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.

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. The notice of the proposed renewal IHA was published for public comment on August 21, 2024 (89 FR 67592). There are no changes from the proposed authorization in this final authorization.

Description of the Specified Activities and Anticipated Impacts

COSW's 2023 IHA authorized take of marine mammals incidental to marine site characterization surveys, including high-resolution geophysical (HRG) surveys, offshore from 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. The purpose of these 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's 2023 survey plan included 30,467 kilometers (km) of trackline. 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 km is in waters <20 meters (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 m 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 m deep. COSW actually only completed 11,775 km (120 km of trackline in waters <20 m deep) of trackline prior to the request for the renewal, representing approximately 63 percent. 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 m and >20 m 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).

Under the renewal IHA, COSW plans to continue to conduct survey activities over the remaining approximately 19,092 km of trackline that was not completed in 2023. 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. COSW will have a maximum of three vessels surveying concurrently.

The potential impacts of COSW's planned activities on marine mammals involve acoustic stressors and are unchanged from the impacts described in the Federal Register notice for the initial Proposed IHA (88 FR 24574, April 21, 2023). Underwater sound, resulting from particular components of COSW's HRG survey activities, has the potential to result in incidental take of marine mammals, in the form of Level B harassment only, in the specified geographic region.

This renewal IHA is for the remainder of work that was not completed by the expiration date of the 2023 IHA. The renewal IHA authorizes incidental take, by Level B harassment, only of 15 species (16 stocks) of marine mammals for a subset of marine site characterization survey activities to be completed, in the same area, using survey methods identical to those conducted under the 2023 IHA. Neither COSW nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. Take by Level A harassment (injury) is unlikely, even absent mitigation, based on the characteristics of the signals produced by the acoustic sources planned for use. Therefore, the anticipated effects on marine mammals and the affected stocks also remain the same. All mitigation, monitoring, and reporting measures would remain exactly as described in the Federal Register notice for the issued 2023 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). The specific geographic region and specified activities, including the types of survey equipment and number of survey vessels planned for use, are identical to those described in the previous notice, with the exception of the reduction in the size of the survey area since a small subset of the survey work planned under the 2023 IHA was completed. This renewal IHA is effective from [insert date of issuance] through June 30, 2025.

Comments and Responses

A notice of NMFS' proposal to issue a renewal IHA to COSW was published in the Federal Register on August 21, 2024 (89 FR 67592). That notice described, in detail, or referenced descriptions of COSW'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. NMFS received a total of two public comment letters. One public comment letter was from a non-governmental organization (Clean Ocean Action (COA)). The other was from the Wampanoag Tribe of Gay Head (Aquinnah) (Tribe).

We reiterate 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. Some comments requested that NMFS fully study the implications of the Vineyard Wind blade failure on marine mammals before moving forward with offshore wind development, oppose take from offshore wind until the U.S. Coast Guard has finished establishing shipping safety fairways to balance offshore wind development with navigational safety, criticize NMFS and BOEM for improperly segmenting offshore wind activities in the Atlantic Ocean, and criticize BOEM's underdeveloped understanding of marine mammal species' current status such that the agency cannot accurately plan for future protections and mitigation of potential impacts. We do not specifically address these comments because they are out of scope of the proposed Renewal IHA (89 FR 67592, August 21, 2024). 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: A commenter has suggested that a Letter of Authorization (LOA) would be more appropriate than an IHA for the proposed survey activities, as the survey activities have spanned more than one year and NMFS has not indicated if the additional year will be sufficient to complete the remaining work. The commenter further stated that it is unclear whether there will be another renewal IHA proposed and authorized at the end of the current IHA, should it be granted.

