Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of Coastal Virginia, 21298-21304 [2021-08318]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 76 (Thursday, April 22, 2021)]
[Notices]
[Pages 21298-21304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08318]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB020]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Off of Coastal Virginia

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

ACTION: Issuance of a modified incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS has issued a modified incidental harassment authorization 
(IHA) to Dominion Energy Virginia (Dominion) to incidentally harass 
marine mammals incidental to marine site characterization surveys 
conducted in the areas of the Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (OCS) 
Offshore Virginia (Lease No. OCS-A-0483) as well as in coastal waters 
where an export cable corridor will be established in support of the 
Coastal Virginia Offshore Wind Commercial (CVOW Commercial) Project.

DATES: This modified IHA is valid from April 12, 2021 until through 
August 27, 2021.

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the 
contact listed above.

[[Page 21299]]


SUPPLEMENTARY INFORMATION: 

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be 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) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.

History of Request

    On February 7, 2020, NMFS received a request from Dominion for an 
IHA to take marine mammals incidental to marine site characterization 
surveys in the areas of the Commercial Lease of Submerged Lands for 
Renewable Energy Development on the OCS Offshore Virginia (Lease No. 
OCS-A-0483) as well as in coastal waters where an export cable corridor 
will be established in support of the offshore wind project. Dominion's 
planned marine site characterization includes high-resolution 
geophysical (HRG) survey activities. The application was deemed 
adequate and complete on May 12, 2020. We published a notice of 
proposed IHA and request for comments in the Federal Register on June 
17, 2020 (85 FR 36562). We subsequently published the final notice of 
our issuance of the IHA in the Federal Register on September 8, 2020 
(85 FR 55415), with effective dates from August 28, 2020, to August 27, 
2021. NMFS authorized the take by Level B harassment of 9 species (10 
stocks) of marine mammals including bottlenose dolphin (Tursiops 
truncatus), pilot whale (Globicephala spp.), common dolphin (Delphinus 
delphis), Atlantic white sided dolphin (Lagenorhynchus acutus), 
Atlantic spotted dolphin (Stenella frontalis), Risso's dolphin (Grampus 
griseus), harbor porpoise (Phocoena phocoena), harbor seal (Phoca 
vitulina), and gray seal (Halichoerus grypus).
    On September 29, 2020, NMFS received a request from Dominion for a 
modification to the IHA that was issued on August 28, 2020 (85 FR 
55415; September 8, 2020). Since the issuance of the initial IHA, 
Dominion had been recording large pods of Atlantic spotted dolphin 
within the Level B harassment zone such that they were approaching the 
authorized take limit for this species. Therefore, NMFS published a 
notice of proposed IHA modification that included a 15-day public 
comment period (85 FR 71881; November 12, 2020). NMFS subsequently 
issued a modified IHA to Dominion that increased authorized take of 
spotted dolphin by Level B harassment (85 FR 81879; December 12, 2020). 
The mitigation, monitoring, and reporting measures remained the same as 
prescribed in the initial IHA. The expiration date of the IHA remained 
the same (August 27, 2021) as in the initial IHA.
    On February 5, 2021, NMFS received a request from Dominion for a 
second modification to the IHA that had previously been modified and 
issued (85 FR 81879; December 12, 2020). Dominion informed NMFS that 
they were recording take of common dolphin (Delphinus Delphis) by Level 
B harassment at a rate that would exceed the authorized limit for this 
species. Therefore, NMFS published the notice of the proposed IHA 
modification in the Federal Register on March 10, 2021 (86 FR 13695). 
The mitigation, monitoring, and reporting measures remain the same as 
prescribed in the initial IHA and recently issued modified IHA. No 
additional take was requested for other species. Moreover, the IHA 
would still expire on August 27, 2021.

Description of the Specified Activity and Anticipated Impacts

    The modified IHA covers the same HRG surveys in the same locations 
that were described in the initial IHA and recently modified IHA. The 
mitigation, monitoring, and reporting measures remain the same. NMFS 
refers the reader to the documents related to the initial IHA issued on 
August 28, 2020, for more detailed description of the project 
activities. These previous documents include the notice of proposed IHA 
and request for comments (85 FR 36562; June 17, 2020) and notice of our 
issuance of the IHA in the Federal Register (85 FR 55415; September 8, 
2020). Additional information may be found in the notice of issuance of 
the recently modified IHA (85 FR 81879; December 12, 2020).

