Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Maryland Offshore Wind Project, Offshore of Maryland
Federal RegisterOct 23, 2024
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240917-0242]
RIN 0648-BM32
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Maryland Offshore Wind Project, Offshore of Maryland
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, notification is hereby given that NMFS promulgates regulations to govern the incidental taking of marine mammals incidental to US Wind, Inc. (US Wind) during the construction of an offshore wind energy project (the Project) in Federal and State waters off of Maryland, 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-0490) (referred to as the Lease Area) and along associated export cable routes to sea-to-shore transition points (collectively, the project area), over the course of 5 years (January 1, 2025 through December 31, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during specific construction related activities within the project area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
DATES:
This rule is effective from January 1, 2025, through December 31, 2029.
FOR FURTHER INFORMATION CONTACT:
Jessica Taylor, Office of Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of US Wind's application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
In case of problems accessing these documents, please call the contact listed above (see
FOR FURTHER INFORMATION CONTACT
).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the authority of the MMPA (16 U.S.C. 1361
et seq.
) to authorize the take of marine mammals incidental to construction of the Project within the project area. NMFS received a request from US Wind to incidentally take a small number of marine mammals from 19 species of marine mammals, comprising 20 stocks (5 stocks by Level A harassment and Level B harassment; 15 stocks by Level B harassment only), incidental to US Wind's construction activities. US Wind did not request and NMFS neither anticipates nor allows take by serious injury or mortality incidental to the specified activities in 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). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.
As noted above, US Wind did not request and NMFS neither anticipates nor allows take by serious injury or mortality incidental to the specified activities in 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; 50 CFR 216.3);
•
Incidental Harassment, Incidental Taking and Incidental, but not Intentional, Taking
—an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable or accidental (see 50 CFR 216.103);
•
Serious Injury
—any injury that will likely result in mortality (50 CFR 216.3);
•
Level A harassment
—any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild (16 U.S.C. 1362; 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; 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 this rule containing 5-year regulations and associated LOA. This final rule also establishes required mitigation, monitoring, and reporting requirements for US Wind's construction activities.
Summary of Major Provisions Within the Final Rule
The major provisions within this final rule include:
• 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 on foundation impact pile driving
during December 1-April 30, annually, as well as avoiding foundation impact pile driving in November to the maximum extent practicable to minimize impacts to North Atlantic right whales (
Eubalaena glacialis
);
• Conducting both visual and passive acoustic monitoring (PAM) by trained, NMFS-approved Protected Species Observers (PSO) 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 clearly understood;
• Establishing clearance and shutdown zones for all in-water construction activities and high-resolution geophysical (HRG) marine site characterization surveys 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 if a North Atlantic right whale 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 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 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 HRG marine site characterization survey equipment;
• Requiring various vessel strike avoidance measures;
• Requiring various measures during fisheries monitoring surveys, such as removing gear from the water if marine mammals are considered at-risk or are interacting with gear;
• Requiring regular and situational reporting including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and SFV monitoring results; and
• Requiring monitoring of the North Atlantic right whale sighting networks, Channel 16, and PAM data, as well as reporting any sightings to the NMFS.
Through adaptive management (
see
50 CFR 217.347(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.” A “covered project” under FAST-41 is defined generally as “any activity in the United States that requires authorization or environmental review by a Federal agency involving construction of infrastructure for renewable or conventional energy production” 42 U.S.C. 4370m-(6)(A). The Project, which involves construction of renewable wind energy infrastructure off of Maryland, will provide 300 megawatts (MW) of energy and, upon completion, advance the State of Maryland's renewable energy goals. As such, the Project falls under FAST-41's definition of “covered project.”
FAST-41 includes a suite of provisions designed to expedite the environmental review for covered infrastructure projects, including enhanced interagency coordination as well as milestone tracking on the public-facing Permitting Dashboard. FAST-41 also places a 2-year limitations period on any judicial claim that challenges the validity of a Federal agency decision to issue or deny an authorization for a FAST-41 covered project 42 U.S.C. 4370m-6(a)(1)(A).
The Project is listed on the Permitting Dashboard, where milestones and schedules related to the environmental review and permitting for the Project can be found at
https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/maryland-offshore-wind-project.
Summary of Request
On August 31, 2022, US Wind submitted a request for the promulgation of regulations and issuance of an associated 5-year LOA to take marine mammals incidental to construction activities associated with implementation of the Project offshore of Maryland in the BOEM Lease Area OCS-A 0490 and associated export cable routes. US Wind's request is for the incidental, but not intentional, taking of a small number of 19 marine mammal species (comprising 20 stocks) by Level B harassment (for all 20 stocks) and by Level A harassment (for 5 of the 20 stocks). US Wind did not request, and NMFS does not anticipate, 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 exchanges between US Wind and NMFS, US Wind submitted a final, revised application on March 31, 2023 that NMFS deemed adequate and complete on April 3, 2023. This application is available on NMFS' website at:
https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind.
On May 2, 2023, NMFS published a notice of receipt (NOR) of US Wind's adequate and complete application in the
Federal Register
(88 FR 27463), requesting comments and soliciting information related to US Wind's request during a 30-day public comment period. During the NOR public comment period, NMFS received comment letters from 77 private citizens, 6 non-governmental organizations, and 1 State government organization (Delaware Department of Natural Resources and Environmental Control). NMFS reviewed all submitted material and took these into consideration during the drafting of the proposed rule.
On September 6, 2023 and September 11, 2023, US Wind submitted supplemental information related to its pilot whale and seal take analyses. The corresponding memos, entitled “US Wind NMFS Request for Information (RFI) Response Memo and Maryland Offshore Wind Project Revised Requested Take Tables” are available on our website at
https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind.
On January 4, 2024, NMFS published the proposed rule for the Project in the
Federal Register
(89 FR 504). In the proposed rule, NMFS synthesized all of the information provided by US Wind, all best available scientific information and literature relevant to the 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 January 4, 2024 through February 5, 2024 on
https://Regulations.gov.
A summary of public comments received during this 30-day period are described in the Comments and Responses section; full public comments may be viewed on
https://Regulations.gov.
On August 1, 2022, NMFS announced proposed changes to the existing North Atlantic right whale vessel speed regulations (87 FR 46921) to further reduce the likelihood of mortalities and serious injuries to endangered right whales from vessel collisions, which are a leading cause of the species' decline and a primary factor in an ongoing Unusual Mortality Event (UME). Should a final vessel speed rule be issued and become effective during the effective period of this incidental take authorization (or any other MMPA incidental take authorization), the authorization holder would 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 would be required to comply with the requirements of the rule. Alternatively, where measures in this or any other MMPA authorization are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA authorization would remain in place. The responsibility to comply with the applicable requirements of any vessel speed rule would become effective immediately upon the effective date of any final vessel speed rule and when notice is published on the effective date, NMFS would also notify US Wind if the measures in the speed rule were to supersede any of the measures in the MMPA authorization such that they were no longer required.
Description of Specified Activity
Overview
US Wind plans to construct and operate a wind energy facility, the Project, in the Atlantic Ocean in lease area OCS-A 0490, offshore Maryland. The Project consists of 3 construction campaigns including MarWin, located in the southeastern portion of the Lease Area with the potential to generate approximately 300 megawatts (MW) of energy, Momentum Wind, located immediately west of MarWin with the potential to generate approximately 808 MW of energy, and Future Development, which encompasses buildout of the remainder of the Lease Area and for which generation capacity has yet to be determined (table 1). Once operational, MarWin and Momentum Wind would advance the State of Maryland's renewable energy goals, providing 50 percent of the State's goal by the year 2030, with the full buildout of the Lease Area further achieving renewable energy targets. US Wind also anticipates completing the Future Development campaign within the effective period of the rule.
The Project will consist of several different types of permanent offshore infrastructure, including up to 114 WTGs (
e.g.,
18-MW model with a 250-meter (m) rotor diameter platform), four OSSs, a MET tower, and inter-array and export cables. MarWin will occupy approximately 46.6 square kilometers (km
2
) (11,515 acres), which will include approximately 21 WTGs and 1 OSS. The MarWin campaign, as well as subsequent Momentum Wind and Future Development, includes monopiles as the only potential WTG foundation type. For each campaign, the OSS would be supported by monopiles or jacket foundations with skirt piles. Skirt piles are post-piled pin piles. Jacket foundations are placed on the seabed and pin piles are driven into jacket pile guides, which are known as skirts. Table 1 provides a summary of each construction campaign.
Table 1—US Wind's Anticipated Construction Campaign Schedule
Campaigns
Construction year
Number of
11-m monopiles
for WTGs
Number 3-m pin piles
for OSS jacket
foundations
1
Number of
1.8-m pin
piles for
Met tower
Onshore
export
cables
Offshore
substations
MarWin
1 (2025)
21
4 (1 jacket)
0
4
1
Momentum
2 (2026)
55
8 (2 jackets)
3
0
2
Future Development
3 (2027)
38
4 (1 jacket)
0
0
1
1
Potential OSS foundations could also include monopile and suction bucket jacket foundations.
Strings of WTGs will connect with the OSS via a submarine inter-array cable transmission system. Up to four high-voltage alternating current (HVAC) offshore export cables will be installed during the MarWin campaign, spanning approximately 65-97 (kilometers) km (40-60 miles (mi)) in length, dependent on the location of the OSS and the final routing. The Export Cable Corridor (ECC) will transmit electricity from the OSS to one or two landfall sites in Delaware Seashore State Park.
The second construction campaign, Momentum Wind, will contain approximately 55 WTGs, 2 OSSs, and 1 MET tower within an area of approximately 142.4 km
2
(35,188 acres). The Met tower will be supported by pin pile foundations. During the third construction campaign, Future Development, approximately 38 WTGs and 1 OSS will be installed within an area of approximately 80.3 km
2
(19,843 acres).
US Wind plans to install all monopile or pin pile foundations via impact pile driving. If suction bucket foundations are selected for OSS jacket foundations, impact pile driving would not be necessary. US Wind will also conduct the following supporting activities: temporarily install and subsequently remove gravity cells to connect the offshore export cables to onshore facilities; permanently install scour protection around all foundations; permanently install and perform trenching, laying, and burial activities associated with the export cables from the OSSs to shore-based switching and sub-stations and WTG inter-array cables; and, during years 2 and 3, perform HRG surveys using active acoustic sources with frequencies of less than 180 kilohertz (kHz). To transport crew, supplies, and materials to support construction activities, vessels will transit within the Lease Area, along cable corridors, and between the project area and anticipated ports (Port Norris, NJ; Lewes, DE; Ocean City, MD; Baltimore, MD; Hampton Roads, VA; and Cape Charles, VA).
Up to four offshore export cables will be located among up to two corridors from the OSSs and connect to the planned landfall at either 3R's Beach or Tower Road within Delaware Seashore State Park. When the cables reach the
landfall site, they will be pulled into a cable duct generated by horizontal directional drilling (HDD), which will route the cables under the existing beach to subterranean transition vaults. All offshore cables will be connected to onshore export cables at the sea-to-shore transition point via trenchless installation (
i.e.,
underground tunneling utilizing micro tunnel boring installation methodologies).
Fishery monitoring surveys, performed via recreational boat-based surveys and a pot-based monitoring approach using ropeless gear technology, will be conducted in conjunction with the University of Maryland Center for Environmental Science (UMCES) to enhance existing data for specific benthic and pelagic species of concern.
Dates and Duration
As described above, US Wind will conduct 3 campaigns over 3 years: MarWin, Momentum Wind, and Future Development (table 1). Based on US Wind's planned schedule, the installation of all permanent structures will be completed by the end of November 2027. More specifically, US Wind will install piles only between May 1 and November 30. Also, the installation of WTG foundations and OSS 3-m pin pile jacket foundations will occur during daylight hours between May 1 and November 30 of 2025, 2026, and 2027 (table 2); however, NMFS would allow nighttime pile driving if US Wind submits, and NMFS approves, an Alternative Monitoring Plan, as discussed below. The single Met tower foundation will be installed in 2026 (table 2). US Wind anticipates HRG surveys using sparkers and boomers to occur during 2026 and 2027. Up to 14 days of HRG survey activity are planned from April through June 2026 during the Momentum campaign. In addition, up to 14 days of HRG survey activity are planned from April through June 2027 during the Future Development campaign. Currently, US Wind is not planning to conduct activities that have the potential to result in take in 2028 and 2029. However, while table 2 represents US Wind's current schedule, NMFS recognizes the potential for activity schedules to shift such that they could occur during different timeframes within the five year effective period of this rule.
Table 2—US Wind's Anticipated Construction and Operations Schedule During the Effective Period of the LOA
1
Project activity
Construction campaign
Expected timing
2
Expected duration
(approximate)
Scour Protection Pre-Installation
MarWin
Year 1: Q2 through Q3 of 2025
21 days.
Momentum Wind
Year 2: Q2 through Q3 of 2026
55 days.
Future Development
Year 3: Q2 through Q3 of 2027
38 days.
WTG Foundation Installation
3
5
MarWin
Year 1: June through September of 2025
21 days.
Momentum Wind
Year 2: May through August of 2026
55 days.
