Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Coastal Virginia Offshore Wind Commercial Project Offshore of Virginia

Federal RegisterJan 23, 2024

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 240104-0001]

RIN 0648-BL74

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Coastal Virginia Offshore Wind Commercial Project Offshore of Virginia

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates regulations to govern the incidental taking of marine mammals incidental to the Virginia Electric and Power Company, doing business as Dominion Energy Virginia (Dominion Energy), construction of the Coastal Virginia Offshore Wind Commercial (CVOW-C) Project (hereafter, the CVOW-C Project or the Project) in Federal and State waters offshore of Virginia, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0483 (Lease Area) and along export cable routes to sea-to-shore transition points (collectively referred to as the “Project Area”), over the course of 5 years (February 5, 2024 through February 4, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during construction-related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.

DATES:

This rulemaking is effective from February 5, 2024, through February 4, 2029.

FOR FURTHER INFORMATION CONTACT:

Kelsey Potlock, Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Availability

A copy of Dominion Energy's Incidental Take Authorization (ITA) application, supporting documents, received public comments, and the proposed rulemaking, as well as a list of the references cited in this document, may be obtained online at:

https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

In case of problems accessing these documents, please call the contact listed above (see

FOR FURTHER INFORMATION CONTACT

Purpose and Need for Regulatory Action

This final rule, as promulgated, provides a framework under the authority of the MMPA (16 U.S.C. 1361

et seq.

) for NMFS to authorize the take of marine mammals incidental to construction of the Project within the Project Area. NMFS received a request from Dominion Energy to incidentally take 21 species of marine mammals, comprising 22 stocks (7 stocks by Level A harassment and Level B harassment and 15 stocks by Level B harassment only), incidental to Dominion Energy's 5 years of construction activities. No mortality or serious injury is anticipated or authorized in this final rulemaking. Please see the

Legal Authority for the Final Action

section below for definitions of harassment, serious injury, and incidental take.

Legal Authority for the Final Action

The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361

et seq.

) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made, regulations are promulgated (when applicable), and public notice and an opportunity for public comment are provided.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). If such findings are made, NMFS must prescribe the permissible methods of taking (

e.g.,

“other means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”)) and requirements pertaining to the monitoring and reporting of such takings.

As noted above, no serious injury or mortality is anticipated or authorized in this final rule. Relevant definitions of MMPA statutory and regulatory terms are included below:

•

U.S. Citizens

—individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 216.103);

•

Take

—to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13); 50 CFR 216.3);

•

Incidental harassment, incidental taking, and incidental, but not intentional, taking

—an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable, or accidental (see 50 CFR 216.103);

•

Serious Injury

—any injury that will likely result in mortality (50 CFR 216.3);

•

Level A harassment

—any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and

•

Level B harassment

—any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (16 U.S.C. 1362(18); 50 CFR 216.3).

Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for proposing and, if appropriate, issuing regulations and an associated LOA(s). This final rule establishes permissible methods of taking and mitigation, monitoring, and reporting requirements for Dominion Energy's construction activities.

Summary of Major Provisions Within the Final Rule

The major provisions of this final rule are:

• The authorized take of marine mammals by Level A harassment and/or Level B harassment;

• No authorized take of marine mammals by mortality or serious injury;

• The establishment of a seasonal moratorium on pile driving of foundation piles during the months of the highest presence of North Atlantic right whales (

Eubalaena glacialis

) in the Lease Area (November 1st through April 30th, annually);

• A requirement for both visual and passive acoustic monitoring to occur by NOAA Fisheries-approved Protected Species Observers (PSOs) and Passive Acoustic Monitoring (PAM) operators (where required) before, during, and after select activities;

• A requirement of training for all Dominion Energy personnel to ensure marine mammal protocols and procedures are understood;

• The establishment of clearance and shutdown zones for all in-water construction activities to prevent or reduce the risk of Level A harassment and to minimize the risk of Level B harassment;

• A requirement to use sound attenuation devices during all foundation pile driving installation activities to reduce noise levels to those modeled assuming 10 decibels (dB);

• A delay to the start of foundation installation if a North Atlantic right whale is observed at any distance by PSOs or acoustically detected within the PAM Monitoring Zone (10 kilometer (km));

• A delay to the start of foundation installation if other marine mammals are observed entering or within their respective clearance zones;

• A requirement to shut down pile driving (if feasible) if a North Atlantic right whale is observed at any distance or if any other marine mammals are observed entering their respective shutdown zones;

• A requirement to conduct sound field verification (SFV) during foundation pile driving to measure

in-situ

noise levels for comparison against the modeled results;

• A requirement to implement soft-starts during impact pile driving using the least amount of hammer energy necessary for installation;

• A requirement to implement ramp-up during the use of high-resolution geophysical (HRG) marine site characterization survey equipment;

• A requirement to monitor relevant Right Whale Sightings Advisory System and Channel 16, as well as reporting any sightings to the sighting network;

• A requirement to implement various vessel strike avoidance measures;

• A requirement to implement measures during fisheries monitoring surveys, such as removing gear from the water if marine mammals are considered at-risk or are interacting with gear; and

• A requirement to submit frequently scheduled and situational reports including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and sound field verification monitoring results.

NMFS must withdraw or suspend any LOA issued under these regulations, after notice and opportunity for public comment, if it finds the methods of taking or the mitigation, monitoring, or reporting measures are not being substantially complied with (16 U.S.C. 1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with the requirements of the LOA may result in civil monetary penalties and knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 CFR 216.206(g)).

Fixing America's Surface Transportation Act (FAST-41)

This project is covered under Title 41 of the Fixing America's Surface Transportation Act or “FAST-41.” FAST-41 includes a suite of provisions designed to expedite the environmental review for covered infrastructure projects, including enhanced interagency coordination as well as milestone tracking on the public-facing Permitting Dashboard. FAST-41 also places a 2-year limitations period on any judicial claim that challenges the validity of a Federal agency decision to issue or deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-6(a)(1)(A)).

Dominion Energy's project is listed on the Permitting Dashboard, where milestones and schedules related to the environmental review and permitting for the Project can be found at

https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/coastal-virginia-offshore-wind-commercial-project.

Summary of Request

On February 16, 2022, Dominion Energy submitted a request for the promulgation of regulations and issuance of an associated LOA to take marine mammals incidental to construction activities associated with the Project. The request was for the incidental, but not intentional, taking of a small number of 21 marine mammal species (comprising 22 stocks) by Level B harassment (all 22 stocks) and by Level A harassment (7 species or stocks). Dominion Energy did not request, and NMFS neither expects nor authorizes, incidental take by serious injury or mortality.

In response to our questions and comments and following extensive information exchange between Dominion Energy and NMFS, Dominion Energy submitted a final revised application on August 5, 2022. NMFS deemed it adequate and complete on August 12, 2022. This final application is available on NMFS' website at

https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

On September 15, 2022, NMFS published a notice of receipt (NOR) of Dominion Energy's adequate and complete application in the

Federal Register

(87 FR 56634), requesting public comments and information on Dominion Energy's request during a 30-day public comment period. During the NOR public comment period, NMFS received a single comment letter from an environmental non-governmental organization: the Southern Environmental Law Center (SELC). We also received a single comment from a government agency: the United States Geological Survey. These comments entailed broader comments very similar to those we received during the proposed notice's comment period, including, but not limited to: vessel strike avoidance measures; the use of best available science when evaluating a seasonal pile driving moratorium; suggestions on proposed clearance and shutdown (termed “exclusion”) zones for North Atlantic right whales; cumulative impacts; and additional suggested mitigation, monitoring, and reporting measures in a supplemental attachment provided by the commenter. In June 2022, Duke University's Marine Spatial Ecology Laboratory released updated habitat-based marine mammal density models (Roberts

et al.,

2023). Because Dominion Energy applied marine mammal densities to their analysis in their application, Dominion Energy submitted a final Updated Density and Take Estimation Memo (herein referred to as Updated Density and Take Estimation Memo) on January 10, 2023 that included marine mammal densities and take estimates based on these new models which NMFS posted on our website in May 2023.

In January 2023, BOEM informed NMFS that the proposed activity had changed from what is presented in the adequate and complete MMPA application. Specifically, the changed proposed activity involved the reduction of maximum wind turbine generators (WTGs) built (from 205 to 202 WTGs) as under the original Project Design Envelope (PDE) and the offshore substations (OSSs) would be located in the vessel transit routes. Under the 202

build-out, three WTGs would be removed and the three OSSs would be shifted into these WTG positions. However, in late January 2023, Dominion Energy confirmed that their Preferred Layout of 176 WTGs is the base case for construction, but that they could possibly need up to 7 WTGs re-piled in alternate positions due to unstable sediment conditions, which could necessitate up to 183 independent piling events. WTG positions have been removed from consideration for one or more of the following reasons: impracticable due to foundation technical design risk, shallow gas presence, commercial shipping and navigation risk concerns, erosion risk, and presence of a designated fish haven. Based on the information provided, NMFS carried forward the analysis assuming a total build-out of 176 WTGs plus seven re-piled WTGs (a total of 183 independent piling events for WTGs) and the 3 originally planned OSSs. Due to the significant reduction of turbines from the original proposed action found in the adequate and complete ITA application (reduction of approximately 14 percent), Dominion Energy, in consultation with NMFS, provided an updated proposed action summary, revised exposure estimates, revised take requests, and an updated piling schedule in mid-February 2023 (hereinafter referred to as the Revised Proposed Action Memo). NMFS posted this to our website in May 2023.

On May 4, 2023, NMFS published a proposed rule in the

Federal Register

for the CVOW-C Project (88 FR 28656). In the proposed rule, NMFS synthesized all of the information provided by Dominion Energy, all best available scientific information and literature relevant to the proposed project, outlined, in detail, proposed mitigation designed to effect the least practicable adverse impacts on marine mammal species and stocks as well as proposed monitoring and reporting measures, and made preliminary negligible impact and small numbers determinations. The public comment period on the proposed rule was open for 30 days on

https://www.regulations.gov

starting on May 4, 2023 and closed after June 5, 2023. The public comments can be viewed at

https://www.regulations.gov/docket/NOAA-NMFS-2023-0030;

a summary of public comments received during this 30-day period and NMFS responses are described in the Comments and Responses section.

NMFS has previously issued six Incidental Harassment Authorizations (IHAs) to Dominion Energy. Two of those IHAs, issued in 2018 (83 FR 39062, August 8, 2018) and 2020 (85 FR 30930, May 21, 2020) supported the development of the Coastal Virginia Offshore Wind project, known as the CVOW Pilot Project (wherein two turbines were constructed). The remaining four IHAs (two of which were modified IHAs) were high resolution site characterization surveys within and around the CVOW-C Lease Area (see 85 FR 55415, September 8, 2020; 85 FR 81879, December 17, 2020; 86 FR 21298, April 22, 2021; and 87 FR 33730, June 3, 2022). To date, Dominion Energy has complied with all the requirements (

e.g.,

mitigation, monitoring, and reporting) of the previous IHAs and information regarding their monitoring results may be found in the Estimated Take section. These monitoring reports can be found on NMFS' website:

https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

On August 1, 2022, NMFS announced proposed changes to the existing North Atlantic right whale vessel speed regulations (87 FR 46921, August 1, 2022) to further reduce the likelihood of mortalities and serious injuries to endangered right whales from vessel collisions, which are a leading cause of the species' decline and a primary factor in an ongoing Unusual Mortality Event (UME). Should a final vessel speed rule be issued and become effective during the effective period of these regulations (or any other MMPA incidental take authorization), the authorization holder will be required to comply with any and all applicable requirements contained within the final vessel speed rule. Specifically, where measures in any final vessel speed rule are more protective or restrictive than those in this or any other MMPA authorization, authorization holders will be required to comply with the requirements of the vessel speed rule. Alternatively, where measures in this or any other MMPA authorization are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA authorization will remain in place. The responsibility to comply with the applicable requirements of any vessel speed rule will become effective immediately upon the effective date of any final vessel speed rule, and when notice is published on the effective date, NMFS will also notify Dominion Energy if the measures in the vessel speed rule were to supersede any of the measures in the MMPA authorization.

Description of the Specified Activities

Overview

Dominion Energy plans to construct and operate the Project, a 2,500 to 3,000-megawatt (MW) offshore wind farm, in the Project Area. The Project will allow the Commonwealth of Virginia to meet its renewable energy goals under the Virginia Clean Economy Act (HB 1526/SB 851).

Dominion Energy's precursor pilot project (

i.e.,

CVOW Pilot Project) was a 12 MW, two-turbine test project and the first to be installed in Federal waters. Designed as a research/test project, the two turbines associated with the CVOW Pilot Project became operational in October 2020 approximately 27 miles (mi; 43.45 kilometers (km)) off of Virginia Beach, Virginia. Information on this Pilot Project was used to inform the CVOW-C project. More information on the Pilot Project can be found on BOEM's website (

https://www.boem.gov/renewable-energy/state-activities/coastal-virginia-offshore-wind-project-cvow

) and in the IHA authorized by NMFS in May 2020 for BOEM Lease Area OCS-A-0497 (

https://www.bfisheries.bnoaa.bgov/action/incidental-take-authorization-dominion-energy-virginia-offshore-wind-construction-activities

The Project will consist of several different types of permanent offshore infrastructure, including 176 WTGs (

e.g.,

the Siemens Gamesa SG-14-222 DD 14-MW model with power boost technology potentially allowing up to 14.7-MW, equating to a total of 2,587.2-MW for full build-out) and associated foundations, three OSSs, offshore substation array cables, offshore export cables, and substation interconnector cables. Overall, Dominion Energy will conduct the following specified activities: install 176 WTGs and 3 OSS on monopile foundations via vibratory and impact pile driving; install and subsequently remove up to 9 cofferdams, by vibratory pile driving, and install up to 108 goal posts (12 goal posts for each of 9 Direct Pipe locations), by impact pile driving, to assist in the installation of the export cable; conduct several types of fishery and ecological monitoring surveys; place scour protection; trenching, laying, and burial activities associated with the installation of the export cable from OSSs to shore-based converter stations and inter-array cables between turbines; conduct HRG vessel-based site characterization surveys using active acoustic sources with frequencies of less than 180 kilohertz (kHz); transit within the Project Area and between ports and the Lease Area to transport crew,

supplies, and materials to support construction activities; and WTG operation. From the sea-to-shore transition point, onshore underground export cables are then connected in series to switching stations/substations, overhead transmission lines, and ultimately to the grid connection, which will be located in a parking lot found west of the firing range at the State Military Reservation located in Virginia Beach, Virginia.

Marine mammals exposed to elevated noise levels during vibratory and impact pile driving and site characterization surveys may be taken by Level A harassment and/or Level B harassment, depending on the specified activity and species.

