89 FR 162 pgs. 67597-67613 - Takes of Marine Mammals Incidental to Specified Activities; Takes of Marine Mammals Incidental to Marine Site Characterization Surveys Off Rhode Island and Massachusetts
Type: NOTICEVolume: 89Number: 162Pages: 67597 - 67613
Pages: 67597, 67598, 67599, 67600, 67601, 67602, 67603, 67604, 67605, 67606, 67607, 67608, 67609, 67610, 67611, 67612, 67613Docket number: [RTID 0648-XE160]
FR document: [FR Doc. 2024-18694 Filed 8-20-24; 8:45 am]
Agency: Commerce Department
Sub Agency: National Oceanic and Atmospheric Administration
Official PDF Version: PDF Version
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE160]
Takes of Marine Mammals Incidental to Specified Activities; Takes of 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 incidental harassment authorization; request for comments on proposed authorization and possible renewal.
SUMMARY:
NMFS has received a request from Bay State Wind, LLC (Bay State Wind), for authorization to take marine mammals incidental to marine site characterization surveys off the coast 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. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time, 1-year renewal that could be issued under certain circumstances and if all requirements are met, as described in the Request for Public Comments section at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.
DATES:
Comments and information must be received no later than September 20, 2024.
ADDRESSES:
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service and should be submitted via email to ITP.hilt@noaa.gov. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these documents, please call the contact listed below.
Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments, including all attachments, must not exceed a 25-megabyte file size. All comments received are a part of the public record and will generally be posted online at https://www.fisheries.noaa.gov/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.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the "take" of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are proposed or, if the taking is limited to harassment, a notice of a proposed IHA is provided to the public for review.
[top] Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other "means of effecting the least practicable adverse impact" on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as "mitigation"); and requirements pertaining to the monitoring and reporting of the takings. The definitions of all applicable MMPA statutory terms
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action ( i.e., the issuance of an IHA) with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NAO 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.
Summary of Request
On October 6, 2022, NMFS issued an IHA (87 FR 61575; October 12, 2022) to Ørsted (parent company of Bay State Wind) to take marine mammals incidental to marine site characterization surveys in Lease Areas OCS-A 0486, 0487, 0500 off the coasts from New York to Massachusetts and along potential ECRs to landfall locations between Raritan Bay (part of the New York Bight) and Falmouth, Massachusetts. On May 26, 2023, NMFS received a request for a renewal of that initial IHA because Ørsted's marine site characterization surveys under the initial IHA had not yet been completed and more time was required. The Renewal IHA was issued on September 29, 2023, (88 FR 62337; October 5, 2023). Ørsted has complied with all the requirements ( e.g., mitigation, monitoring, and reporting) of the previous IHAs in Lease Areas OCS-A 0486, 0487, and 0500 (84 FR 52464, October 2, 2019; 85 FR 63508, October 8, 2020; 87 FR 13975, March 11, 2022).
On March 27, 2024, NMFS received a request from Bay State Wind for an IHA to take marine mammals incidental to conducting marine site characterization surveys off the coast of Rhode Island and Massachusetts only in OCS-A 0500 and the associated ECR area. Following NMFS' review of the application, Bay State Wind submitted a revised version on June 10, 2024. Following NMFS' additional review of the application, Bay State Wind submitted another revised version on July 29, 2024. The application was deemed adequate and complete on August 1, 2024. Bay State Wind's request is for take of 17 species of marine mammals by Level B harassment only. Neither Bay State Wind nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
Description of Proposed Activity
Overview
Bay State Wind proposes to conduct marine site characterization surveys, including high-resolution geophysical (HRG) surveys and geotechnical surveys, in BOEM Lease Area OCS-A 0500, and the associated ECR. The purpose of the marine site characterization surveys is to collect data concerning seabed (geophysical, geotechnical, and geohazard), ecological, and archeological conditions within the footprint of the offshore wind facility development. Surveys are also conducted to support engineering design and to map unexploded ordnance (UXO). Underwater sound resulting from Bay State Wind's proposed activities, specifically HRG surveys, has the potential to result in incidental take of 17 species, in the form of Level B harassment only.
Dates and Duration
While the exact dates have not yet been established, the proposed activities are planned to begin as soon as possible upon issuance of an IHA, if appropriate. The proposed activity is expected to require up to 350 survey days across a maximum of four vessels operating concurrently over the course of a single year ("survey day" defined as a 24-hour activity period in which the assumed number of line kilometers (km) are surveyed). Vessel days are defined as the number of days any single vessel is in operation regardless of any other vessel operations ( i.e., if two vessels are working concurrently within the same 24-hour period, each vessel would be counted as having a vessel day for a total of 2 vessel days even though the activity occurs within a single 24-hour period). The number of anticipated survey days was calculated as the number of days needed to reach the overall level of effort required to meet survey objectives assuming any single vessel covers, on average 70 line km per 24-hour operations.
Specific Geographic Region
The proposed survey activities will occur within the Lease Area and potential ECRs off the coasts of Rhode Island and Massachusetts (figure 1). Water depths in the Lease Area and potential ECRs extend out from shoreline to approximately 90 meters (m).
BILLING CODE 3510-22-P
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[Federal Register graphic "EN21AU24.027" is not available. Please view the graphic in the PDF version of this document.]
BILLING CODE 3510-22-C
Detailed Description of the Specified Activity
[top] Bay State Wind proposes to conduct HRG survey operations, including multibeam depth sounding, seafloor imaging, and shallow and medium penetration sub-bottom profiling (SBP). The HRG surveys will include the use of seafloor mapping equipment with
Acoustic sources planned for use during HRG survey activities proposed by Bay State Wind for which sound levels have the potential to result in Level B harassment of marine mammals include the following:
• Medium penetration SBPs (boomers) are used to map deeper subsurface stratigraphy as needed. A boomer is a broad-band sound source operating in the 3.5 Hz to 10 kHz frequency range. This system is commonly mounted on a sled and towed behind the vessel. Boomers are impulsive and mobile sources; and,
• Medium penetration SBPs (sparkers) are used to map deeper subsurface stratigraphy as needed. Sparkers create acoustic pulses from 50 Hz to 4 kHz omnidirectionally from the source, and are considered to be impulsive and mobile sources. Sparkers are typically towed behind the vessel with adjacent hydrophone arrays to receive the return signals.
Operation of the following survey equipment types is not reasonably expected to result in take of marine mammals and will not be discussed further beyond the brief summaries provided below:
• Parametric SBPs, also commonly referred to as sediment echosounders, are used to provide high data density in sub-bottom profiles that are typically required for cable routes, very shallow water, and archaeological surveys. Parametric SPBs are typically mounted on a pole, either over the side of the vessel or through a moon pool in the bottom of the hull. Crocker and Fratantonio (2016) does not provide relevant measurements or source data for parametric SBPs, however, some source information is provided by the manufacturer. For the proposed project, the SBP used would generate short, very narrow-beam (1 to 3.5°) sound pulses at relatively high frequencies (generally around 85 to 100 kHz). The narrow beam width significantly reduces the potential for exposure while the high frequencies of the source are rapidly attenuated in seawater. Given the narrow beam width and relatively high frequency. NMFS does not reasonably expect there to be potential for marine mammals to be exposed to the signal;
• Ultra-short baseline (USBL) positioning systems are used to provide high accuracy ranges by measuring the time between the acoustic pulses transmitted by vessel transceiver and a transponder (or beacon) necessary to produce the acoustic profile. It is a two-component system with a moon-pool- or side-pole-mounted transceiver and one or several transponders mounted on other survey equipment. USBLs are expected to produce extremely small acoustic propagation distances in their typical operating configuration;
• MBES are used to determine water depths and general bottom topography. MBES sonar systems project sonar pulses in several angled beams from a transducer mounted to a ship's hull. The beams radiate out from the transducer in a fan-shaped pattern orthogonally to the ship's direction. All of the proposed MBESs have operating frequencies >180 kHz and, therefore, are outside the general hearing range of marine mammals; and,
• SSSs are used for seabed sediment classification purposes and to identify natural and man-made acoustic targets on the seafloor. The sonar device emits conical or fan-shaped pulses down toward the seafloor in multiple beams at a wide angle, perpendicular to the path of the sensor through the water column. All of the proposed SSSs have operating frequencies >180 kHZ and, therefore, are outside the general hearing range of marine mammals.
