Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Revolution Wind Offshore Wind Farm Project Offshore Rhode Island, 72562-72673 [2023-22056]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 217
RIN 0648–BL52
[Docket No. 230928–0235]
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to the Revolution
Wind Offshore Wind Farm Project
Offshore Rhode Island
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
In accordance with the
regulations implementing the Marine
Mammal Protection Act (MMPA), as
amended, notification is hereby given
that NMFS promulgates regulations to
govern the incidental taking of marine
mammals incidental to Revolution
Wind, LLC’s (Revolution Wind), a
subsidiary wholly owned by Orsted
Wind Power North America, LLC
(Orsted), construction of the Revolution
Wind Offshore Wind Energy Project
(hereafter known as the ‘‘Project’’) in
Federal and State waters offshore Rhode
Island, specifically within the Bureau of
Ocean Energy Management (BOEM)
Commercial Lease of Submerged Lands
for Renewable Energy Development on
the Outer Continental Shelf (OCS) Lease
Area OCS–A–0486 (Lease Area) and
along two export cable routes to sea-toshore transition points (collectively
referred to as the ‘‘Project Area’’), over
the course of 5 years (November 20,
2023 through November 19, 2028).
These regulations, which allow for the
issuance of a Letter of Authorization
(LOA) for the incidental take of marine
mammals during construction-related
activities within the Project Area during
the effective dates of the regulations,
prescribe the permissible methods of
taking and other means of effecting the
least practicable adverse impact on
marine mammal species or stocks and
their habitat, as well as requirements
pertaining to the monitoring and
reporting of such taking.
DATES: This rulemaking and issued LOA
are effective from November 20, 2023
through November 19, 2028.
FOR FURTHER INFORMATION CONTACT:
Carter Esch, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
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A copy of Revolution Wind’s
Incidental Take Authorization (ITA)
application and supporting documents,
received public comments, and the
proposed rulemaking, as well as a list of
the references cited in this document,
may be obtained online at: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable. In case of problems
accessing these documents, please call
the contact listed above (see FOR
FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory
Action
This final rule, as promulgated,
provides a framework under the
authority of the MMPA (16 U.S.C. 1361
et seq.) for NMFS to authorize the take
of marine mammals incidental to
construction of the Project within the
Project Area. NMFS received a request
from Revolution Wind to incidentally
take individuals of 16 species of marine
mammals, comprising 16 stocks (10
stocks by Level A harassment and Level
B harassment and 6 stocks by Level B
harassment), incidental to Revolution
Wind’s 5 years of construction
activities. No mortality or serious injury
was requested nor is it anticipated or
authorized in this final rulemaking.
Legal Authority for the Final Action
The MMPA prohibits the ‘‘take’’ of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA (16 U.S.C. 1361 et
seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon
request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made, regulations are promulgated
(when applicable), and public notice
and an opportunity for public comment
are provided.
Authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s) and will not have
an unmitigable adverse impact on the
availability of the species or stock(s) for
taking for subsistence uses (where
relevant). If such findings are made,
NMFS must prescribe the permissible
methods of taking, ‘‘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
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significance, and on the availability of
the species or stocks for taking for
certain subsistence uses (referred to as
‘‘mitigation’’); and requirements
pertaining to the monitoring and
reporting of such takings.
As noted above, no serious injury or
mortality is anticipated or authorized in
this final rule. Relevant definitions of
MMPA statutory and regulatory terms
are included below:
• U.S. Citizens—Individual U.S.
citizens or any corporation or similar
entity if it is organized under the laws
of the United States or any
governmental unit defined in 16 U.S.C.
1362(13) (50 CFR 216.103);
• Take—to harass, hunt, capture, or
kill, or attempt to harass, hunt, capture,
or kill any marine mammal (16 U.S.C.