A detailed description of the specified activities is provided in the proposed rule as published in the

Federal Register

(88 FR 28656, May 4, 2023). Since the proposed rule was published, Dominion Energy has not modified the specified activities. Please refer to the proposed rule for more information on the description of the specified activities.

Dates and Duration

Dominion Energy anticipates its specified activities to occur throughout all 5 years of the effective period of the regulations, beginning on February 5, 2024 and continuing through February 4, 2029. Dominion Energy's anticipated construction schedule can be found in Table 1. Dominion Energy has noted that these are the best, and conservative, estimates for activity durations but that the schedule may shift due to weather, mechanical, or other related delays.

Table 1—Construction Schedule

Project activity

Expected timing

Expected duration

(approximate)

Scour Protection Pre-Installation

Q2 through Q4 of 2024

Q2 through Q4 of 2025

9 months.

WTG Foundation Installation

b e

Q2 through Q4 of 2024

Q2 through Q4 of 2025

6 months.

Scour Protection Post-installation

Q2 through Q4 of 2024

Q2 through Q4 of 2025

9 months.

OSS Foundation Installation

b e

Q2 through Q4 of 2024

Q2 through Q4 of 2025

6 months.

Cable Landfall Construction (Goal Posts and Cofferdams)

Q1 through Q4 of 2024

6 months.

HRG Surveys

c d

Q1 2024 through Q4 2028

Any time of year.

Site Preparation

Q1 2024 through Q2 2024

6 months.

Inter-array Cable Installation

Q2 2025 through Q4 2026

19 months.

Export Cable Installation

Q3 2024 through Q3 2025

14 months.

Fishery Monitoring Surveys:

f g

Surf Clam

Q2 2023

1 week.

Whelk

Q2 2023 through Q1 2025

24 months.

Black Sea Bass

Q2 2023 through Q1 2025

24 months.

Note:

“Q1, Q2, Q3, and Q4” each refer to a quarter of the year, starting in January and comprising 3 months each. Therefore, Q1 represents January through March, Q2 represents April through June, Q3 represents July through September, and Q4 represents October through December.

While the effective period of the final regulations would extend a few months into 2029, no activities are planned to occur in 2029 by Dominion Energy, so these were not included in this table.

Activities would only occur from May 1st through October 31st annually.

Activities would begin in February 2024, upon the issuance of an associated LOA, and continue through construction and post-construction.

For HRG surveys, Dominion Energy anticipates up to 65 days of surveys would occur during the pre-construction period (2024), up to 307 days during the primary construction years (2025 and 2026), and up to 736 days would be needed during the post-construction years (2027 and 2028) with a 50/50 split of 368 days each year. No surveys are planned for 2029.

Dominion Energy anticipates that all WTGs and OSS foundations will be installed by October 31, 2025; however, unanticipated delays may require some foundation pile driving to occur in 2026 and/or 2027.

Some fishery monitoring survey activities are planned prior to February 2024 but are not included here as they would not occur during the effective dates of the rule and an associated LOA.

Dates displayed here are for field work, as that would be the only component that could impact marine mammals.

Although cable landfall activities are anticipated to occur over 9-12 months total, activities capable of harassing marine mammals would only occur for the specified duration described here as other activities necessary for landfall construction (

i.e.,

area preparation, material transportation, etc.) would also occur.

Specified Geographic Region

A detailed description of the Specified Geographic Region is provided in the proposed rule as published in the

Federal Register

(88 FR 28656, May 4, 2023). Since the proposed rule was published, no changes have been made to the Specified Geographic Region. Generally, Dominion Energy's specified activities (

i.e.,

vibratory and impact pile driving of WTGs on monopile and OSS on jacket foundations; vibratory pile driving (installation and removal) of temporary cofferdams; impact pile driving (installation) of goal posts; placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable and inter-array cables; HRG site characterization surveys; and WTG operation) are concentrated in the Project Area (Figure 1). A couple of Dominion Energy's specified activities (

i.e.,

fishery and ecological monitoring surveys and transport vessels) will occur in the Mid-Atlantic Bight.

BILLING CODE 3510-22-P

Figure 1—Project Area

ER23JA24.000

BILLING CODE 3510-22-C

Comments and Responses

A notice of proposed rulemaking was published in the

Federal Register

on May 4, 2023 (88 FR 28656). The proposed rulemaking described, in detail, Dominion Energy's specified activities, the specified geographic region of the specified activities, the

marine mammal species that may be affected by those activities, and the anticipated effects on marine mammals. In the proposed rule, we requested that interested persons submit relevant information, suggestions, and comments on Dominion Energy's request for the promulgation of regulations and issuance of an associated LOA described therein, our estimated take analyses, the preliminary determinations, and the proposed regulations. The proposed rule was available for a 30-day public comment period.

In total, NMFS received 169 comment submissions, comprising 161 individual comments from private citizens and 6 comment letters from organizations or public groups including, but not limited to: the Marine Mammal Commission (the Commission), Oceana, Inc. (Oceana), SELC, Responsible Offshore Development Alliance (RODA), West Coast Pelagic Conservation Group (WCPCG); and the Virginia Department of Wildlife Resources (VDWR). Some of the comments received are considered out-of-scope, including, but not limited to, comments related to the non-offshore wind farm development; concerns for other species outside of NMFS' jurisdiction (

i.e.,

birds, tortoises, bats, insects); costs associated with offshore wind development; recycling of turbine components; national security concerns; other projects that are not the CVOW-C Project; and project decommissioning, which would occur outside the effective period of this rule. These comments are not described herein or discussed further. Moreover, where comments recommended that the final rule include mitigation, monitoring, or reporting measures that were already included in the proposed rule and such measures are carried forward in this final rule, they are not included here, as those comments did not raise significant points for NMFS to consider. Furthermore, if a comment received was unclear, we do not include it here as we could not determine whether it raised a significant point for NMFS to consider. NMFS also received a comment letter from Gatzke Dillion & Ballance LLP on behalf of the Committee for a Constructive Tomorrow (CFACT), the American Coalition for Ocean Protection (ACOP), and the Heartland Institute after the close of the public comment period.

The six letters (

i.e.,

Oceana, RODA, WCPCG, SELC, VDWR, and the Commission), as well as individual comments, received during the public comment period contained significant points that NMFS considered in its estimated take analysis, including: required mitigation, monitoring, and reporting measures; final determinations; and final regulations. These are described and responded to below. All substantive comments and letters are available on NMFS' website:

https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Please review the corresponding public comment link for full details regarding the comments and letters.

Modeling and Take Estimates

Comment 1:

The Commission claimed NMFS “underestimated the numbers of Level A harassment and Level B harassment takes (including failing to round up to group size) . . .” Specifically, the Commission claimed NMFS underestimated the number of takes for harbor seals because harbor seals occur in much greater numbers than gray seals off Virginia (

see

Jones and Rees, 2022).

Response:

NMFS incorporated group size into the estimated take analysis (

see

the Estimated Take of Marine Mammals section in the proposed rule (88 FR 28656, May 4, 2023) and Estimated Take section of this final rule). The Commission did not provide specific recommendations to adjust any take estimates other than for harbor and gray seals. NMFS has reviewed the number of takes by Level A harassment and Level B harassment for all species and disagrees it is an underestimate.

While the Commission does indeed cite a relevant paper, Jones and Rees (2022), as the basis for their observation, NMFS does not believe this paper alone is enough justification for adjusting take. The study sites in Jones and Rees (2022) are not applicable to Dominion Energy's activities (

i.e.,

they are located in estuarine habitat) as NMFS does not expect these specific areas to be impacted by the construction work for CVOW-C.

Specifically in addressing the Commission's concerns with the 50/50 allocation of take for pinnipeds between each species, NMFS disagrees that this method is incorrect and that this approach over- or under-estimates take. The Duke University density models (Roberts

et al.,

2023) group some species together (including phocid seals) to provide a single density estimate. While we acknowledge that more harbor seals have been observed in inland Chesapeake Bay waters than gray seals, there is not sufficient at-sea data to better proportion the number of takes by species; therefore, we assumed a 50/50 split consistent with Roberts

et al.

(2023). Importantly, for each species, we believe the maximum number of takes authorized in any given year (n=84 for each species) is a reasonable estimate of the number of harassment takes that may occur incidental to the specified activities given the majority of work that may result in marine mammal harassment would be occurring during times (May 1st through October 31st) when seals are less likely to be present in Virginia waters. For these reasons, we disagree with the Commission's claim and have not modified the take estimate approach in this final rule.

Comment 2:

A commenter disagreed with NMFS' preliminary small numbers determination based on the sum of takes for all species.

Respons

e: Under the MMPA, the Secretary of Commerce, as delegated to NMFS, shall allow the incidental taking of “small numbers of marine mammals

of a species or population stock

” if specific findings are made (16 U.S.C. 1371(a)(5)(a)(i)). Thus, the small numbers finding is done at the species or population level. In practice, where estimated numbers are available, NMFS compares the number of individuals estimated to be taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. NMFS has made the necessary small numbers finding for all affected species and stocks.

Comment 3:

A commenter stated that there is the potential for repeated exposures to adversely affect species' or stocks' annual rates of recruitment or survival.

Response:

NMFS fully considered the potential for repeated exposures in the proposed rule and this final rule when determining if the specified activities would result in a negligible impact to the affected species and stocks. The Negligible Impact Analysis and Determination section in both the proposed and final rules discusses the potential for repeated exposures and the potential related impacts. As described in those sections, NMFS has determined that the impacts resulting from the specified activities (recognizing that the potential for repeated exposures varies with the species due to habitat use (

e.g.,

migrating whales versus species that may remain in the area over longer periods of time)), will have a negligible impact on the affected species and stocks.

Comment 4:

Commenters stated that there is no evidence or research proving that the CVOW-C Project would not cause the mortality or serious injury of marine mammals. The commenters further stated that there is no evidence proving that the estimated take

proposed by NMFS in the proposed rule is accurate or the maximum total.

Response:

Regarding take by serious injury or mortality, the proposed rule clearly states that no serious injury and/or mortality is expected or proposed for authorization, and the same carries into the final rule for which no take by serious injury or mortality has been authorized (

see also

50 CFR 217.292(c)).

Regarding the claim that there is no evidence proving the take estimates are accurate, the take numbers, as shown in the proposed and final rule, are based on the best available marine mammal density data, published and peer reviewed scientific literature, on-the-water reports from other nearby projects or past MMPA actions, and highly complex statistical models of which real-world assumptions and inputs have been incorporated to estimate on a project-by-project basis. In the Estimated Take section, NMFS has provided detailed rationale for why the number and manner of takes authorized in this final rule are reasonable and based on the best available science. The commenter did not provide any information to support their claim that take estimates are not representative of the take that may occur incidental to the project. NMFS disagrees with the commenter and expects that the take numbers authorized for this action are sufficient given the activity proposed and planned by Dominion Energy.

Mitigation

Comment 5:

The commenter stated that the LOA must include conditions for the survey and construction activities that will first avoid adverse effects on North Atlantic right whales in and around the area and then minimize and mitigate the effects that cannot be avoided. This should include a full assessment of which activities, technologies and strategies are truly necessary to achieve site characterization and construction to inform development of the offshore wind projects and which are not critical, asserting that NMFS should prescribe the most appropriate techniques that would produce the lowest impact while achieving the same goals while prohibiting those other tools/techniques that would cause more frequent, intense, or long-lasting effects.

Response:

The MMPA requires that we include measures that will effect the least practicable adverse impact on the affected species and stocks and, in practice, NMFS agrees that the rule should include conditions for the construction activities that will first avoid adverse effects on North Atlantic right whales in and around the project area, where practicable, and then minimize the effects that cannot be avoided. NMFS has determined that this final rule meets this requirement to effect the least practicable adverse impact. The commenter does not make any specific recommendations of measures to add to the rulemaking.

NMFS is required to authorize the requested incidental take if it finds such incidental take of small numbers of marine mammals by the requestor while engaging in the specified activities within the specified geographic region will have a negligible impact on such species or stock and, where relevant, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. As described in this notice of final rulemaking, NMFS finds that small numbers of marine mammals may be taken relative to the population size of the affected species or stocks and that the incidental take of marine mammal from all of Dominion Energy's specified activities combined will have a negligible impact on all affected marine mammal species or stocks. It is not within NMFS' authority to determine if the requestor's specified activities are truly necessary or critical; however, NMFS does identify and has required in this final rule mitigation measures the effect the least practicable adverse impact on marine mammals.

Comment 6:

The commenter stated that the LOA should use buffer zones to avoid any effects of turbine presence on North Atlantic right whales and foraging.

Response:

Buffer zones have been suggested to mitigate impacts from offshore wind related activities near areas of significance (

e.g.,

known feeding grounds). As described in the proposed rule and herein, the project area, located offshore Virginia, is not considered foraging habitat and while some opportunistic foraging may occur, it is primarily a migratory corridor. Therefore, NMFS disagrees that a new mitigation measure creating a buffer zone is necessary to effect the least practicable adverse impact on North Atlantic right whales.

Comment 7:

One commenter recommended that NMFS require clearance and shutdown zones for all protected species that included (1) a minimum of 5,000 m (3.1 mi) for the visual and acoustic clearance zones; and (2) an acoustic shutdown zone that would extend at least 2,000 m (1.2 mi) in all directions from the driven pile location. Commenters also recommended that NMFS require pile-driving clearance and shutdown zones for large whales (other than North Atlantic right whale) that are large enough to avoid all take by Level A harassment and minimize Level B harassment to the most practicable extent.

Response:

The required shutdown and clearance zones (equally sized) for large whales (other than North Atlantic right whale) are based on the largest Level A harassment exposure range calculated for a mysticete, other than humpback whales, rounded up to the nearest hundred for PSO clarity. For all other species (

e.g.,

dolphins, harbor porpoise, seals), clearance and shutdown zones have been developed in consideration of modeled distances to relevant PTS thresholds with respect to minimizing the potential for take by Level A harassment, which were rounded up for PSO clarity. NMFS has determined that these zone sizes effect the least practicable adverse impact on marine mammals. Further, delaying the project unnecessarily due to very large clearance and shutdown zones could have unintended adverse impacts on marine mammals by extending the construction schedule. The commenters do not provide additional scientific information to support their suggestion to expand clearance and shutdown zones to the distances recommended. NMFS has not incorporated this recommendation into this final rule.