Table 1 identifies representative survey equipment with the expected potential to result in exposure of marine mammals and thus potentially result in take. The make and model of the listed geophysical equipment may vary depending on availability and the final equipment choices will vary depending upon the final survey design, vessel availability, and survey contractor selection.
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| Representative equipment type | Operating frequency ranges (kHz) | SL (SPL dB re 1µPa m) | SL (SEL dB re 1µPa 2 m 2 s) | SL (PK dBre 1µPa m) | Beamwidth ranges (degree) | Pulse duration (width) (millisecond) | Repetition rate (Hz) |
|---|---|---|---|---|---|---|---|
| Impulsive, Medium Sub-Bottom Profilers (Sparkers & Boomers) | |||||||
| AA, Dura-spark UHD Sparker (400 tips, 500 J)? 1 | 0.3-1.2 | 203 | 174 | 211 | 180 | 1.1 | 4 |
| AA, Dura-spark UHD Sparker Model 400 × 400? 1 | 0.3-1.2 | 203 | 174 | 211 | 180 | 1.1 | 4 |
| GeoMarine, Dual 400 Sparker, Model GeoSource 800? 1 ? 2 | 0.4-5 | 203 | 174 | 211 | 180 | 1.1 | 2 |
| GeoMarine Sparker, Model GeoSource 200-400? 1 ? 2 | 0.3-1.2 | 203 | 174 | 211 | 180 | 1.1 | 4 |
| GeoMarine Sparker, Model GeoSource 200 Lightweight? 1 ? 2 | 0.3-1.2 | 203 | 174 | 211 | 180 | 1.1 | 4 |
| AA, triple plate SBoom (700-1,000 J)? 3 | 0.1-5 | 205 | 172 | 211 | 80 | 0.6 | 4 |
| 1 ?The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey. The data provided in Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings when manufacturer or other reliable measurements are not available. Bay State Wind expects all equipment to operate at a comparable Joule-to-tip ratio as the 400 tip 500 J Dura-spark measured by Crocker and Fratantonio (2016) such that the proxy source levels provided in table 3 are realistically representative of sound levels that may be produced during sparker operations for the proposed survey. | |||||||
| 2 ?The AA Dura-spark (500 J, 400 tips) was used as a proxy source for all proposed sparkers to represent the highest potential source level anticipated during the proposed survey. Though the power settings and number of tips may vary among of the sparker systems, all systems will operate with a comparable Joule-to-tip ratio which, as discussed above in section 1.3 of the Application, influences the source levels more than just power setting. Additionally, the survey would not utilize higher-powered sparker systems operating at =2,000 J so Dura-spark (500 J, 400 tips) is considered the best available proxy for source levels for these equipment. | |||||||
| 3 ?Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was used in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom. | |||||||
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see Proposed Mitigation and Proposed Monitoring and Reporting sections).
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species. NMFS fully considered all of this information, and we refer the reader to these descriptions, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ) and more general information about these species ( e.g., physical and behavioral descriptions) may be found on NMFS' website ( https://www.fisheries.noaa.gov/find-species ).
Table 2 lists all species or stocks for which take is expected and proposed to be authorized for this activity and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no serious injury or mortality is anticipated or proposed to be authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in table 2 are the most recent available at the time of publication, including, as applicable, from the draft 2023 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ).
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| Common name | Scientific name | Stock | ESA/MMPA status; strategic (Y/N)? 2 | Stock abundance (CV, N min , most recent abundance survey)? 3 | PBR | Annual M/SI? 4 |
|---|---|---|---|---|---|---|
| Order Cetartiodactyla-Cetacea-Superfamily Mysticeti (baleen whales) | ||||||
| N Atlantic Right Whale | Eubalaena glacialis | Western Atlantic | E, D, Y | 340 (0, 337, 2021)? 5 | 0.7 | 27.2 |
| Humpback Whale | Megaptera novaeangliae | Gulf of Maine | -, -, N | 1,396 (0, 1380, 2016) | 22 | 12.15 |
| Fin Whale | Balaenoptera physalus | Western North Atlantic | E, D, Y | 6,802 (0.24, 5,573, 2021) | 11 | 2.05 |
| Sei Whale | Balaenoptera borealis | Nova Scotia | E, D, Y | 6,292 (1.02, 3,098, 2021) | 6.2 | 0.6 |
| Minke Whale | Balaenoptera acutorostrata | Canadian Eastern Coastal | -, -, N | 21,968 (0.31, 17,002, 2021) | 170 | 9.4 |
| Order Cetartiodactyla-Cetacea-Superfamily Odontoceti (toothed whales, dolphins, and porpoises) | ||||||
| Sperm Whale | Physeter macrocephalus | North Atlantic | E, D, Y | 5,895 (0.29, 4,639, 2021) | 9.28 | 0.2 |
| Long-Finned Pilot Whale? 6 | Globicephala melas | Western North Atlantic | -, -, N | 39,215 (0.30, 30,627, 2021) | 306 | 5.7 |
| Striped Dolphin | Stenella coeruleoalba | Western North Atlantic | -, -, N | 48,274 (0.29, 38,040, 2021) | 529 | 0 |
| Atlantic White-Sided Dolphin | Lagenorhynchus acutus | Western North Atlantic | -, -, N | 93,233 (0.71, 54,443, 2021) | 544 | 28 |
| Bottlenose Dolphin | Tursiops truncatus | Western North Atlantic Offshore | -, -, N | 64,587 (0.24, 52,801, 2021)? 7 | 507 | 28 |
| Common Dolphin | Delphinus delphis | Western North Atlantic | -, -, N | 93,100 (0.56, 59,897, 2021) | 1,452 | 414 |
| Atlantic Spotted Dolphin | Stenella frontalis | Western North Atlantic | -, -, N | 31,506 (0.28, 25,042, 2021) | 250 | 0 |
| Risso's Dolphin | Grampus griseus | Western North Atlantic | -, -, N | 44,067 (0.19, 30,662, 2021) | 307 | 18 |
| White-Beaked Dolphin | Lagenorhynchus albirostris | Western North Atlantic | -, -, N | 536,016 (0.31, 415,344, 2016) | 4,153 | 0 |
| Harbor Porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy | -, -, N | 85,765 (0.53, 56,420, 2021) | 649 | 145 |
| Order Carnivora-Superfamily Pinnipedia | ||||||
| Harbor Seal | Phoca vitulina | Western North Atlantic | -, -, N | 61,336 (0.08, 57,637, 2018) | 1,729 | 339 |
| Gray Seal? 8 | Halichoerus grypus | Western North Atlantic | -, -, N | 27,911 (0.20, 23,624, 2021) | 1,512 | 4,570 |
| 1 ?Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy ( https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies ). | ||||||
| 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 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. | ||||||
| 4 ?These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined ( e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. | ||||||
| 5 ?The current SAR includes an estimated population (N best 340) based on sighting history through December 2021 (NMFS, 2024). 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). Total annual average observed North Atlantic right whale mortality during the period 2017-2021 was 7.1 animals and annual average observed fishery mortality was 4.6 animals. Numbers presented in this table (27.2 total mortality and 17.6 fishery mortality) are 2016-2020 estimated annual means, accounting for undetected mortality and serious injury. | ||||||
| 6 ?Key uncertainties exist in the population size estimate for this species, including uncertain separation between short-finned and long-finned pilot whales, small negative bias due to lack of abundance estimate in the region between US and the Newfoundland/Labrador survey area, and uncertainty due to unknown precision and accuracy of the availability bias correction factor that was applied. | ||||||
| 7 ?Estimates may include sightings of the coastal form, | ||||||
| 8 ?NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada) is approximately 394,311. The annual M/SI value given is for the total stock. | ||||||