1362(13); 50 CFR 216.3);
• Incidental harassment, incidental
taking, and incidental, but not
intentional taking—an accidental
taking. This does not mean that the
taking is unexpected, but rather it
includes those takings that are
infrequent, unavoidable or accidental
(see 50 CFR 216.103);
• Serious Injury—any injury that will
likely result in mortality (50 CFR 216.3);
• Level A harassment—any act of
pursuit, torment, or annoyance which
has the potential to injure a marine
mammal or marine mammal stock in the
wild (16 U.S.C. 1362(18); 50 CFR 216.3);
and
• Level B harassment—any act of
pursuit, torment, or annoyance which
has the potential to disturb a marine
mammal or marine mammal stock in the
wild by causing disruption of behavioral
patterns, including, but not limited to,
migration, breathing, nursing, breeding,
feeding, or sheltering (16 U.S.C.
1362(18); 50 CFR 216.3).
Section 101(a)(5)(A) of the MMPA and
the implementing regulations at 50 CFR
part 216, subpart I, provide the legal
basis for proposing and, if appropriate,
issuing regulations and an associated
LOA(s). This final rule establishes
permissible methods of taking and
mitigation, monitoring, and reporting
requirements for Revolution Wind’s
construction activities.
Summary of Major Provisions Within
the Final Rule
The major provisions of this final rule
are:
• The authorized take of marine
mammals by Level A harassment and/or
Level B harassment;
• No authorized take of marine
mammals by mortality or serious injury;
• The establishment of a seasonal
moratorium on impact pile driving of
foundation piles during the months of
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the highest presence of North Atlantic
right whales (Eubalaena glacialis) in the
Lease Area (December 1–April 30,
annually), unless prior approval from
NMFS for pile driving in December;
• A requirement for unexploded
ordnance or munitions and explosives
of concern (UXO/MEC) detonations to
only occur during hours of daylight and
not during hours of darkness;
• A requirement for both visual and
passive acoustic monitoring (PAM) to
occur by trained, NOAA Fisheriesapproved Protected Species Observers
(PSOs) and PAM operators (where
required) before, during, and after select
activities;
• A requirement for training for all
Revolution Wind personnel to ensure
marine mammal protocols and
procedures are understood;
• The establishment of clearance and
shutdown zones for all in-water
construction activities to prevent or
reduce the risk of Level A harassment
and to minimize the risk of Level B
harassment;
• A requirement to use sound
attenuation device(s) during all
foundation impact pile driving
installation activities and UXO/MEC
detonations to reduce noise levels to
those modeled assuming 10 decibels
(dB);
• A delay to the start of foundation
installation and UXO/MEC detonations
if a North Atlantic right whale is
observed at any distance by PSOs or
acoustically detected within certain
distances;
• A delay to the start of foundation
installation and UXO/MEC detonations
if other marine mammals are observed
entering or within their respective
clearance zones;
• A requirement to shut down impact
pile driving (if feasible) if a North
Atlantic right whale is observed or if
any other marine mammals are observed
entering their respective shut down
zones;
• A requirement to implement sound
field verification during impact pile
driving of foundation piles and during
UXO/MEC detonations to measure in
situ noise levels for comparison against
the modeled results;
• A requirement to implement softstarts during impact pile driving using
the least amount of hammer energy
necessary for installation;
• A requirement to implement rampup during the use of high-resolution
geophysical (HRG) marine site
characterization survey equipment;
• A requirement for PSOs to continue
to monitor for 30 minutes after any
impact pile driving for foundation
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installation and after any UXO/MEC
detonations;
• A requirement for the increased
awareness of North Atlantic right whale
presence through monitoring of the
appropriate networks and Channel 16,
as well as reporting any sightings to the
sighting network;
• A requirement to implement
various vessel strike avoidance
measures;
• A requirement to implement
measures during fisheries monitoring
surveys, such as removing gear from the
water if marine mammals are
considered at-risk or are interacting
with gear; and
• A requirement for frequently
scheduled and situational reporting
including, but not limited to,
information regarding activities
occurring, marine mammal observations
and acoustic detections, and sound field
verification monitoring results.
