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

SUPPLEMENTARY INFORMATION:

Background

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

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

History of Request

On October 6, 2022, NMFS issued an IHA to Ørsted (parent company of Bay State Wind) to take marine mammals incidental to marine site characterization surveys in Lease Areas OCS-A 0486, 0487, 0500 off the coasts from New York to Massachusetts and along potential ECRs to landfall locations between Raritan Bay (part of the New York Bight) and Falmouth, Massachusetts (87 FR 61575; October 12, 2022). On May 26, 2023, NMFS received a request for a renewal of that initial IHA because Ørsted's marine site characterization surveys under the initial IHA had not yet been completed and more time was required. The renewal IHA was issued on September 29, 2023 (88 FR 62337, October 5, 2023). Ørsted has complied with all the requirements ( e.g., mitigation, monitoring, and reporting) of the previous IHAs in Lease Areas OCS-A 0486, 0487, and 0500.

On March 27, 2024, NMFS received a request from Bay State Wind for an IHA to take marine mammals incidental to conducting marine site characterization surveys off the coasts of Rhode Island and Massachusetts. This request was limited to planned survey activity in OCS-A 0500 ( i.e., Ørsted's planned Bay State Wind development) and the associated ECR area. Following NMFS' review of the application, Bay State Wind submitted a revised version on June 10, 2024. Following additional review of the application, Bay State Wind submitted another revised version on July 29, 2024, which was deemed adequate and complete on August 1, 2024. Bay State Wind's request is for take of 17 species of marine mammals, by Level B harassment only. Neither Bay State Wind nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. There are no changes from the proposed IHA to the final IHA.

Description of the Activity and Anticipated Impacts

Overview

Bay State Wind will conduct marine site characterization surveys, including high-resolution geophysical (HRG) surveys and geotechnical surveys, in BOEM Lease Area OCS-A 0500, and the associated ECR. The purpose of the marine site characterization surveys is to collect data concerning seabed (geophysical, geotechnical, and geohazard), ecological, and archeological conditions within the footprint of the offshore wind facility development. Surveys are also conducted to support engineering design and to map unexploded ordnance (UXO). Underwater sound resulting from Bay State Wind's proposed activities, specifically HRG surveys, has the potential to result in incidental take of 17 species, in the form of Level B harassment only.

Dates and Duration

While the exact dates have not yet been established, the activities are planned to begin as soon as possible upon issuance of an IHA, if appropriate. The activity is expected to require up to 350 survey days across a maximum of four vessels operating concurrently over the course of a single year (“survey day” defined as a 24-hour activity period in which the assumed number of line kilometers (km) are surveyed). Vessel days are defined as the number of days any single vessel is in operation regardless of any other vessel operations ( i.e., if two vessels are working concurrently within the same 24-hour period, each vessel would be counted as having a vessel day for a total of two vessel days even though the activity occurs within a single 24-hour period). The number of anticipated survey days was calculated as the number of days needed to reach the overall level of effort required to meet survey objectives assuming any single vessel covers, on average 70 line km per 24-hour operations.

Specific Geographic Region

The survey activities will occur within the Lease Area and potential ECRs off the coasts of Rhode Island and Massachusetts (figure 1). Water depths in the Lease Area and potential ECRs extend out from shoreline to approximately 90 meters (m).

Detailed Description of the Specified Activity

A detailed description of the planned site characterization surveys is provided in the Federal Register notice for the proposed IHA (89 FR 67597, August 21, 2024). The nature of the specified activities, including the types of HRG equipment planned for use ( e.g., CHIRPs, boomers, and sparkers), daily trackline distances (70 line km per 24-hr period), and number of survey vessels (up to four operating concurrently), are identical to those described in the previous notice.

Comments and Responses

A notice of NMFS' proposal to issue an IHA to Bay State Wind was published in the Federal Register on August 21, 2024 (89 FR 6759). That notice described, in detail, or referenced descriptions of Bay State Wind's activity, the marine mammal species that may be affected by the activity, the anticipated effects on marine mammals and their habitat, estimated number and manner of take, and proposed mitigation, monitoring and reporting measures.