As indicated above, all 17 species in table 2 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. All species that could potentially occur in the proposed survey areas are included in table 5 of the IHA application. While the blue whale ( Balaenoptera musculus ), short-finned pilot whale ( Globicephala macrorhynchus ), common bottlenose dolphin (western North Atlantic, northern migratory coastal stock; Tursiops truncatus ), dwarf sperm whale ( Kogia sima ), killer whale ( Orcinus orca ), pygmy killer whale ( Feresa attenuata ), false killer whale ( Pseudorca crassidens ), northern bottlenose whale ( Hyperoodon ampullatus ), Cuvier's beaked whale ( Ziphius cavirostris ), Blainville's beaked whale ( Mesoplodon densirostris ), Gervais beaked whale ( Mesoplodon europaeus ), Sowerby's beaked whale ( Mesoplodon bidens ), True's beaked whale ( Mesoplodon mirus ), Melon-headed whale ( Peponocephala electra ), Pantropical spotted dolphin ( Stenella attenuata ), Fraser's dolphin ( Lagenodelphis hosei ), rough toothed dolphin ( Steno bredanensis ), Clymene dolphin ( Stenella clymene ), spinner dolphin ( Stenella longirostri ), harp seal ( Pagophilus groenlandica ), and hooded seal ( Cystophora cristata ) have been reported in the area, the temporal and/or spatial occurrence of these species is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here.
A description of the marine mammals in the area of the activities for which authorization of take is proposed here, including information on abundance, status, distribution, and hearing, may be found in the Federal Register notice of the proposed IHA for the 2022 IHA (87 FR 52515, August 26, 2022) addressing Lease Areas OCS-A 0486, 0487, and 0500. Significant new information is addressed below.
In addition, Bay State Wind is newly requesting authorization to take white-beaked dolphin. The white-beaked dolphin is considered rare in the Lease Area and potential ECRs, but two protected species observer (PSO) monitoring reports have reported the sighting of the species in the Rhode Island-Massachusetts Wind Energy Area (RI-MA WEA) where the Project Lease Area is located (EPI Group, 2021; RPS, 2021). Therefore, it is reasonable to anticipate take for this animal may occur and the take of the animal has been proposed for authorization accordingly. A detailed description of the white-beaked dolphin's status and trends, distribution and habitat preferences, and behavior and life history can be found in section 4.2.9 of the application.
North Atlantic Right Whale
In January 2024, NMFS released its draft 2023 SARs which updated the population estimate ( N best ) of North Atlantic right whales to 340 individuals; the annual mortality and serious injury (M/SI) value dropped from the final 2022 SAR of 31.2 to 27.2 in the draft 2023 SAR. Beginning in the 2022 SARs, the M/SI for North Atlantic right whale included the addition of estimated undetected mortality and serious injury, which had not been previously included in the SAR. The current population estimate is equal to the North Atlantic Right Whale Consortium's 2022 Annual Report Card, which identifies the population estimate as 340 individuals (Pettis et al. 2023).
Elevated North Atlantic right whale mortalities have occurred since June 7, 2017, along the U.S. and Canadian coast, with the leading category for the cause of death for this unusual mortality event (UME) determined to be "human interaction," specifically from entanglements or vessel strikes. As of July 30, 2024, there have been 41 confirmed mortalities (dead, stranded, or floaters), 1 pending mortality, and 36 seriously injured free-swimming whales for a total of 78 whales. The UME also considers animals with sublethal injury or illness (called "morbidity"; n = 65) bringing the total number of whales in the UME to 142. More information about the North Atlantic right whale UME is available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events .
The proposed survey area is within a migratory corridor Biologically Important Area (BIA) for NARWs that extends from Massachusetts to Florida (LeBrecque et al. 2015). There is possible migratory behavior that could occur in this area between November and April. Right whale migration is not expected to be impacted by the proposed survey due to the very small size of the Lease Area and potential ECRs project area relative to the spatial extent of the available migratory habitat in the BIA.
Humpback Whale
[top] Since January 2016, elevated humpback whale mortalities along the
Since December 1, 2022, the number of humpback strandings along the mid-Atlantic coast, from North Carolina to New York, has been elevated. In some cases, the cause of death is not yet known; in others, vessel strike has been deemed the cause of death. As the humpback whale population has grown, they are seen more often in the Mid-Atlantic. These whales may be following their prey (small fish) which were reportedly close to shore in the 2022-2023 winter. Changing distributions of prey impact larger marine species that depend on them, and result in changing distribution of whales and other marine life. These prey also attract fish that are targeted by recreational and commercial fishermen, which increases the number of boats and amount of fishing gear in these areas. This nearshore movement increases the potential for anthropogenic interactions, particularly.
The Lease Area and potential ECRs do not overlap any ESA-designated critical habitat, BIAs, or other important areas for the humpback whales. A humpback whale feeding BIA extends throughout the Gulf of Maine, Stellwagen Bank, and Great South Channel from May through December, annually (LaBrecque et al. 2015). However, this BIA is located further east and north of, and thus, does not overlap, the project area.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Not all marine mammal species have equal hearing capabilities ( e.g., Richardson et al. 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007, 2019) recommended that marine mammals be divided into hearing groups based on directly measured (behavioral or auditory evoked potential techniques) or estimated hearing ranges (behavioral response data, anatomical modeling, etc. ). Note that no direct measurements of hearing ability have been successfully completed for mysticetes ( i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65-decibel (dB) threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in table 3.
| Hearing group | Generalized hearing range?* |
|---|---|
| Low-frequency (LF) cetaceans (baleen whales) | 7 Hz to 35 kHz. |
| Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) | 150 Hz to 160 kHz. |
| High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus cruciger & L. australis ) | 275 Hz to 160 kHz. |
| Phocid pinnipeds (PW) (underwater) (true seals) | 50 Hz to 86 kHz. |
| Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) | 60 Hz to 39 kHz. |
| *?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 (Hemilä et al. 2006; Kastelein et al. 2009; Reichmuth et al. 2013).
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their Habitat
This section provides a discussion of the ways in which components of the specified activity may impact marine mammals and their habitat. The Estimated Take of Marine Mammals section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take of Marine Mammals section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and whether those impacts are reasonably expected to, or reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
A description of the potential effects of the specified activity on marine mammals and their habitat for the activities for which take is proposed here may be found in the Federal Register notice of the proposed IHA for the initial authorization proposed (87 FR 52515, August 26, 2022). NMFS has reviewed information on relevant Unusual Mortality Events, updated SARs, and other scientific literature and data, and preliminarily determined that there is no new information that affects our initial analysis of impacts on marine mammals and their habitat.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes proposed for authorization through the IHA, which will inform NMFS' consideration of "small numbers," the negligible impact determinations, and impacts on subsistence uses.