Detailed Description of the Action

    A detailed description of the survey activities is found in these 
previous documents. The location, timing, and nature of the activities, 
including the types of HRG equipment planned for use, daily trackline 
distances and number of survey vessels (four) are identical to those 
described in the previous notices.

Public Comments

    A notice of proposed IHA modification was published in the Federal 
Register on March 10, 2021, (86 FR 13695). During the 15-day public 
comment period, NMFS received comments from the Southern Environmental 
Law Center (SELC), which submitted comments on behalf on behalf of the 
Conservation Law Foundation, Defenders of Wildlife, National Wildlife 
Federation, Natural Resources Defense Council, Whale and Dolphin 
Conservation, Surfrider Foundation, Sierra Club Virginia Chapter, Mass 
Audubon, Assateague Coastal Trust, Inland Ocean Coalition, the 
International Marine Mammal Project of Earth Island Institute, and 
NY4WHALES as well as from the Responsible Offshore Development Alliance 
(RODA).
    NMFS has posted the comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. A summary of the comments as well as NMFS' 
responses are below.
    Comment 1: SELC indicated that NMFS's interpretation of small 
numbers is contrary to the purpose of the MMPA and that the agency 
failed to consider the unique conservation status of individual 
populations. Instead of applying a 30 percent ceiling for all species, 
SELC recommended that NMFS revisit its small numbers interpretation to 
consider whether the specific take percentage for common dolphin will 
ensure that population levels are maintained at or restored to healthy 
population numbers.
    Response: NMFS addressed this comment in the notice of issuance of 
the first modified IHA and our response

[[Page 21300]]

