Document headings vary by document type but may contain the following:
See the Document Drafting Handbook for more details.
AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION:
Final rule.
SUMMARY:
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS promulgates regulations to govern the incidental taking of marine mammals incidental to US Wind, Inc. (US Wind) during the construction of an offshore wind energy project (the Project) in Federal and State waters off of Maryland, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area (OCS-A-0490) (referred to as the Lease Area) and along associated export cable routes to sea-to-shore transition points (collectively, the project area), over the course of 5 years (January 1, 2025 through December 31, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during specific construction related activities within the project area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
DATES:
This rule is effective from January 1, 2025, through December 31, 2029.
FOR FURTHER INFORMATION CONTACT:
Jessica Taylor, Office of Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of US Wind's application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT ).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to authorize the take of marine mammals incidental to construction of the Project within the project area. NMFS received a request from US Wind to incidentally take a small number of marine mammals from 19 species of marine mammals, comprising 20 stocks (5 stocks by Level A harassment and Level B harassment; 15 stocks by Level B harassment only), incidental to US Wind's construction activities. US Wind did not request and NMFS neither anticipates nor allows take by serious injury or mortality incidental to the specified activities in this final rulemaking.
Legal Authority for the Final Action
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, regulations are promulgated (when applicable), and public notice and an opportunity for public comment are provided.
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.
As noted above, US Wind did not request and NMFS neither anticipates nor allows take by serious injury or mortality incidental to the specified activities in this final rulemaking. Relevant definitions of MMPA statutory and regulatory terms are included below:
- U.S. Citizens —individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 216.103);
- Take —to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362; 50 CFR 216.3);
- Incidental Harassment, Incidental Taking and Incidental, but not Intentional, Taking —an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable or accidental (see 50 CFR 216.103);
- Serious Injury —any injury that will likely result in mortality (50 CFR 216.3);
- Level A harassment —any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild (16 U.S.C. 1362; 50 CFR 216.3); and
- Level B harassment —any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (16 U.S.C. 1362; 50 CFR 216.3).
Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for proposing and, if appropriate, issuing this rule containing 5-year regulations and associated LOA. This final rule also establishes required mitigation, monitoring, and reporting requirements for US Wind's construction activities.
Summary of Major Provisions Within the Final Rule
The major provisions within this final rule include:
- Allowing NMFS to authorize, under a LOA, the take of small numbers of marine mammals by Level A harassment and/or Level B harassment (50 CFR 217.312) incidental to the Project and prohibiting take of such species or stocks in any manner not permitted (50 CFR 217.313) ( e.g., mortality or serious injury);
- Establishing a seasonal moratorium on foundation impact pile driving during December 1-April 30, annually, as well as avoiding foundation impact pile driving in November to the maximum extent practicable to minimize impacts to North Atlantic right whales ( Eubalaena glacialis);
- Conducting both visual and passive acoustic monitoring (PAM) by trained, NMFS-approved Protected Species Observers (PSO) and PAM operators before, during, and after select in-water construction activities;
- Requiring training for all Project personnel to ensure marine mammal protocols and procedures are clearly understood;
- Establishing clearance and shutdown zones for all in-water construction activities and high-resolution geophysical (HRG) marine site characterization surveys to prevent or reduce the risk of Level A harassment and to minimize the risk of Level B harassment, including a delay or shutdown of foundation impact pile driving if a North Atlantic right whale is observed at any distance by PSOs or acoustically detected within certain distances;
- Establishing minimum visibility and PAM monitoring zones during foundation impact pile driving;
- Requiring use of at least two sound attenuation devices during all foundation impact pile driving installation activities to reduce noise levels to those modeled assuming a broadband 10 decibel (dB) attenuation;
- Requiring sound field verification (SFV) monitoring during impact pile driving of foundation piles to measurein situ noise levels for comparison against the modeled results and ensure noise levels assuming 10 dB attenuation are not exceeded;
- Requiring SFV during the operational phase of the Project;
- Implementing soft-starts during impact pile driving and ramp-up during the use of HRG marine site characterization survey equipment;
- Requiring various vessel strike avoidance measures;
- Requiring various measures during fisheries monitoring surveys, such as removing gear from the water if marine mammals are considered at-risk or are interacting with gear;
- Requiring regular and situational reporting including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and SFV monitoring results; and
- Requiring monitoring of the North Atlantic right whale sighting networks, Channel 16, and PAM data, as well as reporting any sightings to the NMFS.
Through adaptive management ( see50 CFR 217.347(c)(1)) NMFS Office of Protected Resources may modify ( e.g., remove, revise, or add to) the existing mitigation, monitoring, or reporting measures summarized above and required by the LOA.
