89 FR 237 pgs. 99227-99230 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off Rhode Island and Massachusetts

Next Article Next

Type: NOTICEVolume: 89Number: 237Pages: 99227 - 99230

Docket number: [RTID 0648-XE475]

FR document: [FR Doc. 2024-28994 Filed 12-9-24; 8:45 am]

Agency: Commerce Department

Sub Agency: National Oceanic and Atmospheric Administration

Official PDF Version: PDF Version

Pages: 99227, 99228, 99229, 99230

[top]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE475]

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off Rhode Island and Massachusetts

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; proposed modification of an incidental harassment authorization; request for comments.

SUMMARY:

NMFS is proposing to modify an existing incidental harassment authorization (IHA) issued to Bay State Wind, LLC (Bay State Wind) on October 3, 2024, authorizing take of marine mammals incidental to marine site characterization surveys conducted off the coasts of Rhode Island and Massachusetts in 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 0500 and the associated export cable route (ECR) area. While conducting said marine site characterization surveys, Bay State Wind has encountered common dolphins ( Delphinus delphis ) at a rate greater than anticipated under the analysis for that IHA and, therefore, requests that NMFS modify the IHA to increase the number of authorized take by Level B harassment for that species only. No other changes to the IHA were requested or are proposed herein, and the expiration date remains unchanged. NMFS will consider public comments on the requested modification prior to making any final decision and agency responses will be summarized in the final notice of our decision.

DATES:

Comments and information must be received no later than December 26, 2024.

ADDRESSES:

Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Written comments should be submitted via email to ITP.hilt@noaa.gov.

[top] Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments, including all attachments, must not exceed a 25-megabyte file size. All comments

received are a part of the public record and will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying information ( e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT:

Rachel Hilt, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the original application and supporting documents (including NMFS Federal Register notices of the original proposed and final authorizations, and the previous IHA), as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

The MMPA prohibits the "take" of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other "means of effecting the least practicable adverse impact" on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as "mitigation"); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

History of Request

On March 27, 2024, NMFS received a request from Bay State Wind for an IHA to take marine mammals incidental to conducting high-resolution geophysical (HRG) surveys off the coasts of Rhode Island and Massachusetts in OCS-A 0500 ( i.e., Ørsted's planned Bay State Wind development) and the associated ECR area. Following NMFS' review of the application, Bay State Wind submitted a revised version on June 10, 2024. After additional NMFS review of the revised application, Bay State Wind submitted another revised version on July 29, 2024. That application was deemed adequate and complete on August 1, 2024. Bay State Wind's request was for the take of 17 species of marine mammals by Level B harassment only. Notice of proposed IHA and request for comments were published in the Federal Register on August 21, 2024 (89 FR 67597). The IHA was issued on October 3, 2024 (89 FR 81458, October 8, 2024), with effective dates October 6, 2024 to October 5, 2025.

On November 1, 2024, NMFS received a request from Bay State Wind for a modification to the existing IHA. Bay State Wind informed NMFS that they were encountering common dolphins during the marine site characterization surveys at a rate greater than anticipated. Bay State Wind expressed concern that this elevated encounter rate could potentially result in the authorized take for common dolphins being exceeded. Therefore, Bay State Wind requested that NMFS modify the existing IHA by increasing the number of authorized take of that species only. NMFS is proposing to modify the IHA to increase the number of authorized take by Level B harassment of common dolphin only. No other changes to the IHA are proposed.

Description of the Proposed Activity and Anticipated Impacts

The proposed modified IHA would include the same HRG surveys in the same geographic locations that were described in the analysis for the initial IHA. The nature of the specified activity that could result in take of marine mammals ( i.e., underwater sound from Bay State Wind's marine site characterization surveys), including the types of equipment planned for use, the methods, the duration of the specified activity (up to 350 survey days in one year), and number of vessels planned for use are identical to those previously analyzed. The mitigation, monitoring, and reporting measures, as well as the expiration date of the IHA, also remain the same. With the exception of the number of estimated take of common dolphin, no increased number of take of other species is estimated or proposed for authorization. NMFS refers the reader to the documents related to the initial IHA issued on October 3, 2024 (89 FR 81458, October 8, 2024), for more detailed description of the project activities. Other relevant documents include the notice of proposed IHA and request for comments (89 FR 67597, August 21, 2024).

