[Federal Register Volume 89, Number 31 (Wednesday, February 14, 2024)]
[Rules and Regulations]
[Pages 11342-11431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01363]
[[Page 11341]]
Vol. 89
Wednesday,
No. 31
February 14, 2024
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Empire Wind Project, Offshore New
York; Final Rule
Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 /
Rules and Regulations
[[Page 11342]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240118-0017]
RIN 0648-BL97
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Empire Wind Project, Offshore
New York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of issuance of letter of
authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, notification is hereby given
that NMFS promulgates regulations to govern the incidental taking of
marine mammals incidental to Empire Offshore Wind, LLC (Empire Wind), a
50-50 partnership between Equinor, ASA (Equinor) and BP p.l.c., during
the construction of an offshore wind energy project (the Project) in
Federal and State waters off of New York, 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-512) (referred to as the Lease Area) and along
two export cable routes to sea-to-shore transition points
(collectively, the Project Area), over the course of 5 years (February
22, 2024, through February 21, 2029). These regulations, which allow
for the issuance of a Letter of Authorization (LOA) for the incidental
take of marine mammals during specific 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. Upon publication of this final
rule and within 30 days, NMFS will issue a LOA to Empire Wind for the
effective period of the final rule.
DATES: This rulemaking and issued LOA are effective from February 22,
2024, through February 21, 2029.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Empire Wind's application and supporting documents, as
well as a list of the references cited in this document, may be
obtained online at: https://www.fisheries.noaa.gov/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.) to allow for the
authorization of take of marine mammals incidental to construction of
the Empire Wind project within the Lease Area and along export cable
corridors to landfall locations in New York. To allow this to occur,
NMFS received a request from Empire Wind for 5-year regulations and a
LOA that would authorize take of individuals of 17 species of marine
mammals, comprising 18 stocks (two species by Level A harassment and
Level B harassment and 17 species by Level B harassment only)
incidental to Empire Wind's construction activities. No mortality or
serious injury was requested, nor is it 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
As noted in the Changes from the Proposed to Final Rule section, we
have added regulatory definitions for terms used in this final rule.
These changes are described, in detail, in the sections below and,
otherwise, the description of the legal authority has not changed since
the proposed rule.
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). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to as ``mitigation'');
and requirements pertaining to the mitigation, monitoring and reporting
of the takings are set forth.
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:
Citizen--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);
Incidental 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; 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).
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 this rule containing 5-year regulations
and associated LOA. This final rule also establishes required
mitigation, monitoring, and reporting requirements for Empire Wind's
construction activities.
[[Page 11343]]
Summary of Major Provisions Within the Final Rule
The major provisions within this final rule include:
The authorized take of marine mammals by Level A
harassment and/or Level B harassment;
No mortality or serious injury of any marine mammal is
authorized;
The establishment of a seasonal moratorium on impact pile
driving foundation piles during the months of the highest presence of
North Atlantic right whales (Eubalaena glacialis) in the Project Area
(January 1 to April 30 annually);
A requirement for both visual and passive acoustic
monitoring (PAM) to occur by trained, NOAA Fisheries-approved Protected
Species Observers (PSOs) and PAM (where required) operators before,
during, and after select activities;
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 device(s) during
all impact pile driving installation activities to reduce noise levels;
A delay to the start of foundation installation if a North
Atlantic right whale is observed at any distance by PSOs or
acoustically detected;
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 or if other marine mammals are
observed entering their respective shutdown zones;
A requirement to implement sound field verification (SFV)
requirements during impact pile driving of foundation piles 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 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 for PSOs to continue to monitor for 30
minutes after any impact pile driving for foundation installation;
A requirement for the increased awareness of North
Atlantic right whale presence through monitoring of the appropriate
networks 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 for frequently scheduled and situational
reporting including, but not limited to, information regarding
activities occurring, marine mammal observations and acoustic
detections, and SFV monitoring results.
Under section 105(a)(1) of the MMPA, failure to comply with these
requirements or any other requirements in a regulation or permit
implementing the MMPA may result in civil monetary penalties. Pursuant
to 50 CFR 216.106, violations may also result in suspension or
withdrawal of the LOA for the Project. Knowing violations may result in
criminal penalties, under section 105(b) of the MMPA.
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)).
The 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/empire-wind-energy-project.
Summary of Request
On December 7, 2021, Empire Wind submitted a request for the
promulgation of regulations and issuance of an associated 5-year LOA to
take marine mammals incidental to construction activities associated
with implementation of the Project (offshore of New York in BOEM Lease
Area OCS-A-0512. The request was for the incidental, but not
intentional, taking of a small number of 17 marine mammal species
(comprising 18 stocks). Neither Empire Wind nor NMFS expects any
serious injury or mortality to result from the specified activities,
nor has NMFS authorized any.
In response to our questions and comments, and following extensive
information exchange between Empire Wind and NMFS, Empire Wind
submitted a final, revised application on August 8, 2022. NMFS deemed
it adequate and complete on August 11, 2022. This final application is
available on NMFS' website at https://www.fisheries.noaa.gov/protected-resource-regulations.
On September 9, 2022, NMFS published a notice of receipt (NOR) of
Empire Wind's adequate and complete application in the Federal Register
(87 FR 55409), requesting public comments and information on Empire
Wind's request during a 30-day public comment period. During the NOR
public comment period, NMFS received comment letters from an
environmental non-governmental organization (Responsible Offshore
Development Alliance) and a corporate entity (Allco Renewable Energy
Limited). NMFS has reviewed all submitted material and has taken these
into consideration during the drafting of this final rule.
In June 2022, new scientific information was released regarding
marine mammal densities (Roberts et al., 2023). In response, Empire
submitted a final addendum to the application on January 25, 2023,
which included revised marine mammal densities and take estimates based
on Roberts et al. (2023). The addendum also identified a revision to
the density calculation methodology. Both of these revisions were
recommended by NMFS. Empire requests the regulations and subsequent LOA
be valid for 5 years beginning in the first quarter of 2024 (February
22) through the first quarter of 2029 (February 21). Neither Empire
Wind nor NMFS expects serious injury or mortality to result from the
specified activities. Empire's complete application and associated
addendum are available on NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1.
On April 13, 2023, NMFS published a proposed rule in the Federal
Register for the Project (88 FR 22696). In the proposed rule, NMFS
synthesized all of the information provided by Empire Wind, all best
available scientific findings and literature relevant to the proposed
project, and outlined, in detail, proposed mitigation, monitoring, and
reporting measures designed to effect the least practicable adverse
impacts on marine mammal species and
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stocks. The public comment period on the proposed rule was open for 30
days on https://www.regulations.gov starting on April 13, 2023, and
closed after May 13, 2023. Specific details on the public comments
received during this 30-day period are described in the Comments and
Responses section.
NMFS previously issued three Incidental Harassment Authorizations
(IHAs) to Equinor and its predecessors for related work regarding high
resolution site characterization surveys (see 83 FR 19532, May 3, 2018;
84 FR 18801, May 2, 2019 (renewal); 85 FR 60424, September 25, 2020).
To date, Equinor 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 this incidental take regulation (ITR)--or any other MMPA incidental
take authorization (ITA)--the authorization holder will be required to
comply with any and all applicable requirements contained within the
final rule. Specifically, where measures in any final vessel speed rule
are more protective or restrictive than those in this or any other MMPA
authorization, authorization holders will be required to comply with
the requirements of the rule. Alternatively, where measures in this or
any other MMPA authorization are more restrictive or protective than
those in any final vessel speed rule, the measures in the MMPA
authorization 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 Empire Wind if the measures in the speed rule were to
supersede any of the measures in the MMPA authorization such that they
were no longer required.
Description of the Specified Activity
Overview
Empire Wind plans to construct and operate two offshore wind
projects within OCS-A 0512: Empire Wind 1 (western portion of Lease
Area) and Empire Wind 2 (eastern portion of Lease Area). The two
projects combined will produce a total of approximately 2,076 megawatts
(MW) of renewable energy to New York. Empire Wind 1 (816 MW) and Empire
Wind 2 (1,260 MW) will be electrically isolated and independent of each
other and each will be connected to their own points of interconnection
via individual submarine export cable routes.
The Project will consist of several different types of permanent
offshore infrastructure, including wind turbine generators (WTGs) and
associated foundations, offshore substations (OSSs), inter-array
cables, submarine export cables and scour protection. Specifically,
activities to construct the Project include the installation of up to
147 WTGs and two OSSs by impact pile driving (total of 149
foundations). Additional activities will include cable installation,
site preparation activities (e.g., dredging), HRG surveys, installation
of cofferdams or casing pipes supported by goal post piles, removal of
berthing piles and performing marina bulkhead work; and conducting
several types of fishery and ecological monitoring surveys. Multiple
vessels will transit within the Project Area and between ports and the
wind farm to perform the work and transport crew, supplies, and
materials. All offshore cables will connect to onshore export cables,
substations, and grid connections on Long Island and Brooklyn, New
York. Marine mammals exposed to elevated noise levels during impact and
vibratory pile driving or site characterization surveys may be taken by
Level A harassment and/or Level B harassment, depending on the
specified activity. A detailed description of the construction project
is provided in the proposed rule as published in the Federal Register
(88 FR 22696, April 13, 2023).
Activities Not Considered in Empire Wind's Request for Authorization
During construction, Empire will receive equipment and materials to
be staged and loaded onto installation vessels at one or more existing
third-party port facilities. Empire has not yet finalized the selection
of all facilities, although they will include the South Brooklyn Marine
Terminal (SBMT) in Brooklyn, New York. SBMT has been selected as the
location for export cable landfall and the onshore substation for
Empire Wind 1. Empire also has leased portions of SBMT for Empire Wind
1 and Empire Wind 2 for laydown and staging of wind turbine blades,
turbines, and nacelles; foundation transition pieces; or other facility
parts during construction of the offshore wind farm.
The final port selection(s) for staging and construction will be
determined based upon whether the ports are able to accommodate Empire
Wind's schedule, workforce, and equipment needs. Any port improvement
construction activities to facilitate laydown and staging would be
conducted by a separate entity, would serve the broader offshore wind
industry in addition to the Project, and are not addressed further.
Empire Wind is not planning on detonating any unexploded ordnance
(UXO) or munitions and explosives of concern (MEC) during the effective
period of the rule. Hence, Empire Wind did not analyze or request, and
NMFS is not authorizing, take associated with this activity. Other
means of removing UXO/MEC may occur (e.g., lift and shift). As UXO/MEC
detonation will not occur, it is not discussed further in this
analysis.
Dates and Duration
Empire Wind anticipates activities resulting in harassment to
marine mammals occurring throughout all 5 years of the final rule
(table 1). Offshore Project activities are expected to begin in March
2024, after issuance of the 5-year LOA, and continue through March
2029. Empire Wind anticipates the following construction schedule over
the five-year period. Empire Wind 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.
Additional information on dates and activity-specific durations can be
found in the proposed rule and are not repeated here.
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Table 1--Activity Schedule To Construct and Operate the Project
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Expected timing Expected timing Empire
Project activity Empire Wind 1 Wind 2
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Submarine Export Cables..... Q3 2024; Q3 Q3-Q4 2025.
2025.
OSS Jacket Foundation and Q2 \1\-Q4 2025. Q2 \1\-Q4 2025; Q2\1\-Q4
Topside. 2026.\2\
Monopile Foundation Q2 \1\-Q4 2025. Q2 \1\-Q4 2025; Q2\1\-Q4
Installation. 2026.
WTG Installation............ Q4 2025-Q2 2026 Q4 2026-Q3 2027.
Interarray Cables........... Q2-Q4 2025..... Q2-Q3 2026.
HRG Surveys................. Q1 2024-Q4 2028 Q1 2024-Q4 2028.
Cable Landfall Construction. Q1-Q4 2024 \3\. Q1 2024-Q4 2025.\3\
Marina Activities........... n/a............ Q1-Q4 2024.
Barnum Channel Cable Bridge n/a............ Q4 2024-Q2 2025.
Construction.
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Note: Project activities are anticipated to start no earlier than Q1
2024. Q1 = January through March; Q2 = April through June; Q3 = July
through September; Q4 = October through December.
\1\ Impact driving of foundation piles is prohibited between January 1
and April 30. During Q2 such activities could not start until May 1.
\2\ Empire Wind 2 OSS jacket installation is planned for 2025, only
Empire Wind 2 topside work is planned for 2026.
\3\ While cable landfall construction could occur at any time during the
time period identified would only occur for approximately 30 days.
Specific Geographic Region
A detailed description of the Specific Geographic Region, defined
as the Mid-Atlantic Bight, is provided in the proposed rule as
published in the Federal Register (88 FR 22696, April 13, 2023). Since
the proposed rule was published, no changes have been made to the
Specified Geographic Region. Generally, most of Empire Wind's specified
activities (i.e., impact pile driving of WTGs and OSS monopile
foundations; vibratory pile driving (installation and removal) of
temporary cofferdams and goal posts; vibratory pile and removal of
sheet piles and bulkhead piles; placement of scour protection;
trenching, laying, and burial activities associated with the
installation of the export cable route and inter-array cables; HRG site
characterization surveys; and WTG operation) are concentrated in the
Lease Area and cable corridor.
[GRAPHIC] [TIFF OMITTED] TR14FE24.087
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Comments and Responses
A notice of proposed rulemaking was published in the Federal
Register on April 13, 2023 (88 FR 22696). The proposed rulemaking
described, in detail, Empire Wind's specified activities, the specific
geographic region of the specified activities, the marine mammal
species that may be affected by these activities, and the anticipated
effects on marine mammals. In the proposed rule, we requested that
interested persons submit relevant information, suggestions, and
comments on Empire Wind'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.
NMFS received 328 comment submissions, comprising 319 individual
comments from private citizens and 8 comment letters from organizations
or public groups, including, but not limited to, the Marine Mammal
Commission (the Commission), Clean Ocean Action, Oceana, Inc.,
Responsible Offshore Development Alliance, Friends of Animals, Lido
Beach Civic Association, Defend Brigantine Beach, and the Natural
Resources Defense Council. Some of the comments received were
considered out-of-scope, including, but not limited to: comments
related to impacts to the coastal ecosystem and local community;
concerns for other species outside of NMFS' jurisdiction (e.g., birds);
maintenance of the permanent structures; costs associated with offshore
wind development; distance of the Project from shore; and other
projects that are not the Project. These are not described herein or
discussed further. Moreover, where comments recommended that we include
measures that were already contained within the proposed rule, we have
not included them here if the final rule carries over the same measure
as those comments are considered adequately addressed. In addition, if
a comment received was unclear and therefore did not raise a
significant point, the comment is not responded to herein.
The comment letters received during the public comment period which
contained substantive information were considered by NMFS in its
estimated take analysis; required mitigation, monitoring, and reporting
measures; final determinations; and final regulations. These comments
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.
Public Comments and Responses
Modeling and Take Estimates
Comment 1: The Commission has stated that, due to uncertainty in
how NMFS will be addressing their previously submitted comments for
other final offshore wind rulemakings, they are not providing ``an
exhaustive letter regarding similar issues'' for Empire Wind's action.
They have stated that, in lieu of this, they incorporate by reference
all previously submitted comment letters for past proposed rules (i.e.,
Sunrise Wind, Revolution Wind, Ocean Wind 1) and that NMFS should
specifically review these previously submitted letters (i.e., Sunrise
Wind (88 FR 8996, February 10, 2023), Revolution Wind (87 FR 79072,
December 23, 2022), and Ocean Wind 1 (87 FR 64868, October 26, 2022)
and incorporate, where applicable, relevant information in the context
of the Project. They specifically noted that these general concerns
could include ``underestimated numbers of Level A and B harassment
takes (including failing to round up to group size), incomplete SFV
measurement requirements, insufficient mitigation and monitoring
measures, errors and omissions in the preamble to and the proposed
rule, and the general issue of quality control and quality assurance in
NMFS's preparation of proposed incidental take authorizations.''
Response: NMFS acknowledges the receipt of a comment letter on the
proposed Project by the Commission, as well as receipt of comment
letters from the Commission for the Sunrise Wind (88 FR 8996, February
10, 2023), Revolution Wind (87 FR 79072, December 23, 2022), and Ocean
Wind 1 (87 FR 64868, October 26, 2022) proposed projects. We appreciate
that, in the past, the Commission has provided very specific and
detailed comments and suggestions on NMFS' actions, as a collaborative
effort to improve both the incidental take authorizations (ITAs)
themselves as well as the conservation benefits for NMFS' trust
species. Because the Commission did not provide specific comments on
the proposed rule for the Project, we cannot address any specific
concerns. However, we can address general themes of concern raised in
previous letters, and, inasmuch as another specific comment is
applicable here, we refer the Commission back to our previous
responses.
Overall, the Commission's previous letters raised concerns over
acoustic modeling, underestimating take estimates, mitigation and
monitoring, and reporting measures. The Commission raised specific
concerns over underestimating take requests by Level A harassment
associated with impact pile driving (see comment 2), the size of the
minimum visibility zone (see comment 15), the number of vessels
required to implement mitigation measures (see comment 5), and SFV
reporting measures (see comment 18) in its letter and we have addressed
these in the relevant responses. With respect to mitigation, monitoring
and reporting requirements, we have thoroughly addressed the
Commission's previous concerns and have updated final rules, including
this one, accordingly. In response to the Commission's comments, NMFS
has strengthened requirements for noise attenuation systems, increased
the number of PSOs required for monitoring, and added additional
reporting requirements for SFV measurements. Lastly, any ``omissions''
and ``general issues of quality control and quality assurance'' from
one action are less likely to be present in another action as updates
are carried through across actions (although NMFS does not agree that
every example previously raised by the Commission was, in fact, an
error). For all of these reasons, not all of the Commission's specific
concerns raised in previous letters apply to this project and we cannot
address specific concerns the Commission did not identify in its
letter. We have, however, made certain changes based on the
Commission's previous comments referenced here. Those changes are
identified in the Changes From the Proposed to Final Rule section, and
are also described below in this Response to Public Comments section.
As we continue to learn from and refine our MMPA process for
offshore wind actions, we look forward to continuing to work
cooperatively with the Commission to identify opportunities to further
minimize impacts to marine mammals, where practicable.
Comment 2: The Commission indicated that, for past proposed rules,
there have been discrepancies with take requests by Level A harassment
associated with impact pile driving accounting for documented average
group sizes of species, and suggested ensuring that Empire Wind's take
requests by Level A harassment are
[[Page 11347]]
consistent with documented average group sizes for the Project Area.
Response: While we do not agree with the Commission in all cases
regarding their identification of ``discrepancies,'' in this case, we
have agreed that their recommendation is appropriate. Specifically, in
response to the Commission's comment and Endangered Species Act (ESA)
consultation discussion, and based upon recent PSO sighting reports in
the Project Area, NMFS has decided to increase take by Level A
harassment associated with impact pile driving for fin whales in order
to ensure that authorized take is consistent with documented average
group size for the Project Area. Take by Level A harassment for year 2
(2025) associated with impact-pile-driving activities will be increased
from two fin whales to four fin whales, assuming two groups of two
whales each are taken by Level A harassment. In year 3 (2026), take by
Level A harassment associated with impact-pile-driving activities will
be increased from one fin whale to two fin whales, assuming one group
of two whales are taken by Level A harassment. Additional take by Level
A harassment is authorized during year 2 due to increased pile-driving
activity during that year.
Comment 3: Commenters stated that there is no evidence or research
proving that the Project would not cause the mortality or serious
injury of marine mammals. The commenters mistakenly categorized Level A
harassment and Level B harassment as mortality and serious injury.
Response: Regarding take by serious injury or mortality, the
proposed rule stated 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 50 CFR 217.292(c)).
Regarding the suggestion 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 take on a project-by-project basis. In the
Estimated Take section, NMFS has provided a detailed rationale for why
the amount and manner of take described in this final rule is
reasonable and based on the best available science. The commenters did
not provide any information to support the 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 Empire Wind.
Mitigation
Comment 4: Commenters recommended that NMFS increase the size of
the clearance and shutdown zones for site assessment surveys to 500
meters (m) for all large whales and 1,000 m for North Atlantic right
whales and require a 1,000-m acoustic clearance zone (i.e.,
necessitating the use of PAM for HRG surveys); and require that any
unidentified large whale within 1,000 m of the vessel be considered a
North Atlantic right whale.
Response: NMFS disagrees with several of the suggestions provided
by the commenters. As described in the proposed rule and this final
rule, the required 500-m shutdown zone for North Atlantic right whales
exceeds the modeled distance to the largest 160-dB Level B harassment
isopleth (50.05 m during Compressed High Intensity Radiated Pulse
(CHIRP) use) by a large margin, minimizing the likelihood that they
will be harassed in any manner by this activity. For other ESA-listed
species (e.g., fin and sei whales), NMFS Greater Atlantic Regional
Fisheries Office's (GARFO's) 2021 Offshore Wind Site Assessment Survey
Programmatic ESA consultation (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic) determined that a 100-m shutdown zone
is sufficient to minimize exposure to noise that could be disturbing.
Accordingly, NMFS has adopted this shutdown zone size for all baleen
whale species other than the North Atlantic right whale. Commenters do
not provide scientific information for NMFS to consider to support
their recommendation to expand the shutdown zone. Given that these
surveys are relatively low impact and NMFS has prescribed a
precautionary North Atlantic right whale shutdown zone that is larger
(500 m) than the largest estimated harassment zone (50.05 m), NMFS has
determined that an increase in the size of the shutdown zone during HRG
surveys is not warranted.
Regarding the use of acoustic monitoring to implement the shutdown
zones, NMFS does not consider acoustic monitoring an effective tool for
use with HRG surveys for the reasons discussed below and therefore, has
not required it in this final rule. 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.
The commenters do not provide additional scientific information for
NMFS to consider to support their recommendation to require PAM during
site assessment surveys. NMFS disagrees that this measure is warranted
because it is not expected to be effective for use in detecting the
species of concern. It is generally accepted that, even in the absence
of additional acoustic sources, using a towed passive acoustic sensor
to detect baleen whales (including 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 decibels (dB) referenced to 1 (re 1) [mu]Pa (micropascal) at 1 m
(National Research Council (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 (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
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 (e.g., seismic noise, vessel noise, and flow
noise).
Further, there are several additional reasons why we disagree that
use of PAM is warranted for HRG surveys, specifically. While NMFS
agrees that PAM can be an important tool for augmenting detection
capabilities in certain circumstances (e.g., foundation installation),
its utility in further
[[Page 11348]]
reducing impacts during HRG survey activities is limited. First, for
this activity, the area expected to be ensonified above the Level B
harassment threshold is relatively small (a maximum of 50.05 m); this
reflects the fact that the source level is comparatively low and the
intensity of any resulting impacts would be lower level. Further, it
means that inasmuch as PAM will only detect a portion of any animals
exposed within a zone, the overall probability of PAM detecting an
animal in the harassment zone is low. Together, these factors support
the limited value of PAM for use in reducing take for activities/
sources with smaller zones. Also, PAM is only capable of detecting
animals that are actively vocalizing, while many marine mammal species
vocalize infrequently or during certain activities, which means that
only a subset of the animals within the range of the PAM would be
detected (and potentially have reduced impacts). Additionally,
localization and range detection can be challenging under certain
scenarios. For example, odontocetes are fast moving and often travel in
large or dispersed groups which makes localization difficult.
Given that the effects to marine mammals from the types of HRG
surveys authorized in this final rulemaking are expected to be limited
to low level behavioral harassment even in the absence of mitigation,
the limited additional benefit anticipated by adding this detection
method (especially for North Atlantic right whales and other low
frequency cetaceans, species for which PAM has limited efficacy during
this activity), and the cost and impracticability of implementing a
full-time PAM program, we have determined the current requirements for
visual monitoring are sufficient to ensure the least practicable
adverse impact on the affected species or stocks and their habitat
during HRG surveys.
Comment 5: The Commission noted that the proposed rule does not
require a second vessel to implement the various mitigation measures
and that PSOs would only be required on the pile driving vessel. The
Commission further noted that these measures are not consistent with
other offshore wind rules.
Response: In response to the Commission's comment and the ESA
consultation discussion, Empire Wind may propose an alternative
monitoring technology that has been demonstrated to have a greater
visual monitoring capability compared to 3 PSOs on a dedicated PSO
vessel in place of a requirement to have a second dedicated PSO vessel
during impact pile driving activities to implement mitigation measures.
The proposed alternative monitoring technology must be approved by
NMFS. A minimum of three PSOs on duty at any given time will be
required to conduct monitoring from each vessel. These requirements are
included in the final rule and described in further detail in Sec.
217.285(b)(4).
Comment 6: Commenters recommended that NMFS require clearance and
shutdown zones for North Atlantic right whales specifically, including:
(1) a minimum of 5,000 m for the visual clearance, acoustic clearance,
and shutdown zones in all directions from the driven pile location; and
(2) an acoustic shutdown zone that would extend at least 2,000 m 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: NMFS agrees with this comment and is now requiring both
clearance and shutdown zones for North Atlantic right whales that are
activated at any distance of detection.
The commenters do not provide additional scientific information for
NMFS to consider to support their recommendation to expand clearance
and shutdown zones to effect the least practicable adverse impact on
marine mammals, particularly large whales, excluding the North Atlantic
right whale. The required shutdown and clearance zones (equally sized)
for large whales (other than North Atlantic right whale) are based on
the largest exposure range calculated for any mysticete, other than
humpback whales, that represents the distance to the Level A harassment
cumulative sound exposure level (SELcum) isopleth for the
low frequency hearing group, rounded up to the nearest hundred for PSO
clarity. Required monitoring and mitigation for these zones will
minimize Level A harassment and Level B harassment to the extent
practicable and avoid most Level A harassment of large whales (all
species of large whales have six or fewer takes by Level A harassment
across all 5 years of the rule). Further enlargement of these zones
could interrupt and delay the Project such that a substantially higher
number of days would be needed to complete the construction activities,
which would incur additional costs, but importantly, also potentially
increase the number of days that marine mammals are exposed to the
disturbance. 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 7: Commenters noted that the final rule should clarify that
if weather or other conditions limit the range of observation, then
shutdown zones will be initiated. Commenters also questioned the
feasibility of the shutdown mitigation requirements in real-world
conditions and what would occur if the authorized take levels were
exceeded. In addition, commenters state concerns on the required
mitigation measures, assessing the effectiveness of the mitigation
measures, and reporting the use of the mitigation measures in real-
time.
Response: NMFS disagrees that additional clarification should be
added to describe the initiation of shutdown zones if weather
conditions limit the range of observation. With respect to weather and
other conditions that could impede observations, NMFS has clearly
explained and established in the proposed and final rule a minimum
visibility zone that must be visually clear of marine mammals before
and during pile driving. If this area cannot be visually monitored,
pile driving must not be initiated or must cease. In addition to visual
monitoring, Empire Wind is required to conduct PAM which is not
influenced by poor visibility conditions.
In regard to a scenario where Empire Wind exceeds their authorized
take levels, any further take would be unauthorized and, therefore,
prohibited under the MMPA. All mitigation measures stated in this
notice and in the issued LOA are considered feasible. NMFS works with
each ITA applicant, including Empire Wind, to ensure that project-
specific mitigation measures are possible in real-world conditions.
This includes shutdown zones when there is reduced visibility. As
stated in the rule condition Sec. 217.285(b)(5), Empire Wind must
ensure certain equipment is provided to PSOs, such as thermal (i.e.,
infrared) cameras, to allow PSOs to adequately complete their duties,
including in reduced-visibility conditions. NMFS does not agree that
additional wording is necessary within the rule to further describe the
requirement and implementation of shutdown zones. Further, pursuant to
the adaptive management provisions in the rule, NMFS may modify the
required mitigation or monitoring measures, if doing so creates a
[[Page 11349]]
reasonable likelihood of more effectively accomplishing the goals of
the mitigation and monitoring. NMFS disagrees that the rule's
mitigation measures are insufficient.
NMFS reviews required reporting (see Monitoring and Reporting) and
uses the information to evaluate the mitigation measure effectiveness.
Additionally, the mitigation measures included in Empire Wind's rule
are not unique, and data from prior rules support the effectiveness of
these mitigation measures. NMFS finds the level of reporting currently
required is sufficient for managing the issued rule and monitoring the
affected stocks of marine mammals.
Comment 8: A commenter suggested that PSOs complement their survey
efforts using additional technologies, such as infrared detection
devices, when in low-light conditions.
Response: NMFS agrees with the commenter regarding this suggestion
and a requirement to utilize a thermal (infrared) device during low-
light conditions was included in the proposed rule. That requirement is
included as a requirement of the final rule.
Comment 9: 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 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, 2022). They also recommended that NMFS require
the ``best commercially available combined [noise attenuation system]
technology'' to achieve noise reduction and attenuation.
A commenter also suggested that NMFS require Empire Wind to use HRG
acoustic sources at the lowest practicable source levels needed to meet
the objectives of the site characterization surveys.
Response: NMFS agrees that previous measurements indicate that the
deployment of double big bubble curtains should result in noise
reductions beyond the assumed 10 dB. 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. While NMFS is requiring that Empire Wind 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 noise
attenuation systems (NASs) 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.
However, when 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 believes assuming only a 10-dB noise reduction
is conservative. Furthermore, if SFV measurements consistently
demonstrate that more than a 10-dB reduction is achievable, adjustments
in monitoring and mitigation can be made by NMFS, upon request by
Empire Wind. We reiterate that there is no requirement to achieve 10-dB
attenuation as no unattenuated piles would be driven (in order to
minimize impacts and noting as supported by one of the commenters here
and on past similar actions); therefore, it is not possible to collect
the data necessary to enforce this requirement. However, 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, but rather 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 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 applicable, will not have an unmitigable adverse
impact on the availability of such species or stock for subsistence
uses.
NMFS notes that Empire Wind must conduct SFV on 3 monopiles and on
all OSS foundations (24 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 of attenuation),
Empire Wind 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.
In addition to the SFV requirements in the proposed rule, we added
to this final rule the requirement that Empire Wind 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 to be 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 were
exceeded must be addressed by Empire Wind including an explanation of
factors that contributed to the exceedance and corrective actions that
were taken to avoid exceedance on subsequent piles.
As part of the updates to the final rule, in response to these
comments regarding sufficient NAS, NMFS will also require maintenance
checks and testing of NAS systems before each use to ensure the NAS is
usable and the
[[Page 11350]]
system is able to achieve the modeled reduction, this information would
be required to be reported to NMFS within 72 hours of an installation
and before the next installation occurs.
NMFS agrees that the final SFV reports that have undergone quality
assurance/quality control by the agencies and include all of the
required information to support full understanding of the results will
be made publicly available. NMFS will make all final reports available
on our website. NMFS agrees with the recommendation that Empire Wind
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.
Comment 11: To minimize the risk of vessel strikes for all whales,
and especially in recognition of the imperiled state of North Atlantic
right whales, commenters do not believe that mitigation measures to
reduce the risk of vessel strike are strong enough and have instead
suggested that NMFS require a mandatory 10-knot (kn) (5.14 m/s) speed
restriction for all project vessels (including PSO survey vessels) at
all times, except for reasons of safety, and in all places except in
limited circumstances where the best available scientific information
demonstrates that whales do not occur in the area.
Alternatively, commenters suggested that project proponents could
work with NMFS to develop an ``Adaptive Plan'' that modifies vessel
speed restrictions if the monitoring methods are proven to be effective
when vessels are traveling 10 kn (5.14 m/s) or less. 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.
In a related comment, a commenter encouraged NMFS to proactively
work to reduce the risk of vessel strike across maritime industries by
conducting research to better understand large whale habitat use in the
New York Bight through targeted research studies focusing on habitat
use at the surface and at depth in order to inform development of
vessel strike reduction measures for large whale species.
Response: NMFS acknowledges that vessel strikes pose a risk to
marine wildlife, including North Atlantic right whales, but disagrees
with the commenter that the mitigation measures to prevent vessel
strike are insufficient. Under the MMPA, NMFS must prescribe
regulations setting forth other means of effecting the least
practicable adverse impact of the requestor's specified activities on
species or stocks and its habitat. In both the proposed and final
rules, we analyzed the potential for vessel strike resulting from the
planned activities. We determined that the risk of vessel strike is
low, based on the nature of the activities, including the number of
vessels involved in those activities and the relative slower speed of
most of those vessels, and the fact that high speed vessels are mostly
used for activities (e.g., crew transfer during foundation
installation) that occur when large whale presence is lower than during
the foundation pile driving seasonal restriction. In addition, vessels
associated with the construction activities will add a discountable
amount of vessel traffic to the specific geographic region.
To further reduce the already low risk, NMFS has required several
mitigation measures specific to vessel strike avoidance. With the
implementation of these measures, NMFS has determined that the
potential for vessel strike is so low as to be discountable and vessel
strike is reasonably considered to be avoidable. Whales and other
marine mammal species are present within the Project Area year-round.
However, many large whale species (e.g., North Atlantic right whales)
are less frequently found within the Project Area during the months
when foundation installation, which requires the most use of higher-
speed vessels, would occur (i.e., May through November; Roberts et al.,
2023). As described in the proposed rule and included in this final
rule, NMFS is requiring Empire Wind to reduce speeds to 10 kn (5.14 m/
s) or less in circumstances when North Atlantic right whales are known
to be present or more likely to be in the area where vessels are
transiting, which include, but are not limited to, all Slow Zones
(Dynamic Management Area (DMA) or acoustic Slow Zone), when traveling
between ports in New Jersey, New York, Maryland, or Virginia from
November 1 to April 30, and if a North Atlantic right whale is detected
visually or acoustically at any distance or reported within 10
kilometers (km). Vessels are also required to slow and maintain
separation distances for all marine mammals. As described in the
proposed rule, all vessels must have a dedicated, trained crew member
or PSO onboard. Furthermore, vessels towing survey gear travel at very
slow speeds (e.g., roughly 4-5 kn (7.4-9.3 km/hour)) and any vessels
engaged in construction activities would be primarily stationary during
the pile-driving event. Additionally, aside from any requirements of
this rule, Empire Wind is required to comply with all spatial and
temporal approach (500 m) and speed restrictions outlined in existing
regulations (50 CFR 224.105 and 222.32).
While we acknowledge that a year-round 10-kn requirement could
potentially fractionally reduce the already discountable probability of
a vessel strike, this theoretical reduction would not be expected to
manifest in measurable real-world differences in impact. Further,
additional limitations on speed or requiring a PSO on all transiting
vessels have significant practicability impacts on applicants, in that,
given the distance of Empire Wind's Lease Area offshore of New York,
vessel 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, which could extend the number of
days necessary to complete all pile driving of foundations.
Furthermore, Empire Wind 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 (5.14 m/s) or less at all times.
Regarding an ``Adaptive Plan'' to allow the developer to travel
over 10 kn (5.14 m/s) where they would otherwise not be allowed, there
are adaptive management provisions in the rule that allows for
modification to mitigation measures, when warranted. Should Empire Wind
request modifications to the vessel strike avoidance measures, NMFS
would consider the request and act accordingly.
In addition to the vessel strike avoidance measures, NMFS has also
included a requirement that all vessels be equipped with automatic
identification system (AIS) to facilitate compliance checks with the
speed limit requirements. Lastly, we disagree with the commenter that
the final rule and LOA must include a vessel traffic plan beyond the
extensive measures outlined here. At least 180 days prior to the start
of vessel operations commencing, Empire Wind must submit both a Vessel
Strike Avoidance Plan, including plans for conducting PAM in the
transit corridors should Dominion Energy determine they wish to travel
over 10 kn (18.5 km/hr) in the transit corridors, to NMFS for review
and approval.
[[Page 11351]]
NMFS acknowledges the commenter's recommendation for NMFS to work
to reduce the risk of vessel strike to large whales by conducting
targeted research to better understand large whale habitat use in the
New York Bight. Although the initiation of targeted research studies is
beyond the scope of this authorization, NMFS uses the best available
data to assess large whale distributions and risk of vessel strike, and
applies mitigation measures to reduce this risk to effect the least
practicable impact to all marine mammal species and stocks.
Comment 12: Commenters suggested that NMFS prohibit pile driving
during periods of highest risk for North Atlantic right whales, which
they define as times of the highest relative density of animals during
foraging and migration, and times where mom-calf pairs, pregnant
females, surface active groups (that are foraging or socializing), or
aggregations of three or more whales, are not expected to be present.
Citing multiple information sources, commenters further specifically
recommended the seasonal restriction for pile driving be expanded to
November 1 through April 30 to reflect the period of highest detections
of vocal activity, sightings, and abundance estimates of North Atlantic
right whales. Multiple commenters requested for the seasonal
restriction of pile driving to be expanded to November 1 through May 31
to provide additional protection for North Atlantic right whales.
Commenters also recommended prohibiting pile driving during seasons
when protected species are known to be present or migrating in the
Project Area, in addition to any dynamic restrictions due to the
presence of North Atlantic right whale or other endangered species.
Response: NMFS disagrees that extending the seasonal restriction on
pile driving to include May or November is appropriate or warranted.
NMFS has restricted foundation installation pile driving from January
through April, which represent the times of year when North Atlantic
right whales are most likely to be in the Project Area. We recognize
that the density of whales begins to elevate in December (based upon
Roberts et al., 2023); however, it is not until January when density
greatly increases. Empire Wind has indicated that to complete the
Project, pile driving is needed from May through November and may be
required in December. In this final rule, NMFS has included an
additional measure where pile driving in December must be avoided to
the maximum extent practicable but may occur if necessary, provided
Empire Wind receives NMFS' prior approval. We also note that any time
of year when foundation installation is occurring, a sighting or
acoustic detection of a North Atlantic right whale at any distance
triggers a pile driving delay or shutdown. We also reiterate that
Empire Wind is required to implement a minimum visibility zone, as
reflected by the results of JASCO Applied Sciences' (JASCO) underwater
sound propagation modeling. With the application of these enhanced
mitigation and monitoring measures, impacts to the North Atlantic right
whale will be further reduced, if any are encountered when transiting
through the migratory corridor.