remains applicable in the context of the modifications in this IHA (85 
FR 81879; December 17, 2020). Please refer to that notice.
    Comment 2: SELC stated that NMFS' updated negligible impact 
analysis underestimates the potential impacts of HRG surveys on small 
cetaceans like the common dolphin. SELC stated that NMFS' negligible 
impact analysis is inadequate given the increased level of take that 
the agency proposed. SELC referenced several scientific research papers 
which indicated that common dolphin is a particularly acoustically 
sensitive species, has the potential to be displaced, shift their 
behavioral state and stop or alter in response to a variety of 
anthropogenic noises, with potentially adverse energetic effects even 
from minor changes.
    Response: NMFS addressed this comment in the notice of issuance of 
the first modified IHA and our response remains applicable in the 
context of the modifications in this IHA (85 FR 81879; December 17, 
2020). Please refer to that notice.
    Comment 3: SELC reiterated that NMFS's use of the 160 decibel (dB) 
threshold for behavioral harassment is not supported by the best 
available scientific information and results in an inaccurate 
negligible impact analysis. Note that NMFS addressed this comment in 
the Federal Register notice of issue of the initial IHA (85 FR 55415; 
September 8, 2020).
    Response: NMFS addressed this comment in the notice of issuance of 
the first modified IHA and our response remains applicable in the 
context of the modifications in this IHA (85 FR 81879; December 17, 
2020). Please refer to that notice.
    Comment 4: SELC recommended that a standard 500-meter (m) exclusion 
zone (EZ) be established for all marine mammal species around survey 
vessels.
    Response: NMFS addressed this comment in the notice of issuance of 
the first modified IHA and our response remains applicable in the 
context of the modifications in this IHA (85 FR 81879; December 17, 
2020). Please refer to that notice.
    Comment 5: SELC recommended that HRG surveys should commence, with 
ramp-up, during daylight hours.
    Response: NMFS addressed this comment in the notice of issuance of 
the first modified IHA and our response remains applicable in the 
context of the modifications in this IHA (85 FR 81879; December 17, 
2020). Please refer to that notice.
    Comment 6: SELC recommended that passive acoustic monitoring (PAM) 
should be employed to monitor marine mammals
    Response: NMFS addressed this comment in the notice of issuance of 
the first modified IHA and our response remains applicable in the 
context of the modifications in this IHA (85 FR 81879; December 17, 
2020). Please refer to that notice.
    Comment 7: SELC recommended that for efforts that continue into the 
nighttime, night-vision or infrared monitoring should also be used.
    Response: NMFS has included in the IHA a requirement that night-
vision equipment (i.e., night-vision goggles and infrared technology) 
must be available for use by Protected Species Observers (PSOs) during 
night operations.
    Comment 8: SELC recommended that NMFS impose a seasonal restriction 
on HRG surveys that have the potential to injure or harass the North 
Atlantic right whale, extending from November 1 through April 30.
    Response: NMFS is concerned about the status of the North Atlantic 
right whale population given that a Unusual Mortality Event (UME) has 
been in effect for this species since June of 2017 and that there have 
been a number of recent mortalities. NMFS appreciates the value of 
seasonal restrictions under certain circumstances. However, in this 
case, we have determined seasonal restrictions are not warranted. Given 
the density of right whales in this area, the nature of the proposed 
activities, and the required mitigation, zero takes of North Atlantic 
right whales are predicted or authorized and, therefore, additional 
mitigation is not warranted especially given the impracticability for 
the applicant of significantly shortening their work season. 
Additionally, Dominion is required to comply with restrictions 
associated with identified SMAs and they must comply with DMA 
restrictions, if any DMAs are established near the Project Area. See 
the North Atlantic right whale vessel speed regulations (50 CFR 
224.105).
    Comment 9: SELC recommended that NMFS establish an extended 1,000-m 
EZ for North Atlantic right whales around survey vessels.
    Response: NMFS addressed this comment in the notice of issuance of 
the initial IHA and our response remains applicable in the context of 
the modifications in this IHA (85 FR 55415; September 8, 2020). Please 
refer to that notice.
    Comment 10: SELC recommended that all vessels traveling to and from 
the project area maintain a speed of 10 knots (18.5 kilometer/hour) or 
less throughout the survey period.
    Response: NMFS addressed this comment in the response to Comment 8 
above.
    Comment 11: SELC recommended that NMFS require activating Dynamic 
Management Areas (DMAs) whenever a single North Atlantic right whale is 
sighted or acoustically detected neat the project area, not just an 
aggregation of three or more whales.
    Response: NMFS addressed this comment in the notice of issuance of 
the first modified IHA and our response remains applicable in the 
context of the modifications in this IHA (85 FR 81879; December 17, 
2020). Please refer to that notice.
    Comment 12: RODA expressed concern that there are no backstops or 
accountability measures for when authorized take exceeds a given 
threshold established by NMFS. They additionally expressed concern that 
developers could ``simply apply for modifications of existing IHAs,'' 
increasing the take every few months.
    Response: NMFS' IHA includes a prohibition on unauthorized take and 
indicates that the IHA may be modified, suspended or revoked if take 
exceeds that authorized. Further, the IHA requires the IHA holder to 
both monitor and report marine mammals observed within zones associated 
with NMFS' harassment thresholds. The information collected and 
reported is used by NMFS to inform future analyses and decisions.
    Regarding the modifications, we note that both modifications were 
made following a 15-day comment period and NMFS analysis and 
confirmation that the modified total take met the standards required 
for issuance of an IHA. In the interim, for this modification, the 
applicants ceased all survey activity to ensure no unauthorized take of 
common dolphins occurs.
    Comment 13: RODA also asked about accountability for impacts from 
offshore wind development activities and how to ensure that any such 
impacts were not erroneously assigned to fishermen.
    Response: The commenter appears to misunderstand the nature of the 
take that is authorized for this IHA, which is Level B harassment only, 
with no anticipated impacts to the reproduction or survival of any 
individual marine mammals. Regarding take being erroneously 
``assigned'' to fishermen, the take considered in commercial fisheries 
is serious injury or mortality. Since neither of those types of take is 
anticipated or authorized for this activity, there is no possibility 
that any such take will result and be misattributed to fishing 
activities.