Response: NMFS disagrees with the commenter that an LOA would be more appropriate than an IHA for the planned survey activities simply because the survey activity has extended for more than a year. The MMPA allows, upon request, the incidental take of small numbers of marine mammals by U.S. citizens, engaged in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made. Two types of authorizations may be issued under Sections 101(a)(5)(A) and (D) of the MMPA. An LOA and accompanying incidental take regulation (ITR) may be issued to authorize U.S. citizens, engaged in a specified activity (other than commercial fishing), to take small numbers of marine mammals for up to 5 years, whereas an IHA may be issued to authorize U.S. citizens, engaged in a specified activity (other than commercial fishing), to take small numbers of marine mammals by harassment for a period of 1 year. Neither the MMPA, nor its legislative history specifically require U.S. citizens to seek an LOA/ITR pursuant to section 101(a)(5)(A) of the MMPA simply because an activity continues for more than one year. A determination of which option to pursue is not solely dependent on whether an activity continues for more than one year.

While the NMFS website recommends that applicants seek an LOA if specified activity has the potential to result in harassment only and is planned for multiple years, it is not dispositive. On our website and in various Federal Register notices, NMFS explains that a renewal IHA is available to address those circumstances in which an action under the initial IHA could not be completed within the effective period of the authorization. COSW's request for the initial IHA indicated a project duration of 1 year. As delays may be encountered, the Federal Register notices for the Proposed IHA and the Proposed Renewal IHA further establish that NMFS may issue “a one-time, one-year renewal IHA” on a case-by-case basis if certain conditions are met (88 FR 24574, Apr. 21, 2023; 89 FR 67592, Aug. 21, 2024). In order to qualify for a renewal IHA, the proposed renewal must consist of no more than one additional year of identical, or nearly identical, activities as were covered by the initial IHA or a subset of the activities covered by the initial IHA. Additionally, the request for a renewal IHA must be accompanied by a preliminary monitoring report and explanation that the results do not indicate impacts of a scale or nature not previously analyzed or authorized. NMFS must also find there are no more than minor changes in the activities, the mitigation and monitoring measures remain the same and are appropriate, and the findings in the initial IHA remain valid.

Upon review of the COSW's request for renewal, the status of the affected species or stocks, the preliminary monitoring report, and other pertinent information, NMFS finds: (1) COSW's renewal request is a subset of the activities covered by the initial IHA; (2) there are no more than minor changes in the survey activities ( i.e., COSW's correction of the remaining survey tracklines); (3) COSW's preliminary monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized under the initial IHA; (4) mitigation and monitoring requirements are identical to those established in the initial IHA; and (5) the findings in the initial IHA (including the take estimates and small numbers determinations (except, of course, for reductions in each resulting from the change in the survey effort) and negligible impact determinations) remained valid. Therefore, COSW meets the conditions for a renewal IHA.

Comment 2: A commenter states there is considerable uncertainty regarding the effect of preconstruction surveying on marine mammals.

Response: NMFS disagrees. NMFS has issued IHAs for marine site characterization surveys and HRG surveys since 2014 and marine mammal behavioral responses, or lack thereof, from these activities are well documented. Marine mammal monitoring reports from authorized surveys and the best available science indicate that only Level B harassment ( i.e., temporary disruption of behavioral patterns) may occur. No mortality or serious injury, or Level A harassment, is expected to occur as a result of COSW's planned surveys, and there is no scientific evidence indicating that any marine mammal could experience mortality or serious injury as a direct result of noise from HRG survey activity.

Comment 3: A commenter stated that Protected Species Observers (PSO) reports are rarely published publicly in any consistent way unless and until a developer applies for an IHA renewal.

Response: NMFS disagrees with the commenter's assertion that PSO reports are rarely published unless a developer applies for an IHA renewal. All applicants are required to submit a PSO report within 90 days after completion of survey activities that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring. All PSO reports are made publicly available on NMFS's website after receipt. The preliminary PSO report submitted by the applicant and noted in the Federal Register notice (89 FR 67592, August 21, 2024) proposing this action was a requirement under the BOEM Project Design Criteria (PDC) and Best Management Practices (PDC 8). COSW's preliminary PSO report is publicly available on NMFS's website. To view the preliminary PSO information, please visit: https://www.fisheries.noaa.gov/action/incidental-take-authorization-community-offshore-wind-llc-marine-site-characterization. NMFS agrees with the need for reporting and indeed, the MMPA calls for IHAs to incorporate reporting requirements and a final marine mammal PSO report is required for the 2023 IHA. As included in the proposed IHA, the final IHA includes requirements for reporting that supports COA's recommendations for consistent reporting, as well as timeframes for when reports will be considered complete and subsequently made publicly available. COSW is required to submit a PSO report to NMFS within 90 days after completion of survey activities that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring. All final reports and associated data submitted to NMFS are posted on NMFS' website.

