Small Takes of Marine Mammals Incidental to Specified Activities; Cape Wind's High Resolution Survey in Nantucket Sound, MA, 25835-25844 [2014-10296]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 87 (Tuesday, May 6, 2014)]
[Notices]
[Pages 25835-25844]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10296]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD105


Small Takes of Marine Mammals Incidental to Specified Activities; 
Cape Wind's High Resolution Survey in Nantucket Sound, MA

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), 
notification is hereby given that NMFS issued an Incidental Harassment 
Authorization (IHA) to Cape Wind Associates (CWA) to take marine 
mammals, by harassment, incidental to pre-construction high resolution 
survey activities in Nantucket Sound.

DATES: Effective April 25, 2014, through April 24, 2015.

ADDRESSES: An electronic copy of the application, authorization, and 
associated document may be obtained by visiting the internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents 
cited in this notice may also be viewed, by appointment, during regular 
business hours, at the Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, National Marine 
Fisheries Service, Office of Protected Resources, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce 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 specific geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring, and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) 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 [Level B harassment].

Summary of Request

    On December 20, 2013, NMFS received an application from CWA for the 
taking of marine mammals incidental to high resolution survey 
activities. NMFS determined that the application was adequate and 
complete on December 20, 2013. NMFS published a notice of proposed IHA 
on February 3, 2014 (79 FR 6167).
    CWA will conduct a high resolution geophysical survey in Nantucket 
Sound, Massachusetts. The activity will occur during daylight hours 
over an estimated 109-day period beginning in May 2014. The following 
equipment used during the survey is likely to result in the take of 
marine mammals: Shallow-penetration subbottom profiler and medium-
penetration subbottom profiler. Take, by Level B harassment only, of 
individuals of five species is anticipated to result from the specified 
activity.
    NMFS issued CWA an IHA in 2011 (76 FR 80891, December 27, 2011) for 
survey work that was to be completed in 2012. However, subsequent to 
the issuance of that IHA, CWA found it necessary to divide their survey 
into two seasons. They completed approximately 20 percent of the survey 
in 2012 and obtained a second IHA to conduct the remaining 80 percent 
in 2013 (78 FR 19217, March 29, 2013). Due to scheduling adjustments, 
the work was not conducted in 2013 and this request is an extension of 
the original request. CWA is not changing their survey activities in 
any way. However, the geotechnical portion of the survey was completed 
in 2012 and will not be continued during the 2014 season.

Description of the Specified Activity

    CWA will conduct a high resolution geophysical survey in order to 
acquire remote-sensing data around Horseshoe Shoal which will be used 
to characterize resources at or below the seafloor. The purpose of the 
survey is to identify any submerged cultural resources that may be 
present and to generate additional data describing the geological 
environment within the survey area. The survey will satisfy the 
mitigation and monitoring requirements for ``cultural resources and 
geology'' in the environmental stipulations of the Bureau of Ocean 
Energy Management's lease. The survey is part of the first phase of a 
larger Cape Wind energy project, which involves the installation of 130 
wind turbine generators on Horseshoe Shoal over a 2-year period. The 
survey will collect data along predetermined track lines using a towed 
array of instrumentation, which will include a side scan sonar, 
magnetometer, shallow-penetration subbottom profiler, multibeam depth 
sounder, and medium-penetration subbottom profiler. Survey activities 
will not result in any disturbance to the sea floor.

Dates and Duration

    Survey activities are necessary prior to construction of the wind 
turbine array and are scheduled to begin in the spring of 2014, 
continuing on a daily basis for up to five months. Survey vessels will 
operate during daytime hours only and CWA estimates that one survey 
vessel will cover about 17 nautical miles (31 kilometers) of track

[[Page 25836]]

line per day. Therefore, CWA conservatively estimates that survey 
activities will take 109 days (28 days less than what was expected 
under the 2012 IHA). However, if more than one survey vessel is used, 
the survey duration will be considerably shorter. NMFS is issuing an 
authorization that extends from May 1, 2014, to April 31, 2015.

Specified Geographic Region

    Survey vessels are expected to depart from Falmouth Harbor, 
Massachusetts, or another nearby harbor on Cape Cod. In total, the 
survey will cover approximately 110 square kilometers (km\2\). This 
area includes the future location of the wind turbine generators--an 
area about 8.4 km from Point Gammon, 17.7 km from Nantucket Island, and 
8.9 km from Martha's Vineyard--and cables connecting the wind park to 
the mainland. The survey area within the wind park will be transited by 
survey vessels towing specialized equipment along primary track lines 
and perpendicular tie lines. Preliminary survey designs include primary 
track lines with northwest-southeast orientations and assume 30-meter 
(m) line spacing. Preliminary survey designs also call for tie lines to 
likely run in a west-east orientation covering targeted areas of the 
construction footprint where wind turbine generators would be located. 
The survey area along the interconnecting submarine cable route 
includes a construction and anchoring corridor, as part of the wind 
farm's area of potential effect. The total track line distance covered 
during the survey is estimated to be about 3,432 km (as opposed to the 
4,292 km included in the 2012 IHA).
    Multiple survey vessels may operate within the survey area and will 
travel at about 3 knots during data acquisition and approximately 15 
knots during transit between the survey area and port. If multiple 
vessels are used at the same time, they will be far enough apart that 
sounds from the chirp and boomer will not overlap. The survey vessels 
will acquire data continuously throughout the survey area during the 
day and terminate survey activities before dark, prior to returning to 
port. NMFS believes that the likelihood of a survey vessel striking a 
marine mammal is low considering the low marine mammal densities within 
Nantucket Sound, the relatively short distance from port to the survey 
site, the limited number of vessels, and the small vessel size. Vessel 
sounds during survey activities would result from propeller 
cavitations, propeller singing, propulsion, flow noise from water 
dragging across the hull, and bubbles breaking in the wake. The 
dominant sound source from vessels will be from propeller cavitations; 
however, sounds resulting from survey vessel activity are considered to 
be no louder than the existing ambient sound levels and sound generated 
from regular shipping and boating activity in Nantucket Sound (MMS, 
2009).