Future Development
Year 3: June through August of 2027
38 days.
Scour protection post-installation
MarWin
Year 1: Q2 through Q3 of 2025
42 days.
Momentum Wind
Year 2: Q2 through Q3 of 2026
110 days.
Future Development
Year 3: Q2 through Q3 of 2027
76 days.
OSS Foundation installation
3
5
MarWin
Year 1: July of 2025
1 day.
Momentum Wind
Year 2: July of 2026
2 days.
Future Development
Year 3: July of 2027
1 day.
Met Tower installation
3
4
Momentum Wind
Year 2: June of 2026
1 day.
HRG surveys
5
Momentum Wind
Year 2: Q2 through Q3 of 2026
14 days.
Future Development
Year 3: Q2 through Q3 of 2027
14 days.
Site preparation
n/a
Not anticipated
n/a.
Inter-array cable installation
MarWin
Year 1: Q2 through Q4 of 2025
42 days.
Momentum Wind
Year 2: Q2 through Q4 of 2026
110 days.
Future Development
Year 3: Q2 through Q4 of 2027
76 days.
Export cable installation
MarWin
Year 1: Q1 through Q4 of 2025
60 days.
Momentum Wind
Year 2: Q1 through Q4 of 2026
120 days (2 cables).
Future Development
Year 3: Q1 through Q4 of 2027
60 days.
Fishery monitoring surveys
MarWin
Momentum Wind
Future Development
Q1 through Q4 Years 1-5
16 days/year for commercial pot surveys.
12 days/year for recreational surveys.
1
Currently, US Wind is not planning to conduct activities that have the potential to result in take in 2028 and 2029. However, while table 2 represents US Wind's current schedule, NMFS recognizes the potential for activity schedules to shift such that they could occur during different timeframes within the five year effective period of this rule.
2
Installation timing will depend on vessel availability, contractor selection, weather, and more. Year 1 is anticipated to be 2025, year 2 to be 2026, and year 3 to be 2027, although these are subject to change per the factors identified.
Note:
“Q1, Q2, Q3, and Q4” each refer to a quarter of the year, starting in January and comprising 3 months each. Therefore, Q1 represents January through March, Q2 represents April through June, Q3 represents July through September, and Q4 represents October through December.
3
The months identified here represent US Wind's planned schedule; however, in case of unanticipated delays, foundation installation may occur between May 1 and November 30 annually.
4
US Wind anticipates that all WTGs, OSS, and Met tower foundations will be installed by November 30, 2027; however, unanticipated delays may require some foundation pile driving to occur in years 4 (2028) or 5 (2029).
5
Represents HRG surveys that may result in take of marine mammals. US Wind plans to conduct HRG surveys that are not expected to result in take of marine mammals during Q2 through Q3 of year 1 given those surveys would utilize equipment all operating over 180kHz or have no acoustic output.
Specified Geographic Region
A detailed description of the Specific Geographic Region, identified as the Mid-Atlantic Bight, is provided in the proposed rule (89 FR 504, January 4, 2024). Since the proposed rule was published, no changes have been made to the Specified Geographic Region. Generally, US Wind's specified activities (
i.e.,
impact pile driving of monopile and jacket foundations; placement of scour protection; trenching, laying, and burial activities associated with the installation of the ECRs and inter-array cables; HRG site characterization surveys; and WTG operation) are concentrated in the Lease Area and ECRs offshore of Maryland. However, vessel transit from ports as far south as Virginia and as far north as New Jersey are anticipated.
BILLING CODE 3510-22-P
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Comments and Responses
NMFS published a proposed rule in the
Federal Register
on January 4, 2024 (89 FR 504) for a 30-day public comment period. The proposed rule described, in detail, US 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, we requested that interested persons submit relevant information, suggestions, and comments on US 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 114 comment submissions, including from the Marine Mammal Commission (Commission), Delaware Department of Natural Resources (DDNC), Town of Fenwick Island, several non-governmental organizations, and individual 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 (
e.g.,
birds and horseshoe crabs) methods for conducting site condition identification, support for the proposed rule and the Project, concern for energy distribution and power from the Project, beach erosion and flooding, critique of the Maryland offshore wind congressional hearing held in January 2024), and are not described herein or discussed further. Non-governmental organizations included: Caesar Rodney Institute (CRI), Town of Fenwick Island (TFI), Wrecker Sportfishing, Deep Sea Defenders, and Tower Shore Beach Association. We have responded to all comments that contained substantive information and considered that information 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.
Modeling and Take Estimates
Comment 1:
The Commission notes that, based upon SFV reports,
discrepancies exist between modeled and measured Level A harassment and Level B harassment zones. The Commission indicates that these discrepancies may be related to actual installation conditions and should be accounted for in the estimation of harassment zones, authorized number of takes, and mitigation, monitoring, and reporting requirements for the Maryland Wind Offshore Wind Project. The Commission recommends that NMFS provide the interim and/or final SFV reports for South Fork and Vineyard Wind 1 and allow for another 30-day public comment period for the Maryland Wind proposed rule before issuing a final rule.
Response:
Based on the discussion below and given our consideration of the best available scientific information, including available sound field verification (SFV) reports from other offshore wind construction projects in the United States, we disagree with the suggestions made by the Commission. The Commission has expressed concerns about the lack of validation of source models in previous Commission letters. Since the proposed rule was published, NMFS has received interim/final sound field verification reports from the South Fork Wind project. In all but one case, the measured distances to NMFS' Level B harassment threshold were lower than the model predicted. The distance to NMFS' Level B harassment threshold for the South Fork project was modeled as 4.68 kilometers (km) while in-situ measurements identified distances ranging from 1.84 km to 3.25 km. MAI's modeling predicts the distances to the Level B harassment threshold during installation of the Maryland Wind 11-m monopiles will be approximately 5.25 km which is less than 1 km larger than South Fork's modeled distance. We note that South Fork determined that 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 public comment period ended on the proposed rule, NMFS has also received SFV reports from Vineyard Wind 1. 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 VW measured results directly to the modeled results, although the modeled distances to the Level A harassment threshold were larger (the largest modeled distance to the Level A harassment threshold was for low-frequency cetaceans at 3.191 km) than distances to the Level A harassment threshold measured by SFV. The final SFV report for the 2023 construction of the Vineyard Wind 1 Offshore Wind Project is currently posted on our website (
https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-llc-construction-vineyard-wind-offshore-wind
).
Importantly, in this final rule, should SFV results reveal noise levels are louder than those predicted assuming 10 dB attenuation, NMFS is requiring US Wind to implement additional measures to reduce sound levels such that they do not exceed those modeled assuming 10 dB. US Wind is required to conduct either thorough or abbreviated monitoring on all foundation piles installed.
NMFS has incorporated the best available scientific information into this final rule, using recent measurements as well as estimates obtained through modeling. In regards to the Commission's comment recommending another 30-day comment period for the proposed rule, NMFS disagrees with this recommendation and has determined that one 30-day comment period for the proposed rule is sufficient under the MMPA. The MMPA requires notice and opportunity for public comment. The 30-day public comment period for the Maryland Offshore Wind Project proposed rule was open to the public from January 4, 2024 through February 5, 2024. NMFS fulfilled the requirements of the MMPA by providing notice in the
Federal Register
and opportunity for public comment on this proposed rule.
Comment 2:
The Caesar Rodney Institute (CRI) notes that NMFS has not established a standard version of estimated population abundances that should be used when evaluating ITA requests. CRI indicates that North Atlantic right whale best population abundance estimates vary between projects, ranging from 338 North Atlantic right whales (for the proposed Maryland Wind Offshore Wind Project proposed rule (89 FR 504, January 4, 2024)) to 346 and 394 North Atlantic right whales (for other projects). The CRI recommends that NMFS establish a North Atlantic right whale population abundance to be used in all applications, as well as a maximum allowed estimated population density for the months for which construction would take place.
Response:
The MMPA and its implementing regulations require that incidental take regulations be established based on the best available information. The dynamic nature of population science dictates that rulemakings will not be using the same population numbers from year to year. 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 North Atlantic right whale population abundance is estimated as 340 individuals based on sighting data through December 31, 2021 (88 FR 5495, January 29, 2024). NMFS has used the most recent 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 North Atlantic right whale Report Card (Pettis
et al.,
2022) estimate (also 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 North Atlantic right whales, including the information cited by the commenters. However, NMFS has relied on the draft 2023 SAR in this final rule as it reflects the best available scientific information.
We note that this change in abundance estimate does not change the estimated take of North Atlantic right whales or authorized take numbers, nor affect our ability to make the required findings under the MMPA for US Wind's construction activities.
While NMFS does not require applicants to utilize specific models for the purposes of estimating take incidental to offshore wind construction activities, we evaluate 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.
Mitigation
Comment 3:
Multiple commenters recommend strengthening mitigation measures for endangered species to minimize take by Level A harassment, specifically indicating that shutdown zones required by the proposed rule for fin and sei whales should be expanded to encompass the distance to the Level A harassment thresholds. One commenter stated that, legally, no take of endangered species by Level A harassment should be allowed.
Response:
NMFS agrees with the commenters that take of endangered species, such as fin and sei whales, by Level A harassment should be minimized. As such, the shutdown zones for fin and sei whales encompass the modeled maximum R
95percent
distance to the Level A harassment threshold from the pile driving location, as described in the Mitigation section of this final rule. 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. This rule allows a limited number of Level A harassment takes to be authorized for two ESA-listed species (fin whale and sei whale) incidental to foundation impact pile driving (table 6). We note 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 North Atlantic right whales because of the species status and general fitness of individuals.
If clearance and shutdown zones were increased for fin and sei whales, it would likely further lengthen 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). Southall et al. (2021) modeled multiple scenarios with different total construction season lengths and the results suggest that generally shorter construction periods are associated with lower risk, which aligns with the concept that more days of noise exposure and disturbance are associated with greater impacts. 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. Lastly, regarding the comment that no Level A harassment of ESA-listed species should be authorized—the MMPA mandates that NMFS shall authorize the take of marine mammals, provided the required findings are made. As required, NMFS has determined that the Level A and Level B harassment allowed under this rule will have a negligible impact on all marine mammal species and stocks and that the required measures affect the least practicable adverse impact on marine mammal species or stocks.
Comment 4:
A commenter suggests that it should be clearly stated in the proposed rule that US Wind should be responsible for prompt veterinary care, rehabilitation, and/or handling of any mortally wounded marine mammals incidentally taken during the proposed activities.
Response:
No serious injury or mortality is anticipated or authorized for US Wind's planned activities. In the event of sighting any injured marine mammals, US Wind would be required to follow reporting measures as described in the Reporting section and 217.345(f)(15)(iv), which include contacting the regional stranding hotline. Further, it would not be appropriate to require US Wind to be responsible for veterinary care, rehabilitation, and/or handling of any marine mammal injury or stranding cases.
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 there is no evidence linking recent large whale mortalities and currently ongoing offshore wind activities. This point has been well supported by other agencies, including BOEM and the Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring 2023). If the best available 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.
If a marine mammal appears to be injured or strands nearby during construction activities, the Marine Mammal Health and Stranding Response Program (MMHSRP), established by the MMPA, would be responsible for mobilizing a response, if and where appropriate. This program 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 also 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.
Any strandings or marine mammals in need of care that occur in the vicinity of the Project Area during the specified activities would be the responsibility of the local stranding and/or entanglement network authorized by the MMHSRP.
Comment 5:
The DNREC recommends extending the seasonal restriction on impact pile driving to November 1 through April 30, a time period reflecting highest activity levels of North Atlantic right whales, to reduce risk to North Atlantic right whales.
Response:
NMFS has restricted foundation installation pile driving from December through April, a time period which represents the times of year when North Atlantic right whales are most likely to be in the project area. However, we recognize that the density of North Atlantic right whales begins to elevate in November, as shown by Roberts et al. (2023). US Wind's planned pile driving activity schedule does not include pile driving in November. However, a limited amount of pile driving in November may occur if the Project experiences significant delays. Should pile driving in November be necessary, US Wind has agreed to restrict pile driving to the maximum extent practicable. In any time of year when foundation installation is occurring, a visual sighting of a North Atlantic right whale by foundation installation PSOs or an acoustic detection within a 10 km PAM monitoring zone triggers a delay in pile driving commencement or shutdown. These mitigation measures
are designed to reduce takes of North Atlantic right whales to the maximum extent possible.
NMFS neither anticipates nor authorizes take of North Atlantic right whales by Level A harassment (PTS) from this activity. While NMFS is authorizing a total of 10 takes by Level B harassment of North Atlantic right whales incidental to any Project activities over the 5-year effective period of this rulemaking, the required mitigation will affect the least practicable adverse impact on the species from these activities. Specifically, the largest modeled Level B harassment zone size (5.25 km) is for impact pile driving of the 11-m monopiles, however the clearance and shutdown zone for North Atlantic right whales for impact pile driving is any distance. Any Level B harassment that is not avoided is not expected to impact important feeding or other behaviors that may occur in the Project Area in a manner that would pose energetic or reproductive risks for any individuals. NMFS also notes that North Atlantic right whale presence, while not completely absent, decreases significantly during summer months as compared to winter when the majority of foundation installation would occur. For these reasons, NMFS finds that expanded temporal restrictions are not warranted.