Comment 4: Commenters state they do not agree with the use of a Categorical Exclusion (CE) under National Environmental Policy Act (NEPA) and further analysis should be conducted while considering cumulative effects of the proposed IHA relative to other authorized takes in the area, including the activities conducted under the 2023 IHA and other projects in the New York Bight.

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 may be used to address 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 COSW'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 COSW 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 COSW'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 COSW's activities fall within the scope of activities analyzed in 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 COSW 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.

Comment 5: Commenters object to allowing any takes to North Atlantic right whales (NARW) due to the species' fragile status and believe that preserving the existence of NARW warrants pausing offshore development off the Atlantic coast. Commenters state that NMFS needs to study the cumulative harassment of marine mammals and other listed species, particularly the NARW whose existence are an integral part of traditional lifeways and cultural practices. Commenters urge NMFS to assess cumulative impacts to this most endangered species, including the total number, speed, and distance of vessel trips required for marine site characterization survey activities, for all concurrent projects in the region. Commenter's also reference Thorne and Wiley's (2024) paper stating that the conclusion highlights the need for further study on marine mammal strandings and the cumulative impacts of offshore wind.

Response: NMFS disagrees with the commenter's statement. NMFS authorizes take of marine mammals incidental to marine site characterization surveys but the renewal IHA issued to COSW does not authorize the surveys themselves and does not authorize offshore wind development. The purpose of the marine site characterization surveys is to obtain sufficient data to meet BOEm guidelines for geophysical, geotechnical, and geohazard information to support site characterization, sight, and engineering design of future offshore wind project facilities. While NMFS has the authority to modify, suspend, or revoke an IHA if the IHA holder fails to abide by the conditions prescribed therein (including, but not limited to, failure to comply with monitoring or reporting requirements), or if NMFS determines that (1) the authorized taking is having or is likely to have more than a negligible impact on the species or stocks of affected marine mammals, or (2) the prescribed measures are likely not or are not effecting the least practicable adverse impact on the affected species or stocks and their habitat, it is not within NMFS' jurisdiction to impose a blanket moratorium on offshore wind development or to require cessation of the marine site characterization on the basis of unsupported speculation.

NMFS recognizes and appreciates the importance of the NARW as an integral part of traditional lifeways and cultural practices. But, 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. NMFS notes there have never been reports of any serious injuries or mortalities of any marine mammal associated with any marine site characterization surveys. And, the commenter did not provide any compelling scientific evidence to support their claim that the proposed IHA and specific activities would lead to mortality or serious injury of NARWs.

The best available science indicates that Level B harassment, or disruption of behavioral patterns, may occur as a result of COSW's specified activities. This point has been well supported by other agencies, including the Bureau of Ocean Energy Management and the Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring 2023). A recent study by Thorne and Wiley (2024) reviewed spatio-temporal 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 spatio-temporal analysis, no evidence was found that offshore wind development contributed to the increased number of strandings, serious injuries or mortalities; for example, spatio-temporal 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 COSW 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. NMFS is not suggesting the study by Thorne and Wiley (2024) presents any final resolution of the issue and generically agrees with the need for continued investigation on offshore wind effects on marine mammals. However, that does not impact our findings here for this IHA, or our determination that the specified activities will have a negligible impact on marine mammals.