NMFS agrees that mitigation measures should be designed to avoid and minimize the potential for PTS and has included such measures in this rulemaking to effect the least practicable adverse impact on marine mammals. Specifically, in addition to requiring shutdown of pile driving if North Atlantic right whales are detected at any distance, NMFS has identified and required reasonable mitigation measures to avoid or minimize adverse impacts to marine mammals, such as setting this Project's impact pile driving clearance zones to be larger than the Level A harassment (PTS) zones for all other large whale species. NMFS believes that these measures are effective and would result in avoiding (North Atlantic right whale) or minimizing (other large whales) the takes by Level A harassment. We anticipate that where there is potential for Level A harassment, any auditory injury will be minimized through the implementation of noise abatement, soft starts, and clearance and shutdown zones. NMFS has made its required negligible impact finding based on the amount of take that may be authorized in the LOA.

NMFS agrees with the commenter that impacts should be minimized to the maximum extent practicable and we have done so with the required

mitigation measures. Enlargement of these zones is not practicable as it could interrupt and delay the project such that construction activities would occur over longer timeframes, which would incur additional costs but, importantly, also potentially increase the number of days that marine mammals are exposed to the disturbance. Conducting activities as expeditiously as possible when large whales are less likely to occur in the area is a means by which to minimize harassment. Accordingly, NMFS has determined that enlargement of these zones is not warranted, and that the existing required clearance and shutdown zones support a suite of measures that will effect the least practicable adverse impact on other large whales.

Comment 8:

A commenter recommended that, to protect all protected species, NMFS should restrict pile driving at night while another recommended pile driving should only be allowed to continue after dark if the activity was started during daylight hours and must continue due to human safety or installation feasibility (

i.e.,

stability) concerns, but that nighttime monitoring protocols be required. A commenter suggested that if pile driving must continue after dark, Dominion Energy should be required to notify NMFS with these reasons and an explanation for exemption and that a summary of the frequency of these exceptions must be made publicly available to ensure that these are indeed exceptions, rather than the norm, for the project.

Response:

Dominion Energy did not request, and NMFS did not evaluate, nighttime pile driving except in the following circumstance. In the proposed rule, we indicated that Dominion Energy must initiate pile driving prior to 1.5 hours before civil sunset and not before 1 hour after civil sunrise unless they submit to NMFS, for approval, an Alternative Monitoring Plan for nighttime pile driving activities. Within the final regulations and consistent with the commenter's recommendation, Dominion Energy will be allowed, due to safety and stability concerns, to finish piles at night when the pile has been started during daylight hours, in which they still must provide an Alternative Monitoring Plan for NMFS review and approval to ensure that they can appropriately monitor and mitigate for marine mammals in reduced visibility conditions. This Plan will describe the alternative monitoring technologies that would be used to observe for marine mammals, which as described in the proposed rule and carried over into the final rule, includes technologies such as infrared or thermal cameras, that are considered practical in low-light conditions and other periods of reduced visibility to allow for the continuation of monitoring the applicable clearance and shutdown zones. This Alternative Monitoring Plan is also applicable to reduced visibility conditions.

Regarding the reporting requirement specified by the commenter, required weekly and monthly reports during foundation installation must contain information that would inform how long and when pile driving occurred, as Dominion Energy is required to document the daily start and stop times of all pile-driving activities. At minimum, a final annual report with this information will be made available to the public, as recommended by the commenter.

Comment 9:

Given the potential of the project to increase the vessel traffic in and around the project area, a commenter suggests that the regulations include a vessel traffic plan to minimize the effects of service vessels on marine wildlife and include the following requirements for all project vessels, regardless of their function, ownership, or operator, to further reduce impacts to marine mammals: (1) all vessels associated with the proposed construction should be required to carry and use PSOs at all times when under way; and (2) limit all vessels, regardless of size, to speeds less than 10 knots (kn) at all times with no exceptions allowed. Alternatively, commenters suggest that project proponents could work with NMFS to develop an “Adaptive Plan” that modifies vessel speed restrictions if the monitoring methods informing the Adaptive Plan are proven as effective when for vessels traveling 10 kn or less and must follow a scientific study design. One commenter further suggested that if the Adaptive Plan is scientifically proven to be equally or more effective than a 10-kn speed restriction, that the Adaptive Plan could be used as an alternative to the 10-kn speed restriction. Identical or similar vessel mitigation measures were suggested by others.

Response:

Dominion Energy is required to abide by a suite of vessel strike avoidance measures that include, for example, seasonal and dynamic vessel speed restrictions to 10 kn (18.5 km/hour) or less; required use of dedicated observers (

i.e.,

visual PSOs during construction activities or trained lookouts during vessel transit) on all transiting vessels; and a requirement to maintain awareness of North Atlantic right whale presence and occurrence through monitoring of North Atlantic right whale sighting systems (

i.e.,

RWSAS, U.S. Coast Guard Channel 16, the establishment of any Dynamic Management Areas (DMAs)). Additionally, as included in the proposed rule and required in this final rule, Dominion Energy is required to submit a North Atlantic Right Whale Vessel Strike Avoidance Plan to NMFS for review and approval (

see

§ 217.294(b)(16)). While a year-round 10-kn requirement could potentially fractionally reduce the already discountable probability of a vessel strike, this theoretical reduction is not expected to manifest in measurable real-world differences in impact. Further, additional limitations on speed have significant practicability impacts on applicants, in that, given the distance of CVOW-C's Lease Area offshore of Virginia, vessels trips to and from shore would significantly increase in duration to the extent that delays to the project and planned construction schedule would be likely to occur resulting in impracticable economic and resource (

e.g.,

vessel availability) constraints. Additionally, requiring a PSO on all transiting vessels (in lieu of trained crew members) also contribute to unnecessary and impracticable economic and resources issues (as space on vessels is limited), which could also extend the number of days necessary to complete all pile driving of foundations. While NMFS is requiring a dedicated observer to be aboard all transiting vessels, we find a dedicated trained crew member is sufficient to observe for marine mammals, particularly large whales, to further reduce risk of vessel strike. Furthermore, Dominion Energy has committed to the use of PAM within the vessel transit corridor to further aid in the detection of marine mammals. NMFS has determined that these and other included measures ensure the least practicable adverse impact on species or stocks and their habitat. Therefore, we are not requiring project-related vessels to travel 10 kn or less at all times.

Regarding an “Adaptive Plan”, the proposed rule and this final rule contain adaptive management provisions that allows NMFS to modify mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goal(s) of the measure (

see

§ 217.297(c)). Dominion Energy may also request modifications to the mitigation and monitoring measures (

see

§ 217.297(a)-(b)). Therefore, NMFS disagrees that an Adaptive Plan is necessary to affect the least practicable adverse impact on marine mammals.

Comment 10:

Commenters recommended that NMFS require

Dominion Energy to implement the best, commercially available combined NAS technology to achieve the greatest level of noise reduction and attenuation possible for pile driving, with a specific recommendation that NMFS require, at a minimum, a 10-dB reduction in SEL. The commenter further stated that NMFS should require field measurements to be taken throughout the construction process, including on the first pile installed, to ensure compliance with noise reduction requirements.

Response:

NMFS agrees with the suggestion made by the commenters that underwater noise levels should be reduced to the greatest degree practicable to reduce impacts on marine mammals. As described in both the proposed and final rule, NMFS has included requirements for sound attenuation methods that successfully (evidenced by required sound field verification measurements) reduce real-world noise levels produced by impact pile driving of foundation installation to, at a minimum, the levels modeled assuming 10-dB reduction, as analyzed in this rulemaking. Preliminary sound measurements from South Fork Wind indicate that with multiple NAS systems, measured sound levels during impact driving foundation piles using a 4,000 kilojoules (kJ) hammer are below those modeled assuming a 10-dB reduction and suggest, in fact, that two systems may sometimes be necessary to reach the targeted 10-dB reductions. While NMFS is requiring that Dominion Energy reduce sound levels to at or below the model outputs analyzed (assuming a reduction of 10 dB), we are not requiring greater reduction as it is currently unclear (based on measurements to date) whether greater reductions are consistently practicable for these activities, even if multiple NAS systems are used.

In response to the recommendation by the commenters for NMFS to confirm that a 10-dB reduction is achieved, NMFS clarifies that, because no unattenuated piles would be driven, there is no way to confirm a 10-dB reduction; rather,

in-situ

SFV measurements will be required to confirm that sound levels are at or below those modeled assuming a 10-dB reduction.

In addition to the SFV requirements in the proposed rule, we added to this final rule the requirement that Dominion Energy must conduct abbreviated SFV monitoring (consisting of a single acoustic recorder placed at an appropriate distance from the pile) on all foundation installations for which the complete SFV monitoring, as required in the proposed rule, is not carried out consistent with the Biological Opinion. NMFS is requiring that these SFV results must be included in the weekly reports. Any indications that distances to the identified Level A harassment and Level B harassment thresholds for whales must be addressed by Dominion Energy, including an explanation of factors that contributed to the exceedance and corrective actions that were taken to avoid exceedance on subsequent piles.

Comment 11:

Commenters recommended that, for HRG surveys, NMFS require the use of PAM and include a 1,000-m (0.62-mi) acoustic clearance zone for North Atlantic right whales and also increase the visual clearance zone to 1,000 m for right whales. Another commenter recommended that NMFS increase the size of the visual clearance and shutdown zones during HRG surveys to 500 m (0.31 mi) for all other large whales. They also suggested that HRG surveys should be halted or shut down if North Atlantic right whales or other large whales are acoustically detected.

One commenter who also supported PAM during HRG surveys, stated that the real-time PAM system should be capable of detecting protected species at least 10,000 m (6.2 mi) and would be undertaken by a vessel other than the pile driving vessel or from a stationary unit to avoid masking effects of the hydrophone. The commenter also suggested that PAM be used during all impact pile driving, during vibratory pile driving of the cofferdams, and during HRG surveys.

Response:

NMFS disagrees PAM is necessary during HRG surveys. While NMFS agrees that PAM can be an important tool for augmenting detection capabilities in certain circumstances, its utility in further reducing impacts during HRG survey activities is limited. First, it is generally accepted that, even in the absence of additional acoustic sources, using a towed passive acoustic sensor to detect baleen whales (including North Atlantic right whales) is not typically effective because the noise from the vessel, the flow noise, and the cable noise are in the same frequency band and will mask the vast majority of baleen whale calls. Vessels produce low-frequency noise, primarily through propeller cavitation, with main energy in the 5-300 Hertz (Hz) frequency range. Source levels range from about 140 to 195 decibel (dB) re 1 μPa (micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), depending on factors such as ship type, load, and speed, and ship hull and propeller design. Studies of vessel noise show that it appears to increase background noise levels in the 71-224 Hz range by 10-13 dB (Hatch

et al.,

2012; McKenna

et al.,

2012; Rolland

et al.,

2012). PAM systems employ hydrophones towed in streamer cables approximately 500 m behind a vessel. Noise from water flow around the cables and from strumming of the cables themselves is also low-frequency and typically masks signals in the same range. Experienced PAM operators participating in a recent workshop (Thode

et al.,

2017) emphasized that a PAM operation could easily report no acoustic encounters, depending on species present, simply because background noise levels rendered any acoustic detection impossible. The same workshop report stated that a typical eight-element array towed 500 m behind a vessel could be expected to detect delphinids, sperm whales, and beaked whales at the required range, but not baleen whales, due to expected background noise levels (including seismic noise, vessel noise, and flow noise).

Second, for HRG surveys, the area expected to be ensonified above the Level B harassment threshold is relatively small (a maximum of 100 m via the GeoMarine Dual 400 Sparker at 800 joules); this reflects the fact that the source level is comparatively low and the intensity of any resulting impacts would be lower level. Further, the small harassment zone (and 500 m clearance and shutdown zones) are likely to be effectively monitored via visual means and PAM will only detect a portion of any animals exposed within these small zones. Together these factors support the limited value of PAM for use in reducing take with smaller zones.

NMFS also disagrees that the zones for North Atlantic right whales and other large whales should be expanded. As described in the proposed and final rules, the required 500-m clearance zone for North Atlantic right whales exceeds the modeled distance to the largest 160-dB Level B harassment isopleth (100 m (0.06 mi) during sparker use) by a large margin, minimizing the likelihood that they will be harassed in any manner by this activity. The 500-m distance is five times the estimated isopleth for the largest 160-dB Level B harassment threshold and we do not see a need to increase this further. Further, the commenters do not provide scientific information for NMFS to consider to support their recommendation to expand the clearance zone. As such, NMFS recognizes that requiring zones beyond those that meet the least practicable adverse impact standard could delay the project such that construction activities are extended to

the point that it is actually less beneficial for the species. Given that these surveys are relatively low impact, and that NMFS has prescribed a precautionary North Atlantic right whale clearance zone that is larger (500 m) than the largest estimated harassment zone (100 m), NMFS has determined that an increase in the size of the clearance and shutdown zones for North Atlantic right whales to 1,000 m is not warranted or practicable and the commenter does not provide new information supporting this comment. Similarly, increasing the size of the clearance and shutdown zones for other large whales to 500 m during HRG surveys is also not warranted or practicable and the commenter does not provide new information supporting this comment.

Regarding the use of PAM during cable landfall construction, although distances above the Level B harassment threshold are larger than for HRG surveys (3,100 m for temporary cofferdams and 1,450 m for temporary goal posts), the effects are not expected to rise to the level that would constitute Level A harassment (injurious take). Noise generated during cable landfall construction is of relatively short duration, low level, and in nearshore waters (which tend to be calmer than offshore) where PSO monitoring will be sufficient for detecting marine mammals to implement mitigation that effects the least practicable adverse impact on marine mammals. Similar to HRG surveys, given that the effects to marine mammals from cable landfall construction are expected to be limited to low level behavioral harassment (Level B harassment) even in the absence of mitigation (

i.e.,

no Level A harassment is expected or authorized), the limited additional benefit anticipated by adding this detection method for the short term cable landfall pile driving is not warranted or necessary to ensure the least practicable adverse impact on the affected species or stocks and their habitat.

Regarding the use of passive acoustic monitoring to implement the clearance and shutdown zones during foundation installation, as described in the proposed rule, NMFS is requiring the use of PAM to monitor 10 km zones around the piles and that the systems be capable of detecting marine mammals during pile driving within this zone. In this final rule, Tables 25 and 26 clearly specify this 10-km PAM monitoring zone. Dominion Energy is required to submit a PAM Plan to NMFS for approval at least 180 days prior to the planned foundation pile driving start date. NMFS will not approve a Plan where hydrophones used for PAM would be deployed from the pile driving vessel as this would result in hydrophones inside the bubble curtains, which would clearly be ineffective for monitoring; therefore, there is no need to explicitly state in this rule that this would not be allowed.

As described in the Mitigation section, NMFS has determined that the prescribed mitigation requirements are sufficient to effect the least practicable adverse impact on all affected species or stocks.