During the 30-day public comment period, NMFS received one substantive comment letter, from the Wampanoag Tribe of Gay Head (Aquinnah) (Tribe). We reiterate here that NMFS' proposed action concerns only the authorization of marine mammal take incidental to the planned surveys—NMFS' authority under the MMPA does not extend to the surveys themselves or to wind energy development more generally. Comments from the Wampanoag Tribe of Gay Head (Aquinnah) (Tribe)'s letter considered out of scope include (1) a request that NMFS fully study the implications of the Vineyard Wind blade failure on marine mammals “prior to any further federal action concerning offshore wind farms,” (2) general opposition to authorization of take incidental to any activities associated with offshore wind development until “the Coast Guard has finished establishing shipping safety fairways,” a statement that “offshore wind development needs to be balanced with navigational safety,” and criticism of NMFS and BOEM for allegedly “improperly segmenting offshore wind activities in the Atlantic Ocean.” All substantive comments, and NMFS' responses, are provided below. The comments and recommendations are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Please see the comment submissions for full details regarding the recommendations and supporting rationale.

Comment 1: The Tribe asserted generally that NMFS is not appropriately complying with Executive Order 13175, which requires meaningful government-to-government consultation with tribes on matters that have implications for tribes.

Response: NMFS is committed to engaging with the Tribe moving forward. However, for the reasons included in this notice, we disagree that no IHAs for HRG surveys should be renewed in the New York Bight pending engagement with the Tribe.

Comment 2: The Tribe stated they do not agree that use of a Categorical Exclusion (CE) under National Environmental Policy Act (NEPA) is appropriate, suggesting that NMFS must conduct additional analysis of the cumulative impact of projects in the Massachusetts and Rhode Island offshore area, especially to Endangered Species Act (ESA)-listed species, and particularly to the North Atlantic right whale (NARW).

Response: NMFS disagrees with the commenter's statement and has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review. A CE is a category of actions that an agency has determined does not individually or cumulatively have a significant effect on the quality of the human environment and is appropriately applied for such categories of actions so long as there are no extraordinary circumstances present that would indicate that the effects of the action may be significant. Extraordinary circumstances are situations for which NOAA has determined further NEPA analysis is required because they are circumstances in which a normally excluded action may have significant effects. A determination of whether an action that is normally excluded requires additional evaluation because of extraordinary circumstances focuses on the action's potential effects and considers the significance of those effects in terms of both context (consideration of the affected region, interests, and resources) and intensity (severity of impacts). Potential extraordinary circumstances relevant to this action include: (1) adverse effects on species or habitats protected by the MMPA that are not negligible; (2) highly controversial environmental effects; (3) environmental effects that are uncertain, unique, or unknown; and (4) the potential for significant cumulative impacts when the proposed action is combined with other past, present, and reasonably foreseeable future actions.

The relevant NOAA CE associated with issuance of incidental take authorizations is CE B4, “Issuance of incidental harassment authorizations under section 101(a)(5)(A) and (D) of the MMPA for the incidental, but not intentional, take by harassment of marine mammals during specified activities and for which no serious injury or mortality is anticipated.” This action falls within CE B4. In determining whether a CE is appropriate for a given incidental take authorization, NMFS considers the applicant's specified activity and the potential extent and magnitude of takes of marine mammals associated with that activity along with the extraordinary circumstances listed in the Companion Manual for NOAA Administrative Order (NAO) 216-6A and summarized above.

The evaluation of whether extraordinary circumstances (if present) have the potential for significant environmental effects is limited to the decision NMFS is responsible for, which is issuance of the incidental take authorization. Potential effects of NMFS' action are limited to those that would occur due to the authorization of incidental take of marine mammals. NMFS prepared numerous EAs analyzing the environmental impacts of the categories of activities encompassed by CE B4, which resulted in Findings of No Significant Impacts (FONSIs) and, in particular, numerous EAs prepared in support of issuance of IHAs related to similar survey actions are part of NMFS' administrative record supporting CE B4. These EAs demonstrate the issuance of a given incidental harassment authorization does not affect other aspects of the human environment because the action only affects the marine mammals that are the subject of the incidental harassment authorization.