[top] Harassment is the only type of take expected to result from these activities.
Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to certain HRG sources. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures ( i.e., shutdown measures, vessel strike avoidance procedures) discussed in detail below in the Proposed Mitigation section, Level A harassment is neither anticipated nor proposed to be authorized.
As described previously, no serious injury or mortality is anticipated or proposed to be authorized for this activity. Below we describe how the proposed take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will likely be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of potential takes, additional information that can qualitatively inform take estimates is also sometimes available ( e.g., previous monitoring results or average group size). Below, we describe the factors considered here in more detail and present the proposed take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur permanent threshold shift (PTS) of some degree (equated to Level A harassment).
Level B Harassment -Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source or exposure context ( e.g., frequency, predictability, duty cycle, duration of the exposure, signal-to-noise ratio, distance to the source), the environment ( e.g., bathymetry, other noises in the area, predators in the area), and the receiving animals (hearing, motivation, experience, demography, life stage, depth) and can be difficult to predict ( e.g., Southall et al. 2007, 2021; Ellison et al. 2012). Based on what the available science indicates and the practical need to use a threshold based on a metric that is both predictable and measurable for most activities, NMFS typically uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS generally predicts that marine mammals are likely to be behaviorally harassed in a manner considered to be Level B harassment when exposed to underwater anthropogenic noise above root-mean-squared pressure received levels (RMS SPL) of 120 dB (referenced to 1 micropascal (re 1 µPa)) for continuous ( e.g., vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 µPa for non-explosive impulsive ( e.g., seismic airguns) or intermittent ( e.g., scientific sonar) sources. Generally speaking, Level B harassment take estimates based on these behavioral harassment thresholds are expected to include any likely takes by temporary threshold shift (TTS) as, in most cases, the likelihood of TTS occurs at distances from the source less than those at which behavioral harassment is likely. TTS of a sufficient degree can manifest as behavioral harassment, as reduced hearing sensitivity and the potential reduced opportunities to detect important signals (conspecific communication, predators, prey) may result in changes in behavior patterns that would not otherwise occur.
Bay State Wind's proposed activity includes the use of impulsive ( i.e., boomers and sparkers) and non-impulsive ( i.e., CHIRP SBPs) sources, and therefore the RMS SPL thresholds of 160 dB re 1 µPa is applicable.
Level A Harassment -NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0; Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive).
These thresholds are provided in the table 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.
On May 3, 2024, NMFS published (89 FR 36762) and solicited public comment on its draft Updated Technical Guidance, which includes updated thresholds and weighting functions to inform auditory injury estimates, and is intended to replace the 2018 Technical Guidance referenced above, once finalized. The public comment period ended on June 17, 2024, and although the Updated Technical Guidance is not final, we expect the Updated Technical Guidance to represent the best available science once it is.
[top] Bay State Wind's HRG surveys include the use of impulsive ( i.e., boomers and sparkers) and non-impulsive ( i.e., CHIRP SBPs). However, as discussed above, NMFS has concluded that Level A harassment is not a reasonably likely outcome for marine mammals exposed to noise from the sources proposed for use here, and the potential for Level A harassment is not evaluated further in this document. The pending update to the Technical Guidance would not change NMFS' determination regarding the likelihood of take by Level A harassment. Please see Bay State Wind's application (section 1.4) for details of a quantitative exposure analysis exercise, ( i.e., calculated Level A harassment isopleths and estimated Level A harassment exposures). No take by Level A harassment is anticipated or proposed for authorization by NMFS.
| Hearing group | PTS onset acoustic thresholds?* (received level) | Impulsive | Non-impulsive |
|---|---|---|---|
| Low-Frequency (LF) Cetaceans | Cell 1: L pk,flat : 219 dB; L E,LF,24h : 183 dB | Cell 2: L E,LF,24h : 199 dB. | |
| Mid-Frequency (MF) Cetaceans | Cell 3: L pk,flat : 230 dB; L E,MF,24h : 185 dB | Cell 4: L E,MF,24h : 198 dB. | |
| High-Frequency (HF) Cetaceans | Cell 5: L pk,flat : 202 dB; L E,HF,24h : 155 dB | Cell 6: L E,HF,24h : 173 dB. | |
| Phocid Pinnipeds (PW) (Underwater) | Cell 7: L pk,flat : 218 dB; L E,PW,24h : 185 dB | Cell 8: L E,PW,24h : 201 dB. | |
| Otariid Pinnipeds (OW) (Underwater) | Cell 9: L pk,flat : 232 dB; L E,OW,24h : 203 dB | Cell 10: L E,OW,24h : 219 dB. | |
| *?Dual metric acoustic 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 should also be considered. | |||
| Note: Peak sound pressure ( L pk ) has a reference value of 1 µPa, and cumulative sound exposure level ( L E ) has a reference value of 1µPa 2 s. In this table, thresholds are abbreviated to reflect American National Standards Institute standards (American National Standards Institute, 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript "flat" is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. 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 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 acoustic thresholds will be exceeded. | |||
Ensonified Area
Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient.
NMFS has developed a user-friendly methodology for determining the rms sound pressure level at the 160-dB isopleth for the purpose of estimating the extent of Level B harassment isopleths associated with HRG survey equipment (NMFS, 2020). This methodology incorporates frequency and some directionality to refine estimated ensonified zones. Bay State Wind used NMFS's methodology, using the source level and operation mode of the equipment planned for use during the proposed survey, to estimate the maximum ensonified area over a 24-hour period, also referred to as the harassment area (table 5). Potential takes by Level B harassment are estimated within the ensonified area ( i.e., harassment area) as an SPL exceeding 160 dB re 1 µPa for impulsive sources ( e.g., sparkers, boomers) within an average day of activity.
The harassment zone is a representation of the maximum extent of the ensonified area around a sound source over a 24-hour period. The harassment zone was calculated for mobile sound sources per the following formula:
Harassment Zone = (Distance/day × 2 r ) + p r 2
where r is the linear distance from the source to the isopleth for Level A or Level B thresholds and day = 1 ( i.e., 24 hours).
The estimated potential daily active survey distance of 70 km was used as the estimated areal coverage over a 24-hour period. This distance accounts for the vessel traveling at roughly 4 knots (kn) and only for periods during which survey equipment that may result in take of marine mammals is in operation. A vessel traveling 4 kn can cover approximately 110 km per day; however, based on data from 2017, 2018, and 2019 surveys, survey coverage over a 24-hour period is closer to 70 km per day. For daylight only vessels, the distance is reduced to 35 km per day; however, to maintain the potential for 24-hour surveys, the corresponding Level B harassment zones provided in table 5 were calculated for each source category based on the Level B threshold distances in table 4 with a 24-hour (70 km) operational period.
NMFS considers the data provided by Crocker and Fratantonio (2016) to represent the best available information on source levels associated with HRG equipment and, therefore, recommends that source levels provided by Crocker and Fratantonio (2016) be incorporated in the method described above to estimate isopleth distances to harassment thresholds. In cases, when the source level for a specific type of HRG equipment is not provided in Crocker and Fratantonio (2016), NMFS recommends that either the source levels provided by the manufacturer be used, or, in instances where source levels provided by the manufacturer are unavailable or unreliable, a proxy from Crocker and Fratantonio (2016) be used instead. Table 2 shows the HRG equipment types that may be used during the proposed surveys and the source levels associated with those HRG equipment types.
