile driving event. No soft-
start for vibratory pile driving is necessary;
(6) Soft-start must occur at the beginning of impact driving and at
any time following a cessation of impact pile driving of 30 minutes or
longer;
(7) LOA Holder must establish clearance and shutdown zones, which
must be measured using the radial distance around the pile being
driven. Clearance monitoring must begin 60 minutes immediately prior to
initiation of pile driving. If a marine mammal is detected within or
about to enter the applicable clearance zones 30 minutes prior to the
beginning of pile driving (including soft start if impact pile driving)
or during pile driving, pile driving must be delayed or shutdown until
the animal has been visually observed exiting the clearance zone or
until a specific time period has elapsed with no further sightings. The
specific time periods are 15 minutes for small odontocetes and
pinnipeds, and 30 minutes for all other species;
(8) For North Atlantic right whales, any visual observation or
acoustic detection must trigger a delay to the commencement of pile
driving. The clearance zone may only be declared clear if no North
Atlantic right whale acoustic or visual detections have occurred within
the clearance zone during the 60-minute monitoring period;
(9) LOA Holder must deploy at least two functional noise abatement
systems that reduce noise levels to the modeled harassment isopleths,
assuming 10-dB attenuation, during all foundation pile driving:
(i) At least a double bubble curtain must be used;
(ii) Any bubble curtain(s) must distribute air bubbles using an air
flow rate of at least 0.5 m\3\/(minute*m). The bubble curtain(s) must
surround 100 percent of the piling perimeter throughout the full depth
of the water column. In the unforeseen event of a single compressor
malfunction, the offshore personnel operating the bubble curtain(s)
must adjust the air supply and operating pressure such that the maximum
possible sound attenuation performance of the bubble curtain(s) is
achieved;
(iii) The lowest bubble ring must be in contact with the seafloor
for the full circumference of the ring, and the weights attached to the
bottom ring must ensure 100-percent seafloor contact;
(iv) No parts of the ring or other objects may prevent full
seafloor contact with a bubble curtain ring;
(v) Construction contractors must train personnel in the proper
balancing of airflow to the bubble curtain ring. LOA Holder must
provide NMFS Office of Protected Resources with a bubble curtain
performance test and maintenance report to review within 72 hours after
each pile using a bubble curtain is installed. Additionally, a full
maintenance check (e.g., manually clearing holes) must occur prior to
each pile being installed;
(vi) Corrections to the bubble ring(s) to meet the performance
standards in this paragraph (c)(9) must occur prior to pile driving of
foundation piles.
(vii) For any noise mitigation device in addition to the bubble
curtain, LOA Holder must inspect and carry out appropriate maintenance
on the system and ensure the system is functioning properly prior to
every pile driving event.
(10) LOA Holder must utilize NMFS-approved PAM systems, as
described in paragraph (c)(17) of this section. The PAM system
components (i.e., acoustic buoys) must not be placed closer than 1 km
(0.6 mi) to the pile being driven so that the activities do not mask
the PAM system. LOA Holder must demonstrate and prove the detection
range of the system they plan to deploy while considering potential
masking from concurrent pile-driving and vessel noise. The PAM system
must be able to detect a vocalization of North Atlantic right whales up
to 10 km (6.2 mi);
(11) LOA Holder must utilize PSO(s) and PAM operator(s), as
described in Sec. 217.295(c). At least three on-duty PSOs must be on
the pile driving platform. Additionally, two dedicated-PSO vessels must
be used at least 60 minutes before, during, and 30 minutes after all
pile driving, and each dedicated-PSO vessel must have at least three
PSOs on duty during these time periods. LOA Holder may request NMFS
approval to use alternative technology in lieu of one or two of the
dedicated PSO vessels that provide similar marine mammal detection
capabilities.
(12) If a marine mammal is detected (visually or acoustically)
entering or within the respective shutdown zone after pile driving has
begun, the PSO must call for a shutdown of pile driving and LOA Holder
must stop pile driving immediately, unless shutdown is not
[[Page 4462]]
practicable due to imminent risk of injury or loss of life to an
individual or risk of damage to a vessel that creates risk of injury or
loss of life for individuals, or the lead engineer determines there is
risk of pile refusal or pile instability. If pile driving is not shut
down due to one of these situations, LOA Holder must reduce hammer
energy to the lowest level practicable and the reason(s) for not
shutting down must be documented and reported to NMFS Office of
Protected Resources within the applicable monitoring reports (e.g.,
weekly, monthly) (see 217.295(g));
(13) A visual observation at any distance from a PSO or acoustic
detection of a North Atlantic right whale triggers shutdown
requirements under paragraph (c)(12) of this section. If pile driving
has been shut down due to the presence of a North Atlantic right whale,
pile driving may not restart until the North Atlantic right whale has
neither been visually or acoustically detected for 30 minutes;
(14) If pile driving has been shut down due to the presence of a
marine mammal other than a North Atlantic right whale, pile driving
must not restart until either the marine mammal(s) has voluntarily left
the specific clearance zones and has been visually or acoustically
confirmed beyond that clearance zone, or, when specific time periods
have elapsed with no further sightings or acoustic detections have
occurred. The specific time periods are 15 minutes for small
odontocetes and pinnipeds, and 30 minutes for all other marine mammal
species. In cases where these criteria are not met, pile driving may
restart only if necessary to maintain pile stability at which time LOA
Holder must use the lowest hammer energy practicable to maintain
stability;
(15) LOA Holder must conduct sound field verification (SFV)
measurements during pile driving activities associated with the
installation of, at minimum, the first three monopile foundations and
for all three OSS foundations (for all 12 pin piles installed). SFV
measurements must continue until at least three consecutive piles
demonstrate noise levels are at or below those modeled, assuming 10
decibels (dB) of attenuation. Subsequent SFV measurements are also
required should larger piles be installed or if additional monopiles
are driven that may produce louder sound fields than those previously
measured (e.g., higher hammer energy, greater number of strikes, etc.).
SFV measurements must be conducted as follows:
(i) Measurements must be made at a minimum of four distances from
the pile(s) being driven, along a single transect, in the direction of
lowest transmission loss (i.e., projected lowest transmission loss
coefficient), including, but not limited to, 750 m (2,460 ft) and three
additional ranges, including, at least, the modeled Level B harassment
isopleth assuming 10 dB attenuation. At least one additional
measurement at an azimuth 90 degrees from the array at 750 m must be
made. At each location, there must be a near bottom and mid-water
column hydrophone;
(ii) The recordings must be continuous throughout the duration of
all pile driving of each foundation;
(iii) The SFV measurement systems must have a sensitivity
appropriate for the expected sound levels from pile driving received at
the nominal ranges throughout the installation of the pile. The
frequency range of SFV measurement systems must cover the range of at
least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems
must be designed to have omnidirectional sensitivity so that the
broadband received level of all pile driving exceeds the system noise
floor by at least 10 dB. The dynamic range of the SFV measurement
system must be sufficient such that at each location, and the signals
avoid poor signal-to-noise ratios for low amplitude signals and avoid
clipping, nonlinearity, and saturation for high amplitude signals;
(iv) All hydrophones used in SFV measurements systems are required
to have undergone a full system, traceable laboratory calibration
conforming to International Electrotechnical Commission (IEC) 60565, or
an equivalent standard procedure, from a factory or accredited source
to ensure the hydrophone receives accurate sound levels, at a date not
to exceed 2 years before deployment. Additional in-situ calibration
checks using a pistonphone are required to be performed before and
after each hydrophone deployment. If the measurement system employs
filters via hardware or software (e.g., high-pass, low-pass, etc.),
which is not already accounted for by the calibration, the filter
performance (i.e., the filter's frequency response) must be known,
reported, and the data corrected before analysis.