Comment 6:
DNREC suggests that NMFS should require US Wind to maintain the 500-meter separation distance for North Atlantic right whales for all in-water construction activities, including activities for which take is not requested. The commenters further note that increased noise levels may increase stress in North Atlantic right whales, and the commenters, as well as the Caesar Rodney Institute, recommend that NMFS should not approve any offshore wind activities that may further impact North Atlantic right whales.
Response:
NMFS disagrees with the commenter's suggestion for requiring a 500-m separation distance for North Atlantic right whales for all in-water construction activities. The required vessel separation distance from North Atlantic right whales during vessel transit and HRG surveys is 500 m, and the North Atlantic right whale clearance and shutdown zones are “any distance” for impact pile driving activities, exceeding the Level B harassment zone of 5.25 km and further reducing the likelihood of harassment for North Atlantic right whales in the area. As noted by the commenter, NMFS will require US Wind to cease activities in response to any marine mammal on a path toward or that comes within 10 m of in-water construction equipment involving heavy machinery other than pile driving (
e.g.,
trenching, cable laying, etc.). These non-pile driving in-water construction operations are relatively low impact (take is not anticipated or authorized) and the goal of the 10 m separation distance is to prevent contact between marine mammals and heavy construction equipment, rather than to limit exposure to noise. NMFS has determined that an increase in the shutdown distance for these in-water construction operations involving heavy equipment and not anticipated to result in incidental take is not necessary to affect the least practicable adverse impact.
The commenters' recommendation for NMFS to not approve offshore wind activities that may impact North Atlantic right whales is outside the scope of this final rule as NMFS does not approve offshore wind activities; NMFS only authorizes take of marine mammals incidental to these activities. 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 geographical 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)). As described in the proposed rule and this final rule, NMFS has included requirements for mitigation measures that effect the least practicable adverse impact on all marine mammal species or stocks, including North Atlantic right whales, and their habitat, as required under the MMPA (16 U.S.C. 1371(a)(5)(A)(i)(II).
Comment 7:
Commenters note that there is a higher potential of vessel strikes as whales may respond to noise harassment by leaving or avoiding the Lease Area and moving into high traffic shipping lanes. The commenters further note that avoidance of the Project Area may increase stress and confusion for whales, resulting in an increased potential for vessel strikes and entanglement.
Response:
NMFS disagrees that there is necessarily a higher potential for vessel strikes specifically due to whales leaving the area to avoid noise from project activities. NMFS analyzed the potential for vessel strike in the proposed rule. While acknowledging that whales may temporarily avoid the area where the specified activities occur and that elevated stress levels is a potential response to noise exposure, NMFS does not anticipate, based on the best available science, that whales will abandon their habitat, be displaced in a manner that would specifically result in a higher risk of vessel strike, or become confused in a manner that would specifically result in a higher risk of vessel strike. The commenter does not provide evidence and no evidence identified by NMFS has found that this would 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. Further, not only would this activity be limited to times of year when North Atlantic right whale presence is low, pile driving would be intermittent, and pile driving would only occur for a limited time over the course of three years, with PSOs monitoring both visual and acoustic cues. Any sighting of a North Atlantic right whale within any distance from pile driving activities would immediately halt such activity until the North Atlantic right whale left the area of their own volition.
Comment 8:
DNREC indicates proper site condition identification should be conducted to minimize the need for US Wind to waive the shutdown requirement for pile refusal or pile instability purposes. DNREC further notes that HRG micro-siting surveys should be used to identify any seabed debris, unexploded ordnances, or other substrate conditions that could negatively impact pile driving operations.
Response:
The need to waive the shutdown requirement due to pile refusal is expected to be low. However, regardless, additional surveying to assess the likelihood of pile refusal in advance would not change the need to waive the shutdown if necessary for human safety or to avoid equipment damage. Regarding the detection of unexploded ordnance, US Wind plans to conduct HRG micrositing surveys to identify potential UXOs for avoidance of Project activities. US Wind has provided the information necessary for NMFS to conduct its analysis and make the necessary determinations, and additional survey requirements are not warranted.
Monitoring, Reporting, and Adaptive Management
Comment 9:
The Commission recommends that NMFS ensure that the mitigation, monitoring, and reporting requirements for the construction of wind energy facilities are sufficiently detailed from the start and specified in the proposed rule so that these measures
are available for public comment. The Commission indicates that by not requiring US Wind to include mitigation and monitoring plans for the specified activities as part of the proposed rule, NMFS is not able to assess whether US Wind would be able to successfully implement mitigation measures adequate to effect the least practicable adverse impact on marine mammal species and the transparency of the public review process is compromised. The Commission suggests that US Wind submit the SFV plan, foundation pile driving plan, and PAM plan to NMFS for approval in advance of promulgating the final rule, and NMFS should post these plans for public comment. In particular, the Commission indicates that NMFS include the number of platforms that would be required to monitor for marine mammals during foundation installation.
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 details to NMFS on how they would satisfy the criteria identified in the rule. These criteria are available for public review and comment.
In regards to the Commission's recommendation to include a requirement for the number of monitoring platforms during foundation installation, NMFS has added a requirement to the final rule at § 217.345 Monitoring and Reporting Requirements for a minimum of 3 monitoring platforms during foundation installation. US Wind will be required to employ a minimum of 3 active PSOs monitoring from the foundation installation vessel as well as a minimum of 3 active PSOs monitoring from PSO vessels. US Wind must employ at least two PSO vessels for monitoring during foundation installation.
Comment 10:
A commenter recommends that the monitoring area should be expanded beyond the 125 square mile (80,000 acres) Maryland Wind Energy Area (MDWEA) to ensure that project activities can be halted in time for animals to pass through the area unharmed. The commenter further notes that the monitoring area should be expanded before any decisions are made.
Response:
NMFS disagrees with the commenter that the planned monitoring area should be expanded beyond the boundaries of the MDWEA. As described in the proposed rule and this final rule, NMFS is requiring that US Wind employ both visual and PAM methods for monitoring, as both approaches aid and complement each other (Van Parijs
et al.,
2021). The use of PAM will augment visual detections for foundation pile driving, especially for activities with the largest zones, to expand observer coverage of the area. NMFS is requiring the use of PAM to monitor 10 km zones around the piles and that the systems be capable of detecting marine mammals during pile driving within this zone. In addition, NMFS is requiring US Wind to establish species-specific clearance and shutdown zones during impact pile driving and HRG surveys. The purpose of clearance and shutdown zones are to minimize and prevent potential instances of auditory injury and more severe behavioral disturbances by delaying the commencement of activity or halting the activity. NMFS has determined that the planned suite of mitigation and monitoring measures described in the proposed rule and this final rule are sufficient to effect the least practicable adverse impact on marine mammal species in the project area.
Effects Assessment
Comment 11:
Multiple commenters note that the LOA should not be issued until the cumulative effects of all proposed projects are fully considered. Commenters further indicate that the MMPA rulemaking does not assess cumulative impacts on the affected marine mammal species, that the ITA does not align with NEPA, and that the NEPA process is incomplete. Commenters further indicate that the ITA should not be issued until the EIS is complete.
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 geographical region will have a negligible impact on such species or stock and, where applicable, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses (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 MMPA section 101(a)(5). NMFS considers: (1) cumulative effects that are reasonably foreseeable when preparing a National Environmental Policy Act (NEPA) analysis; and (2) reasonably foreseeable cumulative effects under section 7 of the ESA for ESA-listed species, as appropriate. Accordingly, NMFS has reviewed BOEM's FEIS as part of its inter-agency coordination and determined that the analysis in the FEIS for the Maryland Wind Offshore Wind Project is sufficient to cover the scope of the marine mammal incidental take authorization described in this final rule.
This FEIS addresses cumulative impacts related to the Project and substantially similar activities in similar locations. Cumulative impacts regarding the promulgation of regulations and issuance of an LOA for activities planned by US Wind have been adequately addressed in the adopted EIS that supports NMFS' determination that this action has been appropriately analyzed under NEPA. Separately, the cumulative effects of the Project on ESA-listed species, including the North Atlantic right whale, were analyzed under section 7 of the ESA when NMFS engaged in formal inter-agency consultation with the NOAA Greater Atlantic Regional Field Office (GARFO) and initiated consultation on December 5, 2023. The Biological Opinion (BiOp) for the Project determined that NMFS' promulgation of regulations and issuance of an LOA for activities, individually and cumulatively, are likely to adversely affect, but not jeopardize, listed marine mammals.
The FEIS was finalized by BOEM on August 2, 2024 and adopted by NMFS on September 4, 2024, thus completing the NEPA process.
Comment 12:
Multiple commenters recommend that 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. A commenter noted that
analysis of incidental take during wind turbine operation is insufficient. Commenters indicate that NMFS should consider the impacts of operational noise on marine mammals since construction and operation will proceed simultaneously, and actual take from construction may be masked by any take related to operational noise. Commenters further suggest the LOA should include a full analysis of impacts of operational noise and recommend that offshore wind energy projects be pushed back a minimum of 20 kilometers (km) from areas used by North Atlantic right whales for feeding and other life history activities.
Response:
In the proposed rule, NMFS considered the impacts to marine mammals from operational noise and to their habitat, including prey, 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 commenters did not provide scientific evidence that suggests the analysis within the proposed rule was unsupported. NMFS has fully evaluated the potential impacts of operational noise from issuing this final rule authorizing take of marine mammals over the five year effective period of this rulemaking and the potential impacts from long-term operations via the BiOp. We refer 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 this final rule for further details. In addition, US Wind will be required to use sound field verification (SFV) for measuring operational noise as wind turbines become operational to further evaluate the impacts of operational noise on marine mammals and their habitat.
In regards to moving the Project a minimum of 20 km away from North Atlantic right whale habitat, NMFS disagrees with this recommendation. As noted in the proposed rule, the Project Area overlaps with a North Atlantic right whale biologically important area (BIA) for migration but not with any feeding, breeding, or calving areas. The area over which North Atlantic right whales may be harassed is relatively small compared to the width of the migratory corridor. The width of the migratory corridor in this area is approximately 163.8 km while the width of the Lease Area, at the longest point, is approximately 33.1 km. North Atlantic right whales may be displaced from their normal path and preferred habitat in the immediate activity area (primarily from pile driving activities), however, we do not anticipate displacement to be of high magnitude (
e.g.,
beyond a few kilometers); thereby, any associated bio-energetic expenditure is anticipated to be small.
Comment 13:
Several commenters claimed the request for an ITA should be denied alleging the specified activities kill as well as harm 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 activities. One commenter further claimed that although “the recent deaths and strandings of whales and other marine mammals along the eastern seaboard have not been proven to be the direct result of offshore wind activities, these activities have not been disproven as a contributing factor.”
Response:
NMFS disagrees that the ITA should be denied, as we have made the necessary findings required by the MMPA for issuance and these findings are supported by the necessary analyses and best available science. 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 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). Additionally, a recent paper by Thorne and Wiley (2024) reviewed spatiotemporal patterns of strandings, mortalities, and serious injuries of humpback whales along the US East Coast from 2016-2022. Humpback whales were chosen as a case study for this analysis as they are currently undergoing a UME and strand more often than other large whale species. Thorne and Wiley (2024) found vessel strikes to be a major driver in the increase of humpback whale strandings, mortalities, and serious injury along the east coast. The potential for vessel strike increased during the study period due to increased vessel traffic in new foraging areas, the increased presence of juvenile humpback whales, and humpback whale foraging in shallow areas that overlap with vessel traffic. Based upon the spatiotemporal analysis, no evidence was found that offshore wind development played a role in the increased number of strandings over time. Future studies should focus on gaining a greater understanding of spatial and seasonal habitat use patterns of large whales, spatiotemporal changes in prey abundance and distribution, and how habitat use and foraging behavior affect the risk of vessel strike. While several species of delphinids and beaked whales have also stranded off New Jersey since 2011 (per data provided from the National Marine Stranding Network), there is no evidence that the acoustic sources used during HRG surveys contributed to these events. NMFS will continue to gather data to help us determine the cause of death for these stranded whales.
There are ongoing UMEs for humpback whales, North Atlantic right whales, and minke whales along the Atlantic coast from Maine to Florida, which includes animals stranded since 2016 and 2017, respectively, and we provide further information on these UMEs in the species specific subsections in the Description of Marine Mammals in the Specific Geographic Region section of this final rule. Vessel strikes and entanglement in fishing gear are the greatest human threats to large whales. Partial or full necropsy examinations were conducted on approximately half of the humpback 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 humpback whales examined (roughly 90), about 40 percent had evidence of human interaction, either ship strike or entanglement. Based upon necropsies conducted thus far, the preliminary cause of mortality, serious injury, and morbidity in stranded North Atlantic right whales is entanglement or vessel strike. Full or partial necropsies have been conducted on approximately 60 percent of the stranded minke whales. Preliminary findings have shown evidence of human interaction or infectious disease. The best available science indicates that only a limited
amount of Level A harassment (PTS) or Level B harassment (disruption of behavioral patterns (
e.g.,
avoidance)), may occur as a result of US Wind's specified activities. NMFS emphasizes that there is no credible scientific evidence available suggesting that mortality and/or serious injury is a potential outcome of the planned activities. 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.