Based upon modeling results, of the HRG survey equipment planned for use by Bay State Wind that has the potential to result in Level B harassment of marine mammals, the Applied Acoustics Dura-Spark UHD and GeoMarine Geo-Source sparkers would produce the largest Level B harassment isopleth (141 m) or Harassment Zone. Estimated distances to Level B harassment isopleths for all sources evaluated here, including the sparkers, are provided in table 5. Although Bay State Wind does not expect to use sparker sources on all planned survey days, Bay State Wind proposes to assume for purposes of analysis that the sparker would be used on all survey days. This is a conservative approach, as the actual sources used on individual survey days may produce smaller harassment distances.
| Source | Distance to Level B harassment threshold (m) |
|---|---|
| Boomers | 76 |
| Sparkers | 141 |
Marine Mammal Occurrence
[top] In this section we provide information about the occurrence of marine mammals, including density or other relevant information which will inform the take calculations. Habitat based density models produced by the Duke University Marine Geospatial Ecology Laboratory (Roberts et al. 2016, 2023) represent the best available information regarding marine mammal densities in the Lease Area and potential ECRs. The density data presented by Roberts et al. (2016, 2023) incorporate aerial and
For exposure analysis, density data from Roberts et al. (2023) were mapped using a geographic information system (GIS). Density grid cells that included any portion of the proposed Lease Area and potential ECRs were selected for all survey months (see figure 4 of Bay State Wind's application). The densities for each species as reported by Roberts et al. (2023) for each of the Lease Area and ECR were averaged by month; those values were then used to calculate the mean annual density for each species within the Lease Area and potential ECRs. Estimated mean monthly and annual densities (animals per km 2 ) of all marine mammal species that may be taken by the proposed survey are shown in table 7 of Bay State Wind's application. Please see table 6 for density values used in the exposure estimation process.
Due to limited data availability and difficulties identifying individuals to species level during visual surveys, individual densities are not able to be provided for all species and they are instead grouped into "guilds" (Roberts et al. 2023). These guilds include pilot whales, common bottlenose dolphins, and seals.
Long- and short-finned pilot whales are difficult to distinguish during shipboard surveys so individual habitat models were not able to be developed. However, as discussed in section 4.2.3 of Bay State Wind's application, all pilot whales in the Lease Area and potential ECRs are assumed to be long-finned pilot whales, so the densities and subsequent takes would apply only to this species.
The density models do not distinguish between common bottlenose dolphin stocks due to limited data regarding distributions of these stocks. As discussed in section 4.2.7 of Bay State Wind's application, only the western North Atlantic offshore stock is expected to occur in the Lease Area and potential ECRs. Therefore, the densities in table 6 and subsequent take calculations would only apply to this stock of bottlenose dolphins.
Gray seals and harbor seals are reasonably identifiable during shipboard visual surveys; therefore, it is expected that some sightings will be assigned to species rather than to the generalized seal guild. Additionally, seals tend to occur in very small numbers when away from haul out areas; therefore, sighting events are not likely to constitute large numbers of animals. For these reasons, the seal guild density was split evenly between both gray and harbor seal species.
| Species | Average annual density (km 2 ) |
|---|---|
| Low-frequency Cetaceans | |
| Fin whale | 0.0022 |
| Sei whale | 0.0006 |
| Minke whale | 0.0056 |
| Humpback whale | 0.0014 |
| North Atlantic right whale | 0.0022 |
| Mid-frequency cetaceans | |
| Sperm whale | 0.0002 |
| Atlantic white-sided dolphin | 0.0143 |
| Atlantic spotted dolphin | 0.0006 |
| Common bottlenose dolphin (Offshore) | 0.0093 |
| Long-finned pilot whale | 0.0016 |
| Risso's dolphin | 0.0006 |
| Common dolphin | 0.0846 |
| Striped dolphin | 0.0000 |
| White-beaked dolphin | 0.0000 |
| High-frequency Cetaceans | |
| Harbor porpoise | 0.0423 |
| Pinnipeds ? 1 | |
| Gray seal | 0.0845 |
| Harbor seal | 0.0845 |
| 1 ?Seal species are not separated in the Roberts (2022) data therefore densities were evenly split between the two species expected to occur in the Lease Area and potential ECRs. | |
Take Estimation
Here we describe how the information provided above is synthesized to produce a quantitative estimate of the take that is reasonably likely to occur and proposed for authorization.
Level B harassment events were estimated by multiplying the average annual density of each species within the Lease Area and potential ECRs (table 6) by the largest harassment zone (141 m; table 5). That result was then multiplied by the number of survey days in that Lease Area or ECR (350 survey days), and rounded to the nearest whole number to arrive at estimated take. This final number equals the instances of take for the entire operational period. It was assumed the sparker systems were operating all 350 survey days as it is the sound source expected to produce the largest harassment zone. A summary of this method is illustrated in the following formula with the resulting proposed take of marine mammals is shown below in table 7:
Estimated take = Species Density × Harassment Zone × # of survey days
[top]
| Species | Abundance | Estimated Level B takes | Requested Level B takes | Max percent population |
|---|---|---|---|---|
| Low-frequency Cetaceans | ||||
| Fin whale | 6,802 | 15 | 15 | 0.22 |
| Sei whale | 6,292 | 4 | 4 | 0.06 |
| Minke whale | 21,968 | 39 | 39 | 0.18 |
| Humpback whale | 1,396 | 10 | 10 | 0.72 |
| North Atlantic right whale | 340 | 15 | 15 | 4.41 |
| Mid-frequency Cetaceans | ||||
| Sperm whale | 5,895 | 2 | 2 | 0.03 |
| Atlantic white-sided dolphin | 93,233 | 99 | 99 | 0.11 |
| Atlantic spotted dolphin | 31,506 | 4 | 4 | 0.01 |
| Common bottlenose dolphin (offshore stock) | 64,587 | 65 | 65 | 0.10 |
| Long-finned pilot whale | 39,215 | 11 | 11 | 0.03 |
| Risso's dolphin | 44,067 | 4 | 4 (14) | 0.03 |
| Common dolphin | 93,100 | 586 | 586 (1,485) | 1.60 |
| Striped dolphin | 48,274 | 0 | 0 (46) | 0.10 |
| White-beaked dolphin | 536,016 | 0 | 0 (12) | 0.00 |
| High-frequency Cetaceans | ||||
| Harbor porpoise | 85,765 | 293 | 293 | 0.34 |
| Pinnipeds | ||||
| Seals: | ||||
| Gray seal | 27,911 | 586 | 586 | 2.10 |
| Harbor seal | 61,336 | 586 | 586 | 0.96 |
Additional data regarding average group sizes from survey effort in the region was considered to ensure adequate take estimates are evaluated. Take estimates for several species were adjusted based upon observed group sizes in the area. The adjusted take estimates for these species are indicated in bold in table 7. These calculated take estimates were adjusted for these species as follows:
• Striped dolphin: No takes were calculated for this species (table 7), but data from AMAPPS data indicate this species was observed in the RI-MA WEA (Palka et al. 2017) where this Project Lease Area is located. Therefore, 1 group of 46 was added to the requested takes, based on a sighting of 1 group of 46 from AMAPPS data (Palka et al. 2017).