(v) LOA Holder must be prepared with additional equipment
(hydrophones, recording devices, hydrophone calibrators, cables,
batteries, etc.), which exceeds the amount of equipment necessary to
perform the measurements, such that technical issues can be mitigated
before measurement;
(vi) LOA Holder must submit interim reports within 48 hours after
each foundation is measured (see Sec. 217.295(g) section for interim
and final reporting requirements);
(vii) LOA Holder must not exceed modeled distances to NMFS marine
mammal Level A harassment and Level B harassment thresholds, assuming
10-dB attenuation, for foundation installation. If any of the interim
SFV measurement reports submitted indicate the modeled distances to
NMFS marine mammal Level A harassment and Level B harassment thresholds
assuming 10-dB attenuation, then LOA Holder must implement additional,
modified, and/or alternative noise attenuation measures or operational
changes that present a reasonable likelihood of reducing sound levels
to the modeled distances on all subsequent foundations. LOA Holder must
also increase clearance and shutdown zone sizes to those identified by
NMFS until SFV measurements on at least three additional foundations
demonstrate acoustic distances to harassment thresholds meet or are
less than those modeled assuming 10-dB of attenuation. In this
situation, LOA Holder would be required to provide a proposed
monitoring plan for expanded zones (per the Biological Opinion) that
would detail the proposed expanded zones and any additional monitoring
and mitigation that would be implemented. If the harassment zones are
expanded beyond an additional 1,500 m (0.93 mi), additional PSOs must
be deployed on additional platforms, with each observer responsible for
maintaining watch in no more than 180 degrees and of an area with a
radius no greater than 1,500 m.
(viii) LOA Holder must optimize the sound attenuation systems
(e.g., ensure hose maintenance, pressure testing, etc.) to, at least,
meet noise levels modeled, assuming 10-dB attenuation, within three
piles or else foundation installation activities must cease until NMFS
and LOA Holder can evaluate the situation and ensure future piles must
not exceed noise levels modeled assuming 10-dB attenuation;
(ix) If, after additional measurements conducted pursuant to
requirements of paragraph (15)(vii) of this section, acoustic
measurements indicate that ranges to isopleths corresponding to the
Level A harassment and Level B harassment thresholds are less than the
ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder
may request to NMFS Office of Protected Resources a modification of the
clearance and shutdown zones. For NMFS Office of Protected Resources to
consider a modification request for reduced zone sizes, LOA Holder must
have conducted SFV measurements on
[[Page 4463]]
an additional three WTG monopile foundations and ensure that subsequent
foundations would be installed under conditions that are predicted to
produce smaller harassment zones than those modeled assuming 10-dB of
attenuation;
(x) LOA Holder must conduct SFV measurements upon commencement of
turbine operations to estimate turbine operational source levels and
transmission loss rates, in accordance with a NMFS-approved Foundation
Installation Pile Driving SFV Plan. SFV must be conducted in the same
manner as previously described in paragraph (c)(15) of this section,
with appropriate adjustments to measurement distances, number of
hydrophones, and hydrophone sensitivities being made, as necessary; and
(xi) LOA Holder must submit a SFV Plan to NMFS Office of Protected
Resources for review and approval at least 180 days prior to planned
start of foundation installation activities and abide by the Plan if
approved. At minimum, the SFV Plan must describe how LOA Holder would
ensure that the first three monopile foundation installation sites
selected for SFV measurements are representative of the rest of the
monopile installation sites such that future pile installation events
are anticipated to produce similar sound levels to those piles
measured. In the case that these sites/scenarios are not determined to
be representative of all other pile installation sites, LOA Holder must
include information in the SFV Plan on how additional sites/scenarios
would be selected for SFV measurements. This SFV Plan must also
describe approaches that LOA Holder could take to adjust noise
attenuation systems or add systems in the case that any SFV
measurements obtained demonstrate that noise levels are above those
modeled (assuming 10 dB of attenuation). Furthermore, the SFV Plan must
also include how operational noise would be monitored. Operational
parameters (e.g., direct drive information, turbine rotation rate) as
well as sea state conditions and information on nearby anthropogenic
activities (e.g., vessels transiting or operating in the area) must be
reported. Additionally, the SFV Plan must also include methodology for
collecting, analyzing, and preparing SFV measurement data for
submission to NMFS Office of Protected Resources and describe how the
effectiveness of the sound attenuation methodology would be evaluated
based on the results. SFV for pile driving may not occur until NMFS
approves the SFV Plan for this activity.
(16) LOA Holder must submit a Foundation Installation Pile Driving
Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for
review and approval at least 180 days prior to planned start of
foundation pile driving and abide by the Plan if approved. LOA Holder
must obtain both NMFS Office of Protected Resources and NMFS Greater
Atlantic Regional Fisheries Office Protected Resources Division's
concurrence with this Plan prior to the start of any pile driving. The
Plan must include, at a minimum: the final pile driving project design
(e.g., number and type of piles, hammer type, noise abatement systems,
anticipated start date, etc.) and a description of all monitoring
equipment and PAM operator and PSO protocols (including number and
location of PSOs and PAM operators) for all foundation pile driving. No
foundation pile installation can occur without NMFS' approval of the
Plan; and
(17) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM
Plan) to NMFS Office of Protected Resources for review and approval at
least 180 days prior to the planned start of foundation installation
activities and abide by the Plan if approved. The PAM Plan must include
a description of all proposed PAM equipment, address how the proposed
passive acoustic monitoring must follow standardized measurement,
processing methods, reporting metrics, and metadata standards for
offshore wind. The Plan must describe all proposed PAM equipment,
procedures, and protocols including proof that vocalizing North
Atlantic right whales will be detected within the clearance and
shutdown zones. No pile installation can occur if LOA Holder's PAM Plan
does not receive approval from NMFS Office of Protected Resources and
NMFS Greater Atlantic Regional Fisheries Office Protected Resources
Division.
(d) Cofferdam and goal post installation and removal. The following
requirements apply to the installation and removal of cofferdams and
goal posts at the cable landfall construction sites:
(1) Installation and removal of cofferdams and goal posts must not
occur during nighttime hours (defined as the hours between 1.5 hours
prior to civil sunset and 1 hour after civil sunrise);
(2) LOA Holder must establish and implement clearance zones for the
installation and removal of cofferdams and goal posts using visual
monitoring. These zones must be measured using the radial distance from
the cofferdam and goal post being installed and/or removed;
(3) LOA Holder must utilize PSO(s), as described in Sec.