There is an ongoing unusual mortality event (UME) for humpback whales along the Atlantic coast from Maine to Florida, which includes animals stranded since 2016. Partial or full necropsy examinations were conducted on approximately half of the whales. Necropsies were not conducted on other carcasses because they were too decomposed, not brought to land, or stranded on protected lands ( e.g., national and state parks) where responders had limited or no access to the carcasses. Of the roughly 90 whales examined, about 40 percent had evidence of human interaction ( i.e., vessel strike or entanglement). The remaining 50 necropsied whales either had an undetermined cause of death due to a limited examination or decomposition of the carcass, or had other causes of death ( e.g., parasite-caused organ damage and starvation). Ongoing UMEs are also occurring for NARW and minke whales, both since 2017. NMFS will continue to gather data to help us determine the cause of death for these stranded whales. Vessel strikes and entanglement in fishing gear continue to be the greatest human threats to large whales.

We also refer to the GARFO 2021 Programmatic Consultation, which finds that these survey activities are in general not likely to adversely affect marine mammal species listed under the ESA ( i.e., GARFO's analysis conducted pursuant to the ESA finds that marine mammals are not likely to be taken at all (as that term is defined under the ESA), much less be taken by serious injury or mortality). That document is found at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation. The impacts of Level B harassment authorized here ( 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.

NMFS also notes the cumulative effects of substantially similar activities in the northwest Atlantic Ocean have been analyzed in the past under section 7 of the ESA when NMFS engaged in formal intra-agency consultation, such as the 2013 programmatic Biological Opinion for Bureau of Ocean Energy Management Lease and Site Assessment Rhode Island, Massachusetts, New York, and New Jersey Wind Energy Areas ( https://repository.library.noaa.gov/view/noaa/29291 ). Analyzed activities include those for which NMFS issued previous IHAs (82 FR 31562, July 7, 2017; 85 FR 21198, April 16, 2020; 86 FR 26465, May 10, 2021), which are similar to those planned by COSW under this current IHA request.

For NMFS' response on cumulative impacts, please see our response to Comment 4.

Comment 6: The Wampanoag Tribe of Gay Head (Aquinnah) (Tribe) stated that NMFS continues to administer Section 7 consultations and take permits without complying with Executive Order 13175 that requires meaningful government-to-government consultation with Tribes on matters that have implications for tribes, and requested that no IHAs are renewed in the New York Bight until the issue is addressed.

Response:Executive Order 13175 directs Federal agencies to establish procedures for meaningful consultation and coordination with Tribal officials in the development of Federal policies that have Tribal implications. 65 FR 67249 (Nov. 9, 2000). “Policies that have tribal implications” refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Additionally, the consultation requirement set forth in Section 5 of Executive Order 13175 provides that “Each agency shall have an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” NMFS is committed to carrying out its responsibilities under Executive Order 13175, as implemented through NOAA Administrative Order 218-8 (Policy on Government-to-Government Consultation with Federally-Recognized Indian Tribes and Alaska Native Corporations) and the NOAA Tribal Consultation Handbook. However, NMFS disagrees that renewal of the IHA for the take of marine mammals incidental to HRG surveys in the New York Bight should be suspended. We intend to engage with the Tribe going forward to ensure that we satisfy our responsibilities under Executive Order 13175 and address to the extent possible (in context of the actions we are responsible for) the Tribe's concerns regarding wind energy development.

Comment 7: A commenter has requested that NMFS provide documentation for its determination to add an additional 400 km of trackline that was inadvertently excluded from the 2023 IHA—not providing the factual basis for the conclusion would make the finding arbitrary and capricious. The commenter further states that “nearly identical” has not been defined in NOAA protocols and the standard is subjective.

Response: Please see the Detailed description of the Activity in the Federal Register notice of proposed IHA (89 FR 67592, August 21, 2024). The request from COSW to include the additional 400 km of trackline is documented in this notice. NMFS has determined that the inclusion of the additional 400 km to the remaining survey trackline is a minor change that does not affect the analyses, mitigation and monitoring requirements remained the same as those identified in the initial IHA, NMFS's negligible impact determination on the affected species and/or stocks remained the same and, further, the remaining survey trackline for this renewal is less than the total trackline included in the initial IHA. The maximum percent population for each species is small relative to individual stock abundance (less than one third) which meets the criteria for NMFS to make a negligible impact determination for COSW's specified activities.