As noted and acknowledged by NMFS in both the proposed and final
rules, North Atlantic right whale distribution is changing due to
climate change and other factors, and they are present year-round in
the vicinity of the Project. However, as shown in Roberts et al.
(2023), which NMFS considers the best available scientific information
regarding marine mammal densities in the Atlantic Ocean, it is not
until January that densities begin to significantly increase. Further,
North Atlantic right whales are not likely to be engaged in feeding
behaviors in the Project Area, from May to November or during any other
time period, as the Project Area is primarily a migratory corridor for
North Atlantic right whales. While some opportunistic foraging may
occur, the waters off of New York do not include known foraging habitat
for North Atlantic right whales. As described in the Description of
Marine Mammals in the Geographic Area section, foraging habitat is
located in colder, more northern waters including southern New England,
the Gulf of Maine, and Canada. In addition, Roberts et al., (2023)
density data indicates much lower densities of North Atlantic right
whales in the Project Area during the months of May (0.025 animals/100
km\2\) and November (0.016 animals/100 km\2\) as compared to the months
of January through April (0.088, 0.116 animals/100 km\2\). For these
reasons, and given the inclusion of December in the seasonal impact
pile driving restriction without NMFS's prior approval, NMFS finds that
further expansion of the seasonal impact pile driving restrictions
(beyond December through April) would be impracticable and is
unwarranted.
The comment was not specific and may be suggesting prohibiting pile
driving when any protected species are present; however, such a
restriction would not be practicable to implement as there is no time
of year when some species of marine mammals are not present.
Comment 13: A commenter suggested that when HRG surveys are allowed
to resume after a shutdown event, the surveys should be required to use
a ramp-up procedure to encourage any nearby marine life to leave the
area.
Response: NMFS agrees with this recommendation and included in the
proposed rule (88 FR 22696, April 13, 2023) and this final rule a
stipulation that when technically feasible, survey equipment must be
ramped up at the start or restart of survey activities. Ramp-up must
begin with the power of the smallest acoustic equipment at its lowest
practical power output appropriate for the survey. When technically
feasible the power must then be gradually turned up and other acoustic
sources added in a way such that the source level would increase
gradually. NMFS notes that ramp-up is not required for short periods
where acoustic sources were shut down (i.e., less than 30 minutes) if
PSOs have maintained constant visual observation and no detections of
marine mammals occurred within the applicable shutdown zones.
Comment 14: A commenter asserted that the LOA must include
requirements for all vessels associated with the Project, including
vessels owned by the developer, contractors, employees, and others
regardless of ownership, operator, and contract. They stated that
exceptions and exemptions will create enforcement uncertainty and
incentives to evade regulations through reclassification and
redesignation. They recommended that NMFS simplify this by requiring
all vessels to abide by the same requirements, regardless of size,
ownership, function, contract or other specifics.
Response: NMFS agrees with the commenter and the proposed rule and
final rule have general conditions to hold Empire Wind and its
designees (including vessel operators and other personnel) accountable
while performing operations under the authority of this final rule. The
final rule indicates that the conditions contained therein apply to
Empire Wind and its designees and requires that a copy of the LOA must
be in the possession of Empire Wind, the vessel operators, the lead
PSO, and any other relevant designees of Empire Wind. The final rule
also states that Empire Wind must ensure that the vessel operator and
other relevant vessel personnel, including the PSO team, are briefed on
all responsibilities, communication procedures, marine mammal
monitoring protocols, operational procedures, and
[[Page 11352]]
requirements prior to the start of project activities, and when
relevant new personnel join the construction and survey operations.
Comment 15: The Commission noted that NMFS' proposed minimum
visibility zone (1.2 km) is insufficient given that the shutdown zone
for mysticetes and sperm whales during impact installation of monopiles
(1.5 km) is greater than this distance. The Commission further noted
that this is not consistent with other offshore wind rules.
Response: NMFS appreciates the suggestion by the Commission and
agrees with the proposed expansion of the minimum visibility zone. In
response to the Commission's comment and ESA consultation discussion,
the minimum visibility zone for impact pile driving has been increased
from 1.2 km to 1.5 km for mysticetes and sperm whales. This updated
measure is included in the final rule.
Comment 16: Commenters recommended that NMFS should restrict pile
driving at night and during periods of low visibility to protect all
large whale species. This would include no pile driving being allowed
to begin after 1.5 hours before civil sunset or during times where the
visual clearance zone and shutdown zone (called the ``exclusion zone''
in the appendix) cannot be visually monitored, as determined by the
Lead PSO.
A commenter expressed that 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, Empire Wind should be required to notify NMFS with these
reasons and an explanation for exemption. Additionally, a commenter
stated 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: NMFS recognizes the need to protect marine mammals that
may be exposed to pile-driving noise, as well as the challenges of
detecting marine mammals in low-light and nighttime conditions.
However, we note that while it may be more difficult to detect marine
mammals at night, there are benefits to completing the pile driving in
a shorter total amount of time, and exposing marine mammals to fewer
days of pile-driving noise. Given this, NMFS disagrees that no
activities should occur during reduced visibility, as long as the use
of alternative technologies allow sufficient monitoring of the
clearance and shutdown zones, including the minimum visibility zone.
However, in this case, Empire Wind has not requested, nor has NMFS
included a provision for pile driving to begin outside the civil
sunset/civil sunrise temporal restrictions; therefore, Empire Wind will
not be able to initiate pile driving at night. In the proposed rule, we
indicated that Empire Wind 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. This requirement has been
carried over to this final rule.
Regarding the reporting requirement specified by the commenter, we
are already requiring weekly and monthly reports during foundation
installation, which would contain information that would inform on how
long and when pile driving occurred as Empire Wind 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 17: A commenter stated that NMFS should require acoustic
and visual monitoring to begin at least 60 minutes prior to the
commencement or resumption of pile driving and should be conducted
throughout the duration of the pile-driving activity. The commenter
further suggested that visual observation of the clearance zone should
continue until 30 minutes after completion of pile driving, and that
the LOA should prohibit initiating pile driving within 1.5 hours of
civil sunset or in times of low visibility when the visual clearance
zone cannot be monitored.
Response: NMFS agrees with the commenter and has included in the
final rule the requirement for that visual monitoring to begin at least
60 minutes prior to commencement or resumption of impact pile driving
of foundation piles. Moreover, PAM must be conducted for at least 24
hours immediately prior to foundation installation impact pile driving
activities. The PAM operator must review all detections from the
previous 24-hour period immediately prior to pile driving activities.
Foundation pile driving may only begin once the clearance zones have
been clear for 30 minutes immediately prior to commencing the activity.
Visual monitoring must begin at least 30 minutes prior to commencement
or resumption of vibratory pile driving associated with cable landfall
construction and marina activities, which is located in coastal waters
and is relatively quiet compared to foundation installation. PAM is not
required for cable landfall and marina pile driving. Visual monitoring
and PAM (where required) will continue for 30 minutes post completion
of both impact and vibratory pile driving.
Monitoring, Reporting, and Adaptive Management
Comment 18: The Commission noted that the proposed rule did not
specify the information that must be included in any interim or final
SFV report, and that this is inconsistent with previous proposed rules.
Response: In response to the Commission's comment and ESA
consultation discussion, NMFS has included more specific requirements
for reporting SFV measurements. This includes comprehensive
requirements for both interim and final SFV reports.
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, must be included in the final SFV report as well.
Details on the information NMFS is requiring in SFV reports can be
found in Sec. 217.285(f)(9) and (11).
Comment 19: Multiple commenters expressed concern for the
accountability, fairness, and transparency regarding how cumulative
impacts to the marine ecosystem would be measured. A commenter further
suggested NMFS include a requirement for all phases of construction 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 the Fisheries Service or the
Coast Guard as soon as possible and not later than the end of the PSO
shift. To foster stakeholder relationships and allow public engagement
and oversight of the permitting, the commenter suggested that the LOA
should require all reports and data to be accessible on a publicly
available website. Another commenter recommended that NMFS improve the
transparency of the ITA process by moving away from a ``segmented
phase-by-phase and project-by-project approach'' to authorizations.
Response: NMFS agrees with the need for reporting and indeed, the
MMPA
[[Page 11353]]
calls for LOAs to incorporate reporting requirements. As included in
the proposed rule, the final rule includes requirements for reporting
that supports the commenter's recommendations. Empire Wind is required
to submit a monitoring report to NMFS within 90 days after completion
of project activities that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring. PSO
datasheets or raw sightings data must also be provided with the draft
and final monitoring report.
Further, the draft rule and final rule stipulate that if a North
Atlantic right whale is observed at any time by any vessels, during
construction work or during vessel transit, Empire Wind must
immediately report sighting information to the NMFS North Atlantic
Right Whale Sighting Advisory System within 2 hours of occurrence, when
practicable, or no later than 24 hours after occurrence. Empire Wind
may also report the sighting to the U.S. Coast Guard. Additionally,
Empire Wind must report any discoveries of injured or dead marine
mammals, including entangled animals, to the Office of Protected
Resources, NMFS, and to the New England/Mid-Atlantic Regional Stranding
Coordinator as soon as feasible. All final reports submitted to NMFS
will be included on the website for availability to the public.
In regards to improving transparency by moving away from a
``segmented phase-by-phase and project-by-project approach, 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
emphasizes that an ITA 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 Empire Wind's request--as required by the
statute--to incidentally take marine mammals while engaged in
construction activities and marine site characterization surveys. NMFS
determines whether the necessary findings can be made based on Empire
Wind's application. NMFS does not have the authority to force project
proponents to batch or aggregate multiple activities into a single MMPA
take authorization request. Similarly, while the BOEM's Environmental
Impact Statement (EIS), which NMFS adopted, evaluates the cumulative
effects of the activity (i.e., the incremental impact of the action
when added to other past, present, and reasonably foreseeable future
actions) on the human environment in order to support multiple
decisions, the findings necessary for issuance of an MMPA authorization
are based on an assessment of the impacts on marine mammals and their
habitat, and do not require measurement of impacts on the ``marine
ecosystem.'' In addition, the ESA consultation assesses impacts to
listed species from Empire Wind's proposed action, added to the
baseline of offshore wind actions that had previously been approved.
Comment 20: Commenters expressed interest in understanding the
outcome if the number of actual takes exceed the number authorized
during construction of an offshore wind project (i.e., if the Project
would be stopped mid-construction or operation), and how offshore wind
developers will be held accountable for impacts to protected species
instead of impacts being mistakenly assigned to fishermen. The
commenter further maintained that the offshore wind industry must be
accountable for incidental takes from construction and operations
separately from the take authorizations for managed commercial fish
stocks.
Response: NMFS carefully reviews models and take estimate
methodology to authorize a number of takes, by species and manner of
take, that 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.
Empire Wind would be required to submit frequent reports which would
identify the number of takes applied to the Project.
In the unexpected event that Empire Wind 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 (i.e., 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 21: A commenter suggested that NMFS require Empire Wind to
utilize direct-drive turbines instead of gearboxes.
Response: NMFS disagrees with the commenter's suggestion to require
Empire Wind to utilize direct-drive turbines instead of gearboxes.
Empire Wind included the use of turbines that may contain gearboxes in
the description of their specified activity, and NMFS has evaluated the
activity as charged and made the determinations necessary to support
the issuance of incidental take regulations. Although direct-drive
technology is newer, gearboxes are effective and frequently used in the
offshore wind industry, and it is outside of the scope of NMFS'
authority to require the use of direct-drive turbines over gearboxes.
Comment 22: A commenter asserted that the requirement of having
PSOs onboard project vessels is insufficient to prevent harm to North
Atlantic right whales as right whales can be difficult to spot from a
boat and poor weather or low light conditions make detecting right
whales challenging.
Response: NMFS recognizes that visual detection based mitigation
approaches are not 100 percent effective. Animals are missed because
they are underwater (i.e., availability bias) or because they are
available to be seen but are missed by observers (i.e., perception and
detection biases) (e.g., Marsh and Sinclair, 1989). However, visual
observation remains one of the
[[Page 11354]]
best available methods for marine mammal detection. For North Atlantic
right whales in particular, the required Clearance Zones are any
distance (impact pile driving), 1,600 m (vibratory pile driving/marine
activities), and 500 m (HRG surveys) and, therefore, it is unlikely
that an individual would approach the harassment zone undetected.
In addition, as described in the proposed rule, NMFS is requiring
that Empire Wind employ both visual and PAM methods for monitoring, as
both approaches aid and complement each other (Van Parijs et al.,
2021). The use of PAM will augment visual detections for foundation
pile driving, especially for activities with the largest zones. 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, table 39 clearly
specifies this 10 km PAM monitoring zone. For further detail on the
requirements for the use of PAM, see comments 4 and 17.
Comment 23: A commenter recommended that the LOA should require all
vessels supporting site characterization to be equipped with and using
Class A AIS devices at all times while on the water. A commenter
suggested this requirement should apply to all vessels, regardless of
size, associated with the survey.
Response: NMFS acknowledges that vessel strikes pose a risk to
marine wildlife, including North Atlantic right whales. For the final
rule, NMFS has included a requirement that all vessels be equipped with
AIS to facilitate compliance checks with the speed limit requirements.
Comment 24: Several commenters recommended that NMFS increase the
frequency of information review for adaptive management to at least
once a quarter and to have a mechanism in place to undertake review and
adaptive management on an ad hoc basis if a serious issue is identified
(e.g., if unauthorized levels of Level A take of marine mammals are
reported or if serious injury or mortality of an animal occurs).
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 provision 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 Empire Wind about feasibility and
practicability.
We do not agree with the suggestion by the commenter 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. NMFS has
included two relevant provisions in its final ITA, one prohibiting take
by mortality of serious injury (``Take by mortality or serious injury
of any marine mammal species is not authorized'') and another
prohibiting the taking of marine mammals in any manner other than what
is specified in the LOA (``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 final regulations text (see Sec. 217.293). If the
Project takes any marine mammal in a manner that has not been specified
in the final rule and LOA (i.e., unauthorized take by Level A
harassment), or project vessels strike a marine mammal, Empire Wind
would be in violation of its LOA and NMFS would undertake appropriate
actions, as determined to be necessary.
Effects Assessment
Comment 25: Multiple commenters stated that NMFS must make an
assessment of which activities, technologies, and strategies are truly
necessary to achieve site characterization to inform development of the
offshore wind projects and which strategies are not critical. In
addition, commenters asserted that NMFS should prescribe the
appropriate survey techniques and mitigate any potential stressors to
effect the least practicable impact on all affected species and stocks.
Commenters further encouraged NMFS to require that the LOA holder
minimize the impacts of underwater noise to the fullest extent
feasible, including through the use of best available technology and
methods to minimize sound levels from geophysical surveys such as
through the use of technically and commercially feasible and effective
noise reduction and attenuation measures. One commenter emphasized that
there should be a focus on reducing impacts to species with extreme
sensitivity to noise (e.g., harbor porpoises) and species experiencing
UMEs (e.g., harbor seals).
Response: The MMPA requires that an LOA include measures that will
effect the least practicable adverse impact on the affected species and
stocks, and, in practice, NMFS agrees that the LOA should include
conditions for the activities that will first avoid adverse effects on
marine mammal species in and around the Project Area, where
practicable, and minimize the effects that cannot be avoided. NMFS has
determined that the ITR and LOA meet this requirement to effect the
least practicable adverse impact. As part of the analysis for all ITRs,
NMFS evaluates the effects expected as a result of the specified
activity, makes the necessary findings, and prescribes mitigation
requirements sufficient to achieve the least practicable adverse impact
on the affected species and stocks of marine mammals.
Comment 26: A commenter asserted that NMFS must fully consider the
discrete effects of each activity and the cumulative effects of the
suite of approved, proposed, and potential activities on marine mammals
(particularly North Atlantic right whales) and ensure that the
cumulative effects are not excessive before issuing an incidental take
authorization (ITA). Other commenters encouraged NMFS to consider the
total takes of all species alongside takes that NMFS has authorized for
other wind-related activities, and noted that the cumulative impacts of
offshore wind activities on marine mammals are not yet known.
Commenters objected to NMFS's conclusion that the application's take
limit of 29 North Atlantic right whales for construction activities in
the coastal waters between off New York will have a ``negligible
impact'' on the species and fulfills the requirement for ``small
numbers'' of takes, especially in light of the North Atlantic right
whale's critically endangered status, the ongoing UME that this species
is experiencing and, consequently, the asserted existential threat
posed to the species by obstacles to even one individual's survival--
and they emphasized this comment in combination with the need to
consider the take from multiple projects.
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 that (specified)
activity'' within a specified geographic region during the 5-year
period (or less) will have a negligible impact on such species or stock
and, where applicable, will not have an
[[Page 11355]]
unmitigable adverse impact on the availability of such species or stock
for subsistence uses (16 U.S.C. 1371(a)(5)(A)). Negligible impact is
defined 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 effect on annual rates of
recruitment or survival'' (50 CFR 216.103). Neither the MMPA nor its
implementing regulations require consideration of unrelated activities
and their impacts on marine mammal populations in the negligible impact
determination. Consistent with the preamble of NMFS' implementing
regulations (54 FR 40338, September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are factored into the
baseline, which is used in the negligible impact analysis. Here, 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 preamble of NMFS' implementing regulations also addresses
cumulative effects from future, unrelated activities. Such effects are
not considered in making the negligible impact determination under MMPA
section 101(a)(5). NMFS considers: (1) cumulative effects that are
reasonably foreseeable when preparing a National Environmental Policy
Act (NEPA) analysis; and (2) reasonably foreseeable cumulative effects
under section 7 of the ESA for ESA-listed species, as appropriate.
Accordingly, NMFS has adopted and reviewed BOEM's EIS and as part of
its inter-agency coordination. This EIS addresses cumulative impacts
related to the Project and substantially similar activities in similar
locations. Cumulative impacts regarding the promulgation of the
regulations and issuance of an LOA for construction activities planned
by Empire Wind, have been adequately addressed in the adopted EIS that
supports NMFS' determination that this action has been appropriately
analyzed under NEPA. Separately, the cumulative effects of the Project
on ESA-listed species, including the North Atlantic right whale, were
analyzed under section 7 of the ESA when NMFS engaged in formal inter-
agency consultation with the NOAA GARFO. The Biological Opinion for the
Project determined that NMFS' promulgation of the rulemaking and
issuance of an LOA for construction activities associated with leasing,
individually and cumulatively, are likely to adversely affect, but not
jeopardize, listed marine mammals.
NMFS disagrees that the authorized take of 29 North Atlantic right
whales by Level B harassment incidental to the Project will have a non-
negligible impact on the species and notes that the commenter did not
provide additional scientific information supporting this claim for
NMFS to consider. Take by injury, serious injury, or mortality is not
authorized. NMFS emphasizes that the authorized incidental take 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 whales will not result
in impacts to the population through effects on annual rates or
recruitment or survival. The Project Area occurs offshore of New York,
which does not include habitat where North Atlantic right whales are
known to concentrate in foraging or reproductive behaviors. The Project
Area is a known migratory corridor. Hence, it is likely that most of
the authorized takes represent an exposure to a different individual,
which means that the behavioral impacts to North Atlantic right whales
are limited to behavioral disturbance occurring on 1 or 2 days within a
year--an amount that would not be expected to impact reproduction or
survival. Across all years, while it is possible an animal migrating
through could have been exposed during a previous year, the low amount
of take authorized during the 5-year period (n=29 takes of North
Atlantic right whales by Level B harassment) of the rule makes this
scenario unlikely. Any disturbance to North Atlantic right whales due
to Empire Wind's activities is expected to result in temporary
avoidance of the immediate area of construction but not abandonment of
its migratory path. Slight displacement (but not abandonment) of a
migratory pathway is unlikely to result in energetic consequences that
could affect reproduction or survival of any individuals. Other impacts
such as masking, Temporary Threshold Shift (TTS), and temporary
communication and foraging disruption may occur (again noting that
North Atlantic right whales concentrate foraging far north of the
Project Area (e.g., southern New England, Gulf of Maine, and Canada).
However, these impacts would also be temporary and unlikely to lead to
survival or reproduction impacts of any individual, especially when the
extensive suite of mitigation, including numerous measures targeted
specifically towards minimizing impacts to North Atlantic right whales,
are considered.
NMFS also disagrees with the commenter's arguments on the topic of
small numbers. In the Empire Wind proposed rule, NMFS describes that
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. The small number of takes being authorized is
incidental to the specified activities. NMFS has provided a reasoned
approach to small numbers, as described in the ``Taking Marine Mammals
Incidental to Geophysical Surveys Related to Oil and Gas Activities in
the Gulf of Mexico'' final rule (86 FR 5322 at 5438, April 19, 2021).
Utilizing that approach, NMFS has made the necessary small numbers
finding for all affected species and stocks in this case (see Small
Numbers section for more detail).
Comment 27: A commenter stated that some of the specified
activities will increase the number of vessels in the ocean in the
Project Area, which will lead to an increased threat of harm by vessel
strikes to marine mammals, specifically North Atlantic right whales.
Response: NMFS acknowledges that vessel strikes can result in
injury or mortality of marine mammals. We analyzed the potential for
vessel strike resulting from Empire Wind's activities (including the
anticipated number of vessels in the area) and determined that based on
the nature of the activity and the required mitigation measures
specific to vessel strike avoidance included in this rulemaking, the
potential for vessel strike is so low as to be discountable. The
required mitigation measures, all of which were included in the
proposed rulemaking and are now required in the final regulations,
include: a requirement that all vessel operators comply with 10 kn
(18.5 km/hour) or less speed restrictions in any Seasonal Management
Area (SMA), DMA, or Slow Zone while underway, and check daily for
information regarding the establishment of mandatory or voluntary
vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and information
regarding North Atlantic right whale sighting locations; a requirement
that all vessels, regardless of size, operating from November 1 through
April 30 operate at speeds of 10 kn (18.5 km/hour) or less; a
requirement that all vessel operators reduce vessel speed to 10 kn
(18.5 km/hour) or less when any large whale, any mother/calf pairs,
pods, or large assemblages of non-
[[Page 11356]]
delphinid cetaceans are observed near the vessel; a requirement that
all project vessels maintain a separation distance of 500 m or greater
from North Atlantic right whales; a requirement that, if underway,
vessels must steer a course away from any sighted North Atlantic right
whale at 10 kn (18.5 km/hr) or less until the 500-m minimum separation
distance has been established; a requirement that, if a North Atlantic
right whale is sighted in a vessel's path, or within 500 m of an
underway vessel, the underway vessel must reduce speed and shift the
engine to neutral; and, a requirement that all vessels underway must
maintain a minimum separation distance of 100 m or 50 m from all other
marine mammals (species-dependent and excluding North Atlantic right
whales), with an understanding that at times this may not be possible
(e.g., for animals that approach the vessel). Based on these, we have
determined that the vessel strike avoidance measures in the rulemaking
are sufficient to ensure the least practicable adverse impact on
species or stocks and their habitat.
Comment 28: A commenter expressed concern about the use of multiple
vessels concurrently performing the HRG survey work may increase take
potential, and that only one ship at a time should be permitted to
actively emit sound for survey data collection within 200 nautical
miles (nmi) of other ships working in other lease areas.
Response: The commenter does not provide information supporting
their statement that multiple HRG survey vessels would increase the
potential for take. The amount of take requested by Empire Wind and
authorized by NMFS considers the total amount of HRG effort that would
occur. Further, the commenter does not provide information supporting
their comment that an Empire Wind HRG vessel should operate more than
200 miles from other HRG vessels for other projects. NMFS is not
requiring this recommendation because it is not practicable.
Comment 29: Commenters stated that NMFS must utilize the best
available science in their analysis. A commenter stated that NMFS must
use the most recent and best available science in evaluating impacts to
North Atlantic right whales, including updated population estimates,
recent habitat usage patterns for the Project Area, and a revised
discussion of the acute and cumulative stress on whales in the region.
A commenter identified that the North Atlantic right whale population
abundance is less than that cited in the proposed rule and that the
current mitigation plan would not give assurance that endangered and
critically endangered species would be protected. In addition, a
commenter noted concerns regarding the number of species that could be
impacted by the activities, as well as a lack of baseline data being
available for species in the area. The commenter stated that NMFS did
not adequately address the potential for cumulative impacts to
bottlenose dolphins from Level B harassment over several years of
project activities and that there is not sufficient baseline
information about how harbor seals use the water of the Lease Area to
conclude that the activities covered by rule will have a negligible
impact on harbor seals.
Response: The MMPA and its implementing regulations require that
ITRs be established based on the best available information, which does
not always mean the most recent information. NMFS considered all
relevant information regarding North Atlantic right whale, including
the information cited by the commenters. In the context of stock
abundance, NMFS generally considers the information in the most recent
U.S. Atlantic and Gulf of Mexico Stock Assessment Report (SAR; Hayes et
al., 2023) to be the best available information for a particular marine
mammal stock because of the MMPA's rigorous stock assessment report
(SAR) procedural requirements, which includes peer review by a
statutorily established Scientific Review Group. Since issuance of the
proposed rule, NMFS has finalized the 2022 SAR indicating the North
Atlantic right whale population abundance is estimated at 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 on the
analysis from Pace et al. (2017) and subsequent refinements found in
Pace (2021), is included by reference in the draft and final 2022 SARs
(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 Empire Wind's construction activities.
NMFS relied upon the best scientific evidence available, including,
but not limited to, the draft 2022 SAR, scientific literature, and Duke
University's density model (Roberts et al., 2023), in analyzing the
impacts of Empire Wind's specified activities on marine mammals. The
MMPA requires us to evaluate the effects of the specified activities in
consideration of the best scientific evidence available and, if the
necessary findings are made, to issue the requested take authorization.
The MMPA does not allow us to delay decision making to wait for
additional information may become available in the future. While
commenters suggest generally that NMFS consider the best scientific
evidence available, none of the commenters provided additional
scientific information for NMFS to consider. Furthermore, NMFS notes
that it has previously addressed discussions on cumulative impact
analyses in previous comments and references the commenter back to
these specific responses in this final rule.
Regarding the commenter's concern about the lack of baseline
information for harbor seals, NMFS applied data from the Atlantic
Marine Assessment Program for Protected Species (AMAPPS; https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) annual reports available
from 2010 to 2020 (https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species) that
represents that best available data for harbor seal distribution across
the Atlantic Ocean. NMFS has considered this AMAPPS data in our
analysis as well as datasets from the Oceanographic Biodiversity
Information System (OBIS, 2023; Smith, 2014) to assess impacts to
harbor seals.
Regarding cumulative impacts to bottlenose dolphins across years of
project activities, the estimated take by Level B harassment of each
stock is not likely representative of the number of individuals that
would be taken each year. Repeated takes of the same individuals are
likely due to the ranging patterns of each stock. The Project Area also
covers a small portion of each stock's range and comparable habitat
would be available to dolphins across years. For further discussion of
cumulative effects of marine mammals, please see our response in
comment 26.
[[Page 11357]]
In addition, NMFS has further considered take of the bottlenose dolphin
stocks affected by this action, and has adjusted its attribution of
such take regarding the Northern Migratory Coastal stock of bottlenose
dolphins in the negligible impact and small numbers analyses included
in this rule.
Comment 30: Commenters stated that there is a lack of basic
research about the impacts of offshore wind energy development on large
whales, especially in terms of in situ data and interactions between
whales and turbines. They asserted that scientific baselines are
necessary for assessing potential impacts to whales and that NMFS has
failed to include critical scientific assessments and consultations.
Response: The MMPA requires NMFS to evaluate the effects of the
specified activities in consideration of the best scientific evidence
available and to issue the requested ITR 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, after notice and public comment, and unless an emergency exists, it
determines the authorized incidental take may be having more than a
negligible impact on a 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 United States 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 OCS. 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, and notes that the commenter did not
provide additional scientific information for NMFS to consider.
Comment 31: Commenters expressed concern regarding ocean noise and
the interference it has on communication between whales. Commenters
were specifically concerned with the low-frequency noise from large
vessels involved in the construction activities overlapping North
Atlantic right whale communication.
Response: As discussed in the Negligible Impact Analysis and
Determination section (specifically the Auditory Masking or
Communication Impairment section) of both the proposed and final rule,
the level of masking that could occur from Empire Wind's activities
will have a negligible impact on marine mammals, including North
Atlantic right whales. 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 sound source are in close enough proximity for the
effect to occur. In addition, this time period would need to coincide
with a time that the animal was utilizing sounds at the masked
frequency). As our analysis (both quantitative and qualitative
components) indicates, because of the relative movement of whales and
vessels, as well as the stationary nature of a majority of the
activities, we do not expect these exposures with the potential for
masking to be of a long duration within a given day. Further, because
of the relatively low density of North Atlantic right whales during
months when most of Empire Wind's activities would be occurring (i.e.,
May through November in most cases), and the relatively large area over
which the vessels will travel and where the activities will occur, we
do not expect any individual North Atlantic right whales to be exposed
to potentially masking levels from these surveys for more than a few
days in a year. Furthermore, as many of the activities are occurring in
clusters and specific areas rather than sporadically dispersed in the
Project Area (i.e., foundation installation all occurs in the same
general area, nearshore cable installation activities occur in
relatively similar and nearby areas), animals are likely to temporarily
avoid these locations during periods where activities are occurring but
are expected to return once activities have ceased.
As noted above, any masking effects of Empire Wind's activities are
expected to be limited in duration, if present. For HRG surveys, given
the likelihood of significantly reduced received levels beyond short
distances from the transiting survey vessel, the short duration of
potential exposure, the lower likelihood of extensive additional
contributors to background noise offshore and within these short
exposure periods, and the fact that the frequency of HRG signals are
primarily above those used in social communication or for detection of
other important clues, we believe that the incremental addition of the
survey vessel is unlikely to result in more than minor and short-term
masking effects. For pile driving, and especially foundation
installation, masking effects are more likely given the larger zones
and longer durations, and animals that approach the source could
experience temporary masking of some lower frequency cues. However, any
such effects would be localized to the areas around these stationary
activities, which means that whales transiting through the area could
adjust their transit away from the construction location and return
once the activity has completed. As described in the ``Potential
Effects of the Activities on Marine Mammals'' section of the proposed
rule, NMFS acknowledges the noise contributions of vessels to the
soundscape and the potential for larger vessels such as commercial
shipping vessels, especially, to mask mysticete communication. For the
activity as a whole, including the operation of supporting vessels for
Empire Wind's activities, any masking that might potentially occur
would likely be incurred by the same animals predicted to be exposed
above the behavioral harassment threshold, and thereby accounted for in
the analysis. NMFS notes that the commenter did not provide additional
scientific information for NMFS to consider to support its concern.
[[Page 11358]]
Other
Comment 32: A commenter noted that this proposed rule is for two
separate offshore wind energy projects: Empire Wind 1 and 2 and the
associated export cable areas. The commenter further recommends that
ITR and LOA requests for each energy project be submitted and reviewed
separately. Another commenter 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, modify mitigation and monitoring measures as
necessary and in a timely manner, and to account for the quickly
evolving situation for the North Atlantic right whale.
Response: NMFS disagrees with these comments. The MMPA allows for
the authorization of incidental take within a specified geographical
region, provided all the necessary findings are made. The applicant
identifies the activities for which it is requesting authorization, and
NMFS analyzes the request, including consideration of any germane
factors that affect the analysis and may vary from one part of the
Project Area to another, such as physical, biological, or chemical
features. For example, the difference in the density of marine mammals
between Empire Wind 1 and 2 is fully factored into the analysis.
Further, it is generally considered more beneficial to evaluate the
impacts of multiple activities together, where possible, as it allows
for a more comprehensive assessment of the impacts and a more holistic
approach to the mitigation and monitoring of those impacts. Here,
Empire Wind would be responsible for conducting all construction and
site characterization activities for Empire Wind 1 and 2. Some of these
activities for each project would take place within the same year. For
example, site characterization surveys are planned to occur during each
of the 5 years across the Project Areas. In addition, impact pile
driving of monopile foundations is expected to occur in Empire Wind 1
and Empire Wind 2 across years 2 and 3 of the Project. Further, 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 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. As requested, and supported by
the findings herein, NMFS will issue a single 5-year LOA to Empire Wind
for activities for both Empire Wind 1 and 2.
Comment 33: Multiple commenters urged NMFS to deny the proposed
project and/or postpone any offshore wind activities until NMFS
determines effects of all offshore wind (OSW) activities on marine
mammals in the region and determines that the recent whale deaths are
not related to OSW activities, especially in light of recent UMEs.
Similarly, some commenters provided general concerns regarding recent
whale stranding events on the Atlantic Coast, including speculation
that the strandings may be related to wind energy development-related
activities. However, the commenters did not provide any specific
information supporting these concerns.
Response: NMFS authorizes take of marine mammals incidental to
construction activities and marine site characterization surveys,
provided the necessary findings are made, but does not authorize the
activities themselves. Therefore, while NMFS has the authority to
modify, suspend, or revoke an LOA if the LOA holder fails to abide by
the conditions prescribed therein (e.g., failure to comply with
monitoring or reporting requirements), or if NMFS determines that (1)
the authorized taking is having or is likely to have more than a
negligible impact on the species or stocks of affected marine mammals,
or (2) the prescribed measures are likely not or are not effecting the
least practicable adverse impact on the affected species or stocks and
their habitat, it is not within NMFS' jurisdiction to impose a
moratorium on offshore wind development or to require activities to
cease.
NMFS reiterates that there is no evidence that noise resulting from
offshore wind development-related construction activities or site
characterization surveys could potentially cause marine mammal
stranding, and there is no evidence linking recent large whale
mortalities and currently ongoing site characterization surveys. The
commenters offer no such evidence. NMFS will continue to gather data to
help us determine the cause of death for these stranded whales. We note
the Marine Mammal Commission's recent statement: ``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 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 roughly 90 whales examined, about 40
percent had evidence of human interaction (i.e., vessel 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 (e.g., parasite-caused organ damage and starvation).
As discussed herein, impact and vibratory pile driving may result
in minor Permanent Threshold Shift (PTS) or TTS, as well as behavioral
disturbance. HRG sources may behaviorally disturb marine mammals (e.g.,
avoidance of the immediate area). These HRG surveys are very different
from seismic airguns used in oil and gas surveys or tactical military
sonar. They produce much smaller impact zones because, in general, they
have lower source levels and produce output at higher frequencies. The
area within which HRG sources might behaviorally disturb a marine
mammal is orders of magnitude smaller than the impact areas for seismic
airguns or military sonar. Any marine mammal exposure would be at
significantly lower levels and shorter duration, which is associated
with less severe impacts to marine mammals.
Comment 34: A commenter expressed concern regarding the potential
for increased uncertainty in estimates of marine mammal abundance
resulting from wind turbine presence during low aerial surveys and
potential effects of NMFS' ability to continue using current low-flying
survey methods to fulfill its mission of precisely and accurately
assessing protected species.
Response: NMFS and BOEM have collaborated to establish the
``Federal Survey Mitigation Strategy for the Northeast U.S. Region''
(Hare et al.,
[[Page 11359]]
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 35: Referencing the low Potential Biological Removal (PBR)
for North Atlantic right whales, a commenter stated that all industrial
full-scale construction for offshore wind energy should be paused until
the Federal agencies determine how best to eliminate or avoid all
impacts, Level A harassment, and Level B harassment on the North
Atlantic right whale.
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 5-year period (or less) will
have a negligible impact on such species or stock and, where
applicable, 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 ITA 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 information available and has
included mitigation measures to effect the least practicable adverse
impacts on North Atlantic right whales. Many of these mitigation
measures are found in the Draft Strategy (Strategy) for construction
activities. While NMFS continues to work together with BOEM towards the
goals identified in the Strategy, finalizing the Strategy (or similar
efforts) or completing specific goals identified in the strategy are
not a prerequisite for the issuance of an ITA.
While NMFS agrees that the North Atlantic right whale population
abundance is alarmingly low (with entanglement in fishing gear and
vessel strikes being the leading causes of North Atlantic right whale
mortality), NMFS disagrees that the type of harassment authorized in
this rulemaking will have a non-negligible impact (i.e., adversely
affect the species through effects on annual rates of recruitment or
survival). NMFS emphasizes that no mortality, serious injury, or Level
A harassment is anticipated or authorized for North Atlantic right
whales from Empire Wind's specified activities. Further, the impacts of
Level B harassment (i.e., behavioral disturbance) are expected to have
a negligible impact on the North Atlantic right whale population. The
magnitude of behavioral harassment authorized is very low and the
severity of any behavioral responses is expected to be primarily
limited to temporary displacement and avoidance of the area when some
activities that have the potential to result in harassment are
occurring (see Negligible Impact Analysis and Determination section for
our full analysis). No impacts to the reproductive success or survival
of any individual North Atlantic right whales are expected to result
from these disturbances and, as such, no impacts to the population are
expected to result. In its comment, the commenter conflates PBR level
and Level B harassment and suggests that Level B harassment can have
population level impacts. The PBR level is defined as the maximum
number of animals, not including natural mortalities, that may be
removed from a stock while allowing that stock to reach or maintain its
optimum sustainable population (16 U.S.C. 1362(20)). Thus, PBR is only
germane in the discussion of ``removals'' of individual North Atlantic
right whales from the population and, therefore, PBR is not applicable
in this discussion since no impact to reproduction or survival of any
individuals is anticipated or authorized. Further, the commenter did
not suggest mitigation measures to eliminate and avoid all impacts to
North Atlantic right whales for NMFS to evaluate or consider.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
(88 FR 22696, April 13, 2023), NMFS has made changes, where
appropriate, that are reflected in the regulatory text and preamble
text of this final rule. These changes are briefly identified below,
with more information included in the indicated sections of this final
rule:
Changes in Information Provided in the Preamble
As described in the response to public comments section, NMFS
received 328 comments regarding this rulemaking, specifically including
numerous comments that requested greater protections for marine mammals
through the mitigation and monitoring measures or clarification on
implementation of those measures. NMFS continues to receive information
generated by current offshore wind development, which helps further
inform our incorporation of these public comments into the rule. We
have made certain changes described below in response to public comment
or as needed for clarity. In addition, 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 including NMFS'
final 2022 SARs (Hayes et al., 2023), which has been used to update the
final rule as appropriate.