[[Page 21301]]

    Comment 14: RODA also expressed concern regarding the ``one-off'' 
nature of the IHA process and the lack of a cumulative assessment of 
the fifteen plus offshore wind sites along the East Coast.
    Response: The MMPA includes an exception to its general take 
prohibition for incidental take from a ``specified activity.'' 16 
U.S.C. 1371(a)(5)(D). The specified activity for which we issued 
Dominion's IHA is that company's site characterization surveys and 
establishment of a cable corridor. Cumulative impacts (also referred to 
as cumulative effects) is a term that appears in the context of the 
National Environmental Policy Act (NEPA) and the Endangered Species Act 
(ESA), but it is defined differently in those contexts. Neither the 
MMPA nor NMFS' codified implementing regulations address consideration 
of other unrelated activities and their impacts on populations. 
However, the preamble for NMFS' implementing regulations (54 FR 40338; 
September 29, 1989) states in response to comments that the impacts 
from other past and ongoing anthropogenic activities are to be 
incorporated into the negligible impact analysis via their impacts on 
the baseline. Accordingly, NMFS here has factored into its negligible 
impact analysis the impacts of other past and ongoing anthropogenic 
activities via their impacts on the baseline (e.g., as reflected in the 
density/distribution and status of the species, population size and 
growth rate, and other relevant stressors).
    The reasonably foreseeable cumulative effects to ESA-listed 
species, including impacts to large whales, from other activities were 
considered in the analyses conducted by NMFS' Greater Atlantic Regional 
Fisheries Office (GARFO) as part of the ESA Section 7 Consultation 
regarding Dominion's site characterization surveys offshore Virginia. 
On July 30, 2020, GARFO determined that the effects to species listed 
under the ESA would be insignificant or discountable and therefore, the 
proposed action was not likely to adversely affect any ESA-listed 
species.
    Cumulative impacts have been adequately addressed under NEPA in 
prior environmental analyses that form the basis for NMFS' 
determination that this action is appropriately categorically excluded 
from further NEPA analysis. Regarding activities in the Mid- and South 
Atlantic region, in 2018 NMFS signed a Record of Decision that (1) 
adopted the Bureau of Ocean Energy Management's 2014 Final Programmatic 
Environmental Impact Statement that evaluated the direct, indirect, and 
cumulative impacts of geological and geophysical survey activities on 
the Mid- and South Atlantic Outer Continental Shelf to support NMFS' 
analysis associated with issuance of incidental take authorizations 
pursuant to sections 101(a)(5)(A) or (D) of the MMPA and the 
regulations governing the taking and importing of marine mammals (50 
CFR part 216), and (2) in accordance with 40 CFR 1505.2, announced and 
explained the basis for our decision to review and potentially issue 
incidental take authorizations under the MMPA on a case-by-case basis, 
if appropriate. Separately, NMFS has previously written Environmental 
Assessments (EA) that addressed cumulative impacts related to 
substantially similar activities, in similar locations, e.g., 2019 
Orsted EA for survey activities offshore southern New England; 2019 
Avangrid EA for survey activities offshore North Carolina and Virginia; 
2018 Deepwater Wind EA for survey activities offshore Delaware, 
Massachusetts, and Rhode Island.
    We have determined that our IHA for Dominion's site 
characterization activities qualifies for a categorical exclusion under 
the NEPA in that it will not individually or cumulatively have a 
significant effect on the human environment. We are not aware of any 
past, present or reasonably foreseeable actions within the region of 
influence of the proposed action causing environmental impacts that 
would interact with the impacts of the site characterization activities 
such that the combined effect would be significant. The Bureau of Ocean 
Energy Management (BOEM) is developing Environmental Impact Statements 
(EISs) to address the effects of the construction of offshore wind 
farms in support of decisions of whether to permit that construction 
and operation, and those EISs will analyze the cumulative impacts when 
the impacts of proposed construction an operation are combined with 
other past, present and reasonably foreseeable future actions. Each 
EIS, therefore, will account for the impacts of these site 
characterization activities and any other activities that may occur in 
the same region of influence to ensure that cumulative impacts over 
time are properly evaluated, documented, considered and disclosed.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in these previous documents, which remains applicable to this 
modified IHA as well. In addition, NMFS has reviewed recent Stock 
Assessment Reports, information on relevant UMEs, and recent scientific 
literature, and determined that no new information affects our original 
analysis of impacts under the initial IHA.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the initial IHA, which remains applicable to the issuance of 
this modified IHA. There is no new information on potential effects.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notice of IHA for the 
initial authorization (85 FR 55415; September 8, 2020) notice of IHA 
for the first modified IHA (85 FR 81879; December 17, 2020). The HRG 
equipment that may result in take, as well as the source levels, marine 
mammal stocks taken, marine mammal density data and the methods of take 
estimation applicable to this authorization remain unchanged from the 
previously issued IHA. The number of authorized takes is also identical 
with the exception of common dolphin.
    NMFS had authorized 68 takes of common dolphin by Level B 
harassment in the initial IHA (85 FR 55415; September 8, 2020) and 
recently modified IHA (85 FR 81879; December 12, 2020). Since January 
17, 2021, Dominion has recorded a total of 65 common dolphins within 
the Level B harassment zone. Sighting events have ranged from a single 
dolphin to a group of up to 42 individuals. It appears that the sudden 
increase in Level B take for common dolphins is due to the animals' 
approach to the vessel for both bow riding and swimming alongside 
vessels. The duration of these events has varied from several minutes 
to many hours. Their behavior may be due to curiosity and perhaps an 
enhanced feeding opportunity provided (after dusk) by the lighted 
vessels. The increase in common dolphins appears to be seasonal, with 
most (62) of the Level B harassment takes occurring between January 17 
and January 27, 2021, as well as three additional takes recorded in 
February. There was no observed take of common dolphin during the 
preceding phases of the survey in the summer and fall of 2020. Dominion 
has directed vessels to shut-down at night, during periods of low 
visibility, or whenever common dolphins are sighted to avoid further 
accumulation of take. The need for frequent, lengthy shut-downs has the