While “nearly identical” is not explicitly defined, NMFS believes the plain language definition is adequate. The IHA renewal process guidance on our website indicates that the applicant must clearly describe any minor change in the activity and why the change will have either no effect on the impacts to marine mammals, or will decrease the type and/or amount of expected take. An example of an applicant that is qualified for a renewal is an applicant conducting bird research at three sites (resulting in behavioral harassment of pinnipeds) as covered by the initial IHA. Sixty days prior to expiration of the initial IHA, the applicant requests a renewal to authorize take incidental to a second year conducting the same research, at the same three sites, for the same duration, in the same seasons—with no other known changes. An example of an applicant that is not qualified for renewal is an applicant conducting bird research at three sites (resulting in behavioral harassment of pinnipeds) as covered by the initial IHA. Two months prior to the expiration of the initial IHA, the applicant requests a renewal to authorize take incidental to a second year conducting the same research, at the same three sites, for the same duration, in the same seasons—but wishes to add one new site to the research activity, which is associated with the need for additional take authorization ( i.e., higher numbers than the initial IHA). Further, examples illustrating activities that do and do not qualify for a renewal are included on the website. NMFS has determined that the activities planned in the renewal IHA are nearly identical to those identified in the initial IHA, using the same survey equipment and number of survey vessels planned for use and covering the same geographic region. COSW will be using the same sparker systems (applied Acoustics Dura-Spark UHD 400+400 Seismic Sound Source (400 tip/300-1,000 joules (J)) and the Geo-Source 200-400 Marine Multi-Tip Sparker System (400 tip/300-1,000 J)) and implementing the same mitigation, monitoring, and reporting. Since the addition of 400 km of trackline does not increase the take beyond that analyzed or change the negligible impact determination, NMFS has determined that this change is minor and does not affect the previous analysis. For more information about the details and conditions of the IHA renewal process, please visit https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

Comment 8: A commenter suggested NMFS should work with other agencies to produce or commission an independent study about marine mammal mortality on the East Coast, specifically to cross-reference PSO data with the coordinates of marine mammal strandings to determine whether there is a correlation between wind surveying activities and strandings. The commenter states that using PSO data will improve the best available science to predict and potentially prevent impacts to marine mammals, and NMFS should refrain from issuing IHAs until the agency can determine the cause of the marine mammal deaths.

Response: NMFS disagrees that the renewal IHA should be denied, as we have made the necessary findings required by the MMPA for issuance and supported them with the necessary analyses and best available science. Neither the proposed IHA nor this final IHA allow mortality or serious injury of marine mammals to be authorized. NMFS authorizes take of marine mammals incidental to marine site characterization surveys but does not authorize the surveys themselves. Therefore, while NMFS has the authority to modify, suspend, or revoke an IHA if the IHA holder fails to abide by the conditions prescribed therein (including, but not limited to, failure to comply with monitoring or reporting requirements), or if NMFS determines that (1) the authorized taking is having or is likely to have more than a negligible impact on the species or stocks of affected marine mammals, or (2) the prescribed measures are likely not or are not effecting the least practicable adverse impact on the affected species or stocks and their habitat, it is not within NMFS' jurisdiction to impose a moratorium on offshore wind development or to require surveys to cease on the basis of unsupported speculation.