Comment 12:

The Commission suggested that NMFS' proposed minimum visibility zone (2 km) during foundation pile driving is insufficient given that the Level A harassment zone for impact pile driving ranges from 3.2 to 5.7 km and that the Level B harassment zones range from 5.5 to 6.2 km for North Atlantic right whales.

Response:

NMFS appreciates the suggestion by the Commission but does not agree that an increase of the minimum visibility zone is warranted. When modeling the PTS threshold zone sizes, Tetra Tech produced acoustic ranges (R

). Acoustic ranges represent the distance to a harassment threshold based on sound propagation through the environment independent of any receiver. That is, the R

values represent the distance at which an animal would have to remain from a pile for the entire duration of exposure within a 24 hours period (in this case up to 2 monopiles per day or 2 pin piles per day). This assumption is unrealistic as we anticipate animals will move away from the source upon exposure as the area is primarily a North Atlantic right whale migration corridor and we do not anticipate whales to remain in the area for extended periods of time throughout the days. Further, the acoustic ranges are conservative in that they are calculated from 3D sound fields and then, at each horizontal sampling range, the maximum received level that occurs within the water column is used as the received level at that range. These maximum-over-depth (R

max

) values are then compared to predetermined threshold levels to determine acoustic and exposure ranges to Level A harassment and Level B harassment zone isopleths. However, the ranges to a threshold typically differ among radii from a source, and also might not be continuous along a radii because sound levels may drop below threshold at some ranges and then exceed threshold at farther ranges. To minimize the influence of these inconsistencies, 5 percent of the farthest such footprints are typically excluded from the model data. The resulting range, R

, is then chosen to identify the area over which marine mammals may be exposed above a given threshold, because, regardless of the shape of the maximum-over-depth footprint, the predicted range encompasses at least 95 percent of the horizontal area that would be exposed to sound at or above the specified threshold. R

excludes ends of protruding areas or small isolated acoustic foci not representative of the nominal ensonified zone. Finally, pile driving would occur during times when North Atlantic right whales are least likely to be in the Project Area. Creating a large minimum visibility distance despite the rarity of whales would unnecessarily delay the project such that work would be extended; thereby increasing the timeframe over which marine mammals may be exposed to construction activities.

For these reasons, NMFS does not believe it necessary to increase this zone size. Furthermore, even with the larger acoustic ranges produced from the conservative modeling, the minimum visibility zone does not differ greatly from those presented for other nearby projects which calculated distances to thresholds in consideration of animal movement (off of New Jersey, final Ocean Wind 1-1.65 km in the summer and 2.5 km in the winter; proposed Atlantic Shores South—1.9 km).

Comment 13:

A commenter questioned why there was a depth restriction in Dominion Energy's Protected Species Mitigation and Monitoring Plan (PSMMP) when vessel speeds apply and recommended additional vessel restrictions regarding 10 kn or less within specific areas to reduce the risk of vessel strike on cetaceans.

Response:

NMFS did not restrict any of the vessel speed measures to apply at specific depths; instead the measures are designed to apply to any and all vessel usage by Dominion Energy. Dominion Energy's project vessels would be restricted to 10 kn or less in certain circumstances, which include and in cases, go beyond existing vessel speed regulations. NMFS has included several measures in both the proposed and final rules that are sufficient to reasonably avoid vessel strike (see response to Comment 9 above for additional information). NMFS disagrees with the commenter that additional measures are necessary to avoid vessel strike.

Comment 14:

A commenter suggested the NMFS should require Dominion to deploy additional noise attenuation technologies that, together with the double bubble curtain, reach a 15-

decibel (dB) reduction or greater in sound exposure level (“SEL”).

Response:

NMFS acknowledges that underwater noise levels should be reduced to the greatest degree practicable to reduce impacts on marine mammals. As described in both the proposed and final rules, NMFS has included requirements for sound noise attenuation methods that successfully reduce foundation installation noise levels to, at a minimum, the levels modeled assuming 10-dB reduction. While NMFS is requiring that Dominion Energy reduce sound levels to equal or be below the model outputs analyzed (assuming a reduction of 10 dB), we are not assuming greater reduction as it is currently unclear (based on measurements to date) whether greater reductions are consistently practicable for these activities, even if multiple NAS systems are used. Preliminary sound measurements from South Fork Wind indicate that with multiple NAS systems, measured sound levels during impact driving foundation piles using a 4,000-kJ hammer are at or below those modeled assuming a 10-dB reduction and suggest, in fact, that two systems may sometimes be necessary to reach the targeted 10-dB reductions. In response to the recommendation by the commenters for NMFS to confirm that a 10-dB reduction is achieved, NMFS clarifies that, because no unattenuated piles would be driven, there is no way to confirm a 10-dB reduction; rather,

in-situ

SFV measurements will be required to confirm that sound levels are at or below those modeled assuming a 10-dB reduction. To further clarify, Dominion Energy must achieve an activity's modeled sound reduction during foundation installation. If the modeled sound reduction is not achieved, additional measures are required to reduce those noise levels.

Comment 15:

A commenter expresses concern that NMFS' enhanced measures for North Atlantic right whales are not broadly applied to other ESA-listed large whale species. They also expressed concern over the Potential Biological Removal (PBR) for each stock not being assessed cumulatively based on the take authorized for CVOW-C and other threats to large whales.

Response:

The commenter inappropriately conflates Level A harassment (

e.g.,

auditory injury, PTS) and Level B harassment (

i.e.,

behavioral disturbance) with mortality and serious injury through their reference to PBR levels. A stock's PBR level is “the maximum number of animals, not including natural mortalities that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.” PBR is not an appropriate metric to evaluate the take allowed under the CVOW regulations in the manner suggested by the commenter, which is take by Level A harassment or Level B harassment, not mortality or serious injury (

i.e.,

removals from the population). NMFS has described and used an analytical framework that is appropriate. We consider levels of ongoing anthropogenic mortality from other sources, such as commercial fisheries, in relation to calculated PBR levels as part of the environmental baseline in our negligible impact analysis.

Regarding cumulative impacts, NMFS refers the commenter to the response found in Comment 28 as the same information applies here. Furthermore, while the commenter is correct that enhanced mitigation and monitoring measures are required for North Atlantic right whales specifically, given their unique and precarious position, and that some of these measures will have beneficial effects on other species as well. For example, while PAM detections of a North Atlantic right whale, at any distance, would necessitate a shutdown/delay to any specified activity, we expect that other low-frequency specialists will benefit from the use of PAM (

i.e.,

detections) as these will provide additional awareness to complement PSOs on visual observation. While we do acknowledge that the “at any distance” provision is not a blanket requirement across all species, we believe that the additional awareness provided by PAM, in addition to the conservative zone sizes will also reduce negative impacts to these other species. Requiring shutdowns/delays “at any distance” for all large whale species, regardless of status, could potentially extend the duration project activities would be necessary, as more frequent shutdowns/delays would otherwise be needed. There are offsetting benefits to completing the project activities (specifically foundation installation) in a shorter amount of time, as extending these construction periods due to more frequent shutdowns runs the risk of extending activities into months where species densities are higher in the Project Area.

Comment 16:

A commenter recommended that NMFS work more to encourage the use of gravity-based and suction bucket foundations rather than piled foundations, as these foundations have demonstrated a potential for reduced impacts to marine mammals while providing potentially more flexibility to developers. They further suggested that, if this isn't possible for CVOW-C or other future projects, which NMFS works with BOEM to encourage measures that could lead to greater levels of noise reduction during pile driving.

Response:

NMFS agrees that there are sound minimization benefits to marine mammals when using non-pile driven foundations, such as the results shown in recent publications (

e.g.,

Potlock

et al.,

2023). However, it is not within NMFS' authority to determine the applicant's specified activities. NMFS is required to authorize the requested incidental take if it finds such incidental take of small numbers of marine mammals by the requestor while engaging in the specified activities within the specified geographic region will have a negligible impact on such species or stock and, where relevant, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. As described in this notice of final rulemaking, NMFS finds that small numbers of marine mammals may be taken relative to the population size of the affected species or stocks and that the incidental take of marine mammals from all of the specified activities combined will have a negligible impact on all affected marine mammal species or stocks.

NMFS continually supports efforts to reduce ocean noise across various industries, including OSW. For example, NOAA's Ocean Noise Strategy (

https://oceannoise.noaa.gov/

) articulates the agency's vision for addressing ocean noise impacts to marine species, and NMFS supports BOEM's Recommendations for Offshore Wind Project Pile Driving Sound Exposure Modeling and Sound Field Measurement document and BOEM's Nationwide Recommendations for Impact Pile Driving Sound Exposure Modeling and Sound Field Measurement for Offshore Wind Construction and Operations Plans (

https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/FINAL%20Nationwide%20Recommendations%20for%20Impact%20Pile%20Driving%20Sound%20Exposure%20Modeling%20and%20Sound%20Field%20Measurement%20%28Acoustic%20Modeling%20Guidance%29.pdf

). NMFS and BOEM also are jointly working on the North Atlantic Right Whale and Offshore Wind Strategy (

https://www.noaa.gov/news-release/noaa-and-boem-announce-draft-offshore-wind-north-atlantic-right-whale-strategy

). All of these documents encourage reducing ocean noise,

including BOEM's establishment of quieting performance standards for OSW and conducting some level of SFVs on every pile installed, which NMFS has provided feedback on and supports. Finally, NMFS is collaborating with BOEM and the Department of Energy (DOE) on a recent funding notice focused on installation noise reduction and reliable moorings for offshore wind and marine energy (found here at:

https://www.energy.gov/eere/wind/articles/funding-notice-installation-noise-reduction-and-reliable-moorings-offshore-wind?utm_medium=email&utm_source=govdelivery

Comment 17:

The commenters recommend that NMFS prohibit site assessment and site characterization activities during times of highest risk to North Atlantic right whales, using the best available science to define high-risk timeframes. In addition, the commenters suggest that NMFS should develop a real-time mitigation and monitoring protocol to dynamically manage the timing of site assessment and characterization activities to ensure those activities are undertaken during times of lowest risk for all relevant large whale species.

Response:

As discussed in Comment 9, given the required vessel strike avoidance mitigation measures and small Level A harassment and Level B harassment isopleths for HRG surveys (54.2 m and 100 m, respectively), no Level A harassment, serious injury, or mortality is anticipated or authorized for this activity for any species, and the comparatively limited number of authorized takes by Level B harassment is expected to result in low-level impacts. The largest modeled Level B harassment zone size for the GeoMarine Dual 400 sparker (100 m) is already much smaller than the required separation and shutdown distances for North Atlantic right whale (500 m) and any unidentified large whale that would be treated as if it were a North Atlantic right whale. Furthermore, the proposed rule and this final rule include a framework of mitigation and monitoring measures designed to effect the least practicable adverse impact on marine mammals (see 50 CFR 217.294(e), 217.295). Therefore, NMFS disagrees there is a need to prohibit such surveys during “high-risk timeframes” and develop a dynamic management system.

Comment 18:

One commenter recommended that all vessels responsible for crew transport (

i.e.,

service operating vessels) should use automated thermal detection systems to assist monitoring efforts while vessels are in transit.

Response:

NMFS is requiring that all vessels, when transiting, must utilize trained, dedicated observers and, in the case of reduced visibility, use alternate technology to maintain visual monitoring, which may include infrared technologies (a type of thermal detection system). Dominion Energy is required to submit a Vessel Strike Avoidance Plan which will describe the type of technologies they propose to use to monitor for marine mammals. NMFS will evaluate that plan and determine if different or additional technology is required.

Comment 19:

The commenter asserted that to minimize the impacts of underwater noise from HRG surveys to the fullest extent feasible, project proponents should select and operate sub-bottom profiling systems at power settings that achieve the lowest practicable source level for the objective.

Response:

NMFS agrees with the suggestion made by the commenters that underwater noise levels should be reduced to the greatest degree practicable to reduce impacts on marine mammals. NMFS also agrees with the suggestion that Dominion Energy should utilize its HRG acoustic sources at the lowest practicable source level to meet the survey objective and has incorporated this requirement into the final rule (see § 217.294(e)(4)).

Comment 20:

A commenter suggested that NMFS require: (1) at least 15 dB of sound attenuation from pile driving, with a minimum of 10 dB to be required; (2) field measurements be conducted on the first pile installed and the data must be collected from a random sample of piles through the construction period, although the commenter specifically notes that they do not support field testing of unmitigated piles; and (3) that all sound source validation reports of field measurements be evaluated by both NMFS and BOEM prior to additional piles being installed and that these reports be made publicly available. Another commenter has suggested that NMFS strengthen its requirement to maximize the level of noise reduction possible for the CVOW-C Project, utilizing 10 dB as the minimum only but meeting upwards of 20 dB of noise reduction. To support their assertion, they cited datasets by Bellmann

et al.

(2020 and 2022). They also recommended that NMFS require the “best commercially available combined NAS technology” to achieve noise reduction and attenuation.

Response:

NMFS acknowledges that previous measurements (see Bellmann, 2019; Bellmann

et al.,

2020) indicate that the deployment of double big bubble curtains should result in noise reductions beyond the assumed 10 dB. However, when sound field verifications (SFV) measurements are conducted during construction, several factors come into play in determining how well modeled levels/isopleths correspond to those measured in the field, such as the level at the source, how well the noise travels in the environment, and the effectiveness of the deployed NAS across a broad range of frequencies. For these reasons, NMFS conservatively assumes only a 10-dB noise reduction. Furthermore, if SFV measurements consistently demonstrate that distances to harassment thresholds are less than those modeled assuming 10 dB attenuation, adjustments in monitoring and mitigation can be made by NMFS, upon request by Dominion Energy. We reiterate that there is no requirement to achieve 10-dB attenuation as no unattenuated piles would be driven; therefore, it is not possible to collect the data necessary to enforce this requirement. However, as described in Comments 10 and 14, we are requiring the developer to meet the noise levels modeled, assuming 10-dB attenuation. NMFS is also actively engaged with other agencies and offshore wind developers on furthering quieting technologies.

It is important to note that the assumed 10-dB reduction is not a limit, it is a conservative estimate of the likely achievable noise reduction, which along with all other modeling assumptions, allows for estimation of marine mammal impacts and informs monitoring and mitigation. However, we have incorporated requirements to add or modify NAS in the event that noise levels exceed those modeled.