NMFS must withdraw or suspend an LOA issued under these regulations, after notice and opportunity for public comment, if it finds the methods of taking or the mitigation, monitoring, or reporting measures are not being substantially complied with (16 U.S.C. 1371(a)(5)(B); 50 CFR 216.106(e)). Additionally, failure to comply with the requirements of the LOA may result in civil monetary penalties and knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 CFR 216.106(g)).
Fixing America's Surface Transportation Act (FAST-41)
This Project is covered under title 41 of the Fixing America's Surface Transportation Act, or “FAST-41.” A “covered project” under FAST-41 is defined generally as “any activity in the United States that requires authorization or environmental review by a Federal agency involving construction of infrastructure for renewable or conventional energy production” 42 U.S.C. 4370m-(6)(A). The Project, which involves construction of renewable wind energy infrastructure off of Maryland, will provide 300 megawatts (MW) of energy and, upon completion, advance the State of Maryland's renewable energy goals. As such, the Project falls under FAST-41's definition of “covered project.”
FAST-41 includes a suite of provisions designed to expedite the environmental review for covered infrastructure projects, including enhanced interagency coordination as well as milestone tracking on the public-facing Permitting Dashboard. FAST-41 also places a 2-year limitations period on any judicial claim that challenges the validity of a Federal agency decision to issue or deny an authorization for a FAST-41 covered project 42 U.S.C. 4370m-6(a)(1)(A).
The Project is listed on the Permitting Dashboard, where milestones and schedules related to the environmental review and permitting for the Project can be found at https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/maryland-offshore-wind-project.
Summary of Request
On August 31, 2022, US Wind submitted a request for the promulgation of regulations and issuance of an associated 5-year LOA to take marine mammals incidental to construction activities associated with implementation of the Project offshore of Maryland in the BOEM Lease Area OCS-A 0490 and associated export cable routes. US Wind's request is for the incidental, but not intentional, taking of a small number of 19 marine mammal species (comprising 20 stocks) by Level B harassment (for all 20 stocks) and by Level A harassment (for 5 of the 20 stocks). US Wind did not request, and NMFS does not anticipate, take by serious injury or mortality to occur for any marine mammal species or stock incidental to the specified activities.
In response to our questions and comments and following extensive information exchanges between US Wind and NMFS, US Wind submitted a final, revised application on March 31, 2023 that NMFS deemed adequate and complete on April 3, 2023. This application is available on NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind.
On May 2, 2023, NMFS published a notice of receipt (NOR) of US Wind's adequate and complete application in the Federal Register (88 FR 27463), requesting comments and soliciting information related to US Wind's request during a 30-day public comment period. During the NOR public comment period, NMFS received comment letters from 77 private citizens, 6 non-governmental organizations, and 1 State government organization (Delaware Department of Natural Resources and Environmental Control). NMFS reviewed all submitted material and took these into consideration during the drafting of the proposed rule.
On September 6, 2023 and September 11, 2023, US Wind submitted supplemental information related to its pilot whale and seal take analyses. The corresponding memos, entitled “US Wind NMFS Request for Information (RFI) Response Memo and Maryland Offshore Wind Project Revised Requested Take Tables” are available on our website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind.
On January 4, 2024, NMFS published the proposed rule for the Project in the Federal Register (89 FR 504). In the proposed rule, NMFS synthesized all of the information provided by US Wind, all best available scientific information and literature relevant to the Project, outlined, in detail, proposed mitigation designed to effect the least practicable adverse impacts on marine mammal species and stocks as well as proposed monitoring and reporting measures, and made preliminary negligible impact and small numbers determinations. The public comment period on the proposed rule was open for 30 days from January 4, 2024 through February 5, 2024 on https://Regulations.gov. A summary of public comments received during this 30-day period are described in the Comments and Responses section; full public comments may be viewed on https://Regulations.gov.
On August 1, 2022, NMFS announced proposed changes to the existing North Atlantic right whale vessel speed regulations (87 FR 46921) to further reduce the likelihood of mortalities and serious injuries to endangered right whales from vessel collisions, which are a leading cause of the species' decline and a primary factor in an ongoing Unusual Mortality Event (UME). Should a final vessel speed rule be issued and become effective during the effective period of this incidental take authorization (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. The responsibility to comply with the applicable requirements of any vessel speed rule would become effective immediately upon the effective date of any final vessel speed rule and when notice is published on the effective date, NMFS would also notify US Wind if the measures in the speed rule were to supersede any of the measures in the MMPA authorization such that they were no longer required.
Description of Specified Activity
Overview
US Wind plans to construct and operate a wind energy facility, the Project, in the Atlantic Ocean in lease area OCS-A 0490, offshore Maryland. The Project consists of 3 construction campaigns including MarWin, located in the southeastern portion of the Lease Area with the potential to generate approximately 300 megawatts (MW) of energy, Momentum Wind, located immediately west of MarWin with the potential to generate approximately 808 MW of energy, and Future Development, which encompasses buildout of the remainder of the Lease Area and for which generation capacity has yet to be determined (table 1). Once operational, MarWin and Momentum Wind would advance the State of Maryland's renewable energy goals, providing 50 percent of the State's goal by the year 2030, with the full buildout of the Lease Area further achieving renewable energy targets. US Wind also anticipates completing the Future Development campaign within the effective period of the rule.