[[Page 21302]]

potential to severely impact the overall project schedule. That would 
result in the need for additional survey days on the water as well as 
increased cost and risks associated with extending the project 
schedule.
    Dominion observed common dolphins over 8 operational survey days as 
shown in Table 1. Note that many of these animals were sighted outside 
of the Level B harassment zone and, therefore, were not recorded as 
takes. The 62 takes over eight days averages out to just under eight 
takes per day. Given this information, Dominion has conservatively 
requested the take of one pod of 10 animals every day for the remaining 
60 survey days. NMFS concurs and is authorizing 600 additional takes of 
common dolphin by Level B harassment beyond the 68 takes authorized in 
the initial IHA and recently modified IHA. The expiration date of the 
IHA would remain unchanged as August 27, 2021.

              Table 1--Common Dolphin Detection Events During Dominion Energy HRG Survey Activities
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                                                     Number of
                                     Number of      events that    Total number
                                  common dolphin    resulted in     of Level B
           Vessel name               detection        Level B       harassment     Min pod size    Max pod size
                                      events        harassment         takes
                                                       takes
----------------------------------------------------------------------------------------------------------------
R/V Minerva.....................               2               0               0               7              15
R/V Minerva.....................               4               2              14               6              12
R/V Minerva.....................               4               0               0               6              12
R/V Minerva.....................               3               1              10               1              10
R/V Minerva.....................               4               2              15               4              10
R/V Minerva.....................               2               2              19               7              42
R/V Minerva.....................               3               1               4               1               6
R/V Minerva.....................               2               0               0               4              15
----------------------------------------------------------------------------------------------------------------

    The total number of incidental takes by Level B harassment 
authorized, including modified common dolphin takes, are shown in Table 
2. The authorized take represents 0.39 percent of the western North 
Atlantic stock of common dolphin. Take by Level A harassment was not 
requested, nor does NMFS anticipate it. NMFS did not authorize Level A 
harassment in the initial or recently modified IHA and is not doing so 
as part of this modification.