• Risso's dolphin: Only 4 takes were calculated but based on 2 reported detections with a total of 14 individuals of this species in PSO monitoring reports for projects in the RI-MA WEA where this Project Lease Area is located (Bay State Wind, 2019; Smultea Environmental Sciences, 2020), the take number was increased to 14.
• Common dolphin: The Applicant requested to increase their take numbers from 586 to 1,485 based on PSO data where 4,457 individuals were observed in the estimated Level B harassment zone over a total of 1,300 survey days (Smultea Environmental Sciences, 2020). The proposed survey is only 350 survey days which is approximately 1⁄3 of the survey days considered in the PSO data, so the number of takes has been recalculated to 1⁄3 of the 4,457 detections which equates to 1,485.
• White-beaked dolphin: no takes were calculated but based on reported detections of this species in 2 PSO monitoring reports for projects in the RI-MA WEA where this Project Lease Area is located (EPI Group, 2021; RPS, 2021), 1 group of 12 was added to the requested takes.
Proposed Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, NMFS considers two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations.
[top] NMFS proposes the following mitigation measures be implemented during Bay State Wind's proposed marine site characterization surveys. Pursuant to section 7 of the ESA, Bay State Wind would also be required to adhere to relevant Project Design Criteria (PDC) of the NMFS' Greater
Marine Mammal Shutdown Zones
Marine mammal shutdown zones would be established around impulsive HRG survey equipment ( e.g., sparkers and boomers) for all marine mammals. Shutdown zones would be monitored by PSOs based upon the radial distance from the acoustic source rather than being based around the vessel itself. An immediate shutdown of impulsive HRG survey equipment will be required if a whale is sighted at or within the corresponding marine mammal shutdown zones to minimize noise impacts on the animals. If a shutdown is required, a PSO will notify the survey crew immediately. Vessel operators and crews will comply immediately with any call for shutdown. The shutdown zone may or may not encompass the Level B harassment zone. Shutdown zone distances are as follows:
• A 500 m shutdown zone for North Atlantic right whales for use of impulsive acoustic sources ( e.g., boomers and/or sparkers) and non-impulsive, non-parametric sub-bottom profilers; and
• A 100-m shutdown zone for use of impulsive acoustic sources for all other marine mammals, with the exception of small delphinids, i.e., those belonging to the genera Delphinus, Lagenorhynchus, Stenella, or Tursiops, and pinnipeds.
Shutdown will remain in effect until the minimum separation distances (detailed above) between the animal and noise source are re-established. If a marine mammal enters the respective shutdown zone during a shutdown period, the equipment may not restart until that animal is confirmed outside the clearance zone as stated previously in the pre-start clearance procedures. These stated requirements will be included in the site-specific training to be provided to the survey team.
Pre-Start Clearance
Marine mammal clearance zones would be established at the following distances around the HRG survey equipment and monitored by PSOs:
• 500 m for NARWs and all other ESA-listed whales;
• 100 m for non-ESA listed large whales; and
• 50 m for dolphins, seals, and porpoises.
Bay State Wind would implement a 30-minute pre-start clearance period prior to the initiation of ramp-up of specified HRG equipment. During this period, clearance zones will be monitored by PSOs, using the appropriate visual technology. Ramp-up may not be initiated if any marine mammal(s) is within its respective clearance zone. If a marine mammal is observed within a clearance zone during the pre-start clearance period, ramp-up may not begin until the animal(s) has been observed exiting its respective exclusion zone or until an additional time period has elapsed with no further sighting ( i.e., 15 minutes for small odontocetes and seals, and 30 minutes for all other species). Monitoring would be conducted throughout all pre-clearance and shutdown zones as well as all visible waters surrounding the sound sources and the vessel. All marine mammals detected will be recorded as described in the Proposed Monitoring and Reporting section.
Ramp-Up of Survey Equipment
A ramp-up procedure, involving a gradual increase in source level output, is required at all times as part of the activation of the acoustic source when technically feasible. The ramp-up procedure would be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the Lease Area and potential ECRs by allowing them to vacate the area prior to the commencement of survey equipment operation at full power. Operators should ramp-up sources to half power for 5 minutes and then proceed to full power.
The ramp-up procedure will not be initiated ( i.e., equipment will not be started) during periods of inclement conditions when the marine mammal pre-start clearance zone cannot be adequately monitored by the PSOs for a 30 minute period using the appropriate visual technology. If any marine mammal enters the clearance zone, ramp-up will not be initiated until the animal is confirmed outside the marine mammal clearance zone, or until the appropriate time (30 minutes for whales, 15 minutes for dolphins, porpoises, and seals) has elapsed since the last sighting of the animal in the clearance zone.
Shutdown, pre-start clearance, and ramp-up procedures are not required during HRG survey operations using only non-impulsive sources ( e.g., echosounders) other than non-parametric sub-bottom profilers ( e.g., CHIRPs).
Vessel Strike Avoidance
Bay State Wind must adhere to the following measures except in the case where compliance would create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply.
• Vessel operators and crews must maintain a vigilant watch for all protected species and slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any protected species. A visual observer aboard the vessel must monitor a vessel strike avoidance zone based on the appropriate separation distance around the vessel (distances stated below). Visual observers monitoring the vessel strike avoidance zone may be third-party observers ( i.e., PSOs) or crew members, but crew members responsible for these duties must be provided sufficient training to (1) distinguish protected species from other phenomena, and (2) broadly identify a marine mammal as a right whale, other whale (defined in this context as sperm whales or baleen whales other than right whales), or other marine mammal;
a. All survey vessels, regardless of size, must observe a 10-kn speed restriction in specified areas designated by NMFS for the protection of North Atlantic right whales from vessel strikes including seasonal management areas (SMAs) and dynamic management areas (DMAs) when in effect;
b. Members of the monitoring team will consult NMFS North Atlantic right whale reporting system and Whale Alert, as able, for the presence of North Atlantic right whales throughout survey operations, and for the establishment of a DMA. If NMFS should establish a DMA in the Lease Area and potential ECRs during the survey, the vessels will abide by speed restrictions in the DMA;
c. All vessels greater than or equal to 19.8 m in overall length operating from November 1 through April 30 will operate at speeds of 10 kn (5.1 m/second) or less at all times;
d. All vessels must reduce their speed to 10 kn (5.1 m/second) or less when mother/calf pairs, pods, or large assemblages of any species of cetaceans is observed near a vessel;
e. All vessels must maintain a minimum separation distance of 500 m from right whales and other ESA-listed large whales;
[top] f. If a whale is observed but cannot be confirmed as a species other than a right
g. All vessels must maintain a minimum separation distance of 100 m from non-ESA listed whales;
• All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other marine mammals, with an understanding that at times this may not be possible ( e.g., for animals that approach the vessel);
• When marine mammals are sighted while a vessel is underway, the vessel shall take action as necessary to avoid violating the relevant separation distance ( e.g., attempt to remain parallel to the animal's course, avoid excessive speed or abrupt changes in direction until the animal has left the area). If marine mammals are sighted within the relevant separation distance, the vessel must reduce speed and shift the engine to neutral, not engaging the engines until animals are clear of the area. This does not apply to any vessel towing gear or any vessel that is navigationally constrained.
Project-specific training will be conducted for all vessel crew prior to the start of a survey and during any changes in crew such that all survey personnel are fully aware and understand the mitigation, monitoring, and reporting requirements.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
Proposed Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present while conducting the activities. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated ( e.g., presence, abundance, distribution, density);
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) action or environment ( e.g., source characterization, propagation, ambient noise); (2) affected species ( e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the activity; or (4) biological or behavioral context of exposure ( e.g., age, calving or feeding areas);
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat ( e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and,
• Mitigation and monitoring effectiveness.