Other
Comment 14:
Multiple commenters note that more data are needed on the impact of wind turbine construction and operation on marine mammals, and that projects should be paused until these data are available. Commenters also recommend collecting sound level measurements on similar turbines, such as Vineyard Wind 1 Offshore Wind Farm, to inform the proposed rulemaking and LOA.
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. 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, as described in § 217.347c(1) of this final rule. 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 issuance of the final rule and made the required findings to issue this rule.
NMFS also 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. As mentioned above, since the publication of the proposed rule NMFS has received SFV reports from Vineyard Wind 1 that, although challenging, allow for comparison between modeled and measured distances to the Level A harassment and Level B harassment thresholds. These results are available on our website at:
https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-llc-construction-vineyard-wind-offshore-wind.
Comment 15:
A commenter states that NMFS' review of the ITA application was incomplete and the ITA should be denied. Another commenter further states that approval of the ITA would be a “dereliction of duty” and does not align with NOAA's mission.
Response:
NMFS disagrees with the commenter that the ITA should be denied. NOAA's stewardship mission includes our responsibility to uphold and implement the provisions of multiple federal statutes designed to protect environmental resources, including the MMPA. The MMPA allows for the incidental take of marine mammals provided the necessary findings are made. As described in this
Federal Register
notice, NMFS has conducted the necessary analysis to support our negligible impact finding. In addition, we have required mitigation to ensure the least practicable adverse impact on marine mammals and their habitat. We have also included monitoring and reporting requirements to monitor compliance and impacts to marine mammals.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the
Federal Register
on January 4, 2024 (89 FR 504), NMFS has made changes, where appropriate, that are reflected in the preamble text of this final rule and 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. In addition, reporting requirements on marine mammals have been updated in accordance with Greater Atlantic Regional Fisheries Office (GARFO), Southeast Regional Office (SERO), and the Northeast Fisheries Science Center (NEFSC) most recent guidance.
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 Specific Geographic Region section of the preamble to this final rule:
Given the release of NMFS' draft 2023 Stock Assessment Report (SAR) (89 FR 5495, January 29, 2024), we have updated the population estimate for the North Atlantic right whale (
Eubalaena glacialis
) from 368 to 340 and the total mortality/serious injury (M/SI) amount from 8.1 to 27.2. This increase is due to the inclusion of undetected M/SI (whereas 8.1 accounted only for detected M/SI). As described in the draft 2023 SARs (89 FR 5495, January 29, 2024), the use of the refined methods of Pace
et al.
(2021), the estimated annual rate of total mortality of adults and juveniles for the period 2016-2020 was 27.2, which is 3.4 times larger than the 8.1 total derived from reported mortality and serious injury for the same period.
Given the availability of new information, we have made updates to the UME summaries for North Atlantic right whales, humpback whales, and minke whales.
The following change is reflected in the Potential Effects of Specified Activities on Marine Mammals and Their Habitat section of the preamble to this final rule:
We have added information relating to the broken blade at the Vineyard Wind 1 Lease Area, the rarity of this event occurring, and that no take was requested, anticipated, proposed, or authorized incidental to blade failure so this is not discussed further in this document.
The following changes are reflected in the Estimated Take, Mitigation, and Monitoring and Reporting sections of the preamble to this final rule:
This final rule requires US Wind to employ a minimum of three monitoring platforms, including the pile driving vessel platform and a minimum of two PSO support vessels. Each platform must employ a minimum of three active on-duty PSOs.
We have also added a requirement for US Wind to cease pile driving activities if there is a live cetacean stranding within 50 km of pile driving activities and the NMFS Marine Mammal Stranding Network is attempting to herd or return animals to the water.
The requirement for PAM operators to receive conditional or unconditional approval was removed as the PAM operators' experience is relevant to all PAM operators and the conditional/unconditional approval framework does not apply.
The educational requirement for PSOs and PAM operators to have received a bachelor's degree from “an accredited college or university” has been removed. PSOs and PAM operators are still required to have received a bachelor's degree, although experience can still be substituted for education.
The requirement for submission of PAM detection data to the NEFSC has been updated due to a change in NEFSC reporting requirements. US Wind must submit full PAM detection data within 90 days after pile driving is complete and every 90-calendar days for transit lane PAM.
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.
We have removed duplicative measures and, for clarity and consistency, we revised paragraph § 217.340(b) of the regulatory text to fully describe the specified geographical region.
We have modified a proposed measure that set hammer energy guidelines during foundation and MET Tower installation to allow greater flexibility in response to the circumstances of the particular installation. We have retained the measures related to actions necessary should SFV identify that distances to NMFS harassment thresholds, regardless of hammer energies, are longer than anticipated.
For consistency, NMFS has included conditions in § 217.344(a) to clarify mitigation requirements discussed in the preamble. The conditions for commencing pile driving and HRG survey activities are clarified.
NMFS has added additional clarification on the authority of PSOs and PAM operators in § 217.344(a) to ensure compliance and proper implementation of the regulations.
NMFS has clarified language in § 217.344(b) to specify that this measure applies to vessels traveling in the specified geographical region and when Project vessels may deviate from vessel speed avoidance measures. NMFS has also defined the term “emergency” for clarity.
In § 217.344(b)(1), (11), and (12), § 217.344(c)(10), and (15), § 217.344(d)(2), § 217.345(a)(2), and (4), § 217.345(b)(2), (4), (8), and (9), NMFS has made minor changes to formatting and wording to more clearly state the requirements.
NMFS has added a requirement for all vessel operators to reduce speed to 10 knots (kn) or less when any large whale (other than a North Atlantic right whale, for which the requirement was already included) or large assemblages of cetaceans are observed within 500 m (0.31 mi) of a transiting vessel in § 217.344(b).
To align with the BiOp, NMFS has modified thorough SFV requirements (§ 217.344) and added a requirement for US Wind to conduct abbreviated SFV monitoring during pile driving activities in § 217.344(c).
NMFS has updated the requirement for US Wind to conduct SFV measurements during turbine operations instead of upon the commencement of turbine operations in § 217.344(c)(16).
In § 217.345(a), NMFS has updated the requirements for PSO and PAM operator qualifications. The requirement for PAM operators to receive conditional or unconditional approval was removed because all PAM operators are subject to a list of qualifications presented in the proposed rule and do not need to obtain conditional or unconditional approval. In addition, the educational requirement for PSOs and PAM operators to receive their bachelor's degrees from an accredited college or university has been removed, although PSOs and PAM operators are still required to have received a bachelor's degree, although experience can still be substituted for education.
In § 217.345(b)(7), NMFS has added a requirement for visual observations of marine mammals by pile driving Project personnel to be reported to on-duty PSOs and vessel captains to increase situational awareness.
In response to comments and to improve detection capabilities, NMFS has added a requirement for a minimum of 3 PSOs to be on-duty on each observation platform during impact pile driving and that, in addition to PSOs on the pile driving vessel, PSOs must also be observing for marine mammals on two dedicated PSO vessels.
In § 271.345(f)(6), NMFS has updated the requirement for reporting PAM detection data due to a change in NEFSC reporting requirements. US Wind must submit full PAM detection data within 90 days after foundation installation ceases.
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 (89 FR 504, January 4, 2024), updates have been made to the abundance estimate for North Atlantic right whales 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 Specific Geographic Region section has not changed since the publication of the proposed rule in the
Federal Register
(89 FR 504, January 4, 2024).
Thirty-eight marine mammal species under NMFS' jurisdiction have geographic ranges within the western North Atlantic OCS (Hayes
et al.,
2023). Sections 3 and 4 of US Wind's application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species (US Wind, 2023). Additional information regarding population trends and threats may be found in NMFS' SARs (
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments
) and more general information about these species (
e.g.,
physical and behavioral descriptions) may be found on NMFS' website (
https://www.fisheries.noaa.gov/find-species
).
Table 3 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 authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats. Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in table 3 are the most recent available data at the time of publication which can be found in NMFS' 2023 draft SARs (89 FR 5495, January 29, 2024), available online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.
Table 3—Marine Mammal Species That May Occur in the Project Area and Be Taken, by Harassment
Common name
1
Scientific name
Stock
ESA/
MMPA
status;
strategic
(Y/N)
2
Stock abundance
(
CV,
N
min
, most recent
abundance survey)
3
PBR
Annual
M/SI
4
Order Artiodactyla—Cetacea—Mysticeti (baleen whales)
Family Balaenidae:
North Atlantic right whale
Eubalaena glacialis
Western Atlantic
E, D, Y
340 (0; 337; 2021)
5
0.7
5
27.2
Family Balaenopteridae (rorquals):
Fin whale
Balaenoptera physalus
Western North Atlantic
E, D, Y
6,802 (0.24, 5,573, 2021)
11
2.05
Sei whale
Balaenoptera borealis
Nova Scotia
E, D, Y
6,292 (1.02, 3098, 2021)
6.2
0.6
Minke whale
Balaenoptera acutorostrata
Canadian Eastern Coastal
-, -, N
21,968 (0.31, 17,002, 2021)
170
9.4
Humpback whale
Megaptera novaeangliae
Gulf of Maine
-, -, Y
1,396 (0, 1,380, 2016)
22
12.15
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Delphinidae:
Killer whale
8
Orcinus orca
Western North Atlantic
-, -, N
UNK (UNK, UNK, 2016)
UNK
0
Long-finned pilot whale
Globicephala melas
Western North Atlantic
-, -, N
39,215 (0.3, 30,627, 2021)
306
5.7
Short-finned pilot whale
Globicephala macrorhynchus
Western North Atlantic
-, -, Y
18,726 (0.33, 14,292, 2021)
143
218
Bottlenose dolphin
Tursiops truncatus
Western North Atlantic Offshore
-, -, N
64,587 (0.24, 52,801, 2021)
6
507
28
Bottlenose dolphin
Tursiops truncatus
Northern Migratory Coastal
-, -, Y
6,639 (0.41, 4,759, 2016)
7
48
12.2-21.5
Common dolphin
Delphinus delphis
Western North Atlantic
-, -, N
93,100 (0.56, 59,897, 2021)
1,452
414
Atlantic spotted dolphin
Stenella frontalis
Western North Atlantic
-, -, N
31,506 (0.28, 25,042, 2021)
250
0
Pantropical spotted dolphin
Stenella attenuata
Western North Atlantic
-, D, N
2,757 (0.50, 1,56, 2021)
19
0
Risso's dolphin
Grampus griseus
Western North Atlantic
-, -, N
44,067 (0.19, 30,662, 2021)
307
18
Rough-toothed dolphin
8
Steno bredanensis
Western North Atlantic
-, -, N
unk (unk, unk, 2021)
undet
0
Striped dolphin
8
Stenella coeruleoalba
Western North Atlantic
-, -, N
48,274 (0.29, 38,040, 2021)
529
0
Family Phocoenidae (porpoises):
Harbor porpoise
Phocoena phocoena
Gulf of Maine/Bay of Fundy
-, -, N
85,765 (0.53, 56,420, 2021)
649
145
Order Carnivora—Pinnipedia
Family Phocidae (earless seals):
Harbor seal
Phoca vitulina
Western North Atlantic
-, -, N
61,336 (0.08, 57,637, 2018)
1,729
339
Gray seal
9
Halichoerus grypus
Western North Atlantic
-, -, N
27,911 (0.20, 23,624, 2021)
1,512
4,570
Harp seal
Pagophilus groenlandicus
Western North Atlantic
-, -, N
7.6M (UNK, 7.1M, 2019)
426,000
178,573
1
Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy (
https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/;
Committee on Taxonomy (2022)).
2
ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR, or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
3
NMFS marine mammal stock assessment reports online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.
CV is the coefficient of variation; N
min
is the minimum estimate of stock abundance.
4
These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (
e.g.,
commercial fisheries, ship strike).
5
In the proposed rule (89 FR 504, January 4, 2023), a population estimate of 368 was used which represented the best available science at the time of publication. However, since the publication of the proposed rule, a new estimate (n=340) was released in NMFS' draft 2023 SARs and has been incorporated into this final rule. The current draft SAR includes an estimated population (N best 340) based on sighting history through December 2021 (89 FR 5495, January 29, 2024). In October 2023, NMFS released a technical report identifying that the North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023); Total annual average observed North Atlantic right whale mortality during the period 2017-2021 was 7.1 animals and annual average observed fishery mortality was 4.6 animals. Numbers presented in this table (27.2 total mortality and 17.6 fishery mortality) are 2016-2020 estimated annual means, accounting for undetected mortality and serious injury.
6
As noted in the draft 2023 SAR (89 FR 5495, January 29, 2024), abundance estimates may include sightings of the coastal form.
