Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys in the New York Bight

SUPPLEMENTARY INFORMATION:

Background

The Marine Mammal Protection Act (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 promulgated or, if the taking is limited to harassment, an incidental harassment authorization is issued.

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 such species or stocks for taking for certain subsistence uses (referred to here as “mitigation measures”). NMFS must also prescribe requirements pertaining to monitoring and reporting of such takings. The definition of key terms such as “take,” “harassment,” and “negligible impact” can be found in the MMPA and the NMFS's implementing regulations (see 16 U.S.C. 1362; 50 CFR 216.103).

NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods of time not to exceed 1 year for each reauthorization. In the notice of proposed IHA for the initial IHA, NMFS described the circumstances under which we would consider issuing a renewal for this activity, and requested public comment on a potential renewal under those circumstances. Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year renewal of an IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical, or nearly identical, activities as described in the Detailed Description of Specified Activities section of the initial IHA issuance notice is planned or (2) the activities as described in the Description of the Specified Activities and Anticipated Impacts section of the initial IHA issuance notice would not be completed by the time the initial IHA expires and a renewal would allow for completion of the activities beyond that described in the DATES section of the notice of issuance of the initial IHA, provided all of the following conditions are met:

1. A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond 1 year from expiration of the initial IHA).

2. The request for renewal must include the following:

• An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take); and
• A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.

3. Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.

An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed renewal. A description of the renewal process may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with relevant comments on the initial IHA, have been considered in the development of this proposed IHA renewal, and a summary of agency responses to applicable comments is included in this notice. NMFS will consider any additional public comments prior to making any final decision on the issuance of the requested renewal, and agency responses will be summarized in the final notice of our decision.

National Environmental Policy Act

This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental take authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS determined that the issuance of the initial IHA qualified to be categorically excluded from further National Environmental Policy Act review. NMFS has preliminarily determined that the application of this categorical exclusion remains appropriate for this renewal IHA.

History of Request

On June 30, 2023, NMFS issued an IHA to COSW to take marine mammals incidental to Marine Site Characterization Surveys in the New York Bight, specifically within the BOEM Commercial Lease of Submerged Lands for Renewable Energy Development on the OCS Lease Area and associated ECR Area (88 FR 42322), effective from July 1, 2023, through June 30, 2024. On June 14, 2024, NMFS received an application for the renewal of that initial IHA. COSW has met all the conditions for a renewal.As described in the application for renewal IHA, the activities for which incidental take is requested consist of activities that are covered by the initial authorization but were not completed prior to its expiration. As required, the COSW also provided a preliminary monitoring report which confirms that the applicant has implemented the required mitigation and monitoring, and which also shows that no impacts of a scale or nature not previously analyzed or authorized have occurred as a result of the activities conducted. NMFS has decided to waive the 60 days renewal requirement, recognizing that the renewal IHA, if issued, will expire one year from the expiration date of the initial IHA, on June 30, 2025, and having ensured that COSW understands that there is a lapse in MMPA authorization coverage between the expiration of the initial IHA and the issuance of any renewal.

Description of the Specified Activities and Anticipated Impacts

COSW proposes to conduct marine site characterization surveys with high-resolution geophysical (HRG) surveys and geotechnical sampling from August 6, 2024 through June 30, 2025. Only HRG surveys are expected to have the potential to cause incidental take of small numbers of marine mammals. Specifically, the initial IHA consisted of up to 30,467 kilometers of trackline in waters off the coast of New Jersey and New York in the New York Bight, which is within the BOEM Lease Area OCS-A 0539 and associated ECR Area. Hereafter, both the areas are referred to as the Survey Area. Of note, the trackline was broken down by Lease Area survey and ECR survey area. Approximately 28,290 km was planned for the Lease Area and 2,177 km for the ECR Area. The effort for bottlenose dolphins was differentiated to account for the two stocks present in the Survey Area. In the ECR Area trackline, 400 kilometers is in waters <20 m deep where the Western North Atlantic Migratory Coastal Stock (Coastal Stock) of bottlenose dolphins may be present, whereas the remaining 1,777 km is in waters >20 meters deep where the Western North Atlantic Offshore Stock (Offshore Stock) of bottlenose dolphins may be present. In the Lease Area, all 28,290 km of trackline are in waters >20 meters deep. COSW was unable to complete the full survey effort planned under the initial IHA and, for this renewal, COSW requests authorization for take incidental to completion of the remaining HRG survey tracklines.

The purpose of COSW's proposed surveys is to provide sufficient data to meet BOEM guidelines and support the development of offshore wind facilities in the Survey Area. Specifically, data collected would support site characterization, siting, and engineering design of offshore wind facilities including turbine generators, offshore substations, submarine cables and data necessary for project review requirements. COSW will have a maximum of three vessels surveying concurrently. Underwater sounds produced from sparkers during COSW's surveys have the potential to result in Level B harassment for 15 species and 16 stocks of marine mammals. With the exception of a slight change in the remaining survey trackline kilometers and reduction in the take estimates, activities proposed for the IHA renewal are identical in scope, effort, potential harassment to marine mammals, and mitigation measures as the final proposed IHA (88 FR 42322 June 30, 2023).