Specifically for this action, NMFS independently evaluated the use of the CE for issuance of Bay State Wind's IHA, which included consideration of extraordinary circumstances. As part of that analysis, NMFS considered whether this IHA issuance would result in cumulative impacts that could be significant. In particular, the issuance of an IHA to Bay State Wind is expected to result in minor, short-term behavioral effects on marine mammal species due to exposure to underwater sound from site characterization survey activities. Behavioral disturbance is possible to occur intermittently in the vicinity of Bay State Wind's survey area during the 1-year timeframe. Level B harassment will be reduced through use of mitigation measures described herein. Additionally, as discussed elsewhere, NMFS has determined that Bay State Wind's activities fall within the scope of activities analyzed in Greater Atlantic Regional Fisheries Office's (GARFO's) programmatic consultation regarding geophysical surveys along the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions (completed June 29, 2021; revised September 2021), which concluded surveys such as those planned by Bay State Wind are not likely to adversely affect ESA-listed species or adversely modify or destroy critical habitat. Accordingly, NMFS has determined that the issuance of this IHA will result in no more than negligible (as that term is defined by the Companion Manual for NAO 216-6A) adverse effects on species protected by the ESA and the MMPA.

Further, the issuance of this IHA will not result in highly controversial environmental effects or result in environmental effects that are uncertain, unique, or unknown because numerous entities have been engaged in site characterization surveys that result in Level B harassment of marine mammals in the United States. This type of activity is well documented; prior authorizations and analysis demonstrates issuance of an IHA for this type of action only affects the marine mammals that are the subject of the specific authorization and, thus, no potential for significant cumulative impacts are expected, regardless of past, present, or reasonably foreseeable actions, even though the impacts of the action may not be significant by itself. Based on this evaluation, we concluded that the issuance of the IHA qualifies to be categorically excluded from further NEPA review.

The commenters did not provide any new or compelling evidence that suggests that wind energy development activities have the potential to negatively impact NARW. NMFS recognizes and appreciates the importance of the NARW as an integral part of traditional lifeways and cultural practices. However, NMFS emphasizes that there is no credible scientific evidence available suggesting that mortality and/or serious injury or Level A harassment is a potential outcome of the planned survey activity, and no additional evidence was presented by the commenter. NMFS notes there have never been reports of any serious injuries or mortalities of any marine mammal associated with site characterization surveys. The best available science indicates that Level B harassment, or disruption of behavioral patterns, may occur as a result of Bay State Wind's specified activities. This point has been well supported by other agencies, including the BOEM and the Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring 2023). In addition, a recent study by Thorne and Wiley (2024) 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 injuries. Based upon the spatiotemporal analysis, no evidence was found that offshore wind development played a role in the increased number of strandings over time; for example, spatiotemporal patterns between strandings and site assessment surveys did not seem associated. In fact, the potential for vessel strike increased from 2016-2022 in association with increased container vessel traffic that overlapped with whales in new and shallow foraging areas. This potential for vessel strike also seemed to increase with the increased presence of juvenile humpback whales foraging off the Mid-Atlantic States. Under the IHA, NMFS requires Bay State Wind to abide by vessel speed restrictions and maintain separation distances between vessels and marine mammals that are intended to minimize the risk of any potential vessel strikes. The impacts of Level B harassment ( i.e., behavioral disturbance) are expected to have a negligible impact on the NARW population as well as other potentially impacted marine mammal populations. NMFS has made the required findings based on the best scientific information available and has included mitigation measures to effect the least practicable adverse impacts on NARWs and other potentially impacted marine mammals. There is an active unusual mortality event (UME) for NARWs that began in June 2017. Overall, preliminary findings support human interactions, specifically vessel strikes and entanglements, as the cause of death for the majority of right whales. NMFS will continue to gather data to help us determine the cause of death for stranded whales. Vessel strikes and entanglement in fishing gear continue to be the greatest human threats to large whales.

Description of Marine Mammals in the Area of Specified Activities

A detailed description of the species likely to be affected by Bay State Wind's marine site characterization surveys, 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 sections 3 and 4 of the application, the Federal Register notice of the proposed IHA (89 FR 67597, August 21, 2024), and the Federal Register notice of the proposed IHA for the 2022 IHA (87 FR 52515, August 26, 2022) addressing Lease Areas OCS-A 0486, 0487, and 0500. NMFS fully considered all of this information, and we refer the reader to these descriptions, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ) and more general information about these species ( e.g., physical and behavioral descriptions) may be found on NMFS' website ( https://www.fisheries.noaa.gov/find-species ).

Table 1 lists all species or stocks for which take is expected and proposed to be authorized for this activity and summarizes information related to the population or stock, including regulatory status under the MMPA and (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no serious injury or mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in table 1 are the most recent available at the time of publication, including, as applicable, from the draft 2023 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ).