Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to SouthCoast Wind Energy Marine Site Characterization Surveys off the Coast of Massachusetts and Rhode Island

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 IHA 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 one 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 NEPA review. NMFS has preliminarily determined that the application of this categorical exclusion remains appropriate for this renewal IHA.

History of Request

On October 23, 2020, NMFS received a request from SouthCoast Wind (formerly known as Mayflower Wind Energy) seeking authorization to take marine mammals by Level B harassment only incidental to high-resolution geophysical site characterization surveys (HRG) off Massachusetts and Rhode Island in the area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Area OCS-A-0521 and along potential submarine export cable routes. NMFS published a notice of the proposed IHA in the Federal Register on May 20, 2021 (86 FR 27393). NMFS subsequently issued an IHA that was effective for a period of one year, from July 1, 2021, through June 30, 2022, hereinafter referred to as the 2021 IHA (86 FR 38033; July 19, 2021).

On November 16, 2022, SouthCoast Wind submitted an application for a renewal IHA in order to complete the remaining subset of the planned survey activity that could not be completed under the 2021 IHA. After NMFS determined the application was ineligible for renewal due to the updates in marine mammal density information, on January 13, 2023, SouthCoast submitted an updated request for a standard IHA. That proposed IHA was published in the Federal Register on March 8, 2023 (88 FR 14335). Since all other aspects of the project remained the same ( i.e., the scope of the activities, the survey location, the acoustic source use, and the level of impact expected to occur ( i.e., Level B harassment only)), NMFS relied on the information associated with the issuance of the 2021 IHA. On May 11, 2023, NMFS issued an IHA to SouthCoast Wind to take marine mammals incidental to marine site characterization surveys in Massachusetts (88 FR 31678, May 18, 2023), effective from May 12, 2023, through May 11, 2024, and hereinafter referred to as the 2023 IHA. The present request for renewal is based on this 2023 IHA application.

On July 1, 2024, NMFS received an application for the renewal of the 2023 IHA. As described in the application for renewal IHA, the activities for which incidental take is requested are a subset of the activities that are covered by the 2023 IHA but were not completed prior to its expiration. As required, the applicant 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 underlying IHA, on May 11, 2025, and having ensured that SouthCoast Wind 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 Proposed Activities and Anticipated Impacts

SouthCoast Wind did not complete the planned survey scope of work associated with the 2023 IHA prior to its expiration and is planning to complete a subset of the activities during the remainder of 2024-2025. HRG surveys are planned between approximately September 2024 and May 2025, using the same survey equipment, methods and types of vessels as those previously analyzed. The 2024-2025 surveys will also be within the same survey area described in the application for the 2021 and 2023 IHAs (figure 1).

Figure 1—Map of SouthCoast Wind Lease Area OCS-A 0521 Within the Massachusetts Wind Energy Area and the Proposed Export Cable Corridors to Falmouth, MA and to Brayton Point, Somerset, MA

The planned survey trackline, the number of active sound source days (the number of days the vessels will be actively emitting sound into the water column), and vessel days (number of days that the vessels will be present in the area) will be reduced in 2024-2025 compared to those planned under the 2023-2024 IHA. A total of up to 700 kilometers (km) of trackline (500 km in the Lease Area [Inter-Array Cable (IAC) surveys] and 200 km in the Export Cable Corridors (ECC) [potential HDD surveys]) will be surveyed (table 1). On average, approximately 50 km will be surveyed per day within the Lease Area and 15 km within the ECC, resulting in 10 active sound source days in the Lease Area and approximately 14 in the ECC (for a total of approximately 24 active sound source days in the entire project area). The previous IHA application described up to 4 vessels being utilized to conduct the surveys. The 2024-2025 surveys may use up to 4 vessels as well. SouthCoast Wind survey contractors and protected species observer (PSO) contractors will conduct all surveys in accordance with the requirements stipulated in the 2023-2024 IHA. This renewal IHA is identical to the previous IHA, with the exception that fewer trackline kilometers will be surveyed, there will be fewer sound source days, and fewer vessel days.