The following changes were made to the Purpose and Need for
Regulatory Action section of the preamble to this final rule:
We have added regulatory definitions under Legal Authority for the
Final Action for the sake of clarity.
The following changes are reflected in the Description of Marine
Mammals in the Geographic Area section of the preamble to this final
rule:
Given the release of NMFS' final 2022 SARs (Hayes et al., 2023), we
have updated the total mortality/serious injury (M/SI) amount for North
Atlantic right whales 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. In addition, NMFS recently 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. This information has also
been included in the stock abundance column in table 2, ``Marine mammal
species that may occur in the Project Area and be taken, by
harassment.''
Given the availability of new information, we have made updates to
the UME summaries for multiple species.
The following changes are reflected in the Estimated Take section
of the preamble to this final rule:
In consideration of comments received from the Commission, we have
increased the amount of take authorized for fin whales during impact
pile driving, by Level A harassment, from one to four (based on two
group sizes from the AMAPPS dataset) in year 2 and from one to two
(based on one group size from AMAPPS) in year 3. Prior to adding this
requirement, NMFS considered this proposed increase in take and
considered this measure practicable. This decision was additionally
supported by an increased number of sightings of fin whales in the
Project Area during June, July, and August 2023 (Empire Wind, 2023).
We have also updated our methodology for estimating take authorized
for harbor seals, grays seals, long-finned pilot whales, and short-
[[Page 11360]]
finned pilot whales, by Level B harassment, and subsequently, updated
take by Level B harassment authorized for seal species. Pilot whale and
seal guild densities were scaled by local abundances based upon
occurrence data (OBIS, 2023; Smith, 2014) to identify the proportion of
the guild densities that should be attributed to each species. Species-
specific densities were used to calculate exposure estimates for each
pilot whale and seal species. Based upon this updated methodology,
pilot whale exposure estimates and take estimates have not changed.
Updated seal exposure estimates and take estimates are described in
tables 22 and 23.
After considering a comment from Clean Ocean Action concerning the
take by Level B harassment of bottlenose dolphins and a comment from
the Commission regarding attribution of take between the offshore and
coastal stocks of bottlenose dolphins on the Ocean Wind 1 project,
which was incorporated by reference here in the Commission's comment
letter, NMFS has updated the description of take by Level B harassment
for the northern migratory coastal stock of bottlenose dolphins,
incidental to HRG surveys. While take numbers have not changed, we have
taken a finer look at calculating the percentage of take attributed to
the two affected bottlenose dolphin stocks. We have included a detailed
description of estimating take by Level B harassment, incidental to HRG
surveys, for the northern migratory coastal bottlenose dolphin stock in
the Negligible Impact and Small Numbers sections of this rule.
The following changes are reflected in the Mitigation section of
the preamble to this final rule:
NMFS has re-organized and simplified this section to avoid
repeating entirely the requirements provided in the regulatory text.
In response to multiple commenters' concerns regarding noise
attenuation, we have added a general requirement that noise levels must
not exceed those modeled assuming 10 dB of attenuation and all project
vessels must utilize AIS.
In consideration of a recommendation from the Commission and a
requirement to increase the minimum visibility zone in the Biological
Opinion (BiOp), NMFS has increased the minimum visibility zone for
mysticetes for impact pile driving from 1.2 km to 1.5 km to be
consistent with the shutdown zone for mysticetes. In the BiOp, the
minimum visibility zone was also increased to 1.5 km.
Based on a recommendation by a commenter and a requirement to
increase the visual shutdown zone for North Atlantic right whales in
the BiOp, NMFS has increased the visual shutdown zone for North
Atlantic right whales for impact pile driving from 1.5 km to any
distance. NMFS has also increased the PAM clearance and shutdown zones
for North Atlantic right whales to any distance. Prior to increasing
the shutdown and clearance zones, NMFS considered these measures
internally, and found these measures to be practicable.
Based on multiple commenters' concerns regarding noise attenuation,
and as informed by preliminary sound measurements from South Fork Wind,
NMFS has added a requirement that two functional noise attenuation
devices that reduce noise levels to the modeled harassment isopleths,
assuming a 10-dB attenuation, must be used during foundation pile
driving. A single bubble curtain alone will not be allowed for use in
mitigation.
We clarify that the mitigation measure restricting Project vessels
from traveling over 10 kn (5.14 m/s) in the transit corridor, unless
Empire Wind conducts real-time acoustic monitoring to detect large
whales (including North Atlantic right whales), applies only when other
speed restrictions are not in place.
Based on multiple commenters' concerns regarding impacts to North
Atlantic right whales from pile driving, we added the requirement that
Empire Wind must delay or shutdown if a North Atlantic right whale is
acoustically detected at any distance within the 10 km PAM monitoring
zone.
Because Empire Wind identified that the soft-start procedure in the
proposed rule was concerning regarding engineering feasibility and
practicability, we have removed the specific soft-start procedure
identified in the proposed rule (but not the requirement to conduct a
soft-start) and will provide a practicable soft-start procedure in the
LOA.
The following changes are reflected in the Monitoring and Reporting
section of the preamble to this final rule:
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.
In consideration of a recommendation by the Commission and based
upon NMFS' internal consideration that this would be a practicable
measure, 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 active PSOs on
duty on the pile driving vessel rather than two PSOs, as was originally
described in the proposed rule. Addition of this requirement is based
on commenters' concerns regarding sufficient marine mammal monitoring
and NMFS' evaluation that three PSOs (each covering 120 degrees) will
improve the reliability of detection from the pile driving platform.
In response to multiple comments seeking augmented noise reduction
technologies, including comments from Oceana, the Natural Resources
Defense Council, and the Commission, we have added a requirement
stating that Empire Wind must use at least two functional noise
attenuation devices that reduce noise levels to the modeled harassment
isopleths, assuming 10-dB attenuation, and clarify that a single bubble
curtain must not be used. Second, we 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 and abbreviated SFV monitoring must be conducted
on all additional foundation installations to align with the
requirements in the BiOp. Third, we have added a requirement that
Empire Wind must deploy at least eight hydrophones at four locations
(one bottom and one mid-water column at each location) along an azimuth
that is likely to see lowest propagation loss and two hydrophones (one
bottom and one mid-water) at 750 m, 90 degrees from the primary azimuth
during installation of all piles where SFV monitoring is required.
NMFS has changed the submission date from 90 to 180 days prior to
the start of pile driving commencement for the Pile Driving Marine
Mammal Monitoring Plan and the PAM Plan (noting the Vessel Strike
Avoidance and Vibratory Pile Driving Plans retain the 90-day
requirement as these activities are very nearshore) to align with the
requirements of the BiOp.
In response to a comment from the Natural Resources Defense
Council, 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 frequently as new information warrants
it.
Changes in the Regulatory Text
As described above regarding changes made to the preamble, we have
made the following corresponding and
[[Page 11361]]
additional changes to the regulatory text in response to public
comment, especially those numerous public comments requesting greater
mitigation and monitoring measures, or for clarity, as informed by
comment and continuing information generated by current offshore wind
projects.
For clarity and consistency, we revised three paragraphs in Sec.
217.280, ``Specified activity and specified geographical region,'' of
the regulatory text to fully describe the specified activity, specified
geographical region, and requirements imposed on the LOA Holder (Empire
Wind).
Due to a change in the Empire Wind final rule and LOA issuance
schedule, we updated the effective dates for these regulations in Sec.
217.281.
For clarity, we revised one paragraph in Sec. 217.282,
``Permissible methods of taking,'' to fully describe the specified
geographical area.
In response to several commenters' concerns regarding strengthening
mitigation and monitoring measures, NMFS has added a requirement for
confirmation of all required training to be documented on a training
course log sheet and reported to NMFS before initiating project
activities. 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.
NMFS has also added a requirement that the marine mammal monitoring
team must monitor available sources of information on North Atlantic
right whale presence in or near the Project Area no less than every 4
hours.
In Sec. 217.284(a)(4), NMFS has clarified that any visual
observation of marine mammals, as opposed to ESA-listed marine mammals,
must be communicated to PSOs and vessel captains.
NMFS has added additional clarification on the authority of PSOs
and PAM operators in Sec. 217.284(a)(7) to ensure compliance and
proper implementation of the regulations.
NMFS has specified that any visual or acoustic detection of a North
Atlantic right whale must trigger a delay in commencement of pile
driving and HRG surveys.
In consideration of multiple commenters' concerns regarding vessel
transparency, including those concerns expressed by Oceana, NMFS has
added a requirement that all project vessels must utilize AIS.
NMFS has included a requirement for Empire Wind to consent to
onsite observations and inspections by Federal personnel during project
activities.
NMFS has added a prohibition to interfering with PSO or PAM
operator responsibilities.
NMFS has clarified that all underway vessels requiring a dedicated
visual observer would be transiting within the specified geographic
area.
NMFS has added a requirement for any large whale sighting to be
communicated to all project-associated vessels, and for a large whale
sighting log sheet to be retained for the vessel captain's review each
day.
NMFS has clarified the requirement in Sec. 217.284(b)(8) in the
proposed rule to specify that this measure applies to vessels traveling
in the specified geographic region.
In consideration of several commenters' concerns regarding
strengthening mitigation measures to avoid vessel strike, NMFS has
removed the requirement in Sec. 217.284(b)(16) in the proposed rule
for any underway vessel to avoid speed over 10 kn (18.5 km/hr) or
abrupt changes in course direction until an animal is on a path away
from the separation distance. The current requirement in Sec.
217.284(b) requires vessels to reduce speed and shift engine to neutral
if an animal is within the separation distance.
NMFS has updated the requirement in Sec. 217.284(b)(17) in the
proposed rule that a North Atlantic right whale detection triggers a
speed restriction for all vessels (previously only crew transfer
vessels) within 10 km for a 24-hour period (previously 12-hour period).
NMFS has updated the requirement for submission of a North Atlantic
vessel strike avoidance plan from 90 to 180 days prior to commencement
of vessel use.
For clarity, NMFS has updated the term ``foundation impact pile
driving'' to ``foundation pile driving.''
Because Empire Wind identified that the soft-start procedure in the
proposed rule was concerning regarding engineering feasibility and
practicability, we have removed the specific soft-start procedure
identified in the proposed rule (but not the requirement to conduct a
soft-start) and will provide a practicable soft-start procedure in the
LOA.
NMFS has clarified boundaries for observations of North Atlantic
right whales that trigger a delay in the commencement of pile driving.
In response to multiple comments seeking augmented noise reduction
technologies, including those from Oceana, the Natural Resources
Defense Council, and the Commission, NMFS has added a requirement that
two functional noise attenuation devices that reduce noise levels to
the modeled harassment isopleths, assuming 10-dB attenuation must be
used during impact pile driving, and a single bubble curtain may not be
used.
NMFS has clarified requirements for PAM systems, including a
requirement for the PAM system to be able to detect a vocalization of
North Atlantic right whales up to 10 km away.
NMFS has increased the minimum requirement for PSOs on the pile
driving platform. As described above, addition of this requirement is
based on commenters' concerns regarding sufficient marine mammal
monitoring and NMFS' evaluation that 3 PSOs (each covering 120 degrees)
will improve the reliability of marine mammal detection from the pile
driving platform.
NMFS has added a requirement for Empire Wind to conduct abbreviated
SFV measurements on all piles for which thorough SFV monitoring is not
being conducted to align with requirements of the BiOp and public
requests for noise abatement. In consideration of a comment from the
MMC, NMFS has also added more specific requirements for SFV
measurements and reporting, including the submission of interim reports
and description of information required for reports, conducting
additional in-situ measurements, and equipment calibration.
In consideration of Oceana's comment regarding frequent reporting
to federal agencies, NMFS has added a requirement for Empire Wind to
submit 48-hour interim reports after each foundation is measured using
thorough SFV. Abbreviated SFV reports are due weekly.
NMFS has clarified requirements applying to HRG surveys operating
sub-bottom profilers (SBPs) in Sec. 217.284(e) to ensure compliance
and proper implementation of the regulations.
In consideration of multiple commenters' concerns regarding HRG
survey acoustic impacts and effective mitigation measures, NMFS has
added a requirement for acoustic source ramp-ups to be scheduled in
order to minimize the time spent with the source activated.
For fishery monitoring surveys, NMFS has added multiple
requirements designed to further augment mitigation and minimization of
impacts to marine mammals in alignment with public comment, including
quick emptying of gear after retrieval, labeling all gear, and marine
mammal avoidance requirements.
The following changes are reflected in Sec. 217.285,
``Requirements for monitoring and reporting,'' and the
[[Page 11362]]
associated Monitoring and Reporting section of the preamble to this
final rule:
NMFS has added a requirement for all PSOs and PAM operators to have
successfully completed a relevant training course within the last 5
years and to submit the certificate of course completion in order to
further clarify PSO requirements to ensure compliance.
NMFS has further clarified PAM operator qualifications as well as
PSO and PAM training requirements in Sec. 217.285 to ensure compliance
and proper implementation of regulations. This additional clarification
includes detailed requirements for prior experience, being independent
observers, ability for PAM operators to review and classify acoustic
detections in real-time, PSO marine mammal identification and behavior
training to focus on species specific to the North Western Atlantic
Ocean, and PSO and PAM training to have been completed within the past
5 years and have included a certificate of course completion. NMFS has
specified that Empire Wind must submit the names of NMFS previously
approved PSOs and PAM operators at least 30 days prior to commencement
of the specified activities and 15 days prior to when new PSOs/PAM
operators are required after activities have commenced.
NMFS has specified the following additional details in Sec.
217.285(b) to clarify PSO and PAM operator requirements in order to
ensure compliance and proper implementation of regulations: PAM
operators may be located remotely or on-shore, and must assists PSOs in
ensuring full coverage of the clearance and shutdown zones; PSOs must
monitor for marine mammals prior to, during, and following impact pile
driving, vibratory pile driving, and HRG surveys that use sub-bottom
profilers and monitoring must be done while free from distractions; all
on-duty PSOs and PAM operator(s) are to remain in real-time contact
with the on-duty construction personnel responsible for implementing
mitigations; and 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.
NMFS has clarified the following requirements for monitoring during
fishery surveys to ensure compliance and proper implementation of
regulations: All captains and crew conducting fishery surveys must be
trained in marine mammal detection and identification and 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, and for 15 minutes after haul back. In addition, NMFS has
specified that any dates in reports for NMFS must be in the MM/DD/YYYY
format, and location information must be provided in Decimal Degrees
and with the coordinate system information.
NMFS has added additional requirements for inclusion in SFV reports
in consideration of the MMC's concerns for the information included in
any SFV report to be specified.
NMFS has clarified that final annual reports 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.
In consideration of the Commission's concerns for underestimating
takes by Level A harassment and Level B harassment, NMFS has added a
requirement that if at any time during the Project Empire Wind 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,
Empire Wind must inform NMFS Office of Protected Resources within one
business day of becoming aware of this issue or before the next pile is
driven, whichever comes first.
NMFS has added specific regional contact information for reporting
North Atlantic right whale sightings and stranded, entangled, injured,
or dead marine mammals.
NMFS had added a requirement to report observations of any large
whale (other than North Atlantic right whales) to the WhaleAlert app.
NMFS has added a requirement that Empire Wind must report any lost
gear associated with the fishery surveys to the NMFS GARFO Protected
Resources Division ([email protected]) as soon as
possible or within 24 hours of the documented time of missing or lost
gear.
Description of Marine Mammals in the Geographic Area
As noted in the Changes from the Proposed to Final Rule section,
updates have been made to the abundance estimate for North Atlantic
right whales and to the UME summaries of multiple species. These
changes are described in detail in the sections below and, otherwise,
the marine mammal information has not changed since the proposed rule.
Thirty-eight marine mammal species under NMFS' jurisdiction have
geographic ranges within the western North Atlantic OCS (Hayes et al.,
2023). Sections 3 and 4 of Empire Wind's ITA application summarize
available information regarding status and trends, distribution and
habitat preferences, and behavior and life history of the potentially
affected species (Empire Wind, 2022). Additional information regarding
population trends and threats may be found in NMFS's SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (https://www.fisheries.noaa.gov/find-species).
Table 2 lists all species and stocks for which take is expected and
authorized for this action, and summarizes information related to the
population or stock, including regulatory status under the MMPA and
ESA, and provides the PBR, where known. PBR is defined by the MMPA as
the maximum number of animals, not including natural mortalities, that
may be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (16 U.S.C.
1362(20)), as described in NMFS's SARs. While no mortality is
anticipated or authorized, PBR and annual serious injury and mortality
from anthropogenic sources are included here as gross indicators of the
status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. Atlantic and Gulf of Mexico SARs. All values presented in
table 2 are the most recent available at the time of publication and
are available in NMFS' 2022 draft SARs available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.
[[Page 11363]]
Table 2--Marine Mammal Species That May Occur in the Project Area and Be Taken by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name \1\ Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 \6\ 31.2
356 (346-363, 2022)
\5\.
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24; 5,573; 11 1.8
2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Coastal. 2016).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, N 1,396 (0; 1,380; 2016) 22 12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Family Delphinidae:
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71; 54,433; 544 27
2016).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 39,921 (0.27; 32,032; 320 0
2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -, -, N 62,851 (0.23; 51,914; 519 28
Offshore. 2016).
Northern Migratory -, -, Y 6,639 (0.41; 4,759; 48 12.2-21.5
Coastal. 2016).
Long-finned pilot whales........ Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3; 30,627; 306 29
2016).
Short-finned pilot whales....... Globicephala Western North Atlantic. -, -, N 28,924 (0.24; 23,637; 236 136
macrorhynchus. 2016).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 35,215 (0.19; 30,051; 301 34
2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 172,897 (0.21; 1,452 390
145,216; 2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31; 74,034; 851 16
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \7\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,300 (0.22; 22,785; 1,458 4,453
2016).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08; 57,637; 1,729 339
2018).
Harp seal \8\................... Pagophilus Western North Atlantic. -, -, N 7,600,000 (UNK, 426,000 178,573
grownlandicus. 7,100,000).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies; Committee on Taxonomy, 2022).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal SARs online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments (Hayes et al.,
2023). CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\4\ 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).
\5\ 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 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).
\6\ Total annual average observed North Atlantic right whale mortality during the period 2016-2020 was 8.1 animals and annual average observed fishery
mortality was 5.7 animals. Numbers presented in this table (31.2 total mortality and 22 fishery mortality) are 2015-2019 estimated annual means,
accounting for undetected mortality and serious injury.
\7\ 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.
\8\ Harp seals are rare in the region; however, stranding data suggest this species may be present during activities that may take marine mammals.
All 38 species that could potentially occur in the Project Area are
included in table 12 of the Empire Wind ITA application and are
discussed therein (Empire Wind, 2022). While the majority of these
species have been documented or sighted off the New York coast in the
past, for the species and stocks not listed in table 2, NMFS considers
it unlikely that their occurrence would overlap the activity in a
manner that would result in harassment, either because of their spatial
occurrence (i.e., more northern or southern ranges) and/or with the
geomorphological characteristics of the underwater environment (i.e.,
water depth in the development area).
A detailed description of the species likely to be affected by
Empire Wind's project, including brief introductions to the species and
relevant stocks, information regarding population trends and threats,
and information regarding
[[Page 11364]]
local occurrence, were provided in the proposed rule (88 FR 22696,
April 13, 2023). Since that time, we are not aware of any 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 for these descriptions (88 FR 22696, April 13, 2023).
Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.
Since the publication of the proposed rule, the following updates
have occurred to the below species in regards to general information or
their active UMEs.
North Atlantic Right Whale
In August 2023, NMFS released its final 2022 SARs, which updated
the population estimate (Nbest) of North Atlantic right
whales from 368 to 338 individuals and 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 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). 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). The Northeast
Fisheries Science Center (NEFSC) completed both technical and policy
reviews of this report. Elevated North Atlantic right whale mortalities
have occurred since June 7, 2017, along the United States 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. As of November 30, 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 (i.e., ``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. As of November 30, 2023 (i.e., updated
since the proposed rule), partial or full necropsy examinations have
been conducted on approximately half of the 212 known cases. Of the
approximately 90 whales examined, about 40 percent had evidence of
human interaction, either by 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.
Minke Whale
Since January 2017, elevated minke whale mortalities detected along
the Atlantic coast from Maine through South Carolina resulted in the
declaration of a UME. As of November 30, 2023 (i.e., updated since the
proposed rule), a total of 160 minke whales have stranded during the
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 and
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/2017-2022-minke-whale-unusual-mortality-event-along-atlantic-coast.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. 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
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 kilohertz (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).
[[Page 11365]]
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).
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 activities have
the potential to result in the harassment of marine mammals in the
vicinity of the Project Area. The proposed rule (88 FR 22696, April 13,
2023) included a discussion of the effects of anthropogenic noise on
marine mammals and the potential effects of underwater noise from the
Project activities on marine mammals and their habitat. That
information and analysis is adopted by reference into this final rule
determination and is not repeated here. Please refer to the proposed
rule (88 FR 22696, April 13, 2023).
Since the publication of the proposed rule, new scientific
information has become available that provides additional insight into
the sound fields produced by turbine operation (HDR, Inc., 2023; Holme
et al., 2023). 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 (i.e., power
production, which is proportional to the blade's revolutions per
minute) and noise level. However, it was noted that this missing
relationship may have been masked by the area's relatively high ambient
noise sound levels. Sound levels (i.e., 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.
In addition, operational turbine measurements from the Coastal
Virginia Offshore Wind pilot pile project indicated that noise levels
from two, 7.8 m monopiles WTGs were higher when compared to Block
Island wind farm, likely due to vibrations associated with the
monopiles structure (HDR, Inc., 2023). We note that this updated
information does not change our assessment for impacts of turbine
operational sound on marine mammals. As described in the proposed rule,
NMFS will require Empire Wind to measure operational noise levels,
however, is not authorizing take incidental to operational noise from
WTGs.
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.
Minor changes to the estimated and authorized take for several
species have been made since publication of the proposed rule based on
recommendations received during the public comment period and the best
available science. These changes are described in the Changes from the
Proposed to Final Rule section above and in the sections below.
Otherwise, the methodology for, and amount of, estimated take has not
changed since the proposed rule.
Authorized takes would primarily be 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 constituting Level A harassment to occur in select marine mammal
species incidental to the specified activities (i.e., impact pile
driving). For this action, this potential is limited to mysticetes due
to their hearing sensitivities and the nature of the activities. As
described below, the larger distances to the PTS thresholds, when
considering marine mammal weighting functions, demonstrate this
potential. For mid-frequency hearing sensitivities, when thresholds and
weighting and the associated PTS zone sizes are considered, the
potential for PTS from the noise produced by the Project is negligible.
The required mitigation and monitoring measures are expected to
minimize the severity 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 was estimated.
Generally speaking, NMFS estimates 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
[[Page 11366]]
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). Thresholds have also been developed identifying the
received level of in-air sound above which exposed pinnipeds would
likely be behaviorally harassed. 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) and the state
of the receiving animals (e.g., hearing, motivation, experience,
demography, life stage, depth), and can be difficult to predict (e.g.,
Southall et al., 2007, 2021; Ellison et al., 2012). Based on what the
available science indicates and the practical need to use a threshold
based on a metric that is both predictable and measurable for most
activities, NMFS typically uses a generalized acoustic threshold based
on received level to estimate the onset of behavioral harassment. NMFS
generally predicts that marine mammals are likely to be behaviorally
harassed in a manner considered to be Level B harassment when exposed
to underwater anthropogenic noise above root-mean-squared pressure
received levels (RMS SPL) of 120 dB (re 1 [mu]Pa) for continuous (e.g.,
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa
for non-explosive impulsive (e.g., seismic airguns) or intermittent
(e.g., scientific sonar) sources (table 4). Generally speaking, Level B
harassment take estimates based on these behavioral harassment
thresholds are expected to include any likely takes by TTS as, in most
cases, the likelihood of TTS occurs at distances from the source less
than those at which behavioral harassment is likely. TTS of a
sufficient degree can manifest as behavioral harassment, as reduced
hearing sensitivity and the potential reduced opportunities to detect
important signals (e.g., conspecific communication, predators, prey)
may result in changes in behavior patterns that would not otherwise
occur.
Empire Wind's construction activities include the use of continuous
(e.g., vibratory pile driving) and intermittent (e.g., impact pile
driving and HRG acoustic sources) sources; 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 constituting 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 (i.e., impulsive or non-impulsive
sources). As dual metrics, NMFS considers onset of PTS constituting
Level A harassment to have occurred when either one of the two metrics
is exceeded (i.e., metric resulting in the largest isopleth). The
Project includes the use of impulsive and 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 PTS
[NMFS, 2018]
------------------------------------------------------------------------
PTS onset thresholds \*\ (received
level)
Hearing group ---------------------------------------
Impulsive Non-impulsive
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.... Cell 1:........... Cell 2:
Lp,0-pk,flat: 219 LE,p, LF,24h: 199
dB;. dB.
LE,p, LF,24h: 183
dB.
Mid-Frequency (MF) Cetaceans.... Cell 3:........... Cell 4:
Lp,0-pk,flat: 230 LE,p, MF,24h: 198
dB;. dB.
LE,p, MF,24h: 185
dB.
High-Frequency (HF) Cetaceans... Cell 5:........... Cell 6:
Lp,0-pk,flat: 202 LE,p, HF,24h: 173
dB;. dB.
LE,p,HF,24h: 155
dB.
Phocid Pinnipeds (PW) Cell 7:........... Cell 8:
(Underwater). Lp,0-pk.flat: 218 LE,p,PW,24h: 201
dB;. dB.
LE,p,PW,24h: 185
dB.
Otariid Pinnipeds (OW) Cell 9:........... Cell 10:
(Underwater). Lp,0-pk,flat: 232 LE,p,OW,24h: 219
dB;. dB.
LE,p,OW,24h: 203
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 standards (ISO, 2017). The subscript ``flat'' is being
included to indicate peak sound pressure are flat weighted or
unweighted within the generalized hearing range of marine mammals
(i.e., 7 Hz to 160 kHz). The subscript associated with cumulative
sound exposure level thresholds indicates the designated marine mammal
auditory weighting function (LF, MF, and HF cetaceans, and PW and OW
pinnipeds) and that the recommended accumulation period is 24 hours.
The weighted cumulative sound exposure level thresholds could be
exceeded in a multitude of ways (i.e., varying exposure levels and
durations, duty cycle). When possible, it is valuable for action
proponents to indicate the conditions under which these thresholds
will be exceeded.
[[Page 11367]]
Below, we discuss the acoustic modeling, marine mammal density
information, and take estimation for each of Empire Wind's construction
activities. NMFS has carefully considered all information and analysis
presented by the applicant as well as all other applicable information
and, based on the best available science, concurs that the applicant's
estimates of the types and amounts of take for each species and stock
are complete and accurate.
Marine Mammal Densities
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory and the Marine-life Data and Analysis
Team, based on the best available marine mammal data from 1992 to 2022
obtained in a collaboration between Duke University, the Northeast
Regional Planning Body, the University of North Carolina Wilmington,
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et
al., 2016a, 2016b, 2017, 2018, 2020, 2021a, 2021b, 2023), represent the
best available science regarding marine mammal densities in the Project
Area. More recently, these data have been updated with new modeling
results and include density estimates for pinnipeds (Roberts et al.,
2016b, 2017, 2018, 2023). Density data are subdivided into five
separate raster data layers for each species, including: Abundance
(density); 95 percent Confidence Interval of Abundance; 5 percent
Confidence Interval of Abundance; Standard Error of Abundance; and
Coefficient of Variation of Abundance.
Empire Wind's initial densities and take estimates were included in
the ITA application that was considered Adequate & Complete on August
11, 2022, in line with NMFS' standard ITA guidance (https://www.fisheries.noaa.gov/national/marine-mammal-protection/apply-incidental-take-authorization). However, on June 20, 2022, the Duke
Marine Geospatial Ecology Laboratory released a new, and more
comprehensive, set of marine mammal density models for the area along
the East Coast of the United States (Roberts et al., 2023). The
differences between the new density data and the older data
necessitated the use of updated marine mammal densities and,
subsequently, revised marine mammal take estimates. This information
was provided to NMFS as an addendum to the application on January 25,
2023, after continued discussion between Empire Wind and NMFS, and NMFS
has considered it in this analysis. The application addendum was made
public on NMFS' website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1).
For foundation installation, the width of the perimeter around the
activity area used to select density data from the Duke models was
based on the largest 10-dB attenuated exposure range (the Level B
harassment range) applicable to that activity and then rounded up to
the nearest 0.5-km increment (10 km), which reflects the spatial
resolution of the Roberts et al. (2023) density models. Empire Wind
determined the mean density for each month by calculating the
unweighted mean of all 5 x 5 km grid cells partially or fully within
the analysis polygon (Roberts et al., 2023). The monthly densities for
an entire year were calculated to coincide with possible planned
activities.
Empire Wind assumed that a maximum of 24 monopiles could be
installed per month, with a maximum of 96 WTG monopiles and two OSS
foundations installed in year 2 (2025) and the remaining 51 WTG
monopile foundations installed in year 3 (2026). In year 2 (2025),
Empire Wind assumed that 24 monopiles would be installed in the four
highest-density months for each species during the May to December
period and the two OSSs would be installed in the highest and second-
highest-density months. Empire Wind also assumed that all 17 difficult-
to-drive piles would be installed in the first year of pile driving but
the distribution would be spread relatively evenly among the four
highest months (i.e., four piles per month except the highest-density
month which assumed 5 difficult-to-drive piles for a total of 17
piles). In the second year of pile driving, 24 monopiles would be
installed in the two highest-density months and the remaining 3
monopiles would be installed in the third-highest-density month. Thus,
each species was presumed to be exposed to the maximum amount of pile
driving based on their monthly densities (table 6). This was determined
to be the most conservative approach to generate potential installation
schedules for animal exposure calculation.
For cofferdam and goal post density estimates, Empire Wind used the
modeled acoustic range distance to the Level B harassment threshold to
calculate the ensonified area around the source of the cofferdam or
goal post installation activity (see the Temporary Cofferdam and/or
Goal Post Installation and Removal (Vibratory Pile Driving) Take
Estimates section below). Empire Wind averaged the maximum monthly
densities by season as reported by Roberts et al. (2023): Spring (March
through May), summer (June through August), fall (September through
November), and winter (December through February). To be conservative,
the maximum average seasonal density for each species was then carried
forward in the take calculations.
To estimate densities for the HRG surveys occurring both within the
Lease Area and within the export cable routes, Empire Wind mapped
density data from Roberts et al. (2023) within the boundary of the
Project Area using geographic information systems. Empire Wind averaged
maximum monthly densities (as reported by Roberts et al., 2023) by
season over the survey duration (for winter (December through
February), spring (March through May), summer (June through August),
and fall (September through November)) within the HRG survey area. The
maximum average seasonal density, for each species, was then carried
forward in the take calculations (table 6).
NMFS notes several exceptions to the determination of the relevant
densities for some marine mammal species to the method described above.
These are described here in greater detail. For several marine mammal
species, Roberts et al. (2023) does not differentiate by stock. This is
true for the bottlenose dolphins, for which take has been authorized
for two stocks (coastal migratory and offshore stock) for Empire Wind.
This is also true for long-finned and short-finned pilot whales (pilot
whale spp.) and harbor and gray seals (seals), where a pooled density
is the only value available from the data that is not partitioned by
stock.
To account for this, the coastal migratory and offshore stocks of
bottlenose dolphins were adjusted based on the 20-m isobath cutoff,
such that take predicted to occur in any area less than 20 m in depth
was apportioned to the coastal stock only and take predicted to occur
in waters of greater than 20 m of depth was apportioned to the offshore
stock. Given the noise from cofferdam installation would not extend
beyond the 20-m isobath, where the coastal stock of bottlenose dolphins
predominates, it is expected that only the coastal stock is likely to
be taken by this activity. As the density models do not account for
group size and the resulting calculated exposures were very small, the
predicted take for cofferdam installation and removal
[[Page 11368]]
activities was increased to account for the exposure of one average-
sized group per day each of bottlenose and common dolphins.
In order to calculate exposures for gray seals, harbor seals,
short-finned pilot whales, and long-finned pilot whales, the guild
densities were scaled by relative local abundances of each species in
each guild, using the best available estimates of local abundance, to
get species-specific density estimates for the Project Area for impact
pile driving activities. In estimating local abundances, all
distribution data for gray seals, harbor seals, and both species of
pilot whales were downloaded from the OBIS data repository (https://www.obis.org). After reviewing the available datasets, Empire Wind
determined that data available in OBIS from the Mystic Aquarium of
marine mammal strandings along the north shore of the Long Island Sound
represent the best available data of relative abundances of gray seals,
harbor seals, and both pilot whale species in the Project Area due to
their proximity to the Project Area and a lack of sightings data for
these species in offshore waters near the Lease Area. For the seals,
Empire Wind used the Smith (2014) dataset to scale seal densities. The
Mystic Aquarium reported 107 observations of gray seals and 209
observations of harbor seals. Empire Wind used the proportions of 0.34
(which is equal to 107 gray seal observations divided by 316 total gray
and harbor seal observations) and 0.66 (which is equal to 209 harbor
seal observations divided by 316 total gray and harbor seal
observations) to scale seal guild densities. The limited number of
observations of gray and harbor seals near the Project Area (i.e., two
gray seal sightings, three harbor seal sightings) in the larger OBIS
database supports this method (OBIS, 2023), and NMFS agrees with this
approach. For pilot whales, the animal movement modeling showed no
exposures above any threshold, so scaling was not necessary.
For some species and activities, observational data from PSOs
aboard HRG and geotechnical survey vessels indicate that the density-
based exposure estimates may be insufficient to account for the number
of individuals of a species that may be encountered during the planned
activities. A review of Empire Wind's PSO sightings data ranging from
2018 to 2023 for the Project Area indicated that exposure estimates
based on the exposure modeling methodology for some species were likely
underestimates for humpback whales, fin whales, and pilot whales. These
findings are described in greater detail below.
For other less-common species, the predicted densities from Roberts
et al. (2023) are very low, and the resulting density-based exposure
estimate is less than a single animal or a typical group size for the
species. In such cases, the mean group size or PSO data was considered.
Mean group sizes for each species were calculated from recent aerial
and/or vessel-based surveys, as shown in table 5. Group size data were
also used to estimate take from marina activities given there is no
density data available for the area given its inshore location.
Additional detail regarding the density and occurrence as well as the
assumptions and methodology used to estimate take for specific
activities is included in the activity-specific subsections below.
Tables 5 and 6, below demonstrate all of the densities used in the
exposure and take analyses. Table 7 shows the average marine mammal
group sizes used to adjust take estimate calculations.
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[[Page 11370]]
Table 6--The Highest Average Seasonal Marine Mammal Densities (Animals
per 100 km\2\) Used for Analysis of Empire Wind's HRG Survey Effort for
the Project Area From January Through December
------------------------------------------------------------------------
Project area highest average
Marine mammal species seasonal density (No./100
km\2\)
------------------------------------------------------------------------
Fin whale \a\.......................... 0.097
Humpback whale......................... 0.099
Minke whale............................ 0.526
North Atlantic right whale \a\......... 0.073
Sei whale \a\.......................... 0.030
Sperm whale \a\........................ 0.006
Atlantic spotted dolphin............... 0.058
Atlantic white-sided dolphin........... 0.469
Bottlenose dolphin \b\................. 6.299
Common dolphin......................... 2.837
Pilot whale spp........................ 0.019 (Annual)
Risso's dolphin........................ 0.035
Harbor porpoise........................ 3.177
Gray seal.............................. 13.673
Harbor seal............................ 13.673
Harp seal.............................. n/a.
------------------------------------------------------------------------
\a\ Species is listed as endangered under the ESA.
\b\ Bottlenose dolphin density values from Duke University (Roberts et
al., 2023) reported as ``bottlenose dolphin'' and not identified to
stock. HRG survey activities were not differentiated by region
relative to the 20-m isobath and therefore bottlenose dolphin takes
were not identified to stock.
Table 7--Average Marine Mammal Species Group Sizes Used in Take Estimate Calculations
----------------------------------------------------------------------------------------------------------------
Average group
Marine mammal species size Information source
----------------------------------------------------------------------------------------------------------------
Fin whale............................. 1.25 Palka et al., 2021.
North Atlantic right whale............ 1-2 \1\ Roberts et al., 2023.
Atlantic spotted dolphin.............. 45 Kenney & Vigness-Raposa, 2010.
Atlantic white-sided dolphin.......... 52 Jefferson et al., 2015.
Bottlenose dolphin.................... 15 Jefferson et al., 2015.
Common dolphin........................ 30 Reeves et al., 2002.
Risso's dolphin....................... 100 Jefferson et al., 2015.
Sperm whale........................... 3 Barkaszi et al., 2012.
----------------------------------------------------------------------------------------------------------------
\1\ For North Atlantic right whales, an average group size of one was used for months with mean monthly
densities less than 0.01 (June-October). An average group size of two was used for months with mean monthly
densities greater than 0.01 to reflect the potential for a mother calf pair (May, November, and December).
Densities are based upon Roberts et al. (2023). Exposure estimates for impact pile driving were rounded
accordingly for these months.
Modeling and Take Estimation
Below, we describe the three methods that were used to estimate
take in consideration of the acoustic thresholds and marine mammal
densities described above and the three different activities: WTG and
OSS foundation installation, temporary cofferdam and goal post
installation/removal, and HRG surveys. The take estimates for the three
different activities, as well as the combined total, are presented.
WTG and OSS Foundation Installation
As described above, Empire Wind plans to install up to 147 WTGs and
2 OSSs in the Lease Area. Empire Wind modeled three WTG monopile
scenarios that could occur during construction, and each was considered
in the acoustic modeling conducted to estimate the potential number of
marine mammal exposures above relevant harassment thresholds:
(1) 9.6-m monopiles in which typical monopile WTG foundation
locations are those where the standard hammer energy would be
sufficient to complete installation of the foundation to the target
penetration depth;
(2) 9.6-m monopiles in which difficult-to-drive WTG foundation
locations would require higher hammer energies and/or additional hammer
strikes to complete foundation installation to the target penetration
depth; and
(3) 11-m monopiles in which typical monopile WTG foundation
locations are those where the standard hammer energy would be
sufficient to complete installation of the foundation to the target
penetration depth.
