Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Sunrise Wind Offshore Wind Farm Project Offshore New York
Federal RegisterMay 22, 2024
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240501-0124]
RIN 0648-BL67
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Sunrise Wind Offshore Wind Farm Project Offshore New York
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 Sunrise Wind, LLC (Sunrise Wind), a 50/50 joint venture between Ørsted North America, Inc. (Ørsted) and Eversource Investment, LLC, construction of the Sunrise Wind Offshore Wind Farm Project (hereafter known as the “Project”) in Federal and State waters offshore New York, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A-0487 (Lease Area) and along one export cable route to sea-to-shore transition points in Shirley, New York (collectively referred to as the “Project Area”), over the course of 5 years (June 21, 2024—June 20, 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 rule is effective from June 21, 2024, through June 20, 2029.
FOR FURTHER INFORMATION CONTACT:
Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Sunrise Wind's application and 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 (
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 Sunrise Wind to incidentally take a small number of marine mammals from 16 species of marine mammals, comprising 16 stocks (7 stocks by Level A harassment and Level B harassment; 9 stocks by Level B harassment only), incidental to Sunrise Wind's 5 years of construction activities. Sunrise Wind did not request authorization for, and NMFS neither anticipates nor allows, take by serious injury or mortality incidental to the specified activities to be authorized under this final rulemaking.
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, 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, Sunrise Wind did not request for authorization of, and NMFS neither anticipates nor allows, take by serious injury or mortality incidental to the specified activities to be authorized under this final rulemaking. 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 (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 Sunrise Wind's construction activities.
Summary of Major Provisions Within the Final Rule
The major provisions of this final rule are:
• Allowing NMFS to authorize, under a LOA, the take of small numbers of
marine mammals by Level A harassment and/or Level B harassment (50 CFR 217.312) incidental to the Project and prohibiting take of such species or stocks in any manner not permitted (50 CFR 217.313) (
e.g.,
mortality or serious injury);
• Establishing a seasonal moratorium for foundation impact pile driving from January 1 through April 30 annually and requirements to avoid, to the maximum extent practicable, foundation impact pile driving in December and to obtain NMFS prior approval to minimize impacts to the North Atlantic right whale (NARW) (
Eubalaena glacialis
);
• Establishing a seasonal moratorium on the detonation of unexploded ordnance or munitions and explosives of concern (UXO/MEC) from December 1 through April 30 annually to minimize impacts to NARW;
• Requirements for UXO/MEC detonations to only occur if all other means of removal are exhausted (
i.e.,
As Low As Reasonably Practical (ALARP) risk mitigation procedure) and conducting UXO/MEC detonations during daylight hours only and limiting detonations to 1 per 24-hour period;
• Conducting both visual and passive acoustic monitoring (PAM) by trained, NMFS-approved Protected Species Observers (PSOs) and PAM operators before, during, and after select in-water construction activities;
• Requiring training for all Project personnel to ensure marine mammal protocols and procedures are understood;
• Establishing 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, including a delay or shutdown of foundation impact pile driving and delay to UXO/MEC detonation if a NARW is observed at any distance by PSOs or acoustically detected within certain distances;
• Establishing minimum visibility and PAM monitoring zones during foundation impact pile driving;
• Requiring use of at least two sound attenuation devices during all foundation impact pile driving installation activities and UXO/MEC detonations to reduce noise levels to those modeled assuming a broadband 10 decibel (dB) attenuation;
• Requiring sound field verification (SFV) monitoring during impact pile driving of foundation piles and during UXO/MEC detonations to measure
in situ
noise levels for comparison against the modeled results and ensure noise levels assuming 10 dB attenuation are not exceeded;
• Requiring SFV during the operational phase of the Project;
• Implementing soft-starts during impact pile driving and ramp-up during the use of high-resolution geophysical (HRG) marine site characterization survey equipment;
• Requiring various vessel strike avoidance measures;
• Requiring various measures during fisheries monitoring surveys, such as immediately removing gear from the water if marine mammals are considered at-risk of interacting with gear;
• Requiring regular and situational reporting including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and sound field verification monitoring results; and
• Requiring monitoring of the NARW sighting networks, Channel 16, and PAM data as well as reporting any sightings to NMFS.
Through adaptive management (50 CFR 217.317(c)(1)) NMFS Office of Protected Resources may modify (
e.g.,
remove, revise, or add to) the existing mitigation, monitoring, or reporting measures summarized above and required by the LOA. NMFS must withdraw or suspend an 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 216.106(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 216.106(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)). The Project is listed on the Permitting Dashboard, where milestones and schedules related to the environmental review and permitting for the project can be found:
https://www.permits.performance.gov/permitting-project/sunrise-wind-farm.
Summary of Request
On November 10, 2021, Sunrise Wind submitted a request for the promulgation of regulations and issuance of an associated 5-year LOA to take marine mammals incidental to construction activities associated with the Project offshore of New York in the BOEM Lease Area OCS-A-0487. Sunrise Wind's request is for the incidental, but not intentional, taking of a small number of 16 marine mammal species (comprising 16 stocks) by Level B harassment (for all 16 species or stocks) and by Level A harassment (for 7 of the 16 species or stocks). Sunrise Wind did not request authorization for, and NMFS does not expect, take by serious injury or mortality to occur for any marine mammal species or stock incidental to the specified activities.
In response to our questions and comments and following extensive information exchange between Sunrise Wind and NMFS, Sunrise Wind submitted a final revised application on May 9, 2022, which NMFS deemed adequate and complete on May 10, 2022. This final application is available on NMFS' website at:
https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
On June 2, 2022, NMFS published a notice of receipt (NOR) of Sunrise Wind's adequate and complete application in the
Federal Register
(87 FR 33470), requesting comments and soliciting information related to Sunrise Wind's request during a 30-day public comment period. During the NOR public comment period, NMFS received comment letters from two environmental non-governmental organizations: Clean Ocean Action and Oceana. NMFS reviewed all submitted material and took the material into consideration during the drafting of the proposed rule. Subsequently, in June 2022, new scientific information was released regarding marine mammal densities (Robert and Halpin, 2022) and, as such, Sunrise Wind submitted a final Updated Density and Take Estimation Memo to NMFS on December 15, 2022 that included updated marine mammal densities and take estimates. This memo is available on our website at
https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
On February 10, 2023, NMFS published the proposed rule for the Project in the
Federal Register
(88 FR
8996). In the proposed rule, NMFS synthesized all of the information provided by Sunrise Wind, 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 from February 10, 2023 through March 13, 2023 on
https://www.regulations.gov.
A summary of public comments received during this 30-day period is described in the Comments and Responses section; full public comments may be viewed on
https://regulations.gov.
On March 23, 2023, after the proposed rule was published and the public comment period concluded, Sunrise Wind submitted revised take and exposure estimates resulting from a reduction in the number of wind turbine generator (WTG) foundations to be installed (94 to 87; Reduced WTG Foundation report) and then a correction shortly thereafter (Reduced WTG Foundation Corrected tables 50 and 51). Pile size (maximum 7/12 m diameter tapered monopiles and 4-m pin piles for the jacket foundation) and hammer size (maximum 4,000 kJ hammer) did not change, nor did the underlying modeling and take estimate methodologies. A reduction in total WTG foundations results in an overall reduction in take within the Lease Area and, therefore, an overall reduction in take across the 5-year duration of Project activities. Also, in March 2023, Sunrise Wind submitted a revised Temporary Pier Pile Driving at the Sunrise Wind Landfall—Take Assessment and Mitigation Measures Memo. This memo removed the work associated with the plan to install mooring and breasting dolphins near the boat ramp at the Smith Point Marina on the Long Island side of the ICW. As described in the proposed rule, Sunrise Wind did not request and NMFS did not propose to authorize take of marine mammals incidental to temporary pier and breasting and mooring dolphin construction activities, and thus, the estimated take numbers have not changed due to the removal of these activities.
In April 2023, Sunrise Wind submitted a supplementary report that demonstrates its ability to accurately determine the charge weight of UXO/MEC encountered in the field prior to detonation. Because of this report, the final rule provides Orsted with specific mitigation and monitoring zone sizes based on charge weight bin sizes and no longer requires that the E12 (largest) charge weight mitigation and monitoring zones apply to smaller charge weight sizes, provided that Sunrise Wind is able to confirm the smaller charge weight size before any detonation.
NMFS previously issued four Incidental Harassment Authorizations (IHAs) to Ørsted for the taking of marine mammals incidental to marine site characterization surveys using HRG equipment of the Sunrise Wind's Lease Area (OCS-A 0487) and surrounding Lease Areas (OCS-A 0486, OCS-A 0500) (84 FR 52464, October 2, 2019; 85 FR 63508, October 8, 2020; 87 FR 756, January 6, 2022; and 87 FR 61575, October 12, 2022). In addition, NMFS issued an IHA to South Fork Wind (a subsidiary of Ørsted) to install foundations and conduct HRG surveys for construction of the South Fork Wind Project (87 FR 806; January 6, 2022). To date, Ørsted has complied with all IHA requirements (
e.g.,
mitigation, monitoring, and reporting) and has not exceeded the number of take authorized. Information regarding Ørsted's monitoring results relevant to the Sunrise Wind Project may be found in the Estimated Take section and the final monitoring reports, where available, 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 NARW vessel speed regulations 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) (87 FR 46921, August 1, 2022). 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 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 Sunrise Wind if the measures in the speed rule were to supersede any of the measures in the MMPA authorization such that they were no longer required.
On February 22, 2024, Sunrise Wind provided an updated Project schedule that aligns with their December 2023 Construction and Operations Plan submitted to BOEM for approval. Based on this update, Sunrise Wind has requested the regulations and associated LOA be effective from June 21, 2024 through June 20, 2029.
Description of the Specified Activity
Overview
Sunrise Wind has proposed to construct and operate a 924 to 1,034 megawatt (MW) wind energy facility (known as Sunrise Wind Farm (SRWF)) in the Project Area. Sunrise Wind's project would consist of several different types of permanent offshore infrastructure, including 87 WTGs on monopile foundations with a maximum diameter tapering from 7 meters (m) above the waterline to 12 m below the waterline (7/12 m), a single offshore converter substation (OCS-DC) on a jacket foundation (comprised on 4-m pin piles), offshore substation array cables, and substation interconnector cables. Specifically, activities to construct the project include: (1) impact pile driving the WTG and OSC-DC foundations; (2) pneumatic hammering for installation and removal of temporary casing pipes and vibratory pile driving for installation and removal of temporary goal post and sheet piles at the cable landfall site; (3) impact and vibratory pile driving associated with the Smith Point County Park temporary pier; (4) trenching, laying, and burial activities associated with the installation of the export cable route from the OCS-DC to the shore-based converter station and inter-array cables between turbines; (5) site preparation work (
e.g.,
boulder removal); placement of scour protection around foundations; (6) HRG vessel-based site characterization surveys using active acoustic sources with frequencies of less than 180 kHz; (7) detonating up to three UXO/MEC of different charge weights; and (8) several types of fishery and ecological monitoring surveys. Vessels would transit within the Project Area and between ports and the SRWF to
transport crew, supplies, and materials to support pile installation. All offshore cables will connect to onshore export cables, substations, and grid connections, which would be located at Smith Point County Park in Shirley, New York. Marine mammals exposed to elevated noise levels during impact and vibratory pile driving, UXO/MEC detonation, pneumatic hammering, or HRG site characterization surveys may be taken by Level A harassment and/or Level B harassment, depending on the specified activity. Other activities listed above are not anticipated to result in take either due to the nature of the activities or due to the implementation of monitoring and mitigation measures.
Dates and Duration
Since publication of the proposed rule, Sunrise Wind has provided an updated Project schedule (table 1) based on the latest version of their Construction and Operations Plan submitted to BOEM for approval. While this is the most recent schedule at time of promulgating this rulemaking, NMFS recognizes the potential for activity schedules to shift such that they may occur during different timeframes.
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Specific Geographic Region
A detailed description of the Specific Geographic Region, identified as the Mid-Atlantic Bight, is provided in the proposed rule (88 FR 8996, February 10, 2023). Since the proposed rule was published, no changes have been made to the Specified Geographic Region. Generally, Sunrise Wind's specified activities (
i.e.,
impact pile driving of monopile and jacket foundations; vibratory pile driving (installation and removal) of temporary goal posts and sheet piles; pneumatic hammering of temporary casing pipes; impact and vibratory pile driving associated with the Smith Point County Park temporary pier; placement of scour protection; trenching, laying, and burial activities associated with the installation of the SRWEC and inter-array cables; HRG site characterization surveys; UXO/MEC detonation; and WTG operation) are concentrated in the Project Area. Vessel transit may originate from ports in New York, Connecticut, Maryland, Massachusetts, New Jersey, Rhode Island, and Virginia.
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Comments and Responses
NMFS published a proposed rule in the
Federal Register
on February 10, 2023 and opened a 30-day public comment period (88 FR 8996). The proposed rule described, in detail, Sunrise Wind's specified activities, the specific 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, NMFS requested that interested persons submit relevant information, suggestions, and comments on Sunrise Wind's request for the promulgation of regulations and issuance of an associated LOA described therein, our estimated take analyses, the preliminary determinations, and the proposed regulations.
NMFS received 578 comment submissions, including from the Marine Mammal Commission (Commission), several non-governmental organizations, and private citizens, all of which are available for review on
www.regulations.gov.
Most of these comments were out-of-scope or not applicable to the Project (
e.g.,
general opposition to or support of offshore wind projects; concerns for other species outside NMFS' jurisdiction such as birds) and are not described herein or discussed further. Moreover, NMFS does not include 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, as those comments did not raise significant points for NMFS to consider. Furthermore, if a comment received was unclear, NMFS does not include it here as it could not determine whether it raised a significant point for NMFS to consider. Non-governmental organizations that submitted comments included: (1) Responsible Offshore Development Alliance (RODA); (2) Oceana, Inc. (Oceana); (3) Natural Resources Defense Council (NRDC); (4) Clean Ocean Action (COA); (5) Seafreeze Limited; (6) Long Island Commercial Fishing Association; (7) Green Ocean; and (8) Allco Renewable Energy Limited. NMFS considered substantive comments in this final rule, including comments related to the estimated take analysis, final determinations, and final mitigation, monitoring, and reporting requirements. A summary of comments is described below, along with NMFS' responses.
Comment 1:
The Commission recommends that, until JASCO Applied
Sciences' (hereafter, “JASCO”) model has been validated with
in situ
measurements from the impact installation of monopiles and pin piles along the Atlantic coast, NMFS should re-estimate the various Level A harassment and Level B harassment zones for the final rule using source levels that are at a minimum 3 dB greater than those currently used.
Response:
The Commission has expressed concerns about the lack of validation of JASCO's models in previous Commission letters for Ørsted's other wind projects. JASCO has compared their source model predictions to an empirical model prediction by the Institute of Technical and Applied Physics (ITAP). The empirical model is based on a large data set of pile driving sounds measured at 750 m from the source collected during installation of large-diameter piles (up to 8 m) during wind farm installation in the North Sea (Bellmann, 2020). As no noise measurements exist for tapered 7/12-m monopile at this time as these have yet to be installed offshore, the ITAP prediction facilitates a way of validating the source levels of the numerical finite difference (FD) model. The ITAP data are averaged across different scenarios—pile sizes are grouped, which includes different hammers, water depths, depths of penetration, and environmental conditions—and the 95th percentile level is reported, whereas the aim of JASCO's modeling is to estimate the median value. While the ITAP forecast and the FD source predictions were comparable (Küsel
et al.,
2022)), there is variance in the underlying ITAP data and there are parametric choices for the FD model in the different environments, so an exact match is not expected. As part of the comparison, it was found that different, but reasonable, parametric input choices in the FD modeling can result in output differences on the order of the variance in the ITAP data so it was concluded that the FD modeling approach performed as well as can be discernible given the available data. While adding 3 dB to the JASCO predictions at 750 m may bring JASCO's source predictions into line with the finite-element (FE) predictions for the portmanteau combining computation, comparison, and pile (COMPILE) scenario, it is not clear that this would be more accurate. This approach assumes that the FE models are correct, but Lippert
et al.
(2016) also state “a drawback of [the FE] approach is that it simulates the energy loss due to friction in an indirect and rather nonphysical way.” The Commission also suggested that NMFS could have used damped cylindrical spreading model (DCSM; Lippert
et al.,
2018) and the source levels provided by the time-domain finite difference pile-driving source model (TDFD PDSM); however, for reasons described herein, NMFS has determined JASCO's model results are reliable and achievable.
Measurements taken during the Coastal Virginia Offshore Wind (CVOW) Pilot Project reported the maximum distance to the marine mammal Level B threshold (160 dB re 1 microPascal (1μPa)) from the 7.8-m pile installed with a double big bubble curtain to be 3,891 m (12,765.75 feet (ft)) when using a hammer operating at a maximum of 550 kilojoules (kJ) (WaterProof, 2020). JASCO's model prediction for 7/12-m tapered piles using a 4,000-kJ hammer is 3,833 m (12,575 ft). The Commission states that, based on the CVOW reported sound levels, it is unrealistic that an impact hammer with seven times more energy intensity would result in a smaller harassment zone. NMFS disagrees. Small differences in the propagation environment could account for the ranges being more comparable than expected. The CVOW pilot project is located in Virginia whereas the Sunrise Wind project is located in southern New England.
Also, since the proposed rule was published, NMFS has received sound field verification reports from the South Fork Wind project, which used JASCO's modeling. In all but one case, the measured distances to NMFS' Level B harassment threshold were lower than JASCO's model predicted. The distance to NMFS Level B harassment threshold for the South Fork Wind project was modeled as 4,684 m while
insitu
measurements identified distances, excluding the one aforementioned pile, ranging from 1.84 kilometers (km) to 3.25 km. JASCO's modeling predicts the distances to the Level B harassment threshold during installation of the Sunrise Wind 7/12 m tapered monopiles will be approximately 6 to 6.5 km in summer depending on hammer size, which is approximately double than the loudest pile installed during the South Fork Wind results. NMFS notes that South Fork Wind determined that the one pile generating noise levels above those predicted (the first pile) did so due to a malfunctioning noise attenuation system, which was quickly rectified and deployed appropriately on all future piles.
Since the close of the public comment period, NMFS has also received SFV reports from Vineyard Wind. However, due to the hammer energy assumption in the model versus what was used in the field (
i.e.,
more hammer energy was used than modeled) and other operational challenges, it is more challenging to compare the Vineyard Wind measured results directly to the modeled results. Further, NMFS acknowledges the uncertainty associated with predicting phenomena such as propagation loss and its potential variability within a region but overall, JASCO's models are supported by recent measured results.
Importantly, in this final rule, should SFV results reveal noise levels are louder than those predicted assuming 10 dB attenuation, NMFS is requiring Sunrise Wind to implement additional measures to reduce sound levels such that they do not exceed those modeled assuming 10 dB. Sunrise Wind is required to conduct either complete or abbreviated SFV monitoring on all foundation piles installed. Based on all these reasons, NMFS is not requiring Sunrise Wind to remodel the harassment zone sizes by adding 3 dB to the source levels and is, instead, carrying forward the modeling results as presented in the proposed rule.
Based on this discussion, and given NMFS' consideration of the best available scientific information including available interim sound field verification (SFV) reports from other offshore wind construction projects in the United States, NMFS disagrees with the suggestions made by the Commission. NMFS has incorporated the best available scientific information into this final rule, using recent measurements as well as estimates obtained through JASCO's modeling.
Comment 2:
The Commission and other members of the public recommended NMFS (1) re-estimate and authorize Level A harassment takes based on modeling results for the worst-case scenario rather than presuming an arbitrary 80- or 100-percent reduction for mitigation efficacy and/or a 10-dB sound attenuation for impact pile driving, (2) re-estimate and authorize Level B harassment takes based on more conservative assumptions for the pile-driving scenarios that could occur (including only one monopile or fewer than four pin piles installed per day), (3) re-estimate the various mortality, Level A harassment, and Level B harassment zones and numbers of takes based on 0-dB of sound attenuation for UXO detonations and authorize Level A and B harassment takes, including behavior takes, that could result from UXO detonations, and (4) increase any Level A or B harassment takes to mean group size (including updates that reflect the results of more recent marine mammal surveys in the Rhode Island-
Massachusetts WEA). Another commenter suggested that the numbers of takes, particularly with respect to NARW, rely on mitigation methods that remain unproven.
Response:
NMFS disagrees with the Commission that our analysis should carry forward take estimates based on the worst-case scenario that assumes no reduction of impacts results from the mitigation and notes that the Commission did not present any data supporting their recommendation. As described in the proposed rule, this final rule reasonably assumes that the mitigation efforts will be effective at reducing the potential for Level A harassment calculated in the density-based models. The models do not account for mitigation (except with respect to assuming attenuation and seasonal restrictions) and, therefore, it is reasonable to assume the model overestimates Level A harassment. Further, while the scientific literature documents marine mammals are likely to avoid loud noises such as pile driving (
e.g.,
Brandt et al., 2016, Nowack et al., 2004), avoidance was not quantitatively considered in the take estimates. However, NMFS reasonably predicts this natural behavior will further reduce the potential for Level A harassment.
In the proposed rule, NMFS described the best available science, which supports the assumption that at least 10dB attenuation can be reliably achieved using noise attenuation systems such as a double bubble curtain. The Commission did not provide reason for why they believe this was an overestimate nor did they suggest an alternative amount of attenuation NMFS should consider other than zero attenuation. Other commenters expressed similar support stating that bubble curtains are not effective for low-frequency cetaceans. NMFS agrees that attenuation levels vary by frequency band and that bubble curtains attenuate higher frequency sounds more effectively; however, NMFS disagrees that lower frequency bands, which are important to consider when evaluating impacts, are not attenuated at all. The data from Bellmann (2021), shows that for both single and double bubble curtains, more than 10 dB of attenuation was achieved for bands as low as 32 Hz. And while it is true that performance diminishes significantly at lower frequencies (< 32 Hz), those bands also contain significantly less pile driving sound and is 16+ dB outside the most susceptible frequency range for low-frequency cetaceans.
NMFS recognizes that the key to effective mitigation is the ability to detect marine mammals to trigger such mitigation. Sunrise Wind is required to undertake extensive monitoring to maximize marine mammal detection effectiveness. The reduction to the density-based take estimate appropriately reflects and acknowledges the monitoring efforts, including the placement of 3 PSOs on the pile driving platform and dedicated PSOs vessel(s) and PAM.
NMFS agrees with the Commission that there is potential for behavioral disturbance from a single detonation per day and disagrees that “behavior takes” were omitted and have not been accounted for. However, the behavioral threshold for underwater detonations identified by the Commission (5 dB less than the temporary threshold shift (TTS) threshold) is only applicable to multiple detonations per day. NMFS is not aware of evidence to support the assertion that animals will have behavioral responses that would qualify as take to temporally and spatially isolated explosions at received levels below the TTS threshold. Accordingly, the current take estimate framework allows for the consideration of behavioral disturbance resulting from single explosions specifically if they are exposed above the TTS threshold, as opposed to the 5 dB lower threshold for behavioral disturbance from multiple detonations. We acknowledge in our analysis that individuals exposed above the TTS threshold may also be harassed by direct behavioral disruption and those potential impacts are considered in the negligible impact determination. NMFS agrees with the Commission that the proposed rule did not include some information in Sunrise Wind's application regarding certain foundation construction scenarios. We have added that information to this final rule. The distances to harassment thresholds have not changed from the application and proposed rule and are presented in this final rule. Take estimates did not change as a result of including this additional information.
Comment 3:
A commenter claimed that the authorized taking by harassment is not incidental but intentional and that take associated with soft-starts was not considered in the take analysis.
Response:
NMFS' implementing regulations define
incidental harassment, incidental taking,
and
incidental, but not intentional, taking
as an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable or accidental” (50 CFR 216.103). NMFS disagrees that the take that may be authorized under this rulemaking is intentional. The commenter is also incorrect that the amount of harassment that would be authorized in a LOA under this final rule does not account for soft-starts. As described in the Estimated Take section, Sunrise Wind requested the maximum number of takes generated from three methods: density-based exposure estimates, group size data, and PSO data, all of which account for soft starts. Based on the nature of the methods, this is most evident in the density-based exposure estimates. The hammer schedules in the application, proposed rule, and this final rule all account for pile driving that would occur during installation, including lower hammer energies. Soft starts are simply impact pile driving at these lower hammer energies. Therefore, the exposure estimates account for pile driving during soft starts. The other two take estimate methods (
i.e.,
group size and PSO data) are based on the number of days of pile driving, which also inherently considers all pile driving associated with foundation installation for those days.
Comment 4:
A commenter requested NMFS provide an explanation for the differences in assumptions and corresponding differences in take estimates for the Revolution Wind, LLC (Revolution Wind) and Sunrise Wind projects provided Ørsted is the developer for both projects.
Response:
The MMPA indicates that, upon request, NMFS shall issue the requested incidental take authorization if certain findings are made. Applicants propose take estimate modeling methodologies, and NMFS evaluates if the approaches are reasonable and supported. Sunrise Wind, a 50/50 joint venture between Ørsted and Eversource Investment, LLC and Revolution Wind, a subsidiary wholly owned by Ørsted, both submitted applications containing the same acoustic modeling and take estimate approaches for foundation installation, cable landfall construction, HRG surveys, and UXO/MEC detonation activities. Both companies applied JASCO's modeling tools to estimate distances to NMFS harassment isopleths. They also both estimated take from foundation installation assuming that all impact pile driving occurred in the highest and second highest density months in their applications (note that Revolution Wind subsequently assumed all piles would be installed in the highest density month after reducing the number of foundations to be installed). For some species, observational data from PSOs aboard HRG survey vessels or group size data indicated that the density-based take estimates may be
insufficient to account for the number of individuals of a species that may be encountered during the planned activities and, therefore, take from the density-based exposures were adjusted to account for these data. While the methodologies are similar, there are differences in the results of undertaking those methods. The primary differences for take numbers between the two projects are generated from the scope of work (
e.g.,
number of piles, amount of HRG survey work planned, number of UXO/MEC detonations), density estimates, and distances to NMFS harassment isopleths, which are influenced by both source levels and transmission loss rates which are site specific. These three factors strongly influence the take numbers requested and proposed by NMFS to authorize.
Both applicants assumed mitigation measures (
e.g.,
delay or shutdown) would result in fewer Level A harassment takes than estimated from the modeling (no Level A harassment was modeled (or expected) from HRG surveys or vibratory pile driving for both projects). Collectively, there are a multitude of reasons why take numbers, both modeled and ultimately requested, may differ. NMFS evaluates each application independently. The commenter did not provide evidence that any of the methodologies or assumptions were flawed. Specific to Sunrise Wind, NMFS has found that the take authorized under this rule would have a negligible impact on affected marine mammal species and stocks and has prescribed mitigation measures that affect the least practicable adverse impact on marine mammals.
Comment 5:
A commenter claimed that NMFS' thresholds are outdated, primarily because scientific literature demonstrates examples where behavioral disturbances have been documented where received levels are lower than 160 dB. Moreover, the commenter suggested that estimating the extent of Level B take from impact driving using the 160dB (impulsive) threshold is flawed because an animal may be exposed to several hours of pile driving per day, which should be considered continuous, and that, although impulsive at the source, the sound from impact driving may be received as a continuous source at a distance. For these reasons, the commenter suggested the proposed rule underestimates the Level B take and “zones of impact”; thus, NMFS' small numbers and negligible impact determination is flawed.