217.295(d). At least two on-duty PSOs must monitor for marine mammals
at least 30 minutes before, during, and 30 minutes after vibratory and
impact pile driving associated with cofferdam and casing pipe
installation, respectively;
(4) If a marine mammal(s) is observed entering or is observed
within the clearance zones, before vibratory or impact pile driving has
begun, the activity must not commence until the animal(s) has exited
the zone or a specific amount of time has elapsed since the last
sighting. The specific time periods are 15 minutes for small
odontocetes and pinnipeds and 30 minutes for all other marine mammal
species;
(5) If a marine mammal is observed entering or within the
respective shutdown zone after vibratory or impact pile driving has
begun, the PSO must call for a shutdown of pile driving. LOA Holder
must stop pile driving immediately unless shutdown is not practicable
due to imminent risk of injury or loss of life to an individual or if
there is a risk of damage to the vessel that would create a risk of
injury or loss of life for individuals or if the lead engineer
determines there is refusal or instability. In any of these situations,
LOA Holder must document the reason(s) for not shutting down and report
the information to NMFS Office of Protected Resources in the annual
report (as described in Sec. 217.295(g)). In cases where shutdown is
not feasible, pile driving may restart only if necessary to maintain
pile stability at which time LOA Holder must use the lowest hammer
energy practicable to maintain stability;
(6) Pile driving must not restart until either the marine mammal(s)
has voluntarily left the specific clearance zones and has been visually
or acoustically confirmed beyond that clearance zone, or, when specific
time periods have elapsed with no further sightings or acoustic
detections have occurred. The specific time periods are 15 minutes for
small odontocetes and pinnipeds and 30 minutes for all other marine
mammal species; and
(7) LOA Holder must employ a soft-start for all impact pile driving
of goal posts. Soft start requires contractors to provide an initial
set of three strikes at reduced energy, followed by a 30-second waiting
period, then two subsequent reduced-energy strike sets.
(e) HRG surveys. The following requirements apply to HRG surveys
operating sub- bottom profilers (SBPs)
[[Page 4464]]
(i.e., boomers, sparkers, and Compressed High Intensity Radiated Pulse
(CHIRPs)):
(1) LOA Holder must establish and implement clearance and shutdown
zones for HRG surveys using visual monitoring, as described in
paragraph (c) of this section;
(2) LOA Holder must utilize PSO(s), as described in Sec.
217.295(e);
(3) LOA Holder must abide by the relevant Project Design Criteria
(PDCs 4, 5, and 7) of the programmatic consultation completed by NMFS'
Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised
September 2021), pursuant to section 7 of the Endangered Species Act
(ESA). To the extent that any relevant Best Management Practices (BMPs)
described in these PDCs are more stringent than the requirements
herein, those BMPs supersede these requirements;
(4) SBPs (hereinafter referred to as ``acoustic sources'') must be
deactivated when not acquiring data or preparing to acquire data,
except as necessary for testing. Acoustic sources must be used at the
lowest practicable source level to meet the survey objective, when in
use, and must be turned off when they are not necessary for the survey;
(5) Prior to starting the survey and after receiving confirmation
from the PSOs that the clearance zone is clear of any marine mammals,
LOA Holder is required to ramp-up acoustic sources to half power for 5
minutes prior to commencing full power, unless the equipment operates
on a binary on/off switch (in which case ramp-up is not required). LOA
Holder must also ensure visual clearance zones are fully visible (e.g.,
not obscured by darkness, rain, fog, etc.) and clear of marine mammals,
as determined by the Lead PSO, for at least 30 minutes immediately
prior to the initiation of survey activities using acoustic sources.
(6) Ramp-up and activation must be delayed if a marine mammal(s)
enters its respective shutdown zone. Ramp-up and activation may only be
reinitiated if the animal(s) has been observed exiting its respective
shutdown zone or until 15 minutes for small odontocetes and pinnipeds,
and 30 minutes for all other species, has elapsed with no further
sightings;
(7) Prior to a ramp-up procedure starting or activating acoustic
sources, the acoustic source operator (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 minutes
prior to the planned ramp-up or activation in order to allow the PSOs
time to monitor the clearance zone(s) for 30 minutes prior to the
initiation of ramp-up or activation (pre-start clearance). During this
30-minute pre-start clearance period, the entire applicable clearance
zones must be visible, except as indicated in paragraph (f)(12) of this
section;
(8) Ramp-ups must be scheduled so as to minimize the time spent
with the source activated;
(9) A PSO conducting pre-start clearance observations must be
notified again immediately prior to reinitiating ramp-up procedures and
the operator must receive confirmation from the PSO to proceed;
(10) LOA Holder must implement a 30-minute clearance period of the
clearance zones immediately prior to the commencing of the survey or
when there is more than a 30-minute break in survey activities or PSO
monitoring. A clearance period is a period when no marine mammals are
detected in the relevant zone;
(11) If a marine mammal is observed within a clearance zone during
the clearance period, ramp-up or acoustic surveys may not begin until
the animal(s) has been observed voluntarily exiting its respective
clearance zone or until a specific time period has elapsed with no
further sighting. The specific time period is 15 minutes for small
odontocetes and pinnipeds, and 30 minutes for all other species;
(12) In any case when the clearance process has begun in conditions
with good visibility, including via the use of night vision equipment
(infrared (IR)/thermal camera), and the Lead PSO has determined that
the clearance zones are clear of marine mammals, survey operations may
commence (i.e., no delay is required) despite periods of inclement
weather and/or loss of daylight. Ramp-up may occur at times of poor
visibility, including nighttime, if appropriate visual monitoring has
occurred with no detections of marine mammals in the 30 minutes prior
to beginning ramp-up;
(13) Once the survey has commenced, LOA Holder must shut down
acoustic sources if a marine mammal enters a respective shutdown zone,
except in cases when the shutdown zones become obscured for brief
periods due to inclement weather, survey operations may continue (i.e.,
no shutdown is required) so long as no marine mammals have been
detected. The shutdown requirement does not apply to small delphinids
of the following genera: Delphinus, Stenella, Lagenorhynchus, and
Tursiops. If there is uncertainty regarding the identification of a
marine mammal species (i.e., whether the observed marine mammal belongs
to one of the delphinid genera for which shutdown is waived), the PSOs
must use their best professional judgment in making the decision to
call for a shutdown. Shutdown is required if a delphinid that belongs
to a genus other than those specified in this paragraph (f)(13) of this
section is detected in the shutdown zone;
(14) If an acoustic source has been shut down due to the presence
of a marine mammal, the use of an acoustic source may not commence or
resume until the animal(s) has been confirmed to have left the Level B
harassment zone or until a full 15 minutes (for small odontocetes and
seals) or 30 minutes (for all other marine mammals) have elapsed with
no further sighting;
(15) LOA Holder must immediately shut down any acoustic source if a
marine mammal is sighted entering or within its respective shutdown
zones. If there is uncertainty regarding the identification of a marine
mammal species (i.e., whether the observed marine mammal belongs to one
of the delphinid genera for which shutdown is waived), the PSOs must
use their best professional judgment in making the decision to call for
a shutdown. Shutdown is required if a delphinid that belongs to a genus
other than those specified in paragraph (f)(13) of this section is
detected in the shutdown zone; and
(16) If an acoustic source is shut down for a period longer than 30
minutes, all clearance and ramp-up procedures must be initiated. If an
acoustic source is shut down for reasons other than mitigation (e.g.,
mechanical difficulty) for less than 30 minutes, acoustic sources may
be activated again without ramp-up only if PSOs have maintained
constant observation and no additional detections of any marine mammal
occurred within the respective shutdown zones.