 Table 2--Total Numbers of Authorized Takes by Level B Harassment and as
                       a Percentage of Population
------------------------------------------------------------------------
                                                    Totals
                                     -----------------------------------
                                                          Instances of
               Species                      Take             take as
                                        authorization     percentage of
                                            (No.)        population \1\
------------------------------------------------------------------------
Short-finned pilot whale............                12              0.06
Bottlenose dolphin (Offshore).......               511              0.81
Bottlenose dolphin (Southern                       224               6.5
 Migratory Coastal).................
Common dolphin......................               668              0.39
Atlantic white-sided dolphin........                44              0.12
Spotted dolphin.....................             2,427              4.38
Risso's dolphin.....................                 6              0.08
Harbor porpoise.....................                39              0.09
Harbor seal \2\.....................                35              0.02
Gray Seal \2\.......................              0.06
------------------------------------------------------------------------
\1\ Calculations of percentage of stock taken are based on the best
  available abundance estimate as shown in Table 2 in Federal Register
  final notice of issuance of the IHA (85 FR 55415; September 8, 2020).
  In most cases the best available abundance estimate is provided by
  Roberts et al. (2016, 2017, 2018), when available, to maintain
  consistency with density estimates derived from Roberts et al. (2016,
  2017, 2018. For bottlenose dolphins, Roberts et al. (2016, 2017, 2018)
  provides only a single abundance estimate and does not provide
  abundance estimates at the stock or species level (respectively), so
  abundance estimates used to estimate percentage of stock taken for
  bottlenose dolphins are derived from NMFS Stock assessment reports
  (Hayes et al. 2019).
\2\ Pinniped density values reported as ``seals'' and not species-
  specific.

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included in this 
modified IHA are identical to those included in the Federal Register 
notice announcing the initial IHA and the discussion of the least 
practicable adverse impact included in that document remains accurate 
(85 FR 55415; September 8, 2020).
    Establishment of EZs--Marine mammal EZs must be established around 
the HRG survey equipment and monitored by PSOs during HRG surveys as 
follows:
     500-m EZ is required for North Atlantic right whales;
     During use of the GeoMarine Dual 400 Sparker 800J, a 100-m 
EZ is required for all other marine mammals except delphinid(s) from 
the genera Delphinus, Lagenorhynchus, Stenella or Tursiops and seals; 
and
     When only the Triple Plate Boomer 1000J is in use, a 25-m 
EZ is required for all other marine mammals except delphinid(s) from 
the genera Delphinus, Lagenorhynchus, Stenella or Tursiops and seals; a 
200-m buffer zone is required for all marine mammals except those 
species otherwise excluded (i.e., North Atlantic right whale).

[[Page 21303]]