Response:
For the reasons described below, NMFS disagrees that the 160-dB threshold for behavioral harassment is not supported by the best available science and that the small numbers and negligible impact determinations are flawed based on the use of this threshold in the take estimate analysis. The potential for behavioral response to an anthropogenic source can be highly variable and context-specific (Ellison et al., 2012). While NMFS acknowledges the potential for Level B harassment at exposures to received levels below 160 dB rms, it should also be acknowledged that not every animal exposed to received levels above 160 dB rms will respond in ways constituting behavioral harassment. There are a variety of studies indicating that contextual variables play a very important role in response to anthropogenic noise, and the severity of effects are not necessarily linear when compared to a received level (RL). Several studies (
e.g.,
Nowacek et al., 2004 and Kastelein et al., 2012 and 2015) showed there were behavioral responses to sources below the 160 dB threshold but also acknowledged the importance of context in these responses. For example, Nowacek et al. (2004) reported the behavior of five out of six NARW was disrupted at RLs of only 133-148 dB re 1 μPa (returning to normal behavior within minutes) when exposed to an alert signal. However, the authors also reported that none of the whales responded to noise from transiting vessels or playbacks of ship noise even though the RLs were at least as loud and contained similar frequencies to those of the alert signal. The authors state that a possible explanation for whales responding to the alert signal and not responding to vessel noise is due to the whales having been habituated to vessel noise while the alert signal was a novel sound. In addition, the authors noted differences between the characteristics of the vessel noise and alert signal, which may also have played a part in the differences in responses to the two noise types. Therefore, it was concluded that the signal itself, as opposed to the RL, was responsible for the response. DeRuiter
et al.
(2012) also indicate that variability of responses to acoustic stimuli depends not only on the species receiving the sound and the sound source, but also on the social, behavioral, or environmental contexts of exposure. Finally, behavioral responses depend on many contextual factors, including range to source, RL above background noise, novelty of the signal, and differences in behavioral state (Ellison
et al.,
2012, Gong
et al.,
2014). Similarly, Kastelein
et al.
(2015) examined behavioral responses of a harbor porpoise to sonar signals in a quiet pool but stated behavioral responses of harbor porpoises at sea would vary with context such as social situation, sound propagation, and background noise levels.
NMFS uses 160 dB (rms) as the received sound pressure level for estimating the onset of Level B behavioral harassment for impulsive/intermittent sound sources, and this is currently considered the best available science while acknowledging that the 160 dB
rms
step-function approach is a simplistic approach. While it be may true because of reverberation that impulsive pile driving strikes may “stretch” as their sound travels through the environment, we do not classify these sounds as continuous, like drilling and vibratory pile driving. NMFS' behavioral harassment thresholds consider instantaneous exposure to noise and are based on a received level. These thresholds do not account for duration of exposure, as our PTS onset thresholds do. Thus, whether an individual was exposed to a few pile driving strikes or exposed for several hours of pile driving, the 160-dB threshold would still apply. While it is correct that in practice it works as a step-function (
i.e.,
animals exposed to received levels above the threshold are considered to be “taken” and those exposed to levels below the threshold are not), it is in fact intended as a sort of mid-point of likely behavioral responses, which are extremely complex depending on many factors including species, noise source, individual experience, and behavioral context. What this means is that, conceptually, the function recognizes that some animals exposed to levels below the threshold will in fact react in ways that appropriately considered take while others that are exposed to levels above the threshold will not. Use of the 160-dB threshold allows for a simplistic quantitative estimate of take while we can qualitatively address the variation in responses across different received levels in our discussion and analysis.
Overall, we reiterate the lack of scientific consensus regarding what criteria might be more appropriate. Defining sound levels that disrupt behavioral patterns is difficult because responses depend on the context in which the animal receives the sound, including an animal's behavioral mode when it hears sounds (
e.g.,
feeding, resting, or migrating), prior experience, and biological factors (
e.g.,
age and sex). Other contextual factors, such as signal characteristics, distance from the source, and signal to noise ratio, may also help determine response to a given received level of sound. Therefore,
levels at which responses occur are not necessarily consistent and can be difficult to predict (Southall et al., 2007; Ellison et al., 2012; Southall et al., 2021). For example, Gomez
et al.
(2016) reported that RL was not an appropriate indicator of behavioral response. Further, the seminal reviews presented by Southall
et al.
(2007), Gomez
et al.
(2016), and Southall
et al.
(2021) did not suggest any specific new criteria due to lack of convergence in the data.
Given that there is currently no concurrence on these complex issues, NMFS followed its practice at the time of submission and review of this application in assessing the likelihood of disruption of behavioral patterns by using the 160 dB threshold. NMFS is currently evaluating available information towards development of updated guidance for assessing the effects of anthropogenic sound on marine mammal behavior. However, undertaking a process to derive defensible exposure-response relationships, as suggested by Tyack and Thomas (2019), is complex. The recent systematic review by Gomez
et al.
(2016) was unable to derive criteria expressing these types of exposure-response relationships based on currently available data.
NMFS acknowledges that there may be methods of assessing likely behavioral responses to acoustic stimuli that better capture the variation and context-dependency of those responses than the simple 160 dB step-function used here. However, there is no agreement on what that method should be or how more complicated methods may be implemented by applicants. NMFS is committed to continuing its work in developing updated guidance with regard to acoustic thresholds but pending additional consideration and process, is reliant upon an established threshold that is reasonably reflective of best available science.
Comment 6:
A commenter recommended that NMFS should consider the best available data regarding NARW abundance in the project area, as well as the most comprehensive models for estimating marine mammal take and developing robust mitigation measures.
Response:
The MMPA and its implementing regulations require that incidental take regulations be established based on the best available information, which does not always mean the most recent information. NMFS generally considers the information in the most recent U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments Report (SAR) (Hayes
et al.,
2023) to be the best available information for a particular marine mammal stock because of the MMPA's rigorous SAR procedural requirements, which includes peer review by a statutorily established Scientific Review Group. Since publication of the proposed rule, NMFS has released the draft 2023 Stock Assessment Report indicating the NARW population abundance is estimated as 340 individuals based on sighting data through December 31, 2021 (89 FR 5495, January 29, 2024). NMFS has used the best available scientific information in the analysis of this final rule. This new estimate, which is based on the analysis from Pace
et al.
(2017) and subsequent refinements found in Pace (2021), provides the best available, and in this case most recent, estimate, including improvements to NMFS' right whale abundance model. NMFS notes this estimate aligns with the 2022 NARW Report Card (Pettis
et al.,
2022) estimate (340) based on sighting data through August 2022 but, as described above, that the SARs are peer reviewed by other scientific review groups prior to being finalized and published and that the Report Card does not undertake this process. Based on this, NMFS has considered all relevant information regarding NARW. The commenters did not cite specific abundance data sources they recommended NMFS used or reasons why the science used in NMFS' assessment is not best available. NMFS has relied on the draft 2023 SAR in this final rule as it reflects the best available scientific information.
NMFS notes that this change in abundance estimate does not change the estimated take of NARW or authorized take numbers, nor affect its ability to make the required findings under the MMPA for Sunrise Wind's construction activities.
While NMFS cannot require applicants to utilize specific models for the purposes of estimating take incidental to offshore wind construction activities, it evaluates the models used to support take estimates to ensure that they are methodologically sound and incorporate the best available science. NMFS does require use of the Roberts
et al.
(2016, 2023) density data and SARs abundance estimates for all species, both of which represent the best available science regarding marine mammal occurrence.
Comment 7:
A commenter recommended a prohibition on pile driving, site assessment, and site characterization activities during times of highest risk to NARW by extending the seasonal restriction on impact pile driving to December 1 through April 30, reflecting highest activity levels of NARW. The commenter further identified that if a near real-time monitoring system and mitigation protocol for NARW and other large whale species is developed and scientifically validated, the system and protocol may be used 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:
NMFS has restricted foundation installation pile driving from January through April, which represent the times of year when NARW are most likely to be in the Project Area. However, NMFS recognizes that the density of whales begins to elevate in December, as suggested by the commenter. Sunrise Wind has agreed to restrict pile driving in December to the maximum extent practicable. In this final rule, Sunrise Wind must not plan and, to the maximum extent practicable, not pile drive in December, and must seek NMFS approval for December pile driving. As described in the proposed rule, in any time of year when foundation installation is occurring, a visual sighting of NARW by foundation installation PSOs or an acoustic detection within a 10-km PAM monitoring zone triggers a delay in pile driving commencement or shutdown. In December, Sunrise Wind is also required to implement larger mitigation zones that reflect the acoustic modeling results using a winter sound speed profile (Table 32). With the application of these enhanced mitigation and monitoring measures in December, impacts to NARW will be further reduced.
NMFS neither anticipates nor authorizes take of NARW by Level A harassment (PTS) from HRG survey activities. While NMFS is authorizing a total of 17 Level B harassment takes of NARW incidental to HRG surveys over the 5-year effective period of this rulemaking, the required mitigation will affect the least practicable adverse impact on the species from this activity. Specifically, the largest modeled Level B harassment zone size for the sparker (141 m) is already much smaller than the required separation, clearance, and shutdown distances for NARW (500 m) and any unidentified large whale must be treated as if it were a NARW, triggering associated mitigation. Any Level B harassment that is not avoided is not expected to impact important feeding or other behaviors that may occur throughout the year in the Project Area in a manner that poses energetic or reproductive risks for any individuals.
The commenter stated that site assessment surveys could injure NARW; however, they did not provide scientific evidence to support this claim. As described in this rule, NMFS does not anticipate nor would authorize injury (
i.e.,
Level A harassment) of NARW incidental to these surveys. Given the anticipated minimal impacts of the HRG surveys, NMFS disagrees that additional mitigation measures, including seasonal restrictions or dynamic management of HRG surveys timing, are warranted.
Comment 8:
The Commission recommends that NMFS expand zone sizes for foundation installation and base the various mitigation and monitoring zones, including the minimum visibility zone, on the largest of the Level A harassment zones in Tables 15 and 16 of the
Federal Register
notice.
Response:
NMFS has considered each construction scenario in this final rule as recommended by the Commission. This final rule increased the clearance and shutdown mitigation zone sizes for scenarios involving monopiles for marine mammals except for NARW (Table 32). The NARW clearance and shutdown zones remain “any distance” as described in Table 42 of the proposed rule. The final rule more clearly distinguishes between the sequential and concurrent installation scenarios. For example, the proposed rule included large whale (other than NARW) clearance and shutdown zones for all monopiles installed equating to 3,700 m in summer and 4,300 m in winter. In this final rule, the clearance and shutdown zones for sequential monopiling in summer is 4 km in summer and 4,300 m in winter while the monopile concurrent and OCS-DC/monopile concurrent clearance and shutdown zone in summer is 5.3 km in summer and 6.3 km in winter.
NMFS did not increase the minimum visibility zone to the largest Level A harassment distance modeled, as recommended by the Commission, as this may result in unnecessary delays to the project. As described above, models demonstrate that completing a project during a time of year when a species of concern is less likely to be present is an effective means by which to reduce the magnitude of impacts (Southall
et al.,
2021). In this case, if the largest Level A harassment zones for all marine mammals (or zones within the low frequency cetacean hearing group) is used to establish the minimum visibility zone, this extended zone could unnecessarily delay the project, leading to a prolonged duration or more days over which construction would occur, which could result in greater impacts on marine mammals. The minimum visibility zone in this final rule equates to the largest ER95% for NARW. The “OCS-DC only” scenario zones remained the same as the proposed rule as these are considered adequately protective.
Comment 9:
The Commission recommends that NMFS require Sunrise Wind to deploy a dual sound attenuation system for UXO detonations and prohibit Sunrise Wind from conducting UXO detonations when currents are greater than 2 knots (kn).
Response:
In this final rule, NMFS is requiring Sunrise Wind to deploy a dual sound attenuation system (such as a double bubble curtain) to meet the noise levels modeled assuming 10-dB attenuation. As described in the proposed rule and carried forward in this final rule, NMFS is requiring Sunrise Wind to conduct complete SFV on all detonations. Further, we are requiring that the bubble curtain be placed at a distance such that the nozzle hose remains undamaged.
In its letter, the Commission did not provide reasoning or justification for its recommendation for restricting UXO/MEC detonation if current speeds are greater than 2 kn. However, the Commission references its Ocean Wind 1 proposed rule comment letter, which states that Bellmann (2021) indicated that currents greater than 2 kn led to a reduction of sound attenuation that cannot be resolved with additional compressed air or larger distances to the source and that the overall achieved sound reduction of a big bubble curtain depends significantly on the configuration and application of the BBC. The Commission identified that if the configuration and application of the bubble curtain is not optimized, then sound reduction decreases significantly. In this case, Ørsted will have experience deploying bubble curtains in U.S. waters for two offshore wind projects, and NMFS anticipates that the double bubble curtain will be optimized. The Commission did not present evidence that the distances to thresholds assuming 10 dB attenuation could not be achieved in current speeds over 2 knots; therefore, at this time, NMFS is not requiring UXO/MEC detonation be limited to times when current speed is 2 kn (2.3 mph) or less. Sunrise Wind is required to use a dual attenuation device (
e.g.,
double bubble curtain) during the 3 UXO/MEC detonations that may occur and conduct SFV on all detonations. Should SFV determine that the model underestimated impacts, the mitigation zone sizes would be increased, and additional attenuation measures added to ensure impacts are not greater than those analyzed for the next detonation.