(f) Fisheries monitoring surveys. The following measures apply to
fishery monitoring surveys: using trap/pot gear:
(1) Survey gear must be deployed as soon as possible once the
vessel arrives on station. Gear must not be deployed if there is a risk
of interaction with marine mammals. Gear may be deployed after 15
minutes of no marine mammal sightings within 1 nautical mile (nmi;
1,852 m) of the sampling station;
(2) LOA Holder and/or its cooperating institutions, contracted
vessels, or commercially hired captains must implement the following
``move-on'' rule: If marine mammals are sighted within 1 nautical mile
(nmi (1.2 mi)) of the planned location and 15 minutes before gear
deployment, then LOA
[[Page 4465]]
Holder and/or its cooperating institutions, contracted vessels, or
commercially hired captains, as appropriate, must move the vessel away
from the marine mammal to a different section of the sampling area. If,
after moving on, marine mammals are still visible from the vessel, LOA
Holder and its cooperating institutions, contracted vessels, or
commercially hired captains must move again or skip the station;
(3) If a marine mammal is at risk of interacting with deployed
gear, all gear must be immediately removed from the water. If marine
mammals are sighted before the gear is fully removed from the water,
the vessel must slow its speed and maneuver the vessel away from the
animals to minimize potential interactions with the observed animal;
(4) Unless using ropeless gear, LOA Holder must maintain visual
marine mammal monitoring effort during the entire period of time that
gear is in the water (i.e., throughout gear deployment, fishing, and
retrieval);
(5) All fisheries monitoring gear must be fully cleaned and
repaired (if damaged) before each use/deployment;
(6) LOA Holder's fixed gear must comply with the Atlantic Large
Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries
monitoring surveys;
(7) Trawl tows must be limited to a maximum of a 20-minute trawl
time at 3.0 kn (3.5 mph);
(8) All gear must be emptied as close to the deck/sorting area and
as quickly as possible after retrieval;
(9) All fishery survey-related lines must include the breaking
strength of all lines being less than 1,700 pounds (lbs; 771 kilograms
(kg)). This may be accomplished by using whole buoy line that has a
breaking strength of 1,700 lbs; or buoy line with weak inserts that
result in line having an overall breaking strength of 1,700 lbs;
(10) During any survey that uses vertical lines, buoy lines must be
weighted and must not float at the surface of the water and all
groundlines must consist of sinking lines. All groundlines must be
composed entirely of sinking lines. Buoy lines must utilize weak links.
Weak links must break cleanly leaving behind the bitter end of the
line. The bitter end of the line must be free of any knots when the
weak link breaks. Splices are not considered to be knots. The
attachment of buoys, toggles, or other floatation devices to
groundlines is prohibited;
(11) All in-water survey gear, including buoys, must be properly
labeled with the scientific permit number or identification as LOA
Holder's research gear. All labels and markings on the gear, buoys, and
buoy lines must also be compliant with the applicable regulations, and
all buoy markings must comply with instructions received by the NOAA
Greater Atlantic Regional Fisheries Office Protected Resources
Division;
(12) All survey gear must be removed from the water whenever not in
active survey use (i.e., no wet storage); and
(13) All reasonable efforts, that do not compromise human safety,
must be undertaken to recover gear.
Sec. 217.295 Monitoring and reporting requirements.
(a) Protected species observer (PSO) and passive acoustic
monitoring (PAM) operator qualifications. LOA Holder must implement the
following measures applicable to PSOs and PAM operators:
(1) LOA Holder must use independent, NMFS-approved PSOs and PAM
operators, meaning that the PSOs and PAM operators must be employed by
a third-party observer provider, must have no tasks other than to
conduct observational effort, collect data, and communicate with and
instruct relevant crew with regard to the presence of protected species
and mitigation requirements;
(2) All PSOs and PAM operators 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 or PAM operator has acquired the relevant skills
through a suitable amount of alternate experience. Requests for such a
waiver must be submitted to NMFS Office of Protected Resources and must
include written justification containing alternative experience.
Alternate experience that may be considered includes but is not limited
to: previous work experience conducting academic, commercial, or
government-sponsored marine mammal visual and/or acoustic surveys; or
previous work experience as a PSO/PAM operator. All PSOs and PAM
operators should demonstrate good standing and consistently good
performance of all assigned duties;
(3) PSOs must have visual acuity in both eyes (with correction of
vision being permissible) sufficient enough to discern moving targets
on the water's surface with the ability to estimate the target size and
distance (binocular use is allowable); ability to conduct field
observations and collect data according to the assigned protocols;
sufficient training, orientation, or experience with the construction
operation to provide for personal safety during observations; writing
skills sufficient to document observations, including but not limited
to, the number and species of marine mammals observed, the dates and
times of when in-water construction activities were conducted, the
dates and time when in-water construction activities were suspended to
avoid potential incidental take of marine mammals from construction
noise within a defined shutdown zone, and marine mammal behavior; and
the ability to communicate orally, by radio, or in-person, with project
personnel to provide real-time information on marine mammals observed
in the area;
(4) All PSOs must be trained in northwestern Atlantic Ocean marine
mammal identification and behaviors and must be able to conduct field
observations and collect data according to assigned protocols.
Additionally, PSOs must have the ability to work with all required and
relevant software and equipment necessary during observations (as
described in paragraphs (b)(5) and (b)(6) of this section);
(5) All PSOs and PAM operators must successfully complete a
relevant training course within the last 5 years, including obtaining a
certificate of course completion;
(6) PSOs and PAM operators are responsible for obtaining NMFS'
approval. NMFS may approve PSOs and PAM operators as conditional or
unconditional. A conditionally-approved PSO or PAM operator may be one
who has completed training in the last 5 years but has not yet attained
the requisite field experience. An unconditionally approved PSO or PAM
operator is one who has completed training within the last 5 years and
attained the necessary experience (i.e., demonstrate experience with
monitoring for marine mammals at clearance and shutdown zone sizes
similar to those produced during the respective activity). A
conditionally approved PSO or PAM operator must be paired with an
unconditionally approved PSO or PAM operator;
(7) At least one on-duty PSO for each activity (e.g., foundation
installation, cable landfall construction, and HRG surveys) must be
designated as the Lead PSO. The Lead PSO must meet the minimum
requirements described in 217.295(a)(2) through (5) and have a minimum
of ninety days of at-sea experience working in the Northwest Atlantic
Ocean and would be required to have no more than eighteen months
elapsed since the conclusion of their last at-sea experience;
[[Page 4466]]
(8) PSOs for cable landfall construction (i.e., vibratory pile
installation and removal) and HRG surveys may be unconditionally or
conditionally approved. PSOs and PAM operators for foundation
installation must be unconditionally approved;
(9) LOA Holder must submit NMFS previously approved PSOs and PAM
operators to NMFS Office of Protected Resources for review and
confirmation of their approval for specific roles at least 30 days
prior to commencement of the activities requiring PSOs/PAM operators or
15 days prior to when new PSOs/PAM operators are required after
activities have commenced;
(10) For prospective PSOs and PAM operators not previously
approved, or for PSOs and PAM operators whose approval is not current,
LOA Holder must submit resumes for approval at least 60 days prior to
PSO and PAM operator use. Resumes must include information related to
relevant education, experience, and training, including dates,
duration, location, and description of prior PSO or PAM operator
experience. Resumes must be accompanied by relevant documentation of
successful completion of necessary training;
(11) PAM operators are responsible for obtaining NMFS approval. To
be approved as a PAM operator, the person must meet the following
qualifications: The PAM operator must demonstrate that they have prior
experience with real-time acoustic detection systems and/or have
completed specialized training for operating PAM systems and detecting
and identifying Atlantic Ocean marine mammals sounds, in particular:
North Atlantic right whale sounds, humpback whale sounds, and how to
deconflict them from similar North Atlantic right whale sounds, and
other co-occurring species' sounds in the area including sperm whales;
must be able to distinguish between whether a marine mammal or other
species sound is detected, possibly detected, not detected and similar
terminology must be used across companies/projects; where localization
of sounds or deriving bearings and distance are possible, the PAM
operators need to have demonstrated experience in using this technique;
PAM operators must be independent observers (i.e., not construction
personnel); PAM operators must demonstrate experience with relevant
acoustic software and equipment; PAM operators must have the
qualifications and relevant experience/training to safely deploy and
retrieve equipment and program the software, as necessary; PAM
operators must be able to test software and hardware functionality
prior to operation; and PAM operators must have evaluated their
acoustic detection software using the PAM Atlantic baleen whale
annotated data set available at National Centers for Environmental
Information (NCEI) and provide evaluation/performance metric;
(12) PAM operators must be able to review and classify acoustic
detections in real-time (prioritizing North Atlantic right whales and
noting detection of other cetaceans) during the real-time monitoring
periods;
(13) PSOs may work as PAM operators and vice versa, pending NMFS-
approval; however, they may only perform one role at any one time and
must not exceed work time restrictions, which must be tallied
cumulatively; and
(14) All PSOs and PAM operators must complete a Permits and
Environmental Compliance Plan training and a 2-day refresher session
that must be held with the PSO provider and Project compliance
representative(s) prior to the start of in-water project activities
(e.g., HRG survey, foundation installation, cable landfall activities
etc.).