NMFS notes that Dominion Energy must conduct SFV on three monopiles and on all OSS foundations (n=12 pin piles total) and, at this time, NMFS does not support unmitigated field testing for pile installation. If SFV acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10 dB attenuation), Dominion Energy may request a modification of the clearance and shutdown zones for foundation pile driving of monopiles. If requested and upon receipt of an interim SFV report, NMFS may adjust zones (

i.e.,

Level A harassment, Level B harassment, clearance, shutdown, and/or minimum visibility zone) to reflect SFV measurements. As part of the updates to the final rule, NMFS also requires maintenance checks and testing of NAS

systems before each use to ensure the NAS is usable and the system is able to achieve the modeled reduction, this information would be required to be reported to NMFS within 72 hours of an installation but before the next installation occurs.

Lastly, NMFS agrees that SFV reports (sound source validation reports) to NMFS should be required and evaluated by the agencies prior to further work commencing. NMFS agrees that the final SFV reports that have undergone quality assurance/quality control (QA/QC) by the agencies and include all of the required information to support full understanding of the results will be made publicly available; however, interim results without full review and all of the other supporting information are not ripe or appropriate for public availability.

Comment 21:

A commenter stated that the seasonal restriction put into place for foundation pile driving for North Atlantic right whales should be assessed with regards to other marine mammal species, such as humpback whales, which may be present in higher numbers in the summer. They further suggested that additional protective approaches are needed for other species that may be present, such as the use of a real-time monitoring and mitigation system. Other commenters suggested dynamic management of activity temporal restrictions during project construction based on near real-time monitoring.

Response:

NMFS acknowledges that the seasonal restriction for impact pile driving is to effect the least practicable adverse impact on North Atlantic right whales; however, NMFS notes that this seasonal restriction provides additional protections to large whale species that occur off of Virginia during summer months. For example, humpback whales, based on the Duke University density models (Roberts

et al.,

2023), have higher occurrences in the late winter/early spring period (January through April) and reach their highest numbers within May and/or June. Subsequent declines in densities are noted after peak summer. Fin whales demonstrate a fairly year-round presence off of Virginia, with the highest densities occurring from November through May. We note that the highest densities are located in more offshore waters than the CVOW-C Project would be located and generally more northern in distribution. Harbor porpoises are primarily located off of Virginia from November through April, per Roberts

et al.

(2023). These durations almost all fall within the large seasonal restriction required by NMFS (November through April), which would reduce much of the impact to animals transiting through the area. Furthermore, Dominion Energy's analysis and take numbers were run assuming average seasonal densities, which may be slightly higher given increased densities when averaged with lower ones. Given that we expect marine mammals to actively be transiting through the area, rather than residing, impacts should be further lessened. While we acknowledge that some whales, such as the North Atlantic right whale, are acoustically detected year-round off of Virginia (Salisbury

et al.,

2015), no scientific information or data supports the offshore Virginia waters as a Biologically Important Area for any other protected marine mammal species (besides the North Atlantic right whale migratory corridor). However, this is not to say that these species do not occur in these waters, but simply that the Virginia offshore waters are not primary habitat for essential life functions, such as foraging or calving, for other protected species. Instead, marine mammals primarily utilize these waters to transit to or from a more viable/important habitat.

Lastly, NMFS agrees that a near real-time monitoring system and protocols for North Atlantic right whales and other large whale species is a prudent and practicable measure and, as such, included real-time PSO monitoring and near real-time PAM (where practicable and effective (

i.e.,

foundation pile driving) in the proposed rule and the final rule (see Comments 21 and 22). Monitoring will inform whether other mitigation measures, such as delaying or shutting down a source, are triggered.

Monitoring, Reporting, and Adaptive Management

Comment 22:

Commenters recommended that NMFS require real-time notifications of project activities (

e.g.,

HRG surveys, pile driving,

etc.

) and immediate notifications of any strandings or sightings of North Atlantic right whales or other protected species. Commenters also recommended NMFS make reports publicly available.

Response:

The commenter did not identify why real-time notification to NMFS regarding project activities is necessary and NMFS does not agree this is necessary or practicable. Dominion Energy is required to submit weekly reports to NMFS during foundation installation, which includes project activities. It is not necessary for NMFS to track, in real-time, project activities.

NMFS agrees with the commenter that North Atlantic right whale reporting should be done in a timely manner. The proposed and final rule each contain situational reporting requirements for every North Atlantic right whale sighting or acoustic detection immediately but also recognizes the potential for immediate communication to be challenging. In both of the proposed and final rules, NMFS has included a requirement that if a North Atlantic right whale is observed at any time by PSOs or project personnel, Dominion Energy must ensure the sighting is immediately (if not feasible, as soon as possible and no longer than 24 hours after the sighting) reported to NMFS, the U.S. Coast Guard, and the Right Whale Sightings Advisory System (RWSAS). This includes stranded animals. If the North Atlantic right whale is stranded, the report (via phone or email) must include contact (name, phone number,

etc.

), the time, date, and location of the first discovery (and updated location information if known and applicable); species identification (if known) or description of the animal(s) involved; condition of the animal(s) (including carcass condition if the animal is dead); observed behaviors of the animal(s), if alive; if available, photographs or video footage of the animal(s); and general circumstances under which the animal was discovered. Any acoustic detection of a North Atlantic right whale would be reported to NMFS as soon as possible, but no longer than 24 hours after the detection via the 24-hour North Atlantic right whale Detection Template (

https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates

PSOs and PAM operators are required to follow strict reporting requirements (

i.e.,

weekly and monthly (during foundation installation), and annually and situationally (all activities)) to document the sighting, behavior, species,

etc.

NMFS does not consider real-time reporting necessary, nor have we required it. “Real-time” reporting constitutes immediate or instantaneous notifications at the time of the sighting or observation. Instead, NMFS does, in the Monitoring and Reporting section, require “near real-time”, which allows the notification to happen in a timely manner but after a reasonable delay when on the water. Weekly and monthly reports would be required for the duration of foundation installation. The final rule requires annual reports on sightings, activities, and take resulting from the project, and a 5-year report on all visual and acoustic monitoring. Situational reporting is required for any event that might need more direct NMFS-intervention (such as an adaptive

management need), due to the sighting of a large whale species, or an unexpected marine mammal interaction occurred or was detected. We also note that the commenter does not provide justification regarding what actions NMFS would be expected to undertake for real-time reporting, or why that would be necessary. In the event of sighting a dead or injured marine mammal, NMFS has included specific situational reporting requirements that would need to be undertaken as soon as feasible but within 24 hours. This feasibility requirement is necessary as there are many different situations that could occur on the water that could reduce communication potential, so NMFS allows the developer some time to maintain or recover communication if necessary. Because of this, NMFS does not see any issues with its requirements for situational reporting and feasibility and has opted not to change anything herein. The only circumstance wherein immediate reporting is required is in the unforeseen instance that a Project vessel strikes a marine mammal. The non-auditory injury or death of a marine mammal caused by vessel strike must be immediately reported to NMFS, and Dominion Energy must immediately cease all on-water activities until the NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA. All final reports submitted to NMFS will be included on the website for availability to the public.

Comment 23:

The commenter expressed concern regarding the PAM details and protocol as there is some variation on the “target” frequencies detectable based on the type of equipment chosen. The commenter stated that because of this ambiguity, “it is not possible to assess what the detection capabilities will be based on the information.”

The commenter suggested that the use of a PAM system with localization capabilities, if available, should provide sufficient information regarding presence within the clearance/shutdown zone, but also recommended the use of other technologies (

e.g.,

semi-automated infrared systems, drones) to aid in marine mammal observation.

Response:

As described in the proposed rule (88 FR 28656, May 4, 2023), Dominion Energy is required to submit a detailed PAM Plan to NMFS for approval that describes the PAM system(s) proposed for use. While the systems are not yet finalized (hence the variability noted by the commenter), NMFS has established criteria in the proposed and final rules (

e.g.,

the system must be capable of detecting baleen whales out to 10 km from the pile being installed). NMFS will evaluate if the bandwidth capabilities of the PAM system proposed meet these criteria. Furthermore, our Adaptive Management provision within the final rule allows us to adapt to new technology and information, which allows us, in discussions with Dominion Energy, to modify the PAM monitoring, as determined to be applicable.

NMFS disagrees that PAM alone should be used to monitor marine mammals and is requiring both visual and acoustic monitoring for specific specified activities. As described in the proposed rule, NMFS requires that Dominion Energy employ both visual and PAM methods as both approaches aid and complement each other (Van Parijs

et al.,

2021). NMFS has also considered the use of semi-automated infrared systems to support visual monitoring. While Dominion Energy is free to propose using such systems, we are not requiring Dominion Energy to use such systems at this time (see Comment 23). Similar to the PAM Plan, NMFS requires Dominion Energy to submit, for approval, a Pile Driving Monitoring Plan that meets the criteria required in this final rule (

e.g.,

visually observe for marine mammals to select distances). Similar to PAM, the Adaptive Management provision in the final rule allows for technological developments in monitoring or mitigation to be implemented, in coordination with Dominion Energy.

Comment 24:

Commenter suggested that NMFS require tracking and monitoring for “unusual patterns” in protected species strandings specifically related to HRG surveys and other construction activities.

Response:

As NMFS has explained in the proposed rule and in this final rule, strandings (

e.g.,

mortality) are not an anticipated outcome of the specified activities, including HRG surveys, and there is no evidence to suggest otherwise. Further, marine mammal strandings are fully tracked and monitored via NMFS' Marine Mammal Health and Stranding Response Program (

https://www.fisheries.noaa.gov/national/marine-life-distress/marine-mammal-health-and-stranding-response-program

). As such, NMFS disagrees that Dominion Energy should be required to track strandings.

Comment 25:

A commenter requested NMFS define the frequency at which we would review any new information for modifications to the LOA via the Adaptive Management provision. A commenter recommended this occur once a quarter, while allowing for a mechanism to undertake review and adaptive management on an

ad hoc

basis if a serious issue is identified (

e.g.,

if unauthorized takes by Level A harassment are reported or if serious injury or mortality occurs). They have also recommended that NMFS incorporate review by independent subject-matter experts to increase transparency, to provide an opportunity to share information, and to allow for the input of additional scientific expertise.

Response:

We disagree that the frequency at which information is reviewed should be defined in the Adaptive Management provision. The purpose of the Adaptive Management is to allow for the incorporation of new information as it becomes available, which could mean advancements and new information becomes available quickly (

i.e.,

days or weeks) that would necessitate NMFS to consider adapting the issued LOA, or over long periods of time as robust and conclusive information becomes available (

i.e.,

months or years). NMFS will be reviewing interim reports as they are submitted; hence, the quarterly review, as suggested by the commenter, is not necessary. NMFS retains the ability to make decisions as information becomes available, and after discussions with Dominion Energy about feasibility and practicability.

Regarding the suggestion for

ad hoc

changes in the event that additional take by Level A harassment or take via serious injury/mortality of a marine mammal occurs, we do not agree with the suggestion by the commenter. NMFS has included two relevant provisions in its final rule that state that “[t]ake by mortality or serious injury of any marine mammal species is not authorized” and that “it is unlawful for any person to . . . take any marine mammal specified in the LOA in any manner other than as specified in the LOA.” We refer the commenter to the “Prohibitions” portion of the regulatory text (see § 217.293). In the event Dominion Energy's project takes any marine mammals in a manner that has not been authorized in the final rule (see § 217.293) these would be in violation of the MMPA and regulations and NMFS would undertake appropriate actions, as determined to be necessary (

see

16 U.S.C. 1371(a)(5)(B)).

Lastly, regarding independent review, NMFS disagrees that such reviews should be incorporated into the adaptive management process. The MMPA and its implementing regulations require that incidental take

regulations be established based on the best available information and the MMPA does not proscribe use of independent, subject matter expert review of NMFS' determinations outside of the public comment process.

Comment 26:

Commenters stated that the regulations must include a requirement for all phases of the CVOW-C site characterization to subscribe to the highest level of transparency, including frequent reporting to federal agencies, requirements to report all visual and acoustic detections of North Atlantic right whales and any dead, injured, or entangled marine mammals to NMFS or the U.S. Coast Guard as soon as possible and no later than the end of the PSO shift. A commenter stated that to foster stakeholder relationships and allow public engagement and oversight of the permitting, the ITA should require all reports and data to be accessible on a publicly available website. Another commenter also suggested that all quarterly reports of PSO sightings must be made publicly available to continue to inform marine mammal science and protection.

Response:

NMFS notes the commenters' recommendations to report all visual and acoustic detections of North Atlantic right whales and any dead, injured, or entangled marine mammals to NMFS are consistent with the proposed rule and this final rule (see Situational Reporting). We refer the reader to § 217.295(g)(13), (15)(i)-(v) of the regulations for more information on situational reporting. NMFS requires North Atlantic right whale sightings to be reported immediately (if not feasible, as soon as possible and no longer than 24 hours after the sighting). Similarly, if a North Atlantic right whale is acoustically detected at any time by a project-related PAM system, Dominion Energy must report the detection as soon as possible to NMFS, but no longer than 24 hours after the detection. Daily visual and acoustic detections of North Atlantic right whales and other large whale species along the Eastern Seaboard, as well as Slow Zone locations, are publicly available on WhaleMap (

https://whalemap.org/whalemap.html

). Further, recent acoustic detections of North Atlantic right whales and other large whale species are available to the public on NOAA's Passive Acoustic Cetacean Map website (

https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map

). Given the open access to the resources described above, NMFS does not concur that public access to quarterly PSO reports is warranted and we have not included this measure in the authorization. However, NMFS will post all final reports to our website. We refer the commenters to § 217.295(g) for more information on reporting requirements in the regulations.

Effects Assessment

Comment 27:

Commenters stated that NMFS must use the more recent and best available science, including population estimates, in evaluating impacts to North Atlantic right whales, given its critically endangered status. This includes using updated population estimates, recent habitat usage patterns for the project area, and a revised discussion of the acute, chronic, and cumulative stress on North Atlantic right whales in the region.

Response:

NMFS has used the best available science in its analysis. Since issuance of the proposed rule, NMFS has finalized the 2022 Stock Assessment Report (SAR) indicating the North Atlantic right whale population abundance is estimated as 338 individuals (confidence interval: 325-350; 88 FR 4162, January 24, 2023). NMFS has used this most recent best available information in the analysis of this final rule. This new estimate, which is based off the analysis from Pace

et al.

(2017) and subsequent refinements found in Pace (2021), is included by reference in the draft and final 2022 Stock Assessment Reports (

https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment reports

) and provides the most recent and best available estimate, including improvements to NMFS' right whale abundance model. More recently, in October 2023, NMFS released a technical report identifying that the North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023). NMFS conservatively relies on the lower SAR abundance estimate in this final rule. The finalization of the draft to final 2022 SAR did not change the estimated take of North Atlantic right whales or authorized take numbers, nor affect our ability to make the required findings under the MMPA for Dominion Energy's construction activities.