Comment 10:
Several commenters requested NMFS add to or modify the vessel strike avoidance mitigation measures contained within the proposed rule. Specific recommendations included limiting all vessels to speeds of 10 kn or less at all times with no exceptions, developing an “Adaptive Plan” as an alternative to the 10 kn speed restriction, requiring Class A AIS, requiring PSOs on all vessels when underway as opposed to a “visual observer” and requiring service vessels to complement observer coverage with additional monitoring technologies (
e.g.,
infrared (IR) detection devices for whales and other protected species, requiring Sunrise Wind to provide a vessel traffic plan, keeping 500 m away from NARW at all times and 100 m for other large whale species, requiring that all vessel personnel are trained in observing and identifying NARW, and requiring each vessel to have a minimum of 4 PSOs following a two-on, two-off rotation, each responsible for scanning no more than 180°of the horizon per pile driving locations). A commenter also claimed that vessel speed restrictions are not fully mandated or enforced for OSW vessels.
Response:
NMFS acknowledges that vessel strikes pose a risk to all large whales, including NARW and the proposed rule and this final rule requires a suite of mitigation measures to effect the least practicable adverse impact from vessels on marine mammals. These measures are more restrictive than other industrial, commercial, military, and recreational vessels. All vessel operators must abide by vessel speed regulations (50 CFR 224.105). All transiting vessels, regardless of speed or size, are required to have a trained dedicated visual observer watching for marine mammals. In the event a marine mammal is observed, the vessel must slow to 10 kn or less or if within separation zones (500 m for NARW and 100 m for sperm whales and non-NARW), turn away from and slow engines to neutral. In any Seasonal Management Area (SMA), Dynamic Management Area (DMA), or Slow Zone (the latter two of which are voluntary for other vessels), Sunrise Wind must operate vessels at 10 kn or less. Further, between November 1st and April 30th, all vessels, regardless of size, must operate port to port (specifically from ports in New Jersey, New York, Maryland, Delaware, and Virginia) at 10 kn or less, except for while transiting in Narragansett Bay or Long Island Sound. Sunrise Wind is also required to maintain situational
awareness of marine mammals by monitoring various systems and internal communication. NMFS has determined it is impracticable for all vessels to travel 10 kn or less at all times and is not necessary to achieve the least practicable adverse impact given the mitigation discussed above.
As described above, in many cases, there are no alternatives to the 10 kt or less speed restrictions. However, NMFS has determined that under certain conditions, Sunrise Wind vessels could travel at over 10 kts. A commenter has recommended that this “Adaptive Plan” be allowed only if it is proven to be equally or more effective than a 10 kt speed restriction. NMFS has determined that the monitoring required, including both direct marine mammal monitoring and situational awareness monitoring and reporting, affect the least practicable adverse impact on marine mammals. The commenter did not provide scientific evidence that the circumstances in which Sunrise Wind vessels could travel over 10 kts are not effective at avoiding vessel strikes.
In this final rule, NMFS is requiring that all vessels associated with Sunrise Wind's activities be equipped with a properly installed, operational Automatic Identification System (AIS) device and Sunrise Wind must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources, thus facilitating monitoring of vessel speeds. In addition, NMFS maintains an Enforcement Hotline for members of the public to report violations of vessel speed restrictions. NMFS does not require PSOs to be onboard every transiting vessel as it is impracticable due to potential limited space on the vessels. However, as described in the proposed rule and carried forward in this final rule, Sunrise Wind must have dedicated visual observers onboard all vessels with no other concurrent duties. The dedicated visual observer may be a PSO or a trained crew member.
NMFS described in the proposed rule, and is requiring in this final rule, that infrared technologies and PAM hydrophone deployments be available and used before, during, and after pile driving. To ensure marine mammal detection is maximized, and in response to public comments, NMFS is now requiring monitoring for marine mammals before, during, and after foundation installation, and is requiring in this final rule three on-duty PSOs on both platforms such that each PSO is responsible for 120-degree coverage. As proposed, this final rule requires that visual observers must be equipped with alternative monitoring technology (
e.g.,
night vision devices, infrared cameras) to monitor clearance and shutdown zones during periods of low visibility (
e.g.,
darkness, rain, fog,
etc.
).
NMFS disagrees with the commenter that the final rule and LOA must include a “vessel traffic” plan. The commenter did not provide details on what this plan should include. Sunrise Wind provided information pertaining to the types and number of vessels necessary to construct the project. It is also required to submit a Vessel Strike Avoidance Plan, which must include, but is not limited to, more detail on ports used and means by which they would abide by the extensive measures outlined here. While NMFS acknowledges that vessel strikes can result in injury or mortality, the implementation of the required monitoring and mitigation measures would reduce the risk of vessel strike to levels low enough such that it is considered discountable; thus, no vessel strike is expected or would be authorized under this final rule. These measures also ensure the least practicable adverse impact on species or stocks and their habitat.
Comment 11:
A commenter recommended strengthening mitigation measures for other endangered species and species experiencing UMEs to minimize take by Level A harassment, indicating the mitigation measures required by the proposed rule to reduce risk to large whales are largely designed for NARW and may not be equally efficacious for other species (
e.g.,
passive acoustics will not be used to trigger mitigation measures for fin whales).
Response:
NMFS disagrees that additional or modified mitigation measures are necessary to affect the least practicable adverse impact on marine mammal species or stocks, including those listed under the ESA and experiencing UMEs. This rule allows a limited number of Level A harassment takes to be authorized for two ESA-listed species (
i.e.,
fin whale and sei whale, neither of which are experiencing a UME), two non-ESA listed species experiencing active UMEs (
i.e.,
humpback whales and minke whales) and two non-ESA listed species with non-active UMEs with closure pending (
i.e.,
gray and harbor seals) incidental to foundation impact pile driving (table 15). A very limited number of seals (n=5) may also experience PTS from UXO/MEC detonation (table 23). NMFS notes that these take estimates did not consider mitigation measures other than seasonal restrictions and 10 dB of sound attenuation. Some mitigation measures in the proposed rule and this final rule are centered around NARW because of the species status and general fitness of individuals. NMFS acknowledges that seasonal closures are based on NARW densities and the maximum density months for other ESA-listed species and stocks experiencing UMEs may occur outside of the seasonal closures (table 12). However, it is neither possible nor practicable to schedule activities around every species' densities because of the significant amount of variation and year-round presence of some species. Other enhanced mitigation for NARW includes delaying or shutting down pile driving should a NARW be observed at any distance by a foundation installation PSO or acoustically detected within the PAM monitoring zone. If clearance and shutdown zones were increased for other ESA-listed species and marine mammal species experiencing UMEs, it would result in longer construction time frames, prolonging the time periods over which marine mammals may be exposed to construction-related stressors, as well as creating impracticable operational scenarios for the applicant. It has been modeled and is logical that projects should be constructed as quickly as possible during times when the potential for a species of concern to be present is lowest (Southall
et al.
2021). Accordingly, NMFS has determined that the current clearance and shutdown zones, together with other mitigation measures, affect the least practicable adverse impact on marine mammals. Moreover, while some mitigation measures are focused on NARW, NMFS has determined that the take that may be authorized, which includes both Level A and Level B harassment, has a negligible impact on all marine mammal species and stocks and affects the least practicable adverse impact on marine mammal species or stocks.
Regarding PAM detections, NMFS has clarified in this final rule that while the PAM system should be designed to maximize detections of NARW and is not required to have the capability to detect all marine mammals within the 10km PAM monitoring zone, should another marine mammal be detected (
e.g.,
a fin whale, which vocalizes within similar frequencies for which the PAM system would be optimized) within a clearance or shutdown zone via PAM, mitigation must be applied.
Comment 12:
Several commenters recommended that the impacts of underwater noise be minimized to the fullest extent feasible (
e.g.,
select and operate subbottom profiling systems at the lowest source levels practicable) and that the best commercially available
technology and methods should be used to minimize sound levels from piledrivingcoupled with a robust monitoring and reporting program to ensure compliance. A commenter recommended projects should achieve no less than 10 dB (SEL) in combined noise reduction and attenuation, taking as a baseline, projections from prior noise measurements of unmitigated piles from Europe and North America. Another commenter recommended a requirement of the implementation of best commercially available combined (near- and far-field) noise abatement systems capable of a 15 dB reduction (SEL). A commenter also suggested that developers must be required to specify the exact equipment to be used for noise attenuation for proper evaluation of potential impacts.
Response:
NMFS, as delegated by the Secretary of Commerce, must promulgate regulations setting forth mitigation measures affecting the least practicable adverse impact on marine mammal species or stocks and their habitat in any issued incidental take authorization (16 U.S.C. 1371(a)(5)(A)(i)(II)). As described in both the proposed rule and this 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 attenuation. NMFS clarifies that, because no unattenuated piles may be driven, there is no way to confirm a 10-dB reduction; rather,
in situ
SFV measurements will be conducted to ensure that sound levels are at or below those modeled assuming a 10-dB reduction. At this time, NMFS is not requiring 15 dB attenuation be achieved. While data do demonstrate that this is feasible under some circumstances (
e.g.,
Bellman
et al.,
2020), the data on the effectiveness of NAS in the Atlantic for similar size piles is scant. 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. Therefore, while higher than 10 dB attenuation may be technically feasible under some circumstances, more data are needed before assuming a higher level of attenuation is consistently achievable in all environments.
In addition to the SFV requirements in the proposed rule, consistent with the Biological Opinion, NMFS has added to this final rule the requirement that Sunrise Wind must conduct abbreviated SFV monitoring (consisting of a single acoustic recorder placed at an appropriate distance from the pile) on all foundation installations for which the complete SFV monitoring, as required in the proposed rule, is not carried out. NMFS is requiring that these SFV results must be included in the weekly reports. Any indications that distances to the Level A harassment and Level B harassment thresholds for whales are exceeded must be addressed by Sunrise Wind, including an explanation of factors that contributed to the exceedance and corrective actions that were taken to avoid exceedance on subsequent piles.
Since the proposed rule, Sunrise Wind has identified the noise attenuation systems that will be used during foundation installation (
i.e.,
a double bubble curtain and AdBm resonator). While knowing the exact system is not required to evaluate the potential impacts to marine mammals as NMFS conservatively carries forward the proposed system with the largest potential impact into the estimate take analysis, NMFS believes the commenter's request to specific the noise attenuation system has been satisfied.
Comment 13:
A commenter recommended NMFS should expand the NARW PAM and visual clearance zones to 5,000 m from the pile during impact and vibratory pile driving; expand the PAM shutdown zone (exclusion zone) to 2,000 m during vibratory and impact pile driving; expand the clearance zone during HRG to 1,000 m; and have a soft-start/ramp-up whenever a shutdown during HRG occurs.
Response:
The foundation installation impact pile driving PAM monitoring zone for NARW is 10 km and any detection within this zone would trigger a delay or shutdown of pile driving. Clearance or shut down for NARW would also occur if a whale is visually detected at any distance by foundation installation PSOs. These requirements are more protective than those recommended by the commenter. While the minimum visibility zone is construction scenario-specific (table 32) but less than the recommended 5,000 m, it is based on the largest modeled Level A harassment ER95% for NARW. Any larger zone could result in delays to the project that could adversely impact marine mammals by extending construction. Further, this is the
minimum
distance that must be visually cleared, and NMFS anticipates that on many occasions, the ability to detect NARW beyond this zone will be obtainable.
Vibratory pile driving would occur at the cable landfall location to install cofferdam sheet piles and goal posts. The distances to the Level A harassment thresholds from this activity are very small (
i.e.,
less than 200 m for all marine mammal species). While the distance to the Level B harassment threshold is not small (
i.e.,
approximately 9.7km for all marine mammal species), clearing 5,000 km before beginning vibratory driving is not practical. The commenter did not provide scientific information supporting their recommendation for such a large clearance zone. The commenter also recommended a PAM clearance zone of 2 km during vibratory pile driving; however, PAM is not required during this activity given it is an activity that would be very limited in duration (a maximum of 12 days), produces relatively low noise levels, and is expected to result in a limited number of takes. NMFS has determined that the current clearance zones, along with other mitigation measures, affect the least practicable adverse impact on marine mammal species or stocks and their habitat.
As described in the proposed rule and this final rule for HRG surveys, the required 500-m shutdown zone for NARW exceeds the modeled distance to the largest 160-dB Level B harassment isopleth (141 m during sparker use) by a large margin, minimizing the likelihood that they will be harassed in any manner by this activity. Commenters do not provide additional scientific information for NMFS to consider to support their recommendation to expand the zones to 1,000 m. Given that these surveys are relatively low impact, and that NMFS has prescribed a precautionary NARW clearance and shutdown zone that is larger (500 m) than the largest estimated Level B harassment zone (141 m), NMFS has determined that an increase in the size of the zones to 1,000 m is not necessary to affect the least practicable adverse impact.
Finally, a soft-start to impact pile driving and ramp-up to HRG surveys was included in the proposed rule and is included in this final rule. The rule specifies that if an acoustic source is shut down for a period longer than 30 minutes, then all clearance and ramp-up procedures must be initiated. However, if an acoustic source is shut down for reasons other than mitigation (
e.g.,
mechanical difficulty) for less than 30 minutes, it may be activated again without ramp-up only if PSOs have
maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones.
Comment 14:
A commenter asserted an independent review of mitigation measures should be required due to limitations associated with visual monitoring and PAM.
Response:
The MMPA does not require an independent review of mitigation measures. It does require notice and opportunity for public comment (16 U.S.C. 1371(a)(5)(A)(i)). The public comment period is a means by which the public (
i.e.,
independent reviewers) are able to provide NMFS with mitigation measure recommendations supported by scientific evidence that NMFS takes into consideration when finalizing the rulemaking.
Comment 15:
A commenter recommended shutdown should be initiated if weather or other conditions limit the range of observation.