7
There are two morphologically and genetically distinct forms of common bottlenose dolphin (Duffield
et al.,
1983; Mead and Potter, 1995; Rosel
et al.,
2009) described as the coastal and offshore forms in the western North Atlantic (Hersh and Duffield, 1990; Mead and Potter, 1995; Curry and Smith, 1997; Rosel
et al.,
2009). The two morphotypes are genetically distinct based upon both mitochondrial and nuclear markers (Hoelzel
et al.,
1998; Rosel
et al.,
2009). The genetic and morphological differences recently led to the coastal form being described as a new species,
Tursiops erebennus
(Costa
et al.,
2022; 89 FR 5495, January 29, 2024). Population estimates are based upon recent surveys in 2021.
8
US Wind did not request take of these species; however, their exposure analysis demonstrates there is potential for harassment. Although these species are rare in the project area, NMFS would authorize a small amount of Level B harassment in the case of potential presence during pile driving.
9
NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is for the total stock.
Of the marine mammal species and/or stocks with geographic ranges that include the western North Atlantic OCS (table 3-1 in US Wind incidental take authorization (ITA) application), 19 are not expected to be present or are considered rare or unexpected in the project area based on sighting and distribution data; they are, therefore, not discussed further beyond the explanation provided here. Specifically, the following cetacean species are known to occur off of Maryland but are not expected to occur in the project area due to the location of preferred habitat outside the Lease Area and ECCs, based on the best available information, and therefore US Wind did not request, and NMFS is not authorizing take, of these species: Blue whale (
Balaenoptera musculus
), Cuvier's beaked whale (
Ziphius cavirostris
), four species of Mesoplodont beaked whales (
Mesoplodon densitostris, M. europaeus, M. mirus,
and
M. bidens
), Atlantic white-sided dolphin (
Lagenorhynchus acutus
), Clymene dolphin (
Stenella clymene
), dwarf sperm whale (
Kogia sima
), false killer whale (
Pseudorca crassidens
), Fraser's dolphin
(
Lagenodelphis hosei
), melon-headed whale (
Peponocephala electra
), northern bottlenose whale (
Hyperoodon ampullatus
), pygmy killer whale (
Feresa attenuata
), pygmy sperm whale (
Kogia breviceps
), sperm whale (
Physeter macrocephalus
), spinner dolphin (
Stenella longirostris
), and white-beaked dolphin (
Lagenorhynchus albirostris
). Two species of phocid pinnipeds are also uncommon in the project area, including: harp seals (
Pagophilus groenlandica
) and hooded seals (
Cystophora cristata
). However, harp seals are known to strand in coastal Maryland. Therefore, the LOA, if issued, would authorize take of harp seals.
In addition to the species listed in table 2, the Florida manatee (
Trichechus manatus;
a sub-species of the West Indian manatee) has been previously documented as an occasional visitor to the Mid-Atlantic region during summer months (U.S. Fish and Wildlife Service (USFWS), 2019). However, as manatees are managed solely under the jurisdiction of the U.S. FWS and are considered rare or unexpected in the Project Area, they are not considered or discussed further in this document.
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 (89 FR 504, January 4, 2024). Other than adjustments to population statistics (
e.g.,
North Atlantic right whale population abundance) and UME updates, we are not aware of any changes in the status of the species and stocks listed in table 2; therefore, detailed descriptions are not provided here. Please refer to the proposed rule for these descriptions (89 FR 504, January 4, 2024). Please also refer to NMFS' website (
https://www.fisheries.noaa.gov/find-species
) for generalized species accounts.
Since the publication of the proposed rule, the following updates have occurred to the below species in regards to general information or their active UMEs.
North Atlantic Right Whale
In January 2024, NMFS released its draft 2023 SARs, (89 FR 5495, January 29, 2024) which updated the population estimate (N
best
) of North Atlantic right whales to 340 individuals (an increase from the final 2022 SARs (n=338); the annual M/SI value dropped from the final 2022 SAR of 31.2 to 27.2 in the draft 2023 SAR. Beginning in the 2022 SARs, the M/SI for North Atlantic right whale included the addition of estimated undetected mortality and serious injury, which had not been previously included in the SAR. The current population estimate is equal to the North Atlantic Right Whale Consortium's 2022 Annual Report Card, which identifies the population estimate as 340 individuals (Pettis
et al.,
2023).
As described in the proposed rule, elevated North Atlantic right whale mortalities have occurred since June 7, 2017, along the U.S. and Canadian coast, with the leading category for the cause of death for this UME determined to be “human interaction,” specifically from entanglements or vessel strikes. Since publication of the proposed rule, the number of animals considered part of the UME has increased. As of September 3, 2024, there have been 40 confirmed mortalities (dead, stranded, or floaters), 1 pending mortality, and 36 seriously injured free-swimming whales for a total of 77 whales. The UME also considers animals with sublethal injury or illness (called “morbidity”; n=65) bringing the total number of whales in the UME to 142. More information about the North Atlantic right whale UME is available online at:
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-north-atlantic-right-whale-unusual-mortality-event.
Humpback Whale
Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine to Florida. This event was declared a UME in April 2017. Partial or full necropsy examinations have been conducted on approximately half of the known cases. Since publication of the proposed rule, the number of animals considered part of the UME has increased to 227 total mortalities (as of September 3, 2024). More information is available at:
https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast.
Since December 1, 2022, the number of humpback strandings along the mid-Atlantic coast, from North Carolina to New York, has been elevated. In some cases, the cause of death is not yet known; in others, vessel strike has been deemed the cause of death. As the humpback whale population has grown, they are seen more often in the Mid-Atlantic. These whales may be following their prey (small fish) which were reportedly close to shore in the 2022-2023 winter. Changing distributions of prey impact larger marine species that depend on them, and result in changing distribution of whales and other marine life. These prey also attract fish that are targeted by recreational and commercial fishermen, which increases the number of boats and amount of fishing gear in these areas. This nearshore movement increases the potential for anthropogenic interactions, particularly 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 September 3, 2024, a total of 174 minke whales have stranded during this UME. Full or partial necropsy examinations were conducted on more than 60 percent of the whales. Preliminary findings have shown evidence of human interactions or infectious disease in several of the whales, but these findings are not consistent across all of the whales examined, so more research is needed. More information is available at:
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-minke-whale-unusual-mortality-event-along-atlantic-coast.
Phocid Seals
Since June 2022, elevated numbers of harbor seal and gray seal mortalities have occurred across the southern and central coast of Maine. This event was declared a UME in June 2022 and lasted through July 2022. The UME Investigative Team reviewed necropsy, histopathology, and diagnostic findings. They determined the UME was attributed to spillover events of the highly pathogenic avian influenza H5N1 virus from infected wild birds to harbor and gray seals. An ongoing HPAI H5N1 global outbreak in domestic and wild birds and wild mammals began in 2021. Live seals showed signs of respiratory and neurological disease including nasal and ocular discharge, coughing, unresponsiveness, and seizures. Eighteen percent of the stranded seals (33 out of 180) were tested for avian influenza via polymerase-chain-reaction. A subset of seals were positive for HPAI H5N1 with preliminary findings confirmed by the U.S. Department of Agriculture's National Veterinary Services Laboratories. Of the 33 seals tested during the UME period 19 (58 percent) were positive for H5N1 (17 harbor seals; 2 gray seals) and 14 (42 percent) tested negative. Twelve H5N1 positive seals had histopathology conducted; 11 of those seals had lesions (primarily respiratory and/or
neurologic) suspected or consistent with avian influenza infection. Sequencing of the H5N1 virus detected in seals suggests the seals were infected from spillover events from infected wild birds to these seals. While the UME was not occurring in the area of the Project, the populations affected by the UME were the same as those potentially affected by the Project. Information on this UME is available online at:
https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
e.g.,
Richardson
et al.,
1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall
et al.
(2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65-dB threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall
et al.
(2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in table 4.
Table 4—Marine Mammal Hearing Groups
[NMFS, 2018]
Hearing group
Generalized hearing
range *
Low-frequency (LF) cetaceans
(baleen whales)
7 Hz to 35 kHz.
Mid-frequency (MF) cetaceans
(dolphins, toothed whales, beaked whales, bottlenose whales)
150 Hz to 160 kHz.
High-frequency (HF) cetaceans
(true porpoises, Kogia, river dolphins,
cephalorhynchid
,
Lagenorhynchus cruciger
&
L. australis
)
275 Hz to 160 kHz.
Phocid pinnipeds (PW) (underwater)
(true seals)
50 Hz to 86 kHz.
* Represents the generalized hearing range for the entire group as a composite (
i.e.,
all species within the group), where individual species' hearing ranges are typically not as broad. Generalized hearing range chosen based on ~65-dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation).
Potential Effects of Specified Activities on Marine Mammals and Their Habitat
Exposure to underwater noise from the Project's specified activities have the potential to result in Level A harassment or Level B harassment of marine mammals in the specified geographic region, but no serious injury or mortality. The proposed rule (89 FR 504, January 4, 2024) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from the Project's specified activities on marine mammals and their habitat. While some new literature regarding marine mammal distribution and habitat use has been published since publication of the proposed rule (
e.g.,
BOEM
et al.,
2024; Holdman
et al.,
2023; Pirotta
et al.,
2024; Roberts
et al.,
2024; Thorne and Wiley, 2024), there is no new information that NMFS is aware of that changes the analysis in the proposed rule. We provide a summary of these papers below.
The recently released BOEM and NOAA Fisheries North Atlantic Right Whale Strategy (BOEM
et al.,
2024) identified actions related to mitigation and decision-support tools, research and monitoring, and collaboration, communication, and outreach to minimize risk and impacts to North Atlantic right whales. The identified actions would also allow for coordinated and efficient collaborations between Federal agencies and partners, collection and application of the best available scientific data, and implementation of effective mitigation measures. The Strategy also describes potential actions for further development as well.
Pirotta
et al.
(2024) incorporated data and analysis of North Atlantic right whale length, compiled by the North Atlantic Right Whale Consortium, to investigate whether the smaller mean asymptotic length currently documented for North Atlantic right whales is associated with lower reproductive output. North Atlantic right whale mean asymptotic length (Stewart
et al.,
2021) and female calving probability (Pirotta
et al.,
2023) have been in decline for decades. Pirotta et al. (2024) expanded upon the conducted by Stewart et al. (2022) and quantified how length contributes to calving probability, while taking into account variation due to individual health of whales. The finding that smaller mean asymptotic length contributes to lower calving probability for North Atlantic right whales provides a greater understanding into drivers for decreasing reproductive output for this species.
In 2022, the Duke University Marine Geospatial Ecology Laboratory provided updated habitat-based marine mammal density models for the U.S. Atlantic (Roberts
et al.,
2016; Roberts
et al.,
2023). The proposed rule incorporated these density models into methodology for estimating take from foundation installation and HRG surveys (89 FR 504, January 4, 2024). Recently, North Atlantic right whale density model results were evaluated using independently collected passive acoustic monitoring (PAM data) (Roberts
et al.,
2024). Positive correlations between North Atlantic right whale densities and acoustic detection rates indicated concurrence between visual and acoustic observations of North Atlantic right whales. Results of this study also further quantify the North Atlantic right whale distribution shifts that occurred in 2010.
Moreover, new data also supports our inclusion of certain mitigation measures in the proposed and this final rule. For
example, Crowe
et al.
(2023) discussed the use and importance of real-time data for detecting North Atlantic right whales. The shift in North Atlantic right whale habitat use motivated the integration of additional ways to detect the presence of North Atlantic right whales and passive acoustic detections of right whale vocalizations reported in near real-time became an increasingly important tool to supplement visual sightings. The proposed rule did include real-time and daily awareness measures and sighting communication protocols, NMFS evaluated these measures and added details for clarity or updated the reporting mechanisms, such as in the case of sighting an injured North Atlantic right whale. Davis
et al.
(2023) analyzed North Atlantic right whale individual upcalls from 2 years of acoustic recordings in southern New England which showed that North Atlantic right whales were detected at least 1 day every week throughout both years, with highest North Atlantic right whale presence from October to April. Within southern New England (SNE), on average, 95 percent of the time North Atlantic right whales persisted for 10 days, and recurred again within 11 days. An evaluation of the time period over which it is most effective to monitor prior to commencing pile driving activities showed that with 1 hour of pre-construction monitoring there was only 4 percent likelihood of hearing a North Atlantic right whale, compared to 74 percent at 18 h. Therefore, monitoring for at least 24 hours prior to activity will increase the likelihood of detecting an up-calling North Atlantic right whale.
Thorne and Wiley (2024) recently reviewed spatiotemporal patterns of strandings, mortalities, and serious injuries of humpback whales along the U.S. east coast from 2016-2022 and found vessel strikes to be the major driver in the increase of humpback whale strandings, mortalities, and serious injury. Based upon the spatiotemporal analysis, no evidence was found that offshore wind development played a role in the increased number of strandings over time. In fact, the potential for vessel strike increased during the course of the study due to increased vessel traffic in new foraging areas, the increased presence of juvenile humpback whales, and humpback whale foraging in shallow areas that overlap with vessel traffic.