NMFS must withdraw or suspend an
LOA issued under these regulations,
after notice and opportunity for public
comment, if it finds the methods of
taking or the mitigation, monitoring, or
reporting measures are not being
substantially complied with (16 U.S.C.
1371(a)(5)(B); 50 CFR 216.206(e)).
Additionally, failure to comply with the
requirements of the LOA may result in
civil monetary penalties and knowing
violations may result in criminal
penalties (16 U.S.C. 1375; 50 CFR
216.106(g)).
Fixing America’s Surface
Transportation Act (FAST–41)
This project is covered under Title 41
of the Fixing America’s Surface
Transportation Act, or ‘‘FAST–41.’’
FAST–41’’ includes a suite of provisions
designed to expedite the environmental
review for covered infrastructure
projects, including enhanced
interagency coordination as well as
milestone tracking on the public-facing
Permitting Dashboard. FAST–41 also
places a 2-year limitations period on
any judicial claim that challenges the
validity of a Federal agency decision to
issue or deny an authorization for a
FAST–41 covered project (42 U.S.C.
4370m–6(a)(1)(A)).
Revolution Wind’s project is listed on
the Permitting Dashboard, where
milestones and schedules related to the
environmental review and permitting
for the project can be found at: https://
www.permits.performance.gov/
permitting-projects/revolution-windfarm-project.
Summary of Request
On October 8, 2021, Revolution Wind
submitted a request for the
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promulgation of regulations and
issuance of an associated LOA to take
marine mammals incidental to
construction activities associated with
the Project in the Project Area. The
request was for the incidental, but not
intentional, taking of a small number of
16 marine mammal species (comprising
16 stocks) by Level B harassment (all 16
stocks) and by Level A harassment (10
species or stocks). Revolution Wind did
not request and NMFS neither expects
nor authorizes incidental take by serious
injury or mortality.
In response to our questions and
comments, and following extensive
information exchange between
Revolution Wind and NMFS,
Revolution Wind submitted a final
version of the revised application on
February 23, 2022. NMFS deemed it
adequate and complete on February 28,
2022. This final application is available
on NMFS’ website at: https://
www.fisheries.noaa.gov/action/
incidental-take-authorizationrevolution-wind-llc-constructionrevolution-wind-energy.
On March 21, 2022, NMFS published
a notice of receipt (NOR) of Revolution
Wind’s adequate and complete
application in the Federal Register (87
FR 15942), requesting public comments
and information on Revolution Wind’s
request during a 30-day public comment
period. During the NOR public
comment period, NMFS received
comment letters from two
environmental non-governmental
organizations: Oceana and the Rhode
Island Saltwater Anglers Association
(RISSA).
On December 23, 2022, NMFS
published the proposed rule for the
Revolution Wind Project in the Federal
Register (87 FR 79072). In the proposed
rule, NMFS synthesized all of the
information provided by Revolution
Wind, all best available scientific
information and literature relevant to
the proposed project, outlined, in detail,
proposed mitigation designed to effect
the least practicable adverse impacts on
marine mammal species and stocks as
well as proposed monitoring and
reporting measures, and made
preliminary negligible impact and small
numbers determinations. The public
comment period on the proposed rule
was open for 45-days on https://
www.regulations.gov starting on
December 23, 2022 and closed after
February 6, 2023. Specific details on the
public comments received during this
45-day period are described in the
Comments and Responses section.
NMFS has previously issued four
Incidental Harassment Authorizations
(IHAs) to Orsted, Revolution Wind’s
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parent company, for high resolution
geophysical marine site characterization
surveys of Revolution Wind’s BOEM
Lease Area OCS–A 0486, two other
BOEM lease areas (OCS–A 0487, OCS–
A 0500), and along potential export
cable routes (see 84 FR 52464, October
2, 2019; 85 FR 63508, October 8, 2020;
87 FR 13975, March 11, 2022; and 87 FR
61575, October 12, 2022). To date,
Orsted has complied with all IHA
requirements (e.g., mitigation,
monitoring, and reporting) of the
previous IHAs and information
regarding their monitoring results may
be found in the Estimated Take section.