(b) General PSO and PAM operator requirements. The following
measures apply to PSOs and PAM operators and must be implemented by LOA
Holder:
(1) PSOs must monitor for marine mammals prior to, during, and
following all impact pile driving, vibratory pile driving, and HRG
surveys that use sub-bottom profilers (with specific monitoring
durations and needs described in paragraphs (c) through (f) of this
section, respectively). Monitoring must be done while free from
distractions and in a consistent, systematic, and diligent manner;
(2) All PSOs must be located at the best vantage point(s) on any
platform, as determined by the Lead PSO, in order to obtain 360-degree
visual coverage of the entire clearance and shutdown zones around the
activity area, and as much of the Level B harassment zone as possible.
PAM operators may be located on a vessel or remotely on-shore, but must
have the appropriate equipment (i.e., computer station equipped with a
data collection software system and acoustic data analysis software)
available wherever they are stationed, and data or data products must
be streamed in real-time or in near real-time to allow PAM operators to
provide assistance to on-duty visual PSOs. During foundation
installation activities, the PAM operator(s) must monitor to and past
the clearance zone for large whales and would assist PSOs in ensuring
full coverage of the clearance and shutdown zones;
(3) All on-duty PSOs must remain in real-time contact with the on-
duty PAM operator(s). PAM operators must immediately communicate all
acoustic detections of marine mammals to PSOs, including any
determination regarding species identification, distance, and bearing
(where relevant) relative to the pile being driven and the degree of
confidence (e.g., possible, probable detection) in the determination.
All on-duty PSOs and PAM operator(s) must remain in contact with the
on-duty construction personnel responsible for implementing mitigations
(e.g., delay to pile driving) to ensure communication on marine mammal
observations can easily, quickly, and consistently occur between all
on-duty PSOs, PAM operator(s), and on-water Project personnel;
(4) The PAM operator must inform the Lead PSO(s) on duty of animal
detections approaching or within applicable ranges of interest to the
activity occurring via the data collection software system, (e.g.,
Mysticetus or similar system) who must be responsible for requesting
that the designated crewmember implement the necessary mitigation
procedures (i.e., delay);
(5) PSOs must use high magnification (25x) binoculars, standard
handheld (7x) binoculars, and the naked eye to search continuously for
marine mammals. During foundation installation, at least two PSOs on
the pile driving-dedicated PSO vessel must be equipped with functional
Big Eye binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular
focus; height control); these must be pedestal mounted on the deck at
the best vantage point that provides for optimal sea surface
observation and PSO safety. PAM operators must have the appropriate
equipment (i.e., a computer station equipped with a data collection
software system available wherever they are stationed) and use a NMFS-
approved PAM system to conduct monitoring. PAM systems are approved
through the PAM Plan as described in Sec. 217.294(c)(17);
(6) During periods of low visibility (e.g., darkness, rain, fog,
poor weather conditions, etc.), PSOs must use alternative technology
(i.e., infrared or thermal cameras) to monitor the clearance and
shutdown zones as approved by NMFS;
(7) PSOs and PAM operators must not exceed 4 consecutive watch
hours on duty at any time, must have a 2-hour (minimum) break between
watches, and must not exceed a combined watch
[[Page 4467]]
schedule of more than 12 hours in a 24-hour period. If the schedule
includes PSOs and PAM operators on-duty for 2-hour shifts, a minimum 1-
hour break between watches must be allowed; and
(8) During daylight hours when equipment is not operating, LOA
Holder must ensure that visual PSOs conduct, as rotation schedules
allow, observations for comparison of sighting rates and behavior with
and without use of the specified acoustic sources. Off-effort PSO
monitoring must be reflected in the monthly PSO monitoring reports.
(c) PSO and PAM operator requirements during WTG and OSS foundation
installation. The following measures apply to PSOs and PAM operators
during WTG and OSS foundation installation and must be implemented by
LOA Holder:
(1) PSOs and PAM operator(s), using a NMFS-approved PAM system,
must monitor for marine mammals 60 minutes prior to, during, and 30
minutes following all pile-driving. If PSOs cannot visually monitor the
minimum visibility zone prior to pile driving at all times using the
equipment described in paragraphs (b)(5) and (6) of this section, pile-
driving operations must not commence or must shutdown if they are
currently active;
(2) At least three on-duty PSOs must be stationed and observing
from the activity platform during pile driving and at least three on-
duty PSOs must be stationed on each dedicated PSO vessel. Concurrently,
at least one PAM operator per acoustic data stream (equivalent to the
number of acoustic buoys) must be actively monitoring for marine
mammals 60 minutes before, during, and 30 minutes after foundation pile
driving in accordance with a NMFS-approved PAM Plan;
(3) LOA Holder must conduct PAM for at least 24 hours immediately
prior to pile driving activities. The PAM operator must review all
detections from the previous 24-hour period immediately prior to pile
driving.
(d) PSO requirements during cable landfall construction. The
following measures apply to PSOs during cofferdam and goal post
installation and removal and must be implemented by LOA Holder:
(1) At least two PSOs must be on active duty during all activities
related to the installation and removal of cofferdams and goal posts;
and
(2) PSOs must monitor the clearance zone for the presence of marine
mammals for 30 minutes before, throughout the installation of the sheet
piles and casing pipe and for 30 minutes after all pile driving
activities have ceased. Sheet pile or casing pipe installation must
only commence when visual clearance zones are fully visible (e.g., not
obscured by darkness, rain, fog, etc.) and clear of marine mammals, as
determined by the Lead PSO, for at least 30 minutes immediately prior
to initiation of pile driving.