Detailed Description of Activities

    NMFS expects that acoustic stimuli resulting from the operation of 
the survey equipment have the potential to harass marine mammals. 
Background information on the characteristics and measurement of sound 
were provided in the 2013 proposed IHA notice (78 FR 7402, February 1, 
2013) and have not changed. Further information on the sound equipment 
was provided in the 2014 proposed IHA notice (79 FR 6167, February 3, 
2014) and that information is not repeated here. In summer, the 
dominant sources of sound during the survey activities will be from the 
towed equipment used to gather seafloor data. Two of the seismic survey 
devices used during the high resolution geophysical survey emit sounds 
within the hearing range of marine mammals in Nantucket Sound: Shallow-
penetration and medium-penetration subbottom profilers (known as a 
``chirp'' and ``boomer,'' respectively).

Comments and Responses

    A proposed authorization and request for public comments was 
published in the Federal Register on February 3, 2014 (79 FR 6167). 
During the 30-day public comment period, NMFS received comments from 
the Marine Mammal Commission (Commission), Natural Resources Defense 
Council, the Alliance to Protect Nantucket Sound (Alliance), and over 
100 private citizens. Over 40 people expressed general disapproval for 
CWA's proposed activity and NMFS' proposed authorization; and over 70 
people, including the Natural Resources Defense Council, supported 
CWA's proposed activity and NMFS' proposed authorization. All comments 
have been compiled and posted at https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Any application-specific comments that 
address the MMPA statutory and regulatory requirements or findings NMFS 
must make to issue an IHA are addressed in this section.
    Comment 1: The Commission recommended that NMFS (1) require CWA to 
estimate the number of marine mammals taken when the shallow-
penetration sub-bottom profiler would be used based on the 120-dB 
threshold (Level B harassment threshold for continuous sound) rather 
than the 160-dB threshold (for non-continuous sound); and (2) consult 
with experts in the field of sound propagation and marine mammal 
hearing to revise the acoustic criteria as necessary to specify 
threshold levels that would be more appropriate for a wider variety of 
sound sources, including the shallow-penetration sub-bottom profiler.
    Response 1: As explained in the previous authorizations for this 
activity, using the 120-dB threshold for the shallow-penetration sub-
bottom profiler is not consistent with NMFS' current acoustic 
thresholds. The shallow-penetration sub-bottom profiler (``chirper'') 
is a non-impulsive, but intermittent (as opposed to continuous), sound 
source. Continuous sound sources are best represented by vibratory pile 
driving or drilling and produce sounds that are quite different from 
sub-bottom profilers. NMFS has previously applied the 160-dB threshold 
to non-tactical sonar sources used in conjunction with seismic surveys. 
The pseudo-random noise stimulus and tactical sonar-like signals that 
were used in the SOCAL-10 behavioral response study are also considered 
non-impulsive intermittent sources and were authorized by NMFS using 
the 160-dB threshold. NMFS believes that the 160-dB threshold is 
appropriately applied to the shallow-penetration sub-bottom profiler 
and there is no need for CWA to estimate take using a different 
criteria.
    As the Commission is aware, NMFS is in the process of updating 
acoustic guidelines for assessing the effects of anthropogenic sound on 
marine mammals. Until those guidelines are complete, we are relying on 
the existing criteria.
    Comment 2: The Commission recommended that NMFS, in our guidance 
regarding revised Level B harassment thresholds for behavior, include 
thresholds and take estimates for all types of sources that might be 
used during site characterization surveys.
    Response 2: NMFS is currently updating and revising all of its 
acoustic thresholds, but is initially focused on thresholds for injury. 
NMFS notes the Commission's recommendation and will address this 
comment when the process for revising the Level B harassment thresholds 
begins.
    Comment 3: The Commission recommended that NMFS require CWA to 
reestimate the number of takes of gray and harbor seals based on (1) a 
more conservative correction factor to account

[[Page 25837]]

for negative biases associated with CWA's at-sea aerial survey counts; 
or (2) using density estimates from other proposed activities occurring 
in the same area that have been adjusted by a haul-out correction 
factor.
    Response 3: NMFS disagrees that CWA needs to reestimate the number 
of takes of gray and harbor seals. As explained in previous 
authorizations for this activity, CWA included a correction factor when 
calculating seal density estimates. NMFS disagrees that this correction 
factor needs to be more conservative, especially considering that CWA 
observed no living marine mammals during 28 days and 459 nautical 
transect miles of survey activity during 2012.
    Also explained in previous authorizations for this activity, CWA 
did not use density estimates for seals based on haul out counts due to 
the distance of haul outs from the activity area (12.7 miles to Monomoy 
Island and 7.4 miles to Muskeget Island). Gray seals and harbor seals 
congregating in these locations are not expected to hear sounds from 
the survey equipment at 160 dB or higher. The seals most likely to be 
exposed to potentially disturbing sounds are the individuals swimming 
and/or foraging within 444 m of the activated medium-penetration 
subbottom profiler. Again, NMFS disagrees that the density estimates 
need to be adjusted, especially considering that CWA observed no living 
marine mammals during 2012 survey activities.
    Comment 4: The Commission recommended that NMFS include in each 
proposed IHA a sufficiently detailed description of the proposed 
activities and the potential impacts on marine mammals to allow the 
public to review and comment on the proposed authorization as a stand-
alone document.
    Response 4: NMFS provided a detailed description of the activity in 
the proposed IHA notice, including specific sound sources and their 
characteristics, dates and duration of the activity, location of the 
activity, and sound source verification results from monitoring in 
2012. NMFS also provided a general description/background of potential 
effects to marine mammals and referred the reader to the 2013 proposed 
IHA notice (78 FR 7402, February 1, 2013) in order to streamline the 
document, particularly considering that this is not a new action.
    Comment 5: The Alliance suggested that NMFS cannot issue an IHA for 
the proposed activity because CWA is attempting to segment their larger 
wind energy project and avoid the issuance of a Letter of Authorization 
(LOA) and associated regulations. The Alliance further suggested that 
allowing an applicant to apply for multiple IHAs prevents NMFS from 
properly analyzing the specified activity and its potential impacts on 
marine mammals.
    Response 5: As explained in the 2011 and 2013 final IHA notices (76 
FR 80891, December 27, 2011 and 78 FR 19217, March 29, 2013), CWA 
requested an IHA for a discrete, specified activity: a high resolution 
geophysical survey that is required prior to construction of CWA's 
long-term energy project. The definition of a ``specified activity'' is 
``any activity, other than commercial fishing, that takes place in a 
specified geographical region and potentially involves the taking of 
small numbers of marine mammals.'' See 50 CFR 216.103. The MMPA and its 
implementing regulations do not provide any further definition or 
restriction to this term. The Alliance claims that the ``specified 
activity'' is the entire Cape Wind energy project, citing BOEM's 
approval of the entire project. NMFS' definition of a specified 
activity is not related to how other federal agencies define or approve 
projects.
    The MMPA directs NMFS to allow, upon request, the incidental taking 
of small numbers of marine mammals by U.S. citizens who engage in a 
specified activity within a specified geographical region if certain 
findings are made. All statutory requirements have been met in this 
instance. The issuance of regulations and an LOA is only required if 
the proposed activity has the potential to result in incidental takings 
of marine mammals by serious injury or mortality. Applicants have the 
option of applying for a 1-year IHA if their specified activity (in 
this case, the high resolution geophysical survey) would not result in 
the serious injury or mortality of marine mammals. The MMPA and its 
implementing regulations do not prohibit IHAs for activities that may 
occur for more than a 1-year period. In fact, NMFS has often issued 
IHAs for activities that occur for longer than a 1-year period. In some 
cases, applicants choose to pursue LOAs governed by regulations for 
activities that will not result in the serious injury or mortality of 
marine mammals because it streamlines the authorization process and 
prevents the need for an annual application and public comment period. 
Based on factors addressed in the application and proposed IHA (e.g., 
estimated sound propagation, slow vessel speeds, and monitoring and 
mitigation measures,) CWA does not anticipate, nor is NMFS authorizing, 
the incidental taking of marine mammals by serious injury or mortality. 
Therefore, an IHA is appropriate. NMFS has notified CWA that future 
activities may also require separate authorization(s) under the MMPA.
    The questions an applicant must answer are the same whether 
applying for an IHA or an LOA. NMFS evaluates the specified activity in 
the same manner and addresses the same questions regarding impacts. 
Further, NMFS must make the same determinations regarding negligible 
impact and small numbers, which are addressed at the end of this 
document.
    Comment 6: The Alliance suggested the CWA's application is 
defective because it does not request incidental take of right whales 
and fails to impose a vessel speed restriction to protect right whales.
    Response 6: CWA's application does mention the presence of right 
whales in New England waters, but does not request authorization for 
incidental take of this species. The presence of right whales in 
Nantucket Sound is uncommon. NMFS has determined, based on 10 years of 
right whale data collection in Nantucket Sound, that the incidental 
take of a right whale by vessel strike or Level B (behavioral) 
harassment is unlikely. In 2008, NMFS published a final rule in the 
Federal Register instituting Mid-Atlantic Seasonal Management Areas 
with a mandatory 10-knot speed restriction to reduce the threat of ship 
collisions with right whales. The Seasonal Management Areas were 
established to provide additional protection for right whales and the 
timing, duration, and geographic extent of the speed restrictions were 
specifically designed to reflect right whale movement, distribution, 
and aggregation patterns. Nantucket Sound is not considered a Seasonal 
Management Area; however, Nantucket Sound was included as part of a 
Dynamic Management Area (with a voluntary 10-knot speed zone) through 
March 13, 2013. There are currently no active Dynamic Management Areas.
    The very qualities that make right whales susceptible to being 
struck by vessels in certain areas also make them highly detectable. 
NMFS believes that the size of right whales, their slow movements, and 
the amount of time they spend at the surface would make them extremely 
likely to be spotted by Protected Species Observers (PSO) before they 
are exposed to sounds that constitute harassment. Furthermore, CWA's 
survey vessels would be traveling at low speeds (3 knots) during survey 
operations. Whenever sub-bottom profiling activities are underway, at 
least one PSO will be

[[Page 25838]]

monitoring the 500-m exclusion zone--which is larger than both the 
Level A (30 m) and Level B (444 m) harassment isopleths--and will call 
for a shutdown if any marine mammal is observed within or moving toward 
the exclusion zone. Furthermore, right whales are not common in 
Nantucket Sound and there are no known foraging grounds or other 
important habitats for right whales in Nantucket Sound. However, as 
stated in the Biological Opinion for the long-term Cape Wind energy 
project, CWA will monitor the Right Whale Sighting Advisory System and 
can modify their survey schedule in the unlikely event that whales are 
present within Nantucket Sound. CWA did not propose, and NMFS is not 
authorizing, the take of right whales from survey activities. Although 
there have been a limited number of right whale sightings in Nantucket 
Sound over the past 10 years (as seen on NMFS Northeast Fisheries 
Science Center Web site: https://www.nefsc.noaa.gov/psb/surveys/ surveys/), 
these have not overlapped with the proposed survey area on Horseshoe 
Shoal, likely due to the shallower water depths. Thus, we do not 
anticipate that CWA's activities will result in the take of right 
whales.
    Comment 7: The Alliance takes issue with NMFS' conclusion that 
there is no anticipated impact on marine mammal habitat from the 
proposed activities.
    Response 7: In the Anticipated Effects on Marine Mammal Habitat 
section of each Federal Register notice that NMFS has published 
regarding CWA's survey, we state that marine mammals may avoid the 
survey area temporarily due to ensonification, but that survey 
activities are not expected to result in long-term abandonment of 
marine mammal habitat. Furthermore, we note that the proposed activity 
is not expected to have any effects on important marine mammal habitat 
(because there are no known areas of significance such as rookeries or 
mating grounds in the proposed survey area). Because of the limited 
spatial extent of the effects on acoustic habitat, NMFS does not think 
that the survey will contribute to adverse impacts on annual rates of 
recruitment or survival.
    The Alliance cites the ``prolonged introduction of acoustic energy 
into Nantucket Sound'' and the fact that the survey activity is taking 
place over a 3-year period (rather than 1 year as originally planned). 
As explained in CWA's application and the numerous Federal Register 
notices NMFS has published, the distances at which sound levels could 
result in harassment are relatively short (30 m for Level A and 444 m 
for Level B). Furthermore, CWA will be required to implement a 500-m 
exclusion zone for all marine mammals in order to prevent harassment. 
The fact that CWA's original proposed survey has extended into multiple 
years does not change NMFS' determinations. CWA has not increased the 
amount or duration of survey work originally proposed.
    Comment 8: The Alliance commented that the number of PSOs required 
aboard CWA's survey vessel remains unclear and appears inadequate.
    Response 8: As detailed in the Mitigation and Monitoring sections 
of this document, at least one PSO will monitor the 500-m radius 
exclusion zone (an area that is larger than the Level A and Level B 
harassment zones) during all survey activities involving the shallow-
penetration and medium penetration subbottom profilers. This PSO(s) 
will monitor (using bincoluars and other appropriate equipment to 
record species, movement, and behavior) 60 minutes prior to starting or 
restarting surveys, during surveys, and 60 minutes after survey 
equipment has been turned off. Due to the survey vessel's small size 
and limited space for up to six personnel, it is not feasible for CWA 
to guarantee that more than one PSO will be available for mitigation 
monitoring. In addition, at least one PSO shall conduct behavioral 
monitoring from the survey vessel at least twice for every 7 days of 
survey activity to estimate take and evaluate the behavioral impacts 
that survey activities have on marine mammals outside of the 500-m 
exclusion zone. Lastly, a separate vessel with another PSO will collect 
data on species presence and behavior before surveys begin and once a 
month during survey activities. All PSOs must be able to effectively 
monitor the 500-m exclusion zone whenever the subbottom profilers are 
in use. CWA will only conduct survey efforts during daylight hours and 
visibility must not be obscured by fog, lighting conditions, etc.
    NMFS believes this monitoring is sufficient to minimize the 
exposure of sound to marine mammals and record potential behavioral 
impacts to marine mammals, considering the following: The relatively 
small size of the mitigation zone (500-m) and the fact that it extends 
beyond the Level A and Level B harassment zones, the slow speed of 
survey vessels during survey operations (3 knots), the low density of 
marine mammals in Nantucket Sound, the time/weather restrictions, and 
the lack of any live marine mammal observations during 28 days of 
survey activity in 2012. Furthermore, CWA performed sound source 
verification monitoring in 2012 and the received 90-percent RMS sound 
pressure levels from the subbottom profilers did not exceed 175 dB. The 
longest distance to the 160-dB isopleth was 12 m, as opposed to the 
estimated 444 m.
    Comment 9: The Alliance stated that the IHA application and NMFS' 
2011 Environmental Assessment (EA) lack a current, activity-specific 
cumulative impact analysis and fail to properly address impacts on sea 
turtles.
    Response 9: The MMPA does not require a cumulative impact analysis 
for incidental take authorizations. However, in accordance with the 
National Environmental Policy Act (NEPA), NMFS prepared an EA in 2011 
that addressed cumulative impacts. In addition, NMFS wrote a memo to 
the record that evaluates whether a supplement to the 2011 EA is 
needed. The EA and memo are available online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    The effects of CWA's underlying action on sea turtles were already 
considered in the Biological Opinion. NMFS' issuance of an IHA under 
the MMPA relates only to impacts on marine mammals and their habitat. 
Furthermore, the scope of NMFS' 2011 EA is focused on NMFS' proposed 
issuance of an IHA for the take of marine mammals. However, NMFS 
Permits and Conservation Division consulted with NMFS' Greater Atlantic 
Regional Fisheries Office on the effects to ESA-listed marine mammals 
from issuance of the IHA. The region concurred with a `not likely to 
adversely affect' determination on April 24, 2014.
    Comment 10: The Alliance states that CWA's application fails to 
specify which port will be used for the survey vessels.
    Response 10: As addressed in the 2011 IHA (76 FR 80892, December 
27, 2011), the 2013 IHA (78 FR 19217, March 29, 2013), and the most 
recent proposed IHA (79 FR 6167, February 3, 2014), CWA's survey 
vessels are expected to depart from Falmouth Harbor, Massachusetts, or 
another nearby harbor on Cape Cod. This information was provided by CWA 
at NMFS' request.
    Comment 11: The Alliance claims that NMFS has not complied with 
NEPA because the 2011 EA is insufficient, relies on a deficient 2009 
Environmental Impact Statement (EIS), and must be made available for 
public comment.
    Response 11: BOEM's 2009 EIS (which was recently upheld by the U.S. 
district court for the District of Columbia) assessed the physical, 
biological, and social/human impacts of Cape Wind's proposed project 
(the long-

[[Page 25839]]

term energy project). NMFS used this EIS to inform our analysis in the 
2011 EA. NMFS' proposed action of issuing an IHA to CWA for the take of 
marine mammals incidental to a high-resolution geophysical survey has 
not changed. As mentioned in Response 9, NMFS evaluated whether or not 
a supplement to the 2011 EA was needed in a memo to the record. NMFS 
does not believe that there are substantive changes in the proposed 
action or new science that would change our determinations or the scope 
of our analysis. The Alliance cites the presence of right whales in the 
project area and the issuance of new leases in the region as making 
BOEM's 2009 EIS ``beyond its useful life as a NEPA document.'' NMFS 
addressed the presence of right whales in Response 6 of this section 
and pointed out that, although there have been a limited number of 
right whale sightings in Nantucket Sound over the past 10 years (as 
seen on NMFS Northeast Fisheries Science Center Web site: https://www.nefsc.noaa.gov/psb/surveys/), these have not overlapped with the 
proposed survey area on Horseshoe Shoal, likely due to the shallower 
water depths. The issuance of new BOEM leases in the region (outside of 
Nantucket Sound) is not likely to result in an overlap of activities in 
time and space. CWA's survey activity will take place over an 
approximate 109-day period and may be concluded by spring 2015.
    As explained in numerous other Federal Register notices concerning 
this action, during the development of this action, including the 2011 
EA, several documents were made available to the public, all of which 
provided a detailed description of the action and potential 
environmental impacts. For example, the analysis of impacts to marine 
mammals from the proposed high resolution geophysical survey activities 
was contained in NMFS' proposed issuance of an IHA (most recently in 
2014 [79 FR 6167, February 3, 2014]) and is similar to what is 
contained in the EA. Additional environmental information was contained 
in CWA's 2011 and 2013 IHA applications, which were also made available 
to the public. Other documents used to inform the EA included the 
Biological Opinion (issued December 30, 2010 by NMFS Northeast Regional 
Office, and available at https://www.epa.gov/region1/communities/pdf/CapeWind/CapeWindBiologicalOpinion-12-30-10.pdf) and the Final 
Environmental Impact Statement (published by the Bureau of Ocean Energy 
Management) on January 21, 2009 [74 FR 3635]) for the long-term Cape 
Wind energy project. The EA describes potential environmental impacts 
from the limited action for which an IHA was requested--the take of 
marine mammals incidental to CWA's high resolution geophysical survey--
which is similar to numerous other survey activities that NMFS has 
analyzed in the past. NMFS believes that sufficient environmental 
information was presented to the public and comments on the proposed 
IHA were taken into consideration during preparation of the EA.
    Comment 12: The Alliance compares CWA's activity to Deepwater 
Wind's proposed Block Island transmission system and wind farm 
activities and suggests that because Deepwater Wind requested (and NMFS 
is proposing) take of right whales, that CWA should do the same. The 
Alliance also suggests that the monitoring requirements for CWA are 
deficient because Deepwater Wind is proposing to use a higher number of 
PSOs.
    Response 12: NMFS published two proposed IHAs recently for 
Deepwater Wind's transmission system (79 FR 15573, March 20, 2014) and 
wind farm (79 FR 16301, March 25, 2014). Deepwater Wind's activities 
are substantially different from CWA's activities. Deepwater Wind is 
proposing to conduct pile driving and use vessels with dynamic 
positioning systems, while CWA will be conducting a high resolution 
geophysical survey. The sound source types, sound propagation, 
harassment zones, and PSOs necessary to monitor these zones are not 
comparable between activities.

Description of Marine Mammals in the Area of the Specified Activity

    All marine mammals with possible or confirmed occurrence in the 
activity area were listed and discussed in the proposed IHA notice (79 
FR 6167, February 3, 2014) and that information has not changed. In 
summary, sightings data suggest that whales do not commonly visit 
Nantucket Sound and there have been no sightings of ESA-listed large 
whales on Horseshoe Shoal. All of the right whales observed in 
Nantucket Sound during 2010 quickly transited the area and there is no 
evidence of any persistent aggregations around the project area. 
Nantucket Sound's shallower depths and location outside of the coastal 
migratory corridor are likely the cause of limited whale sightings.
    Marine mammals with known occurrences in Nantucket Sound most 
likely to be harassed by high resolution geophysical survey activity 
are listed in Table 1 below. These are the species for which take was 
requested and authorized and all are not listed under the Endangered 
Species Act. Further information on the biology and local distribution 
of these species and others in the region can be found in the proposed 
IHA notice (79 FR 6167, February 3, 2014), CWA's application, which is 
available online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications, and the NMFS Marine Mammal Stock 
Assessment Reports, which are available online at: https://www.nmfs.noaa.gov/pr/species.

             Table 2--Marine Mammals That Could Be Impacted by Survey Activities in Nantucket Sound
----------------------------------------------------------------------------------------------------------------
                                                                                             Time of year in New
           Common name               Scientific name       Abundance     Population status         England
----------------------------------------------------------------------------------------------------------------
Minke whale......................  Balaenoptera                 20,741  n/a................  April through
                                    actuorostrata.                                            October.
Atlantic white-sided dolphin.....  Lagenorhynchus               48,819  n/a................  October through
                                    acutus.                                                   December.
Harbor porpoise..................  Phocoena phocoena..          79,883  n/a................  Year-round (peak
                                                                                              Sept-Apr).
Gray seal........................  Halichoerus grypis.         348,900  increasing.........  Year-round.
Harbor seal......................  Phoca vitulina.....          99,340  n/a................  October through
                                                                                              April.
----------------------------------------------------------------------------------------------------------------

Potential Effects of the Specified Activity on Marine Mammals

    Use of subbottom profilers on Horseshoe Shoal may temporarily 
impact marine mammal behavior within the survey area due to elevated 
in-water sound levels. Marine mammals are continually exposed to many 
sources of sound. Naturally occurring sounds such as lightning, rain, 
sub-sea earthquakes, and biological sounds (for example, snapping 
shrimp, whale songs) are widespread throughout the world's oceans. 
Marine mammals produce sounds in various contexts and use sound for 
various biological functions including, but not limited to: (1) Social

[[Page 25840]]

interactions; (2) foraging; (3) orientation; and (4) predator 
detection. Interference with producing or receiving these sounds may 
result in adverse impacts. Audible distance, or received levels of 
sound depend on the nature of the sound source, ambient noise 
conditions, and the sensitivity of the receptor to the sound 
(Richardson et al., 1995). Type and significance of marine mammal 
reactions to sound are likely dependent on a variety of factors 
including, but not limited to, (1) the behavioral state of the animal 
(for example, feeding, traveling, etc.); (2) frequency of the sound; 
(3) distance between the animal and the source; and (4) the level of 
the sound relative to ambient conditions (Southall et al., 2007).
    Background information on sound, marine mammal hearing, and 
potential effects of the specified activity on marine mammals (i.e., 
hearing impairment, threshold shift, and behavioral disturbance) was 
provided in the 2013 proposed IHA notice (78 FR 7402, February 1, 2013) 
and referenced in the 2014 proposed IHA notice (79 FR 6167, February 3, 
2014); that information has not changed.

Anticipated Effects on Marine Mammal Habitat

    The high resolution geophysical survey equipment will not come in 
contact with the seafloor and will not be a source of air or water 
pollution. Marine mammals may avoid the survey area temporarily due to 
ensonification, but survey activities are not expected to result in 
long-term abandonment of marine mammal habitat. The specified activity 
is not expected to have any effects on important marine mammal habitat.

Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, NMFS must prescribe, where applicable, the 
permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable impact on such species or 
stock and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
such species or stock for taking for subsistence uses (where relevant).
    CWA proposed, with NMFS' guidance, the following mitigation 
measures to help ensure the least practicable adverse impact on marine 
mammals and these mitigation measures are requirements in the IHA:

Establishment of an Exclusion Zone

    During all survey activities involving the shallow-penetration and 
medium-penetration subbottom profilers, CWA will establish a 500-m 
radius exclusion zone around each survey vessel. This area will be 
monitored for marine mammals 60 minutes (as stipulated by the BOEM 
lease) prior to starting or restarting surveys, and during surveys, and 
60 minutes after survey equipment has been turned off. Typically, the 
exclusion zone is based on the area in which marine mammals could be 
exposed to injurious (Level A) levels of sound. CWA's lease specifies a 
500-m exclusion zone, which exceeds both the estimated Level A and 
Level B isopleths for marine mammal harassment. Thus, CWA's proposed 
exclusion zone will minimize impacts to marine mammals from increased 
sound exposures. Finally, the exclusion zone must not be obscured by 
fog or poor lighting conditions.

Shut Down and Delay Procedures

    If a PSO sees a marine mammal within or approaching the exclusion 
zone prior to the start of surveying, the observer will notify the 
appropriate individual who will then be required to delay surveying 
(i.e., not initiate any sound sources that could result in the 
harassment of marine mammals) until the marine mammal moves outside of 
the exclusion zone or if the animal has not been resighted for 60 
minutes. If a protected species observer sees a marine mammal within or 
approaching the exclusion zone during survey activities, the observer 
will notify the appropriate individual who will then be required to 
shut down the relevant sound sources until the marine mammal moves 
outside of the exclusion zone or if the animal has not been resighted 
for 60 minutes.

Soft-Start Procedures

    A ``soft-start'' technique will be used at the beginning of survey 
activities each day (or following a shut down of the relevant sound 
sources) to allow any marine mammal that may be in the immediate area 
to leave before the sound sources reach full energy. Sound sources will 
not commence at nighttime or when the exclusion zone cannot be 
effectively monitored.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures to ensure that NMFS 
prescribes the means of effecting the least practicable impact on the 
affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned
     The practicability of the measure for applicant 
implementation
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of underwater impulse sounds, or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of impulse sound, or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of impulse sound, or other activities expected to result in the 
take of marine mammals (this goal may contribute to 1, above, or to 
reducing the severity of harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.

Based on our evaluation of the applicant's proposed measures, as well

[[Page 25841]]

as other measures considered by NMFS, we have determined that the 
aforementioned mitigation measures provide the means of effecting the 
least practicable adverse impacts on marine mammals species or stocks 
and their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an incidental take authorization for an activity, 
section 101(a)(5)(D) of the MMPA states that NMFS must set forth, where 
applicable, ``requirements pertaining to the monitoring and reporting 
of such taking.'' The MMPA implementing regulations at 50 CFR 
216.104(a)(13) indicate that requests for incidental take 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. CWA submitted a marine mammal monitoring plan as 
part of the IHA application, which can be found in section 12 of CWA's 
application.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
     An increase in the probability of detecting marine 
mammals, both within the mitigation zone (thus allowing for more 
effective implementation of the mitigation) and in general to generate 
more data to contribute to the analyses mentioned below
     An increase in our understanding of how many marine 
mammals are likely to be exposed to levels of impulse sound that we 
associate with specific adverse effects, such as behavioral harassment, 
TTS, or PTS
     An increase in our understanding of how marine mammals 
respond to stimuli expected to result in take and how anticipated 
adverse effects on individuals (in different ways and to varying 
degrees) may impact the population, species, or stock (specifically 
through effects on annual rates of recruitment or survival) through any 
of the following methods:
    [cir] Behavioral observations in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information)
    [cir] Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information)
    [cir] Distribution and/or abundance comparisons in times or areas 
with concentrated stimuli versus times or areas without stimuli
     An increased knowledge of the affected species
     An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures

Visual Monitoring

    CWA will designate at least one biologically-trained, on-site 
individual, approved in advance by NMFS, to monitor the area for marine 
mammals 60 minutes before, during, and 60 minutes after all survey 
activities and call for shut down of the sound source if any marine 
mammal is observed within or approaching the designated 500-m exclusion 
zone.
    CWA will also provide additional monitoring efforts to increase 
knowledge of marine mammal species in Nantucket Sound. At least one 
NMFS-approved protected species observer will conduct behavioral 
monitoring from the survey vessel for two days, every 7 days of survey 
activity, to estimate take and evaluate the behavioral impacts that 
survey activities have on marine mammals outside of the 500-m exclusion 
zone. In addition, CWA will also deploy an additional vessel with a 
NMFS-approved PSO to collect data on species presence and behavior 
before surveys begin and once a month during survey activities.
    PSOs will be provided with the equipment necessary to effectively 
monitor for marine mammals (for example, high-quality binoculars, 
compass, and range-finder) in order to determine if animals have 
entered the harassment isopleths and to record marine mammal sighting 
information. PSOs must be able to effectively monitor the 500-m 
exclusion zone whenever the subbottom profilers are in use. Survey 
efforts will only take place during daylight hours and visibility must 
not be obscured by fog, lighting conditions, etc.