Empire Wind assumed various hammer schedules based upon the
different WTG monopile scenarios. The various hammer schedules included
the hammer energies and number of strikes predicted at various
penetration depths during the pile driving process and different soil
conditions. Difficult-to-drive scenarios would only utilize 9.6-m piles
as the larger 11-m piles could not be driven to target penetration
depth in the soil conditions associated with difficult-to-drive turbine
positions. Empire Wind estimates that a maximum of 17 total foundations
may be difficult-to-drive (including as many as 7 difficult-to-drive
foundations for Empire Wind 1 and as many as 10 difficult-to-drive
foundations for Empire Wind 2). The actual number of difficult-to-drive
piles will be informed by additional analysis of geotechnical data and
other studies that will occur prior to construction but would not be
greater than 17 foundations.
The amount of sound generated during pile driving varies with the
energy required to drive piles to a desired depth and depends on the
sediment resistance encountered. Sediment types with greater resistance
require hammers that deliver higher energy strikes and/or an increased
[[Page 11371]]
number of strikes relative to installations in softer sediment. Maximum
sound levels usually occur during the last stage of impact pile driving
where the greatest resistance is encountered (Betke, 2008). Empire Wind
developed hammer energy schedules for typical and difficult-to-drive
9.6-m piles and for three different seabed penetration depths for the
11-m diameter piles to represent the various soil conditions that may
be encountered in the Lease Area (i.e., normal soil conditions
(identified as ``T1''), harder soil conditions (identified as ``R3''),
and outlier softer soil conditions (identified as ``U3''). One OSS
foundation scenario was modeled; however, this scenario was modeled at
two locations (representing locations in Empire Wind 1 and Empire Wind
2) resulting in two hammer schedules. Empire Wind anticipates the
different locations will require different hammer schedules depending
on site-specific soil conditions.
Key modeling assumptions for the WTG monopiles and OSS foundation
pin piles are listed in table 8 (additional modeling details and input
parameters can be found in K[uuml]sel et al., 2022). Hammer energy
schedules for WTG monopiles (9.6 m and 11 m) and OSS foundation pin
piles are provided in tables 9, 10, and 11 respectively.
Table 8--Key Piling Assumptions Used in the Source Modeling
----------------------------------------------------------------------------------------------------------------
Modeled maximum Pile wall Seabed Number of
Foundation type impact hammer Pile length thickness penetration piles per
energy (kJ) (m) (mm) (m) day
----------------------------------------------------------------------------------------------------------------
9.6-m Monopile......................... \4\ 2,300/5,500 78.5 73-101 38 1-2
11-m Monopile R3 \1\................... 2,000 75.3 8.5 35 1-2
11-m Monopile T1 \2\................... 2,500 84.1 8.5 40 1-2
11-m Monopile U3 \3\................... 1,300 97.5 85 55 1-2
OSS Jacket (2.5-m pin pile)............ 3,200 57-66 50 47-56 2-3
----------------------------------------------------------------------------------------------------------------
\1\ R3 = harder soil conditions.
\2\ T1 = normal soil conditions.
\3\ U3 = softer soil conditions.
\4\ Typical 2,300; difficult-to-drive 5,500.
Table 9--Hammer Energy Schedules for Monopiles Under the Two 9.6-m Pile Driving Scenarios
[9.6-m Diameter pile; IHC S-5500 hammer]
----------------------------------------------------------------------------------------------------------------
``Typical'' pile driving scenario (9.6-m diameter pile) ``Difficult-to-drive'' pile driving scenario
--------------------------------------------------------------- (9.6-m diameter pile)
-------------------------------------------------
Pile Pile
Energy level (kJ) Strike count penetration Energy level Strike count penetration
depth (m) (kJ) depth (m)
----------------------------------------------------------------------------------------------------------------
Initial sink depth............ 0 2 Initial sink 0 2
depth.
450........................... 1,607 12 450............. 1,607 12
800........................... 731 5 800............. 731 5
1,400......................... 690 4 1,400........... 690 4
1,700......................... 1,050 6 1,700........... 1,050 6
2,300......................... 1,419 9 2,300........... 1,087 4
5,500......................... 0 0 5,500........... 2,000 5
Total..................... 5,497 38 Total........ 7,615 38
----------------------------------------------------------------------------------------------------------------
Strike rate (strikes/min)..... 30 Strike rate 30
(strikes/min).
----------------------------------------------------------------------------------------------------------------
Table 10--Hammer Energy Schedule and Number of Strikes per Monopiles Under Three Pile Driving Scenarios
[11-m Diameter pile; IHC S-5500 hammer]
--------------------------------------------------------------------------------------------------------------------------------------------------------
R3-harder soil conditions (11- T1-normal soil conditions (11- U3-softer soil conditions (11-
m monopile) m monopile) m monopile)
-----------------------------------------------------------------------------------------------
Energy level (kJ) Pile Pile Pile
Strike count penetration Strike count penetration Strike count penetration
depth (m) depth (m) depth (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Initial Sink Depth...................................... .............. 1 .............. 3 .............. 5
450..................................................... .............. .............. .............. .............. 622 6
500..................................................... 1,168 14 1,339 14 .............. ..............
750..................................................... 433 3 857 6 2,781 20
1,000................................................... .............. .............. 632 4 1,913 12
1,100................................................... 265 2 .............. .............. .............. ..............
1,300................................................... .............. .............. .............. .............. 2,019 12
1,500................................................... .............. .............. 1,109 7 .............. ..............
2,000................................................... 2159 15 326 2 .............. ..............
[[Page 11372]]
2,500................................................... .............. .............. 656 4 .............. ..............
-----------------------------------------------------------------------------------------------
Totals.............................................. 4,025 35 4,919 40 7,335 55
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 11--Hammer Energy Schedules for Pin Piles Supporting the Jacket Foundations Located at OSS 1 and OSS 2,
With an IHC S-4000 Hammer
----------------------------------------------------------------------------------------------------------------
OSS 1 Location OSS 2 Location
----------------------------------------------------------------------------------------------------------------
Pile Pile
Energy level (kJ) Strike count penetration Energy level Strike count penetration
depth (m) (kJ) depth (m)
----------------------------------------------------------------------------------------------------------------
Initial sink depth............ 0 8 Initial sink 0 5
depth.
500........................... 1,799 30 500............. 1,206 22
750........................... 1,469 12 750............. 1,153 9
2,000......................... 577 4 1,100........... 790 7
3,200......................... 495 2 3,200........... 562 4
Total..................... 4,340 56 3,711........... 47
Total...........
----------------------------------------------------------------------------------------------------------------
Strike rate (strikes/min)..... 30 Strike rate 30
(strikes/min).
----------------------------------------------------------------------------------------------------------------
Both monopiles and pin piles were assumed to be vertically aligned
and driven to a maximum penetration depth of 38 m (125 ft) for typical
and difficult-to-drive 9.6-m monopiles, 55 m (180 ft) for typical 11-m
monopiles, and 56 m (184 ft) for pin piles. While pile penetration
depths may vary slightly, these values were chosen as reasonable
penetration depths during modeling. All acoustic modeling was performed
assuming that concurrent pile driving of either monopiles or pin piles
would not occur. While multiple piles may be driven within any single
24-hour period, these installation activities would not occur
simultaneously. Below we describe the assumptions inherent to the
modeling approach and those by which Empire Wind would not exceed:
Modeling assumptions for the Project are as follows:
Maximum of two, 9.6-m or 11-m monopiles installed per day
(3.5 hours per monopile with a 1-hour pre-clearance period; 9 hours
total with 7 hours of active pile driving time), although only one
monopile may be installed on some days;
No concurrent monopile and/or pin pile driving and no
overlap in pile-driving activities between Empire Wind 1 and Empire
Wind 2 would occur;
Monopiles would be 73-101 millimeters (mm) thick and would
be composed of steel;
Impact Pile Driving for monopiles: IHC S-5500 kilojoules
(kJ) rated energy;
Impact hammers would have a maximum energy capacity of
5,500 kJ;
Up to three, 2.5-m pin piles installed per day (5 hours
per pin pile), although only two pin piles may be installed on some
days;
Pin piles would be 50 mm thick; and
Impact Pile driving: IHC S-4000 kJ rated energy.
Sound fields produced during impact pile driving were modeled by
first characterizing the sound signal produced during pile driving
using the industry standard GRL Wave Equation Analysis Program
(GRLWEAP) (i.e., the wave equation analysis of pile driving) model and
JASCO Pile Driving Source Model (PDSM). We provide a summary of the
modeling effort below but the full JASCO modeling report can be found
in section 6 and appendix A of Empire Wind's ITA application (https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1).
To estimate sound propagation, JASCO used the Marine Operations
Noise Model (MONM) and Full Range Wave Dependent Acoustic Model (FWRAM;
K[uuml]sel et al., 2022, appendix E.4) to combine the outputs of the
source model with spatial and temporal environmental factors (e.g.,
location, oceanographic conditions, and seabed type) to get time-domain
representations of the sound signals in the environment and estimate
sound field levels. The lower frequency bands were modeled using MONM
and FWRAM, which are based on the parabolic equation (PE) method of
acoustic propagation modeling. For higher frequencies, additional
losses resulting from absorption were added to the propagation loss
model. See appendix G in Empire Wind's application for a more detailed
description of JASCO's propagation models. FWRAM is based on the wide-
angle PE algorithm (Collins, 1993). Because the foundation pile is
represented as a linear array and FWRAM employs the array starter
method to accurately model sound propagation from a spatially
distributed source (MacGillivray and Chapman, 2012), using FWRAM
ensures accurate characterization of vertical directivity effects in
the near-field zone (1 km). Due to seasonal changes in the water
column, sound propagation is likely to differ at different times of the
year. The speed of sound in seawater depends on the temperature
(degrees Celsius),
[[Page 11373]]
salinity (parts per thousand), and depth (m) and can be described using
sound speed profiles. Oftentimes, a homogeneous or mixed layer of
constant velocity is present in the first few meters. It corresponds to
the mixing of surface water through surface agitation. There can also
be other features, such as a surface channel, which corresponds to
sound velocity increasing from the surface down. This channel is often
due to a shallow isothermal layer appearing in winter conditions, but
can also be caused by water that is very cold at the surface. In a
negative sound gradient, the sound speed decreases with depth, which
results in sound refracting downwards which may result in increased
bottom losses with distance from the source. In a positive sound
gradient, as is predominantly present in the winter season, sound speed
increases with depth and the sound is, therefore, refracted upwards,
which can aid in long distance sound propagation. To capture this
variability, acoustic modeling was conducted using an average sound
speed profile for a ``summer'' period including the months of May
through November, and a ``winter'' period including December through
April. FWRAM computes pressure waveforms via Fourier synthesis of the
modeled acoustic transfer function in closely spaced frequency bands.
Examples of decidecade spectral levels for each foundation pile type,
hammer energy, and modeled location, using average summer sound speed
profile are provided in K[uuml]sel et al. (2022).
Sounds produced by installation of the 9.6- and 11-m monopiles were
modeled at nine representative locations as shown in figure 2 in
K[uuml]sel et al. (2022). Sound fields from pin piles were modeled at
the two planned jacket foundation locations: OSS 1 and 2. Modeling
locations are shown in figure 8 in K[uuml]sel et al. (2022). The
modeling locations were selected as they represent the range of soil
conditions and water depths in the Lease Area.
Empire Wind estimated both acoustic ranges and exposure ranges.
Acoustic ranges represent the distance to a harassment threshold based
on sound propagation through the environment (i.e., independent of any
receiver) while exposure range represents the distance at which an
animal can accumulate enough energy to exceed a Level A harassment
threshold in consideration of how it moves through the environment
(i.e., using movement modeling). In both cases, the sound level
estimates are calculated from three-dimensional 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 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. The
difference between Rmax and R95 depends
on the source directivity and the heterogeneity of the acoustic
environment. R95 excludes ends of protruding areas
or small isolated acoustic foci not representative of the nominal
ensonified zone. For purposes of calculating Level A harassment take,
Empire Wind applied R95 exposure ranges, not
acoustic ranges, to estimate take and determine mitigation distances
for the reasons described below.
In order to best evaluate the SELcum harassment
thresholds for PTS, it is necessary to consider animal movement, as the
results are based on how sound moves through the environment between
the source and the receiver. Applying animal movement and behavior
within the modeled noise fields provides the exposure range, which
allows for a more realistic indication of the distances at which PTS
acoustic thresholds are reached that considers the accumulation of
sound over different durations (note that in all cases the distance to
the peak threshold is less than the SEL-based threshold).
As described in section 2.6 of JASCO's acoustic modeling report for
Empire Wind (K[uuml]sel et al., 2022), for modeled animals that have
received enough acoustic energy to exceed a given Level A harassment
threshold, the exposure range for each animal is defined as the closest
point of approach (CPA) to the source made by that animal while it
moved throughout the modeled sound field, accumulating received
acoustic energy. The resulting exposure range for each species is the
95th percentile of the CPA distances for all animals that exceeded
threshold levels for that species (ER95). The
ER95 ranges are species-specific rather than
categorized only by any functional hearing group, which allows for the
incorporation of more species-specific biological parameters (e.g.,
dive durations, swim speeds, etc.) for assessing the impact ranges into
the model. Furthermore, because these ER95 ranges
are species-specific, they can be used to develop mitigation monitoring
or shutdown zones.
Tables 12 through 19 provide exposure ranges for the 9.6-m monopile
(typical and difficult-to-drive), 11-m monopile, and OSS foundation pin
piles, respectively, assuming 10 dB of attenuation for summer and
winter. For tables 12 through 17, a single monopile and two monopiles
per day are provided (the two per day ranges are shown in the
parenthesis). For tables 18 and 19, two pin piles and three pin piles
per day are provided. NMFS notes that monopiles foundations constructed
for Empire Wind are applicable to all WTGs and may be applicable to OSS
structures, depending on the finalized buildout. Please see appendix A
of the Empire Wind ITA application, and appendix M of the Empire Wind
Construction and Operations Plan (COP) for further details on the
acoustic modeling methodology.
Displayed in tables 12 through 20 below, Empire Wind would also
employ a noise abatement system during all impact pile driving of
monopiles and pin piles. Noise abatement systems (e.g., bubble
curtains) are sometimes used to decrease the sound levels radiated from
a source. Additional information on sound attenuation devices is
discussed in the Noise Abatement Systems section under the Mitigation
section. In modeling the sound fields for Empire Wind's planned
activities, hypothetical broadband attenuation levels of 0 dB, 6 dB, 10
dB, 15 dB, and 20 dB were modeled to gauge the effects on the ranges to
thresholds given these levels of attenuation. The results for 10 dB of
sound attenuation are shown below and the other attenuation levels (0
dB, 6 dB, 15 dB, and 20 dB) can be found in the ITA application.
As shown in the tables below, exposure ranges associated with the
9.6-m diameter typical monopile scenario were predominantly greater
than for the 11-m diameter monopile scenarios. While larger diameter
monopiles can be associated with greater resulting sound fields than
smaller diameter piles, in this case, the 11-m diameter monopile
scenarios resulted in smaller modeled acoustic ranges than the 9.6-m
diameter
[[Page 11374]]
monopile scenarios likely because the 11-m monopile would only be
installed in softer sediments which would require less hammer energy
and/or number of hammer strikes for installation than the 9.6-m
diameter pile in harder sediments. Hence, the 9.6-m diameter monopile
scenario was carried forward to the exposure analysis to be
conservative, for all ``typical'' monopiles.
Table 12--Exposure Ranges (ER95) to Level A Harassment PTS (SELcum) and Level B Harassment Thresholds From Impact Pile Driving of 9.6-m Diameter ``Typical'' and ``Difficult-To-Drive''
Monopile Foundations (Summer), Assuming 10-dB Attenuation b
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
``Typical'' (in km) ``Difficult-to-drive'' (in km)
-------------------------------------------------------------------------------------------------------------------------------------------
One pile per day Two piles per day One pile per day Two piles per day
-------------------------------------------------------------------------------------------------------------------------------------------
Species Level B Level B Level B Level B
Level A harass- ment harass- Level A harass- ment harass- Level A harass- ment harass- Level A harass- ment harass-
(SEL; dB re 1 ment (dB re (dB re 1 ment (dB re (dB re 1 ment (dB re (dB re 1 ment (dB re
[micro]Pa2[middot]s) 1 [micro]Pa2[middot]s) 1 [micro]Pa2[middot]s) 1 [micro]Pa2[middot]s) 1
[micro]Pa) [micro]Pa) [micro]Pa) [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LF:
Fin Whale....................................... 0.86 3.18 0.94 3.09 1.35 4.74 1.84 4.51
Minke Whale \a\................................. 0.22 3.13 0.54 3.02 0.89 4.46 0.90 4.45
Humpback Whale \a\.............................. 0.24 3.15 0.33 3.01 0.74 4.47 0.69 4.53
North Atlantic Right Whale \a\.................. 0.33 2.89 0.47 2.87 1.09 4.33 1.13 4.30
Sei Whale \a\................................... 0.43 3.09 0.54 3.07 1.04 4.47 1.21 4.52
MF:
Atlantic White-sided Dolphin.................... 0 2.98 0 2.94 0 4.24 0 4.30
Atlantic Spotted dolphin........................ 0 0 0 0 0 0 0 0
Common Dolphin.................................. 0 3.07 0 2.92 0 4.48 0 4.42
Bottlenose Dolphin.............................. 0 2.46 0 2.41 0 3.77 0 3.83
Risso's Dolphin................................. 0 3.07 0 2.93 0 4.73 0 4.41
Long-Finned Pilot Whale......................... 0 0 0 0 0 0 0 0
Short-Finned Pilot Whale........................ 0 0 0 0 0 0 0 0
Sperm Whale..................................... 0 3.25 0 2.96 0 4.59 0 4.47
HF:
Harbor Porpoise................................. 0 3.07 0 3.05 0 4.52 0 4.37
PW:
Gray Seal....................................... 0 3.33 <0.01 3.26 <0.01 4.91 <0.01 4.87
Harbor Seal..................................... 0 3.02 0 2.97 0 4.68 0 4.38
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in tables I-19, I-20, I-23, and I-24 in K[uuml]sel et al., 2022 (appendix I).
Table 13--Exposure Ranges (ER95) to Level A Harassment PTS (SELcum) and Level B Harassment Thresholds From Impact Pile Driving of 9.6-m Diameter ``Typical'' and ``Difficult-To-Drive''
Monopile Foundations (Winter), Assuming 10-dB Attenuation c
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
``Typical'' (in km) ``Difficult-to-drive'' (in km)
-------------------------------------------------------------------------------------------------------------------------------------------
One pile per day Two piles per day One pile per day Two piles per day
-------------------------------------------------------------------------------------------------------------------------------------------
Species Level B Level B Level B Level B
Level A harass- ment harass- Level A harass- ment harass- harass- Level A harass- ment harass-
(SEL; dB re 1 ment (dB re (dB re 1 ment (dB re Level A v (dB re 1 ment (dB re (dB re 1 ment (dB re
[micro]Pa2[middot]s) 1 [micro]Pa2[middot]s) 1 [micro]Pa2[middot]s) 1 [micro]Pa2[middot]s) 1
[micro]Pa) [micro]Pa) [micro]Pa) [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LF:
Fin Whale....................................... 0.88 3.40 1.01 3.46 1.80 5.24 1.95 4.87
Minke Whale \a\................................. 0.26 3.31 0.48 3.29 0.89 4.88 1.05 4.66
Humpback Whale \a\.............................. 0.24 3.38 0.36 3.31 0.74 5.10 0.83 5.07
North Atlantic Right Whale \a\.................. 0.43 3.04 0.47 3.11 1.13 4.73 1.19 4.62
Sei Whale \a\................................... 0.43 3.28 0.58 3.43 1.24 4.95 1.29 4.85
MF:
Atlantic White-sided Dolphin.................... 0 3.30 0 3.19 0 4.73 0 4.72
Atlantic Spotted dolphin........................ 0 0 0 0 0 0 0 0
Common Dolphin.................................. 0 3.28 0 3.08 0 4.89 0 4.73
Bottlenose Dolphin.............................. 0 2.73 0 2.77 0 4.23 0 4.12
Risso's Dolphin................................. 0 3.39 0 3.32 0 5.14 0 4.92
Long-Finned Pilot Whale......................... 0 0 0 0 0 0 0 0
Short-Finned Pilot Whale........................ 0 0 0 0 0 0 0 0
Sperm Whale..................................... 0 3.40 0 3.19 0 4.96 0 4.92
HF:
Harbor Porpoise................................. 0 3.15 0 3.22 0 5.04 0 4.75
PW:
Gray Seal....................................... 0 3.54 <0.01 3.50 <0.01 \b\ 5.35 <0.01 5.19
Harbor Seal..................................... 0 3.28 0 3.29 0 4.93 0 4.71
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ These values represent the maximum Level B.
\c\ The values here were found in tables I-21, I-22, I-25, and I-26 in K[uuml]sel et al., 2022 (appendix I).
[[Page 11375]]
Table 14--Exposure Ranges (ER95) to Level A Harassment (PTS (SELcum)) and Level B Harassment Thresholds
From Impact Pile Driving 11-m Diameter Monopile Foundations (Summer) in Normal (T1) Soil Conditions, Assuming 10-
dB Attenuation b
----------------------------------------------------------------------------------------------------------------
Normal (T1) Soil Conditions (in km)
-----------------------------------------------------------------------------
One pile per day Two piles per day
Species -----------------------------------------------------------------------------
Level A harassment Level B Level A harassment Level B
(dB re 1 harassment (dB (dB re 1 harassment (dB
[micro]Pa2[middot]s) re 1 [micro]Pa) [micro]Pa2[middot]s) re 1 [micro]Pa)
----------------------------------------------------------------------------------------------------------------
LF:
Fin Whale..................... 0.87 3.32 0.83 3.16
Humpback Whale \a\............ 0.25 3.01 0.16 3.1
Minke Whale \a\............... 0.17 3.1 0.35 2.98
North Atlantic Right Whale \a\ 0.20 3.09 0.44 2.93
Sei Whale \a\................. 0.44 3.19 0.27 3.26
MF:
Atlantic White-sided Dolphin.. 0 2.97 0 2.98
Atlantic Spotted dolphin...... 0 0 0 0
Common Dolphin................ 0 3.08 0 2.94
Bottlenose Dolphin............ 0 2.6 0 2.62
Risso's Dolphin............... 0 3.21 0 3.11
Long-finned Pilot Whale....... 0 0 0 0
Short-Finned Pilot Whale...... 0 0 0 0
Sperm Whale................... 0 3.4 0 3.19
HF:
Harbor Porpoise............... 0 3.06 0 3.04
PW:
Gray Seal..................... 0 3.39 0 3.4
Harbor Seal................... 0 3.25 0 3.09
----------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds
in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in tables I-31 and I-32 in K[uuml]sel et al., 2022 (appendix I).
Table 15--Exposure Ranges (ER95) to Level A Harassment (PTS (SELcum)) and Level B Harassment Thresholds
From Impact Pile Driving of 11-m Diameter Monopile Foundations (Winter) in Normal (T1) Soil Conditions, Assuming
10-dB Attenuation b
----------------------------------------------------------------------------------------------------------------
Normal (T1) soil conditions (in km)
-----------------------------------------------------------------------------
One pile per day Two piles per day
-----------------------------------------------------------------------------
Species Level B
Level A harassment harassment Level A harassment Level B
(dB re 1 behavior (dB re (dB re 1 harassment (dB
[micro]Pa2[middot]s) 1 [micro]Pa) [micro]Pa2[middot]s) re 1 [micro]Pa)
----------------------------------------------------------------------------------------------------------------
LF:
Fin Whale..................... 0.87 3.56 0.82 3.53
Humpback Whale \a\............ 0.25 3.24 0.16 3.4
Minke Whale \a\............... 0.27 3.29 0.35 3.31
North Atlantic Right Whale \a\ 0.2 3.17 0.44 3.28
Sei Whale \a\................. 0.44 3.33 0.41 3.53
MF:
Atlantic White-sided Dolphin.. 0 3.28 0 3.31
Atlantic Spotted dolphin...... 0 0 0 0
Common Dolphin................ 0 3.26 0 3.16
Bottlenose Dolphin............ 0 2.73 0 2.93
Risso's Dolphin............... 0 3.48 0 3.44
Long-finned Pilot Whale....... 0 0 0 0
Short-Finned Pilot Whale...... 0 0 0 0
Sperm Whale................... 0 3.48 0 3.35
HF:
Harbor Porpoise............... 0 3.41 0 3.35
PW:
Gray Seal..................... 0 3.66 0 3.66
Harbor Seal................... 0 3.36 0 3.36
----------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds
in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in tables I-33 and I-34 in K[uuml]sel et al., 2022 (appendix I).
[[Page 11376]]
Table 16--Exposure Ranges (ER95) to PTS (SELcum) and Level B Harassment Thresholds From Impact Pile Driving of 11-m WTG Monopile Foundations (Summer) in Soft (R3) and Softer (U3) Soil
Conditions, Assuming 10-dB Attenuation b
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Soft (R3) soil conditions (in km) Softer (U3) soil conditions (in km)
--------------------------------------------------------------------------------------------------------------------------------------------
One pile per day Two piles per day One pile per day Two piles per day
--------------------------------------------------------------------------------------------------------------------------------------------
Species Level B Level B Level Level B
Level A harassment harassment Level A harassment harassment Level A harassment Bvharassment Level A harassment harassment
(dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1
[micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LF:
Fin Whale...................................... 0.87 3.02 0.43 2.89 0.9 2.65 0.58 2.48
Humpback Whale \a\............................. 0.14 2.68 0.15 2.79 <0.01 2.26 0.11 2.31
Minke Whale \a\................................ 0.16 2.78 0.26 2.82 0.02 2.32 0.16 2.27
North Atlantic Right Whale \a\................. 0.2 2.72 0.37 2.67 0.37 2.21 0.28 2.2
Sei Whale \a\.................................. 0.31 2.96 0.27 2.91 0.13 2.33 0.23 2.47
MF:
Atlantic White-sided Dolphin................... 0 2.75 0 2.73 0 2.24 0 2.23
Atlantic Spotted dolphin....................... 0 0 0 0 0 0 0 0
Common Dolphin................................. 0 2.86 0 2.76 0 2.38 0 2.41
Bottlenose Dolphin............................. 0 2.29 0 2.32 0 1.92 0 1.95
Risso's Dolphin................................ 0 2.86 0 2.79 0 2.41 0 2.4
Long-finned Pilot Whale........................ 0 0 0 0 0 0 0 0
Short-Finned Pilot Whale....................... 0 0 0 0 0 0 0 0
Sperm Whale.................................... 0 2.77 0 2.86 0 2.36 0 2.26
HF:
Harbor Porpoise................................ 0 2.76 0 2.73 0 2.19 0 2.28
PW:
Gray Seal...................................... 0 2.87 0 3.01 0 2.60 <0.01 2.58
Harbor Seal.................................... 0 2.91 0 2.75 0 2.50 0 2.36
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values for U3 were found in tables I-27 and I-28 in K[uuml]sel et al., 2022 (appendix I). The values for R3 were found in tables I-35 and I-36 in K[uuml]sel et al., 2022 (appendix I).
Table 17--Exposure Ranges (ER95) to PTS (SELcum) and Level B Harassment Thresholds From Impact Pile Driving of 11-m WTG Monopile Foundations (Winter) in Soft (R3) and Softer (U3) Soil
Conditions, Assuming 10-dB Attenuation b
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Soft (R3) soil conditions (in km) Softer (U3) soil conditions (in km)
-------------------------------------------------------------------------------------------------------------------------------------------
One pile per day Two piles per day One pile per day Two piles per day
-------------------------------------------------------------------------------------------------------------------------------------------
Species Level B Level B Level B Level B
Level A harassment harassment Level A harassment harassment Level A harassment harassment Level A harassment harassment
(dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1
[micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LF:
Fin Whale....................................... 0.87 3.17 0.48 3.14 0.89 2.71 0.82 2.54
Humpback Whale \a\.............................. 0.14 3.04 0.19 2.96 <0.01 2.46 0.11 2.54
Minke Whale \a\................................. 0.19 3.12 0.28 3.02 0.2 2.5 0.23 2.59
North Atlantic Right Whale \a\.................. 0.2 2.93 0.37 2.89 0.49 2.37 0.32 2.38
Sei Whale \a\................................... 0.46 3.09 0.27 3.11 0.13 2.6 0.28 2.56
MF:
Atlantic White-sided Dolphin.................... 0 2.9 0 2.98 0 2.43 0 2.4
Atlantic Spotted dolphin........................ 0 0 0 0 0 0 0 0
Common Dolphin.................................. 0 3.08 0 3.08 0 2.5 0 2.53
Bottlenose Dolphin.............................. 0 2.63 0 2.41 0 2.07 0 2.11
Risso's Dolphin................................. 0 3.04 0 3.08 0 2.63 0 2.53
Long-finned Pilot Whale......................... 0 0 0 0 0 0 0 0
Short-Finned Pilot Whale........................ 0 0 0 0 0 0 0 0
Sperm Whale..................................... 0 3.1 0 3.04 0 2.6 0 2.38
HF:
Harbor Porpoise................................. 0 3.07 0 3.09 0 2.53 0 2.51
PW:
Gray Seal....................................... 0 3.25 0 3.25 0 2.7 <0.01 2.67
Harbor Seal..................................... 0 3.09 0 3.03 0 2.58 0 2.54
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values for U3 were found in tables I-29 and I-30 in K[uuml]sel et al., 2022 (appendix I). The values for R3 were found in tables I-37 and I-38 in K[uuml]sel et al., 2022 (appendix I).
[[Page 11377]]
Table 18--Exposure Ranges (ER95%) to Level A Harassment (PTS (SELcum)) and Level B Harassment Thresholds From Impact Pile Driving of 2.5-m Diameter OSS Foundations (Summer), Assuming 10-dB
Attenuation b
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
OSS 1 Foundation (km) OSS 2 Foundation (km)
-------------------------------------------------------------------------------------------------------------------------------------------
Two pin piles per day Three pin piles per day Two pin piles per day Three pin piles per day
-------------------------------------------------------------------------------------------------------------------------------------------
Species Level B Level B Level B Level B
Level A harassment harassment Level A harassment harassment Level A harassment harassment Level A harassment harassment
(dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1
[micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LF:
Fin Whale....................................... 0 1.04 0 1.1 0 1.1 0 0.99
Humpback Whale \a\.............................. 0 1.02 0 1.02 0 0.94 0 0.93
Minke Whale \a\................................. 0 1 0 0.99 0 1.01 0 1.01
North Atlantic Right Whale \a\.................. 0 0.85 0 0.89 0 1.06 0 1.01
Sei Whale \a\................................... <0.01 1.08 <0.01 1.04 0 0.94 0 0.91
MF:
Atlantic White-sided Dolphin.................... 0 0.98 0 0.98 0 0.82 0 0.84
Atlantic Spotted dolphin........................ 0 0 0 0 0 0 0 0
Common Dolphin.................................. 0 1.03 0 1.03 0 0.96 0 0.96
Bottlenose Dolphin.............................. 0 0.82 0 0.81 0 0.72 0 0.74
Risso's Dolphin................................. 0 1.08 0 1.05 0 0.87 0 0.86
Long-finned Pilot Whale......................... 0 0 0 0 0 0 0 0
Short-Finned Pilot Whale........................ 0 0 0 0 0 0 0 0
Sperm Whale..................................... 0 0.88 0 0.95 0 1.03 0 1.02
HF:
Harbor Porpoise................................. 0 0.95 0 1.02 0 0.94 0 0.92
PW:
Gray Seal....................................... 0 1.15 0 1.14 0 0.78 0 0.77
Harbor Seal..................................... 0 1.12 0 0.99 0 1.05 0 1.04
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in tables I-39, I-40, I-43, and I-44 in K[uuml]sel et al., 2022 (appendix I).
Table 19--Exposure Ranges (ER95%) to Level A Harassment (PTS (SELcum)) and Level B Harassment Thresholds From Impact Pile Driving of 2.5-m Diameter OSS Foundations (Winter), Assuming 10-dB
Attenuation b
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
OSS 1 Jacket Foundation (km) OSS 2 Jacket Foundation (km)
-------------------------------------------------------------------------------------------------------------------------------------------
Two pin piles per day Three pin piles per day Two pin piles per day Three pin piles per day
-------------------------------------------------------------------------------------------------------------------------------------------
Species Level B Level B Level B Level B
Level A harassment harassment Level A harassment harassment Level A harassment harassment Level A harassment harassment
(dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1 (dB re 1
[micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa) [micro]Pa2[middot]s) [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LF:
Fin Whale....................................... 0 1.08 0.18 1.04 0 1.1 0 0.99
Humpback Whale \a\.............................. 0 1.02 0 1.02 0 0.94 0 0.92
Minke Whale \a\................................. 0 1.01 0 1.01 0 1.06 0 1.03
North Atlantic Right Whale \a\.................. 0 0.79 0 0.88 0 1.06 0 1.04
Sei Whale \a\................................... 0 1.08 <0.01 1.05 0 0.94 0 0.90
MF:
Atlantic White-sided Dolphin.................... 0 0.93 0 0.96 0 0.86 0 0.86
Atlantic Spotted dolphin........................ 0 0 0 0 0 0 0 0
Common Dolphin.................................. 0 0.96 0 0.86 0 0.96 0 0.96
Bottlenose Dolphin.............................. 0 0.85 0 0.84 0 0.80 0 0.74
Risso's Dolphin................................. 0 0.92 0 0.89 0 0.87 0 0.86
Long-finned Pilot Whale......................... 0 0 0 0 0 0 0 0
Short-Finned Pilot Whale........................ 0 0 0 0 0 0 0 0
Sperm Whale..................................... 0 0.91 0 0.89 0 1.03 0 1.02
HF:
Harbor Porpoise................................. 0 0.95 0 0.95 0 0.94 0 0.92
PW:
Gray Seal....................................... 0 1.08 0 1.1 0 0.78 0 0.77
Harbor Seal..................................... 0 1.08 0 0.95 0 1.04 0 1.04
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in tables I-41, I-42, I-45, and I-46 in K[uuml]sel et al., 2022 (appendix I).
JASCO's Animal Simulation Model Including Noise Exposure (JASMINE)
animal movement model was used to predict the number of marine mammals
exposed to impact pile driving sound above NMFS' injury and behavioral
harassment thresholds. Sound exposure models like JASMINE use simulated
animals (also known as ``animats'') to forecast behaviors of animals in
new situations and locations based on previously documented behaviors
of those animals. The predicted 3D sound fields (i.e., the output of
the acoustic modeling process described earlier) are sampled by animats
using movement rules derived from animal observations. The output of
the simulation is the exposure history for each animat within the
simulation.
[[Page 11378]]
The precise location of animats and their pathways are not known
prior to a project; therefore, a repeated random sampling technique
(i.e., Monte Carlo) is used to estimate exposure probability with many
animats and randomized starting positions. The probability of an animat
starting out in or transitioning into a given behavioral state can be
defined in terms of the animat's current behavioral state, depth, and
the time of day. In addition, each travel parameter and behavioral
state has a termination function that governs how long the parameter
value or overall behavioral state persists in the simulation.
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.
Scaling the probability density function by the real-world density of
animals results in the mean number of animats expected to be exposed to
a given threshold over the duration of the Project. Due to the
probabilistic nature of the process, fractions of animats may be
predicted to exceed threshold. If, for example, 0.1 animats are
predicted to exceed threshold in the model, that is interpreted as a
10-percent chance that one animat will exceed a relevant threshold
during the Project, or equivalently, if the simulation were re-run 10
times, 1 of the 10 simulations would result in an animat exceeding the
threshold. Similarly, a mean number prediction of 33.11 animats can be
interpreted as re-running the simulation where the number of animats
exceeding the threshold may differ in each simulation but the mean
number of animats over all of the simulations is 33.11. A portion of an
individual marine mammal cannot be taken during a project, so it is
common practice to round mean number animat exposure values to integers
using standard rounding methods. However, for low-probability events it
is more precise to provide the actual values.
Sound fields were input into the JASMINE model, as described above,
and animats were programmed based on the best available information to
``behave'' in ways that reflect the behaviors of the 17 marine mammal
species (18 stocks) expected to occur in the Project Area during the
proposed activity. The various parameters for forecasting realistic
marine mammal behaviors (e.g., diving, foraging, surface times, etc.)
are determined based on the available literature (e.g., tagging
studies). When literature on these behaviors was not available for a
particular species, it was extrapolated from a similar species for
which behaviors would be expected to be similar to the species of
interest. The parameters used in JASMINE describe animat movement in
both the vertical and horizontal planes (e.g., direction, travel rate,
ascent and descent rates, depth, bottom following, reversals, inter-
dive surface interval).
Animats were modeled to move throughout the three-dimensional sound
fields produced by each construction schedule for the entire
construction period. For PTS exposures, both SPLpk and
SELcum were calculated for each species based on the
corresponding acoustic criteria. Once an animat is taken within a 24-
hour period, the model does not allow it to be taken a second time in
that same period, but rather resets the 24-hour period on a sliding
scale across 7 days of exposure. Specifically, an individual animat's
accumulated energy levels (SELcum) are summed over that 24-
hour period to determine its total received energy, and then compared
to the PTS threshold. Takes by behavioral harassment are predicted when
an animat enters an area ensonified by sound levels exceeding the
associated behavioral harassment threshold.
It is important to note that the calculated or predicted takes
represent a take instance or event within 1 day and likely overestimate
the number of individuals taken for some species. Specifically, as the
24-hour evaluation window means that individuals exposed on multiple
days are counted as multiple takes. For example, 10 takes may represent
10 takes of 10 different individual marine mammals occurring within 1
day each, or it may represent take of 1 individual on 10 different
days; information about the species' daily and seasonal movement
patterns helps to inform the interpretation of these take estimates.