Proposed Monitoring Measures
Visual monitoring will be performed by qualified, NMFS-approved PSOs, the resumes of whom will be provided to NMFS for review and approval prior to the start of survey activities. Bay State Wind would employ independent, dedicated, trained PSOs, meaning that the PSOs must (1) be employed by a third-party observer provider, (2) have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and (3) have successfully completed an approved PSO training course appropriate for their designated task. On a case-by-case basis, non-independent observers may be approved by NMFS for limited, specified duties in support of approved, independent PSOs on smaller vessels with limited crew operating in nearshore waters.
The PSOs will be responsible for monitoring the waters surrounding each survey vessel to the farthest extent permitted by sighting conditions, including shutdown and pre-clearance zones, during all HRG survey operations. PSOs will visually monitor and identify marine mammals, including those approaching or entering the established shutdown and pre-clearance zones during survey activities. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate.
During all HRG survey operations ( e.g., any day on which use of an HRG source is planned to occur), a minimum of one PSO must be on duty during daylight operations on each survey vessel, conducting visual observations at all times on all active survey vessels during daylight hours ( i.e., from 30 minutes prior to sunrise through 30 minutes following sunset). Two PSOs will be on watch during nighttime operations. The PSO(s) would ensure 360-degree visual coverage around the vessel from the most appropriate observation posts and would conduct visual observations using binoculars and/or night vision goggles and the naked eye while free from distractions and in a consistent, systematic, and diligent manner. PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least one hour between watches and may conduct a maximum of 12 hours of observations per 24-hour period. In cases where multiple vessels are surveying concurrently, any observations of marine mammals would be communicated to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to estimate distance and bearing to detect marine mammals, particularly in proximity to exclusion zones. Reticulated binoculars must also be available to PSOs for use as appropriate based on conditions and visibility to support the sighting and monitoring of marine mammals. During nighttime operations, night-vision goggles with thermal clip-ons and infrared technology would be used. Position data would be recorded using hand-held or vessel GPS units for each sighting.
[top] During good conditions ( e.g., daylight hours; Beaufort sea state (BSS) 3 or less), to the maximum extent practicable, PSOs would also conduct observations when the acoustic source is not operating for comparison of sighting rates and behavior with and without use of the active acoustic sources. Any
Proposed Reporting Measures
Within 90 days after completion of survey activities or expiration of this IHA, whichever comes sooner, a draft comprehensive report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, summarizes the number of marine mammals observed during survey activities (by species, when known), summarizes the mitigation actions taken during surveys including what type of mitigation and the species and number of animals that prompted the mitigation action, when known), and provides an interpretation of the results and effectiveness of all mitigation and monitoring. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. A final report must be submitted within 30 days following any comments on the draft report. All draft and final marine mammal and acoustic monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.Hilt@noaa.gov. The report must contain at minimum, the following:
• PSO names and affiliations;
a. Dates of departures and returns to port with port names;
b. Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort;
c. Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts;
d. Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change;
e. Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, BSS, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon;
• Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change ( e.g., vessel traffic, equipment malfunctions); and
• Survey activity information, such as type of survey equipment in operation, acoustic source power output while in operation, and any other notes of significance ( i.e., pre-clearance survey, ramp-up, shutdown, end of operations, etc. ).
• Survey activity information (and changes thereof), including at minimum the general specifications of all acoustic sources, power output of all sparkers and boomers while in operation, number of operational sparker tips for all sparkers, tow depth(s) of all towed acoustic sources, and any other notes of significance ( i.e., pre-start clearance, ramp-up, shutdown, testing, shooting, ramp-up completion, end of operations, streamers, etc. ).
• If a marine mammal is sighted, the following information should be recorded:
a. Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform);
b. PSO who sighted the animal;
c. Time of sighting;
d. Vessel location at time of sighting;
e. Water depth;
f. Direction of vessel's travel (compass direction);
g. Direction of animal's travel relative to the vessel;
h. Pace of the animal;
i. Estimated distance to the animal and its heading relative to vessel at initial sighting;
• Identification of the animal ( e.g., genus/species, lowest possible taxonomic level, or unidentified); also note the composition of the group if there is a mix of species;
a. Estimated number of animals (high/low/best);
b. Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc. );
c. Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);
• Detailed behavior observations ( e.g., number of blows, number of surfaces, breaching, spyhopping, diving, feeding, traveling; as explicit and detailed as possible; note any observed changes in behavior);
a. Animal's closest point of approach and/or closest distance from the center point of the acoustic source;
• Platform activity at time of sighting ( e.g., deploying, recovering, testing, data acquisition, other); and
• Description of any actions implemented in response to the sighting ( e.g., delays, shutdown, ramp-up, speed or course alteration, etc. ) and time and location of the action.
If a North Atlantic right whale is observed at any time by PSOs or personnel on any project vessels, during surveys or during vessel transit, Bay State Wind must immediately report sighting information to the NMFS North Atlantic Right Whale Sighting Advisory System: (866) 755-6622. North Atlantic right whale sightings in any location may also be reported to the U.S. Coast Guard via channel 16.
In the event that Bay State Wind personnel discover an injured or dead marine mammal, Bay State Wind will report the incident to the NMFS Office of Protected Resources (OPR) and the NMFS New England/Mid-Atlantic Stranding Coordinator as soon as feasible. The report would include the following information:
a. Species identification (if known) or description of the animal(s) involved;
b. Condition of the animal(s) (including carcass condition if the animal is dead);
c. Observed behaviors of the animal(s), if alive;
d. If available, photographs or video footage of the animal(s); and
e. General circumstances under which the animal was discovered;
f. Time;
g. Date; and
h. location (latitude/longitude) of the first discovery (and updated location information if known and applicable).
In the unanticipated event of a ship strike of a marine mammal by any vessel involved in this activities covered by the IHA, Bay State Wind would report the incident to NMFS OPR and the NMFS New/England/Mid-Atlantic Stranding Coordinator as soon as feasible. The report would include the following information:
a. Time, date, and location (latitude/longitude) of the incident;
b. Species identification (if known) or description of the animal(s) involved;
c. Vessel's speed during and leading up to the incident;
d. Vessel's course/heading and what operations were being conducted (if applicable);
e. Status of all sound sources in use;
f. Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
[top] g. Environmental conditions ( e.g., wind speed and direction, BSS, cloud
h. Estimated size and length of animal that was struck;
i. Description of the behavior of the marine mammal immediately preceding and following the strike;
j. If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
k. Estimated fate of the animal ( e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and
l. To the extent practicable, photographs or video footage of the animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival ( i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be "taken" through harassment, NMFS considers other factors, such as the likely nature of any impacts or responses ( e.g., intensity, duration), the context of any impacts or responses ( e.g., critical reproductive time or location, foraging impacts affecting energetics), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the baseline ( e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).
To avoid repetition, the discussion of our analysis applies to all the species listed in table 2, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. Where there are meaningful differences between species or stocks as-is the case of the North Atlantic right whale-they are included as separate subsections below. NMFS does not anticipate that serious injury or mortality would occur as a result from HRG surveys, even in the absence of mitigation, and no serious injury or mortality is proposed to be authorized. As discussed in the Potential Effects of Specified Activities on Marine Mammals and their Habitat section, non-auditory physical effects and vessel strike are not expected to occur. NMFS expects that all potential takes would be in the form of Level B harassment in the form of temporary avoidance of the area or decreased foraging (if such activity was occurring), reactions that are considered to be of low severity and with no lasting biological consequences ( e.g., Southall et al. 2007, 2021). As described above, Level A harassment is not expected to occur given the nature of the operations and the estimated small size of the Level A harassment zones.