(e) PSO requirements during HRG surveys. The following measures
apply to PSOs during HRG surveys using Compressed High Intensity
Radiated Pulse (CHIRPs), boomers, and sparkers and must be implemented
by LOA Holder:
(1) Between four and six PSOs must be present on every 24-hour
survey vessel and two to three PSOs must be present on every 12-hour
survey vessel;
(2) At least one PSO must be on active duty monitoring during HRG
surveys conducted during daylight (i.e., from 30 minutes prior to civil
sunrise through 30 minutes following civil sunset) and at least two
PSOs must be on active duty monitoring during HRG surveys conducted at
night;
(3) PSOs on HRG vessels must begin monitoring 30 minutes prior to
activating acoustic sources, during the use of these acoustic sources,
and for 30 minutes after use of these acoustic sources has ceased;
(4) Any observations of marine mammals must be communicated to PSOs
on all nearby survey vessels during concurrent HRG surveys; and
(5) During daylight hours when survey equipment is not operating,
LOA Holder must ensure that visual PSOs conduct, as rotation schedules
allow, observations for comparison of sighting rates and behavior with
and without use of the specified acoustic sources. Off-effort PSO
monitoring must be reflected in the monthly PSO monitoring reports.
(f) Monitoring requirements during fisheries monitoring surveys.
The following measures apply during fisheries monitoring surveys and
must be implemented by LOA Holder:
(1) All captains and crew conducting fishery surveys must be
trained in marine mammal detection and identification; and
(2) Marine mammal monitoring must be conducted within 1 nmi from
the planned survey location by the trained captain and/or a member of
the scientific crew for 15 minutes prior to deploying gear, throughout
gear deployment and use (unless using ropeless gear), and for 15
minutes after haul back.
(g) Reporting. LOA Holder must comply with the following reporting
measures:
(1) Prior to initiation of any specified activities, LOA Holder
must demonstrate in a report submitted to NMFS Office of Protected
Resources that all required training for LOA Holder personnel
(including the vessel crews, vessel captains, PSOs, and PAM operators)
has been completed;
(2) LOA Holder must use a standardized reporting system during the
effective period of the LOA. All data collected related to the Project
must be recorded using industry-standard software that is installed on
field laptops and/or tablets. Unless stated otherwise, all reports must
be submitted to NMFS Office of Protected Resources
([email protected]), dates must be in MM/DD/YYYY
format, and location information must be provided in Decimal Degrees
and with the coordinate system information (e.g., NAD83, WGS84, etc.);
(3) For all visual monitoring efforts and marine mammal sightings,
the following information must be collected and reported to NMFS Office
of Protected Resources: the date and time that monitored activity
begins or ends; the construction activities occurring during each
observation period; the watch status (i.e., sighting made by PSO on/off
effort, opportunistic, crew, alternate vessel/platform); the PSO who
sighted the animal; the time of sighting; the weather parameters (e.g.,
wind speed, percent cloud cover, visibility); the water conditions
(e.g., Beaufort sea state, tide state, water depth); all marine mammal
sightings, regardless of distance from the construction activity;
species (or lowest possible taxonomic level possible); the pace of the
animal(s); the estimated number of animals (minimum/maximum/high/low/
best); the estimated number of animals by cohort (e.g., adults,
yearlings, juveniles, calves, group composition, etc.); the description
(i.e., 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); the
description of any marine mammal behavioral observations (e.g.,
observed behaviors such as feeding or traveling) and observed changes
in behavior, including an assessment of behavioral responses thought to
have resulted from the specific activity; the animal's closest distance
and bearing from the pile being driven or specified HRG equipment and
estimated time entered or spent within the Level A harassment and/or
Level B harassment zone(s); the activity at time of sighting (e.g.,
pile driving, construction surveys), use of any noise attenuation
device(s), and specific phase of activity (e.g., ramp-up of HRG
equipment, HRG acoustic source on/off, soft-start for pile
[[Page 4468]]
driving, active pile driving, etc.); the marine mammal occurrence in
Level A harassment or Level B harassment zones; the description of any
mitigation-related action implemented, or mitigation-related actions
called for but not implemented, in response to the sighting (e.g.,
delay, shutdown, etc.) and time and location of the action; other human
activity in the area, and; other applicable information, as required in
any LOA issued under Sec. 217.296;
(4) If a marine mammal is acoustically detected during PAM
monitoring, the following information must be recorded and reported to
NMFS: location of hydrophone (latitude and longitude; in Decimal
Degrees) and site name; bottom depth and depth of recording unit (in
meters); recorder (model & manufacturer) and platform type (i.e.,
bottom-mounted, electric glider, etc.), and instrument ID of the
hydrophone and recording platform (if applicable); time zone for sound
files and recorded date/times in data and metadata (in relation to
Universal Coordinated Time (UTC); i.e., Eastern Standard Time (EST)
time zone is UTC-5); duration of recordings (start/end dates and times;
in International Organization for Standardization (ISO) 8601 format,
yyyy-mm-ddTHH:MM:SS.sssZ); deployment/retrieval dates and times (in ISO
8601 format); recording schedule (must be continuous); hydrophone and
recorder sensitivity (in dB re. 1 microPascal ([mu]Pa)); calibration
curve for each recorder; bandwidth/sampling rate (in Hz); sample bit-
rate of recordings; and detection range of equipment for relevant
frequency bands (in meters);
(i) For each detection, the following information the following
information must be noted: species identification (if possible); call
type and number of calls (if known); temporal aspects of vocalization
(date, time, duration, etc.; date times in ISO 8601 format); confidence
of detection (detected, or possibly detected); comparison with any
concurrent visual sightings; location and/or directionality of call (if
determined) relative to acoustic recorder or construction activities;
location of recorder and construction activities at time of call; name
and version of detection or sound analysis software used, with protocol
reference; minimum and maximum frequencies viewed/monitored/used in
detection (in Hz); and name of PAM operator(s) on duty;
(5) LOA Holder must compile and submit weekly reports during
foundation installation to NMFS Office of Protected Resources that
document the daily start and stop of all pile driving associated with
the Project; the start and stop of associated observation periods by
PSOs; details on the deployment of PSOs; a record of all detections of
marine mammals (acoustic and visual); any mitigation actions (or if
mitigation actions could not be taken, provide reasons why); and
details on the noise attenuation system(s) used and its performance.
Weekly reports are due on Wednesday for the previous week (Sunday to
Saturday) and must include the information required under this section.
The weekly report must also identify which turbines become operational
and when (a map must be provided). Once all foundation pile
installation is completed, weekly reports are no longer required by LOA
Holder;
(6) LOA Holder must compile and submit monthly reports to NMFS
Office of Protected Resources during foundation installation that
include a summary of all information in the weekly reports, including
project activities carried out in the previous month, vessel transits
(number, type of vessel, MMIS number, and route), number of piles
installed, all detections of marine mammals, and any mitigative action
taken. Monthly reports are due on the 15th of the month for the
previous month. The monthly report must also identify which turbines
become operational and when (a map must be provided). Full PAM
detection data and metadata must also be submitted monthly on the 15th
of every month for the previous month via the webform on the NMFS North
Atlantic Right Whale Passive Acoustic Reporting System website at
https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates;
(7) LOA Holder must submit a draft annual report to NMFS Office of
Protected Resources no later than 90 days following the end of a given
calendar year. LOA Holder must provide a final report within 30 days
following resolution of NMFS' comments on the draft report. The draft
and final reports must detail the following: the total number of marine
mammals of each species/stock detected and how many were within the
designated Level A harassment and Level B harassment zone(s) with
comparison to authorized take of marine mammals for the associated
activity type; marine mammal detections and behavioral observations
before, during, and after each activity; what mitigation measures were
implemented (i.e., number of shutdowns or clearance zone delays, etc.)