The Project will consist of several different types of permanent offshore infrastructure, including up to 114 WTGs ( e.g., 18-MW model with a 250-meter (m) rotor diameter platform), four OSSs, a MET tower, and inter-array and export cables. MarWin will occupy approximately 46.6 square kilometers (km2 ) (11,515 acres), which will include approximately 21 WTGs and 1 OSS. The MarWin campaign, as well as subsequent Momentum Wind and Future Development, includes monopiles as the only potential WTG foundation type. For each campaign, the OSS would be supported by monopiles or jacket foundations with skirt piles. Skirt piles are post-piled pin piles. Jacket foundations are placed on the seabed and pin piles are driven into jacket pile guides, which are known as skirts. Table 1 provides a summary of each construction campaign.
Table 1—US Wind's Anticipated Construction Campaign Schedule
Table 2—US Wind's Anticipated Construction and Operations Schedule During the Effective Period of the LOA
Table 3—Marine Mammal Species That May Occur in the Project Area and Be Taken, by Harassment
| Common name | Scientific name | Stock | ESA/ MMPA status; strategic (Y/N) | Stock abundance ( CV, N min , most recent abundance survey) | PBR | Annual M/SI |
|---|---|---|---|---|---|---|
| Order Artiodactyla—Cetacea—Mysticeti (baleen whales) | ||||||
| Family Balaenidae: | ||||||
| North Atlantic right whale | Eubalaena glacialis | Western Atlantic | E, D, Y | 340 (0; 337; 2021) | 0.7 | 27.2 |
| Family Balaenopteridae (rorquals): | ||||||
| Fin whale | Balaenoptera physalus | Western North Atlantic | E, D, Y | 6,802 (0.24, 5,573, 2021) | 11 | 2.05 |
| Sei whale | Balaenoptera borealis | Nova Scotia | E, D, Y | 6,292 (1.02, 3098, 2021) | 6.2 | 0.6 |
| Minke whale | Balaenoptera acutorostrata | Canadian Eastern Coastal | -, -, N | 21,968 (0.31, 17,002, 2021) | 170 | 9.4 |
| Humpback whale | Megaptera novaeangliae | Gulf of Maine | -, -, Y | 1,396 (0, 1,380, 2016) | 22 | 12.15 |
| Superfamily Odontoceti (toothed whales, dolphins, and porpoises) | ||||||
| Family Delphinidae: | ||||||
| Killer whale | Orcinus orca | Western North Atlantic | -, -, N | UNK (UNK, UNK, 2016) | UNK | 0 |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic | -, -, N | 39,215 (0.3, 30,627, 2021) | 306 | 5.7 |
| Short-finned pilot whale | Globicephala macrorhynchus | Western North Atlantic | -, -, Y | 18,726 (0.33, 14,292, 2021) | 143 | 218 |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic Offshore | -, -, N | 64,587 (0.24, 52,801, 2021) | 507 | 28 |
| Bottlenose dolphin | Tursiops truncatus | Northern Migratory Coastal | -, -, Y | 6,639 (0.41, 4,759, 2016) | 48 | 12.2-21.5 |
| Common dolphin | Delphinus delphis | Western North Atlantic | -, -, N | 93,100 (0.56, 59,897, 2021) | 1,452 | 414 |
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic | -, -, N | 31,506 (0.28, 25,042, 2021) | 250 | 0 |
| Pantropical spotted dolphin | Stenella attenuata | Western North Atlantic | -, D, N | 2,757 (0.50, 1,56, 2021) | 19 | 0 |
| Risso's dolphin | Grampus griseus | Western North Atlantic | -, -, N | 44,067 (0.19, 30,662, 2021) | 307 | 18 |
| Rough-toothed dolphin | Steno bredanensis | Western North Atlantic | -, -, N | unk (unk, unk, 2021) | undet | 0 |
| Striped dolphin | Stenella coeruleoalba | Western North Atlantic | -, -, N | 48,274 (0.29, 38,040, 2021) | 529 | 0 |
| Family Phocoenidae (porpoises): | ||||||
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy | -, -, N | 85,765 (0.53, 56,420, 2021) | 649 | 145 |
| Order Carnivora—Pinnipedia | ||||||
| Family Phocidae (earless seals): | ||||||
| Harbor seal | Phoca vitulina | Western North Atlantic | -, -, N | 61,336 (0.08, 57,637, 2018) | 1,729 | 339 |
| Gray seal | Halichoerus grypus | Western North Atlantic | -, -, N | 27,911 (0.20, 23,624, 2021) | 1,512 | 4,570 |
| Harp seal | Pagophilus groenlandicus | Western North Atlantic | -, -, N | 7.6M (UNK, 7.1M, 2019) | 426,000 | 178,573 |
| Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy ( https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)). | ||||||
| ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR, or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. | ||||||
| NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is the coefficient of variation; N min is the minimum estimate of stock abundance. | ||||||
| These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined ( e.g., commercial fisheries, ship strike). | ||||||