Reporting Measures

    CWA will submit a report to NMFS within 90 days of expiration of 
the IHA or completion of surveying, whichever comes first. The report 
will provide full documentation of methods, results, and interpretation 
pertaining to all monitoring. More specifically, the report will 
include the following information when a marine mammal is sighted:
     Dates, times, locations, heading, speed, weather, sea 
conditions (including Beaufort sea state and wind force), and 
associated activities during all survey operations and marine mammal 
sightings;
     Species, number, location, distance from the vessel, and 
behavior of any marine mammals, as well as associated survey activity 
(number of shut-downs or delays), observed throughout all monitoring 
activities;
     An estimate of the number (by species) of marine mammals 
that are known to have been exposed to the survey activity (based on 
visual observation) at received levels greater than or equal to 160 dB 
re 1 uPa (rms) and/or 180 dB re 1 uPa (rms) for cetaceans and 190 dB re 
1 uPa (rms) for pinnipeds with a discussion of any specific behaviors 
those individuals exhibited; and
     A description of the implementation and effectiveness of 
the mitigation measures of the IHA.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA, 
such as an injury (Level A harassment), serious injury, or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), CWA would 
immediately cease the specified activities and report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, at 301-427-8401 and/or by email to 
Jolie.Harrison@noaa.gov and the Northeast Regional Stranding 
Coordinator at 978-281-9300 (Mendy.Garron@noaa.gov). The report must 
include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities may not resume until NMFS is able to review the 
circumstances of the unauthorized take. NMFS would work with CWA to 
determine what is necessary to minimize the likelihood of further 
unauthorized take and ensure MMPA compliance. CWA may not resume their

[[Page 25842]]

activities until notified by NMFS via letter, email, or telephone.
    In the event that CWA discovers an injured or dead marine mammal, 
and the lead PSO determines that the cause of the injury or death is 
unknown and the death is relatively recent (i.e., in less than a 
moderate state of decomposition as described in the next paragraph), 
CWA would immediately report the incident to the Chief of the Permits 
and Conservation Division, Office of Protected Resources, NMFS, at 301-
427-8401 and/or by email to Jolie.Harrison@noaa.gov and the Northeast 
Regional Stranding Coordinator at 978-281-9300 (Mendy.Garron@noaa.gov). 
The report must include the same information identified in the 
paragraph above. Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS would work with CWA to determine 
whether modifications in the activities are appropriate.
    In the event that CWA discovers an injured or dead marine mammal, 
and the lead PSO determines that the injury or death is not associated 
with or related to the activities authorized in the IHA (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), CWA would report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, at 301-427-8401 and/or by email to 
Jolie.Harrison@noaa.gov and the Northeast Regional Stranding 
Coordinator at 978-281-9300 (Mendy.Garron@noaa.gov), within 24 hours of 
the discovery. CWA would provide photographs or video footage (if 
available) or other documentation of the stranded animal sighting to 
NMFS. Activities may continue while NMFS reviews the circumstances of 
the incident.

Monitoring Results From Previously Authorized Activities

    CWA complied with the requirements under their 2012 IHA and did not 
conduct any activities under their 2013 IHA. CWA completed 28 days and 
459 nautical transect miles of survey activity during 2012 and no 
living marine mammals were sighted. On July 10, 2012, a deceased harbor 
seal was seen by two PSOs and survey equipment was immediately shut 
down. The observers determined that the seal had been deceased for 24-
48 hours, based on signs of scavenger damage and bloating, which 
suggest moderate decomposition (Pugliares et al., 2007). Both observers 
concurred that the animal was not injured due to survey activities; 
however, a 60-minute post watch was performed to ensure that no other 
protected species were in the vicinity. A full report was submitted to 
NMFS on July 11, 2012, within 24 hours of the initial sighting. No 
marine mammal takes were reported during the 2012 season. CWA's 
monitoring report is available online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) 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 [Level B harassment].
    Based on CWA's application and NMFS' subsequent analysis, the 
impact of the described survey activities may result in, at most, 
short-term modification of behavior by small numbers of non-ESA listed 
marine mammals within the action area. Marine mammals may avoid the 
area or change their behavior at time of exposure to elevated sound 
levels.
    Current NMFS practice regarding exposure of marine mammals to 
anthropogenic sound is that in order to avoid the potential for injury 
of marine mammals (for example, PTS), cetaceans and pinnipeds should 
not be exposed to impulsive sounds of 180 and 190 dB re: 1 [micro]Pa or 
above, respectively (Level A harassment). This level is considered 
precautionary as it is likely that more intense sounds would be 
required before injury would actually occur (Southall et al., 2007). 
Potential for behavioral harassment (Level B) is considered to have 
occurred when marine mammals are exposed to sounds at or above 160 dB 
re: 1 [micro]Pa for impulse sounds and 120 dB re: 1 [micro]Pa for non-
pulse noise, but below the aforementioned thresholds. These levels are 
also considered precautionary. NMFS' current acoustic exposure criteria 
are summarized below in Table 3.

    Table 3--NMFS' Current Acoustic Criteria, as They Pertain to the
                           Specified Activity
------------------------------------------------------------------------
                           Non-explosive sound
-------------------------------------------------------------------------
          Criterion           Criterion definition        Threshold
------------------------------------------------------------------------
Level A Harassment (Injury).  Permanent Threshold   180 dB re 1 microPa-
                               Shift (PTS) (Any      m (cetaceans)/190
                               level above that      dB re 1 microPa-m
                               which is known to     (pinnipeds) root
                               cause TTS).           mean square (rms).
Level B Harassment..........  Behavioral            160 dB re 1 microPa-
                               Disruption (for       m (rms).
                               impulse noises).
Level B Harassment..........  Behavioral            120 dB re 1 microPa-
                               Disruption (for       m (rms).
                               continuous noise).
------------------------------------------------------------------------

    With NMFS' input, CWA estimated the number of potential takes 
resulting from survey activities by considering species density, the 
zone of influence, and duration of survey activities. This information 
was detailed in the proposed IHA notice (79 FR 6167, February 3, 2014) 
and has not changed. In summary, CWA requested, and NMFS is 
authorizing, incidental take based on the highest estimated possible 
species exposures to potentially disturbing levels of sound from the 
boomer (Table 3). No marine mammals are expected to be exposed to 
injurious levels of sound in excess of 180 dB during survey activities. 
These take numbers overestimate the number of animals likely to be 
taken because they are based on the highest density estimates and do 
not account for required mitigation measures (such as the 500-m 
exclusion zone, marine mammal monitoring, and ramp-up procedures). 
These numbers indicate the maximum number of animals expected to occur 
within 444 m of the boomer.