Similar to the discussion presented in the proposed rule, the BiOp stated it is likely the Project will produce a wind wake from operation of the turbines and that the foundations themselves will lead to disruptions in local conditions. The scale of these effects is expected to range from hundreds of meters and up to 1 km from each foundation and the changes in conditions may alter the distribution of nutrients, primary production, and plankton (Floeter
et al.,
2017; van Berkel
et al.,
2020). However, the BiOp concluded it is not expected that the impacts to oceanic conditions resulting from the Project will be large enough to affect regional conditions that could influence the distribution of prey or conditions that aggregate prey in the broader Mid-Atlantic Bight region or within or around the Maryland Wind WDA in a way that would have adverse effects on ESA-listed species. Therefore, NMFS expects any alteration of the biomass of plankton in the region, and therefore, the total food supply, to be so small that adverse effects on ESA-listed species are extremely unlikely to occur.
Overall, there is no new scientific information regarding the general anticipated effects of OSW construction on marine mammals and their habitat that was not discussed in the proposed rule. The information and analysis regarding the potential effects on marine mammals and their habitat has not changed and is adopted here by reference (see 89 FR 504, January 4, 2024).
Globally, there are more than 341,000 operating WTGs (Global Wind Energy Council). Turbine failures are known to occur but are considered rare events (Katsaprakakis
et al.,
2021, DOE, 2024a). For example, fewer than 40 incidents were identified in the modern fleet of more than 40,000 onshore turbines installed in the United States as of 2014 (DOE, 2024b). In 2022, the total global capacity of offshore wind reached 59,009 MW from 292 operating projects and over 11,900 operating wind turbines in 2022 (DOE, 2023), and a review of the relevant literature and media reports indicate blade failure among this cohort of turbines continues to be rare, consistent with industry performance in onshore wind turbines. On July 13, 2024, however, a blade on one of the WTGs at Vineyard Wind 1, a project located off of Martha's Vineyard and Nantucket, was damaged during the “warm up” phase of operations, causing a portion of the blade, primarily composed of fiberglass, to fall into the water. In cooperation with Vineyard Wind 1, GE Vernova, the blade manufacturer, initiated debris recovery efforts and an investigation. Following this blade failure incident, the Bureau of Safety and Environmental Enforcement (BSEE), Department of Interior, issued a Suspension Order on July 17, 2024 (
https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-statement-on-vineyard-wind
) and an additional Order for clarification on July 26, 2024 (
https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-issues-new-order-to-vineyard-wind
), which suspends power production and any further wind turbine generator construction until the suspension is lifted.
As noted above, wind turbine failure is considered rare, and NMFS still considers the likelihood that blade failure would occur pursuant to US Wind's specified activity during the effective period of the ITA so low as to be discountable. Furthermore, GE Vernova's quality assurance program will complete thorough inspections on the remaining blades to be installed to ensure additional blade malfunction incidents do not occur. US Wind did not request, NMFS does not anticipate, and NMFS has not authorized, take of marine mammals incidental to a turbine blade failure and, therefore the topic is not discussed further.
Estimated Take
This section provides an estimate of the number of incidental takes that may be authorized through this rule, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination. The analysis related to take incidental to HRG surveys and foundation installation is unchanged since the proposed rule.
Generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment (as well as impulse metric (Pascal-second) and peak sound pressure level thresholds above which marine mammals may incur non-auditory injury from underwater explosive detonations); (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available. Below, we describe the factors considered here in more detail and present the take estimates.
Marine Mammal Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals are likely to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). Thresholds have also been developed identifying the received level of in-air sound above which exposed pinnipeds would likely be behaviorally harassed. A summary of NMFS' 2018 thresholds can be found at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Level B harassment
—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source or exposure context (
e.g.,
frequency, predictability, duty cycle, duration of the exposure, signal-to-noise ratio, distance to the source), the environment (
e.g.,
other noises in the area) and the state of the receiving animals (
e.g.,
hearing, motivation, experience, demography, life stage, depth), and can be difficult to predict (
e.g.,
Southall
et al.,
2007, 2021; Ellison
et al.,
2012). Based on what the available science indicates and the practical need to use a threshold based on a metric that is both predictable and measurable for most activities, NMFS typically uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS generally predicts that marine mammals are likely to be behaviorally harassed in a manner considered to be Level B harassment when exposed to underwater anthropogenic noise above root-mean-squared pressure received levels (RMS SPL) of 120 dB (re 1 μPa) for continuous (
e.g.,
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 μPa for non-explosive impulsive (
e.g.,
seismic airguns) or intermittent (
e.g.,
scientific sonar) sources (table 4). Generally speaking, Level B harassment take estimates based on these behavioral harassment thresholds are expected to include any likely takes by temporary threshold shift (TTS) as, in most cases, the likelihood of TTS occurs at distances from the source less than those at which behavioral harassment is likely. TTS of a sufficient degree can manifest as behavioral harassment, as reduced hearing sensitivity and the potential reduced opportunities to detect important signals (
e.g.,
conspecific communication, predators, prey) may result in changes in behavior patterns that would not otherwise occur.
US Wind's construction activities include the use of intermittent (
e.g.,
impact pile driving and HRG acoustic sources) sources; therefore, the 160 dB re 1 μPa (RMS) threshold is applicable.
Level A harassment
—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0; Technical Guidance, 2018) identifies dual criteria to assess auditory injury constituting Level A harassment to five different marine mammal groups based on hearing sensitivity as a result of exposure to noise from two different types of sources (
i.e.,
impulsive or non-impulsive sources). As dual metrics, NMFS considers onset of PTS constituting Level A harassment to have occurred when either one of the two metrics is exceeded (
i.e.,
metric resulting in the largest isopleth). The Project includes the use of impulsive and non-impulsive sources.
The 2018 thresholds are provided in table 5 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2018 Technical Guidance, which may be accessed at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Table 5—Onset of PTS
[NMFS, 2018]
Hearing group
PTS onset thresholds *
(received level)
Impulsive
Non-impulsive
Low-frequency (LF) cetaceans
Cell 1:
L
p
,0-pk,flat
:
219 dB;
L
E,
p
,LF,24h
:
183 dB
Cell 2:
L
E,
p
,LF,24h
:
199 dB.
Mid-frequency (MF) cetaceans
Cell 3:
L
p
,0-pk,flat
:
230 dB;
L
E,
p
,MF,24h
:
185 dB
Cell 4:
L
E,
p
,MF,24h
:
198 dB.
High-frequency (HF) cetaceans
Cell 5:
L
p
,0-pk,flat
:
202 dB;
L
E,
p
,HF,24h
:
155 dB
Cell 6:
L
E,
p
,HF,24h
:
173 dB.
Phocid pinnipeds (PW) (Underwater)
Cell 7:
L
p
,0-pk.flat
:
218 dB;
L
E,
p
,PW,24h
:
185 dB
Cell 8:
L
E,
p
,PW,24h
:
201 dB.
Otariid pinnipeds (OW) (Underwater)
Cell 9:
L
p
,0-pk,flat
:
232 dB;
L
E,
p
,OW,24h
:
203 dB
Cell 10:
L
E,
p
,OW,24h
:
219 dB.
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds are recommended for consideration.
Note:
Peak sound pressure level (
L
p
,0-pk
) has a reference value of 1 µPa, and weighted cumulative sound exposure level (
L
E,
p
) has a reference value of 1μPa
2
s. In this table, thresholds are abbreviated to be more reflective of International Organization for Standardization standards (ISO, 2017). The subscript “flat” is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized hearing range of marine mammals (
i.e.,
7 Hz to 160 kHz). The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted cumulative sound exposure level thresholds could be exceeded in a multitude of ways (
i.e.,
varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these thresholds will be exceeded.
Take That May Be Authorized
In the proposed rule, we discussed the marine mammal density and occurrence information, acoustic modeling, and take estimation methodologies and results for each of US Wind's specified activities and all marine mammal species and stocks. All of this information presented in the proposed rule, including multiple tables (
e.g.,
densities, acoustic ranges, source characteristics) remains accurate and unchanged and is not reproduced here. Below, tables 6 and 7 identify the maximum annual allowable take and the maximum total allowable take across the 5-year effective period of the rule.
As described in the proposed rule (89 FR 504, January 4, 2024), NMFS used the best available science and robust models to consider the interaction of marine mammal movement, the environment, and the Project activities, in the context of NMFS' acoustic thresholds, to project the maximum number of takes that are reasonably expected to occur, by Level A harassment and Level B harassment. However, NMFS has also acknowledged
the uncertainty inherent in certain input values (
e.g.,
source levels and spectra) and environmental variability present in real-life physical and biological systems. The LOA would specify maximum annual and 5 year takes that may not be exceeded, by Level A and Level B harassment, but would not specify the number of allowable takes by activity type, thus allowing for flexibility should the number of takes from a specific activity type exceed the number modeled for the specific activity type, provided the manner and impacts of those takes remain within those considered within the analysis and the total takes remain below the annual maximum and 5-year totals.
Table 6—Maximum Level A Harassment and Level B Harassment Takes for All Activities That May Be Authorized During the Construction of the Project and Over the Course of the Five Years Covered by the Rule
1
Marine mammal species
Total take by
Level A harassment
that may be authorized
Total take by
Level B harassment
that may be authorized
North Atlantic right whale
2
0
10
Fin whale
2
6
35
Humpback whale
6
30
Minke whale
9
58
Sei whale
2
3
3
Killer whale
0
9
Atlantic spotted dolphin
0
168
Coastal bottlenose dolphin
0
2,165
Offshore bottlenose dolphin
0
2,755
Bottlenose dolphin
3
0
258
Common dolphin
0
488
Long-finned pilot whale
0
48
Short-finned pilot whale
0
33
Pantropical spotted dolphin
0
15
Risso's dolphin
0
70
Rough-toothed dolphin
0
18
Striped dolphin
0
138
Harbor porpoise
6
68
Gray seal
4
0
496
Harbor seal
4
Harp seal
4
1
The final rule and LOA would be effective from January 1, 2025 through December 31, 2029, however, US Wind has not planned activities to occur in 2028 or 2029. As described in table 2, NMFS recognizes the potential for activity schedules to shift such that they occur during different timeframes within the five year effective period of the rule, including the potential for activities to occur in 2028 and 2029.
2
Listed as Endangered under the ESA.
3
The total take over 5 years represented here accounts for HRG surveys wherein the take may occur to either the Northern migratory coastal stock and/or the offshore stock of bottlenose dolphins.
4
Take that may be authorized includes harbor seals, gray seals, and harp seals.
To inform both the negligible impact analysis and the small numbers determination, NMFS also (in addition to the five-year total) assesses the maximum number of takes of marine mammals that could occur within any given year. For each species or stock, we consider the maximum number of Level A harassment takes that could occur and may be authorized in any one year, the maximum number of Level B harassment takes that could occur and may be authorized in any one year, and the sum of those two annual maxima to yield the highest number of total takes that could occur in any year (table 7). Table 7 also indicates the number of takes authorized relative to the abundance of each stock. The takes enumerated here represent daily instances of take, not necessarily individual marine mammals taken. One take represents a day in which an animal was exposed to noise above the associated harassment threshold at least once. Some takes represent a brief exposure above a threshold, while in some cases takes could represent a longer, or repeated, exposure of one individual animal above a threshold within a 24-hour period. Whether or not every take assigned to a species represents a different individual depends on the daily and seasonal movement patterns of the species in the area. For example, activity areas with continuous activities (all or nearly every day) overlapping known feeding areas (where animals are known to remain for days or weeks on end) or areas where species with small home ranges live (
e.g.,
some pinnipeds) are more likely to result in repeated takes to some individuals. Alternatively, activities that are not occurring on consecutive days for the duration of the Project (
e.g.,
foundation installation) or occurring in an area where animals are migratory and not expected to remain for multiple days, represent circumstances where repeat takes of the same individuals are less likely. For example, 100 takes could represent 100 individuals each taken on one day within the year, or it could represent 5 individuals each taken on 20 days within the year. The combination of number of individuals each taken and number of days on which take would occur would depend upon the activity, the presence of biologically important areas in the project area, and the movement patterns of the marine mammal species exposed. Where information to better contextualize the enumerated takes for a given species is available, it is discussed in the Negligible Impact Analysis and Determination and/or Small Numbers sections, as appropriate.
Table 7—Maximum Number of Takes by Level A Harassment and Level B Harassment That May Be Authorized in Any One Year of the Project Relative to Stock Population Size
1
Marine mammal species
NMFS stock
abundance
Maximum
annual
Level A
harassment
Maximum
annual
Level B
harassment
Maximum
annual take
Maximum take
(instances) as a
percentage
of stock
abundance)
1
2
North Atlantic right whale
3
4
338
0
4
4
1.18
Fin whale
3
4
6,802
2
18
20
0.29
Humpback whale
4
1,396
2
16
18
1.29
Minke whale
21,968
6
41
47
0.21
Sei whale
3
4
6,292
1
1
2
0.03
Killer whale
4
UNK
0
3
3
UNK
Atlantic spotted dolphin
4
39,921
0
69
69
0.17
Coastal bottlenose dolphin
5
6,639
0
1,591
1,591
24.0
Offshore bottlenose dolphin
5
62,851
0
1,768
1,768
2.81
Common dolphin
172,974
0
298
298
0.17
Long-finned pilot whale
4
39,215
0
16
16
0.04
Short-finned pilot whale
4
28,924
0
11
11
0.04
Pantropical spotted dolphin
4
6,593
0
5
5
0.08
Risso's dolphin
4
35,215
0
26
26
0.07
Rough-toothed dolphin
4
136
0
6
6
4.41
Striped dolphin
4
67,036
0
46
46
0.07
Harbor porpoise
4
95,543
3
39
42
0.04
Gray seal
6
27,300
0
341
341
1.25
Harbor seal
6
61,336
0.56
Harp seal
6
7.6M
0.004
1
Year 2 (2026) represents the most overall impactful year.