NMFS cannot require applicants to utilize specific models for the purposes of estimating take incidental to offshore wind construction activities, but we do require use of the Roberts

et al.

(2016, 2023) density data for all species, which represents the best available science regarding marine mammal occurrence.

The proposed rule includes discussion of North Atlantic right whale habitat use in the Project Area, which is located off of Virginia (NMFS notes the comments provided incorrectly reference southern New England). The proposed rule also includes a discussion of the effects of stress on marine mammals from exposure to noise from the project; the discussion is informed by the best available science. NMFS has carefully reviewed the best available scientific information in assessing impacts to marine mammals and recognizes that Dominion Energy's activities have the potential to impact marine mammals through behavioral effects, stress responses, and temporary auditory masking. However, and specifically given the predicted exposures and number of authorized takes, NMFS does not expect that the generally short-term, intermittent, and transitory marine site characterization survey activities planned by Dominion Energy will create conditions of acute or chronic acoustic exposure leading to long-term physiological stress responses in marine mammals. For pile driving activities, and also specifically given the predicted exposures and amount of authorized take, we do not expect that the impacts from these activities would result in acute or chronic acoustic exposure that would lead to long-term physiological stress responses as these activities will all be localized and performed for limited durations. Additionally, for all activities, NMFS has prescribed a robust suite of mitigation and monitoring measures, including extended distance shutdowns for North Atlantic right whales, seasonal restrictions, dual-PSO and PAM usage, and NAS use that are expected to further reduce the duration and intensity of acoustic exposure, while limiting the potential severity of any possible behavioral disruption. The potential for chronic stress was evaluated in making the determinations presented in NMFS' negligible impact analyses. Furthermore, the area in which CVOW-C is located is not a known feeding habitat for North Atlantic right whales, although it is found within the migratory corridor BIA for North Atlantic right whales. NMFS does not anticipate that North Atlantic right whales would be displaced from the area where Dominion Energy's activities would occur, and the commenter does not provide evidence that this effect should be a reasonably anticipated outcome of the specified activity.

With respect to cumulative impacts, please see response to Comment 28.

Comment 28:

Several commenters raised concerns regarding the cumulative impacts of the multiple offshore wind projects being developed

throughout the range of marine mammals, including North Atlantic right whales, and specifically recommended that NMFS carefully consider the discrete effects of each activity and the cumulative effects of the suite of approved, proposed, and potential activities on marine mammals to ensure that the cumulative effects are not “excessive” before the promulgation of the final rule.

Another member of the public expressed concerns over the number of North Atlantic right whales that have “already been killed” when combined with other offshore wind projects along the East Coast.

A member of the public has asked how NOAA is tracking the takes of several species, including marine mammals, and where this list can be found for the public. They have also asked how NOAA will determine an “acceptable” number of possible harassment/injuries/deaths for each species, annually, could occur.

Response:

Neither the MMPA nor NMFS' codified implementing regulations call for consideration of the take resulting from other activities in the negligible impact analysis. The preamble for NMFS' implementing regulations (54 FR 40338, September 29, 1989) states, in response to comments, that the impacts from other past and ongoing anthropogenic activities are to be incorporated into the negligible impact analysis via their impacts on the baseline. Consistent with that direction, NMFS has factored into its negligible impact analysis the impacts of other past and ongoing anthropogenic activities via their impacts on the baseline (

e.g.,

as reflected in the density/distribution and status of the species, population size and growth rate, and other relevant stressors).

The 1989 final rule for the MMPA implementing regulations also addressed public comments regarding cumulative effects from future, unrelated activities. There, NMFS stated that such effects are not considered in making findings under section 101(a)(5) concerning negligible impact. In this case, this ITR as well as other ITRs currently in effect or proposed within the specified geographic region, are appropriately considered an unrelated activity relative to the others. The ITRs are unrelated in the sense that they are discrete actions under section 101(a)(5)(A) issued to discrete applicants. Section 101(a)(5)(A) of the MMPA requires NMFS to make a determination that the take incidental to a “specified activity” will have a negligible impact on the affected species or stocks of marine mammals. NMFS' implementing regulations require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals (

see

50 CFR 216.104(a)(1)). Thus, the “specified activity” for which incidental take coverage is being sought under section 101(a)(5)(A) is generally defined and described by the applicant. Here, Dominion Energy was the applicant for the ITR, and we are responding to the specified activity as described in that application and making the necessary findings on that basis.

Through the response to public comments in the 1989 implementing regulations (54 FR 40338, September 29, 1989), NMFS also indicated (1) that we would consider cumulative effects that are reasonably foreseeable when preparing a National Environmental Policy Act (NEPA) analysis and (2) that reasonably foreseeable cumulative effects would also be considered under section 7 of the ESA for listed species, as appropriate. Accordingly, NMFS has adopted an Environmental Impact Statement (EIS) written by BOEM and reviewed by NMFS as part of its inter-agency coordination. This EIS addresses cumulative impacts related to Dominion Energy and substantially similar activities in similar locations. Cumulative impacts regarding the promulgation of the regulations and issuance of a LOA for construction activities, such as those planned by Dominion Energy, have been adequately addressed under NEPA in the adopted EIS that supports NMFS' determination that this action has been appropriately analyzed under NEPA. Separately, the cumulative effects of Dominion Energy on ESA-listed species, including North Atlantic right whales, was analyzed under section 7 of the ESA when NMFS engaged in formal inter-agency consultation with the ESA Interagency Cooperation Division within the Office of Protected Resources. The Biological Opinion for CVOW-C determined that NMFS' promulgation of the rulemaking and issuance of a LOA for construction activities associated with leasing, individually and cumulatively, are likely to adversely affect, but not jeopardize, listed marine mammals.

Given that each project is considered its own discrete action, for final marine mammal sightings recorded during each relevant project, NMFS directs the public to the relevant Project web page, where annual and final reports will be published describing the number of marine mammals detected within specific harassment zones to date and across the entire effective period of the Project.

Regarding the number of North Atlantic right whales for which take has been authorized—NMFS reiterates that only Level B harassment (behavioral) is anticipated and has been authorized for this species. In looking at the maximum annual authorized number, Dominion Energy is authorized to harass no more than 7 North Atlantic right whales (assuming each instance of harassment occurs to a different individual), representing 2.04 percent of the total population. Over the course of 5 years, Dominion Energy would be authorized to harass up to 17 individual North Atlantic right whales. We expect that any instance of harassment would result in short-term impacts such as avoidance of the project area but not abandonment of their migratory habitat. Further, as described in the Negligible Impact Analysis and Determination Section, the location of the least area (44 km offshore) and seasonal restriction on foundation installation pile driving (the most impactful activity) provides high conservation benefit and greatly minimizes impacts on North Atlantic right whales (as evidenced by the very small amount of take authorized despite the size of the project). We reiterate that we do not anticipate, nor have we proposed or authorized, mortality or serious injury for any marine mammal species for the CVOW-C Project. This includes for North Atlantic right whales, where no Level A harassment is anticipated or authorized due to the mitigation measures required to be implemented by Dominion Energy.

Comment 29:

Several commenters stated that more time and research is needed to understand what the impacts of offshore wind may be on the ocean and marine life.

Response:

NMFS is required to authorize the requested incidental take if it finds the total incidental take of small numbers of marine mammals by U.S. citizens while engaging in a specified activity within a specified geographic region during a five-year period (or less) will have a negligible impact on such species or stock and where appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses (16 U.S.C. 1371(a)(5)(A)). While the incidental take authorization must be based on the best scientific information available, the MMPA does not allow NMFS to delay issuance of the requested authorization on the presumption that new information will become available in the future. NMFS has made the required findings, based on the best scientific

information available and has included mitigation measures to effect the least practicable adverse impacts on marine mammals.

Other

Comment 30:

Two commenters have encouraged NMFS to issue LOAs on an annual basis, rather than a single 5-year LOA, to allow for the continuous incorporation of the best available scientific and commercial information and to modify mitigation and monitoring measures as necessary and in a timely manner, as well as to account for the quickly evolving situation for the North Atlantic right whale.

Response:

NMFS appreciates the commenter regarding our ITA process. While NMFS acknowledges the commenter's rationale, we do not think it is necessary to issue annual LOAs as: (1) the final rule includes requirements for annual reports (in addition to weekly and monthly requirements) to support annual evaluation of the activities and monitoring results, and (2) the final rule includes an Adaptive Management provision (see § 217.297(c)) that allows NMFS to make modifications to the mitigation, monitoring, and reporting measures found in the LOA if new information supports the modifications and doing so creates a reasonable likelihood of more effectively accomplishing the goals of the measures.

Comment 31:

Several commenters have expressed concern regarding the recent whale deaths, which they claim are the result of offshore wind activities and pre-construction survey activities. Another commenter has suggested that NMFS should consider whether or not authorizing Level A harassment or Level B harassment should be permissible given the recent elevated public concern about potential impacts on marine mammals from offshore wind activities.

Another commenter has stated that NMFS cannot determine the cause of the recent whale deaths accurately without doing necropsies. Because of this, the commenter states that NMFS cannot determine that recent whale mortalities were not related to “the whales' diminished ability to determine its location due to acoustic damage to its echolocation systems” from offshore wind-related surveys (

i.e.,

HRG and site assessment surveys).

Lastly, another commenter stated that funding should be made available to: (1) train PSOs; (2) stranding network organizations to carry out necessary carcass recovery, examination, and diagnostic tests to exclude acoustic injuries as reasons for strandings associated with HRG surveys and/or construction activities; and (3) understand how strandings of protected species in unusual patterns during or around times where HRG surveys/construction activities occur so that costs can be calculated for the relevant response (

e.g.,

offshore whale carcass towing, heavy equipment rentals,

etc.

) as well as to provide accountability on the cause of the stranding.

Response:

There is no evidence that noise resulting from offshore wind development-related site characterization surveys, which are conducted prior to construction, could potentially cause marine mammal strandings, and there is no evidence linking recent large whale mortalities and currently ongoing surveys. This point has been well supported by other agencies, including BOEM and the Marine Mammal Commission. The commenters offer no such evidence or other scientific information to substantiate their claim. NMFS will continue to gather data to help us determine the cause of death for these stranded whales.

The Marine Mammal Commission's recent statement supports NMFS' analysis: “There continues to be no evidence to link these large whale strandings to offshore wind energy development, including no evidence to link them to sound emitted during wind development-related site characterization surveys, known as HRG surveys. Although HRG surveys have been occurring off New England and the mid-Atlantic coast, HRG devices have never been implicated or causatively associated with baleen whale strandings.” (Marine Mammal Commission Newsletter, Spring 2023). There is an ongoing Unusual Mortality Event (UME) for humpback whales along the Atlantic coast from Maine to Florida, which includes animals stranded since 2016. Partial or full necropsy examinations were conducted on approximately half of the whales. Necropsies were not conducted on other carcasses because they were too decomposed, not brought to land, or stranded on protected lands (

e.g.,

national and state parks) with limited or no access. Of the whales examined (roughly 90), about 40 percent had evidence of human interaction, either ship strike or entanglement. Vessel strikes and entanglement in fishing gear are the greatest human threats to large whales. The remaining 50 necropsied whales either had an undetermined cause of death (due to a limited examination or decomposition of the carcass) or had other causes of death including parasite-caused organ damage and starvation. The best available science indicates that only Level B harassment, or disruption of behavioral patterns (

e.g.,

avoidance), may occur as a result of Dominion Energy's HRG surveys. NMFS emphasizes that there is no credible scientific evidence available suggesting that mortality and/or serious injury is a potential outcome of the planned survey activity.

Additionally, NMFS has not authorized mortality or serious injury in this final rule, and such taking is prohibited under § 217.292(c) of the regulations and may result in modification, suspension, or revocation of an LOA issued under these regulations. NMFS notes there has never been a report of any serious injuries or mortalities of a marine mammal associated with site characterization surveys.

Furthermore, while NMFS agrees in the value of necropsies in determining the cause of death of a stranded marine mammal, NMFS stranding partners cannot perform necropsies on every dead animal as some of the carcasses were either too decomposed, not brought to land, or stranded on protected lands (

e.g.,

national and state parks) with limited or no access. Furthermore, and as described on our website, large whale necropsies are very complicated, requiring many people and typically heavy equipment (

e.g.,

front loaders,

etc.

). Some whales are found dead floating offshore and need to be towed to land for an examination. There can be limitations for access and using heavy equipment depending on the location where the whale stranded, including protected lands (parks or concerns for other endangered species) and accessibility (remote areas, tides that prevent access at times of day). Also, necropsies are the most informative when the animal died relatively recently. Some whales are not found until they are already decomposed, which limits the amount of information that can be obtained. Finally, funding is limited, and varies by location and stranding network partner. For more information on offshore wind and whales, we reference the commenter to our website:

https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales.

Additionally, a commenter raised a concern regarding potential injury to “echolocation systems”. All large whales that have stranded since December 2011, with the exception of three sperm whales, have been mysticete (baleen) whales (

e.g.,

humpback whales, minke whales),

which do not have the ability to echolocate, a process by which toothed whales (

e.g.,

sperm whales) and dolphins emit high-frequency sounds from their melon to obtain information about objects (typically prey) in the water. Because baleen whales do not echolocate like toothed whales and dolphins, there is no concern over impeding such ability. Additionally, several species of delphinids and beaked whales have stranded off Virginia since 2011; however, there is no evidence that the acoustic sources used during HRG surveys contributed to these events.

Regarding available funding, as suggested by another commenter, Dominion Energy is responsible for acquiring NMFS-approved PSOs to conduct marine mammal monitoring as prescribed in its rule. PSOs working on the CVOW-C Project would not be involved in stranding response beyond the required reporting measures (

i.e.,

reporting sightings of dead or injured marine mammals to the Stranding Response Network. The Marine Mammal Health and Stranding Response Program (MMHSRP) coordinates emergency responses to sick, injured, distressed, or dead seals, sea lions, dolphins, porpoises, and whales. The MMHSRP works with volunteer stranding and entanglement networks as well as local, tribal, State, and Federal government agencies to coordinate and conduct emergency responses to stranded or entangled marine mammals. The Prescott Grant Program (

https://www.fisheries.noaa.gov/grant/john-h-prescott-marine-mammal-rescue-assistance-grant-program

) provides funding for members of the national marine mammal stranding network through a competitive grant process for (1) recovery and treatment (

i.e.,

rehabilitation) of stranded marine mammals; (2) data collection from living or dead stranded marine mammals; and (3) facility upgrades, operation costs, and staffing needs directly related to the recovery and treatment of stranded marine mammals and the collection of data from living or dead stranded marine mammals. From 2001 through 2023, the Program awarded more than $75.4 million in funding through 893 competitive grants to Stranding Network members in 26 states, the District of Columbia, two territories, and three tribes.