Detailed Description of the Action

A detailed description of the survey activities is found in these previous documents. The location, timing, and nature of the activities, including the types of HRG equipment planned for use, daily trackline distances and number of survey vessels (four) are identical to those described in the previous notices.

Description of Marine Mammals

A description of the marine mammals in the area of the activities is found in these previous documents, which remains applicable to the proposed issuance of the modified IHA as well. In addition, NMFS has reviewed recent draft Stock Assessment Reports, information on relevant Unusual Mortality Events, and recent scientific literature, and determined that no new information affects our original analysis of impacts under the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

A description of the potential effects of the specified activities on marine mammals and their habitat may be found in the documents supporting the initial IHA (89 FR 81458, October 8, 2024), which remains applicable to the issuance of the modified IHA. There is no new information on potential effects.

Estimated Take

A detailed description of the methods and inputs used to estimate take for the specified activity are found in the notice of IHA for the initial authorization (89 FR 81458, October 8, 2024). The HRG equipment that may result in take, as well as the source levels, marine mammal stocks taken, marine mammal density data, and the methods of take estimation applicable to this authorization remain unchanged from the initial IHA. With the exception of the common dolphin, the number of estimated take of marine mammal species remains unchanged.

[top] The initial IHA issued to Bay State Wind on October 3, 2024 (89 FR 81458,

October 8, 2024) authorized take of 17 species of marine mammals, including 1,485 common dolphins, incidental to marine site characterization surveys conducted in the Lease Area and ECR over the course of a single year, requiring up to 350 survey days. The take estimate, used to calculate the number of authorized take for each species, was based on the best available scientific evidence, including sighting data from Protected Species Observer (PSO) reports (Smultea Environmental Sciences, 2020) and NOAA's Atlantic Marine Assessment Program for Protected Species (AMAPPS) ( https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected ) group sizes. AMAPPS group sizes are based on data from a multi-agency research program, including seasonal distribution and abundance data collected over multiple years using aerial and shipboard surveys. Bay State Wind commenced survey activities on October 6, 2024. After 20 days of surveys, Bay State Wind had recorded 1,045 common dolphins within the estimated Level B harassment zone (as shown in table 1). Sighting events have included group sizes ranging from 3 to 110 with a mean group size 32.6. All potential exposures have been reported from a single vessel working in water depths averaging 45 meters, and detections of this species have occurred nearly daily, and often multiple times per day. Many of the observed common dolphin encounters have included animals approaching the vessel for both bow riding and swimming alongside as well as foraging in the area. The duration of these sighting events have varied from several minutes to many hours.

Total number of common dolphin detection events	Total number of groups within Level B harassment zone	Total number of dolphins within Level B harassment zone	Min pod size	Max pod size	Average group size for detections within Level B harassment zone
55	38	1,045	3	110	32.6

According to Roberts et al. (2023) monthly marine mammal density data, estimated common dolphin occurrence in the region appears to be seasonal with the highest monthly density occurring during the months of October (0.1652 animals km - 2 ² ) and September (0.1224 km - 2 ). Density data for the months of November and December begin to decrease (0.1034 km - 2 and 0.1155 km - 2 respectively). Density for the months of January-August decreases further and remains under 0.0800 km - 2 . Density does not exceed 0.0800 km - 2 until the month of September.

The 1,045 common dolphin sightings over 20 days averages to approximately 52 sightings per day. This high number of sightings is unanticipated and has occurred during the month of October when, as previously mentioned, common dolphin density is expected to be highest. As the common dolphin density is expected to decrease in November and December (0.1034 km - 2 and 0.1155 km - 2 , respectively) and remain relatively low (below 0.0800 km - 2 ) through the month of August. NMFS anticipates the encounter rate will likely subside after the peak density in October (0.1652 animals km - 2 ) and September (0.1224 km - 2 ). Given the expected decrease in common dolphin encounter rate, Bay State Wind has requested authorization of an additional 1,485 additional takes for the remaining 330 survey days. NMFS concurs and is proposing to modify the IHA to increase the total number of authorized take of common dolphin by Level B harassment from 1,485 to 2,970. The proposed updated total take represents 3.2 percent (table 2) of the best available abundance estimate for the western North Atlantic stock of common dolphin. The expiration date of the IHA would remain unchanged (October 5, 2025). Authorized takes remain unchanged for all other marine mammal species.