NMFS appreciates the suggestion to commission a study that would cross-reference PSO data with coordinates of marine mammal strandings to investigate a correlation between the two, but notes that correlation is not equivalent to causation, especially if all potential factors are not considered. The data collected by PSOs, and subsequent analysis, provide the necessary information to inform an estimate of the amount of take that occurred during the activity, better understand the impacts of the activity on marine mammals, address the effectiveness of monitoring and mitigation measures, and to adaptively manage activities and mitigation in the future. Data reported includes information on marine mammal sightings, activity occurring at time of sighting, monitoring conditions, and if mitigation was employed. NMFS has considered the best available science regarding the effect of wind surveying activities and marine mammal strandings and has determined there is no evidence that noise arising from offshore wind development-related site characterization surveys could potentially cause marine mammal stranding, mortality, or serious injury. There is no evidence linking recent large whale mortalities to past or ongoing site characterization surveys. The commenters offer no such evidence. NMFS will continue to gather data to help us determine the cause of death for stranded whales on the East Coast of the United States. We further note the Marine Mammal Commission's recent statement: “There continues to be no evidence to link these large whale strandings to offshore wind energy development, including no evidence to link them to sound emitted during wind development-related site characterization surveys, known as HRG surveys. Although HRG surveys have been occurring off New England and the mid-Atlantic coast, HRG devices have never been implicated or causatively-associated with baleen whale strandings.” (Marine Mammal Commission Newsletter, Spring 2023).

Of the strandings documented to date worldwide, NMFS is not aware of any being attributed to the types of HRG equipment proposed for use during COSW's surveys. Recently, there has been heightened interest in HRG surveys relative to recent marine mammals strandings along the U.S. East Coast. HRG surveys involve the use of certain sources to image the ocean bottom, which are very different from seismic airguns used in oil and gas surveys or tactical military sonar, in that they produce much smaller impact zones. Marine mammals may respond to exposure to these sources by, for example, avoiding the immediate area, which is why offshore wind developers, like COSW, seek authorization for Level B (behavioral) harassment. However, because of the combination of lower source levels, higher frequency, narrower beam-width (for some sources), and other factors, the area within which a marine mammal might be expected to be behaviorally disturbed by HRG sources is much smaller (by orders of magnitude) than the impact areas for seismic airguns or the military sonar with which a small number of marine mammal have been causally associated. Specifically, estimated harassment zones for HRG surveys are typically less than 200 m (such as those associated with the project), while the harassment zones for military mid-frequency active sonar or seismic airgun surveys typically extend for several kms ranging up to 10s of km. Further, because of this much smaller ensonified area, any marine mammal exposure to HRG sources is reasonably expected to be at significantly lower levels and shorter duration (associated with less severe responses), and there is no evidence suggesting that marine mammals exposed to HRG survey noise are likely to be injured, much less strand, as a result. Of note, NMFS has performed a thorough review of a report submitted by Rand (2023), that includes measurements of the Geo-Marine Geo-Source 400 sparker, and suggests that NMFS is assuming lower source and received levels than is appropriate in its assessments of HRG impacts. NMFS has determined that the values in this IHA are appropriate, based on the model methodology ( i.e., the assumed source level propagated using spherical spreading) here predicting a peak level 3 dB louder than the maximum measured peak level at the closest measurement range in Rand (2023).

Also of note, in an assessment of monitoring reports for HRG surveys received from 2021 and later, as compared to the takes of marine mammals authorized, an average of fewer than 15 percent of all species with authorized take have been detected within harassment zones, with no more than 27 percent for any species (common dolphins) and 20 percent or fewer for all other species. The most common behavioral reaction to the HRG sound source reported was “change direction” though detections of “no behavioral change” occurred nearly twice as many times as “change direction,” if not more.

Additionally, a recent paper by Thorne and Wiley (2024) reviewed spatio-temporal patterns of strandings, mortalities, and serious injuries of humpback whales along the U.S. East Coast from 2016-2022. Humpback whales were chosen as a case study for this analysis because of its ongoing UME and since Humpback whales 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 U.S. 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 spatio-temporal analysis, no evidence was found that offshore wind development contributed to 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, spatio-temporal changes in prey abundance and distribution, and how habitat use and foraging behavior affect the risk of vessel strike. Recently, NMFS was made aware of a media article wherein a member of the public conducted a statistical analysis on the correlation between offshore wind vessel use and whale deaths along the U.S. East Coast (Climate Change Dispatch, 2024). NMFS has long recognized that marine mammals strandings have increased over the years, including increases in strandings of three large whale species resulting in the declaration of UMEs for minke, humpback, and NARW in 2018, 2017, and 2017 respectively. Offshore wind development has increased over the same time period. However, NMFS does not ascribe much weight to the analysis. The analysis presented in the Climate Change Dispatch article was not peer-reviewed, and does not appear to separate other vessel movement from offshore wind-related survey activities, did not consider other known factors that are increasing ship strike risk in general ( e.g., Thorne and Wiley, 2024) or other factors leading to increased strandings ( e.g., entanglement, climate change), and the analysis did not demonstrate that offshore wind vessel traffic or HRG surveys are the cause of strandings. Overall, while NMFS considered this information, the Climate Change Dispatch article did not provide new information that links whale strandings to offshore wind vessel movement or surveys.