2
The values in this column represent the assumption that each take that may be authorized would occur to a unique individual. Given the scope of planned work, this is highly unlikely for species common to the project area (
e.g.,
North Atlantic right whales, humpback whales) such that the actual percentage of the population taken is less than the percentages identified here.
3
Listed as Endangered under the ESA.
4
Take that may be authorized is based on average group size.
5
The amount of take identified includes the maximum amount of take that could occur from impact pile driving in any given year plus the maximum amount of take from HRG surveys in any given year, assuming all take from HRG surveys is allocated to both bottlenose dolphin stocks.
6
Assumes 100 percent of the take by Level B harassment is from either the gray seal stock, harbor seal stock, or harp seal stock.
Mitigation
As noted in the Changes from the Proposed to Final Rule section, NMFS has added new mitigation requirements and clarified a few others. These changes are described in detail in the sections below. Besides these changes, the required measures remain the same as those described in the proposed rule. However, NMFS has also re-organized and simplified the section to avoid full duplication of the specific requirements that are fully described in the regulatory text.
In order to promulgate a rulemaking under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable adverse impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS' regulations require applicants for ITAs to include information about the availability and feasibility (
e.g.,
economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (
e.g.,
likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (
i.e.,
the probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (
i.e.,
the probability if implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider factors such as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The mitigation strategies described below are consistent with those required and successfully implemented under previous ITAs issued in association with in-water construction activities (
e.g.,
soft-start, establishing shutdown zones). Additional measures have also been incorporated to account for the fact that the construction activities would occur offshore. Modeling was performed to estimate harassment zones, which were used to inform mitigation measures for the Project's activities to minimize Level A harassment and Level B harassment to the extent practicable, while providing estimates of the areas within which Level B harassment might occur.
Generally speaking, the mitigation measures considered and required here fall into three categories: temporal (
i.e.,
seasonal and daily) and spatial work restrictions, real-time measures (
e.g.,
shutdown, clearance, and vessel strike avoidance), and noise attenuation/reduction measures. Temporal and spatial work restrictions are designed to
avoid or minimize operations when marine mammals are concentrated or engaged in behaviors that make them more susceptible or make impacts more likely, in order to reduce both the number and severity of potential takes, and are effective in reducing both chronic (longer-term) and acute effects. Real-time measures, such as implementation of shutdown and clearance zones, as well as vessel strike avoidance measures, are intended to reduce the probability or severity of harassment by taking steps in real time once a higher-risk scenario is identified (
e.g.,
once animals are detected within an impact zone). Noise attenuation measures such as bubble curtains are intended to reduce the noise at the source, which reduces both acute impacts, as well as the contribution to aggregate and cumulative noise that may result in longer term chronic impacts.
Below, we briefly describe the required training, coordination, and vessel strike avoidance measures that apply to all activity types, and in the following subsections we describe the measures that apply specifically to foundation installation and HRG surveys. Details on specific requirements can be found in 50 CFR part 217, subpart II, set out at the end of this rule.
Training and Coordination
NMFS requires all US Wind employees and contractors conducting activities on the water, including but not limited to, all vessel captains and crew to be trained in marine mammal detection and identification, communication protocols, and all required measures to minimize impacts on marine mammals and support US Wind's compliance with the LOA, if issued. Additionally, all relevant personnel and the marine mammal species monitoring team(s) are required to participate in joint, onboard briefings prior to the beginning of project activities. The briefing must be repeated whenever new relevant personnel (
e.g.,
new PSOs, construction contractors, relevant crew) join the Project before work commences. During this training, US Wind is required to instruct all project personnel regarding the authority of the marine mammal monitoring team(s). For example, the HRG acoustic equipment operator, pile driving personnel,
etc.,
is required to immediately comply with any call for a delay or shutdown by the Lead PSO. Any disagreement between the Lead PSO and the Project personnel must only be discussed after delay or shutdown has occurred. In particular, all captains and vessel crew must be trained in marine mammal detection and vessel strike avoidance measures to ensure marine mammals are not struck by any Project or Project-related vessel.
Prior to the start of in-water construction activities, vessel operators and crews will receive training about marine mammals and other protected species known or with the potential to occur in the project area, making observations in all weather conditions, and vessel strike avoidance measures. In addition, training will include information and resources available regarding applicable Federal laws and regulations for protected species. US Wind will provide documentation of training to NMFS. Since the proposed rule, NMFS has added requirements for a description of the training program to be provided to NMFS at least 60 days prior to the initial training before in-water activities begin and for confirmation of all required training to be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating Project activities. These measures were added in response to several commenters' concerns regarding strengthening mitigation and monitoring measures.
North Atlantic Right Whale Awareness Monitoring
US Wind must use available sources of information on North Atlantic right whale presence, including daily monitoring of the Right Whale Sightings Advisory System, monitoring of Coast Guard VHF Channel 16 throughout each day to receive notifications of any sightings, and information associated with any regulatory management actions (
e.g.,
establishment of a zone identifying the need to reduce vessel speeds). Maintaining daily awareness and coordination affords increased protection of North Atlantic right whales by understanding North Atlantic right whale presence in the area through ongoing visual and PAM efforts and opportunities (outside of US Wind's efforts), and allows for planning of construction activities, when practicable, to minimize potential impacts on North Atlantic right whales. The vessel strike avoidance measures apply to all vessels associated with the Project within U.S. waters and on the high seas.
Vessel Strike Avoidance Measures
Both the proposed and this final rule contain numerous vessel strike avoidance measures that reduce the risk that a vessel and marine mammal could collide. These measures must be followed unless doing so would create safety risks as described in the regulatory text. While the likelihood of a vessel strike is generally low, they are one of the most common ways that marine mammals are seriously injured or killed by human activities. Therefore, enhanced mitigation and monitoring measures are required to further avoid vessel strikes to the extent practicable. While many of these measures are proactive, intended to avoid the heavy use of vessels during times when marine mammals of particular concern may be in the area, several are reactive and occur when a marine mammal is sighted by Project personnel. The mitigation requirements are described generally here and in detail in the regulatory text at the end of this final rule (50 CFR 217.344(b)). US Wind will be required to comply with these measures, except under circumstances when doing so would create an imminent and serious threat to a person or vessel, or to the extent that a vessel is unable to maneuver and, because of the inability to maneuver, the vessel cannot comply.
While underway, US Wind is required to monitor for and maintain a safe distance from marine mammals, and operate vessels in a manner that reduces the potential for vessel strike. Regardless of the vessel's size, all vessel operators, crews, and dedicated visual observers (
i.e.,
PSO or trained crew member) must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course as appropriate to avoid striking any marine mammal. The dedicated visual observer, equipped with suitable monitoring technology (
e.g.,
binoculars, night vision devices), must be located at an appropriate vantage point for ensuring vessels are maintaining required vessel separation distances from marine mammals (
e.g.,
500 m from North Atlantic right whales).
For all Project-related vessels (regardless of size), the vessel is required to immediately reduce speeds to 10 kn (11.5 mph) or less if any large whale, or large assemblage of non-delphinid cetaceans is observed within 500 m of the vessel. Additionally, all Project vessels, regardless of size, must maintain a 100-m minimum separation zone from sperm whales and non-North Atlantic right whale baleen species. Vessels are also required to keep a minimum separation distance of 50 m from all delphinid cetaceans and pinnipeds, with an exception made for those species that approach the vessel (
i.e.,
bow-riding dolphins). If any of these non-North Atlantic right whale marine mammals are sighted, the underway vessel must shift its engine to neutral and the engines must not be
engaged until the animal(s) have been observed to be outside of the vessel's path and beyond 100 m (for sperm whales and non-North Atlantic right whale large whales) or 50 m (for delphinids and pinnipeds).
Table 8—Vessel Strike Avoidance Separation Zones
Marine mammal species
Vessel separation zone
(m)
North Atlantic right whale
500
Other ESA-listed species and large whales
100
Other marine mammals
1
50
1
With the exception of seals and delphinid(s) from the genera
Delphinus, Lagenorhynchus, Stenella
or
Tursiops,
as described below.
All of the Project-related vessels are required to comply with the measures within this rulemaking for operating vessels around North Atlantic right whales and other marine mammals, as well as any existing NMFS vessel speed restrictions for North Atlantic right whales. When NMFS vessel speed restrictions are not in effect and a vessel is traveling at greater than 10 kn (11.5 mph), in addition to the required dedicated visual observer, US Wind is required to monitor the transit corridor in real-time with PAM prior to and during transits. To maintain awareness of North Atlantic right whale presence in the project area, vessel operators, crew members, and the marine mammal monitoring team will monitor U.S. Coast Guard VHF Channel 16, WhaleAlert, the Right Whale Sighting Advisory System (RWSAS), and the PAM system. Any North Atlantic right whale or large whale detection will be immediately communicated to PSOs, PAM operators, and all vessel captains. All vessels will be equipped with an Automatic Information System (AIS) and US Wind must report all Maritime Mobile Service Identity (MMSI) numbers to NMFS Office of Protected Resources prior to initiating in-water activities. US Wind will submit a Marine Mammal Vessel Strike Avoidance Plan for NMFS approval at least 180 days prior to commencement of vessel use.
Compliance with these measures will reduce the likelihood of vessel strike to the extent practicable. These measures increase awareness of marine mammals in the vicinity of Project vessels and require Project vessels to reduce speed when marine mammals are detected (by PSOs, PAM, and/or through another source,
e.g.,
RWSAS) and maintain separation distances when marine mammals are encountered. While visual monitoring is useful, reducing vessel speed is one of the most effective, feasible options available to reduce the likelihood of, and effects from, a vessel strike. Numerous studies have indicated that slowing the speed of vessels reduces the risk of lethal vessel collisions, particularly in areas where right whales are abundant and vessel traffic is common and otherwise traveling at high speeds (Vanderlaan and Taggart, 2007; Conn and Silber, 2013; Van der Hoop
et al.,
2014; Martin
et al.,
2015; Crum
et al.,
2019).
Given the inherent low probability of vessel strike, combined with the vessel strike avoidance measures included herein, NMFS considers the potential for vessel strike to be unlikely and would not allow take from this activity under this final rule.
Seasonal and Daily Restrictions
Temporal and spatial restrictions in places where marine mammals are concentrated, engaged in biologically important behaviors, and/or present in sensitive life stages are effective measures for reducing the magnitude and severity of human impacts. The temporal restrictions required here are built around the protection of North Atlantic right whales. Based upon the best scientific information available (Roberts
et al.,
2023), the highest densities of North Atlantic right whales in the project area are expected during the months of January through April, with an increase in density starting in December. However, North Atlantic right whales may be present in the project area throughout the year.
NMFS is requiring seasonal work restrictions to minimize the risk of noise exposure to North Atlantic right whales incidental to certain specified activities to the extent practicable. These seasonal work restrictions are expected to greatly reduce the number of takes of North Atlantic right whales. These seasonal restrictions also afford protection to other marine mammals that are known to use the project area with greater frequency during winter months, including other baleen whales. As described previously, no impact pile driving activities may occur December 1 through April 30.
No more than one foundation monopile, four 3-m pin piles for jacket foundations, or three 1.8-m pin piles for the Met tower will be installed per day. Monopiles must be no larger than 11-m in diameter and pin piles must be no larger than 3-m in diameter. For all monopiles and pin piles, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. No more than one pile may be installed at a given time (
i.e.,
concurrent/simultaneous pile driving and drilling may not occur).
US Wind would not initiate pile driving earlier than 1 hour prior to civil sunrise or later than 1.5 hours prior to civil sunset, unless NMFS approves an Alternative Monitoring Plan as part of the Foundation Installation and Marine Mammal Monitoring Plan (
i.e.,
Nighttime Monitoring Plan) that reliably demonstrates the efficacy of detecting marine mammals at night with its proposed devices. Foundation installation will also not be initiated when the minimum visibility zones cannot be fully visually monitored, as determined by the lead PSO on duty. While monitoring itself is not mitigation, these measures contribute to more reliable detection efficiency and animals must be detected to trigger mitigative actions which reduce impacts.
Given the very small harassment zones resulting from HRG surveys and that the best available science indicates that any harassment from HRG surveys, should a marine mammal be exposed, would manifest as minor behavioral harassment only (
e.g.,
potentially some avoidance of the vessel), NMFS is not requiring any seasonal and daily restrictions for HRG surveys. However US Wind has planned only a limited amount of surveys (over 14 days) during daylight within the effective period of these regulations.