| In the proposed rule (89 FR 504, January 4, 2023), a population estimate of 368 was used which represented the best available science at the time of publication. However, since the publication of the proposed rule, a new estimate (n=340) was released in NMFS' draft 2023 SARs and has been incorporated into this final rule. The current draft SAR includes an estimated population (N best 340) based on sighting history through December 2021 (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); 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. Numbers presented in this table (27.2 total mortality and 17.6 fishery mortality) are 2016-2020 estimated annual means, accounting for undetected mortality and serious injury. | ||||||
| As noted in the draft 2023 SAR (89 FR 5495, January 29, 2024), abundance estimates may include sightings of the coastal form. | ||||||
| There are two morphologically and genetically distinct forms of common bottlenose dolphin (Duffield et al., 1983; Mead and Potter, 1995; Rosel et al., 2009) described as the coastal and offshore forms in the western North Atlantic (Hersh and Duffield, 1990; Mead and Potter, 1995; Curry and Smith, 1997; Rosel et al., 2009). The two morphotypes are genetically distinct based upon both mitochondrial and nuclear markers (Hoelzel et al., 1998; Rosel et al., 2009). The genetic and morphological differences recently led to the coastal form being described as a new species, Tursiops erebennus (Costa et al., 2022; 89 FR 5495, January 29, 2024). Population estimates are based upon recent surveys in 2021. | ||||||
| US Wind did not request take of these species; however, their exposure analysis demonstrates there is potential for harassment. Although these species are rare in the project area, NMFS would authorize a small amount of Level B harassment in the case of potential presence during pile driving. | ||||||
| NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is for the total stock. |
Table 4—Marine Mammal Hearing Groups
[NMFS, 2018]
| Hearing group | Generalized hearing range * |
|---|---|
| Low-frequency (LF) cetaceans (baleen whales) | 7 Hz to 35 kHz. |
| Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) | 150 Hz to 160 kHz. |
| High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. australis) | 275 Hz to 160 kHz. |
| Phocid pinnipeds (PW) (underwater) (true seals) | 50 Hz to 86 kHz. |
| * Represents the generalized hearing range for the entire group as a composite ( i.e., all species within the group), where individual species' hearing ranges are typically not as broad. Generalized hearing range chosen based on ~65-dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). |
Table 5—Onset of PTS
[NMFS, 2018]
Table 6—Maximum Level A Harassment and Level B Harassment Takes for All Activities That May Be Authorized During the Construction of the Project and Over the Course of the Five Years Covered by the Rule
Table 7—Maximum Number of Takes by Level A Harassment and Level B Harassment That May Be Authorized in Any One Year of the Project Relative to Stock Population Size
Table 8—Vessel Strike Avoidance Separation Zones
Table 9—Minimum Visibility, Clearance, Shutdown, and Level B Harassment Zones During Impact Pile Driving, Assuming 10 d B of Attenuation
Table 10—HRG Survey Clearance and Shutdown Zones
Table 1 to Paragraph (d)
| Marine mammal species | Scientific name | Stock |
|---|---|---|
| North Atlantic right whale | Eubalaena glacialis | Western Atlantic. |
| Fin whale | Balaenoptera physalus | Western North Atlantic. |
| Humpback whale | Megaptera novaeangliae | Gulf of Maine. |
| Minke whale | Balaenoptera acutorostrata | Canadian Eastern Coastal. |
| Sei whale | Balaenoptera borealis | Nova Scotia. |
| Killer whale | Orcinus orca | Western North Atlantic. |
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic. |
| Pantropical spotted dolphin | Stenella attenuata | Western North Atlantic. |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic—Offshore. Northern Migratory Coastal. |
| Common dolphin | Delphinus delphis | Western North Atlantic. |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic. |
| Short-finned pilot whale | Globicephala macrorhynchus | Western North Atlantic. |
| Risso's dolphin | Grampus griseus | Western North Atlantic. |
| Rough-toothed dolphin | Steno bredanensis | Western North Atlantic. |
| Striped dolphin | Stenella coeruleoalba | Western North Atlantic. |
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy. |
| Gray seal | Halichoerus grypus | Western North Atlantic. |
| Harbor seal | Phoca vitulina | Western North Atlantic. |
| Harp seal | Pagophilus groenlandicus | Western North Atlantic. |