    If a marine mammal is detected approaching or entering the EZs 
during the survey, the vessel operator must adhere to the shutdown 
procedures described below. In addition to the EZs described above, 
PSOs must visually monitor a 200-m buffer zone for the purposes of pre-
clearance. During use of acoustic sources with the potential to result 
in marine mammal harassment (i.e., anytime the acoustic source is 
active, including ramp-up), occurrences of marine mammals within the 
monitoring zone (but outside the EZs) must be communicated to the 
vessel operator to prepare for potential shutdown of the acoustic 
source. The buffer zone is not applicable when the EZ is greater than 
100 m. PSOs are also required to observe a 500-m monitoring zone and 
record the presence of all marine mammals within this zone.
    Visual Monitoring--Monitoring must be conducted by qualified 
protected PSOs who are trained biologists, with minimum qualifications 
described in the Federal Register notice of the issuance of the initial 
IHA (85 FR 55415; September 8, 2020). Dominion must have one PSO on 
duty during the day and has committed that a minimum of two NMFS-
approved PSOs must be on duty and conducting visual observations when 
HRG equipment is in use at night. Visual monitoring must begin no less 
than 30 minutes prior to ramp-up of HRG equipment and continue until 30 
minutes after use of the acoustic source. PSOs must establish and 
monitor the applicable EZs, Buffer Zone and Monitoring Zone as 
described above. PSOs must coordinate to ensure 360[deg] visual 
coverage around the vessel from the most appropriate observation posts, 
and must conduct observations while free from distractions and in a 
consistent, systematic, and diligent manner. PSOs are required to 
estimate distances to observed marine mammals. It is the responsibility 
of the Lead PSO on duty to communicate the presence of marine mammals 
as well as to communicate action(s) that are necessary to ensure 
mitigation and monitoring requirements are implemented as appropriate.
    Pre-Clearance of the Exclusion Zones--Prior to initiating HRG 
survey activities, Dominion must implement a 30-minute pre-clearance 
period. During pre-clearance monitoring (i.e., before ramp-up of HRG 
equipment begins), the Buffer Zone also acts as an extension of the 
100-m EZ in that observations of marine mammals within the 200-m Buffer 
Zone would also preclude HRG operations from beginning. During this 
period, PSOs must ensure that no marine mammals are observed within 200 
m of the survey equipment (500 m in the case of North Atlantic right 
whales). HRG equipment must not start up until this 200-m zone (or, 
500-m zone in the case of North Atlantic right whales) is clear of 
marine mammals for at least 30 minutes. The vessel operator must notify 
a designated PSO of the proposed start of HRG survey equipment as 
agreed upon with the lead PSO; the notification time must not be less 
than 30 minutes prior to the planned initiation of HRG equipment in 
order to allow the PSOs time to monitor the EZs and Buffer Zone for the 
30 minutes of pre-clearance.
    If a marine mammal is observed within the relevant EZs or Buffer 
Zone during the pre-clearance period, initiation of HRG survey 
equipment must not begin until the animal(s) has been observed exiting 
the respective EZ or Buffer Zone, or, until an additional time period 
has elapsed with no further sighting (i.e., minimum 15 minutes for 
porpoises, and 30 minutes for all other species). The pre-clearance 
requirement includes small delphinoids. PSOs must also continue to 
monitor the zone for 30 minutes after survey equipment is shut down or 
survey activity has concluded.
    Ramp-Up of Survey Equipment--When technically feasible, a ramp-up 
procedure must be used for geophysical survey equipment capable of 
adjusting energy levels at the start or re-start of survey activities. 
The ramp-up procedure must be used at the beginning of HRG survey 
activities in order to provide additional protection to marine mammals 
near the Survey Area by allowing them to detect the presence of the 
survey and vacate the area prior to the commencement of survey 
equipment operation at full power. Ramp-up of the survey equipment must 
not begin until the relevant EZs and Buffer Zone has been cleared by 
the PSOs, as described above. HRG equipment must be initiated at their 
lowest power output and would be incrementally increased to full power. 
If any marine mammals are detected within the EZs or Buffer Zone prior 
to or during ramp-up, the HRG equipment must be shut down (as described 
below).
    Shutdown Procedures--If an HRG source is active and a marine mammal 
is observed within or entering a relevant EZ (as described above) an 
immediate shutdown of the HRG survey equipment is required. When 
shutdown is called for by a PSO, the acoustic source must be 
immediately deactivated and any dispute resolved only following 
deactivation. Any PSO on duty has the authority to delay the start of 
survey operations or to call for shutdown of the acoustic source if a 
marine mammal is detected within the applicable EZ. The vessel operator 
must establish and maintain clear lines of communication directly 
between PSOs on duty and crew controlling the HRG source(s) to ensure 
that shutdown commands are conveyed swiftly while allowing PSOs to 
maintain watch. Subsequent restart of the HRG equipment must only occur 
after the marine mammal has either been observed exiting the relevant 
EZ, or, until an additional time period has elapsed with no further 
sighting of the animal within the relevant EZ.
    Upon implementation of shutdown, the HRG source may be reactivated 
after the marine mammal that triggered the shutdown has been observed 
exiting the applicable EZ (i.e., the animal is not required to fully 
exit the Buffer Zone where applicable) or, following a clearance period 
of 15 minutes for small odontocetes and seals and 30 minutes for all 
other species with no further observation of the marine mammal(s) 
within the relevant EZ. If the HRG equipment shuts down for brief 
periods (i.e., less than 30 minutes) for reasons other than mitigation 
(e.g., mechanical or electronic failure) the equipment may be re-
activated as soon as is practicable at full operational level, without 
30 minutes of pre-clearance, only if PSOs have maintained constant 
visual observation during the shutdown and no visual detections of 
marine mammals occurred within the applicable EZs and Buffer Zone 
during that time. For a shutdown of 30 minutes or longer, or if visual 
observation was not continued diligently during the pause, pre-
clearance observation is required, as described above.
    The shutdown requirement is waived for certain genera of small 
delphinids (i.e., Delphinus, Lagenorhynchus, Stenella, or Tursiops) 
under certain circumstances. If a delphinid(s) from these genera is 
visually detected within the EZ shutdown would not be required. If 
there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived), PSOs must use best 
professional judgment in making the decision to call for a shutdown.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
area encompassing the Level B harassment isopleth (100 m or 25 m), 
shutdown must occur.
    Vessel Strike Avoidance--Dominion must comply with vessel strike