Species	Totals	Take authorization (No.)	Stock abundance (CV, N min , most recent abundance survey)? ¹	Instances of take as percentage of population
Common dolphin	2,970	93,100 (0.56, 59,897, 2021)	3.20
¹ ?NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; N min is the minimum estimate of stock abundance.

Description of Proposed Mitigation, Monitoring and Reporting Measures

The mitigation, monitoring, and reporting measures described here are identical to those included in the Federal Register notices announcing the issuance of the initial IHA authorization (89 FR 81458, October 8, 2024) as well as the discussions of the least practicable adverse impact included in those documents remain accurate.

Preliminary Determinations

[top] Bay State Wind's survey activities and the mitigation, monitoring, and reporting requirements are unchanged from those covered in the initial IHA. The effects of the activity, taking into consideration the mitigation and related monitoring measures, remain unchanged from those stated in the initial IHA, notwithstanding the increase to the authorized amount of common dolphin take. Specifically, the Level B harassment authorized for common dolphins is expected to be of low severity, predominantly in the form of behavioral disturbance ( i.e., avoidance of the sound source and potential occasional interruption of foraging). With approximately 330 survey days remaining, NMFS is proposing to increase authorized common dolphin take by Level B

harassment from 1,485 to 2,970. Even in consideration of the increased estimated numbers of take by Level B harassment, the impacts of these lower severity exposures are not expected to adversely impact the fitness of any individuals, and, therefore no impacts are expected to adversely affect the species or stock through effects on annual rates of recruitment or survival. Further, the proposed take amount of common dolphin still would be of small numbers relative to the population size (3.2 percent) as take is less than one third of the species or stock abundance which is considered by NMFS to be small numbers. In conclusion, there is no new information suggesting that our effects analysis or negligible impact finding for common dolphins should change.

Based on the information contained here and in the referenced documents, NMFS has preliminarily reaffirmed the following: (1) the required mitigation measures will affect the least practicable impact on marine mammal species or stocks and their habitat; (2) the proposed authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the proposed authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) Bay State Wind's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action, and (5) appropriate monitoring and reporting requirements are included.

Endangered Species Act (ESA)

Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq. ) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS OPR consults internally whenever we propose to authorize take for endangered or threatened species.

For the initial IHA, NMFS Office of Protected Resources authorized the incidental take of four species of marine mammals which are listed under the ESA, including the North Atlantic right, fin, sei, and sperm whale, and determined that these activities fall within the scope of activities analyzed in Greater Atlantic Regional Fisheries Office's programmatic consultation regarding geophysical surveys along the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions (completed June 29, 2021; revised September 2021). This modification of the IHA does not modify or change any take of listed species and therefore the prior determination remains unchanged.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action ( i.e., the modification of an IHA) with respect to potential impacts on the human environment.

This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the modified IHA continues to qualify to be categorically excluded from further NEPA review.

We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.

Proposed Authorization

As a result of these preliminary determinations, NMFS proposes to modify the IHA to Bay State Wind for incidental take of marine mammals associated with marine site characterization surveys off the coast of Rhode Island and Massachusetts effective from the date of issuance until October 5, 2025. The only change is an increase in the authorized take by Level B harassment of common dolphins from 1,485 to 2,970. The previously described mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed modified IHA can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Request for Public Comments

We request comment on our proposed modification of the IHA for Bay State Wind's marine site characterization surveys. We also request comment on the potential for renewal of this proposed IHA as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.

Dated: December 5, 2024.

Kimberly Damon-Randall,

Director, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. 2024-28994 Filed 12-9-24; 8:45 am]

BILLING CODE 3510-22-P