Noise Attenuation Systems
US Wind is required to employ noise abatement systems (NAS), also known as noise attenuation systems, during all foundation installation (
i.e.,
impact pile driving) activities to reduce the sound pressure levels that are transmitted through the water in an effort to reduce acoustic ranges to the Level A
harassment and Level B harassment acoustic thresholds and minimize, to the extent practicable, any acoustic impacts resulting from these activities. US Wind is required to use at least two NASs to ensure that measured sound levels do not exceed the levels modeled for a 10-dB sound level reduction for foundation installation, which is likely to include a double big bubble curtain or a double big bubble curtain combined with other NAS (
e.g.,
hydro-sound damper, or an AdBm Helmholz resonator), as well as the adjustment of operational protocols to minimize noise levels. As part of adaptive management, should the research and development phase of newer systems demonstrate effectiveness, US Wind may submit data on the effectiveness of these systems and request approval from NMFS to use them during foundation installation activities.
Two categories of NASs exist: primary and secondary. A primary NAS would be used to reduce the level of noise produced by foundation installation activities at the source, typically through adjustments to the equipment (
e.g.,
hammer strike parameters). Primary NASs are still evolving and will be considered for use during mitigation efforts when the NAS has been demonstrated as effective in commercial projects. However, as primary NASs are not fully effective at eliminating noise, a secondary NAS would be employed. The secondary NAS is a device or group of devices that would reduce noise as it was transmitted through the water away from the pile, typically through a physical barrier that would reflect or absorb sound waves and therefore, reduce the distance the higher energy sound propagates through the water column. Together, these systems must reduce noise levels to those not exceeding modeled ranges to Level A harassment and Level B harassment isopleths corresponding to those modeled assuming 10-dB sound attenuation, pending results of SFV (see the
Sound Field Verification
section below and 50 CFR part 217—Regulations Governing The Taking And Importing Of Marine Mammals).
Noise abatement systems, such as bubble curtains, are used to decrease the sound levels radiated from a source. Bubbles create a local impedance change that acts as a barrier to sound transmission. The size of the bubbles determines their effective frequency band, with larger bubbles needed for lower frequencies. There are a variety of bubble curtain systems, confined or unconfined bubbles, and some with encapsulated bubbles or panels. Attenuation levels also vary by type of system, frequency band, and location. Small bubble curtains have been measured to reduce sound levels but effective attenuation is highly dependent on depth of water, current, and configuration and operation of the curtain (Austin
et al.,
2016; Koschinski and Lüdemann, 2013). Bubble curtains vary in terms of the sizes of the bubbles and those with larger bubbles tend to perform a bit better and more reliably, particularly when deployed with two separate rings (Bellmann, 2014; Koschinski and Lüdemann, 2013; Nehls
et al.,
2016). Encapsulated bubble systems (
e.g.,
Hydro Sound Dampers (HSDs)), can be effective within their targeted frequency ranges (
e.g.,
100-800 Hz), and when used in conjunction with a bubble curtain appear to create the greatest attenuation. The literature presents a wide array of observed attenuation results for bubble curtains. The variability in attenuation levels is the result of variation in design as well as differences in site conditions and difficulty in properly installing and operating in-water attenuation devices. Dähne
et al.
(2017) found that single bubble curtains that reduce sound levels by 7 to 10 dB reduced the overall sound level by approximately 12 dB when combined as a double bubble curtain for 6-m steel monopiles in the North Sea. During installation of monopiles (consisting of approximately 8-m in diameter) for more than 150 WTGs in comparable water depths (>25 m) and conditions in Europe indicate that attenuation of 10 dB is readily achieved (Bellmann, 2019; Bellmann
et al.,
2020) using single bubble curtains for noise attenuation.
When a double big bubble curtain is used (noting a single bubble curtain is not allowed), US Wind is required to maintain numerous operational performance standards. These standards are defined in the regulatory text at the end of this rule, and include, but are not limited to, construction contractors must train personnel in the proper balancing of airflow to the bubble ring and US Wind must submit a performance test and maintenance report to NMFS. Corrections to the attenuation devices are to be carried out prior to impact pile driving. In addition, a full maintenance check (
e.g.,
manually clearing holes) must occur prior to each pile being installed. If US Wind uses a noise mitigation device in addition to a double big bubble curtain, similar quality control measures are required. Should the research and development phase of newer systems demonstrate effectiveness, as part of adaptive management, US Wind may submit data on the effectiveness of these systems and request approval from NMFS to use them during foundation installation activities.
US Wind is required to submit an SFV plan to NMFS for approval at least 180 days prior to installing foundations. They are also required to submit interim and final SFV data results to NMFS and make corrections to the NASs in the case that any SFV measurements demonstrate noise levels are above those modeled assuming 10 dB. These frequent and immediate reports allow NMFS to better understand the sound fields to which marine mammals are being exposed and require immediate corrective action should they be misaligned with anticipated noise levels within our analysis.
Noise abatement devices are not required during HRG surveys as they cannot practicably be employed around a moving survey ship, but US Wind is required to make efforts to minimize source levels by using the lowest energy settings on equipment that has the potential to result in harassment of marine mammals (
e.g.,
boomers) and turning off equipment when not actively surveying. Overall, minimizing the amount and duration of noise in the ocean from any of the Project's activities through use of all means necessary (
e.g.,
noise abatement, turning off power) will effect the least practicable adverse impact on marine mammals.
Clearance and Shutdown Zones
NMFS requires the establishment of both clearance and, where technically feasible, shutdown zones during Project activities that have the potential to result in harassment of marine mammals. The purpose of “clearance” of a particular zone is to minimize potential instances of auditory injury and more severe behavioral disturbances by delaying the commencement of an activity if marine mammals are near the activity. The purpose of a shutdown is to prevent a specific acute impact, such as auditory injury or severe behavioral disturbance of sensitive species, by halting the activity.
All relevant clearance and shutdown zones during Project activities will be monitored by NMFS-approved PSOs and PAM operators as described in the regulatory text at the end of this rule. At least one PAM operator must review data from at least 24 hours prior to foundation installation, and must actively monitor hydrophones for 60 minutes prior to commencement of these activities. Any North Atlantic right whale sighting at any distance by foundation installation PSOs, or
acoustically detected within the PAM monitoring zone (10 km), triggers a delay to commencing pile driving and shutdown. Any large whale sighted by a PSO or acoustically detected by a PAM operator that cannot be identified as a non-North Atlantic right whale must be treated as if it were a North Atlantic right whale.
Prior to the start of certain specified activities (
i.e.,
foundation installation, including soft-start, and HRG surveys), US Wind must ensure designated areas (
i.e.,
clearance zones as provided in tables 24 and 25) are clear of marine mammals prior to commencing activities to minimize the potential for and degree of harassment. For foundation installation, PSOs must visually monitor clearance zones for marine mammals for a minimum of 60 minutes prior to the activity, where the zone must be confirmed free of marine mammals at least 30 minutes directly prior to commencing these activities. During this period, the clearance zones will be monitored by both PSOs and a PAM operator. If a marine mammal is observed within a clearance zone during the clearance period, the activity will be delayed and may not begin until the animal(s) has been observed exiting its respective zone, or until an additional time period has elapsed with no further sightings (
i.e.,
15 minutes for small odontocetes and pinnipeds and 30 minutes for all other species). In addition, foundation installation will be delayed upon a confirmed PAM detection of a North Atlantic right whale if the PAM detection is confirmed to have been located within the North Atlantic right whale PAM clearance zone (10,000 m). Any large whale sighted by a PSO that cannot be identified to species must be treated as if it were a North Atlantic right whale for the purposes of mitigation. PSOs and PAM operators must continue monitoring throughout the duration of foundation installation and for 30 minutes post-completion of the activity.
Clearance and shutdown zones have been developed in consideration of modeled distances to relevant PTS thresholds with respect to minimizing the potential for take by Level A harassment. The clearance and shutdown zones for North Atlantic right whales during monopile, jacket foundation, and Met tower foundation installation are visual observations at any distance by PSOs or any acoustic detection within the PAM monitoring zone (10 km; table 24). For North Atlantic right whales, there is an additional requirement that the clearance zone may only be declared clear if no confirmed North Atlantic right whale acoustic detections (in addition to visual) have occurred during the 60-minute monitoring period. The visual clearance zone for other large whales from monopile installation is equal to the modeled maximum R
95 percent
distance to the Level B harassment threshold (5,250 m). The clearance zone for other large whales from 3-m pin pile installation is equal to the modeled maximum R
95 percent
distance to the Level A harassment threshold (1,400 m). The clearance zone for other large whales from 1.8-m pin pile installation is equal to twice the modeled maximum R
95 percent
distance to the Level B harassment threshold given the very small Level B harassment zone (100 m), which could be encompassed by the bubble curtains. The clearance zone for non-large whales (
i.e.,
delphinids and pilot whales, harbor porpoises, and seals) from monopile and 3-m pin pile installation is equal to double the modeled maximum R
95 percent
distances to the Level A harassment threshold for harbor porpoise (the most sensitive species). The clearance zone for 1.8-m pin pile installation is equal to double the modeled maximum R
95 percent
distance to the Level B harassment threshold given Level A harassment thresholds were not exceeded for this activity (
i.e.,
0 m).
Once an activity begins, any marine mammal entering their respective shutdown zone would trigger the activity to cease. In the case of foundation installation, the shutdown requirement may be waived if it is not practicable to shutdown the equipment due to imminent risk of injury or loss of life to an individual, risk of damage to a vessel that creates risk of injury or loss of life for individuals, or where the lead engineer determines there is pile refusal or pile instability. In situations when shutdown is called for during impact pile driving, but US Wind determines shutdown is not practicable due to aforementioned emergency reasons, reduced hammer energy must be implemented when the lead engineer determines it is practicable. Specifically, pile refusal or pile instability could result in not being able to shut down pile driving immediately. Pile refusal occurs when the pile driving sensors indicate the pile is approaching refusal and a shut-down would lead to a stuck pile which then poses an imminent risk of injury or loss of life to an individual, or risk of damage to a vessel that creates risk for individuals. Pile instability occurs when the pile is unstable and unable to stay standing if the piling vessel were to “let go”. During these periods of instability, the lead engineer may determine a shut-down is not feasible because the shut-down combined with impending weather conditions may require the piling vessel to “let go”, which then poses an imminent risk of injury or loss of life to an individual, or risk of damage to a vessel that creates risk for individuals. US Wind must document and report to NMFS all cases where the emergency exemption is taken.
After shutdown, foundation installation may be reinitiated once all clearance zones are clear of marine mammals for the minimum species-specific periods, or, if required to maintain pile stability, at which time the lowest hammer energy must be used to maintain stability. If foundation installation has been shut down due to the presence of a North Atlantic right whale, pile driving must not restart until the North Atlantic right whale has neither been visually or acoustically detected by PSOs and PAM operators for 30 minutes. Upon re-starting pile driving, soft-start protocols must be followed if pile driving has ceased for 30 minutes or longer.
The clearance and shutdown zone sizes vary by species and are shown in tables 24 and 25. US Wind is allowed to request modification to these zone sizes pending results of SFV (see the regulatory text at the end of this rule). Any changes to zone size would be part of adaptive management and would require NMFS' approval. The 10 km PAM monitoring zone for North Atlantic right whales has been carried forward from the proposed rule into this final rule. A 10-km distance is a reasonable distance for a PAM system to monitor; thus, 10 km was added as the requirement for the PAM monitoring zone.
In addition to the clearance and shutdown zones that would be monitored both visually and acoustically, NMFS is requiring US Wind to establish a minimum visibility zone during foundation installation activities to ensure both visual and acoustic methods are used in tandem to detect marine mammals resulting in maximum detection capability. The minimum visibility zone is defined as the area over which PSOs must be able to visually detect marine mammals and must be visible for the duration of the 60-minute clearance period. This zone would extend from the location of the pile being driven out to 2,900 m (9,514 ft) for monopile installation, 1,400 m for 3-m pin pile installation, and 200 m for 1.8-m pin pile installation (table 24). During monopile and 3-m pin pile installation, the minimum visibility zone is equal to the modeled maximum
R
95 percent
distances to the Level A harassment threshold for low-frequency cetaceans. The minimum visibility zone for 1.8-m pin piles is equal to the clearance zone, which is double the modeled maximum R
95 percent
distance to the Level B harassment threshold (100 m) and four times the modeled maximum R
95 percent
distance to the Level A harassment threshold (50 m) for low-frequency cetaceans. NMFS increased the 1.8-m pin pile minimum visibility zone given the very small zone sizes from this short (3 piles total) activity.
For HRG surveys, there are no mitigation measures prescribed for sound sources operating at frequencies greater than 180 kHz, as these would be expected to fall outside of marine mammal hearing ranges and would not result in harassment. However, all HRG survey vessels would be subject to the aforementioned vessel strike avoidance measures described earlier in this section. Furthermore, due to the frequency range and characteristics of some of the sound sources associated with lesser impacts, shutdown, clearance, and ramp-up procedures are not planned to be conducted during HRG surveys utilizing only non-impulsive sources (
e.g.,
other parametric sub-bottom profilers). Shutdown, clearance, and ramp-up procedures are planned to be conducted during HRG surveys utilizing SBPs and other non-parametric sub-bottom profilers (planned survey equipment that may result in take of marine mammals a
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