[[Page 25843]]



                      Table 4--Authorized Take of Marine Mammals by the Specified Activity
----------------------------------------------------------------------------------------------------------------
                                                               Estimated                 Percentage
                                                                take by     Abundance     of stock    Population
             Common name                 Estimated density      level b      of stock   potentially     trend
                                                               harassment                 affected
----------------------------------------------------------------------------------------------------------------
Minke whale.........................  0.13-7.4 (species/                9       20,741         0.04          n/a
                                       1,000 km\2\).
Atlantic white-sided dolphin........  0.13-164.3 (species/            185       48,819         0.38          n/a
                                       1,000 km\2\).
Harbor porpoise.....................  0.13-98.1 (species/             110       79,883         0.01          n/a
                                       1,000 km\2\).
Gray seal...........................  0.13-0.28 (species/             314      348,900         0.09   increasing
                                       km\2\).
Harbor seal.........................  0.03-0.07 (species/              79       99,340         0.08          n/a
                                       km\2\).
----------------------------------------------------------------------------------------------------------------

    Any impacts to marine mammal behavior from the specified activity 
are expected to be temporary. Animals may avoid the area around the 
survey vessels, thereby reducing the probability of exposure. Any 
disturbance to marine mammals is likely to be in the form of temporary 
avoidance or alteration of opportunistic foraging behavior near the 
survey location.

Analysis and Determinations

Negligible Impact

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, and effects on habitat.
    In making a negligible impact determination, NMFS considers a 
number of factors which include, but are not limited to, number of 
anticipated injuries or mortalities (none of which would be authorized 
here), number, nature, intensity, and duration of Level B harassment, 
and the context in which takes occur (for instance, will the takes 
occur in an area or time of significance for marine mammals, or are 
takes occurring to a small, localized population?). As described above, 
marine mammals would not be exposed to activities or sound levels which 
would result in injury (for instance, PTS), serious injury, or 
mortality. Anticipated impacts of CWA's survey activities on marine 
mammals are temporary behavioral changes due to avoidance of the area. 
All marine mammals in the vicinity of survey operations will be 
transient as no breeding, calving, pupping, or nursing areas, or haul-
outs, overlap with the survey area. The closest pinniped haul-outs are 
about 20 km and 12 km away on Monomoy Island and Muskeget Island, 
respectively. Marine mammals approaching the survey area will likely be 
traveling or opportunistically foraging.
    Furthermore, the amount of take CWA requested and NMFS is 
authorizing likely overestimates the actual take that will occur; no 
marine mammal takes were observed during 28 days of survey activity in 
2012. It is important to note that the marine mammal exclusion zone 
that CWA will implement is larger than the Level A and Level B 
harassment zones, and sound source verification monitoring from 2012 
suggests that the originally estimated zones are much smaller. No 
affected marine mammals are listed under the ESA and only the Atlantic 
white-sided dolphin and harbor porpoise are considered strategic under 
the MMPA. Marine mammals are expected to avoid the survey area, thereby 
reducing the risk of exposure and impacts. No disruption to 
reproductive behavior is anticipated and there is no anticipated effect 
on annual rates of recruitment or survival of affected marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of mitigation and monitoring measures, 
NMFS has determined that the total marine mammal take by Level-B 
harassment from CWA's survey activities will have a negligible impact 
on the affected species or stocks.

Small Numbers

    The amount of take CWA requested, and NMFS is authorizing, is 
considered small (less than one percent) relative to the estimated 
populations of 20,741 minke whales, 48,819 Atlantic white-sided 
dolphins, 79,883 harbor porpoises, 348,900 gray seals, and 99,340 
harbor seals. Based on the analysis contained herein of the likely 
effects of the specified activity on marine mammals and their habitat, 
and taking into consideration the implementation of the mitigation and 
monitoring measures, NMFS finds that small numbers of marine mammals 
may be taken relative to the population of the affected species or 
stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has determined that the total taking of 
affected species or stocks will not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    On April 16, 2014, the NMFS Permits and Conservation Division 
concluded that the issuance of the IHA to CWA is not likely to 
adversely affect any listed marine mammal, and we requested NMFS' 
Greater Atlantic Regional Fisheries Office's concurrence on our 
determination. The region concurred with this determination on April 
24, 2014.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, NMFS prepared an Environmental 
Assessment (EA). The EA includes an analysis of the direct, indirect, 
and cumulative effects to marine mammals and other applicable 
environmental resources resulting from the issuance of a 1-year IHA and 
the potential issuance of additional authorization for incidental

[[Page 25844]]

harassment for the ongoing project in 2012. While processing the 2014 
IHA, NMFS wrote a memorandum to the record to determine and document 
whether any changes to the proposed MMPA decision or new circumstances 
or information required us to supplement the 2011 EA and FONSI. NMFS 
determined that the effects of the 2014 IHA fall within the scope of 
the 2011 EA and FONSI and the Bureau of Ocean Energy Management's Cape 
Wind Final Environmental Impact Statement and do not require further 
supplementation. This EA is available on the NMFS Web site listed in 
the beginning of this document.

    Dated: April 28, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-10296 Filed 5-5-14; 8:45 am]
BILLING CODE 3510-22-P