Response:
The comment refers to a 500 m shutdown zone for NARW; therefore, NMFS assumes the recommendation is referring to HRG surveys, which are a low impact activity. As described in the proposed rule and this final rule, PSOs are required to monitor the shutdown zone during operations. During periods of low visibility, alternative monitoring technology (
i.e.,
infrared or thermal cameras) must be used to monitor these zones. This final rule clarifies that when the shutdown zones become obscured for brief periods (
i.e.,
no more than 30 minutes) due to inclement weather, survey operations may continue (
i.e.,
no shutdown is required) so long as no marine mammals have been detected. Further, the shutdown requirement is waived for certain genera of small delphids. As noted above, take of marine mammals from HRG surveys is limited overall, take by Level B harassment only is expected to occur only within a small area in close proximity to the vessel, and no Level A harassment is expected to result from exposure to the surveys even in the absence of mitigation. There is a low likelihood that short periods of obscured visibility might potentially coincide with a marine mammal entering the shutdown zone and a shutdown not occurring. While such an event may result in a higher-level exposure than would occur if the shutdown happened, such an exposure would still not be expected to result in a Level A take and would be brief and not change the number of takes or our evaluation of their likely effects, which are expected to be comparatively minor. Additionally, the frequent delay and/or cessation of HRG surveys creates operational challenges and impracticalities for applicants. Altogether, the required measures affect the least practicable adverse impact on the affected species.
Comment 16:
For HRG survey activities, a commenter questioned why the NARW is given an exclusion zone for ramp up and ramp down procedures equal to 500 meters, while all other baleen whales that hear in the exact same profile, are only given an exclusion zone range from 100-141 m, even though they hear equally as well as the NARW.
Response:
While baleen whales have similar hearing capabilities, given the baseline status and condition of NARW, NMFS determined that enhanced mitigation measures are necessary to affect the least practicable adverse impact on the species. The largest Level B harassment zone for HRG acoustic sources is 141 m. Extending clearance zones for other baleen whales from 100 m to 500 m could result in HRG surveys extending over longer time periods. Extending the time over which surveys are conducted could potentially lead to adverse impacts on marine mammals (
e.g.,
Southall
et al.,
2021). In consideration of the size of the Level B harassment zone and the potential consequences of extending survey time, NMFS has determined that the mitigation measures for HRG surveys effect the least practicable adverse impact on non-NARW baleen whales.
Comment 17:
A commenter recommended prohibiting all planned activities on days or periods where reduced visibility conditions occur, as well as at night due to concerns over the ability to monitor the clearance zone and increased risk of vessel strikes in the case that various construction vessels are operating at night. Another commenter recommended if, under rare circumstances pile driving must proceed after dark for safety reasons, a summary of the frequency of these exceptions be publicly available to ensure they are the exception and not the norm for the project.
Response:
NMFS acknowledges the limitations inherent in visual detection of marine mammals at night. In order for Sunrise Wind to conduct nighttime pile driving activities, it must submit and NMFS must approve a Nighttime Monitoring Plan that reliably demonstrates the efficacy of its night vision methods. In this final rule, NMFS has clarified that this includes a description of how Sunrise Wind will monitor pile driving activities during reduced visibility conditions (
e.g.,
rain, fog) and at night, including proof of the efficacy of monitoring devices (
e.g.,
mounted thermal/infrared camera systems, hand-held or wearable night vision devices NVDs, spotlights) in detecting marine mammals over the full extent of the required clearance and shutdown zones. All impact pile driving activities must have visual monitoring paired with PAM, increasing the likelihood that NARW and opportunistically, other marine mammals, will be detected. NMFS emphasizes that there are benefits to completing the pile driving activities in a shorter total amount of time, in that some number of marine mammals (
i.e.,
those that might intersect the much larger Level B harassment zone) would be exposed to fewer overall days of pile driving noise and potentially a smaller magnitude or severity of behavioral disturbance as a result given repeated exposures would be minimized. Therefore, NMFS has determined the current mitigation measures affect the least practicable adverse impact on marine mammals and their habitat.
Sunrise Wind is also required to submit a Vessel Strike Avoidance Plan, which NMFS will also review in consideration of the vessel strike avoidance monitoring requirements, including the technology it would use to monitor for marine mammals at night and the effectiveness of that technology. NMFS notes any vessel strike would be unlawful, and Sunrise Wind is required to immediately report the incident to NMFS, cease activities, and work with NMFS to determine the best course of action.
NMFS does not plan to make the weekly or monthly reports publicly available; however, it will make the final reports available, which must summarize all of the information contained in the weekly and monthly reports.
The proposed rule and this final rule do not restrict the timing of HRG survey activities. There is no evidence that mortality or Level A harassment is an outcome of HRG survey noise exposure, the Level B harassment zones are small (
i.e.,
no more than 141 m), and HRG survey PSOs are required to use alternative technology to monitor the mitigation zones at night. Therefore, the mitigation zones are able to be effectively monitored at night. Further, ramp-up may occur at nighttime if appropriate visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up. The commenter did not provide justification for why, with the use of two PSOs and alternative detection technology, the mitigation
zones cannot be effectively monitored. Furthermore, restricting the ability of the applicant to begin operations only during daylight hours could result in the applicant failing to collect the data they have determined is necessary within the specific timeframe and, subsequently, may necessitate the need to conduct additional surveys in the future across additional days. No Level A harassment is expected to result from exposure to HRG equipment, even in the absence of mitigation, given the characteristics of the sources planned for use (supported by the very small estimated Level A harassment zones;
i.e.,
<36.5 m (119.8 ft) for all sources).
Regarding Level B harassment, any potential impacts from HRG survey noise exposure are expected to be limited to short-term, minor (
e.g.,
slight avoidance) behavioral responses. In consideration of the effects of the activity on marine mammals, the fact PSOs would utilize alternative technology at night, the potential unintended consequences of the measures as proposed by the commenters, NMFS has determined that the HRG mitigation measures affect the least practicable adverse impact on marine mammals and their habitat and no additional restrictions are warranted.
Comment 18:
The Commission recommends that in the final rule, NMFS should: (1) specify which model-estimated zones (
i.e.,
acoustic ranges, exposure ranges, mitigation zones, monitoring zones) and which metrics (
i.e.,
flat Rmax, flat R95%) should be compared to the
in situ
measured Level A and B harassment zones; (2) specify which type of
in situ
Level A harassment zone (
i.e.,
acoustic or exposure ranges) should be calculated; (3) require Sunrise Wind to conduct additional
in situ
measurements for monopiles that are not represented by the previous three locations (
i.e.,
substrate composition, water depth) or by the hammer energies and numbers of strikes needed to install a pile in a given day or number of piles installed in a given day; and (4) require Sunrise Wind to deploy a minimum of three hydrophones for SFV during impact pile driving of monopiles and two hydrophones and one pressure transducer for SFV during UXO/MEC detonations. The Commission also recommends that NMFS require Sunrise Wind to determine (1) root-mean-square SPL (SPLrms) and single-strike SEL (SELs-s) source levels and (2) ranges to (a) mortality, (b) Level A harassment based on slight lung injury, slight gastro-intestinal (GI) injury, and permanent threshold shift (PTS), and (c) Level B harassment based on temporary threshold shift (TTS) and behavior. The also recommended NMFS require Sunrise Wind to include in the interim SFV reports (1) number of strikes for impact pile driving, (2) the type(s) and location(s) of the sound attenuation systems, (3) SELcum for impact pile driving and UXO detonations, and (4) ranges to (a) Level A harassment (PTS for impact pile driving and UXO detonations) and (b) Level B harassment (TTS for UXO detonations and behavior for impact pile driving and UXO detonations). In the final SFV reports, the Commission recommended Sunrise Wind include (1) the impulse metric (in Pa-sec) for UXO detonations, (2) ranges to Level A harassment (PTS) and Level B harassment (behavior) for impact pile driving, (3) ranges to mortality, Level A harassment (slight lung injury, slight GI injury, and PTS), and Level B harassment (TTS and behavior) for UXO detonations, (4) source levels at 10 m during wind turbine operations, (5) received levels at 50 m, 100 m, and 250 m from the wind turbine during operations, and (6) operational parameters (
i.e.,
direct drive/gearbox information, turbine rotation rate), sea state conditions, and any nearby anthropogenic activities when monitoring operational sound.
Response:
NMFS agrees with most of the Commission's recommendations on reporting and have added metrics recommended in this final rule where they were not included or unclear in the proposed rule. The following provides a summary of those recommendations NMFS does not agree with or where NMFS has provided alternative measures. NMFS is not at this time requiring rms source levels as those can be deduced from the SEL levels. NMFS is also not specifying the distances at which operational noise be measured as recommended by the Commission but will assess the proposal by the developer in their SFV plan. In this final rule, NMFS is requiring Sunrise Wind conduct abbreviated SFV on all piles, which is more than is recommended by the Commission. In addition, for complete SFV, NMFS is requiring four recorders (each equipped with two hydrophones) to be used as well as an additional recorder at a 90 degrees (total of 10 hydrophones), which is well above that recommended by the Commission. Sunrise Wind is also required in this final rule to measure pressure during all UXO/MEC detonations with a pressure transducer.
Comment 19:
The Commission recommends that NMFS allow for public comment on Sunrise Wind's PAM Plan prior to issuing any final rule; require wind energy applicants to submit a PAM plan and SFV plans prior to the agency publishing any proposed rule; ensure that any PAM plan include, at a minimum, information on the minimum number, type (
e.g.,
moored, drifting, or towed), location, bandwidth/sampling rate, estimated acoustic detection range, or sensitivity of the hydrophones or the detection software (
e.g.,
PAMGUARD) that would be used; and discuss with Sunrise Wind whether the operator would use vector sensors in addition to hydrophones to enhance detections, particularly of those vocalizations that may be drowned out by the hammer strikes and resulting reverberation.
Response:
Due to other concurrent permitting processes and acknowledging the need for flexibility and project-specific implementation, NMFS disagrees these Plans must be submitted prior to promulgating the final rule. The purpose of the Plans is for the developer to provide to NMFS details on how they would satisfy the criteria identified in the rule. These criteria are available for public review and comment. NMFS does not specify the Commission's reporting recommendations; however, it does require a description of all proposed PAM equipment, procedures, and protocols, including evidence that vocalizing NARW will be detected within the clearance and shutdown zones, as well as how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. Sunrise Wind's responses to these requirements will address the Commission's recommendations.
Comment 20:
Commenters recommended that NMFS should expand the visual monitoring (PSO) and acoustic monitoring (PAM) requirements for the project. They recommended that PSO staffing levels should be increased to a minimum of four PSOs on each monitoring platform, with at least two on duty at all times, and be supplemented with drones during periods of darkness or poor visibility. They also recommended PAM should be required during vibratory pile driving, and HRG surveys; have a minimum detection range of 10,000 m during pile driving; and be undertaken from a vessel other than the pile driving vessel or from a stationary unit to avoid the hydrophone being masked by construction related noise. Finally, the commenters recommended that visual and acoustic monitoring should begin 60 minutes prior to vibratory pile driving.
Response:
Regarding the number of PSOs, NMFS notes that the proposed rule required a minimum of four PSOs actively observing marine mammals before, during, and after (specific times described below) the installation of monopiles (two on the pile driving platform and two on a secondary PSO vessel). In light of other public comments regarding monitoring, NMFS has increased this requirement to 3 on-duty PSOs per vessel platform for a minimum of six on-duty PSOs monitoring before, during, and after foundation installation impact pile driving.
NMFS has expanded the visual and acoustic monitoring requirements in this final rule and has established a 10 km PAM monitoring zone for NARW (and opportunistically other marine mammals) during foundation impact pile driving and the PAM system be at least 1 km from the pile driving vessel. In this final rule, NMFS has increased the number of on-duty PSOs on the pile driving vessel from two to three. NMFS notes that the proposed rule and this final rule limit the number of consecutive PSO watch hours and, therefore, Sunrise Wind must ensure it has enough PSOs on staff to meet on-duty requirements. NMFS is not requiring drones to be used at this time and the commenters did not provide information supporting the recommendation that they be used when considering the extensive PSO monitoring required.
NMFS is not requiring PAM during HRG surveys and vibratory pile driving and the commenters do not provide additional scientific information for NMFS to consider to support their recommendation to require PAM during these activities. NMFS disagrees that this measure is warranted during HRG surveys because it is not expected to be effective for use in detecting the species of concern given the noise from the vessel because 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 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 (Thode
et al.,
2017) emphasized that a PAM operation could easily report no acoustic encounters, depending on species present, simply because background noise levels rendered any acoustic detection impossible. The same report stated that a typical eight-element array towed 500 m behind a vessel could be expected to detect delphinids, sperm whales, and beaked whales at the required range but not baleen whales due to expected background noise levels (including seismic noise, vessel noise, and flow noise).
While NMFS agrees that PAM can be an important tool for augmenting detection capabilities in certain circumstances (
e.g.,
foundation installation), its utility in further reducing impacts during HRG survey activities and vibratory pile driving is limited. For HRG surveys, the area expected to be ensonified above the Level B harassment threshold is relatively small (a maximum of 141 m); this reflects the fact that the source level is comparatively low and the intensity of any resulting impacts would be lower level and, further, it means that inasmuch as PAM will only detect a portion of any animals exposed within a zone, the overall probability of PAM detecting an animal in the harassment zone is low (particularly because of flow noise masking vocalizations). Together, these factors support the limited value of PAM for use in reducing take for activities/sources with smaller zones. Additionally, PAM is only capable of detecting animals that are actively vocalizing, while many marine mammal species vocalize infrequently or during certain activities, which means that only a subset of the animals within the range of the PAM would be detected (and potentially have reduced impacts). Further, localization and range detection can be challenging under certain scenarios. For example, odontocetes are fast moving and often travel in large or dispersed groups which makes localization difficult while porpoises and delphinid echolocation clicks are high frequency with limited detection ranges.