Also note that animal aversion was not incorporated into the JASMINE
model runs that were the basis for the take estimate for any species.
Empire Wind also calculated acoustic ranges which represent the
distance to a harassment threshold based on sound propagation through
the environment (i.e., independent of any receiver). As described
above, applying animal movement and behavior within the modeled noise
fields allows for a more realistic indication of the distances at which
PTS acoustic thresholds are reached that considers the accumulation of
sound over different durations. Acoustic ranges
(R95) to the Level A harassment SELcum
metric thresholds are considered overly conservative, as the
accumulation of acoustic energy does not account for animal movement
and behavior and therefore assumes that animals are essentially
stationary at that distance for the entire duration of the pile
installation, a scenario that does not reflect realistic animal
behavior. The acoustic ranges to the SELcum Level A
harassment thresholds for WTG and OSS foundation installation can be
found in tables 16-18 in Empire Wind's application but will not be
discussed further in this analysis. Because NMFS Level B harassment
threshold is an instantaneous exposure, acoustic ranges are more
relevant to the analysis and are used to derive mitigation and
monitoring measures. Acoustic ranges to the Level B harassment
threshold for each activity are provided in the activity-specific
subsections below. The differences between exposure ranges and acoustic
ranges for Level B harassment are minimal given it is an instantaneous
method. Of note, in some cases (e.g., 9.6 m difficult-to-drive piles),
distances to PTS peak thresholds exceed SELcum thresholds.
However, those distances are small (less than 1 km) and only applicable
to harbor porpoise. Please see tables 34-37 in K[uuml]sel et al. (2022)
for more peak threshold modeling results.
Table 20--Maximum Acoustic Ranges (R95%) to Level A Harassment (PTS (Peak)) and Level B Harassment Thresholds (160 dB SPL) for 9.6-m WTG Monopile
(Typical and Difficult-To-Drive Scenarios), 11-m WTG Monopile, and 2.5-m OSS Pin Piles (Summer and Winter), Assuming 10-dB Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment Pk (in km) Level B harassment 160 dB SPL
Marine -------------------------------- (in km)
Foundation type Modeled maximum impact hammer mammal -------------------------------
energy (kJ) group R95% (summer) R95% (winter) R95% (summer) R95% (winter)
--------------------------------------------------------------------------------------------------------------------------------------------------------
WTG--9.6-m monopile........................ 2,300 kJ (5,500 kJ)........... LF -\b\ (-\b\) -\b\ (-\b\) 3.51 \g\ (5.05 3.77 \g\ (5.49
\j\) \j\)
[[Page 11379]]
MF -\b\ (-\b\) -\b\ (-\b\)
HF 0.1 \c\ (0.15 0.11 \c\ (0.17
\d\) \d\)
PW -\b\ (-\b\) -\b\ (-\b\)
WTG--11-m monopiles........................ 2,500 kJ...................... LF -\b\ -\b\ \h\ 3.64 \h\ 3.92
MF -\b\ -\b\
HF \e\ 0.11 \e\ 0.12
PW -\b\ -\b\
OSS--2.5-m pin pile \a\.................... 3,200 kJ...................... LF -\b\ -\b\ \i\ 1.19 \i\ 1.17
MF -\b\ -\b\
HF \f\ 0.01 \f\ 0.01
PW -\b\ -\b\
--------------------------------------------------------------------------------------------------------------------------------------------------------
LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Assumes a 2-dB post-piling shift.
\b\ A dash (-) indicates that the threshold was not exceeded.
\c\ Found in table H-11 in K[uuml]sel et al., 2022 (appendix H).
\d\ Found in table H-47 in K[uuml]sel et al., 2022 (appendix H).
\e\ Found in table H-31 in K[uuml]sel et al., 2022 (appendix H).
\f\ Found in table H-51 in K[uuml]sel et al., 2022 (appendix H).
\g\ Found in table H-343 in K[uuml]sel et al., 2022 (appendix H).
\h\ Found in table H-439 in K[uuml]sel et al., 2022 (appendix H).
\i\ Found in table H-495 in K[uuml]sel et al., 2022 (appendix H).
\j\ Found in table H-479 in K[uuml]sel et al., 2022 (appendix H).
To conservatively estimate the number of animals likely to be
exposed above thresholds, Empire Wind assumed that a maximum of 24
monopiles could be installed per month, with a maximum of 96 WTG
monopiles and two OSS foundations installed in the first year of pile
driving (2025) and the remaining 51 WTG monopile foundations installed
in year 2 of pile driving (2026). In year 1 of pile driving, Empire
Wind assumed that 24 monopiles would be installed in the four highest-
density months for each species during the May to December period, and
that the two OSSs would be installed in the highest and second-highest-
density months. Empire Wind also assumed that all 17 difficult-to-drive
piles would be installed in the first year, but that the distribution
would be spread relatively evenly among the four highest months (i.e.,
four piles per month except the highest-density month which assumed 5
difficult-to-drive piles, for a total of 17 piles). In the second year,
24 monopiles would be installed in the two highest-density months and
the remaining 3 monopiles would be installed in the third-highest-
density month. This approach is reflected in table 21. Thus, each
species was presumed to be exposed to the maximum amount of pile
driving based on their monthly densities.
Table 21--Most Conservative Construction Schedule for Estimating Level B Harassment
[One monopile per day/two pin piles per day] \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1 Year 2
-------------------------------------------------------------------------------------------------------
Days of impact pile driving Days of impact pile driving
Foundation type -------------------------------------------------------------------------------------------------------
1st highest 2nd highest 3rd highest 4th highest 1st highest 2nd highest 3rd highest 4th highest
density density density density density density density density
month month month month month month month month
--------------------------------------------------------------------------------------------------------------------------------------------------------
WTG monopile--typical........................... 19 20 20 20 24 24 3 0
WTG monopile--difficult......................... 5 4 4 4 0 0 0 0
OSS 1 pin pile.................................. 0 6 0 0 0 0 0 0
OSS 2 pin pile.................................. 6 0 0 0 0 0 0 0
-------------------------------------------------------------------------------------------------------
Total # of piles............................ 30 30 24 24 24 24 3 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Maximum number of piles to be driven per month for each foundation type in each of the four highest-density months for each species during the May
to December period.
In summary, exposures were estimated as follows:
(1) The characteristics of the sound output from the proposed pile-
driving activities were modeled using the GRLWEAP (i.e., wave equation
analysis of pile driving) model and JASCO's PDSM;
(2) Acoustic propagation modeling was performed within the exposure
model framework using JASCO's MONM and FWRAM that combined the
[[Page 11380]]
outputs of the source model with the spatial and temporal environmental
context (e.g., location, oceanographic conditions, seabed type) to
estimate sound fields;
(3) Animal movement modeling integrated the estimated sound fields
with species-typical behavioral parameters in the JASMINE model to
estimate received sound levels for the animals that may occur in the
operational area; and
(4) The number of potential exposures above Level A Harassment and
Level B harassment thresholds were calculated.
Empire Wind modeled all possible construction scenarios (see
K[uuml]sel et al., 2022). Construction Schedule 1, consisting of one
monopile and two pin piles per day, was determined to be the most
conservative due to the highest modeled exposure estimates for ESA-
listed species (i.e., fin and sei whales), and was carried forward to
the take analysis. The results of marine mammal exposure modeling for
each year of pile driving (2025, 2026) based upon Construction Schedule
1 are shown in tables 22 and 23 below. These values were presented by
Empire Wind after the habitat-based density models were updated; please
see the ``Revised Density and Take Estimate Memo'' available at:
https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1.
Based on the exposure estimates for impact-pile-driving activities
related to WTGs and OSS installation (monopile foundations and jacket
foundations with pin piles), the authorized take is shown below in
tables 22 and 23. To determine the authorized take numbers, the
calculated exposures were rounded to the next whole number if the
calculated exposure was greater than 0.5 animals. Where the calculated
take was less than 0.5 animals, the proposed take was reduced to zero.
A review of Empire Wind's PSO sightings data ranging from 2018 to
2021 for the Project Area indicated that exposure estimates based on
the exposure modeling methodology above were likely an underestimate
for humpback whales, fin whales, and pilot whales (A.I.S. Inc., 2019;
Alpine Ocean Seismic Survey, 2018; Gardline, 2021a, 2021b; Geoquip
Marine, 2021; Marine Ventures International, 2021; RPS, 2021; Smultea
Environmental Sciences, 2019, 2020, 2021). For these species, the
highest daily averages per day were multiplied by the maximum potential
number of days of pile driving associated with wind turbine and OSS
foundation installation. In the event that one monopile or one pin pile
is installed per day, up to 120 days of pile driving (i.e., 96 days of
monopile installation and 24 days of pin pile installation) could occur
in 2025, and up to 51 days of pile driving (i.e., 51 days of monopile
installation) could occur in 2026.
For certain species for which the exposure modeling methodology
described previously above may result in potential underestimates of
take, and for which Empire Wind's PSO sightings data were relatively
low, adjustments to the authorized take were made based on the best
available information on marine mammal group sizes to ensure
conservatism. For species considered rare with the potential to occur
in the Project Area, authorized take by Level B harassment was adjusted
to one group size per year. NMFS concurs with this assessment and has
authorized take by Level B harassment of 3 sperm whales per year in
2026 and 2026 (Barkaszi et al., 2012); 45 Atlantic spotted dolphins per
year in 2025 and 2026 (Kenney and Vigness-Raposa, 2010); and 100
Risso's dolphins per year in 2025 and 2026 (100 individuals; Jefferson
et al., 2015).
For species considered relatively common in the Project Area,
authorized take by Level B harassment was adjusted to one group size
per month. These include Atlantic white-sided dolphins (52 individuals,
Jefferson et al., 2015) and North Atlantic right whales. The group size
determination for North Atlantic right whales was derived based on
consultation with NOAA Fisheries. A group size of one animal was used
for months with mean monthly densities less than 0.01, while a group
size of two animals, reflective of the potential for a mother and calf,
was used for months with mean monthly densities greater than 0.01
(based on the Roberts et al. (2023) predictive densities). For the
months when pile-driving activities may occur (May through December),
those criteria result in a group size of one animal for the months of
June through October, and two animals for the months of May, November,
and December. This group size determination is intended to account for
the potential presence of mother-calf pairs. Therefore, Empire Wind
requested and NMFS has authorized 11 takes of North Atlantic right
whale by Level B harassment per year in 2025 and 2026 and 416 takes of
Atlantic white-sided dolphin by Level B harassment per year in 2025 and
2026.
Common dolphins and bottlenose dolphins are considered common in
the Project Area as well. For these species, authorized take by Level B
harassment was adjusted to one group size per day. These include common
dolphins (30 individuals, Reeves et al., 2002), and bottlenose dolphins
(15 individuals, Jefferson et al., 2015). Empire Wind has requested,
and NMFS has authorized, 3,600 and 1,530 takes of common dolphins by
Level B harassment per year in 2025 and 2026. Empire Wind has also
requested, and NMFS has authorized, 1,800 and 765 takes of bottlenose
dolphins by Level B harassment per year in 2025 and 2026, respectively.
Table 22--Calculated Exposures and Authorized Take From Level A Harassment and Level B Harassment Resulting From Monopile and OSS Jacket Foundation
Impact Pile Driving Installation
[Year 2]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calculated exposures Calculated Authorized Authorized
-------------------------------- exposures take take
Level A harassment -----------------------------------------------
Hearing group Species -------------------------------- Level B
harassment Level A Level B
LE LpK ---------------- harassment harassment
Lp
--------------------------------------------------------------------------------------------------------------------------------------------------------
LF........................................ Fin \a\..................... 1.15 0 8.78 \b\ 4 \c\ 133
Humpback.................... 0.36 <0.01 8.12 0 \c\ 60
Minke....................... 3.72 0 65.05 4 65
North Atlantic Right Whale 0.1 0 2.36 0 \f\ 11
\a\.
Sei \a\..................... 0.27 <0.01 2.78 0 3
MF........................................ Atlantic white-sided dolphin 0 0 116.00 0 \f\ 416
Atlantic spotted dolphin.... 0 0 0 0 \d\ 45
[[Page 11381]]
Common dolphin.............. 0 0 902.19 0 \d\ 3,600
Bottlenose dolphin.......... 0 0 226.02 0 \d\ 1,800
Risso's dolphin............. 0 0 5.96 0 \d\ 100
Pilot whales................ 0 0 0 0 \c\ 161
Sperm whale \a\............. 0 0 0.56 0 \d\ 3
HF........................................ Harbor porpoise............. 0 0.09 133.70 0 134
PW........................................ Gray seal \g\............... 0.18 0 179.34 0 179
Harbor seal \g\............. 0 0 339.96 0 340
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Listed as Endangered under the ESA.
\b\ Based upon the average group size of fin whales in the Project Area (1.25 whales; Palka et al., 2021), NMFS has increased estimated take by Level A
harassment to four fin whales (two groups) from one whale in 2025 and two fin whales (one group) from one whale in 2026.
\c\ Requested take adjusted based on PSO sighting data from 2018 to 2021 (A.I.S., 2019; Alpine Ocean Seismic Survey, 2018; Gardline, 2021a, 2021b;
Geoquip Marine, 2021; Marine Ventures International, 2021; RPS, 2021; Smultea Environmental Sciences, 2019, 2020, 2021); 0.5 humpback whales per day,
1.11 fin whales per day, 1.34 pilot whales per day.
\d\ Requested take adjusted based on 1 group size per year as follows: 3 sperm whales (Barkaszi et al., 2012), 45 Atlantic spotted dolphins (Kenney and
Vigness-Raposa, 2010), and 100 Risso's dolphins (Jefferson et al., 2015).
\e\ Requested take adjusted by 1 group size per day as follows: 30 short-beaked common dolphins (Reeves et al., 2002), 15 bottlenose dolphins (Jefferson
et al., 2015).
\f\ Requested take adjusted by 1 group size per month of 52 Atlantic white-sided dolphins (Jefferson et al., 2015) and 1 (monthly density <0.01) or 2
(monthly density >0.01) of North Atlantic right whales (Roberts and Halpin, 2022).
\g\ Gray seal and harbor seal exposure estimates and take have been updated since the proposed rule based upon updated methodology.
Table 23--Calculated Exposures and Authorized Take From Level A Harassment and Level B Harassment Resulting From Monopile and OSS Jacket Foundation
Impact Pile Driving Installation
[Year 3]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calculated exposures Calculated Authorized Authorized
-------------------------------- exposures take take
Level A harassment -----------------------------------------------
Hearing group Species -------------------------------- Level B
harassment Level A Level B
LE LpK ---------------- harassment harassment
Lp
--------------------------------------------------------------------------------------------------------------------------------------------------------
LF........................................ Fin whale \a\............... 0.52 0 4 \c\ 2 \d\ 57
Humpback whale.............. 0.14 0 3.82 0 \d\ 26
Minke whale................. 2.18 0 47.73 2 48
North Atlantic Right whale 0.05 0 1.57 \b\ 0 \g\ 11
\a\.
Sei whale \a\............... 0.16 0 1.66 0 2
MF........................................ Atlantic white-sided dolphin 0 0 59.23 0 \g\ 416
Atlantic spotted dolphin.... 0 0 0 0 \e\ 45
Common dolphin.............. 0 0 560.75 0 \f\ 1,530
Bottlenose dolphin.......... 0 0 110.28 0 \f\ 765
Risso's dolphin............. 0 0 4.09 0 \e\ 100
Pilot whales................ 0 0 0 0 \d\68
Sperm whale \a\............. 0 0 0.29 0 \e\ 3
HF........................................ Harbor porpoise............. 0 0 98.43 0 98
PW........................................ Gray seal \h\............... 0 0 123.58 0 124
Harbor seal \h\............. 0 0 219.26 0 219
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Listed as Endangered under the ESA.
\b\ JASCO's modeling estimated 0.01 Level A harassment exposures for North Atlantic right whales in 2025 and 0.05 Level A harassment exposures for North
Atlantic right whales in 2026, but due to mitigation measures (see the Mitigation section), no Level A harassment takes are expected or authorized.
\c\ Based upon the average group size of fin whales in the Project Area (1.25 whales; Palka et al., 2021), NMFS has increased estimated take by Level A
harassment to two fin whales (one group) from one whale in 2026.
\d\ Authorized take adjusted based on PSO sighting data from 2018 to 2021 (A.I.S., 2019; Alpine Ocean Seismic Survey, 2018; Gardline, 2021a, 2021b;
Geoquip Marine, 2021; Marine Ventures International, 2021; RPS, 2021; Smultea Environmental Sciences, 2019, 2020, 2021); 0.5 humpback whales per day,
1.11 fin whales per day, 1.34 pilot whales per day.
\e\ Authorized take adjusted based on 1 group size per year as follows: 3 sperm whales (Barkaszi et al., 2012), 45 Atlantic spotted dolphins (Kenney and
Vigness-Raposa, 2010), and 100 Risso's dolphins (Jefferson et al., 2015).
\f\ Authorized take adjusted by 1 group size per day as follows: 30 common dolphins (Reeves et al., 2002), 15 bottlenose dolphins (Jefferson et al.,
2015).
\g\ Authorized take adjusted by 1 group size per month of 52 Atlantic white-sided dolphins (Jefferson et al., 2015) and 1 (when monthly density <0.01)
or 2 (when monthly density >0.01) of North Atlantic right whales (Roberts et al., 2023).
[[Page 11382]]
\h\ Gray seal and harbor seal exposure estimates and take have been updated since the proposed rule based upon updated methodology.
Temporary Cofferdam and/or Goal Post Installation and Removal
(Vibratory Pile Driving) Take Estimates
As many as two temporary cofferdams may be installed for Empire
Wind 1 and as many as three temporary cofferdams may be installed for
Empire Wind 2. For vibratory pile driving of cofferdams, Empire Wind
estimated source levels and frequency spectra assuming a 1,800-
kilonewton (kN) vibratory force. Modeling was accomplished using
adjusted one-third-octave band vibratory pile driving source levels
cited for similar vibratory pile-driving activities conducted during
cofferdam installation for the Block Island Wind Farm (Tetra Tech,
2012; Schultz-von Glahn et al., 2006). The assumed sound source level
for vibratory pile driving corresponded to 195 dB SEL re 1 [micro]Pa
and 195 dB rms at 10 m (Schultz-von Glahn et al., 2006). The frequency
distribution of the vibratory pile driving sound source is displayed in
figure 5 in K[uuml]sel et al. (2022). A transmission loss coefficient
of 15logR (cylindrical spreading) was assumed for both cofferdams and
goal posts. The anticipated duration is 1 hour of active pile driving
per day.
Underwater sound propagation modeling for cofferdam installation
was completed using dBSea, a software for the prediction of underwater
noise in a variety of environments. The 3D model is built by importing
bathymetry data and placing noise sources in the environment. Each
source can consist of equipment chosen from either the standard or
user-defined databases. Noise mitigation methods may also be included.
The user has control over the seabed and water properties including
sound speed profile (SSP), temperature, salinity, and current.
The dBSeaPE solver uses the PE method. For high frequencies, the
dBSeaRay ray tracing solver is used, which 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. The underwater acoustic modeling analysis used a
split solver, with a specific, parabolic equation model (i.e., dBSeaPE)
evaluating the 12.5 Hz to 800 Hz and dBSeaRay addressing 1,000 to
20,000 Hz.
Given the short duration of the activity and shallow, near coast
location, animat exposure modeling was not conducted for cofferdams and
goal posts installation and removal to determine potential exposures
from pile driving. Rather, the modeled acoustic range distances to
isopleths corresponding to the relatively small Level A harassment and
Level B harassment threshold values were used to calculate the area
(i.e., the Ensonified Area) around the cofferdams and goal posts
predicted to be ensonified daily to levels that exceed the thresholds.
The Ensonified Area is calculated as the following:
Ensonified Area = [pi]r2,
where r is the linear acoustic range distance from the source to the
isopleth to Level A harassment or Level B harassment thresholds.
Resulting distances to NMFS harassment isopleths for cofferdam
installation and ensonified areas for Level B harassment isopleths are
provided in table 24 (note that very shallow water depths (3-4 m) at
the cofferdam pile driving site is responsible for the limited acoustic
propagation of vibratory driving noise).
Table 24--Distances (Meters) to the Level A and Level B Harassment Threshold Isopleths for Vibratory Pile Driving for Cofferdams and Estimated Area of
Level B Harassment Zone
--------------------------------------------------------------------------------------------------------------------------------------------------------
PTS onset by hearing group (m) Behavioral
---------------------------------------------------------------- harassment Area within
LF MF HF PW ---------------- estimated
Location ---------------------------------------------------------------- ALL Level B
199 LE, 24 hr 198 LE, 24 hr 173 LE, 24 hr 201 LE, 24 hr ---------------- harassment
120 SPL RMS zone (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Empire Wind 1........................................... 122 0 44 62 1,985 2.679
Empire Wind 2........................................... 13 0 12 11 1,535 1.672
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
Installation of goal posts would be done using a traditional impact
hammer. The casing pipe may be installed using a pneumatic hammer;
hence, the number of strikes would be considered high. Empire Wind
estimated distances to Level A harassment and Level B harassment
thresholds using the NMFS' Multi-Species Calculator Tool (NMFS, 2018)
and parameter inputs are shown in table 25 below. Modeling for impact
driving of goal posts assumed a single strike SEL of 174 dB. Empire
Wind did not propose to employ any noise mitigation during impact pile
driving of goal posts or vibratory driving for cofferdams. NMFS does
not require noise mitigation in the Mitigation section; therefore, no
abatement is applied or assumed. The resulting distances to NMFS
thresholds for casing pipe and goal post installation are provided in
table 26.
Table 25--Estimated Source Levels (at 10 m) and Installation Rates for Casing Pipe and Goal Post Installation
----------------------------------------------------------------------------------------------------------------
#strikes per
Structure dB SEL dB rms pile Piles per day Transmission loss
----------------------------------------------------------------------------------------------------------------
Casing pipe................. 166 182 43,200 1 15 log.
Goal Posts.................. 174 184 2,000 2
----------------------------------------------------------------------------------------------------------------
[[Page 11383]]
Table 26--Distances (Meters) to the Level A and Level B Harassment Threshold Isopleths for Casing Pipe and Goal Post Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
PTS onset by hearing group (m)
---------------------------------------------------------------------------------------- Behavioral
Scenario LF MF HF PW harassment SPL
---------------------------------------------------------------------------------------- (m)
peak SEL peak SEL peak SEL peak SEL
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pile............................................ 219 183 230 185 202 155 218 185 160
42-inch casing pipe............................. 0.3 904.5 0.1 32.2 4.6 1,077.4 0.4 484 293
12-inch steel goal post......................... 0 632.1 0 22.5 7.4 752.9 0 338.3 398.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
As described above, either cofferdams or goal post and casing pipe
installation may occur as part of cable landfall activities, but not
both. For goal post installation, 2 hours per goal post (2 piles), for
3 goal posts (6 piles) per HDD, for a total of 18 piles and 36 total
hours of pile driving are anticipated. For cofferdams, there is 1 hour
per day for 6 days (installation and removal) per cofferdam for a total
of 18 hours pile driving anticipated. While modeled distances to the
Level A harassment threshold for goal post pile driving were larger
than for cofferdam vibratory driving based on the SELcum
metric, it should be noted that modeled distances based on the
SELcum metric are based on the assumption that an individual
animal remains at that distance for the entire duration of pile driving
in order to incur PTS. This is not considered realistic as marine
mammals are highly mobile. As modeled distances to the Level B
harassment threshold and zones of influence for Level B harassment were
orders of magnitude larger for cofferdam vibratory driving compared to
goal post pile driving (compare tables 24 and 26), the amount of take
resulting from cofferdam vibratory driving activities were determined
to be greater than that of the alternative goal post and casing pipe
scenario. Therefore, to be conservative the cofferdam scenario was
carried forward for the analysis of potential takes by harassment from
cable landfall activities. As such, goal post pile driving is not
analyzed further.
Animal movement and exposure modeling was not performed by JASCO to
determine potential exposures from vibratory pile driving. Rather,
Empire Wind considered the ensonified areas and density estimates to
calculate potential exposures (table 28). Empire Wind overlaid the
Robert et al. (2023) densities on the modeled Level B harassment zones
to estimate exposures. The maximum monthly densities for each marine
mammal species were averaged by season (table 27; Roberts et al.,
2023): spring (March through May), summer (June through August), fall
(September through November), and winter (December through February).
To be conservative, the maximum average seasonal density for each
species was then carried forward in the take calculations. As the noise
from cofferdam installation would not extend beyond the 20-m isobath
where the coastal bottlenose dolphin stock predominates, it is expected
that only the coastal stock of bottlenose dolphins is likely to be
taken by this activity.
Table 27--Average Seasonal Marine Mammal Densities (Animals per 100 km\2\) for Vibratory Pile Driving of Empire
Wind's Cofferdam Installation and Removal
----------------------------------------------------------------------------------------------------------------
Empire Wind 1 cofferdams (2024) and Empire
Marine mammal species Wind 2 cofferdams (2024-2025) average
seasonal density
----------------------------------------------------------------------------------------------------------------
Fin whale \a\....................................................... 0.097
Humpback whale...................................................... 0.099
Minke whale......................................................... 0.526
North Atlantic right whale \a\...................................... 0.073
Sei whale \a\....................................................... 0.03
Sperm whale \a\..................................................... 0.006
Atlantic spotted dolphin............................................ 0.058
Atlantic white-sided dolphin........................................ 0.469
Bottlenose dolphin (coastal stock) \b\.............................. 6.299
Common dolphin...................................................... 2.837
Pilot whale spp.\c\................................................. 0.019
Risso's dolphin..................................................... 0.034
Harbor porpoise..................................................... 3.177
Gray seal \d\....................................................... 13.673
Harbor seal \d\..................................................... 13.673
----------------------------------------------------------------------------------------------------------------
\a\ Species listed under the ESA.
\b\ Bottlenose dolphin density values from Duke University (Roberts et al., 2023) reported as ``bottlenose'' and
not identified to stock. Given the noise from cofferdam installation would not extend beyond the 20 m isobath,
where the coastal stock predominates, it is expected that all estimated takes by Level B harassment of
bottlenose dolphins from cofferdam installation will accrue to the coastal stock.
\c\ Pilot whale density values from Duke University (Roberts et al., 2023) reported as ``Globicephala spp.'' and
not species-specific.
\d\ Pinniped density values from Duke University (Roberts et al., 2022) are reported as ``seals'' and are not
species-specific.
Estimates of take are computed according to the following formula
as provided by NOAA Fisheries (Personal Communication, November 24,
2015):
Estimated Take = D x ZOI x d,
where:
D = average highest seasonal species density (number per km\2\)
[[Page 11384]]
ZOI = maximum ensonified area to MMPA threshold for impulsive noise
(160 dB RMS 90 percent re 1 [mu]Pa)
d = number of days
The area ensonified to the Level B harassment threshold, as well as
the projected duration of cofferdam installation and removal at each
respective vibratory pile driving location, was then used to produce
the results of take calculations provided in table 28. As previously
stated, Empire Wind anticipates that cofferdam or casing pipe or goal
post installation and removal would occur during years 1 and 2 (2024-
2025; refer to table 1). It is expected to take 3 days to install and 3
days to remove each cofferdam. Therefore, 6 days of vibratory pile
driving/removal at each location were included. It should be noted that
calculations do not take into account whether a single animal is
harassed multiple times or whether each exposure is a different animal.
Therefore, the numbers in table 28 represent the predicted number of
exposures above the Level B harassment threshold using the methods and
assumptions described above.
Table 28--Estimated Level B Harassment Exposures From Vibratory Pile Installation and Removal Related to
Cofferdams
----------------------------------------------------------------------------------------------------------------
Estimated Level B harassment
exposures Total estimated
-------------------------------------- Level B
Species Empire Wind 2 harassment
Empire Wind 1 cofferdams (2024- exposures
cofferdams (2024) 2025)
----------------------------------------------------------------------------------------------------------------
Fin Whale.............................................. 0.03 0.03 0.06
Humpback Whale......................................... 0.03 0.03 0.06
Minke Whale............................................ 0.17 0.16 0.33
North Atlantic Right Whale............................. 0.02 0.02 0.04
Sei Whale.............................................. 0.01 0.01 0.02
Sperm Whale............................................ 0 0 0
Bottlenose dolphin (Western N.A. Northern Migratory 2.03 1.9 3.93
Coastal Stock) \a\....................................
Atlantic Spotted Dolphin............................... 0.02 0.02 0.04
Common dolphin......................................... 0.91 0.85 1.76
Atlantic White-sided Dolphin........................... 0.15 0.14 0.29
Risso's dolphin........................................ 0.01 0.01 0.02
Pilot whales spp. \b\.................................. 0.01 0.01 0.02
Harbor porpoise........................................ 1.02 0.96 1.98
Harbor seal \c\........................................ 2.2 2.06 4.26
Gray seal \c\.......................................... 2.2 2.06 4.26
----------------------------------------------------------------------------------------------------------------
\a\ Bottlenose dolphin density values from Duke University (Roberts et al., 2023) reported as ``bottlenose'' and
not identified to stock. Given the noise from cofferdam installation would not extend beyond the 20 m isobath,
where the coastal stock predominates, it is expected that all estimated takes by Level B harassment of
bottlenose dolphins from cofferdam installation will accrue to the coastal stock.
\b\ Pilot whale density values from Duke University (Roberts et al., 2022) reported as ``Globicephala spp.'' and
not species-specific.
\c\ Pinniped density values from Duke University (Roberts et al., 2023) are reported as ``seals'' and are not
species-specific, therefore, 50 percent of estimated exposures are expected to accrue to harbor seals and 50
percent to gray seals.
For some species, group size data demonstrate that the density-
based exposure calculations underestimate the potential for take.
Hence, the amount of authorized take varies from exposure estimates
(table 29). As the density models do not account for group size and the
resulting calculated exposures were very small, the predicted take was
increased to account for the exposure of one average-sized group per
day each of bottlenose and common dolphins. Due to the presence of
several seal haul outs in the cable landfall area, the Roberts et al.
(2023), density-based exposure estimates may underestimate potential
seal occurrence, and 10 takes of seals by Level B harassment per day
over the course of 9 days were estimated. Table 29 includes the maximum
number of takes that are reasonably likely to occur during vibratory
pile driving.
Table 29--Authorized Level B Harassment Take Resulting From Vibratory Pile Driving Associated With the
Installation and Removal of Temporary Cofferdams Over 2 Years
----------------------------------------------------------------------------------------------------------------
Authorized take by Level B harassment
--------------------------------------------------------
Species Empire Wind 2
Empire Wind 1 cofferdams (2024- Total authorized
cofferdams (2024) 2025) take
----------------------------------------------------------------------------------------------------------------
Fin Whale.............................................. 0 0 0
Humpback Whale......................................... 0 0 0
Minke Whale............................................ 0 0 0
North Atlantic Right Whale............................. 0 0 0
Sei Whale.............................................. 0 0 0
Sperm Whale............................................ 0 0 0
Bottlenose dolphin (Western N.A. Northern Migratory 180 270 450
Coastal Stock) \a\....................................
Atlantic Spotted Dolphin............................... 0 0 0
Common dolphin \b\..................................... 360 540 900
Atlantic White-sided Dolphin........................... 0 0 0
Risso's dolphin........................................ 0 0 0
Pilot whales spp.\c\................................... 0 0 0
[[Page 11385]]
Harbor porpoise........................................ 1 1 2
Harbor seal \d\........................................ 60 90 150
Gray seal \d\.......................................... 60 90 150
----------------------------------------------------------------------------------------------------------------
\a\ Bottlenose dolphin authorized take was adjusted to account for one group size, 15 individual bottlenose
dolphins (Jefferson et al., 2015) per day (18 days).
\b\ Common dolphin authorized take was adjusted to account for one group size, 30 individual common dolphins
(Reeves et al., 2002) per day (18 days).
\c\ Pilot whale density values (Roberts et al., 2023) reported as ``Globicephala spp.'' and not species-
specific.
\d\ Pinniped density values (Roberts et al., 2023) reported as ``seals'' and not species-specific, therefore, 50
percent of expected takes by Level B harassment are expected to accrue to harbor seals and 50 percent to gray
seals. Due to the presence of several seal haul outs in the area, authorized level B harassment seal takes
were calculated by estimating 10 individuals per day (9 days) (Woo and Biolsi, 2018), divided evenly between
harbor seals and gray seals.
\e\ Data was not available for harp seals for which take was authorized.
Marina Activities
Pile driving at the onshore substation C constitutes a small amount
of work. Empire Wind assumed source levels during pile driving sheet
piles at onshore substation C would be similar to that during
installation of the cofferdams for cable landfall construction. Since
densities are not available for the specific inshore region where the
activity will occur, potential take by harassment for marine mammals
using density could not be calculated. Instead, to be conservative, 10
takes by Level B harassment of seals per day (49 days) were estimated
based on pinniped observations in New York City between 2011 and 2017
(Woo and Biolsi, 2018), which were split evenly between harbor and gray
seals (table 6). Similarly, the authorized take of bottlenose dolphins
was adjusted to account for one group size of 15 individuals (Jefferson
et al., 2015) per day for 49 days.
Table 30--Distances (Meters) to the Level A and Level B Harassment Threshold Isopleth Distances for Vibratory
Driving at Onshore Substation C Location Marina
----------------------------------------------------------------------------------------------------------------
PTS onset by hearing group (Level A harassment) Behavioral
---------------------------------------------------------------- response
LF MF HF PW (Level B
---------------------------------------------------------------- harassment)
Location ---------------
199 LE, 24hr 199 LE, 24hr 199 LE, 24hr 199 LE, 24hr All
---------------
120 SPL RMS
----------------------------------------------------------------------------------------------------------------
Marina Bulkhead Work (Sheet pile 43.2 3.8 63.8 26.2 1,000
installation)..................
Marina Berthing Pile Removal.... 43.5 3.9 64.3 26.5 1,600
----------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds
in water.
Table 31--Authorized Takes by Level B Harassment From Marina Pile Driving
----------------------------------------------------------------------------------------------------------------
Marina work (2024)
Species -------------------------------------------
Authorized take by Level B harassment
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin (Western N.A. Northern Migratory Coastal Stock) 735
\a\................................................................
Harbor seal \b\..................................................... 245
Gray seal \b\....................................................... 245
----------------------------------------------------------------------------------------------------------------
\a\ Given the noise from cofferdam installation would not extend beyond the 20 m isobath, where the coastal
stock predominates, it is expected that all estimated takes by Level B harassment of bottlenose dolphins from
cofferdam installation will accrue to the coastal stock. The authorized take was adjusted to account for one
group size, 15 individuals (Jefferson et al., 2015) per day of bottlenose.
\b\ Pinniped density values from Duke University (Roberts et al., 2023) are reported as ``seals'' and are not
species-specific, therefore, 50 percent of expected takes by Level B harassment are expected to accrue to
harbor seals and 50 percent to gray seals.
HRG Surveys
Empire Wind's planned HRG survey activity includes the use of non-
impulsive sources (i.e., CHIRP sub bottom profiler (SBP)) that have the
potential to harass marine mammals. Of the list of equipment described
in table 2 of the proposed rule (88 FR 22696, April 13, 2023), Ultra-
Short BaseLine (USBL), multibeam echosounder (MBES), side scan sonar
(SSS), and the Innomar SBP were removed from further analysis due to
either the extremely low likelihood of the equipment resulting in
marine mammal harassment (i.e., USBL, MBES, select SSS) or due to
negligible calculated isopleth distances corresponding to the Level B
harassment threshold (<2 m) (i.e., select SSS and Innomar SBP). No
boomers or sparkers will be used.
Authorized takes will be by Level B harassment only in the form of
disruption of behavioral patterns for
[[Page 11386]]
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. Therefore, the potential for Level A harassment is not
evaluated further in this document. Empire Wind did not request, and
NMFS has not authorized, take by Level A harassment incidental to HRG
surveys. 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. Empire Wind 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.
The isopleth distances corresponding to the Level B harassment
threshold for each type of HRG equipment with the potential to result
in harassment of marine mammals were calculated per ``NOAA Fisheries'
Interim Recommendation for Sound Source Level and Propagation Analysis
for High Resolution Geophysical Sources.'' The distances to the 160-dB
RMS re 1 [mu]Pa isopleth for Level B harassment are presented in table
32. Please refer to section 6.3.2 of the LOA application for a full
description of the methodology and formulas used to calculate distances
to the Level B harassment threshold.
Table 32--Isopleth Distances in Meters (m) Corresponding to Level B Harassment Threshold for HRG Equipment
----------------------------------------------------------------------------------------------------------------
Source level (SLRMS) Lateral distance (m) to
HRG survey equipment (dB re 1[mu]Pa) Level B harassment
threshold
----------------------------------------------------------------------------------------------------------------
Edgetech DW106................................................ 194 50
Edgetech 424.................................................. 180 8.75
Teledyne Benthos Chirp III--TTV 170........................... 219 50.05
----------------------------------------------------------------------------------------------------------------
The survey activities that have the potential to result in Level B
harassment (160 dBRMS90 re 1 [micro]Pa) include the
noise produced by various non-parametric sub-bottom profilers (table
32), of which the Teledyne Benthos Chirp III results in the greatest
calculated distance to the Level B harassment criteria at 50.05 m (164
ft). Therefore, to be conservative, Empire Wind has applied the
estimated distance of 50.05 m (164 ft) to the 160
dBRMS90 re 1 [mu]Pa Level B harassment criteria as
the basis for determining potential take from all HRG sources.
The basis for the take estimate is the number of marine mammals
that would be exposed to sound levels in excess of the Level B
harassment threshold (160 dB). Typically, this is determined by
estimating an ensonified area for the activity, by calculating the area
associated with the isopleth distance corresponding to the Level B
harassment threshold. This area is then multiplied by marine mammal
density estimates in the Project Area and then corrected for seasonal
use by marine mammals, seasonal duration of Project-specific noise-
generating activities, and estimated duration of individual activities
when the maximum noise-generating activities are intermittent or
occasional.
