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

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 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 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 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).
• 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 20, 2023, NMFS issued an IHA to Attentive Energy, a company registered in the state of Delaware, to take marine mammals incidental to marine site characterization surveys in coastal waters off of New York and New Jersey in the New York Bight region, specifically within BOEM Lease Area OCS-A-0538 and associated ECR area (88 FR 41888, June 28, 2023), effective from June 20, 2023, through June 19, 2024. On May 24, 2024, NMFS received an application from Attentive Energy for the renewal of the 2023 IHA. As described in the application for renewal IHA, the activities for which incidental take was requested consisted of activities that were analyzed for the initial 2023 authorization, but were not able to be completed prior to its expiration. As required, Attentive Energy also provided a final monitoring report (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable ) which confirms that Attentive Energy had implemented the required mitigation and monitoring, and also showed that no impacts of a scale or nature not previously analyzed or authorized have occurred as a result of the activities conducted. The notice of the proposed renewal incidental harassment authorization was published for public comment on August 7, 2024 (89 FR 64414). There are no changes from the proposed authorization to this final authorization.

Description of the Specified Activities and Anticipated Impacts

Under the initial IHA, Attentive Energy planned to conduct marine site characterization surveys, including high-resolution geophysical (HRG) surveys, in coastal waters off of New Jersey and New York in the New York Bight, specifically within BOEM Lease Area OCS-A 0538 and associated ECR areas. Challenges and delays with procurement, mobilization, and downtime contributed to less survey being completed during the initial IHA period than anticipated.

The surveys were designed to obtain data sufficient to meet BOEM guidelines for providing geophysical, geotechnical, and geo-hazard information for site assessment plan surveys and/or construction and operations plan development. The objective of the surveys was to support the site characterization, siting, and engineering design of offshore wind project facilities including wind turbine generators, offshore substations, and submarine cables within the Lease Area. At least two survey vessels would operate as part of the planned surveys with a maximum of two nearshore (<20 meters (m); <65.6 feet (ft)) vessels and a maximum of two offshore (≥20 m (≥65.6 ft)) vessels operating concurrently.

Attentive Energy plans to continue to conduct these survey activities, as per the initial IHA application, up to approximately 6,936 kilometers (km; 4,309.8 miles (mi)) of trackline. This is a subset of the survey trackline included in the initial IHA; the initial survey plan included 21,745 km (13,511.72 mi) across the entire project area (maximum-case scenario), which was split up by approximately 14,025 km (8,714.7 mi) in the Lease Area and 7,720 km (4,797 mi) in the ECR area. We note here that the Project Area is minimally expanded (primarily to the south) in the current survey plan as compared with the survey plan associated with the initial IHA (see figure 1 in the proposed renewal Federal Register notice); however, this expansion of the survey area will not result in any increase to the amount of planned survey trackline distance. NMFS has determined that this slight change to the survey area constitutes a minor change that does not affect the previous analyses, mitigation and monitoring requirements, or take estimates.

The potential impacts of Attentive Energy's planned activities on marine mammals involve potential acoustic stressors and are unchanged from the impacts described in the Federal Register notice for the proposed 2023 IHA (88 FR 24553, April 21, 2023). Underwater sound, resulting from particular components of Attentive Energy'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 (comprising 16 stocks) of marine mammals for a subset of marine site characterization survey activities to be completed in less than 1 year ( i.e., by June 19, 2025), in the same general area, using survey methods identical to those conducted under the initial 2023 IHA. Neither Attentive Energy nor NMFS expects 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 41888, June 28, 2023).

Detailed Description of the Specified Activity

A detailed description of the marine site characterization survey activities for which incidental take is authorized here may be found in the Federal Register notice of the proposed 2023 IHA (88 FR 24553, 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 notices, with the exception of a minor increase in in the size of the survey area to the south to accommodate expanded survey options for the ECR.

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 IHA for the initial authorization (88 FR 24553, April 21, 2023). Since the publication of the final Federal Register notice (88 FR 41888, June 28, 2023), 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 2017-2021 period 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 draft 2023 SARs include updates for additional marine mammal species and stocks ( i.e., North Atlantic right whale, fin whale, sei whale, minke whale, sperm whale, Atlantic spotted dolphin, Atlantic white-sided dolphin, bottlenose dolphin (Western North Atlantic—Offshore stock), common dolphin, long-finned pilot whales, Risso's dolphin, harbor porpoise, and gray seal), which are specifically included in table 1 in the proposed renewal Federal Register notice (89 FR 64414, August 7, 2024). For species for which there has been no change between the finalization of the final 2022 SARs to the release of the draft 2023 SARs, NMFS has also noted this in table 1 of the proposed renewal Federal Register notice.

On August 1, 2022, NMFS announced proposed changes to the existing North Atlantic right whale vessel speed regulations to further reduce the likelihood of mortalities and serious injuries to endangered North Atlantic right whales from vessel collisions, which are a leading cause of the species' decline and a primary factor in an ongoing Unusual Mortality Event (87 FR 46921, August 1, 2022). Should a final vessel speed rule be issued and become effective during the effective period of this proposed renewal IHA (or any other MMPA incidental take authorization), the authorization holder would be required to comply with any and all applicable requirements contained within the final rule. Specifically, where measures in any final vessel speed rule are more protective or restrictive than those in this or any other MMPA authorization, authorization holders would be required to comply with the requirements of the rule. Alternatively, where measures in this or any other MMPA authorization are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA authorization would remain in place. These changes would become effective immediately upon the effective date of any final vessel speed rule and would not require any further action on NMFS's part.

NMFS has determined that no new information has been presented that may affect or change any other information in the Description of the Marine Mammals in the Area of Specified Activities contained in the supporting documents and in the Federal Register notice for the proposed renewal IHA (89 FR 64414, August 7, 2024).

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 here may be found in the Federal Register notice of the proposed IHA for the initial authorization (88 FR 24553, April 21, 2023). NMFS has reviewed the monitoring data from the initial IHA, recent Stock Assessment Reports, information on relevant Unusual Mortality Events, other scientific literature, and the public comments, 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 notices of the proposed and final IHAs for the initial authorization (88 FR 24553, April 21, 2023; 88 FR 41888, June 28, 2023) and referenced in the Federal Register notice for the proposed renewal IHA (89 FR 64414, August 7, 2024). Specifically, the source levels, days of operation, and marine mammal density/occurrence data applicable to this authorization remain unchanged from the previously issued IHA. Similarly, the stocks taken, methods of take, and types of take remain unchanged from the previously issued IHA. The number of takes authorized in this renewal IHA are a subset of the initial authorized takes that better represent the amount of activity that Attentive Energy has left to complete. These estimated takes, which reflect the remaining survey days, are indicated below in table 1.