The only vibratory pile driving that would occur is during installation and removal of sheet piles at the cofferdam site and pier pile installation at Smith Point County Park, the latter of which is not expected to result in take of marine mammals. Vibratory installation of sheet piles is a relatively quiet pile installation method when compared to impact pile driving with lower impacts and would occur over a short durations (
i.e.,
approximately one month intermittently). The use of PAM is not typically required during similar coastal construction pile driving projects, as PSOs are sufficient to monitor for marine mammals. This work would also occur in shallow water; therefore, any marine mammals should be reliably detected within 30 minutes prior to pile driving when PSO monitoring would begin as animals would not be diving to depth that require longer dive times. Further, the commenters did not provide scientific evidence suggesting 30 minutes is not an adequate amount of time to detect marine mammals to enact mitigation, where applicable. Therefore, NMFS is not requiring 60 minutes of monitoring prior to beginning cable landfall pile driving as it has determined it affects the least practicable adverse impact.
Given that the effects to marine mammals from the types of HRG surveys and vibratory pile driving authorized are expected to be limited to low-level, behavioral harassment even in the absence of mitigation and the cost and impracticability of implementing a full-time PAM program, NMFS has determined the current requirements for visual monitoring are sufficient to effect the least practicable adverse impact on the affected species or stocks and their habitat during these activities.
Comment 21:
A commenter suggested that NMFS should improve data transparency for the reporting measures by requiring that all reports and data be accessible to the public; require immediate reporting of all visual and acoustic detections of NARW and dead/injured/entangled marine mammals, if possible, to the appropriate authority but no later than the end of the protected species observer's shift; and require reporting to NMFS and the public whenever an exemption was taken to implementing a mitigation measure (
e.g.,
shutdown did not occur due to safety concerns).
Response:
The commenter's recommendations to report all visual and acoustic detections of NARW and any dead, injured, or entangled marine mammals to NMFS are consistent with the proposed rule and this final rule. NMFS recognizes the potential for intermittent communication issues at sea and these issues may last longer than a maximum PSO shift (
i.e.,
four hours). Therefore, NMFS is requiring these reports be made as soon as possible but no later than 24 hours.
Neither the MMPA nor its implementing regulations require NMFS
to make monitoring reports publicly available. However, it is NMFS long standing practice to make final incidental take authorization monitoring reports available to the public via our website. In both the proposed rule and this final rule, NMFS requires Sunrise Wind to submit annual marine mammal monitoring reports (which include documenting instances where allowable exemptions were taken) and final SFV monitoring reports; the final versions of these reports will be posted on NMFS' website). NMFS also requires weekly and monthly reporting; however, these reports are a means by which to check compliance with the rule. NMFS does not intend to make these publicly available. Further, as NARW sightings are reported by Sunrise Wind, they will be made publicly available on WhaleMap (
https://whalemap.org/whalemap.html
) while acoustic detections of NARW and other large whale species will be available to the public on NOAA's Passive Acoustic Cetacean Map website (
https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map
).
Comment 22:
A commenter recommended NMFS should set more frequent reporting requirements for NAS and require independent compliance evaluators.
Response:
In addition to the SFV reporting included in the proposed rule for complete SFV, this final rule requires Sunrise Wind to conduct abbreviated SFV on all foundation piles for which complete SFV is not conducted with frequent reporting in weekly reports. Frequent SFV reporting will allow NMFS to evaluate Sunrise Wind's compliance with the need to reduce distances to NMFS harassment isopleths to at or below those modeled assuming 10 dB attenuation. NMFS is not requiring independent compliance evaluators. These reports will be reviewed by NMFS staff with specialized expertise.
Comment 23:
A commenter asserted the use of PSOs and PAM is not sufficient or effective, particularly for NARW and calves, as well as during UXO detonations and construction of multiple and adjacent projects and requested the final rule detail the effectiveness of PAM for detecting NARW, including mothers and calves, during pile driving and UXO detonation occurring simultaneously with other projects.
Response:
The commenter did not provide any scientific evidence that visual monitoring for NARW is not effective and therefore, is not supported. Regarding the assertion that PAM is also not effective, the commenter cited Parks
et al.
(2019). As evident from the title of the paper, “Acoustic crypsis in communication by NARW mother-calf pairs on calving grounds”, all data collected to support the findings from that paper were from calving grounds off the coasts of Georgia and Florida. Habitat use and age classes are different between calving ground and southern New England, which hosts older animals and those engaged in foraging and socialization, making findings in the referenced paper not applicable to the Sunrise Wind project area. Furthermore, there is ample scientific evidence to support PAM is an effective tool for monitoring for NARW (
e.g.,
Davis
et al.,
2017, Van Parijs
et al.
(2021)) with recent literature indicating PAM was able to detect NARW in the Massachusetts and Rhode Island Wind Energy Areas monitored, including where the Sunrise Wind's Lease Area is located on, in certain months of the year, a daily basis (Davis
et al.
2023). Together, visual and PAM approaches are well understood to provide best results when combined together (
e.g.,
Barlow and Taylor, 2005; Clark
et al.,
2010; Gerrodette
et al.,
2011. For these reasons, NMFS finds that the suite of visual and acoustic monitoring measures in the proposed rule and carried forward in this final rule are based on the best available scientific information and are effective at detecting NARW.
Comment 24:
A commenter requested an increase in the frequency of information review for adaptive management to occur on a quarterly basis, that these quarterly reports be made publicly available, and for NMFS develop a mechanism to undertake these reviews on an ad hoc basis if a serious issue is identified.
Response:
Regarding the recommendation that NMFS have a mechanism in place to undertake review and adaptive management on an ad hoc basis if a serious issue is identified, there are no timing restrictions in the adaptive management provisions and therefore, NMFS may undertake review and adaptive management actions at any time under the regulations, as written. Regarding the recommendation to increase the frequency of information review, Sunrise Wind is required to submit weekly, monthly, and annual reports that NMFS will review in a timely manner and may act on pursuant to the adaptive management provisions at any time and, therefore, a separate specific quarterly review is unnecessary.
Comment 25:
A commenter recommended that sound source validation reports of field measurements must be evaluated by NOAA Fisheries prior to additional piles being installed and be made publicly available and that SFV be on the first pile installed and from a random sample of piles throughout the construction period.
Response:
NMFS notes that, as proposed, this final rule requires that no unmitigated piles can be installed and that SFV is required for piles to ensure that measured sound levels do not exceed those modeled assuming 10 dB of attenuation. NMFS acknowledges the importance of transparency in the reporting process and plans to make all final annual SFV reports available on our website.
Comment 26:
A commenter requested that NMFS: (1) explain whether or not Level B necropsies will be conducted on all animals that may wash ashore during construction activities to examine for auditory injury and/or lung and gastrointestinal injury; (2) how or if those results will be made public and available in a timely manner, if such injury is discovered if or how this would be attributed to any particular project or offshore wind construction activity; and (3) what steps NMFS would take as a result.
Response:
The MMPA established the Marine Mammal Health and Stranding Response Program (MMHSRP). It 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 networks respond, when safe and feasible, to document and recover carcasses. It does not and cannot respond to every stranded marine mammal, and it is not responsible for disposing of carcasses. The type of examination conducted varies and depends on availability of resources, location, carcass accessibility, and the decomposition state. A necropsy report, when written, includes data which are compiled over several weeks to months and then analyzed for a possible cause of death determination and findings. National and Regional summaries of stranding statistics are available at:
https://www.fisheries.noaa.gov/resource/publication-database/marine-mammal-health-and-stranding-response-program-reports.
NMFS may modify these regulations and the LOA based on new information it considers the best available science. If this science indicates the takings allowed under these regulations may be having more than a negligible impact, NMFS must
suspend or withdraw the LOA after notice and opportunity for public comment.
Comment 27:
Several commenters disagreed with NMFS' negligible impact determination, particularly for NARW. Comments claimed that NMFS did not: (1) consider the imperiled population status of NARWs; (2) evaluate the cumulative effects of all projects (
e.g.,
offshore wind construction and operational noise and site characterization surveys and baseline urbanized background levels of ambient noise which result in stress); (3) meaningfully examine the effects of the loss of communication space on marine mammals and, further, seems to misapprehend the spatial and temporal scope of the effects; (4) consider that any effect to the small number of breeding females can adversely affect fecundity and imperil the species; and (5) consider whether abandonment of habitat that was designated with the express purpose of preventing vessel strikes would push the species further into a vessel traffic corridor, thereby elevating the risk to the species nor evaluated all the risks to NARW by habitat displacements as sublethal take has can a measurable effect due to the small population.
Response:
NMFS is required to authorize the requested incidental take if it finds the total incidental take of small numbers of marine mammals by U.S. citizens “while engaging in that (specified) activity” within a specified geographic region during the 5-year period (or less) will have a negligible impact on such species or stock and, where applicable, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses (16 U.S.C. 1371(a)(5)(A)). Negligible impact is defined as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effect on annual rates of recruitment or survival” (50 CFR 216.103). Consistent with the preamble of NMFS' implementing regulations (54 FR 40338, September 29, 1989), the impacts from other past and ongoing anthropogenic activities are factored into the baseline, which is used in the negligible impact analysis. Here, NMFS has factored into its negligible impact analysis the impacts of other past and ongoing anthropogenic activities via their impacts on the baseline (
e.g.,
as reflected in the density/distribution and status of the species, population size and growth rate, and other relevant stressors).
The preamble of NMFS' implementing regulations also addresses cumulative effects from future, unrelated activities. Such effects are not considered in making the negligible impact determination under section 101(a)(5) of the MMPA. NMFS considers: (1) cumulative effects that are reasonably foreseeable when preparing a National Environmental Policy Act (NEPA) analysis; and (2) reasonably foreseeable cumulative effects under section 7 of the ESA for ESA-listed species, as appropriate. Accordingly, NMFS has adopted and reviewed BOEM's EIS and as part of its inter-agency coordination. This EIS addresses cumulative impacts related to the Project and substantially similar activities in similar locations. Cumulative impacts regarding the promulgation of the regulations and issuance of an LOA for construction activities planned by Sunrise Wind, have been adequately addressed in the adopted EIS that supports NMFS' determination that this action has been appropriately analyzed under NEPA. Separately, the cumulative effects of the Project on ESA-listed species, including the NARW, were analyzed under section 7 of the ESA when NMFS engaged in formal inter-agency consultation with NOAA's Greater Atlantic Regional Fisheries Office (GARFO). The Biological Opinion for the Project determined that NMFS' promulgation of the rulemaking and issuance of an LOA for construction activities, individually and cumulatively, are likely to adversely affect, but not jeopardize, listed marine mammals.
NMFS disagrees that its negligible impact determination is flawed or not supported. NMFS fully disclosed the imperiled status of NARW in the Description of Marine Mammals in the Area of Specified Activity section of the proposed rule. The proposed rule, as well as this final rule by reference, fully explains the impacts to NARW is expected to be limited to low-level behavioral harassment (
e.g.,
temporary avoidance or cessation of foraging). The proposed rule also described the potential effects of behavioral disturbance on marine mammal fitness and that, based on the best available science, behavioral disturbance resulting from Sunrise Wind's activities is not expected to impact individual animals' health or have effects on individual animals' survival or reproduction, thus no detrimental impacts at the population level are anticipated. The commenters do not provide scientific evidence that suggests otherwise. Specifically, the commenters did not provide evidence that any effect to a breeding female would result in reduced fecundity.
Commenters suggested NMFS did not meaningfully evaluate loss of communication space; however, the Effects on Marine Mammals and Their Habitat section in the proposed rule contained an analysis on the impacts of masking both in general and from the specified activities.
NMFS acknowledges that whales may temporarily avoid the area where the specified activities occur. However, NMFS does not anticipate, based on the best available science, that whales will abandon their habitat, as suggested by a commenter, or 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. The primary activity that is anticipated to result in temporary avoidance of the otherwise used habitat is foundation installation impact pile driving. Not only would this activity be limited to times of year when NARW presence is low, pile driving would be intermittent, and pile driving would only occur for a limited time (
i.e.,
approximately 348 hours plus the installation of an OCS-DC in one day) over the course of two years. Together, these factors further reduce the likelihood that this species would be in close enough proximity to the activity to engage in avoidance behavior to the degree it would move into an area of risk (which would be closer to shore) that it could be struck by another vessel.
Comment 28:
Commenters questioned the validity of NMFS' small numbers analysis on the basis that the numbers do not account for the cumulative take numbers from previous, ongoing, or potential projects. One commenter also requested NMFS clarify the definition of and thresholds for a small numbers determination.
Response:
NMFS has provided a reasoned approach to small numbers, as described in the final rule, “Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico” (86 FR 5322 at 5438, April 19, 2021). Utilizing that approach, NMFS has made the necessary small numbers finding for all affected species and stocks in this case (Small Numbers section of this preamble for more detail). Neither the MMPA nor our implementing regulations require the small numbers analysis to consider take from previous, ongoing, or potential projects.
Comment 29:
Commenters suggested that NMFS failed to account for the cumulative (or additive) impacts on marine mammal species in the Sunrise Wind analysis and that NMFS should evaluate the cumulative impacts of ongoing and future OSW projects rather than evaluating projects individually. They provide that NMFS must consider the total number of takes proposed to be authorized across all wind projects and must fully consider the discrete effects of each activity and the cumulative effects of the suite of approved, proposed, and potential activities on marine mammals, including NARWs, and ensure that the cumulative effects are not excessive before issuing an LOA.