The estimated distance of the daily vessel track line was
determined using the estimated average speed of the vessel and the 24-
hour operational period within each of the corresponding survey
segments. All noise-producing survey equipment is assumed to be
operated concurrently. Using the distance of 50.05 m (164 ft) to the
160 dBRMS90 re 1 [mu]Pa Level B harassment isopleth
(table 32), the estimated daily vessel track of approximately 177.792
km (110.475 mi) for 24-hour operations, inclusive of an additional
circular area to account for radial distance at the start and end of a
24-hour cycle, estimates of the total area ensonified to the Level B
harassment threshold per day of HRG surveys were calculated (table 33).
Table 33--Estimated Number of Survey Days, Estimated Survey Distance per Day, and Estimated Daily Ensonified
Area for HRG Surveys, From 2024 Through 2029
----------------------------------------------------------------------------------------------------------------
Calculated daily
Survey segment Number of active Estimated distance ensonified area
survey vessel days per day (km) (km\2\)
----------------------------------------------------------------------------------------------------------------
2024 Survey Effort.............................. 41 177.792 17.805
2025 Survey Effort.............................. 191
2026 Survey Effort.............................. 150
2027 Survey Effort.............................. 100
2028 to January 2029 Survey Effort.............. 100
----------------------------------------------------------------------------------------------------------------
As described in the LOA application, density data were mapped
within the boundary of the Project Area (figure 1 in the LOA
application) using geographic information systems; these data were
updated based on the revised data from Roberts et al. (2023) (table 6).
Maximum monthly densities as reported by Roberts et al. (2023) were
averaged by season over the survey duration, for winter (December
through February), spring (March through May), summer (June through
August), and fall (September through November), for the entire HRG
Project Area. To be
[[Page 11387]]
conservative, the maximum average seasonal density within the HRG
survey schedule for each species (table 7), was then carried forward in
the take calculations to generate exposure estimates (table 34).
Table 34--Calculated Annual Maximum Level B Harassment Exposures of Marine Mammals Resulting from Annual Days of
HRG Surveys
----------------------------------------------------------------------------------------------------------------
2024-- 2025-- 2026-- 2027-- 2028 to January
Species Calculated Calculated Calculated Calculated 2029--calculated
exposures exposures exposures exposures exposures
----------------------------------------------------------------------------------------------------------------
Fin Whale................................ 0.707 3.295 2.588 1.725 1.725
Humpback Whale........................... 0.722 3.363 2.641 1.761 1.761
Minke Whale.............................. 3.836 17.87 14.034 9.356 9.356
North Atlantic Right Whale............... 0.532 2.48 1.948 1.298 1.298
Sei Whale................................ 0.219 1.019 0.8 0.534 0.534
Sperm Whale.............................. 0.044 0.204 0.16 0.107 0.107
Pilot whales spp......................... 0.139 0.645 0.507 0.338 0.338
Bottlenose dolphin \a\................... 45.937 213.997 168.06 112.04 112.04
Atlantic White-sided Dolphin............. 3.42 15.933 12.513 8.342 8.342
Common dolphin........................... 20.689 96.382 75.693 50.462 50.462
Atlantic Spotted Dolphin................. 0.423 1.97 1.547 1.032 1.032
Risso's dolphin.......................... 0.255 1.189 0.934 0.623 0.623
Harbor porpoise.......................... 23.169 107.933 84.764 56.509 56.509
Harbor seal \b\.......................... 48.857 232.258 182.401 121.601 121.601
Gray seal \b\............................ 48.857 232.258 182.401 121.601 121.601
----------------------------------------------------------------------------------------------------------------
\a\ Estimated take is not distinguished between bottlenose dolphin coastal and offshore stocks as degree of
survey effort cannot be differentiated in relation to the 20-m isobath.
\b\ Pinniped density values from Duke University (Roberts et al., 2023) reported as ``seals,'' so take allocated
by 50 percent accrued to harbor seals and 50 percent accrued to gray seals.
The calculated exposure estimates based on the exposure modeling
methodology described above were compared with the best available
information on marine mammal group sizes and with Empire Wind's PSO
sightings data ranging from 2018 to 2021 for the Project Area to ensure
authorized take numbers associated with HRG survey activities were
conservative and based on best available information. As a result of
this comparison, it was determined that the calculated number of
potential takes by Level B harassment based on the exposure modeling
methodology above may be underestimates for some species and therefore
warranted adjustment to ensure conservatism in requested take numbers.
Despite the relatively small modeled Level B harassment zone (50 m) for
HRG survey activities, it was determined that adjustments to the
requested numbers of take by Level B harassment for some dolphin
species was warranted in some cases to be conservative, based on the
expectation that dolphins may approach or bow ride near the survey
vessel. No adjustments were made to take requests for large whale
species as a result of HRG survey activities due to the relatively
small Level B harassment zone (50 m) and the low likelihood that large
whales would be encountered within such a short distance of the vessel
except in rare circumstances.
For certain species for which the density-based methodology
described above may result in potential underestimates of take and
Empire Wind's PSO sightings data were relatively low, adjustments to
the exposure estimates were made based on the best available
information on marine mammal group sizes to ensure conservatism. For
species considered common in the Project Area, authorized takes by
Level B harassment were adjusted to one group size per HRG survey day
(n-191) that may occur anytime from January through December. These
species include bottlenose dolphins (15 individuals; Jefferson et al.,
2015) and common dolphins (30 individuals; Reeves et al., 2002). Note
that these adjustments to take estimates were made previously and are
included in the LOA application. For species considered less common in
the Project Area, requested takes by Level B harassment were adjusted
to one group size per month of HRG surveys. These species include
Atlantic white-sided dolphins (52 individuals; Jefferson et al., 2015).
For species considered rare but which still have the potential to occur
in the Project Area, authorized takes by Level B harassment were
adjusted to one group size per year of HRG surveys. These species
include Atlantic spotted dolphin (45 individuals; Kenney & Vigness-
Raposa, 2010) and Risso's dolphin (100 individuals; Jefferson et al.,
2015). The authorized take for pilot whales was adjusted based on PSO
data by multiplying the maximum reported daily density (1.34
individuals; Geoquip Marine, 2021) by the annual days of operation.
Table 35--Authorized Level B Harassment Take Resulting From HRG Site Characterization Surveys over 5 Years
----------------------------------------------------------------------------------------------------------------
Total
2024-- 2025-- 2026-- 2027-- 2028 to authorized
Species Authorized Authorized Authorized Authorized January 2029-- take across
take take take take authorized take 5 years
----------------------------------------------------------------------------------------------------------------
Fin Whale.................... 1 3 3 2 2 11
Humpback Whale............... 1 3 3 2 2 11
Minke Whale.................. 4 18 14 9 9 54
North Atlantic Right Whale... 1 2 2 1 1 7
Sei Whale.................... 0 1 1 1 1 4
[[Page 11388]]
Sperm Whale.................. 0 0 0 0 0 0
Pilot whales spp............. 55 256 201 134 134 \a\ 780
Bottlenose dolphin \b\....... 615 2,865 2,250 1,500 1,500 \b\ 8,730
Atlantic White-sided Dolphin. 71 331 260 173 173 \c\ 1,008
Common dolphin............... 1,230 5,730 4,500 3,000 3,000 17,460
Atlantic Spotted Dolphin..... 45 45 45 45 45 \d\ 225
Risso's dolphin.............. 100 100 100 100 100 \d\ 500
Harbor porpoise.............. 23 108 85 57 57 330
Harbor seal \e\.............. 50 232 182 122 122 708
Gray seal \e\................ 50 232 182 122 122 708
----------------------------------------------------------------------------------------------------------------
\a\ Authorized take adjusted based on PSO sighting data from 2018 to 2021 (A.I.S., 2019; Alpine Ocean Seismic
Survey, 2018; Gardline, 2021a, 2021b; Geoquip Marine, 2021; Marine Ventures International, 2021; RPS, 2021;
Smultea Environmental Sciences, 2019, 2020, 2021).
\b\ Bottlenose dolphin density values from Duke University (Roberts et al., 2023) reported as ``bottlenose
dolphin'' and not identified to stock. HRG survey activities were not differentiated by region relative to the
20-m isopleth and therefore bottlenose takes are not identified to stock. As Roberts and Halpin does not
account for group size, the estimated take was adjusted to account for one group size, 15 individual
bottlenose dolphins (Jefferson et al., 2015) per day and 30 individual common dolphins (Reeves et al., 2002),
per day.
\c\ As Roberts et al. (2023) does not account for group size, the authorized take was adjusted to account for
one group size, 52 individuals (Jefferson et al., 2015) per month of Atlantic white-sided dolphins.
\d\ As Roberts et al. (2023) does not account for group size, the authorized take was adjusted to account for
one group size, 100 individuals (Jefferson et al., 2015), per year of Risso's dolphins and 45 individuals
(Kenney and Vigness-Raposa, 2010) per year of Atlantic spotted dolphins.
\e\ Pinniped density values from Duke University (Roberts et al., 2023) reported as ``seals,'' so take allocated
by 50 percent accrued to harbor seals and 50 percent accrued to gray seals.
Total Takes Across All Activity Types
The amount of Level A harassment and Level B harassment NMFS is
authorizing incidental to all project activities combined (i.e., impact
pile driving to install WTG and OSS monopile and jacket foundations,
vibratory pile driving to install and remove temporary cofferdams,
marina activities, and HRG surveys) are shown in table 34. The annual
amount of take that would occur in each year based on Empire Wind's
current schedules is provided in table 36. NMFS notes that while HRG
surveys are expected to occur across all 5 years (2024-2029) of the
effective period of the rulemaking (a total of 582 days across all 5
years), survey effort will vary. Year 1 (2024) take estimates include
41 days of HRG surveys, cofferdams or goal posts installation and
removal, and marine activities. Year 2 (2025) includes 191 days of HRG
surveys, WTG impact installation using monopile foundations, OSS impact
installation using pin piles for jacket foundations, and cofferdams or
goal post installation and removal. Year 3 (2026) includes 150 days of
HRG surveys, WTG impact installation using monopile foundations, and
OSS impact installation using pin piles for jacket foundations. Years 4
and 5 include 100 days each of HRG surveys. All activities are expected
to be completed by 2029, equating to the five years of activities, as
described in this preamble.
For the species for which modeling was conducted, the authorized
take is considered conservative for a number of reasons. The amount of
authorized take assumes the most impactful scenario with respect to
project design and schedules. As described in the Description of
Specific Activities section, Empire Wind plans to use monopile and
jacket foundations for all permanent structures (i.e., WTGs and OSSs).
If Empire Wind decides to use suction-buckets or gravity-based
foundations to install bottom-frame WTG and OSS foundations, take would
not occur as noise levels would not be elevated to the degree there is
a potential for take (i.e., no pile driving is involved with installing
suction buckets or gravity-based foundations). The authorized take for
impact pile driving assumed a maximum piling schedule of two monopiles
and three pin piles installed per 24-hour period. The authorized take
from vibratory pile driving assumed temporary cofferdams using sheet
piles would be installed, versus the alternative installation of a
gravity-cell cofferdam, for which no take would be expected nor
authorized. The authorized take numbers for pile driving are
conservatively based on the maximum densities across the construction
months. The authorized take numbers for Level A harassment do not fully
account for the likelihood that marine mammals would avoid a stimulus
when possible before the individual accumulates enough acoustic energy
to potentially cause auditory injury, nor do these numbers account for
the effectiveness of the required mitigation measures. Lastly, the
amount of authorized take for nearshore installation of cofferdams and
goal posts is based on a simple calculation (density x area x number of
days of activity), which is thought to already be inherently
conservative.
Authorized takes by Level A harassment and Level B harassment for
the combined activities of impact pile driving during the impact
installation of monopiles and pin piles (assuming 10 dB of sound
attenuation), vibratory pile driving and removal for the temporary
cofferdams, vibratory removal of berthing piles and installation of
sheet piles at the Onshore Substation C marina, and HRG surveys are
provided in table 36. NMFS also presents the percentage of each marine
mammal stock estimated to be taken based on the total amount of annual
take in table 38. Table 37 provides the total authorized take from the
entire 5-year effective period of the rulemaking and issued LOA. NMFS
recognizes that schedules may shift due to a number of planning and
logistical constraints such that take may be redistributed throughout
the 5 years. However, the total 5-year amount of take for each species,
shown in table 37, and the maximum amount of take in any one year
(table 35) would not be exceeded. Additionally, to reduce impacts to
marine mammals, NMFS has required several mitigation and
[[Page 11389]]
monitoring measures, provided in the Mitigation and Monitoring and
Reporting sections, which are activity-specific and are designed to
minimize acoustic exposures to marine mammal species.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TR14FE24.091
[[Page 11390]]
[GRAPHIC] [TIFF OMITTED] TR14FE24.092
[[Page 11391]]
[GRAPHIC] [TIFF OMITTED] TR14FE24.093
BILLING CODE 3510-22-C
Table 37--Total 5-Year Authorized Takes (Level A Harassment and Level B Harassment) for All Activities During
the Construction and Development of the Project
----------------------------------------------------------------------------------------------------------------
5-Year totals
-----------------------------------------------------
Marine mammal species NMFS stock Authorized Authorized 5-Year sum (Level A
abundance Level A Level B harassment + Level B
harassment harassment harassment)
----------------------------------------------------------------------------------------------------------------
Mysticetes
----------------------------------------------------------------------------------------------------------------
Fin Whale *............................... 6,802 6 201 207
Humpback Whale............................ 1,396 0 97 97
Minke Whale............................... 21,968 6 167 173
North Atlantic Right Whale *.............. 336 0 29 29
Sei Whale *............................... 6,292 0 9 9
----------------------------------------------------------------------------------------------------------------
Odontocetes
----------------------------------------------------------------------------------------------------------------
Atlantic Spotted Dolphin.................. 39,921 0 315 315
Atlantic White-sided Dolphin.............. 93,221 0 1,840 1,840
Bottlenose Dolphin (Western North Atlantic 62,851 0 2,565 2,565
Offshore) \a\............................
Bottlenose Dolphin (Northern Migratory 6,639 0 1,455 1,455
Coastal) \a\.............................
Bottlenose Dolphin (WNA Offshore and 69,490 0 8,730 8,730
Northern Migratory Coastal) \a\..........
Common Dolphin............................ 172,974 0 24,030 24,030
Harbor Porpoise........................... 95,543 0 565 565
Pilot Whales.............................. 68,139 0 1,009 1,009
[[Page 11392]]
Risso's Dolphin........................... 35,215 0 700 700
Sperm Whale *............................. 4,349 0 6 6
----------------------------------------------------------------------------------------------------------------
Phocid (pinnipeds)
----------------------------------------------------------------------------------------------------------------
Gray Seal................................. 27,300 0 1,496 1,496
Harbor Seal............................... 61,336 0 1,752 1,752
Harp Seal \b\............................. UNK 0 20 20
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the ESA.
\a\ Total estimated 5-year take by Level B harassment represents estimated take from HRG surveys, estimated take
for the offshore stock, and estimated take for the coastal stock. The estimated take for the coastal stock of
year 2 cofferdam construction (270) is subtracted from the total 5-year take as this estimate is incorporated
into cofferdam estimated take for years 1 and 2.
\b\ Harp seal occurrence is anticipated to be rare. Anecdotal stranding data indicate only a few harp seals are
sighted within the vicinity of the Project each year. Therefore, four harp seal Level B harassment takes have
been requested per year of the Project.
In making the negligible impact determination and the necessary
small numbers finding, NMFS assesses the greatest number of takes of
marine mammals that could occur within any one year (which in the case
of this rule is based on the predicted year 2 for all species),
although the negligible impact determination also examines the
cumulative impact over the 5-year period. 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
take that could occur in any year (table 38). 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 38 in any year.
Table 38--Maximum Number of Authorized Takes (Level A Harassment and Level B Harassment) in Any One Year of the
Project and the Percent Stock That Would Be Taken Based on the Maximum Annual Authorized Take
----------------------------------------------------------------------------------------------------------------
Maximum annual take authorized
----------------------------------------------------------------
Total percent
Marine mammal species NMFS stock Maximum stock taken
abundance Level A Maximum Level B Maximum annual based on
harassment harassment take \a\ maximum annual
take \b\
----------------------------------------------------------------------------------------------------------------
Mysticetes
----------------------------------------------------------------------------------------------------------------
Fin Whale *.................. 6,802........... 4 136............. 140............ 2.06.
Humpback Whale............... 1,396........... 0 63.............. 63............. 4.51.
Minke Whale.................. 21,968.......... 4 83.............. 87............. 0.40.
North Atlantic Right Whale *. 338............. 0 13.............. 13............. 3.85.
Sei Whale *.................. 6,292........... 0 4............... 4.............. 0.06
----------------------------------------------------------------------------------------------------------------
Odontocetes
----------------------------------------------------------------------------------------------------------------
Sperm Whale *................ 4,349........... 0 3............... 3.............. 0.07.
Atlantic Spotted Dolphin..... 39,921.......... 0 90.............. 90............. 0.23.
Atlantic White-sided Dolphin. 93,221.......... 0 747............. 747............ 0.80.
Bottlenose Dolphin (Western 62,851.......... 0 1,800 (pile 1,800 (pile 2.86.
North Atlantic Offshore) \c\. driving only). driving only).
Bottlenose Dolphin (Northern 6,639........... 0 1,185 (pile 1,185 (pile 17.85.
Migratory Coastal) \c\. driving only). driving only).
Bottlenose Dolphin (WNA 62,851 Western 0 2,865 (HRG 2,865 (HRG See text
Offshore and Northern North Atlantic survey). survey). description in
Migratory Coastal) \d\. Offshore; 6,639 the Small
Northern Numbers
Migratory section.
Coastal.
Common Dolphin............... 172,974......... 0 9,870........... 9,870.......... 5.71.
Harbor Porpoise.............. 95,543.......... 0 243............. 243............ 0.25.
Pilot Whale spp.............. 68,139.......... 0 417............. 417............ 1.06.
Risso's Dolphin.............. 35,215.......... 0 200............. 200............ 0.57.
----------------------------------------------------------------------------------------------------------------
[[Page 11393]]
Phocid (pinnipeds)
----------------------------------------------------------------------------------------------------------------
Gray Seal.................... 27,300.......... 0 501............. 501............ 1.84.
Harbor Seal.................. 61,336.......... 0 662............. 662............ 1.08.
Harp Seal.................... 7,600,000....... 0 4............... 4.............. 0.00005.
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the ESA.
\a\ Calculations of the maximum annual take are based on the maximum requested Level A harassment take in any
one year + the total requested Level B harassment take in any one year.
\b\ Calculations of percentage of stock taken are based on the maximum requested Level A harassment take in any
one year + the total requested Level B harassment take in any one year and then compared against the best
available abundance estimate. For this action, the best available abundance estimates are derived from the
NMFS SARs (Hayes et al., 2023).
\c\ Bottlenose dolphin density values from Duke University (Roberts et al., 2023) reported as ``bottlenose
dolphin'' and not identified to stock. Given the noise from cofferdam installation would not extend beyond the
20-m isobath, where the coastal stock predominates, all estimated takes by Level B harassment of bottlenose
dolphins from cofferdam installation were attributed to the coastal stock. Takes from impact pile driving were
attributed to each stock (coastal and offshore) according to delineation along the 20-m isobath during the
animat modeling process. Takes from HRG survey activities were not differentiated.
\d\ The values presented here assume that all of the take from HRG surveys (n=2,865) that could occur in any
given year to either the offshore stock or the Northern Migratory coastal stock would occur to the offshore
stock. While NMFS does not believe this is a likely outcome given Empire Wind would conduct an undefined
amount of HRG work outside of the offshore stock's habitat, we have presented it here as is for simplicity.
Mitigation
As noted in the Changes from the Proposed to Final Rule section,
NMFS has added several new mitigation requirements and clarified a few
others and has increased the minimum visibility zone for mysticetes and
shutdown zone for North Atlantic right whales. These changes are
described in detail in the sections below. Besides these changes, the
required measures remain the same as those described in the proposed
rule. However, NMFS has also re-organized and simplified the section to
avoid full duplication of the specific requirements that are fully
described in the regulatory text.
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 ITAs to include
information about the availability and feasibility (e.g., 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 (e.g., likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented (i.e., the
probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (i.e., the
probability if implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider factors such as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
The mitigation strategies described below are consistent with those
required and successfully implemented under previous ITAs 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
Level B harassment might occur.
Generally speaking, the mitigation measures considered and required
here fall into three categories: temporal (i.e., seasonal and daily)
and spatial work restrictions, real-time measures (e.g., shutdown,
clearance, and vessel strike avoidance), and noise attenuation/
reduction measures. Temporal and spatial 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, in order to 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
[[Page 11394]]
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 activity types, and
in the following subsections we describe the measures that apply
specifically to foundation installation, nearshore installation and
removal activities for cable laying and marina activities, and HRG
surveys. Details on specific requirements can be found in 50 CFR part
217, subpart CC, set out at the end of this rulemaking.
Training and Coordination
NMFS requires all Empire Wind employees and contractors conducting
activities on the water, including but not limited to, all vessel
captains and crew to be trained in marine mammal detection and
identification, communication protocols, and all required measures to
minimize impacts on marine mammals and support Empire Wind'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, Empire Wind 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 shutdown 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 will 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 will include
information and resources available regarding applicable Federal laws
and regulations for protected species. Empire Wind will provide
documentation of training to NMFS. Since the proposed rule, NMFS has
added requirements for a description of the training program to be
provided to NMFS at least 60 days prior to the initial training before
in-water activities begin and for confirmation of all required training
to be documented on a training course log sheet and reported to NMFS
Office of Protected Resources prior to initiating project activities.
These measures were added in response to several commenters' concerns
regarding strengthening mitigation and monitoring measures.
North Atlantic Right Whale Awareness Monitoring
Empire Wind must use available sources of information on North
Atlantic right whale presence, including daily monitoring of the Right
Whale Sightings Advisory System, monitoring of Coast Guard 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
PAM efforts and opportunities (outside of Empire Wind's efforts), and
allows for planning of construction activities, when practicable, to
minimize potential impacts on North Atlantic right whales. The vessel
strike avoidance measures apply to all vessels associated with the
Project within U.S. waters and on the high seas.
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 marine mammal is sighted by project personnel. The mitigation
requirements are described generally here and in detail in the
regulatory text at the end of this final rule (see 50 CFR 217.284(b)).
Empire Wind 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, Empire Wind is required to monitor for and maintain
a safe 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).
In the event that any project-related vessel, regardless of size,
observes any large whale, any mother/calf pair, or large assemblages of
non-delphinid cetaceans within 500 m of the vessel, the vessel is
required to immediately reduce speeds to 10 kn or less. Additionally,
all project vessels, regardless of size, must maintain a 100-m minimum
separation zone from sperm whales and non-North Atlantic right whale
baleen species. Vessels are also required to keep a minimum separation
distance of 50 m from all delphinid cetaceans and pinnipeds, with an
exception made for those species that approach the vessel (i.e., bow-
riding dolphins). If any of these non-North Atlantic right whale marine
mammals are sighted, the underway vessel must shift its engine to
neutral and the engines must not be engaged until the animal(s) have
been observed to be outside of the vessel's path and beyond 100 m (for
sperm whales and non-North Atlantic right whale large whales) or 50 m
(for delphinids and pinnipeds).
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
[[Page 11395]]
required dedicated visual observer, Empire Wind is required to monitor
the transit corridor in real-time with PAM prior to and during
transits. To maintain awareness of North Atlantic right whale presence
in the Project Area, vessel operators, crew members, and the marine
mammal monitoring team will monitor U.S. Coast Guard VHF Channel 16,
WhaleAlert, the Right Whale Sighting Advisory System (RWSAS), and the
PAM system. Any North Atlantic right whale or large whale detection
will be immediately communicated to PSOs, PAM operators, and all vessel
captains. All vessels will be equipped with an AIS and Empire Wind must
report all Maritime Mobile Service Identify (MMSI) numbers to NMFS
Office of Protected Resources prior to initiating in-water activities.
The requirement for vessels to be equipped with AIS has been added
since the proposed rule to increase the accountability of project
vessels. Empire Wind will submit a NMFS-approved North Atlantic right
whale vessel strike avoidance plan at least 90 days prior to
commencement of vessel use.
Compliance with these measures would reduce the likelihood of
vessel strike by increasing awareness of marine mammal presence in the
Project Area (e.g., monitoring, communication), reducing vessel speed
when marine mammals are detected (by PSOs, PAM, and/or through another
source (e.g., RWSAS)), and maintaining 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 minimize the likelihood of a vessel strike and, if a strike does
occur, decreases the potential for serious injury or lethal outcomes.
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, vessel traffic is common, and vessels
are 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).
Given the vessel strike avoidance measures included herein, NMFS
considers the potential for vessel strike to be de minimis and does not
authorize take from this activity.
Seasonal and Daily Restrictions
Temporal 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. The temporal restrictions
required here are built around the protection of North Atlantic right
whales. Based upon the best scientific information available (Roberts
et al., 2023), the highest densities of North Atlantic right whales in
the Project Area are expected during the months of January through
April, with an increase in density starting in December. However, North
Atlantic right whales may be present in the Project Area throughout the
year, although the numbers of North Atlantic right whales would not be
as large as would be expected in a foraging or calving ground.
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 during winter months, including other
baleen whales.
As described previously, no impact-pile-driving activities may
occur January 1 through April 30. A new measure included in this final
rule requires that Empire Wind install the foundations as quickly as
possible and avoid pile driving in December to the maximum extent
practicable; however, pile driving may occur in December if it is
unavoidable upon approval from NMFS. Furthermore, pile driving will be
limited to daylight hours only, subject to the exceptions described
below, to reduce impacts on migrating species (e.g., North Atlantic
right whales) and to ensure that visual PSOs can confirm appropriate
clearance of the site prior to pile-driving activities.
No more than two foundation monopiles or three pin piles for jacket
foundations would be installed per day. Monopiles must be no larger
than 11-m in diameter and pin piles must be no larger than 2.5-m in
diameter. For all monopiles and pin piles, 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
5,500 kJ for monopile installation or 3,200 kJ for pin pile
installation.
Impact pile driving will be initiated only during daylight hours no
earlier than 1 hour after civil sunrise. Impact pile driving will not
be initiated later than 1.5 hours before civil sunset. Generally, pile
driving may continue after dark when the installation of the same pile
began during daylight (1.5 hours before civil sunset), when clearance
zones were fully visible for at least 30 minutes and must proceed for
human safety or installation feasibility reasons. The exception to this
would be if Empire Wind submits, and NMFS approves, an Alternative
Monitoring Plan as part of the Pile Driving and Marine Mammal
Monitoring Plan that reliably demonstrates the efficacy of detecting
marine mammals at night with its proposed devices. Impact pile driving
will not be initiated when the minimum visibility zones cannot be fully
visually monitored, as determined by the lead PSO on duty.
Empire Wind has planned to construct the cofferdams or a casing
pipe with goal posts anytime within the year during the first and
second years of the effective period of the regulations and LOA.
However, NMFS is not requiring any seasonal restrictions due to the
relatively short durations in which work would occur (i.e., low
associated impacts). Although North Atlantic right whales do migrate in
coastal waters, they do not typically migrate very close to shore off
of New York and/or within New York bays where work would be occurring.
Given the distance to the Level B harassment isopleth is conservatively
modeled at approximately 2 km, any exposure to vibratory pile driving
during cofferdams would be at levels closer to the 120-dB Level B
harassment threshold and not at louder source levels. Empire Wind will
be required, however, to conduct vibratory pile driving associated with
cofferdams or casing pipe and goal post installation during daylight
hours only.
Given the very small harassment zones resulting from HRG surveys
and that the best available science indicates that any harassment from
HRG surveys, should a marine mammal be exposed, the exposure would
manifest as minor behavioral harassment only (e.g., potentially some
avoidance of the vessel). Thus, NMFS is not requiring any seasonal and
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
Empire Wind is required to employ noise abatement systems (NASs)
during all foundation installation (i.e., impact pile driving)
activities to reduce the sound pressure levels that are transmitted
through the water in an effort to reduce ranges to acoustic thresholds
and minimize any acoustic impacts resulting from these activities.
[[Page 11396]]
Empire Wind is required to use at least two NASs to ensure that
measured sound levels do not exceed the levels modeled for a 10-dB
sound level reduction for foundation installation, which is likely to
include a double big bubble curtain, as well as the adjustment of
operational protocols to minimize noise levels. This requirement has
been updated since the proposed rule as a single bubble curtain, alone
or in combination with another NAS device, may not be used for either
pile driving as received SFV data reveals this approach is unlikely to
attenuate sounds to the degree distances to harassment thresholds are
at or smaller than those modeled assuming 10 dB of attenuation. As part
of adaptive management should the research and development phase of
newer systems demonstrate effectiveness, Empire Wind may submit data on
the effectiveness of these systems and request approval from NMFS to
use them during foundation installation activities.
Two categories of NASs exist: primary and secondary. A primary NAS
would be used to reduce the level of noise produced by foundation
installation activities at the source, typically through adjustments on
to the equipment (e.g., hammer strike parameters). Primary NASs are
still evolving and will be considered for use during mitigation efforts
when the NAS has been demonstrated as effective in commercial projects.
However, as primary NASs are not fully effective at eliminating noise,
a secondary NAS would be employed. The secondary NAS is a device or
group of devices that would reduce noise as it was transmitted through
the water away from the pile, typically through a physical barrier that
would reflect or absorb sound waves and therefore, reduce the distance
the higher energy sound propagates through the water column. Together,
these systems must reduce noise levels to those not exceeding modeled
ranges to Level A harassment and Level B harassment isopleths
corresponding to those modeled assuming 10-dB sound attenuation,
pending results of SFV (see the Sound Field Verification section below
and 50 CFR part 217).
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 (e.g., 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. 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 BBCs for
noise attenuation. When a double big bubble curtain is used (noting a
single bubble curtain is not allowed), Empire Wind 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
Empire Wind 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 Empire Wind uses a noise mitigation
device in addition to a double big bubble curtain, similar quality
control measures are required. Should the research and development
phase of newer systems demonstrate effectiveness, as part of adaptive
management, Empire Wind may submit data on the effectiveness of these
systems and request approval from NMFS to use them during foundation
installation activities.
Empire Wind 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 NASs 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 (i.e., sheet pile), goal post (i.e., pipe pile) installation/
removal, and marina piling activities. Regarding cofferdam sheet pile
and goal post pipe pile installation and removal as well as marina
piling activities, NAS is not practicable to implement due to the
physical nature of linear sheet piles and angled pipe piles, and is of
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 Empire Wind 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., CHIRPs) and
turning 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 necessary (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
[[Page 11397]]
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 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 foundation
installation and must actively monitor hydrophones for 60 minutes prior
to commencement of impact-pile-driving activities. Any North Atlantic
right whale sighting at any distance by foundation installation PSOs,
or acoustically detected within the PAM monitoring zone (10 km),
triggers a delay to commencing pile driving and shutdown. Any large
whale sighted by a PSO or acoustically detected by a PAM operator that
cannot be identified as a non-North Atlantic right whale must be
treated as if it were a North Atlantic right whale.
Prior to the start of certain specified activities (i.e.,
foundation installation, cofferdam install and removal, HRG surveys,
and marina activities), Empire Wind must ensure designated areas (i.e.,
clearance zones as provided in tables 39-41) 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. During this period, the clearance zones will be monitored by
both PSOs and a PAM operator. Prior to the start of impact-pile-driving
activities, Empire Wind will ensure the area is clear of marine
mammals, per the clearance zones in table 39, to minimize the potential
for, and the degree of, harassment. All clearance zones must be
confirmed to be free of marine mammals for 30 minutes immediately prior
to starting a soft-start of pile driving. If a marine mammal is
observed within a clearance zone during the pre-start clearance period,
impact pile driving will be delayed and may not begin until the
animal(s) has been observed exiting its respective zone, or until an
additional time period has elapsed with no further sightings (i.e., 15
minutes for small odontocetes and pinnipeds and 30 minutes for all
other species). In addition, impact pile driving will be delayed upon a
confirmed PAM detection of a North Atlantic right whale if the PAM
detection is confirmed to have been located within the 5 km North
Atlantic right whale PAM Clearance zone. Any large whale sighted by a
PSO within 1,000 m of the pile that cannot be identified to species
must be treated as if it were a North Atlantic right whale. PSO and PAM
must continue throughout the duration of monopile installation and for
30 minutes post-completion of installation.
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. The clearance
and shutdown zones for North Atlantic right whales during monopile and
OSS foundation installation is any distance from PSOs or any acoustic
detection within the PAM monitoring zone (10km). The visual and
acoustic clearance zones for large whales other than North Atlantic
right whales are 2,000 m, which corresponds to the largest modeled
exposure range (ER95) distances to Level A
harassment thresholds (SEL and peak) under all scenarios for all
whales, rounded up to the nearest 0.5 km (tables 12 and 13). The visual
and acoustic shutdown zones for large whales other than North Atlantic
right whales are 1,500 m for all typical piles and one difficult-to-
drive pile for all other large whales, and 2,000 m for two difficult-
to-drive piles for all other large whales. These distances are also
larger than the largest Level A harassment modeled exposure range
(ER95). For other species, the clearance and
shutdown zones represent the lowest practicable adverse impact (LPAI)
and minimize the amount of take by Level B harassment. For North
Atlantic right whales, there is an additional requirement that the
clearance zone may only be declared clear if no confirmed North
Atlantic right whale acoustic detections (in addition to visual) have
occurred during the 60-minute monitoring period.
Once an activity begins, any marine mammal entering their
respective shutdown zone would trigger the activity to cease. In the
case of pile driving, the shutdown requirement may be waived if is not
practicable due to imminent risk of injury or loss of life to an
individual, risk of damage to a vessel that creates risk of injury or
loss of life for individuals, or where the lead engineer determines
there is pile refusal or pile instability. In situations when shutdown
is called for during impact pile driving, but Empire Wind 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. Empire
Wind must document and report to NMFS all cases where the emergency
exemption is taken.
After shutdown, impact 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 or acoustically detected by pile
driving PSOs and PAM operators 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 39, 40, and 41. Empire Wind is allowed to request
modification to these zone sizes pending results of SFV (see the
regulatory text at the end of this rulemaking). Any changes to zone
size would be part of adaptive management and would require NMFS'
approval. The 10 km PAM monitoring zone for North Atlantic right whales
has been added to this final rule. In addition, the visual shutdown,
PAM clearance, and PAM shutdown zones for North Atlantic right whales
have been increased to any distance to align with the North Atlantic
right whale visual clearance zone and with the updated BiOp
requirements. The increase to these zones also increases protections
for North Atlantic right whales during impact pile driving. A 10-km
distance is a reasonable distance for a PAM system to monitor; thus, 10
km was added as the requirement for the PAM monitoring zone.
In addition to the clearance and shutdown zones that would be
[[Page 11398]]
monitored both visually and acoustically, Empire Wind will establish a
minimum visibility zone to ensure both visual and acoustic methods are
used in tandem to detect marine mammals, resulting in maximum detection
capability. For foundation installation, the minimum visibility zone
would extend 1.5 km from the pile driving source (table 39). This value
corresponds to the largest modeled ER95 distance to
the Level A harassment isopleth of all marine mammals when up to two
typical piles per day are installed (summer or winter; see tables 12
and 13) or one difficult-to-drive pile is installed in summer (i.e.,
when Empire intends to complete all pile driving; see table 12),
rounded up to the closest 0.5 km for PSO implementation ease. This
distance also corresponds to approximately the Level B harassment
isopleth for OSS foundation installation, assuming 10-dB attenuation.
The minimum visibility zone has been increased from 1.2 km, as was
provided in the proposed rule, to 1.5 km to be consistent with the
shutdown zone for mysticetes as well as to be consistent with the
increase in the minimum visibility zone in the BiOp. The entire minimum
visibility zone must be visible (i.e., not obscured by dark, rain, fog,
etc.) for a full 30 minutes immediately prior to commencing impact pile
driving.
Table 39--Minimum Visibility, Clearance, Shutdown, and Level B Harassment Zones During Impact Pile Driving for Monopiles and Pin Piles
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor
Monitoring zones North Atlantic right whales Other mysticetes/ Pilot whales and porpoises Seals
sperm whales (m) delphinids (m) (m) (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum Visibility Zone \1\.................... 1,500
--------------------------------------------------------------------------------------------------------
Clearance Zone \2\............................. Any visual distance......................... 2,000 200 400 200
PAM Clearance Zone \2\......................... Any distance................................ 2,000 200 400 200
Shutdown Zone \3\.............................. Any visual distance......................... 1,500 (2,000) 200 400 200
PAM Shutdown Zone \3\.......................... Any distance................................ 1,500 (2,000) n/a n/a n/a
--------------------------------------------------------------------------------------------------------
PAM Monitoring Zone............................ 10,000 m
Maximum Level B Harassment (Exposure Range, Monopiles: 5.35 km; Pin Piles: 1.14 km
R95percent).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The minimum visibility zone corresponds to the largest modeled ER95percent distances to the Level A harassment isopleth of all marine mammals when
up to two typical piles per day are installed (summer or winter, see tables 12 and 13) or one difficult-to-drive pile is installed in summer (when
Empire intends to complete all pile driving; see table 12), rounded up to the closest 0.5 km (for PSO implementation ease).
\2\ The large whale (other than North Atlantic right whale) clearance zone corresponds to the largest modeled exposure range (ER95percent) distances to
Level A harassment thresholds (SEL and peak) under all scenarios for all whales, rounded up to the nearest 0.5 km. The clearance zones for pilot
whales and delphinids, harbor porpoises, and seals represent LPAI and minimize the amount of take by Level B harassment.
\3\ The large whale (other than North Atlantic right whale) shutdown zone of 2,000 m applies during days of installing two difficult-to-drive piles by
impact pile driving. Otherwise, the 1,500 m shutdown zone is in effect. These zones correspond to the largest Level A harassment distance
(ER95percent) for all large whales under these scenarios. The shutdown zones for pilot whales and delphinids, harbor porpoises, and seals represent
LPAI and minimize the amount of take by Level B harassment.