Comment 32:

A commenter has stated that there is a data need for information related to vessel density as it relates to changes in vessel routing and traffic patterns. The commenter further stated that the acquisition of this information would be beneficial when compared to species distribution and habitat data. They also stated that this data would provide context to any observed changes in rates of vessel strikes, fishing gear, entanglements, and impacts on fisheries in terms of gear loss and protected species interactions. They also suggested that NMFS should require vessels to maintain a specific transit (east and northeast of the Lease Area) to avoid nearshore areas.

Response:

NMFS provided information related to the amount and types of vessels to be used for CVOW-C and is requiring that that all of Dominion Energy's vessels must be equipped with properly installed and operational AIS devices and that Dominion Energy must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources. This will allow for an evaluation of Dominion Energy vessel traffic movement. NMFS is not requiring Dominion Energy vessels to maintain a specific transit (East and Northeast of the Lease Area) to avoid nearshore areas as Dominion Energy must use ports and some aspects of work are located in nearshore waters requiring vessel use in that area. Therefore, restricting Dominion Energy vessels waters outside of the nearshore area (which is undefined by the commenter) is not practicable.

Comment 33:

A commenter insisted that NOAA Marine Mammal Health and Stranding Program staff be guaranteed site access for response to and rescue of stranded animals. The commenter also expressed a desire for clarification on the photographs that could be taken during a sighting of a stranding, and that specific parameters should be discussed for these photos to allow for the appropriate response to be taken.

Response:

NMFS cannot require access be given in all cases for stranded animals, as sometimes the carcass never returns to shore or strands on protected lands, such as national or state parks, with limited access. Given these instances are situational and the appropriate actions are determined by trained specialists, we defer to their knowledge and expertise instead.

Regarding the comment on the photographs in the event of a stranding or dead animal, NMFS does not see a reason to require very specific parameters for these photographs, as all observations would be taken in the offshore environment where conditions are typically difficult. Additionally, we expect that few, if any, of the crew would be trained in proper necropsy technique to know which photographs to take or what to look for; instead, we ask the developer and their crew (alongside the NMFS-approved PSOs and PAM operators) to collect any evidence, information, and photographs they are capable of and have access to, instead of providing additional restrictions that may complicate the acquisition of important data. If a decision is made to retrieve or tow a carcass to shore, we expect that trained stranding specialists would be on hand to handle the specifics the commenter is referring to. Because of this, we do not see the need to require the suggestion by the commenter.

Comment 34:

The commenter has stated that an oil spill contingency plan should be created in the event of an oil spill from CVOW-C.

Response:

NMFS agrees with the commenter that this is an important consideration for the CVOW-C Project. We direct the commenter to BOEM, as an oil spill response plan was included in Appendix Q of the CVOW-C COP (

https://www.boem.gov/renewable-energy/state-activities/cvow-construction-and-operations-plan

) and within the final EIS developed for the project (

https://www.boem.gov/renewable-energy/state-activities/CVOW-C

). Given NMFS is not authorizing incidental take from oil spills, we do not analyze this directly in our MMPA ITA and this is not discussed further.

Comment 35:

A commenter recommended that Dominion Energy test and deploy an all-weather, semi-, or fully-automated whale detection system in the mouth of the Chesapeake Bay to reduce the risk of vessel strike.

Response:

NMFS does not agree with the commenter that Dominion Energy must deploy an all-weather, semi-, or fully-automated whale detection system in the mouth of the Chesapeake Bay to reduce the risk of vessel strike. The commenter did not provide a description of additional benefits this type of system would achieve compared to the dual-PAM and visual observation requirements NMFS proposed and requires for vessel transit. Furthermore, the Woods Hole Oceanographic Institution, in collaboration with the CMA CGM Group, have deployed an acoustic monitoring buoy approximately 33 miles (53.12 km) off Norfolk, Virginia (see the press release at:

https://www.whoi.edu/press-room/news-release/whoi-and-cma-cgm-group-deploy-acoustic-monitoring-buoy-near-norfolk-virginia/

). While not located in the mouth of the Bay, this buoy provides near real-time detection for North Atlantic right whale calls, that will be publicly displayed on a website called Roborts4Whales (

http://robots4whales.whoi.edu/

) and shared with mariners, including vessel captains. Based on the parameters suggested by the commenter along with the publicly available data from existing systems, we disagree with the commenter's recommendation.

Comment 36:

The commenter has stated that nowhere in Dominion Energy's PSMMP does it describe a need for baseline information on species presence, distribution, and behavior. They further compound that while short-term impacts from surveys and construction activities are likely, long-term impacts from operation would be challenging to assess without baseline information. Because of this, the commenter has suggested that additional investments into gathering baseline information should occur, which would allow for increased monitoring during the construction and operation phases and that it should be mandated that baseline data is collected for all projects before approvals are given.

Response:

NMFS notes to the commenter that this information would not be found in Dominion Energy's PSMMP, but information regarding species and baseline/known information is found in the ITA application itself (see NMFS' web page at

https://www.fisheries.noaa.gov/action/incidental-take-authorization-dominion-energy-virginia-construction-coastal-virginia

). NMFS also included some information about species that have established BIAs or known UMEs in the proposed rule (see 88 FR 28656, 28672), with updates included where applicable in the final rule. We additionally point the commenter to our website (

https://www.fisheries.noaa.gov/find-species

) and to the SARs (

https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments

) for more information.

The MMPA requires NMFS to evaluate the effects of the specified activities based on the best scientific evidence available and to issue the requested incidental take authorization if it makes the necessary findings. The MMPA does not allow NMFS to delay issuance of the requested authorization on the presumption that new information will become available in the future. If new information becomes available in the future, NMFS may modify the mitigation and monitoring measures in an LOA issued under these regulations through the adaptive management provisions. Furthermore, NMFS is required to withdraw or suspend an LOA if it determines that the authorized incidental take may be having more than a negligible impact on a species or stock. This determination is made following notice and opportunity for public comment, unless and emergency exists that poses a significant risk to the well-being of the marine mammal species or stock.

NMFS has duly considered the best scientific evidence available in its effects analysis. The

Potential Effects of Underwater Sound on Marine Mammals

section of the proposed rule included a broad overview of the potential impacts on marine mammals from anthropogenic noise and provided summaries of several studies regarding the impacts of noise from several different types of sources (

e.g.,

airguns, Navy sonar, vessels) on large whales, including North Atlantic right whales. Offshore wind farm construction generates noise that is similar, or, in the case of vessel noise, identical, to noise sources included in these studies (

e.g.,

impact pile driving and airguns both produce impulsive, broadband sounds where the majority of energy is concentrated in low frequency ranges), and the breadth of the data from these studies helps us predict the impacts from wind activities. In addition, as described in the proposed rule, it is general scientific consensus that behavioral responses to sound are highly variable and context-specific and are impacted by multiple factors including, but not limited to, behavioral state, proximity to the source, and the nature and novelty of the sound. Overall, the ecological assessments from offshore wind farm development in Europe and peer-reviewed literature on the impacts of noise on marine mammals both in the U.S. and worldwide provides the information necessary to conduct an adequate analysis of the impacts of offshore wind construction and operation on marine mammals in the Atlantic Outer Continental Shelf. NMFS acknowledges that studies in Europe typically focus on smaller porpoise and pinniped species, as those are more prevalent in the North Sea and other areas where offshore wind farms have been constructed. The commenter did not provide additional scientific information for NMFS to consider.

Comment 37:

A commenter asserts that the ITR and LOA process lacks transparency and there are no resources easily accessible to the public to understand what authorizations are required for each of these activities (pre-construction surveys, construction, operations, monitoring surveys,

etc.

). They requested NMFS improve the transparency of this process and move away from a “segmented phase-by-phase and project-by-project approach” for authorization. In addition, they requested NMFS provide a comprehensive list/table of all takes by Level A harassment and Level B harassment under currently approved and requested authorizations per project.

Response:

The MMPA, and its implementing regulations allow, upon request, the incidental take of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographic region. NMFS authorizes the requested incidental take of marine mammals if it finds that the taking would be of small numbers, have no more than a “negligible impact' on the marine mammal species or stock, and not have an “unmitigable adverse impact” on the availability of the species or stock for subsistence use. NMFS refers the public to its website for more information on the marine mammal incidental take authorization process and timelines (

https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act

NMFS emphasizes that an IHA or rulemaking/LOA does not authorize the activity itself but authorizes the take of marine mammals incidental to the “specified activity” for which incidental take coverage is being sought. In this case, NMFS is responding to Dominion Energy's request to incidentally take marine mammals in the course of constructing the CVOW-C Project. The authorization of the specified activities is not within NMFS' jurisdiction; instead, this falls under BOEM's

purview and NMFS refers the public to BOEM's website:

https://www.boem.gov/renewable-energy.

Additionally, for the commenter's awareness, NMFS maintains a list of all proposed and issued authorizations for renewable energy activities, including the requested, proposed, and/or authorized take is available on the agency website at:

https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Lastly, regarding the commenter's concern about assessing all offshore wind projects cumulatively, NMFS will not repeat the response but instead refers the commenter to Comment 28, where we explain why each project is considered discrete and as its own separate action.

Comment 38:

A commenter stated that the presence of wind turbines will impact NMFS' ability to conduct low-altitude (1,000 m) marine mammal assessment aerial surveys, thus impacting NMFS' ability to continue using current methods to fulfill its mission of precisely and accurately assessing and managing protected species.

Response:

NMFS and BOEM have collaborated to establish the Federal Survey Mitigation Strategy for the Northeast U.S. Region (Hare

et al.,

2022). This interagency effort is intended to guide the development and implementation of a program to mitigate impacts of wind energy development on fisheries surveys. For more information on this effort, please see

https://repository.library.noaa.gov/view/noaa/47925.

Comment 39:

Expressing concerns regarding enforcement, commenters expressed interest in understanding the outcome if the number of actual takes exceeds the number authorized during construction of an offshore wind project (

i.e.,

if the project would be stopped mid-construction or operation), and how offshore wind developers will be held accountable for impacts to protected species such that impacts are not inadvertently assigned to fishermen, should they occur.

Another member of the public recommended that if a marine mammal is killed during the specified construction activities for CVOW-C, then Dominion Energy should “be fined a considerable sum.”

Response:

NMFS carefully reviews models and take estimate methodology to authorize a number of takes, by species and manner of take, which is a likely outcome of the project. There are several conservative assumptions built into the models to ensure the number of takes authorized is sufficient based on the description of the project. Dominion Energy would be required to submit frequent reports which would identify the number of takes applied to the project.

In the unexpected event that Dominion Energy exceeds the number of takes authorized for a given species, the MMPA and its implementing regulations state that NMFS shall withdraw or suspend the LOA issued under these regulations, after notice and opportunity for public comment, if it finds the methods of taking or the mitigation, monitoring, or reporting measures are not being substantially complied with, or the taking allowed is having, or may have, more than a negligible impact on the species or stock concerned (16 U.S.C. 1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with the requirements of the LOA may result in civil monetary penalties and knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 CFR 216.206(g)).

Moreover, as noted previously, fishing impacts (and NMFS' assessment of them) generally center on entanglement in fishing gear, which is a very acute, visible, and severe impact (mortality or serious injury). In contrast, the impacts incidental to the specified activities are primarily acoustic in nature and limited to Level A harassment and Level B harassment, there is no anticipated or authorized serious injury or mortality that the fishing industry could theoretically be held accountable for. Any take resulting from the specified activities would not be associated with take authorizations related to commercial fish stocks. The impacts of commercial fisheries on marine mammals and incidental take for said fishing activities are managed separately from those of non-commercial fishing activities such as offshore wind site characterization surveys, under MMPA section 118.

Comment 40:

A commenter suggested that NMFS require Dominion Energy to utilize direct-drive turbines instead of gearboxes.

Response:

Dominion Energy has indicated they intend to use direct drive turbines for the CVOW-C Project, based on Section 3.3.1.1 of their COP, specifically the Siemens Gamesa SG 14-222 DD WTG model (see

https://www.boem.gov/renewable-energy/state-activities/cvow-construction-and-operations-plan

). Furthermore, as already described above in Comment 37, the applicant is the one to determine the project (

i.e.,

the Proposed Action), not NMFS.

Comment 41:

A commenter suggested various mitigation and monitoring measures in the event that gravity-based and/or suction-bucket foundations are used instead of impact/vibratory-driven foundations (

i.e.,

clearance and shutdown zones at distances that they assert would eliminate all take by Level A harassment of North Atlantic right whales and other large whales; visual and acoustic monitoring for large whales; shutdown for large whale visual observations or acoustic detections; restart of construction after shutdown; use of near-real time PAM for vessel(s); alternative monitoring technologies for monitoring (infrared drones, hydrophones); mandatory vessel speed restrictions; and required reporting).

Response:

NMFS appreciates the suggestions by the commenter and refers to Comment 16 above where we discuss gravity-based and other foundation types for the CVOW-C Project. However, Dominion Energy did not include the potential to use gravity-based and/or suction-bucket foundations in their MMPA application; therefore, NMFS has not analyzed, authorized incidental take, or promulgated mitigation, monitoring, or reporting measures for gravity-based or suction-bucket foundations.

Comment 42:

Commenters expressed concern that whales would be displaced from the Project Area into shipping lanes or areas of higher vessel traffic, which could result in higher risks of vessel strike and that NMFS has not accounted for this impact in its analysis.

Response:

NMFS acknowledges that whales may temporarily avoid the area where the specified activities occur. However, NMFS does not anticipate that whales will be displaced in a manner that would result in a higher risk of vessel strike, and the commenter does not provide evidence that either of these effects should be a reasonably anticipated outcome of the specified activity. Vessel traffic is concentrated closer to shore as vessels leave and return to ports such as the Port of Virginia, most notably within designated shipping lanes and as they enter the Chesapeake Bay. The density of vessel traffic dissipates as one moves offshore.