Response:
Neither the MMPA nor NMFS' implementing regulations call for consideration of the take resulting from other specified activities in the negligible impact analysis. The preamble to NMFS' implementing regulations 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 (54 FR 40338, September 29, 1989). 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 final rule for the MMPA implementing regulations also addressed public comments regarding cumulative effects from future, unrelated activities (54 FR 40338, September 29, 1989). There, NMFS stated that such effects are not considered in making findings under section 101(a)(5) concerning negligible impact. In this case, this incidental take regulation (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) of the MMPA 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 (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, Sunrise Wind was the applicant for the ITR, and NMFS is 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, NMFS also indicated: (1) that it 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 (54 FR 40338, September 29, 1989). Accordingly, NMFS has adopted an EIS written by BOEM and reviewed by NMFS as part of inter-agency coordination. This EIS addresses cumulative impacts related to Sunrise Wind 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 Sunrise Wind, have been adequately addressed under NEPA in the adopted EIS that supports NMFS' MMPA decision. Separately, the cumulative effects of Sunrise Wind on ESA-listed species, including NARW, was analyzed under section 7 of the ESA when NMFS engaged in formal inter-agency consultation with GARFO. The Biological Opinion for Sunrise Wind 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.
Comment 30:
Several commenters claimed the request for an ITA should be denied alleging the specified activities kill marine mammals, and some commenters suggested that the ongoing whale UMEs, including the whale deaths occurring in the winter of 2022-2023, are linked with ongoing offshore wind survey work (
i.e.,
HRG surveys). One commenter claimed the burden is on NMFS to prove, with evidence, that there is no association between HRG surveys and whale injuries, including “rectified diffusion” deaths, or otherwise assume that offshore wind activity has contributed to these deaths. A commenter also asserted that the activities covered by the ITR and associated LOA are reasonably likely to result in Level A take of NARWs that are not covered by the authorization's terms.
Response:
Neither the proposed rule nor this final rule allow mortality or serious injury of marine mammals to be authorized. The best available science indicates that the anticipated impacts from the specified activities potentially include avoidance, cessation of foraging or communication, TTS and PTS, stress, masking,
etc.
(as described in the Effects of the Specified Activities on Marine Mammals and their Habitat section in the proposed rule). NMFS emphasizes that there is no evidence that noise resulting from offshore wind development-related specified activities would cause marine mammal strandings and that there is no evidence linking recent large whale mortalities and currently ongoing offshore wind activities. The commenters offer no such evidence or other scientific information to substantiate their claim. This point has been well supported by other agencies, including BOEM and the Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring 2023).
There is an ongoing UME for humpback whales along the Atlantic coast from Maine to Florida, which includes animals stranded since 2016, and NMFS provides further information on the humpback UME in the humpback whale subsection in the Description of Marine Mammals in the Specific Geographic Region section of this final rule.
Partial or full necropsy examinations were conducted on approximately half of the whales that recently stranded along the U.S. east coast. 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 (
i.e.,
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 Sunrise Wind'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. More
information about interactions between offshore wind energy projects and whales can be found at:
https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales.
The proposed rule and this final rule state that no take of NARW by Level A harassment, mortality, or serious injury was requested or proposed for authorization (see the Estimated Take and Negligible Impact Analysis and Determination sections), and they are not expected based on the best available science.
One commenter cited literature as evidence that seismic surveys in the mid to low frequency range can injure, cause decompression sickness (
i.e.,
the bends), and cause rectified diffusion in whales. The Fernandez (2005) paper cited refers to pathology results from necropsies conducted on beaked whales involved in a mass stranding event in the Canary Islands following high intensity military training exercises involving numerous surface warships and several submarines and mid-frequency tactical sonar activities. NMFS acknowledges the effects of these activities described by the commenter are known; however, the activities in that paper are not analogous to HRG surveys that would be conducted by Sunrise Wind to construct the Project, and the information presented by the commenter is not applicable due to many factors (
e.g.,
pile driving is stationary, versus the sound sources cited, and HRG surveys utilize a much lower source level).
Comment 31:
Members of the public recommended NMFS consider the impacts of structure presence and operations, including those from operational noise on marine mammals as well as ocean mixing and vibrations on phytoplankton, zooplankton, and the food chain. One commenter suggested that NMFS did not evaluate the long-term operational and maintenance impacts of the project on marine mammals and ignored the best available science demonstrating behavioral impacts to marine mammals from operational turbines; therefore, NMFS' small numbers and negligible impact findings are arbitrary and capricious.
Response:
In the proposed rule, NMFS considered the impacts to marine mammals from operational noise and to their habitat, including prey, from the presence of structures and operations based on the best available science. In this final rule, NMFS has supplemented that analysis with new scientific information that has become available regarding these issues since publishing the proposed rule. This new information does not change our findings. The commenter did not provide scientific evidence that suggests the analysis within the proposed rule was unsupported. NMFS has fully evaluated the potential impacts of both issuing this final rule on marine mammals over the five-year effective period of this rulemaking and the potential impacts from long-term operations via the Biological Opinion. NMFS refers the reader to the Effects of the Specified Activities on Marine Mammals and Their Habitat section and the Negligible Impact Determination section in the proposed and in this final rule for further details.
Comment 32:
The Commission recommends that NMFS ensure that all underlying documentation used in the agency's analyses, including PSO reports from previous authorizations, are publicly available on its website prior to publishing any
Federal Register
notice for advance notice of proposed rulemakings or the proposed rules themselves.
Response:
Although not required by the MMPA or its implementing regulations, NMFS posts all final reports on our website when approved by NMFS. For reports used in its analysis, NMFS agrees that all underlying documentation should be readily available to the public for review along with the proposed rule. While it anticipates the timing is such that in most cases, NMFS will have a final report posted prior to publishing a proposed rule. In more unusual circumstances, in particular if a report is not due, but some preliminary information is available, it may not be possible to make the report publicly available at the same time as the proposed rule. Therefore, NMFS agrees having underlying documentation to support our analyses available for public review is the goal; however, it recognizes that this may not be practicable in all cases. NMFS does publish a Notice of Receipt as required per NMFS' implementing regulations inviting public input on an adequate and complete application for rulemaking. However, this stage does not include NMFS' analysis or preliminary determinations, and therefore, there is no analysis for which supporting documentation is needed. In general, NMFS aims to post relevant documentation as early as possible.
Comment 33:
The Commission understands and supports the Administration's push for wind energy development along the Atlantic coast but is concerned the push is compromising the quality of documents at the sake of adhering to timelines and milestones. The Commission recommends that NMFS prioritize conducting quality control and general oversight of reviewing the preambles to and the proposed and final rules prior to publication in the
Federal Register
.
Response:
NMFS is committed to producing accurate and scientifically-defensible documents that support our management decisions for incidental take authorizations and other actions and will continue to prioritize quality control as appropriate, given available resources.
Comment 34:
A commenter requested that NMFS' consideration of LOAs for offshore wind developers be applied equitably across industries and that there be a clear threshold for OSW-related takes regionally and across project phases.
Response:
NMFS carefully reviews models and take estimate methodology to authorize a number of takes, by species and manner of take that is a likely outcome of the Project. Sunrise Wind is required to submit frequent reports, which identify the number of takes applied to the Project.
Fishing impacts and NMFS assessment of them generally center on entanglement in fishing gear, which is a very acute, visible, and severe impact (
i.e.,
mortality or serious injury). In contrast, the impacts incidental to the specified activities are primarily acoustic in nature and limited to Level A harassment and Level B harassment, there is no anticipated or authorized serious injury or mortality that the fishing industry could theoretically be held accountable for. Any take resulting from the specified activities would not be associated with take authorizations related to commercial fisheries. Neither the MMPA nor NMFS' implementing regulations require NMFS to analyze impacts to other industries (
e.g.,
fisheries) from issuance of an ITA pursuant to section 101(a)(5)(A) of the MMPA. NMFS notes that the Sunrise Wind Final EIS assesses the impacts of both BOEM's and NMFS' actions (
i.e.,
approving Sunrise Wind's activities and authorizing the associated take of marine mammals, respectively) on the human environment, including to fisheries, and NMFS considered the analysis, as appropriate, in the final decisions under the MMPA. 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 (
e.g.,
offshore wind site characterization surveys) under section 118 of the MMPA.
Comment 35:
A commenter expressed concern about how the presence of wind turbines will impact NMFS' ability to conduct low-altitude (
i.e.,
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 36:
A commenter questioned the consequences and implications of a scenario in which the authorized incidental take levels are exceeded.
Response:
In the unlikely scenario that Sunrise Wind exceeds their authorized take levels, any further take would be unauthorized and, therefore, prohibited under the MMPA. Sunrise Wind could request additional incidental take of marine mammals from their specified activities. This would require NMFS to reanalyze its small numbers and negligible impact determinations and may require reinitiation of the BiOp and supplemental NEPA analysis depending on the specific facts.
Comment 37:
A commenter recommended that, consistent with the requirement to achieve “the least practicable impact on such species or stock and its habitat,” the LOA must include conditions for the survey and construction activities that will first avoid adverse effects on NARW in and around the area and then minimize and mitigate the effects that cannot be avoided.
Response:
The MMPA requires that we include measures that will affect the least practicable adverse impact on the affected species and stocks and, in practice, NMFS generally agrees with the approach suggested (
i.e.,
the rule should include conditions for the construction activities that will first avoid adverse effects on NARW in and around the Project Area where practicable and then minimize the effects that cannot be avoided) and has generally considered mitigation in that way. NMFS does not agree that it “must” consider mitigation in this exact manner. NMFS has determined that this final rule meets this requirement to effect the least practicable adverse impact and described our rationale in the final rule. The commenter does not make any specific recommendations of measures to add to the rulemaking.
Comment 38:
A commenter requested that, due to rapid changes for NARW and the need to react quickly to protect the species, NMFS should issue 5-year ITRs but should limit LOAs to 1-year period instead of the proposed 5-year LOA.
Response:
While NMFS understands the reasoning behind the commenters' suggestion, it does not think this is necessary because the final rule includes requirements for annual reports (in addition to weekly and monthly requirements) to support frequent evaluation of the activities and monitoring results, and the final rule includes an Adaptive Management provision that allows NMFS to make modifications and adjustments to the measures found in the issued LOA if and when new information that supports necessary modifications becomes available. Because of this, NMFS will issue a single, 5-year LOA and modify it if and when necessary at any point during the effective period of the regulations.
Comment 39:
A commenter recommended that NMFS should only issue the ITR and LOA after pending regulatory rules with possible effects to marine mammals are finalized (
e.g.,
BOEM's renewable energy modernization rule, NMFS vessel speed rule); the results of the UME investigations in the area are completed and available; and research and studies on the impacts of offshore wind development on marine mammals are completed as baseline information is lacking. Another commenter recommended no ITRs should be issued until a programmatic analysis of offshore wind is conducted.
Response:
The MMPA requires NMFS to evaluate the effects of the specified activities in consideration of the best scientific evidence available and to issue the requested incidental take authorization if it makes the necessary findings (16 U.S.C. 1371(a)(5)(A)(i)). The MMPA does not allow NMFS to delay issuance of the requested authorization on the presumption that new information or new regulations will become available in the future. If new information becomes available in the future, NMFS may modify the mitigation and monitoring measures in an LOA issued under these regulations through the adaptive management provisions. Furthermore, NMFS is required to withdraw or suspend an LOA if, after notice and public comment unless an emergency exists, it determines the authorized incidental take may be having more than a negligible impact on a species or stock. NMFS has duly considered the best scientific evidence available in its promulgation of the final rule and made the required findings.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the
Federal Register
on February 10, 2023 (88 FR 8996), NMFS has made changes, where appropriate, that are reflected in the preamble text of this final rule and in the final regulatory text. 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, which has been incorporated into this final rule as discussed below.
The following changes are reflected in the Description of Marine Mammals in the Area of Specified Activities section of the preamble to this final rule:
Given the release of NMFS' draft 2023 SARs (Hayes
et al.
2024), NMFS has updated the population estimate used in the proposed rule (Hayes
et al.,
2022) for the NARW (
Eubalaena glacialis
) from 368 to 340 and the total mortality/serious injury (M/SI) amount from 7.7 to 27.2. This increase is due to the inclusion of undetected M/SI (whereas 7.7 accounted only for detected M/SI).
Given the availability of new information, NMFS has made updates to the UME summaries for NARW, humpback whales, minke whales, and phocid seals (pinnipeds).
The following changes are reflected in the Estimated Take section the preamble to this final rule:
Since the proposed rule was published, Sunrise Wind has reduced the number of foundations to be installed from 94 WTGs to 87 (see Reduced WTG Foundations report). Therefore, the exposure estimates and take numbers from this activity have been slightly reduced to account for this reduction in activity. While the number of authorized takes resulting from foundation installation have decreased, the underlying modeling and methodologies to estimate take have not changed since the proposed rule.
Sunrise Wind submitted adjusted take numbers for Level B harassment associated with HRG surveys as part of the Reduced WTG Foundations report. Due to the reduction on WTGs, the amount of HRG survey tracklines have been reduced. This change to the project results, in some cases, in a reduction of the number of takes that would be authorized under this rule. However, species in which take by Level B harassment for HRG was based on mean group size (
i.e.,
Atlantic spotted dolphin, pilot whales, Risso's dolphin, and sperm whale) were originally calculated by halving the mean group size between years 1 and 2 rather than accounting for the total mean group size for each year of HRG survey activity. This correction to using total mean group size for each year resulted in minor increased take to these species.
The total takes by Level B harassment for blue whale was corrected to 8 from 7 due to a summation error (other tables in the Estimated Take section of the proposed rule included correct take numbers for blue whales and correctly added up to 8 total takes).
The following changes are reflected in the Mitigation, and Monitoring and Reporting section in the preamble to this final rule:
Based, in part, on recommendations received from the public, NMFS has revised the minimum visibility, shutdown, and clearance zone sizes for foundation installation (table 32). To simplify the various schedules, NMFS determined that three installation scenarios warranted different zone sizes assuming 10 dB attenuation: (1) sequential (Schedule 1 and 2); (2) concurrent (Schedule 3 and 4); and (3) OCS-DC only (Schedule 5) (see table 32). In addition, the minimum visibility zone is now based on the Level A harassment zone sizes for NARW under the three different construction scenarios. When Schedules were considered together (
e.g.,
Schedules 1 and 2 comprise the “sequential” scenario), the largest zone of the two schedules considered was used to develop mitigation zone sizes (see table 32). For OCS-DC only (Schedule 5), the clearance and shutdown zone sizes were set as the largest distance for the low frequency cetaceans (
i.e.,
fin whale).