Furthermore, NMFS does not expect that the generally short-term, intermittent, and transitory marine site characterization survey activities planned by COSW will create conditions of acute or chronic acoustic exposure leading to long-term physiological impacts in whales. The best available science indicates that Level B harassment ( i.e., disruption of behavioral patterns) may occur as a result of COSW's specified activities. We also refer to the Greater Atlantic Regional Fisheries Office (GARFO) 2021 Programmatic Consultation, which finds that these survey activities are in general not likely to adversely affect Endangered Species Act (ESA)-listed marine mammal species. That document is found at https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation.

NMFS does not use PSO data to `predict and potentially prevent impacts to marine mammals', but has reviewed the best available scientific information about the occurrence of marine mammals, including current density data and other relevant information, to understand marine mammal densities in the planned survey area, calculate take estimates, and develop mitigation measures. Habitat-based density models produced by the Duke University Marine Geospatial Ecology Laboratory (Roberts et al., 2016, Roberts et al., 2023) represent the best available information regarding marine mammal densities in the planned survey area. These density data incorporate aerial and shipboard line-transect survey data from NMFS and other organizations and incorporate data from numerous physiographic and dynamic oceanographic and biological covariates, and controls for the influence of sea state, group size, availability bias, and perception bias on the probability of making a sighting. These density models were originally developed for all cetacean taxa in the U.S. Atlantic in 2016 and models for all taxa were updated in 2022 (Roberts et al., 2016, Roberts et al., 2023). More information is available online at https://seamap.env.duke.edu/models/Duke/EC/.

Marine mammal density estimates in the survey area (animals/km² ) were obtained using the most recent model results for all taxa. NMFS takes seriously the risk of impact to marine mammals through survey activities and has prescribed measures to ensure the least practicable adverse impact on species or stocks and their habitat. The full list of mitigation measures can be found in Condition 4 of the IHA and in the Mitigation section of this notice. The mitigation measures included in COSW's IHA are not unique, and data from prior IHAs support the effectiveness of these mitigation measures. Level B harassment will be reduced through use of mitigation measures described herein.

Comment 9: A commenter has stated that PSO reports did not address uncertainties related to the cumulative impacts of ecological effects of surveying activities for OSW including changes in migration, breeding, nursing, needing, or sheltering patterns.

Response: PSO reports are not designed to address the cumulative impacts of offshore wind surveying activities on marine mammals, but, as required, help increase our understanding of marine mammals in the area and the impacts of the activity on marine mammals. For NMFS' response on cumulative impacts, please see our response to Comment 4.

Description of Marine Mammals

A description of the marine mammals in the area of the activities for which take is authorized here, including information on abundance, status, distribution, and hearing, may be found in the Federal Register notice of the proposed IHA (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 UMEs, and other scientific literature. The draft 2023 SAR updated the population estimate (N_best) of NARW 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 NARW 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 NARW population size based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023). NMFS conservatively relies in this circumstance on the lower SAR abundance estimate.

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 take is authorized may be found in the Notices of the Proposed (88 FR 24574, April 21, 2023) and Final IHAs (88 FR 42322, June 30, 2023) 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. Similarly, the stocks taken, methods of take, and types of take remain unchanged from the initial IHA, as do the number of takes, which are indicated below in table 1. The number of takes authorized are a subset of the initial authorized takes that better represent the amount of the remaining activity COSW has left to complete. These estimated takes, which reflect the remaining survey trackline, are indicated below in table 1.