For cofferdam and goal post pile driving, HRG surveys, and marina
activities, 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 vibratory pile-driving activities
associated with sheet pile installation and impact/pneumatic hammering
for casing pipe installation, Empire Wind will establish clearance and
shutdown zones, as shown in table 40. PSOs would monitor the clearance
zone for 30 minutes before the start of cable landfall activities,
during pile driving associated with cable landfall, and for 30 minutes
after pile driving of cable landfall. If a marine mammal is observed
entering or is observed within the respective zones, activities will
not commence until the animal has exited the zone or a specific amount
of time has elapsed since the last sighting (i.e., 30 minutes for large
whales and 15 minutes for dolphins, porpoises, and pinnipeds). If a
marine mammal is observed entering or is within the respective shutdown
zone after vibratory pile driving or pneumatic hammering has begun, the
PSO will call for a temporary cessation of the activity. Pile driving
or hammering must not be restarted until either the marine mammal(s)
has voluntarily left the specific clearance zones and has been visually
confirmed beyond that clearance zone or when specific time periods have
elapsed with no further sightings or acoustic detections have occurred
(i.e., 15 minutes for small odontocetes and 30 minutes for all other
marine mammal species). Because a vibratory hammer can grip a pile
without operating, pile instability should not be a concern and no
caveat for re-starting pile driving due to pile instability is planned.
Table 40--Clearance and Shutdown Zones for Sheet Pile Vibratory Driving
for Cofferdams and Impact/Pneumatic Hammering for Casing Pipes for Goal
Posts (m)
------------------------------------------------------------------------
Clearance zone Shutdown zone
Hearing group (species) (m) \1\ (m) \1\
------------------------------------------------------------------------
Low-Frequency (North Atlantic right 1,600 1,600
whale, all other mysticetes) \2\...
High-Frequency (harbor porpoise) \3\ 100 100
Mid-Frequency (dolphins and pilot 50 50
whales) \3\........................
Phocid Pinniped (seals) \4\......... 100 100
------------------------------------------------------------------------
\1\ Clearance and shutdown zones apply to both cofferdam and goal post
installation.
\2\ For low-frequency cetaceans, the clearance and shutdown zones are
larger than the distance to the Level B harassment threshold for
Empire Wind 2.
\3\ For mid-frequency cetaceans and harbor porpoises, the clearance and
shutdown zones are larger than the distance to the Level A harassment
threshold.
\4\ The shutdown zone and clearance zone for pinnipeds has been
increased from 50 m to 100 m to encompass the distance to PTS onset
for these activities (62 m) as pinniped take by Level A harassment is
not authorized.
[[Page 11399]]
For HRG surveys, there are no mitigation measures prescribed for
sound sources operating at frequencies greater than 180 kHz, as these
would be expected to fall outside of marine mammal hearing ranges and
would not result in harassment. However, all HRG survey vessels would
be subject to the aforementioned vessel strike avoidance measures
described earlier in this section. Furthermore, due to the frequency
range and characteristics of some of the sound sources, shutdown,
clearance, and ramp-up procedures are not planned to be conducted
during HRG surveys utilizing only non-impulsive sources (e.g., USBL and
other parametric sub-bottom profilers), with exception to usage of SBPs
and other non-parametric sub-bottom profilers. PAM would not be
required 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. We have provided a thorough description
of our reasoning for not requiring PAM during HRG surveys in several
Federal Register notices (e.g., 87 FR 40796, July 8, 2022; 87 FR 52913,
August 3, 2022; 87 FR 51356, August 22, 2022).
Empire Wind will be required to implement a 30-minute clearance
period of the clearance zones (table 39) immediately prior to the
commencing of the survey, or when there is more than a 30-minute break
in survey activities and PSOs have not been actively monitoring. If a
marine mammal is observed within a clearance zone during the clearance
period, ramp up (described below) may not begin until the animal(s)
have been observed voluntarily exiting its respective clearance zone or
until an additional time period has elapsed with no further sighting
(i.e., 15 minutes for small odontocetes and seals, and 30 minutes for
all other species). When the clearance process has begun in conditions
with good visibility, including via the use of night vision equipment
(i.e., infrared (IR)/thermal camera), and the Lead PSO has determined
that the clearance zones are clear of marine mammals, survey operations
would be allowed to commence (i.e., no delay is required) despite
periods of inclement weather and/or loss of daylight.
Once the survey has commenced, Empire Wind would be required to
shut down SBPs if a marine mammal enters a respective shutdown zone
(table 39). In cases where the shutdown zones become obscured for brief
periods due to inclement weather, survey operations would be allowed to
continue (i.e., no shutdown is required) so long as no marine mammals
have been detected. The use of SBPs will not be allowed to commence or
resume until the animal(s) has been confirmed to have left the shutdown
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. Any large whale sighted by a PSO within 1,000 m of the SBPs
that cannot be identified as a non-North Atlantic right whale would be
treated as if it were a North Atlantic right whale.
Once the survey has commenced, Empire Wind would be required to
shut down SBPs if a marine mammal enters a respective shutdown zone
(table 39). In cases when the shutdown zones become obscured for brief
periods due to inclement weather, survey operations would be allowed to
continue (i.e., no shutdown is required) so long as no marine mammals
have been detected. The use of SBPs will not be allowed to commence or
resume until the animal(s) has been confirmed to have left the shutdown
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. Any large whale sighted by a PSO within 1,000 m of the SBPs
that cannot be identified as a non-North Atlantic right whale would be
treated as if it were a North Atlantic right whale.
If a SBP is shut down for reasons other than mitigation (e.g.,
mechanical difficulty) for less than 30 minutes, it would be allowed to
be activated again without ramp-up only if (1) PSOs have maintained
constant observation, and (2) no additional detections of any marine
mammal occurred within the respective shutdown zones. If a SBP was shut
down for a period longer than 30 minutes, then all clearance and ramp-
up procedures would be required, as previously described.
Table 41--Level B Harassment Threshold Ranges and Mitigation Zones During HRG Surveys
----------------------------------------------------------------------------------------------------------------
Level B harassment
Marine mammal species zone (m) for Clearance zone Shutdown zone
CHIRPs (m) (m)
----------------------------------------------------------------------------------------------------------------
Low-frequency cetacean (North Atlantic right whale)..... 50.05 500 500
Other ESA-listed marine mammals (i.e., fin, sei, sperm 500 100
whale).................................................
All other marine mammal species \1\..................... 100 100
----------------------------------------------------------------------------------------------------------------
\1\ With the exception of seals and delphinid(s) from the genera Delphinus, Lagenorhynchus, Stenella, or
Tursiops, as described above.
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, Empire Wind 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.
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. NMFS notes that it is
difficult to specify a reduction in energy for any given hammer because
of variation across drivers and installation conditions. 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. Empire Wind has expressed
concern with this approach as it could potentially damage the impact
pile driving hammer as well as result in safety issues, particularly if
pile driving stops before target pile penetration depth is reached
which may result in pile refusal. As such, while general soft start
requirements are incorporated into the regulatory text, specific soft
start protocols considering final design details, including site-
specific soil
[[Page 11400]]
properties and other considerations, are not included in the regulatory
text but will be incorporated into the LOA. Empire Wind, 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.
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 Empire Wind's fishery monitoring surveys
impacting marine mammals is minimal, NMFS requires Empire Wind 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 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
below. Since the proposed rule, we have increased the number of
required active PSOs per platform (i.e., pile driving vessel or
dedicated PSO vessel, if used) during impact pile driving from two to
three PSOs. This requirement will increase monitoring effort to promote
more effective detection of marine mammals during impact-pile-driving
activities. In addition, we have added specific requirements for SFV
monitoring.
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 (i.e., 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 (i.e., behavioral or
physiological) to acoustic stressors (i.e., 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 (i.e., 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 all impact 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 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 and PAM Operator Requirements
Empire Wind is required to employ NMFS-approved PSOs and PAM
operators. PSOs are trained professionals who are tasked with visually
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 Empire Wind
to conduct PAM by PAM operators during impact 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. 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 of 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.
[[Page 11401]]
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
range to the vocalizing marine mammals. 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 (e.g., 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
programs or endorse specific providers but will approve PSOs and PAM
operators that have successfully completed courses that meet the
curriculum and training requirements referenced below and further
specified in the regulatory text at the end of this rulemaking. PSOs
can act as PAM operators or visual PSOs (but not simultaneously) as
long as they demonstrate that their training and experience are
sufficient to perform each task.
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 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 unconditional-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'' or ``Lead PAM operator'') who would be required to meet the
unconditional approval standard. NMFS has added a requirement that the
Lead PSO must also have a minimum of 90 days of at-sea experience and
must have obtained this experience within the last 18 months. This
requirement was added to ensure that Lead PSOs have adequate and recent
observer experience.
Empire Wind 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 Empire
Wind at least 30 days prior to the start of the Project. Should Empire
Wind require additional PSOs or PAM operators throughout the Project,
Empire Wind 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.
A minimum number of PSOs would be required to actively observe for
the presence of marine mammals during certain project activities, with
more PSOs being 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. At least three PSOs must be
on duty at a time on the impact pile driving vessel. A minimum of three
PSOs must be active on a dedicated PSO vessel or an alternate
monitoring technology (e.g., unmanned aircraft system (UAS)) must be
used that has been demonstrated as having greater visual monitoring
capability compared to three PSOs on a dedicated PSO vessel and is
approved by NMFS. If a dedicated PSO vessel is selected, the vessel
must be located at the best vantage point to observe and document
marine mammal sightings in proximity to the clearance and shutdown
zones. If an alternate monitoring technology is used in place of a
dedicated PSO vessel, the technology must be described in the pile
driving monitoring plan and demonstrate a greater visual monitoring
capability as described above. In summary, at least three PSOs and one
PAM operator per acoustic data stream (i.e., equivalent to the number
of acoustic buoys) must be on-duty and actively monitoring per platform
during impact foundation installation.
At least two PSOs must be on-duty during vibratory pile driving and
impact/pneumatic hammering during cable landfall and marina
construction activities. 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.
Empire Wind is required to submit a Pile Driving 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, as described in
the regulatory text at the end of this rulemaking. 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 50 CFR part 217, subpart CC, set out at
the end of this rulemaking. Additional information can be found in
Empire Wind's Protected Species Mitigation and Monitoring Plan (PSMMP;
appendix B) found on NMFS' website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1.
[[Page 11402]]
Sound Field Verification
Empire Wind must conduct SFV measurements during all impact-pile-
driving activities associated with the installation of, at minimum, the
first three monopile foundations. SFV measurements must continue until
at least three consecutive piles demonstrate distances to thresholds
that 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.).
Abbreviated SFV monitoring must be performed on all foundation
installations for which the complete SFV monitoring described above is
not conducted. In addition, SFV measurements must be conducted upon
commencement of turbine operations to estimate turbine operational
source levels, in accordance with a NMFS-approved Foundation
Installation Pile Driving SFV Plan. 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 Empire
Wind 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
International Organization for Standardization (ISO) 18406,
``Underwater acoustics--Measurement of radiated underwater sound from
percussive pile driving'' (2017).
Reporting
Prior to any construction activities occurring, Empire Wind will
provide a report to NMFS Office of Protected Resources that
demonstrates that all Empire Wind personnel, including the vessel
crews, vessel captains, PSOs, and PAM operators, have completed all
required trainings.
NMFS will require standardized and frequent reporting from Empire
Wind during the life of the regulations and the LOA. All data collected
relating to the Project will be recorded using industry-standard
software (e.g., Mysticetus or a similar software) installed on field
laptops and/or tablets. Empire Wind 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, Empire
Wind 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 visual and acoustic detections of marine mammals, 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 performance reports should also be included for
abbreviated SFV monitoring. Weekly reports will be due on Wednesday for
the previous week (Sunday-Saturday). The weekly reports are also
required to identify which turbines become operational and when, and a
map must be provided. Once all foundation pile installation is
complete, weekly reports would no longer be required.
Monthly Report--Empire Wind 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, and a map must be provided. Once all foundation pile
installation is complete, monthly reports would no longer be required.
Annual Reporting--Empire Wind is required to submit an annual
marine mammal monitoring (for both PSOs and PAMs) 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--Empire Wind 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 reported to NMFS,
or, if not feasible, as soon as possible and no longer than 24 hours
after the sighting. 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 within 24 hours to NMFS
Office of Protected Resources, the NMFS Greater Atlantic Stranding
Coordinator for the New England/Mid-Atlantic area (866-755-6622) in the
Northeast Region (if in the Southeast Region (NC to FL), contact 877-
942-5343), and the U.S. Coast Guard within 24 hours. 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, Empire Wind must immediately report the incident to
NMFS. If in the Greater Atlantic Region (Maine to Virginia), Empire
Wind must call the NMFS Greater Atlantic Stranding Hotline. Separately,
Empire Wind must also and immediately report the incident to NMFS
Office of Protected Resources and GARFO. Empire Wind must immediately
cease all on-water activities, including pile driving, 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 MMPA. NMFS
Office of Protected Resources may impose additional measures covered in
the adaptive management provisions of this rule to
[[Page 11403]]
minimize the likelihood of further prohibited take and ensure MMPA
compliance. Empire Wind may not resume their activities until notified
by NMFS.
In the event of any lost gear associated with the fishery surveys,
Empire Wind must report to 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.
Sound Field Verification--Empire Wind is required to submit interim
SFV reports after each foundation installation monitored as soon as
possible but within 48 hours for thorough SFV. Abbreviated SFV reports
must be included in the weekly monitoring reports. A final SFV report
for all monopile foundation installation will be required within 90
days following completion of acoustic monitoring.
Adaptive Management
These regulations contain an adaptive management component. Our
understanding of the effects of offshore wind construction activities
(e.g., acoustic 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, monitoring, or reporting
requirements, as appropriate, with input from Empire Wind 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 general 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, as 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. Also, specifically
here, mitigation measures for HRG surveys are based upon the required
project design criteria (PDCs) outlined by GARFO's Protected Resources
Division (PRD) BOEM 2021 ESA section 7 consultation on offshore wind
site assessment and site characterization activities. As mitigation
measures are based upon the PDCs, and compliance with PDCs is required
to ensure activities do not adversely affect ESA-listed species,
updates to the PDCs may result in updates to mitigation measures for
HRG surveys as well. During the course of the rule, Empire Wind (and
other LOA Holders conducting offshore wind development activities) is
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, or by 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 estimated the maximum number of
takes by Level A harassment and Level B harassment that are reasonably
likely to occur from Empire Wind'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 describes
Empire Wind's specified activities that may result in take of marine
mammals and an estimated schedule for conducting those activities.
Empire Wind has provided a realistic construction schedule although we
recognize schedules may shift for a variety of reasons (e.g., weather
or supply delays). However, the total amount of take would not exceed
the 5-year totals and maximum annual total in any given year indicated
in tables 34 and 35, respectively.
We base our analysis and negligible impact determination on the
maximum number of takes that are reasonably likely to 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.
Last, we provide a negligible impact determination for each species
or stock, providing species or stock-specific information or analysis,
where appropriate, for example, for 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 Empire Wind's activities and then providing species- or
stock-specific information allows us to avoid duplication while
ensuring that we have analyzed the
[[Page 11404]]
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 and that the negligible impact
determination also examines the total taking over the 5-year period;
however, the majority of the impacts are associated with WTG foundation
and OSS foundation installation, which would occur largely during years
2 and 3 (2025 through 2026). 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 33, 34, and 35).
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
amount of harassment Empire Wind 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 application of the highest monthly sound speed profile
to all months within a given season. The exposure model results do not
reflect any mitigation measures (other than 10-dB sound attenuation) or
avoidance response. The amount of take 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 amount of
take authorized represents the maximum amount of Level A harassment and
Level B harassment that is reasonably likely to 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 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 Empire Wind'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 Empire
Wind'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 (i.e., a 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 (5 to 44 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 Empire
Wind 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 of seconds
to minutes for HRG surveys or, in some cases, longer durations of
exposure within a day (e.g., pile driving). Some individuals of a
species may experience recurring instances of take over multiple days
throughout the year while some members of a species or stock may
experience one exposure as they move through an area, which means that
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
[[Page 11405]]
takes represent exposures of a smaller number of individuals of which
some would be taken across multiple days.
For Empire Wind, 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., impact driving of casing pipe,
vibratory pile driving, and HRG surveys). Impact pile driving has
higher source levels and longer durations (on an annual basis) than any
nearshore pile-driving activities. HRG survey equipment also produces
much higher frequencies than pile driving, resulting in minimal sound
propagation. While foundation installation impact pile driving is
anticipated to be most impactful for these reasons, impacts are
minimized through implementation of mitigation measures, including
soft-starts, use of a sound attenuation system, the implementation of
clearance zones that would facilitate a delay of pile driving
commencement, and the 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.
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 are 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 is one form of Level B harassment that marine mammals may incur
through exposure to Empire Wind's activities and, as described earlier,
the 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, 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 are broadband noise sources
but 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 would
anticipate the potential for TTS is higher in low-frequency cetaceans
(i.e., mysticetes) than other marine mammal hearing groups, and would
be more likely to occur in frequency bands in which they communicate.
However, we would not expect the TTS to span the entire communication
or hearing range of any species given that the frequencies produced by
these activities do not span entire hearing ranges for any particular
species. 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 Empire Wind'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
in mysticetes.
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
(refer back to Estimated Take section). However, source level alone is
not a 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 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), 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
NMFS is authorizing a very small amount of take 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 33). The only activity 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 recorded 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 would 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 that 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.
PTS 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), which is not considered a severe hearing
impairment.
[[Page 11406]]
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. Though
it could happen, and we have analyzed the potential resulting impacts
to any animals that incur PTS, 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.
Auditory Masking or Communication Impairment
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. Masking
may also 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 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 has indicated, for this project 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. Low frequency
signals are also more likely to overlap with the narrower low frequency
calls of mysticetes, 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 Empire Wind's activities, paired with
habitat use patterns by marine mammals, makes it unlikely that the
level of masking that could occur would have the potential to affect
reproductive success or survival would occur.
Impacts on Habitat and Prey
Construction activities may result in fish and invertebrate
mortality or injury very close to the source, and all Empire Wind'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 NAS 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 but, because of 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 an extensive number of
structures such as wind turbines are, in general, likely to result in
local and broader oceanographic effects in the marine environment, and
may disrupt dense aggregations and distribution of marine mammal
zooplankton prey through altering 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). However, the scale of impacts is difficult to predict and may
vary from hundreds of meters for local individual turbine impacts
(Schultze et al., 2020) to large-scale changes stretching hundreds of
kilometers (Christiansen et al., 2022).
As discussed in the ``Potential Effects of the Specified Activities
on Marine Mammals and their Habitat'' section of the proposed rule, the
Project would consist of no more than 149 foundations (147 WTGs and 2
OSSs) in the Lease Area, which will gradually become operational
following construction completion, by the end of year 4 (2027) of the
rule. While there are likely to be oceanographic impacts from the
presence of the 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 is not anticipated. Although this
area supports aggregations of zooplankton (i.e., baleen whale prey)
that could be impacted if long-term oceanographic changes occurred,
prey densities are typically significantly less in the Project Area
than in known baleen whale foraging habitats to the east and north
(e.g., south of Nantucket and Martha's Vineyard, Great South Channel).
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 Empire Wind Biological Opinion provided an evaluation of the
presence and operation of the Project on, among other species, listed
marine mammals and their prey. While the consultation considered the
life of the Project (i.e., 25+ years), we considered the potential
impacts to marine mammal habitat and prey within the 5-year effective
time frame of this rule. Overall, the Biological Opinion concluded that
impacts from loss of soft 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 while the presence and operation
of the wind farm may change the distribution of plankton with the wind
farm, these changes are not expected to affect the oceanographic forces
transporting zooplankton into the area. Therefore, the Biological
Opinion concluded that an 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
[[Page 11407]]
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 Impact on All Species
This rulemaking includes an extensive suite of mitigation measures
designed to minimize impacts on all marine mammals, with a focus on
North Atlantic right whales. For impact pile driving of foundation
piles, ten overarching mitigation 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; (8) maintaining situational awareness of
marine mammal presence through the requirement that any marine mammal
sighting(s) by Empire Wind personnel must be reported to PSOs; (9) SFV
monitoring; and (10) vessel strike avoidance measures to reduce the
risk of a collision with a marine mammal and vessel. For cofferdam and
goal post installation and removal, we are requiring five overarching
mitigation measures: (1) time of day work restrictions; (2) use of
multiple PSOs to visually 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 Empire Wind 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 Empire Wind personnel must be reported to PSOs.
For activities with large harassment isopleths, Empire Wind 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 (i.e., Empire Wind 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 (e.g., WTG and OSS foundation
installation, cable landfall activities, HRG surveys), PAM operators
(for impact foundation installation), and maintaining awareness of
marine mammal sightings reported in the region during all specified
activities 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 (i.e.,
North Atlantic right whale, humpback whale, fin whale, sei whale, and
minke 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, impacts to prey, and TTS or PTS (in some cases).
Mysticetes encountered in the Project Area are expected to be
migrating or foraging. The extent to which an animal engages in these
behaviors in the area is species-specific and varies seasonally. Given
that extensive feeding Biologically Important Areas (BIAs) for the
North Atlantic right whale, humpback whale, fin whale, sei whale, and
minke whale exist to the east and north of the Project Area (LaBrecque
et al., 2015; Van Parijs et al, 2015), many mysticetes are expected to
predominantly be migrating through the Project Area towards or from
these feeding grounds. While we acknowledged above that mortality,
hearing impairment, or displacement of mysticete prey species may
result locally from impact pile driving, given 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
is expected to be minor. Whales temporarily displaced from the Project
Area are expected to have sufficient remaining feeding habitat
available to them and 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
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. Here, for mysticetes, where relatively low
amounts 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 33) and movement patterns in the area 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
[[Page 11408]]
behavioral impacts to any individual would, therefore, primarily be
expected to occur within a single day within a year--an amount that
would clearly not be expected to impact reproduction or survival.
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 Empire Wind has identified.
Species-specific analysis regarding potential for repeated exposures
and impacts is provided below.
Fin and minke whales are the only mysticete species for which PTS
is anticipated and authorized. As described previously, PTS for
mysticetes from some project activities 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 as both a depleted and strategic stock under the MMPA. As described
in the ``Potential Effects to Marine Mammals and Their Habitat''
section of the proposed rule, 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 29
takes, by Level B harassment only, over the 5-year period, with a
maximum annual allowable take of 13 (equating to approximately 3.85
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.
The highest density of North Atlantic right whales in the Project
Area occurs in the winter (table 7). The New York Bight, including the
Project Area, may be a stopover site for migrating North Atlantic right
whales moving to or from southeastern calving grounds. As described
above, the Project Area represents part of an important migratory area
for right whales. Quintana-Rizzo et al. (2021) noted that southern New
England, northeast of the Project Area, may be a stopover site for
migrating right whales moving to or from southeastern calving grounds.
The right whales observed during the study period were primarily
concentrated in the northeastern and southeastern sections of the MA
WEA during the summer (June-August) and winter (December-February).
Right whale distribution did shift to the west into the Rhode Island/
Massachusetts Wind Energy Area (RI/MA WEA) in the spring (March-May).
Overall, the Project Area contains habitat less frequently utilized by
North Atlantic right whales than the more northerly southern New
England region.
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 from January through April, rather than
lingering in the Project Area 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. Therefore, it is likely that many of the takes
would occur to separate individual whales, each exposed on no more than
1 day. It is important to note that the activities occurring from
December through May that may impact North Atlantic right whales would
be primarily HRG surveys and cable landfall construction, neither of
which would result in very high received levels, if any at all, because
mitigation and monitoring measures avoid or minimize impacts. Across
all years, while it is possible an animal could have been exposed
during a previous year, the low amount of take being authorized during
the 5-year period of the rule makes this scenario possible but
unlikely. However, if an individual were to be exposed during a
subsequent year, the impact of that exposure is likely independent of
the previous exposure and would cause no additive effect given the
duration between exposures.
As described in the Description of Marine Mammals in the Geographic
Area 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 Empire Wind'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 amount of annual take
and is of greatest concern given loud source levels. This activity
would likely be limited to up to 171 days over a maximum of 2 years,
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 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). Importantly, the effects of the
[[Page 11409]]
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), and 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 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., effects of impact pile driving) to none (e.g., effects of 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 is expected to be 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,
anticipated mitigation effectiveness, and 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 (i.e., 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, 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 mothers with older calves (in the 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, 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 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, Empire
Wind 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 Geographic
Area section, Empire Wind 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 area over which North Atlantic right whales may
be harassed is relatively small compared to the width of the migratory
corridor. The width of the migratory corridor in this area is
approximately 243.6 km while the width of the Lease Area, at the
longest point, is approximately 37.6 km. North Atlantic right whales
may be displaced from their normal path and preferred habitat in the
immediate activity area primarily from pile-driving activities;
however, we do not anticipate displacement to be of high magnitude
(e.g., beyond a few kilometers). Thereby, any associated bio-energetic
expenditure is anticipated to be small. 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 to nearby habitats). Therefore, any impacts to
prey that may occur are also unlikely to impact North Atlantic right
whales.
The most significant measure to minimize impacts to individual
North Atlantic right whales during monopile installations is the
seasonal moratorium on impact pile driving of monopiles from January 1
through April 30 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). Further, NMFS
expects that exposures to North Atlantic right whales
[[Page 11410]]
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. Impact pile
driving may only begin in the absence of North Atlantic right whales,
as determined by visual and passive acoustic monitoring. If impact pile
driving has commenced, NMFS anticipates North Atlantic right whales
would avoid the area, utilizing nearby waters to carry on pre-exposure
behaviors. However, impact pile driving must be shut down if a North
Atlantic right whale is sighted 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 are exposed to impact pile driving noise, it is unlikely
a North Atlantic right whale would approach the impact pile driving
locations to the degree that they would purposely expose themselves to
very high noise levels. 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 planned 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 efficiency is maximized, as the measures are triggered by a
visual or acoustic detection. To maximize detection efficiency, 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
their received levels. Further, Empire Wind will not install two
monopile foundations 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.
The temporary cofferdam Level B harassment zones are relatively
small (i.e., 1,985 m for Empire Wind 1 and 1,535 m for Empire Wind 2),
and the cofferdams would be installed within Narragansett Bay over a
short timeframe (i.e., 56 hours total; 28 hours for installation and 28
hours for removal). Therefore, it is unlikely that any North Atlantic
right whales would be exposed to vibratory installation noises.
For HRG surveys, the maximum distance to the Level B harassment
threshold is 50.05 m. The estimated take, by Level B harassment only,
associated with HRG surveys is to account for any North Atlantic right
whale sightings PSOs may miss when HRG acoustic sources are active.
However, because of the short maximum distance to the Level B
harassment isopleth (50.05 m), the requirement that vessels maintain a
distance of 500 m from any North Atlantic right whales, the fact 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 sub-
bottom profilers 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 unlikely 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 amount 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 amount and severity of Level B harassment. Given
the documented habitat use within the area, the majority of the
individuals predicted taken (i.e., no more than 29 instances of take,
by Level B harassment only, over the course of the 5-year rule, with an
annual maximum of no more than 13 takes) would be impacted on only 1,
or maybe 2, days in a year, and 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, Empire Wind'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 only,
anticipated and authorized would have a negligible impact on the North
Atlantic right whale.
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 207 takes, by harassment only, over the
5-year period. The maximum annual allowable take by Level A harassment
and Level B harassment, would be 4 and 136, respectively. Combined,
this annual take (n=140) equates to approximately 2.06 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 previously, the Project Area is
located 140 km southwest of a fin whale feeding BIA that is active from
March to October. It is likely that some subset of the individual
whales exposed could be taken several times annually. However, any
impacts from any of the planned activities to feeding activities would
be minor. In addition, monopile installations have seasonal work
restrictions, such that the temporal overlap between these project
activities and the active BIA timeframe would exclude the months of
March or April. There is no spatial overlap of the Project Area and the
feeding BIA.
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
[[Page 11411]]
the detection of acoustic cues for relatively brief periods of time.
Any potential PTS would be minor (i.e., 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 with most sound below 2
kHz, which does not include the full predicted hearing range of fin
whales.
Fin whales are present in the waters off of New York 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; Cetacean and Turtle Assessment Program (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 New York Bight and
Project Area with lower densities occurring during the fall (Roberts et
al., 2023). Fin whales typically feed in waters off of New England and
within the Gulf of Maine, areas north of the Project Area (Hayes et
al., 2023), although feeding also takes place in the small feeding BIA,
offshore of Montauk Point, described above (Hain et al., 1992;
LaBrecque et al., 2015).
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 207 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 136, respectively, and in
consideration of the required mitigation and other information
presented, Empire Wind'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. However, as described in the Description
of Marine Mammals in the Geographic Area, 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 (i.e.,
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. 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 97 takes by Level B harassment only over
the 5-year period. No take by Level A harassment is authorized. The
maximum annual allowable take by Level B harassment would be 63,
respectively (this maximum annual take (n=63) equates to approximately
4.5 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). Among the activities analyzed, impact pile
driving is likely to result in the highest amount of Level B harassment
annual take (i.e., 63) of humpback whales.
A recent study examining humpback whale occurrence in the New York
Bight area has shown that humpback whales exhibit extended occupancy
(mean 37.6 days) in the Bight area and were likely to return from one
year to the next (mean 31.3 percent). Whales were also seen at a
variety of other sites in the New York Bight within the same year,
suggesting that they may occupy this broader area throughout the
feeding season. The majority of whales were seen during summer (July-
September, 62.5 percent), followed by autumn (October-December, 23.5
percent), and spring (April-June, 13.9 percent) (Brown et al., 2022).
These data suggest that the 0 and 63 maximum annual instances of
predicted takes by Level A harassment and Level B harassment,
respectively, could consist of individuals exposed to noise levels
above the harassment thresholds once during migration through the
Project Area and/or individuals exposed on multiple days if they are
utilizing the area as foraging habitat. The Lease Area, which is 321
km\2\, comprises only a minor portion of the New York Bight area
(43,388 km\2\), and a few repeated takes of the same individuals would
be unlikely to meaningfully impact the energetics of any individuals
given the availability of favorable foraging habitat across the Bight.
For all the reasons described in the Mysticetes section above, we
anticipate any potential PTS and TTS would be concentrated at one 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 97 takes over the course of the 5-year rule, and
a maximum annual allowable take by Level B harassment of 63, and in
consideration of the required mitigation measures and other information
presented, Empire Wind'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 Geographic Area 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 173 takes, by harassment only, over the
5-year period. The maximum annual allowable take by Level A harassment
and Level B harassment would be 4 and 83, respectively (combined, this
annual take (n=87) equates to approximately 0.4 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).
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
[[Page 11412]]
Project Area, minke whales are predominantly migratory and their known
feeding areas are to the 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 the Project Area, with each take
representing a separate individual. However, 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 Geographic
Area 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.
We anticipate the impacts of this harassment to follow those
described in the general Mysticetes section above. Any potential PTS
would be minor (i.e., limited to a few dB) and any TTS would be of
short duration and concentrated at one 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 173 takes of the course of the 5-year rule, and
a maximum annual allowable take by Level A harassment and Level B
harassment, of 4 and 83, respectively), and in consideration of the
required mitigation and other information presented, Empire Wind'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 nine takes, by Level B harassment only,
over the 5-year period. The maximum annual allowable take by Level B
harassment, would be four (this annual take equates to approximately
0.6 percent of the stock abundance, if each take were considered to be
of a different individual). NMFS is not authorizing take by Level A
harassment. Similar to other mysticetes, we would anticipate the number
of takes to represent individuals taken only once or, in rare cases two
or three times, as most whales in the Project Area would be migrating.
To a small degree, sei whales may forage in the Project Area, although
the currently identified foraging habitats (BIAs) are 280 km northeast
of the area in which Empire Wind's activities would occur (LaBrecque et
al., 2015).
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 nine takes of the course of the 5-year rule,
and a maximum annual allowable take by Level B harassment of four), and
in consideration of the required mitigation and other information
presented, Empire Wind'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 Nova Scotia stock of sei whales.
Odontocetes
In this section, we include information 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, small
whales and dolphins, and harbor porpoises. These subsections include
more specific information, as well as conclusions, for each stock
represented.
All of the takes of odontocetes authorized incidental to Empire
Wind's specified activities are by pile driving and HRG surveys. No
Level A harassment, serious injury, or mortality is 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 and 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
[[Page 11413]]
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,
which is 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, and 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 New York 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 United States, and the waters off of New York, 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 (EEZ). 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. No Level A harassment, serious injury, or
mortality is authorized. The maximum annual allowable take by Level B
harassment would be three, which equates to approximately 0.07 percent
of the stock abundance, if each take were considered to be of a
different individual, with lower numbers than that 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 Odontocetes 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
(i.e., 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, Empire Wind'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 North Atlantic stock of
sperm whales.
Dolphins and Small Whales (Including Delphinids)
The seven species and eight stocks included in this group (which
are indicated in table 2 in the Delphinidae family) are not listed
under the ESA; however, short-finned pilot whales are listed as
Strategic under the MMPA. There are no known areas of specific
biological importance in or around the Project Area 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 seven delphinid species with takes authorized for the Project
are Atlantic spotted dolphin, Atlantic white-sided dolphin, common
bottlenose dolphin, common dolphin, long-finned pilot whale, short-
finned pilot whale, and Risso's dolphin. The rule would allow for the
authorization of 315 to 24,030 takes (depending on species) by Level B
harassment, over the 5-year period. The maximum annual allowable take
for these species by Level B harassment, would range from 90 to 9,870,
(this annual take equates to approximately 0.23 to 5.71 percent of the
stock abundance, depending on each species, if each take were
considered to be of a different individual), with far lower numbers
than those expected in the years without foundation installation (e.g.,
years when only HRG surveys would be occurring). No Level A harassment,
serious injury, or mortality is authorized.
For common dolphin, given the higher relative number of takes,
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. For the Northern Migratory
coastal stock of bottlenose dolphins, given the higher number of takes
relative to the stock abundance, it is likely that the takes represent
exposures of different individuals on 1 day a year. However, it is also
possible that some subset of the individuals exposed could be taken
several times annually. Specifically, Empire Wind was able to estimate
the number of takes per bottlenose dolphin stock (i.e., Western North
Atlantic offshore and Northern Migratory coastal stocks) incidental to
pile driving given the work effort and area were known. For example,
all takes incidental to cable landfall construction and marina work are
allocated to the Northern Migratory coastal stock because noise from
this activity does not extend into offshore stock habitat. NMFS is
authorizing a maximum of 1,800 and 1,185 takes in any given year
incidental to pile driving to the offshore stock and Northern Migratory
coastal stock, respectively. However, Empire Wind was not able to
differentiate the amount of take per stock incidental to HRG surveys
due to the inability to differentiate between the Western North
Atlantic offshore and Northern Migratory coastal stocks of bottlenose
dolphin in the underlying density data and that the amount of HRG
survey effort in each stock's preferred habitat is
[[Page 11414]]
unknown. The predicted maximum annual take by Level B harassment for
these two stocks from HRG surveys combined is 2,865. The most likely
scenario is that the take is split across the two stocks; however, both
stocks can occur within the Project Area and it is challenging to
predict with confidence the proportion of the takes that will be
incurred to each stock. However, as described in the Small Numbers
section below, the Project Area is located at the edge of the northern
boundary of the Northern Migratory coastal stock's habitat, though
bottlenose dolphins are using the New York-New Jersey Harbor estuary
more frequently (e.g., Trabue et al., 2022) than in previous years,
likely due to warming waters. In addition, the stock demonstrates
strong migratory behavior patterns. Bottlenose dolphins have been
rarely observed during cold water months in coastal waters north of the
North Carolina/Virginia border (Hayes et al., 2021); therefore, they
are limited to the Project Area in warm water months. For these
reasons, NMFS estimates approximately 930 takes by Level B harassment
from the coastal stock may be expected incidental to HRG surveys, at an
estimated group size of 15 per Jefferson et al. (2015), per day during
warm water months (i.e., 62 days, July and August) (see Small Numbers
section below for more details). Overall, it is unlikely that all takes
would occur to a different individual given work may occur on
consecutive days (thereby increasing chance of repeated exposure if
animals were to remain in the area) and, in particular for inshore
waters (where cable landfall work and marina work would occur) dolphins
are likely to be remaining in the area to forage (e.g., Trabue et al.,
2022). Even for these stocks in which some individuals may be exposed
on several days within the year, the anticipated intensity of a given
exposure and the comparatively small number of annual exposures and
their intermittency would not be expected to incur impacts that would
affect reproductive success or survival.
Overall, the number of takes, likely movement patterns of the
affected dolphin and small whale species, and the intensity of any
Level B harassments, 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 significantly overlapping the Project Area or known
to be particularly sensitive to anthropogenic noise. Some TTS can occur
in delphinids, 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.
Given the magnitude and severity of the impacts discussed above and
in consideration of the required mitigation and other information
presented, Empire Wind'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 dolphin and small whale
species and stocks addressed in this section (i.e., Atlantic spotted
dolphin, Atlantic white-sided dolphin, bottlenose dolphin (western
North Atlantic offshore stock and northern migratory coastal stock),
common dolphin, short-finned pilot whale, long-finned pilot whale, and
Risso's dolphin).
Harbor Porpoise
Harbor porpoises are not listed as Threatened or Endangered 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 United States coastal waters, at 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.
The rule would allow for the authorization of up to 565 takes, by
Level B harassment only, over the 5-year period. The maximum annual
allowable take by Level B harassment would be 243 (this annual take
equates to approximately 0.25 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 the
number of takes, 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. No Level A
harassment, serious injury, or mortality is authorized.
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 New York and, given
alternative foraging areas, any avoidance of the area by individuals is
not likely to impact the reproduction or survival of any individuals.
PTS is not anticipated or authorized. With respect to 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.
As discussed in Hayes et al. (2023), harbor porpoises are
seasonally distributed. During fall (October-December) and spring
(April-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
(i.e., >1800 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 New York.