or, if no mitigative actions was taken, why not; operational details
(i.e., days and duration of impact and vibratory pile driving, days,
days and amount of HRG survey effort, etc.); any PAM systems used; the
results, effectiveness, and which noise attenuation systems were used
during relevant activities (i.e., foundation pile driving); summarized
information related to situational reporting; and any other important
information relevant to the Project, including additional information
that may be identified through the adaptive management process. The
final annual report must be prepared and submitted within 30 calendar
days following the receipt of any comments from NMFS on the draft
report. If no comments are received from NMFS within 60 calendar days
of NMFS' receipt of the draft report, the report must be considered
final;
(8) LOA Holder must submit its draft 5-year report to NMFS Office
of Protected Resources on all visual and acoustic monitoring conducted
within 90 calendar days of the completion of activities occurring under
the LOA. A 5-year report must be prepared and submitted within 60
calendar days following receipt of any NMFS Office of Protected
Resources comments on the draft report. If no comments are received
from NMFS Office of Protected Resources within 60 calendar days of NMFS
Office of Protected Resources receipt of the draft report, the report
shall be considered final;
(9) LOA Holder must provide the initial results of the complete SFV
measurements to NMFS Office of Protected Resources in an interim report
after each foundation installation event as soon as they are available
and prior to any subsequent foundation installation, but no later than
48 hours after each completed foundation installation event. The report
must include, at minimum: hammer energies/schedule used during pile
driving, including, the total number of strikes and the maximum hammer
energy; the model-estimated acoustic ranges (R95) to
compare with the real-world sound field measurements; peak sound
pressure level (SPLpk), root-mean-square sound pressure
level that contains 90 percent of the acoustic energy
(SPLrms), and sound exposure level (SEL, in single strike
for pile driving, SELss,), for each hydrophone, including at
least the maximum, arithmetic mean, minimum, median (L50) and L5 (95
percent exceedance) statistics for each metric; estimated marine mammal
Level A harassment and Level B harassment acoustic isopleths,
calculated using the maximum-over-depth L5 (95 percent exceedance
level, maximum of both hydrophones) of the associated sound metric;
comparison of modeled results assuming 10-dB attenuation against the
[[Page 4469]]
measured marine mammal Level A harassment and Level B harassment
acoustic isopleths; estimated transmission loss coefficients; pile
identifier name, location of the pile and each hydrophone array in
latitude/longitude; depths of each hydrophone; one-third-octave band
single strike SEL spectra; if filtering is applied, full filter
characteristics must be reported; and hydrophone specifications
including the type, model, and sensitivity. LOA Holder must also report
any immediate observations which are suspected to have a significant
impact on the results including but not limited to: observed noise
mitigation system issues, obstructions along the measurement transect,
and technical issues with hydrophones or recording devices. If any in-
situ calibration checks for hydrophones reveal a calibration drift
greater than 0.75 dB, pistonphone calibration checks are inconclusive,
or calibration checks are otherwise not effectively performed, LOA
Holder must indicate full details of the calibration procedure,
results, and any associated issues in the 48-hour interim reports;
(10) LOA Holder must conduct abbreviated SFV for all foundation
installations for which the complete SFV monitoring is not carried out,
whereas a single acoustic recorder must be placed at an appropriate
distance from the pile, in alignment with the completed Biological
Opinion. All results must be included in the weekly reports. Any
indications that distances to the identified Level A harassment and
Level B harassment thresholds for marine mammals were exceeded must be
addressed by LOA Holder, including an explanation of factors that
contributed to the exceedance and corrective actions that were taken to
avoid exceedance on subsequent piles;
(11) The final results of all SFV measurements from each foundation
installation must be submitted as soon as possible, but no later than
90 days following completion of all annual SFV measurements. The final
reports must include all details included in the interim report and
descriptions of any notable occurrences, explanations for results that
were not anticipated, or actions taken during foundation installation.
The final report must also include at least the maximum, mean, minimum,
median (L50) and L5 (95 percent exceedance)
statistics for each metric; the SEL and SPL power spectral density and/
or one-third octave band levels (usually calculated as decidecade band
levels) at the receiver locations should be reported; range of
transmission loss coefficients; the local environmental conditions,
such as wind speed, transmission loss data collected on-site (or the
sound velocity profile); baseline pre- and post-activity ambient sound
levels (broadband and/or within frequencies of concern); a description
of depth and sediment type, as documented in the Construction and
Operation Plan (COP), at the recording and foundation installation
locations; the extents of the measured Level A harassment and Level B
harassment zone(s); hammer energies required for pile installation and
the number of strikes per pile; the hydrophone equipment and methods
(i.e., recording device, bandwidth/sampling rate; distance from the
pile where recordings were made; the depth of recording device(s)); a
description of the SFV measurement hardware and software, including
software version used, calibration data, bandwidth capability and
sensitivity of hydrophone(s), any filters used in hardware or software,
any limitations with the equipment, and other relevant information; the
spatial configuration of the noise attenuation device(s) relative to
the pile; a description of the noise abatement system and operational
parameters (e.g., bubble flow rate, distance deployed from the pile,
etc.), and any action taken to adjust the noise abatement system. A
discussion which includes any observations which are suspected to have
a significant impact on the results including but not limited to:
observed noise mitigation system issues, obstructions along the
measurement transect, and technical issues with hydrophones or
recording devices;
(12) If at any time during the project LOA Holder becomes aware of
any issue or issues which may (to any reasonable subject-matter expert,
including the persons performing the measurements and analysis) call
into question the validity of any measured Level A harassment or Level
B harassment isopleths to a significant degree, which were previously
transmitted or communicated to NMFS Office of Protected Resources, LOA
Holder must inform NMFS Office of Protected Resources within 1 business
day of becoming aware of this issue or before the next pile is driven,
whichever comes first;
(13) If a North Atlantic right whale is acoustically detected at
any time by a project-related PAM system, LOA Holder must ensure the
detection is reported as soon as possible to NMFS, but no longer than
24 hours after the detection via the 24-hour North Atlantic right whale
Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is
not necessary when reporting PAM detections via the template;
(14) Full detection data, metadata, and location of recorders (or
GPS tracks, if applicable) from all real-time hydrophones used for
monitoring during construction must be submitted within 90 calendar
days following completion of activities requiring PAM for mitigation
via the International Organization for Standardization (ISO) standard
metadata forms available on the NMFS Passive Acoustic Reporting System
website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Submit the completed data
templates to [email protected]. The full acoustic recordings
from real-time systems must also be sent to the National Centers for
Environmental Information (NCEI) for archiving within 90 days following
completion of activities requiring PAM for mitigation. Submission
details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
(15) LOA Holder must submit situational reports if the following
circumstances occur, including all instances wherein an exemption is
taken must be reported to NMFS Office of Protected Resources within 24
hours, in specific circumstances, including but not limited to the
following:
(i) If a North Atlantic right whale is observed at any time by PSOs
or project personnel, LOA Holder must ensure the sighting is
immediately (if not feasible, as soon as possible and no longer than 24
hours after the sighting) reported to NMFS, the U.S. Coast Guard, and
the Right Whale Sightings Advisory System (RWSAS). If in the Northeast
Region (Maine to Virginia/North Carolina border) call (866-755-6622).