[[Page 21304]]

avoidance measures as described in the Federal Register notice of the 
issuance of the initial IHA (85 FR 55415; September 8, 2020).
    Seasonal Operating Requirements--Dominion will conduct HRG survey 
activities in the vicinity of the North Atlantic right whale Mid-
Atlantic seasonal management area (SMA) near Norfolk and the mouth of 
the Chesapeake Bay. Activities conducted prior to May 1 must comply 
with the seasonal mandatory speed restriction period for this SMA 
(November 1 through April 30) for any survey work or transit within 
this area. See the North Atlantic right whale vessel speed regulations 
(50 CFR 224.105).
    Throughout all phases of the survey activities, Dominion must 
monitor NOAA Fisheries North Atlantic right whale reporting systems for 
the establishment of a dynamic management area (DMA) (50 CFR 224.105). 
If NMFS establishes a DMA in the Lease Area or cable route corridor 
being surveyed, within 24 hours of the establishment of the DMA, 
Dominion is required to work with NMFS to shut down and/or alter 
activities to avoid the DMA.
    Training--Project-specific training is required for all vessel crew 
prior to the start of survey activities. Confirmation of the training 
and understanding of the requirements must be documented on a training 
course log sheet. Signing the log sheet will certify that the crew 
members understand and will comply with the necessary requirements 
throughout the survey activities.
    Reporting--PSOs must record specific information on the sighting 
forms as described in the Federal Register notice of the issuance of 
the initial IHA (85 FR 55415; September 8, 2020). Within 90 days after 
completion of survey activities, Dominion must provide NMFS with a 
monitoring report which includes summaries of recorded takes and 
estimates of the number of marine mammals that may have been harassed.
    In the event of a ship strike or discovery of an injured or dead 
marine mammal, Dominion must report the incident to the Office of 
Protected Resources, NMFS and to the New England/Mid-Atlantic Regional 
Stranding Coordinator as soon as feasible. The report must include the 
information listed in the Federal Register notice of the issuance of 
the initial IHA (85 FR 55415; September 8, 2020).
    Based on our evaluation of the applicant's measures in 
consideration of the increased estimated take for common dolphins, NMFS 
has re-affirmed the determination that the required mitigation measures 
provide the means effecting the least practicable impact on common 
dolphins and their habitat.

Determinations

    Dominion's HRG survey activities and the mitigation, monitoring, 
and reporting requirements are unchanged from those covered in the 
initial IHA. The effects of the activity, taking into consideration the 
mitigation and related monitoring measures, remain unchanged from those 
stated in the initial IHA, notwithstanding the increase to the 
authorized amount of common dolphin take. Specifically, the Level B 
harassment authorized for common dolphins is expected to be of lower 
severity, predominantly in the form of avoidance of the sound source 
and potential occasional interruption of foraging. With approximately 
60 survey days remaining, NMFS is authorizing increased common dolphin 
take by Level B harassment to 668 from 68. Even in consideration of the 
increased estimated numbers of take by Level B harassment, the impacts 
of these lower severity exposures are not expected to accrue to the 
degree that the fitness of any individuals is impacted, and, therefore 
no impacts on annual rates of recruitment or survival will result. 
Further, and separately, the authorized take amount of common dolphin 
still would be of small numbers of common dolphins relative to the 
population size (less than one percent), as take that is less than one 
third of the species or stock abundance is considered by NMFS to be 
small numbers. In conclusion, there is no new information suggesting 
that our effects analysis or negligible impact finding for common 
dolphins should change.
    Based on the information contained here and in the referenced 
documents, NMFS has reaffirmed the following: (1) The required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) Dominion's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action, and (5) appropriate monitoring and 
reporting requirements are included.

Endangered Species Act

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the modification of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that the issuance of the modified IHA qualifies to be categorically 
excluded from further NEPA review.

Authorization

    NMFS has issued a modified IHA to Dominion for conducting marine 
site characterization surveys in the areas of the Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Offshore Virginia (Lease No. OCS-A-0483) as well as 
in coastal waters where an export cable corridor will be established in 
support of the CVOW Commercial Project effective from the date of 
issuance until August 27, 2021.

    Dated: April 16, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-08318 Filed 4-21-21; 8:45 am]
BILLING CODE 3510-22-P