In addition to being temporary, the maximum expected harassment zone around the survey vessel is 141 m. Therefore, the ensonified area surrounding each vessel is relatively small compared to the overall distribution of the animals in the area and their use of the habitat. Feeding behavior is not likely to be significantly impacted as prey species are mobile and are broadly distributed throughout the Lease Area and potential ECRs; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance and the availability of similar habitat and resources in the surrounding area, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
There are no rookeries, mating or calving grounds known to be biologically important to marine mammals within the proposed Lease Area and potential ECRs. Two harbor and gray seal breeding and pupping grounds have been identified on Nantucket Sound at Monomoy and Muskeget Island. As the acoustic footprint of the proposed HRG activities is relatively small and these areas occur outside the Lease Area and potential ECRs, hauled seals are not expected to be impacted by these activities.
North Atlantic Right Whale
The status of the North Atlantic right whale (NARW) population is of heightened concern and therefore, merits additional analysis. As noted previously, elevated NARW mortalities began in June 2017 and there is an active UME. Overall, preliminary findings support human interactions, specifically vessel strikes and entanglements, as the cause of death for the majority of right whales. The proposed Lease Area and potential ECRs overlaps with a migratory corridor biologically important area (BIA) for North Atlantic right whales (effective March-April; November-December) that extends from Massachusetts to Florida and, off the coast of NY and RI, from the coast to beyond the shelf break (LaBrecque et al. 2015). Right whale migration is not expected to be impacted by the proposed survey due to the very small size of the Lease Area and potential ECRs relative to the spatial extent of the available migratory habitat in the BIA. The proposed Lease Area and potential ECRs also overlap with the Block Island SMA, active from November 1 to April 30. NARWs may be feeding or migrating within the SMA. Required vessel strike avoidance measures and following the speed restrictions of the SMA will decrease the risk of ship strike during NARW migration; no ship strike is expected to occur during Bay State Wind's proposed activities. For reasons as described above, minimal impacts are expected to prey availability and feeding success. Additionally, HRG survey operations are required to maintain a 500 distance and shutdown if a NARW is sighted at or within 500 m. The 500-m shutdown zone for right whales is conservative, considering the Level B harassment isopleth for the most impactful sources ( i.e., GeoMarine Sparkers, AA Dura-spark UHD Sparkers, AA Triple plate S-Boom) is estimated to be 141 m, and thereby minimizes the potential for behavioral harassment of this species. Therefore only very limited take by Level B harassment of NARW has been requested and is being proposed for authorization by NMFS. As noted previously, Level A harassment is not expected, nor authorized, due to the small PTS zones associated with HRG equipment types proposed for use. NMFS does not anticipate NARW takes that result from the proposed survey activities would impact annual rates of recruitment or survival. Thus, any takes that occur would not result in population level impacts.
[top] On August 1, 2022, NMFS announced proposed changes to the existing North
Other Marine Mammals With Active UMEs
As noted previously, there are several active UMEs occurring in the vicinity of Bay State Wind's proposed Lease Area and potential ECRs. Elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida since January 2016. Of the cases examined, approximately half had evidence of human interaction (ship strike or entanglement). The UME does not yet provide cause for concern regarding population-level impacts. Despite the UME, the relevant population of humpback whales (the West Indies breeding population, or distinct population segment) remains stable at approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have occurred along the Atlantic coast from Maine through South Carolina, with highest numbers in Massachusetts, Maine, and New York. This event does not provide cause for concern regarding population level impacts, as the likely population abundance is greater than 20,000 whales.
The required mitigation measures are expected to reduce the number and/or severity of proposed takes for all species listed in table 2, including those with active UMEs, to the level of least practicable adverse impact. In particular, they would provide animals the opportunity to move away from the sound source before HRG survey equipment reaches full energy, thus preventing them from being exposed to more severe Level B harassment. No Level A harassment is anticipated, even in the absence of mitigation measures, or proposed for authorization.
NMFS expects that takes would be in the form of short-term Level B behavioral harassment by way of brief startling reactions and/or temporary vacating of the area, or decreased foraging in the area (if such activity was occurring)-reactions that (at the scale and intensity anticipated here) are considered to be of low severity, with no lasting biological consequences. Since both the sources and marine mammals are mobile, animals would only be exposed briefly to a small ensonified area that might result in take. Required mitigation measures, such as shutdown zones and ramp up, would further reduce exposure to sound that could result in more severe behavioral harassment.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect any of the species or stocks through effects on annual rates of recruitment or survival:
• No serious injury or mortality is anticipated or authorized;
• No Level A harassment (PTS) is anticipated, even in the absence of mitigation measures or proposed for authorization;
• Foraging success is not likely to be significantly impacted as effects on species that serve as prey species for marine mammals from the survey are expected to be minimal;
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the ensonified area during the planned surveys to avoid exposure to sounds from the activity;
• Take is anticipated to be of Level B behavioral harassment only consisting of brief startling reactions and/or temporary avoidance of the ensonified area;
• While the Lease Area and potential ECRs is within areas noted as a migratory BIA and SMA for North Atlantic right whales, the activities would occur in such a comparatively small area such that any avoidance of the ensonified area due to activities would not affect migration. In addition, mitigation measures require shutdown at 500 m (almost four times the size of the Level B harassment isopleth (141 m), which minimizes the effects of the take on the species; and
• The proposed mitigation measures, including visual monitoring and shutdowns, are expected to minimize potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one-third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The amount of take NMFS proposes to authorize is below one-third of the estimated stock abundance for all species (in fact, take of individuals is less than 5 percent of the abundance of the affected stocks for these species, see table 7). The figures presented in table 7 are likely conservative estimates as they assume all takes are of different individual animals which is likely not to be the case. Some individuals may return multiple times in a day, but PSOs would count them as separate takes if they cannot be individually identified.
[top] Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals would be taken relative to the population size of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq. ) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS OPR consults internally whenever we propose to authorize take for endangered or threatened species.
NMFS OPR is proposing to authorize the incidental take of four species of marine mammals which are listed under the ESA, including the North Atlantic right, fin, sei, and sperm whale, and has determined that these activities fall within the scope of activities analyzed in GARFO's programmatic consultation regarding geophysical surveys along the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions (completed June 29, 2021; revised September 2021).
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to issue an IHA to Bay State Wind for conducting site characterization surveys off the coast of Rhode Island and Massachusetts from October 6, 2024, to October 5, 2025, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed IHA can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
Request for Public Comments
We request comment on our analyses, the proposed authorization, and any other aspect of this notice of proposed IHA for the proposed HRG surveys. We also request comment on the potential renewal of this proposed IHA as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform decisions on the request for this IHA or a subsequent renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, 1-year renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical or nearly identical activities as described in the Description of Proposed Activity section of this notice is planned or (2) the activities as described in the Description of Proposed Activity section of this notice would not be completed by the time the IHA expires and a renewal would allow for completion of the activities beyond that described in the Dates and Duration section of this notice, provided all of the following conditions are met:
• A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond 1 year from expiration of the initial IHA);
• The request for renewal must include the following:
? An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor ( e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take); and
? A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized; and
• Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
Dated: August 15, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries Service.
[FR Doc. 2024-18694 Filed 8-20-24; 8:45 am]
BILLING CODE 3510-22-P