Given the magnitude and severity of the impacts discussed above,
and in consideration of the required mitigation and other information
presented, Empire Wind'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
[[Page 11415]]
on the Gulf of Maine/Bay of Fundy stock of harbor porpoises.
Phocids (Harbor Seals, Gray Seals, and Harp Seals)
The harbor seal, gray seal, and harp seal are not listed under the
ESA, and neither the western North Atlantic stock of gray seal, western
North Atlantic stock of harp 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 Geographic Area 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 these species.
For the three seal species, the rule authorizes up to between 20
and 1,752 takes for each species by Level B harassment only over the 5-
year period. Level A harassment is not authorized. The maximum annual
allowable take for these species by Level B harassment, would range
from 4 (harp seals) to 501 (gray seals) to 662 (harbor seals) (this
annual take equates to approximately 0.00005 percent of the stock
abundance for harp seals, 1.84 percent of the stock abundance for gray
seals, and 1.08 percent of the stock abundance for harbor seals, 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).
Though gray seals, harbor seals, and harp 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 New York waters most often in
winter, when impact pile driving would not occur. Harp seals are
anticipated to be rare but could still occur in the Project Area. 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 gray seal pupping colonies or known haul-out
sites near the Project Area, although gray seals may haul out at known
harbor seal haul out sites. The nearest known gray seal pupping sites
are greater than 250 nautical miles (nmi) (463 km) away, at Muskeget
Island in the Nantucket Sound, Monomoy National Wildlife Refuge, and in
eastern Maine (Rough, 1995). Known haul out locations are located
closer to Monomoy Refuge and on Nantucket in Massachusetts (Kenney and
Vigness-Raposa, 2010). Harbor seals have the potential to occur in
areas adjacent to the export cable corridors and landfall sites.
Although there are no known harbor seal haul outs in the Project Area,
harbor seals occur throughout the New York coastline and have the
potential to haul out at many beach sites. As the closest documented
pinniped haul out sites are located further than 463 km away from the
Project Area, 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, 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 (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 potential repeated Level B harassment across
a few days of some small subset of individuals, 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.
As described above, noise from pile driving is mainly low
frequency. PTS is not anticipated or authorized. Any TTS that does
occur would fall within the lower end of pinniped hearing ranges (i.e.,
50 Hz to 86 kHz), TTS would not occur at frequencies where pinniped
hearing is most sensitive. In summary, any TSS would be of small degree
and not occur across the entire, or even the most sensitive, hearing
range. Hence, any impacts from 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
the annual mortality/serious injury (M/SI; 339) for the seals is well
below PBR (i.e., 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
United States Atlantic, as well as in Canada (Hayes et al., 2020). For
harp seals, for which there is no recent UME, the total U.S. fishery-
related mortality and serious injury for this stock is very low
relative to the stock size and can be considered insignificant and
approaching zero mortality and serious injury rate (Hayes et al.,
2022). The harp seal stock abundance appears to have stabilized (Hayes
et al., 2022).
Given the magnitude and severity of the impacts discussed above,
and in consideration of the required mitigation and other information
presented, Empire Wind'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, gray, and harp 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
[[Page 11416]]
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 Empire Wind'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; therefore, in practice, and 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.
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 17 species of marine mammals (with 18 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. Unless otherwise noted,
the small numbers analysis conservatively assumes each take occurs to a
different individual in the population.
For 16 stocks, less than 6 percent of the stock abundance is
authorized for take by harassment. Specific to the North Atlantic right
whale, the maximum amount of take per year, which is by Level B
harassment only, is 13, or 3.85 percent of the stock abundance,
assuming that each instance of take represents a different individual.
Please see table 38 for information relating to this small numbers
analysis.
For bottlenose dolphins, Empire Wind was able to identify the
amount of take by all activities other than HRG surveys on a per stock
basis (offshore or Northern Migratory coastal; see table 38). Taking
into account public comment related to these issues, NMFS has taken a
finer look at calculating the percentage of take expected for the two
affected stocks of bottlenose dolphins.
The Project Area is located at the northern habitat boundary edge
for the Northern Migratory coastal stock. As described in Hayes et al.
(2021), this stock, as described in its name, migrates along the coast
of the U.S. throughout the year. During warm water months (primarily
July and August), this stock occupies coastal waters from the shoreline
to approximately the 20-m isobath between Assateague, Virginia, and
Long Island, New York. The stock occupies more southern coastal waters
from approximately Cape Lookout, North Carolina, to the North Carolina/
Virginia border during colder months; bottlenose dolphins have been
rarely observed during cold water months in coastal waters north of the
North Carolina/Virginia border (Hayes et al., 2021). Empire Wind
requested, and NMFS has authorized, take equating to one average group
size (n=15) of bottlenose dolphins on each survey day (n=191) which
could occur January through December. Habitat distribution alone
precludes the Northern Migratory coastal stock from being present
within or near the Project Area during cooler months. Therefore, to
assume this stock could be taken year-round (i.e., subject to
harassment every day HRG surveys would occur) is not reasonable or
based on the best available science.
For purposes of this analysis, NMFS has conservatively assumed that
every day during summer months (July and August; as identified in Hayes
et al., 2021) when it is most likely this stock could occur in the
Project Area, one average group size per day could be taken by
harassment incidental to HRG surveys. That is, harassment could occur
to the coastal stock on approximately 62 days, noting these 62 days
could be spread out over a longer time period (e.g., June through
September) when waters are warm enough to host this stock. These
assumptions equate to 930 takes (i.e., 62 days x 15 dolphins per day)
from HRG surveys. Combined with the take authorized incidental to pile
driving (i.e., 1,185 takes), the maximum total take authorized in a
given year is 2,115. If one assumes that all takes are of a different
individual, this equates to 31.9 percent of the population. However,
the assumptions that all takes are of a different individual (i.e.,
harassment on more than one day could occur to the same individual) and
all takes could be attributed to the coastal stock are also not likely
scenarios; therefore, in addition to the fact that the Project Area is
the most northern boundary of known habitat, the actual percentage of
stock taken by harassment is expected to be less than 31.9 percent.
Regarding the Western North Atlantic offshore stock of bottlenose
dolphins, if one assumes that all take authorized for HRG surveys
(2,865) occurs to the offshore stock, the total amount of take
authorized in any given year (4,655) equates to 7.4 percent of the
population (62,851). NMFS expects this percentage to also be an
overestimate, given that this estimate assumes each take is of a
different individual, an unlikely scenario as discussed above, and
assumes that all of the expected bottlenose dolphin takes are
attributed to the offshore stock, also a very unlikely scenario.
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
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, and in this case, consulted with the
NOAA GARFO.
The NMFS Office of Protected Resources has authorized the take of
four marine mammal species, which are listed under the ESA: the North
Atlantic right, sei, fin, and sperm whale. The Permit and Conservation
Division requested initiation of section 7 consultation on April 12,
2023, with GARFO for the promulgation of the rulemaking. NMFS issued a
Biological Opinion on September 8, 2023,
[[Page 11417]]
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/55324.
Empire Wind is required to abide by the promulgated regulations, as
well as the reasonable and prudent measure and terms and conditions of
the Biological Opinion and Incidental Take Statement, as issued by
NMFS.
National Environmental Policy Act
To comply with NEPA (42 U.S.C. 4321 et seq.) and the NOAA
Administrative Order (NAO) 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 2023 Final EIS (FEIS), which was
finalized on September 11, 2023, and is available at: https://www.boem.gov/renewable-energy/state-activities/empire-wind-final-eis.
In accordance with 40 CFR 1506.3, NMFS independently reviewed and
evaluated the 2023 Empire Wind 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 Empire Wind 1 FEIS through a joint
Record of Decision (ROD) with BOEM. The joint ROD for adoption of the
2023 Empire Wind 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 (5 U.S.C. 601 et seq.),
the Chief Counsel for Regulation of the Department of Commerce has
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 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
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. As required, on June 24, 2021, Empire Wind submitted a Federal
consistency certification to New York and voluntarily submitted a
Federal consistency certification to New Jersey for approval of the COP
by BOEM and the issuance of an Individual Permit by United States Army
Corps of Engineers, under sections 10 and 14 of the Rivers and Harbors
Act and section 404 of the Clean Water Act (15 CFR part 930, subpart
E). New York began its review of the proposed activity pursuant to 15
CFR part 930, subpart D, on November 18, 2022.
NMFS determined that Empire Wind's application for MMPA ITRs is an
unlisted activity under the State of New York's coastal management
program 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 a NOR
of Empire Wind's application in the Federal Register on September 9,
2022 (87 FR 55409), and published the proposed rule on April 13, 2023
(88 FR 22696). The State of New York did not request approval from the
Director of NOAA's Office for Coastal Management to review Empire
Wind's application as an unlisted activity, and the time period for
making such request has expired. Therefore, NMFS has determined the ITA
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) and (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 Empire Wind's specified activities during the
construction of the Project offshore of New York. Until the effective
date of these regulations, Empire Wind is prohibited from taking marine
mammals incidental to the Project.
In addition, good cause exists for waiving the delay in effective
date. In order for Empire Wind to start cable landfall construction
activities in Spring 2024, which is pertinent for construction activity
sequencing and vessel and other services procurement and availability,
Empire Wind must submit a certified verification agent reviewed and
certified Fabrication and Installation Report, which includes all
Federal, State, and local permits, to Bureau of Safety and
Environmental Enforcement (BSEE) at least 60 days prior to the start of
such activities (30 CFR 285.700).
Moreover, offshore wind projects, such as the 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, Empire Wind 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 22, 2024. For these
reasons, the subject
[[Page 11418]]
regulations will be made effective on February 22, 2024.
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 18, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
PART 217--REGULATIONS GOVERNING THE TAKE 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 CC, consisting of Sec. Sec. 217.280 through 217.289, to
read as follows:
Subpart CC--Taking Marine Mammals Incidental to the Empire Wind Project
Offshore of New York
Sec.
217.280 Specified activity and specified geographical region.
217.281 Effective dates.
217.282 Permissible methods of taking.
217.283 Prohibitions.
217.284 Mitigation requirements.
217.285 Requirements for monitoring and reporting.
217.286 Letter of Authorization.
217.287 Modifications of Letter of Authorization.
217.288--217.289 [Reserved]
Subpart CC--Taking Marine Mammals Incidental to the Empire Wind
Project, Offshore New York
Sec. 217.280 Specified activity and specified geographical region.
(a) Regulations in this subpart apply to activities associated with
the Empire Wind Project (hereafter referred to as the ``Project'') by
Empire Offshore Wind, LLC (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 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 0512 Commercial Lease
of Submerged Lands for Renewable Energy Development, two export cable
routes, and two sea-to-shore transition points located at South
Brooklyn Marine Terminal, in Brooklyn, NY (Empire Wind 1), and Long
Island, NY (Empire Wind 2).
(c) The specified activities are impact pile driving of up to 147
wind turbine generator (WTGs) and up to two offshore substation (OSSs)
foundations; impact and vibratory pile driving associated with cable
landfall construction and marina activities; high-resolution
geophysical (HRG) site characterization surveys; vessel transit within
the specified geographical region to transport crew, supplies, and
materials; WTG operation; fishery and ecological monitoring surveys;
placement of scour protection; and trenching, laying, and burial
activities associated with the installation of the export cable route
from OSSs to shore-based converter stations and inter-array cables
between turbines.
Sec. 217.281 Effective dates.
The regulations in this subpart are effective from February 22,
2024, through February 21, 2029.
Sec. 217.282 Permissible methods of taking.
Under the LOA, issued pursuant to Sec. Sec. 216.106 and 217.286,
LOA Holder, and those persons it authorizes or funds to conduct
activities on its behalf, may incidentally, but not intentionally, take
marine mammals within the vicinity of BOEM Lease Area OCS-A 0512
Commercial Lease of Submerged Lands for Renewable Energy Development,
along export cable routes, and at the two sea-to-shore transition
points located at the South Brooklyn Marine Terminal, in Brooklyn, NY
(Empire Wind 1), and Long Island, NY (Empire Wind 2), 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 pile driving (WTG and OSS foundation
installation), impact and vibratory pile driving during cable landfall
and marina activities, and HRG site characterization surveys;
(b) By Level A harassment associated with the acoustic disturbance
of marine mammals by impact pile driving of WTG and OSS foundations;
(c) Take by mortality (death) or serious injury of any marine mammal
species is not authorized; and (d) The incidental take of marine
mammals by the activities listed in paragraphs (a) and (b) of this
section is limited to the following species:
Table 1 to Paragraph (d)
------------------------------------------------------------------------
Marine mammal species Scientific name Stock
------------------------------------------------------------------------
Fin whale................... Balaenoptera Western North
physalus. Atlantic.
Humpback whale.............. Megaptera Gulf of Maine.
novaeangliae.
Minke whale................. Balaenoptera Canadian Eastern
acutorostrata. Coastal.
North Atlantic right whale.. Eubalaena glacialis. Western North
Atlantic.
Sei whale................... Balaenoptera Nova Scotia.
borealis.
Atlantic spotted dolphin.... Stenella frontalis.. Western North
Atlantic.
Atlantic white-sided dolphin Lagenorhynchus Western North
acutus. Atlantic.
Bottlenose dolphin.......... Tursiops truncatus.. Western North
Atlantic, offshore.
Bottlenose dolphin.......... Tursiops truncatus.. Western North
Atlantic, coastal.
Short-beaked common dolphin. Delphinus delphis... Western North
Atlantic.
Harbor porpoise............. Phocoena phocoena... Gulf of Maine/Bay of
Fundy.
Long-finned pilot whale..... Globicephala melas.. Western North
Atlantic.
Short-finned pilot whale.... Globicephala Western North
macrorhynchus. Atlantic.
Risso's dolphin............. Grampus griseus..... Western North
Atlantic.
Sperm whale................. Physeter North Atlantic.
macrocephalus.
Gray seal................... Halichoerus grypus.. Western North
Atlantic.
Harbor seal................. Phoca vitulina...... Western North
Atlantic.
Harp seal................... Pagophilus Western North
groenlandicus. Atlantic.
------------------------------------------------------------------------
[[Page 11419]]
Sec. 217.283 Prohibitions.
Except for the takings described in Sec. 217.282 and authorized by
an LOA issued under Sec. 217.286 or Sec. 217.287, 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. 217.286 or
Sec. 217.287;
(b) Take any marine mammal not specified in Sec. 217.282(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. 217.282(d), after
NMFS Office of Protected Resources determines such taking results in
more than a negligible impact on the species or stocks of such marine
mammals.
Sec. 217.284 Mitigation requirements.
When conducting the activities identified in Sec. 217.280(c)
within the area described in Sec. 217.280(b), LOA Holder must
implement the mitigation measures contained in this section and any LOA
issued under Sec. 217.286 or Sec. 217.287. 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 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., Dynamic Management Areas (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, unless a PSO or PAM operator confirms it is
another type of whale;
(7) The LOA Holder must instruct all vessel personnel regarding the
authority of the PSO(s). If a delay to commencing an activity is called
for by the Lead PSO or PAM operator, LOA Holder must take the required
mitigative action. If a shutdown of an activity is called for by the
Lead PSO or PAM operator, 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, PAM operator, and the activity
operator regarding delays or shutdowns would only be discussed after
the mitigative action has occurred;
(8) 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 Level B harassment zone prior to beginning a specified
activity, the activity must be delayed. If the activity is ongoing, it
must be shut down 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 and is on a path away from
the Level B harassment zone or after 15 minutes for small odontocetes
and pinnipeds, and 30 minutes for all other species with no further
sightings;
(9) 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;
(10) For in-water construction heavy machinery activities listed in
Sec. 217.280(c), if a marine mammal is on a path towards or comes
within 10 meters (m) (32.8 feet) 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 Identity (MMSI) numbers to NMFS
Office of Protected Resources;
(12) By accepting the issued 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, unless an emergency
situation presents a threat to the health, safety, or life of a person
or when a vessel, actively engaged in emergency rescue or response
duties, including vessel-in-distress or environmental crisis response,
requires speeds in excess of 10 knots (kn) (18.5 kilometers per hour
(km/hr)) to fulfill those
[[Page 11420]]
responsibilities, while in the specified geographical region. An
emergency is defined as a serious event that occurs without warning and
requires immediate action to avert, control, or remedy harm. All vessel
speeds are referenced to speed over ground:
(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
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 observers' training and understanding
of the Incidental Take Authorization (ITA) requirements must be
documented on a training course log sheet and reported to NMFS;
(2) All vessel operators must maintain a vigilant watch for all
marine mammals and slow down, stop their vessel, or alter course to
avoid striking any marine mammal;
(3) All underway vessels operating at any speed, transiting within
the specified geographic area (i.e., the Mid-Atlantic Bight), must have
a dedicated visual observer on duty at all times 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. Dedicated visual observers may be third-party observers
(i.e., NMFS-approved PSOs) or trained crew members, as defined in
paragraph (b)(1) of this section. Dedicated 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 not have
any other duties while observing and 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;
(4) All vessel operators and/or the dedicated visual observer on
each transiting vessel must continuously monitor the U.S. Coast Guard
VHF Channel 16 at the onset of transiting through the duration of
transiting, 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 dedicated visual observer(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 must be
immediately communicated to all project-associated vessels;
(6) All vessel operators must abide by existing applicable vessel
speed rule regulations at 50 CFR part 224 (nothing in this subpart
exempts vessels from any other applicable marine mammal speed and
approach regulations);
(7) Vessels must not travel over 10 kn (18.5 km/hr) from November 1
through April 30, annually, in the specified geographic region, within
any active North Atlantic right whale Slow Zone (i.e., DMAs or
acoustically-triggered slow zone);
(8) If vessel(s) are traveling at speeds greater than 10 kn (18.5
km/hr) (i.e., no speed restrictions are enacted) in a 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 (18.5 km/hr) 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;
(9) All vessel operators, regardless of their vessel's size, must
immediately reduce speed to 10 kn (18.5 km/hr) 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 via any of the monitoring
systems (refer back to paragraph (b)(4) of this section) within 10 km
(6.2 miles (mi)) of a transiting vessel(s), that vessel must operate at
10 kn (18.5 km/hr) or less for 24 hours following the reported
detection;
(10) All vessel operators, regardless of their vessel's size, must
immediately reduce speed to 10 kn (18.5 km/hr) or less when any large
whale (other than a North Atlantic right whale- refer back to paragraph
(b)(7) of this section), mother/calf pairs, or large assemblages of
cetaceans are sighted within 500 m of a transiting vessel;
(11) 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
(18.5 km/hr) 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 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)(11);
(12) 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 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 100 m;
(13) All vessels must maintain a minimum separation distance of 50
m (164 ft) from all delphinid 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;
(14) 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
[[Page 11421]]
direction until the animal has left the area);
(15) All vessels underway must not divert or alter course to
approach any marine mammal;
(16) Vessel operators must check, daily, for information regarding
the establishment of mandatory or voluntary vessel strike avoidance
areas (i.e., DMAs, Seasonal Management Areas (SMAs), Slow Zones) and
any information regarding North Atlantic right whale sighting
locations; and
(17) 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. If a plan is not submitted or
approved by NMFS prior to vessel operations, all project vessels must
travel at speeds of 10 kn (18.5 km/hr) 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 impact pile driving activities associated with the
installation of WTG and OSS foundations:
(1) Foundation pile driving must not occur January 1 through April
30, annually. Foundation pile driving must not be planned and must be
avoided to the maximum extent practicable in December; however, it may
occur if necessary to complete the Project with prior approval by NMFS.
Empire Wind must notify NMFS in writing by September 1 of that year
that circumstances are expected to necessitate pile driving in
December;
(2) Monopiles must be no larger than 11 m in diameter. Hammer
energies must not exceed 5,500 kilojoules (kJ) for monopile
installation. No more than two monopiles may be installed per day. Pin
piles must be no larger than 2.5 m in diameter. Hammer energies must
not exceed 3,200 kJ for pin pile installation. No more than three pin
piles may be installed per day;
(3) 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, as part of the Pile Driving and Marine Mammal
Monitoring Plan for Nighttime Pile Driving that reliably demonstrates
the efficacy of their night vision methods, has been approved by NMFS.
No new pile driving may begin when pile driving continues into
darkness;
(4) LOA Holder must utilize a soft-start protocol as described in
the LOA. 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;
(5) LOA Holder must establish clearance and shutdown zones, which
must be measured using the radial distance from the pile being driven.
PSOs must visually monitor clearance zones for marine mammals for a
minimum of 60 minutes prior to commencing pile driving. At least one
PAM operator must review data from at least 24 hours prior to pile
driving and actively monitor hydrophones for 60 minutes prior to pile
driving, at all times during pile driving, and for 30 minutes after
pile driving. The entire minimum visibility zone must be visible (i.e.,
not obscured by dark, rain, fog, etc.) for a full 60 minutes
immediately prior to commencing impact pile driving. All clearance
zones must be confirmed to be free of marine mammals for 30 minutes
immediately prior to the beginning of soft-start procedures. PAM
operators must immediately communicate all detections of marine mammals
at any distance to the Lead PSO, including any determination regarding
species identification, distance, and bearing and the degree of
confidence in the determination. If a marine mammal is detected within,
or is about to enter, the applicable clearance zones, during this 30-
minute period, impact pile driving must be delayed 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;
(6) For North Atlantic right whales, any visual observation by a
protected species observer at any distance or acoustic detection within
the PAM Monitoring Zone must trigger a delay to the commencement of
pile driving. The North Atlantic right whale clearance zone may only be
declared clear if no North Atlantic right whale acoustic or visual
detections have occurred during the 60-minute monitoring period. Any
large whale sighting by a PSO or detected by a PAM operator that cannot
be identified as a non-North Atlantic right whale must be treated as if
it were a North Atlantic right whale;
(7) LOA Holder must deploy at least two functional noise
attenuation devices that reduce noise levels to the modeled harassment
isopleths, assuming 10-decibels (dB) attenuation, during all foundation
pile driving, and comply with the following measures:
(i) A single bubble curtain must not be used;
(ii) The bubble curtain(s) must distribute air bubbles using an air
flow rate of at least 0.5 m\3\/(minute*m). The bubble curtains 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 curtains 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; and
(vi) Corrections to the bubble rings to meet the performance
standards in this paragraph (c)(7) must occur prior to impact pile
driving of monopiles. For any noise mitigation device in addition to
the bubble curtains, 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;
(8) LOA Holder must utilize NMFS-approved PAM systems, as described
in paragraph (c)(15) of this section. The PAM system components (i.e.,
acoustic buoys) must not be placed closer than 1 km 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);
(9) LOA Holder must utilize PSO(s) and PAM operator(s), as
described in Sec. 217.285(c). At least three on-duty PSOs must be on
every impact pile driving platform(s);
[[Page 11422]]
(10) If a marine mammal is detected (visually or acoustically)
entering or within the respective shutdown zone after pile driving has
begun, the PSO or PAM operator must call for a shutdown of pile driving
and 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 risk of damage to a vessel that creates risk of injury or
loss of life for individuals, or the lead engineer determines there is
a risk of pile refusal or pile instability. If pile driving is not
shutdown in 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 217.285(f));
(11) A visual observation or acoustic detection of a North Atlantic
right whale at any distance by foundation installation PSOs or an
acoustic detection within 10 km triggers shutdown requirements under
paragraph (c)(10) of this section. If pile driving has been shut down
due to the presence of North Atlantic right whales, pile driving may
not restart until the North Atlantic right whale has neither been
visually or acoustically detected by pile driving PSOs and PAM
operators for 30 minutes;
(12) 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 or to avoid pile
refusal, at which time LOA Holder must use the lowest hammer energy
practicable to maintain stability;
(13) LOA Holder must conduct thorough sound field verification
(SFV) measurements during pile driving activities associated with the
installation of, at minimum, the first three monopile foundations. SFV
measurements must continue until at least three consecutive piles
demonstrate noise levels are at or below those modeled, assuming 10 dB
of attenuation. Subsequent SFV measurements are also required should
larger piles be installed or if additional piles are driven that may
produce louder sound fields than those previously measured (e.g.,
higher hammer energy, greater number of strikes, etc.). In addition to
thorough SFV monitoring, LOA Holder also must conduct abbreviated SFV
for all foundations, using at least one acoustic recorder for every
foundation for which thorough SFV monitoring is not conducted:
(i) Thorough SFV 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 selected such that measurement
of Level A harassment and Level B harassment isopleths are accurate,
feasible, and avoids extrapolation. 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
(measurement systems);
(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 (e.g.,
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. 217.285(f) 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 for the first three monopiles
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 sound attenuation measures 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. LOA Holder must optimize the sound attenuation
systems (e.g., ensure hose maintenance, pressure testing, etc.) to 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;
(viii) If, after additional measurements conducted pursuant to
requirements of paragraph (c)(13)(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 11423]]
an additional three 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;
(ix) LOA Holder must conduct SFV measurements upon commencement of
turbine operations to estimate turbine operational source levels, in
accordance with a NMFS-approved Foundation Installation Pile Driving
SFV Plan. SFV must be conducted in the same manner as previously
described in this paragraph (c)(13), with appropriate adjustments to
measurement distances, number of hydrophones, and hydrophone
sensitivities being made, as necessary; and
(x) 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. 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;
(14) 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 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 a
description of all monitoring equipment and PAM and PSO protocols
(including number and location of PSOs) for all pile driving. No
foundation pile installation can occur without NMFS' approval of the
Plan; and
(15) 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 (impact pile driving) 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) Cable landfall construction and marina activities. The
following requirements apply to cable landfall and marina construction
activities:
(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.
217.285(d). At least two on-duty PSOs must monitor for marine mammals
at least 30 minutes before, during, and 30 minutes after impact and
vibratory pile driving associated with cofferdam and casing pipe
installation and removal and marine activities; and
(4) If a marine mammal is observed entering or within the
respective shutdown zone after 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 next available weekly report (as
described in Sec. 217.285(f)).
(5) 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.
(e) HRG surveys. The following requirements apply to HRG surveys
operating sub-bottom profilers (SBPs) (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.
217.285(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 in
this subpart, those BMPs supersede the requirements in this subpart;
(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 PSO, 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
[[Page 11424]]
(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 specified in the LOA;
(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
zone must be visible, except as indicated in paragraph (e)(13) 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
would be allowed to 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 (e)(13) 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 (e)(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 repeated. 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.
(17) If multiple HRG vessels are operating concurrently, any
observations of marine mammals must be communicated to PSOs on all
nearby survey vessels.
(f) Fisheries monitoring surveys. The following measures apply to
fishery monitoring surveys:
(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 nmi (1.85 km)
of the planned location and 15 minutes before gear deployment, then LOA
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) 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). If marine mammals
are sighted before the gear is fully removed from the water, LOA Holder
will take the most appropriate action to avoid marine mammal
interaction;
(5) All fisheries monitoring gear must be fully cleaned and
repaired (if damaged) before each use/deployment;
(6) Trawl tows must be limited to a maximum of a 20-minute trawl
time;
(7) All gear must be emptied as close to the deck/sorting area and
as quickly as possible after retrieval;
[[Page 11425]]
(8) During trawl surveys, vessel crew must open the codend of the
trawl net close to the deck in order to avoid injury to animals that
may be caught in the gear;
(9) 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 Atlantic Large Whale Take
Reduction Plan regulations at Sec. 229.32, and all buoy markings must
comply with instructions received by the NOAA Greater Atlantic Regional
Fisheries Office Protected Resources Division;
(10) All captains and crew conducting fishery surveys will be
trained in marine mammal detection and identification. Marine mammal
monitoring will be conducted by the captain and/or a member of the
scientific crew before (within 1 nmi (1.85 km) and 15 minutes prior to
deploying gear), during, and after haul back;
(11) All survey gear must be removed from the water whenever not in
active survey use (i.e., no wet storage);
(12) All reasonable efforts, that do not compromise human safety,
must be undertaken to recover gear; and
(13) Any lost gear associated with the fishery surveys must be
reported to the NOAA Greater Atlantic Regional Fisheries Office
Protected Resources Division within 24 hours.
Sec. 217.285 Requirements for monitoring and reporting.
(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.
Alternative 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)(4) and (5) 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). Lead PSO or
PAM operators must be unconditionally approved and have a minimum of 90
days in a northwestern Atlantic Ocean offshore environment performing
the role (either visual or acoustic), with the conclusion of the most
recent relevant experience not more than 18 months previous. A
conditionally approved PSO or PAM operator must be paired with an
unconditionally approved PSO or PAM operator;
(7) PSOs for cable landfall construction, marina activities, and
HRG surveys may be unconditionally or conditionally approved. PSOs and
PAM operators for foundation installation activities must be
unconditionally approved;
(8) At least one on-duty PSO and PAM operator, where applicable,
for each activity (e.g., impact pile driving, vibratory pile driving,
and HRG surveys) must be designated as the Lead PSO or Lead PAM
operator. The Lead PSO should be unconditionally approved for Tiers 1-
3;
(9) LOA Holder must submit NMFS previously approved PSO and PAM
operator resumes 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 and include which specific
roles and activities the PSOs/PAM operators are being requested for.
PAM operator experience must also include the information described in
paragraph (a)(11) of this section;
(11) PAM operators are responsible for obtaining NMFS' approval. To
be approved as a PAM operator, the person must meet the following
qualifications:
[[Page 11426]]
The PAM operator must demonstrate that they have prior large whale PAM
experience with real-time acoustic detection systems and/or have
completed specialized training for the PAM system(s) that will be used
for the Project; PAM operators must demonstrate they are able to detect
and identify Atlantic Ocean marine mammals sounds, in particular: North
Atlantic right whale sounds, humpback whale sounds, and that they are
able to deconflict humpback whale sounds 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, or
not detected; where localization of sounds or deriving bearings and
distance are possible, the PAM operators need to have demonstrated
experience in the localization of sounds or deriving bearings and
distance; 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 metrics;
(12) PAM operators must be able to review and classify acoustic
detections in near real-time prioritizing North Atlantic right whales
and noting detection of other cetaceans) during the real-time
monitoring periods; and
(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.
(b) General PSO and PAM operator requirements. The following
measures apply to PSOs and PAM operators and must be implemented by LOA
Holder:
(1) 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. The PAM
operator(s) must assist PSOs in ensuring full coverage of the clearance
and shutdown zones. The PAM operator must monitor to and past the
clearance zone for large whales;
(2) 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., detected, possibly detected, not detected) in the
determination. All on-duty PSOs and PAM operator(s) must remain in
real-time 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;
(3) 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 (i.e.,
Mysticetus or similar system) who must be responsible for requesting
that the designated crewmember implement the necessary mitigation
procedures (i.e., delay);
(4) 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 three PSOs on
the pile driving and any dedicated PSO vessel that may be used 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. A minimum of 3 PSOs must be
active on a dedicated PSO vessel or an alternate monitoring technology
(e.g., UAS) must be used that has been demonstrated as having greater
visual monitoring capability compared to 3 PSOs on a dedicated PSO
vessel and is approved by NMFS. 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. 217.284(c)(15);
(5) 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;
(6) 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 schedule of more than 12
hours in a 24-hour period;
(7) Any PSO has the authority to call for a delay or shutdown of
project activities;
(8) Any visual observations of ESA-listed marine mammals must be
communicated immediately to PSOs and vessel captains associated with
other vessels to increase situational awareness; and
(9) LOA Holder personnel and PSOs are required to use available
sources of information on North Atlantic right whale presence to aid in
monitoring efforts. These include daily monitoring of the Right Whale
Sightings Advisory System, consulting of the WhaleAlert app, and
monitoring of the Coast Guard's VHF Channel 16 throughout the day to
receive notifications of any sightings and information associated with
any Dynamic Management Areas, to plan construction activities and
vessel routes, if practicable, to minimize the potential for co-
occurrence with North Atlantic right whales.
(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 activities. If PSOs cannot visually
monitor the minimum visibility zone prior to foundation pile driving at
all times using the equipment described in paragraphs (b)(4) and (5) of
this section, pile-driving operations must not commence or must
shutdown if they are currently active. Foundation pile driving may only
commence when the minimum visibility zone is fully visible (e.g., not
obscured by darkness, rain, fog, etc.) and the clearance zones are
clear of marine mammals for at least 30 minutes, as determined by the
Lead PSO, immediately prior to the initiation of impact pile driving;
[[Page 11427]]
(2) At least three on-duty PSOs must be stationed on each vessel-
based observer platform. If an aerial platform is used (per Sec.
217.284(e)(7)), at least two on-duty PSOs must be actively searching
for marine mammals. Concurrently, at least one PAM operator per
acoustic data stream (i.e., equivalent to the number of acoustic buoys)
must be actively monitoring for marine mammals 60 minutes before and
during, and 30 minutes after impact pile driving in accordance with a
NMFS-approved PAM Plan; and
(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 activities.
(d) PSO requirements during cable landfall construction activities.
The following measures apply to PSOs during cable landfall construction
activities and must be implemented by LOA Holder:
(1) At least two PSOs must be on active duty during all activities
related to cable landfall construction. These PSOs must be located at
the best vantage points for observing marine mammals;
(2) PSOs must ensure that there is appropriate visual coverage for
the entire clearance and shutdown zones and as much of the Level B
harassment zone as possible; and
(3) PSOs must monitor the clearance zone for the presence of marine
mammals for 30 minutes before and throughout pile driving, and for 30
minutes after all pile driving activities have ceased. Pile driving
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 acoustic sources that have the
potential to result in harassment (i.e., Compressed High Intensity
Radiated Pulse (CHIRPs), boomers, and sparkers) and must be implemented
by LOA Holder:
(1) 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;
(2) 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;
(3) Any observations of marine mammals must be communicated to PSOs
on all nearby survey vessels during concurrent HRG surveys; and
(4) 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) Reporting. LOA Holder must comply with the following reporting
measures:
(1) Prior to initiation of any on-water project 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.,
vibratory installation/removal, impact pile driving, construction
survey), use of any noise attenuation device(s), and the specific phase
of the activity (e.g., ramp-up of HRG equipment, HRG acoustic source
on/off, soft-start for pile 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. 217.286;
(4) If a marine mammal is acoustically detected during PAM
monitoring, the following information must be recorded and reported to
NMFS: location of hydrophone (i.e., latitude 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 UTC. i.e., EST
time zone is UTC-5); duration of recordings (i.e., start/end dates and
times; in 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[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). The following
information must be reported for each detection: species identification
(if possible); call type and number of calls (if known); temporal
aspects of vocalization (e.g., date, time,
[[Page 11428]]
duration, etc.; date times in ISO 8601 format); confidence of detection
(i.e., 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 the name(s) of PAM operator(s) on duty;
(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
(e.g., date, time, duration, etc.; date times in ISO 8601 format);
confidence of detection (i.e., 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 the name(s)
of PAM operator(s) on duty;
(ii) [Reserved]
(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 acoustic and
visual detections of marine mammals; 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 (e.g., number of shutdowns or clearance zone delays, etc.)
or, if no mitigative actions was taken, why none were taken;
operational details (e.g., days and duration of impact and vibratory
pile driving, 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., impact 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 30
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 30 calendar days of NMFS
Office of Protected Resources receipt of the draft report, the report
shall be considered final;
(9) For those foundation piles requiring thorough SFV measurements,
LOA Holder must provide the initial results of the 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 a 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 (R95percent) 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 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
[[Page 11429]]
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
(refer back to Sec. 217.284(c)(13)), 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 SFV measurements from each foundation
installation must be submitted as soon as possible, but no later than
90 days following completion of each event's SFV measurements. The
final reports must include all details prescribed above for the interim
report as well as, at minimum, the following: the peak sound pressure
level (SPLpk); the root-mean-square sound pressure level
that contains 90 percent of the acoustic energy (SPLrms);
the single strike sound exposure level (SELss); the
integration time for SPLrms; the spectrum; and the 24-hour
cumulative SEL extrapolated from measurements at all hydrophones. The
final report must also include at least the following: 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; the sound levels
reported must be in median, arithmetic mean, and L5 (95
percent exceedance) (i.e., average in linear space), and in dB; range
of TL 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, must also be included in the final SFV report;
(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 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):
(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 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 calling NMFS is not possible, reports can also be
made to the U.S. Coast Guard via channel 16 or through the WhaleAlert
app (https://www.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, 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;
[[Page 11430]]
(iii) If a large whale (not including a North Atlantic right whale)
is observed at any time by PSOs or project personnel during vessel
transit, LOA Holder must report the sighting to the WhaleAlert app
(https://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]) and, if in the
Greater Atlantic region (Maine to Virginia), NMFS Greater Atlantic
Regional Fisheries Office (GARFO; [email protected],
[email protected]) or, if in the Southeast region (North
Carolina to Florida), NMFS Southeast Regional Office (SERO;
[email protected]), as soon as feasible. The report (via phone
or email) must include contact information (e.g., 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; photographs or video footage of
the animal(s) if available; 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 the 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 (e.g., 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) LOA Holder must report any lost gear associated with the
fishery surveys to the NMFS GARFO 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.
Sec. 217.286 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 21, 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.
217.287;
(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; and
(f) Notice of issuance or denial of an LOA must be published in the
Federal Register within 30 days of a determination.
Sec. 217.287 Modifications of Letter of Authorization.
(a) An LOA issued under Sec. Sec. 217.282 and 217.286 or this
section for the activity identified in Sec. 217.280(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 Office of Protected Resources 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:
(1) NMFS Office of Protected Resources 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 Office of Protected Resources may, if appropriate, publish
a notice of proposed modified LOA in the Federal Register, including
the associated analysis of the change, and
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solicit public comment before issuing the LOA.
(c) An LOA issued under Sec. Sec. 217.282 and 217.286 or this
section for the activities identified in Sec. 217.280(a) may be
modified by NMFS Office of Protected Resources under the following
circumstances:
(1) Through adaptive management, NMFS Office of Protected Resources
may modify (e.g., 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
Office of Protected Resources shall publish a notice of proposed LOA in
the Federal Register and solicit public comment.
(2) If NMFS Office of Protected Resources 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. 217.282 and 217.286 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. 217.288-217.289 [Reserved]
[FR Doc. 2024-01363 Filed 2-13-24; 8:45 am]
BILLING CODE 3510-22-P