NMFS disagrees with the commenter that the risk of vessel strike was not considered in the analysis. NMFS takes the risk of vessel strike seriously and while we acknowledge that vessel strikes can result in injury or mortality, we have analyzed and determined that the potential for vessel strike is so low as to be discountable. Dominion Energy must abide by a suite of vessel strike avoidance measures that include, for

example, seasonal and dynamic vessel speed restrictions to 10 kn (18.5 km/hour) or less; required use of dedicated observers on all transiting vessels; maintaining awareness of North Atlantic right whale presence through monitoring of North Atlantic right whale sighting systems. Further, any observations of a North Atlantic right whale by project-related personnel would be reported to sighting networks, alerting other mariners to North Atlantic right whale presence. Both Dominion Energy and other mariners are required to abide by all existing approach and speed regulations designed to minimize the risk of vessel strike. Notably, Dominion Energy is restricted from installing foundations during the time of year when North Atlantic right whales are expected to be present in greatest abundance (November 1st through April 30th). Therefore, the potential for this activity to result in harassment is very small, as indicated by the low amount of take authorized. Further, NMFS has determined that any harassment from any specified activity is anticipated to, at most, result in some avoidance that would be limited spatially and temporally. It is unlikely that any impacts from the project would increase the risk of vessel strike from non-Dominion Energy vessels. The commenter has presented no information supporting the speculation that whales would be displaced from the Project Area into shipping lanes or areas of higher vessel traffic in a manner that would be expected to result in higher risks of vessel strike.

Comment 43:

Commenters stated that it is “against the law to knowingly interfere with an endangered species and depletion of an entire population,” and they cited the Endangered Species Act (ESA) in support of this claim. They further state that the CVOW-C Project would “disrupt” the migration path of the North Atlantic right whale and, therefore, result in the extinction of this species.

Response:

Under Section 7(a)(2) of the ESA, Federal agencies are required to consult with NMFS or the U.S. Fish and Wildlife Service, as appropriate, to ensure that the actions they fund, permit, authorize, or otherwise carry out will not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitats. For the CVOW-C Project, our office (

i.e.,

the Office of Protected Resources) requested initiation of a Section 7 consultation for ESA-listed species with the NMFS Greater Atlantic Regional Fisheries Office on April 4, 2023. A Biological Opinion was completed on September 19, 2023 (found here:

https://repository.library.noaa.gov/view/noaa/55495

), which concluded that the promulgation of the rule and issuance of LOAs thereunder is not likely to jeopardize the continued existence of threatened and endangered species under NMFS' jurisdiction and is not likely to result in the destruction or adverse modification of designated or proposed critical habitat. Because of this, NMFS' action of finalizing the rulemaking and issuing LOAs for the CVOW-C Project is consistent with the ESA.

Furthermore, NMFS disagrees that the CVOW-C Project would “completely disrupt and destroy the North Atlantic Right Whale population and migration path,” as suggested by the commenters. NMFS is aware of no evidence to support this claim, nor did the commenters provide any. In total, the CVOW-C Project Area consists of approximately 456.5 km

of the entire 269,448 km

migratory BIA. No take by injury, serious injury, or mortality is authorized for the species. NMFS emphasizes that the authorized incidental take of North Atlantic right whales is limited to Level B harassment (

i.e.,

behavioral disturbance). As described in the proposed rule and this final rule (see Negligible Impact Analysis and Determination section), NMFS has determined that the Level B harassment of North Atlantic right will not result in impacts to the population through effects on annual rates or recruitment or survival.

Changes From the Proposed to Final Rule

Since the publication of the proposed rule in the

Federal Register

(88 FR 28656, May 4, 2023), NMFS has made changes, where appropriate, that are reflected in the final regulatory text and preamble text of this final rule. These changes are briefly identified below, with more information included in the indicated sections of the preamble to this final rule.

Changes to Information Provided in the Preamble

The information found in the preamble of the proposed rule was based on the best available information at the time of publication. Since publication of the proposed rule, new information has become available and has been incorporated into this final rule, as discussed below.

The following changes are reflected in the

Description of Marine Mammals in the Specified Geographic Region

section of the preamble to this final rule:

Given the release of NMFS' final 2022 SARs (Hayes

et al.,

2023), we have updated the North Atlantic right whale total mortality/serious injury (M/SI) amount from 8.1 to 31.2. This increase is due to the inclusion of undetected annual M/SI in the total annual serious injury/mortality. We have also updated the North Atlantic right whale abundance estimate based on Linden (2023).

Given the availability of new information, we have made updates to the UME summaries for multiple species (

i.e.,

North Atlantic right whale, humpback whale, minke whale).

The following changes are reflected in the Mitigation section of the preamble to this final rule:

We have added a general requirement that noise levels must not exceed those modeled, assuming 10 dB attenuation.

Because Dominion Energy has informed NMFS that the soft-start procedure in the proposed rule raises engineering feasibility and practicability concerns, we have removed the specific soft-start procedure identified in the proposed rule (

i.e.,

“four to six strikes per minute at 10 to 20 percent of the maximum hammer energy, for a minimum of 20 minutes”). This final rule still requires a soft-start for each WTG and OSS impact pile driving event.

In Tables 25 and 26, we have added the requirement for clearance and shutdown of pile driving based on PAM detections at 10 km (6.2 mi) that applies to all species except North Atlantic right whales, which would still require shutdown at any distance upon a detection.

We have added a requirement in the

Reporting

section for Dominion Energy to report operational sound levels from all installed piles, in alignment with a requirement from the Biological Opinion.

Changes in the Regulatory Text

We have made the following changes to the regulatory text, which are reflected, as appropriate, throughout this final rule and described, as appropriate, in the preamble.

For clarity and consistency, we revised two paragraphs in § 217.290 Specified activity and specified geographical region of the regulatory text to fully describe the specified activity and specified geographical region.

The following changes are reflected in § 217.294 Mitigation Requirements and the associated Mitigation section of the preamble to this final rule:

For clarity and consistency, we have reorganized and revised, as applicable,

the paragraphs in § 217.294 Mitigation requirements.

We have clarified the requirement that Dominion Energy deploy at least two functional noise abatement systems requires at least a double bubble curtain.

As described above, we updated the WTG and OSS impact pile driving soft-start procedural requirements.

The following changes are reflected in § 217.295 Monitoring and Reporting Requirements and the associated Monitoring and Reporting section of the preamble of this final rule:

For clarity and consistency, we have reorganized and revised, as applicable, the paragraphs in § 217.295 Monitoring and reporting requirements.

We have updated the process for obtaining NMFS approval for PSO and PAM operators to be similar to requirements typically included for seismic (

e.g.,

airgun) surveys and have clarified education, training, and experience necessary to obtain NMFS' approval.

We have added a requirement that the Lead PSO must have a minimum of 90 days of at-sea experience and must have obtained this experience within the last 18 months.

We have added a requirement to have at least three PSOs on pile driving vessels rather than two PSOs, as was originally described in the proposed rule.

We have added requirements that SFV must be conducted on every pile until measured noise levels are at or below the modeled noise levels, assuming 10 dB, for at least three consecutive monopiles.

We have removed the requirement to include HRG survey activities in the weekly report. This requirement is inconsistent with previously promulgated and issued incidental take authorizations for HRG survey activities and a rationale was not included in the preamble of proposed rule to support this change. Consistent with previous authorizations, HRG survey activities are to be included in the annual report (see § 217.295(g)(7)).

We have removed the requirements for reviewing data on an annual and biennial basis for adaptive management and instead will make adaptive management decisions as new information warrants it.

Description of Marine Mammals in the Specified Geographic Region

As noted in the Changes From the Proposed to Final Rule section, updates have been made to the UME summaries of multiple species. These changes are described in detail in the sections below. We have also included new data on North Atlantic right whale abundance information (Linden, 2023) and updated the annual M/SI value presented in Table 2, based upon updates found in the final SARs (see Hayes

et al.,

2023). Otherwise, this section has not changed since the publication of the proposed rule in the

Federal Register

(88 FR 28656, May 4, 2023).

Several marine mammal species occur within the specified geographic region. Sections 3 and 4 of Dominion Energy's ITA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species (Dominion Energy, 2023). NMFS fully considered all of this information, and we refer the reader to these descriptions in the application, adopted here by reference, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' SARs (

https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments

) and more general information about these species (

e.g.,

physical and behavioral descriptions) may be found on NMFS' website (

https://www.fisheries.noaa.gov/find-species

Table 2 lists all species or stocks for which take is authorized under this final rule and summarizes information related to the species or stock, including regulatory status under the MMPA, ESA, and PBR, where known. PBR is defined as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs; (16 U.S.C. 1362(20))). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock, or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. Values presented in Table 2 are the most recent available data at the time of publication which can be found in NMFS' 2022 final SARs (Hayes

et al.,

2023), available online at:

https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

Table 2—Marine Mammal Species

That May Occur in the Project Area and Be Taken, by Harassment

Common name

Scientific name

Stock

ESA/

MMPA

status;

strategic

(Y/N)

Stock abundance

(CV, N

min

, most recent abundance survey)

PBR

Annual M/SI

Order Artiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Balaenidae:

North Atlantic right whale

Eubalaena glacialis

Western Atlantic

E, D, Y

338 (0, 332, 2020); 356 (346-363, 2022)

0.7

31.2

Family Balaenopteridae (rorquals):

Fin whale

Balaenoptera physalus

Western North Atlantic

E, D, Y

6,802 (0.24; 5,573; 2016)

1.8

Humpback whale

Megaptera novaeangliae

Gulf of Maine

-, -, Y

1,396 (0; 1,380; 2016)

12.15

Minke whale

Balaenoptera acutorostrata

Canadian Eastern Coastal

-, -, N

21,968 (0.31; 17,002; 2016)

170

10.6

Sei whale

Balaenoptera borealis

Nova Scotia

E, D, Y

6,292 (1.02; 3,098; 2016)

6.2

0.8

Family Physeteridae:

Sperm whale

Physeter macrocephalus

North Atlantic

E, D, Y

4,349 (0.28; 3,451; 2016)

3.9

Family Kogiidae:

Pygmy sperm whale

g h

Kogia breviceps

Western North Atlantic

-, -, N

7,750 (0.38; 5,689; 2016)

Family Delphinidae:

Atlantic spotted dolphin

Stenella frontalis

Western North Atlantic

-, -, N

39,921 (0.27; 32,032; 2016)

320

Atlantic white-sided dolphin

Lagenorhynchus acutus

Western North Atlantic

-, -, N

93,233 (0.71; 54,433; 2016)

544

Bottlenose dolphin

Tursiops truncatus

Western North Atlantic—Offshore

-, -, N

62,851 (0.23; 51,914; 2016)

519

Southern Migratory Coastal

-, -, Y

3,751 (0.6; 185; See SAR)

0-18.3

Clymene dolphin

Stenella clymene

Western North Atlantic

-, -, N

4,237 (1.03; 2,071; 2016)

Common dolphin

Delphinus delphis

Western North Atlantic

-, -, N

172,974 (0.21; 145,216; 2016)

1,452

390

False killer whale

Pseudorca crassidens

Western North Atlantic

-, -, N

1,791 (0.56; 1,154; 2016)

Melon-headed whale

Peponocephala electra

Western North Atlantic

-, -, N

UNK (UNK; UNK; 2016)

UNK

Long-finned pilot whale

Globicephala melas

Western North Atlantic

-, -, N

39,215 (0.3; 30,627; 2016)

306

Short-finned pilot whale

Globicephala macrorhynchus

Western North Atlantic

-, -, Y

28,924 (0.24, 23,637, See SAR)

236

136

Pantropical spotted dolphin

Stenella attenuata

Western North Atlantic

-, D, N

6,593 (0.52, 4,367, See SAR)

Risso's dolphin

Grampus griseus

Western North Atlantic

-, -, N

35,215 (0.19; 30,051; 2016)

301

Family Phocoenidae (porpoises):

Harbor porpoise

Phocoena phocoena

Gulf of Maine/Bay of Fundy

-, -, N

95,543 (0.31; 74,034; 2016)

851

Order Carnivora—Superfamily Pinnipedia

Family Phocidae (earless seals):

Gray seal

Halichoerus grypus

Western North Atlantic

-, -, N

27,300 (0.22; 22,785; 2016)

1,389

4,453

Harbor seal

Phoca vitulina

Western North Atlantic

-, -, N

61,336 (0.08; 57,637; 2018)

1,729

339

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.

NMFS' marine mammal stock assessment reports can be found online at:

https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

CV is the coefficient of variation; N

min

is the minimum estimate of stock abundance. In some cases, CV is not applicable.

These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (

e.g.,

commercial fisheries, ship strike).

NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is for the total stock.

Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy (

https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/;

Committee on Taxonomy (2023)).

Although both species are described here, the authorized take for both short-finned and long-finned pilot whales has been summarized into a single group (pilot whales spp.).

While these species were not originally included in Dominion Energy's request, given recorded sightings/detections of these species during previous Dominion Energy IHAs in the same general area, NMFS included Level B harassment of these species both in the proposed rule and this final rulemaking.

Estimate is for Kogia spp. only.

In the proposed rule (88 FR 28656, May 4, 2023), the best available science (

i.e.,

the NMFS draft 2022 SARs) included a North Atlantic right whale M/SI value of 8.1 which accounted for detected mortality/serious injury. In the final 2022 SAR, released in June 2023, the total annual average observed North Atlantic right whale mortality was updated from 8.1 to 31.2. Numbers presented in this table (31.2 total mortality (22 of which are attributed to fishery-induced mortality) are 2015-2019 estimated annual means, accounting for both detected and undetected mortality and serious injury (Hayes et al., 2023).

The current SAR includes an estimated population (N

best

338) based on sighting history through November 2020 (Hayes et al., 2023). In October 2023, NMFS released a technical report identifying that, based on sighting data through December 2022 (versus the SAR which includes sighting data through November 2020), the North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023).

A detailed description of the species likely to be affected by the Project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the

Federal Register

notice for the proposed rule (88 FR 28656, May 4, 2023). Since that time, a new SAR (Hayes

et al.,

2023) has become available for the North Atlantic right whale. Annual M/SI increased from 8.1 to 31.2. This large increase in annual serious injury/mortality is a result of NMFS including undetected annual M/SI in the total annual M/SI. Additionally, NMFS released a technical report, which includes a recently released population estimate of 356 (Linden, 2023). We are not aware of any additional changes in the status of the species and stocks listed in Table 2; therefore, detailed descriptions are not provided here. Please refer to the proposed rule

Federal Register

notice for these descriptions (88 FR 28656, May 4, 2023). Please also refer to NMFS' website (

https://www.fisheries.noaa.gov/find-species

) for generalized species accounts.

North Atlantic Right Whale

In June 2023, NMFS released its final 2022 SARs, which updated the annual M/SI value from 8.1 to 31.2 due to the addition of estimated undetected mortality and serious injury, as described above, which had not been previously included in the SAR. The

population estimate is slightly lower than the North Atlantic Right Whale Consortium's 2022 Report Card, which identifies the population estimate as 340 individuals (Pettis

et al.,

2023). Elevated North Atlantic right whale mortalities have occurred since June 7, 2017, along the U.S. and Canadian coast, with the leading category for the cause of death for this UME determined to be “human interaction,” specifically from entanglements or vessel strikes. Since publication of the proposed rule, the number of animals considered part of the UME h

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