If in the Southeast Region (North Carolina to Florida) call (877-WHALE-
HELP or 877-942-5343). If circumstances arise where calling NMFS is not
possible, reports must be made to the U.S. Coast Guard via channel 16
or through the WhaleAlert app (http://www.whalealert whalealert.org/). The
sighting report must include the time, date, and location of the
sighting, number of whales, animal description/certainty of sighting
(provide photos/video if taken), Lease Area/project name, PSO/personnel
name, PSO provider company (if applicable), and reporter's contact
information.
(ii) If a North Atlantic right whale is observed at any time by
PSOs or project personnel, LOA Holder must submit a summary report to
NMFS Greater Atlantic Regional Fisheries (GARFO; [email protected]), NMFS Office of Protected Resources,
[[Page 4470]]
and NMFS Northeast Fisheries Science Center (NEFSC;
[email protected]) within 24 hours with the above information and
the vessel/platform from which the sighting was made, activity the
vessel/platform was engaged in at time of sighting, project
construction and/or survey activity at the time of the sighting (e.g.,
pile driving, cable installation, HRG survey), distance from vessel/
platform to sighting at time of detection, and any mitigation actions
taken in response to the sighting;
(iii) If a large whale other than a North Atlantic right whale is
observed at any time by PSOs or project personnel, LOA Holder must
report the sighting to the WhaleAlert app (http://www.whalealert. org/
);
(iv) In the event that personnel involved in the Project discover a
stranded, entangled, injured, or dead marine mammal, LOA Holder must
immediately report the observation to NMFS. If in the Greater Atlantic
Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding
Hotline (866-755-6622); if in the Southeast Region (North Carolina to
Florida), call the NMFS Southeast Stranding Hotline (877-942-5343).
Separately, LOA Holder must report the incident to NMFS Office of
Protected Resources ([email protected]); if in the
Greater Atlantic region (Maine to Virginia), to NMFS Greater Atlantic
Regional Fisheries Office (GARFO; [email protected],
[email protected]); if in the Southeast region (North
Carolina to Florida), to NMFS Southeast Regional Office (SERO;
[email protected]); and to the U.S. Coast Guard, as soon as
feasible but within 24-hours. The report (via phone or email) must
include contact (name, phone number, etc.), the time, date, and
location of the first discovery (and updated location information if
known and applicable); species identification (if known) or description
of the animal(s) involved; condition of the animal(s) (including
carcass condition if the animal is dead); observed behaviors of the
animal(s), if alive; if available, photographs or video footage of the
animal(s); and general circumstances under which the animal was
discovered; and
(v) In the event of a vessel strike of a marine mammal by any
vessel associated with the Project or if project activities cause a
non-auditory injury or death of a marine mammal, LOA Holder must
immediately report the incident to NMFS. If in the Greater Atlantic
Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding
Hotline (866-755-6622) and if in the Southeast Region (North Carolina
to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343).
Separately, LOA Holder must immediately report the incident to NMFS
Office of Protected Resources ([email protected]) and,
if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO
([email protected], [email protected]) or, if
in the Southeast region (North Carolina to Florida), NMFS SERO
([email protected]). The report must include the time, date,
and location of the incident; species identification (if known) or
description of the animal(s) involved; vessel size and motor
configuration (inboard, outboard, jet propulsion); vessel's speed
leading up to and during the incident; vessel's course/heading and what
operations were being conducted (if applicable); status of all sound
sources in use; description of avoidance measures/requirements that
were in place at the time of the strike and what additional measures
were taken, if any, to avoid strike; environmental conditions (e.g.,
wind speed and direction, Beaufort sea state, cloud cover, visibility)
immediately preceding the strike; estimated size and length of animal
that was struck; description of the behavior of the marine mammal
immediately preceding and following the strike; if available,
description of the presence and behavior of any other marine mammals
immediately preceding the strike; estimated fate of the animal (e.g.,
dead, injured but alive, injured and moving, blood or tissue observed
in the water, status unknown, disappeared); and to the extent
practicable, photographs or video footage of the animal(s). LOA Holder
must immediately cease all on-water activities until the NMFS Office of
Protected Resources is able to review the circumstances of the incident
and determine what, if any, additional measures are appropriate to
ensure compliance with the terms of the LOA. NMFS Office of Protected
Resources may impose additional measures to minimize the likelihood of
further prohibited take and ensure MMPA compliance. LOA Holder may not
resume their activities until notified by NMFS Office of Protected
Resources; and
(16) Any lost gear associated with the fishery surveys will be
reported to the NOAA Greater Atlantic Regional Fisheries Office
Protected Resources Division ([email protected]) as soon
as possible or within 24 hours of the documented time of missing or
lost gear. This report must include information on any markings on the
gear and any efforts undertaken or planned to recover the gear. All
reasonable efforts, that do not compromise human safety, must be
undertaken to recover gear.
Sec. 217.296 Letter of Authorization.
(a) To incidentally take marine mammals pursuant to this subpart,
LOA Holder must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed February 4, 2029, the expiration date of
this subpart.
(c) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, LOA Holder must
apply for and obtain a modification of the LOA as described in Sec.
217.297.
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the
level of taking must be consistent with the findings made for the total
taking allowable under the regulations of this subpart.
(f) Notice of issuance or denial of an LOA must be published in the
Federal Register within 30 days of a determination.
Sec. 217.297 Modifications of Letter of Authorization.
(a) An LOA issued under Sec. Sec. 217.292 and 217.296 or this
section for the activities identified in Sec. 217.290(a) shall be
modified upon request by LOA Holder, provided that:
(1) The specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for this subpart (excluding changes made
pursuant to the adaptive management provision in paragraph (c)(1) of
this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under this subpart were
implemented.
(b) For a LOA modification request by the applicant that includes
changes to the activity or the mitigation, monitoring, or reporting
(excluding changes made pursuant to the adaptive management provision
in paragraph (c)(1) of this section), the LOA shall be modified,
provided that:
[[Page 4471]]
(1) NMFS determines that the changes to the activity or the
mitigation, monitoring, or reporting do not change the findings made
for the regulations in this subpart and do not result in more than a
minor change in the total estimated number of takes (or distribution by
species or years), and
(2) NMFS may publish a notice of proposed modified LOA in the
Federal Register, including the associated analysis of the change, and
solicit public comment before issuing the LOA.
(c) An LOA issued under Sec. Sec. 217.292 and 217.296 or this
section for the activities identified in Sec. 217.290(a) may be
modified by NMFS under the following circumstances:
(1) Through adaptive management, NMFS may modify (including delete,
modify, or add to) the existing mitigation, monitoring, or reporting
measures (after consulting with LOA Holder regarding the practicability
of the modifications), if doing so creates a reasonable likelihood of
more effectively accomplishing the goals of the mitigation and
monitoring;
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA
include, but are not limited to:
(A) Results from LOA Holder's monitoring(s);
(B) Results from other marine mammals and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent, or number not authorized by the regulations in
this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
shall publish a notice of proposed LOA in the Federal Register and
solicit public comment.
(2) If NMFS determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in the LOA issued pursuant to Sec. Sec. 217.292 and
217.296 or this section, an LOA may be modified without prior notice or
opportunity for public comment. Notice would be published in the
Federal Register within 30 days of the action.
Sec. Sec. 217.298-217.299 [Reserved]
[FR Doc. 2024-00297 Filed 1-22-24; 8:45 am]
BILLING CODE 3510-22-P