NMFS has increased the PSO and PAM clearance and shutdown zone sizes based on the largest Level A harassment threshold distance for low frequency cetaceans (
i.e.,
fin whale) based on the construction scenario and season. NMFS increased the PAM shutdown zone from 3.7 km (summer) and 4.3 km (winter) for NARW and now requires Sunrise Wind to shutdown foundation pile driving if a NARW is acoustically detected within the 10 km PAM monitoring zone.
Due to the different zone sizes based on the three construction scenarios, NMFS has included a requirement that Sunrise Wind must select the most conservative (largest) zone sizes each day depending on which construction scenario is planned. If the real-world construction scenario for that day occurs that would have had smaller zone sizes than what was planned at the start of the day, Sunrise Wind may not decrease to the smaller zone sizes for that day (
i.e.,
real-world concurrent installation does not occur though was planned at the start of the day and, instead, only sequential installation occurred; Sunrise Wind must still implement the larger concurrent installation zone sizes).
NMFS has included mitigation and monitoring zones specific to the different UXO/MEC charge weights, rather than a single zone size assuming only the largest charge weight, as Ørsted has provided evidence to NMFS that they can reliably identify UXO/MEC charge weights in the field since publication of the proposed rule.
Recognizing the extensive, frequent, and situational monitoring data and report requirements, NMFS clarified the language describing the annual or biennial review of data to inform adaptive management decisions to indicate that adaptive management decisions may be made at any time, as new information warrants it.
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.
The following change is reflected in § 217.310 (Specified activity and specified geographical region):
For clarity and consistency, we revised two paragraphs in § 217.310 Specified activity and specified geographical region of the regulatory text to fully describe the specified activities and specified geographical region.
The following change is reflected in § 217.312 (Permissible Methods of Taking):
NMFS added pneumatic hammering of casing pipes to the list of permissible methods of taking by Level B harassment as it was inadvertently excluded from the regulatory text but fully described and analyzed in preamble.
The following changes are reflected in § 217.314 (Mitigation requirements) and the associated Mitigation section of the preamble to this final rule:
For clarity and consistency, NMFS has reorganized and revised, as applicable, the paragraphs in § 217.314 (Mitigation requirements).
Based on a recommendation by a commenter, NMFS added a requirement that all project vessels must utilize AIS.
NMFS corrected the limitation on the number of monopiles that could be installed per day from 3 to 4 per day to accurately reflect the scenarios analyzed by Sunrise Wind in their application and as described in table 16 of the proposed rule.
Given that NARW density in the Project Area increases by an order of magnitude from November to December and based on public comment, NMFS is including a requirement that foundation impact pile driving should be avoided in December and may only occur when unforeseen circumstances would otherwise preclude completion of the foundation installation for the project in a given year, and only with prior approval by NMFS. NMFS has also clarified that when a clearance zone is over 5 km, an aerial platform must be used unless Sunrise Wind determines an aerial platform is not practical and, in such case, an additional vessel must be used.
NMFS updated the vessel strike avoidance measures to now specify that the mitigation measure apply to all Project vessels, and that if a NARW is detected, all vessels, not only crew transfer vessels, must travel at 10 kn (11.5 mph) or less. In addition, the regulatory text clarifies that this measure applies only when other speed restrictions are not in place (
e.g.,
no DMA, SMA, or Slow Zone is established). NMFS has also modified a vessel strike measure that had indicated a vessel should slow to 10 kts if it came within an identified separation zone. The measure was changed to indicate that vessels should steer away from slow, and shift engines to neutral if the separation zone is violated. NMFS also clarified the situations under which a safety exemption may be taken from the vessel strike avoidance measures.
For the Smith Point County Park temporary pier, NMFS now includes the required mitigation measures to avoid take by Level A harassment or Level B harassment, as Sunrise Wind has not requested take for these activities. These mitigation and monitoring measures are the same as required of cable landfall. With the addition of these measures, NMFS concurs with Sunrise Wind that take is not expected to occur.
The following changes are reflected in the § 217.315 (Monitoring and reporting
requirements) and the associated Monitoring and Reporting section of the preamble to this final rule:
For clarity and consistency, NMFS has reorganized and revised, as applicable, the paragraphs in § 217.315 (Monitoring and reporting requirements).
NMFS updated the process for obtaining NMFS approval for PSO and PAM Operators and have clarified education, training, and experience necessary to obtain NMFS' approval.
NMFS added a requirement to have at least three PSOs on the pile driving vessel and any dedicated PSO vessel (or equivalent coverage) rather than two PSOs, as was originally described in the proposed rule.
Based on the best available science and a recommendation by the Commission, NMFS added a requirement that increases the time that PAM data must be reviewed prior to all UXO/MEC detonations from 1 to 24 hours (except in emergency cases where the 24-hour delay before the detonation occurred would create risk to human safety).
Based on a recommendation by the Commission, NMFS added a requirement that a double big bubble curtain must be placed at a distance that would avoid damage to the nozzle holes during all UXO/MEC detonations. NMFS also added a requirement that a pressure transducer must be used during all UXO/MEC detonations.
Since publishing the proposed rule, Sunrise Wind has finalized their noise attenuation systems. NMFS modified the NAS requirement stating that Sunrise Wind must use a double bubble curtain with AdBm Helmholz resonator during monopile installation and, at minimum, a double bubble curtain during jacket foundation pin pile installation.
Consistent with the requirements included in the Sunrise Wind Biological Opinion, NMFS added additional details regarding complete SFV requirements and added a requirement that abbreviated SFV (consisting of a single recorder with a bottom and mid-water column hydrophone) must be conducted on every foundation for which complete monitoring is not conducted. NMFS also added details regarding SFV reporting requirements. NMFS is now requiring Sunrise Wind to deploy two dedicated PSOs vessels to monitor the clearance and shutdown zones prior to and during impact pile driving installation of monopile foundations. In addition to the three on-duty PSOs on the pile driving platform, three on-duty PSOs must be deployed on each of the dedicated PSO vessels to monitor for marine mammals. Similarly, NMFS is now requiring that Sunrise Wind deploy at least three on-duty PSOs, instead of two on-duty PSOs, on each observation platform for all detonations.
Based on consideration of the Commission recommendation, NMFS has added additional specified reporting requirements for SFV conducted during UXO/MEC detonation and operations and clarified the general SFV reporting metrics to align with the Commission's comments.
Given the new tools that NMFS has made available since publishing the proposed rule, NMFS updated how Sunrise Wind should electronically submit NARW detection (visual and acoustic) reports.
Description of Marine Mammals in the Area of Specified Activities
As noted in the Changes From the Proposed to Final Rule section, since publication of the proposed rule (88 FR 8996, February 10, 2023), updates have been made to the abundance estimate for NARW and the UME summaries of multiple species. These changes are described in detail in the sections below. Otherwise, the Description of Marine Mammals in the Area of Specified Activities section has not changed since the publication of the proposed rule in the
Federal Register
(88 FR 8996, February 10, 2023).
Sections 3 and 4 of Sunrise Wind's application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species (Sunrise Wind, 2021). NMFS fully considered all of this information, and refers the reader to these descriptions in the application. Additional information regarding population trends and threats may be found in NMFS' SARs at:
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 at:
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 and ESA and potential biological removal (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 allowed to be authorized under this rulemaking, 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. All values presented in table 2 are the most recent available data at the time of publication which can be found in NMFS' 2023 draft SARs (Hayes
et al.,
2024), available online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.
BILLING CODE 3510-22-P
ER22MY24.001
ER22MY24.002
BILLING CODE 3510-22-C
Of the marine mammal species and/or stocks with geographic ranges that include the western North Atlantic OCS (table 5 in Sunrise Wind ITA application), 23 are not expected to be present or are considered rare or unexpected in the project area based on sighting and distribution data. Therefore, they are not discussed further beyond the explanation provided here. The following species are not expected to occur in the project area due to the location of preferred habitat outside the project area based on the best scientific information available: Dwarf and pygmy sperm whales (
Kogia sima and K breviceps
), northern bottlenose whale (
hyperoodon ampullatus
), cuvier's beaked whale (
Ziphius cavirostris
), four species of Mesoplodont beaked whales (
Mesoplodon densitostris, M. europaeus, M. mirus, and M. bidens
), killer whale (
Orcinus orca
), false killer whale (
Pseudorca crassidens
), pygmy killer whale (
Feresa attenuate
), short-finned pilot whale (
Globicephalus macrohynchus
), melon-headed whale (
Peponocephala electra
), Fraser's dolphin (
Lagenodelphis hosei
), white-beaked dolphin (
Lagenorhynchus albirotris
), pantropical spotted dolphin (
Stenella attenuata
), Clymene dolphin (
Stenella clymene
), striped dolphin (
Stenella coeruleoalba
), spinner dolphin (
Stenella longirostris
), rough-toothed dolphin (
Steno bredanensis
), and the northern migratory coastal stock of common bottlenose dolphins (
Tursiops truncatus truncatus
). The following species may occur in the project area but at such low densities that take is not
anticipated: hooded seal (
Cystophora cristata
) and harp seal (
Pagophilus groenlandica
).
There are two pilot whale species, long-finned (
Globicephala melas
) and short-finned (
Globicephala macrorhynchus
), with distributions that overlap in the latitudinal range of the Project Area (Hayes
et al.,
2003; Roberts
et al.,
2016). Because it is difficult to differentiate between the two species at sea, sightings, and thus the densities calculated from them, are generally reported together as
Globicephala spp.
(Roberts
et al.,
2016; Hayes
et al.,
2023; Hayes
et al.,
2024). However, based on the best available information, short-finned pilot whales occur in habitats that are both further offshore on the shelf break and further south than the Project Area (Hayes
et al.,
2020). Therefore, NMFS assumes that any take of pilot whales would be of long-finned pilot whales. Similarly, in the Western North Atlantic, there are two morphologically and genetically distinct common bottlenose morphotypes: the Western North Atlantic Northern Migratory Coastal stock and the Western North Atlantic Offshore stock. The Western North Atlantic Offshore stock is primarily distributed along the outer shelf and slope from Georges Bank to Florida during spring and summer and has been observed in the Gulf of Maine during late summer and fall (Hayes
et al.
2020), whereas the Northern Migratory Coastal stock is distributed along the coast between southern Long Island, New York, and Florida (Hayes
et al.
2018). Given their distribution, only the offshore stock is likely to occur in the Project Area and is the only stock included in Sunrise Wind's application.
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 proposed rule (88 FR 8996, February 10, 2023). Since that time, a new draft SAR (Hayes
et al.,
2024) has become available for the NARW. Estimated abundance for the species declined from 368 to 340 and annual M/SI increased from 8.1 to 27.2. This large increase in annual serious injury/mortality is a result of NMFS including undetected annual M/SI in the total annual M/SI. The NARW population remains in decline, as described in the
North Atlantic Right Whale
species section below. NMFS is 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 for these descriptions (88 FR 8996, February 10, 2023).
Since the publication of the proposed rule, the following updates have occurred to the below species in regard to general information or their active UMEs.
North Atlantic Right Whale
In August 2023, NMFS released its draft 2023 SARs, which updated the population estimate (N
best
) of NARW from 368 to 340 individuals and the annual M/SI value from 8.1 to 37.2 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 equal to the North Atlantic Right Whale Consortium's 2022 Annual Report Card, which identifies the population estimate as 340 individuals (Pettis
et al.,
2023). Elevated NARW mortalities have occurred since June 7, 2017, along the U.S. and Canadian coast, with the leading category for the cause of death for this UME determined to be “human interaction,” specifically from entanglements or vessel strikes. Since publication of the proposed rule, the number of animals considered part of the UME has increased. As of April 8, 2024, there have been 39 confirmed mortalities (
i.e.,
dead, stranded, or floaters), 1 pending mortality, and 34 seriously injured free-swimming whales for a total of 74 whales. The UME also considers animals with sublethal injury or illness (
i.e.,
“morbidity”; n=51) bringing the total number of whales in the UME from 71 to 122. More information about the NARW UME is available online at:
https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
Humpback Whale
Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine to Florida. This event was declared a UME in April 2017. Partial or full necropsy examinations have been conducted on approximately half of the 212 known cases (as of January 5, 2024). Of the whales examined (approximately 90), about 40 percent had evidence of human interaction either from vessel strike or entanglement. While a portion of the whales have shown evidence of pre-mortem vessel strike, this finding is not consistent across all whales examined and more research is needed. NOAA is consulting with researchers that are conducting studies on the humpback whale populations, and these efforts may provide information on changes in whale distribution and habitat use that could provide additional insight into how these vessel interactions occurred. More information is available at:
https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
Since December 1, 2022, the number of humpback strandings along the mid-Atlantic coast (from North Carolina to New York) has been elevated. In some cases, the cause of death is not yet known. In others, vessel strike has been deemed the cause of death. As the humpback whale population has grown, they are seen more often in the Mid-Atlantic. These whales may be following their prey (small fish) which were reportedly close to shore in the 2022-2033 winter. Changing distributions of prey impact larger marine species that depend on them and result in changing distribution of whales and other marine life. These prey also attract fish that are targeted by recreational and commercial fishermen, which increases the number of boats and amount of fishing gear in these areas. This nearshore movement increases the potential for anthropogenic interactions, particularly as the increased presence of whales in areas traveled by boats of all sizes increases the risk of vessel strikes.
Minke Whale
Since January 2017, a UME has been declared based on elevated minke whale mortalities detected along the Atlantic coast from Maine through South Carolina. As of January 5, 2024, a t
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