Detailed Description of the Activity

A detailed description of the surveys for which incidental take is proposed here may be found in the Federal Register Notices of the initial Proposed IHA (88 FR 24574, April 21, 2023). During the initial IHA, COSW surveyed a total of 11,775 kilometers (120 kilometers of trackline in waters <20 meters deep) of trackline using a 3-sparker array (Applied Acoustics Dura-Spark UHD 400+400). As noted above, COSW was unable to complete the total 30,467 kilometers of tracklines included in the initial IHA, and have requested a renewal to authorize take incidental to the remaining 19,092 kilometers (280 kilometers in waters <20 meters) of tracklines. The location, duration, and nature of the activities, including the types of equipment planned for use, are identical to those described in the previous notices. As a result of a miscommunication, COSW's initial IHA authorized 400 km less trackline than they intended ( i.e., 30,467 km versus 30,867 km) and, therefore, COSW asked that the renewal IHA include the 400 km (19,092 km vs. 18,692) of trackline that was inadvertently omitted from the initial IHA. NMFS has determined that this correction to the remaining trackline is a minor change that does not affect the previous analyses, mitigation or monitoring requirements, or take estimates (except, of course, for the reduction in the take estimates). The percent of trackline left to survey and estimated take that may occur has been updated accordingly. The proposed renewal would be effective from the date of issuance through June 30, 2025 (one year after the expiration of the initial IHA).

Description of Marine Mammals

A description of the marine mammals in the area of the activities for which authorization of take is proposed here, including information on abundance, status, distribution, and hearing, may be found in the Federal Register notice of the proposed IHAs (88 FR 24574, April 21, 2023) for the initial IHA. NMFS has reviewed the monitoring data from the initial IHA, the draft 2023 Stock Assessment Reports (SARs), which included updates to certain stock abundances since the initial IHA was issued, information on relevant unusual mortality events (UME), and other scientific literature. The draft 2023 SAR updated the population estimate (N_best) of North Atlantic right whales from 338 to 340 and annual mortality and serious injury from 31.2 to 27.2. The updated population estimate in the draft 2023 SAR is based upon sighting history through December 2021 (89 FR 5495, January 29, 2024). 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, however, estimates of 27.2 total mortality and 17.6 fishery mortality account for undetected mortality and serious injury (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).

The population estimates (N_best) also increased for the North Atlantic stock of sperm whales, the Western North Atlantic Offshore stock of common bottlenose dolphins, Western North Atlantic stocks of Risso's dolphins, Atlantic spotted dolphins, and gray seals. However, abundance estimates slightly decreased for the Western North Atlantic stocks of common dolphins and harbor porpoises. NMFS has determined there is no new information that affects which species or stocks have the potential to be affected or the pertinent information in the Description of the Marine Mammals in the Area of Specified Activities contained in the supporting documents for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

A description of the potential effects of the specified activity on marine mammals and their habitat for the activities for which an authorization of incidental take is proposed here may be found in the Notices of the Proposed and Final IHAs for the initial IHA. NMFS has reviewed the monitoring data from the initial IHA, recent draft stock assessment reports, information on relevant UMEs and other scientific literature and determined that there is no new information that affects our initial analysis of impacts on marine mammals and their habitat.

Estimated Take

A detailed description of the methods and inputs used to estimate take for the specified activity are found in the Federal Register Notice of the Final IHA (88 FR 42322, June 30, 2023) for the initial IHA. Specifically, the source levels, days of operation, and marine mammal density/occurrence data applicable to this authorization remain unchanged from the initial IHA.

To estimate the number of marine mammals predicted to be exposed to sound levels that would result in harassment of the initial IHA, radial distances to predicted isopleths corresponding to Level B harassment thresholds were calculated. The distance ( i.e., 141 meters distance associated with both sparker systems) to the Level B harassment criterion and the total length of the survey trackline were then used to calculate the total ensonified area, or harassment zone, around the survey vessel. The number of marine mammals expected to be incidentally taken during the total survey was then calculated by estimating the number of each species predicted to occur within the ensonified area (animals/km² ), incorporating the greatest seasonal estimated marine mammal densities. The product was then rounded to generate an estimate of the total number of instances of harassment expected for each species over the duration of the survey (up to 293 days). A summary of this method is illustrated in the following formula, where the Harassment Zone is multiplied by the highest seasonal mean density ( D ) of each species or stock (animals/km² ; except for pilot whales where annual density was used based on data availability).

Estimated Take = Harassment Zone × D

The number of takes proposed for authorization in this renewal are a subset of the initial authorized takes that better represent the amount of the remaining activity COSW has left to complete. For all species but bottlenose dolphins, estimated takes were calculated by multiplying the authorized take in the initial IHA by the percent of the initial total trackline considered (30,467 kilometers) represented by the requested remaining trackline (19,092 km), which is 63 percent (see Table 1). As noted above, the effort for bottlenose dolphins was differentiated to account for the two stocks present in the Survey Area. Tracklines in the Survey Area in waters <20 meters and >20 meters deep were differentiated to account for differences in density between the two stocks of bottlenose dolphins, and the appropriate percentages of tracklines (70 and 62, respectively) are also indicated in Table 1.