These monitoring reports can be found
on NMFS’ website: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable.
On August 1, 2022, NMFS announced
proposed changes to the existing North
Atlantic right whale vessel speed
regulations (87 FR 46921, August 1,
2022) to further reduce the likelihood of
mortalities and serious injuries to
endangered right whales from vessel
collisions, which are a leading cause of
the species’ decline and a primary factor
in an ongoing Unusual Mortality Event
(UME). Should a final vessel speed rule
be issued and become effective during
the effective period of these regulations
(or any other MMPA incidental take
authorization), the authorization holder
will be required to comply with any and
all applicable requirements contained
within the final rule. Specifically, where
measures in any final vessel speed rule
are more protective or restrictive than
those in this or any other MMPA
authorization, authorization holders
will be required to comply with the
requirements of the vessel speed rule.
Alternatively, where measures in this or
any other MMPA authorization are more
restrictive or protective than those in
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any final vessel speed rule, the
measures in the MMPA authorization
will remain in place. The responsibility
to comply with the applicable
requirements of any vessel speed rule
will become effective immediately upon
the effective date of any final vessel
speed rule, and when notice is
published on the effective date, NMFS
will also notify Revolution Wind if the
measures in the speed rule were to
supersede any of the measures in the
MMPA authorization such that they
were no longer required.
Description of the Specified Activities
Overview
Revolution Wind plans to construct
and operate the Project, a 704 megawatt
(MW) offshore wind farm in the Project
Area. The Project will allow the states
of Rhode Island and Connecticut to
meet their renewable energy goals. The
Project, which includes the Revolution
Wind Farm (RWF) and Revolution Wind
Export Cable corridor (RWEC), will
consist of several different types of
permanent offshore infrastructure,
including wind turbine generators
(WTGs; e.g., Siemens Gamesa 11
megawatt (MW)) and associated
foundations, offshore substations (OSS),
offshore substation array cables,
offshore export cables, and substation
interconnector cables. Overall,
Revolution Wind will conduct the
following specified activities: install 79
WTGs and 2 OSS on monopile
foundations via impact pile driving;
install and subsequently remove
cofferdams to assist in the installation of
the export cable route by vibratory pile
driving, or installation of a casing pipe
by pneumatic hammering and goal posts
by vibratory pile driving; several types
of fishery and ecological monitoring
surveys; placement of scour protection;
trenching, laying, and burial activities
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associated with the installation of the
export cable route from OSSs to shorebased converter stations and inter-array
cables between turbines; HRG vesselbased site characterization surveys
using active acoustic sources with
frequencies of less than 180 kilohertz
(kHz); the detonation of up to 13 UXOs/
MECs of different charge weights, as
necessary; transit within the Project
Area and between ports and the Lease
Area to transport crew, supplies, and
materials to support pile installation via
vessels, and WTG operation. All
offshore cables will connect to onshore
export cables, substations, and grid
connections, which will be located at
Quonset Point in North Kingstown,
Rhode Island. Marine mammals exposed
to elevated noise levels during impact
and vibratory pile driving, detonations
of UXOs/MECs, and/or site
characterization surveys may be taken
by Level A harassment and/or Level B
harassment, depending on the specified
activity. A detailed description of the
Project is provided in the published
notice of the proposed rule (87 FR
79072, December 23, 2022).
Dates and Duration
Revolution Wind anticipates its
specified activities will occur
throughout all 5 years of the regulations,
beginning on November 20, 2023 and
continuing through November 19, 2028.
Revolution Wind anticipates the
following construction schedule over
the 5 year period (Table 1). Revolution
Wind has noted that these are the best
and conservative estimates for activity
durations but that the schedule may
shift due to weather, mechanical, or
other related delays. Additional
information on dates and activityspecific durations can be found in the
proposed rule and are not repeated here.
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Table 1 -- Revolution Wind's Construction and Operations Schedule 1• 2
Project Phase
RWF Construction
RWEC Construction
Project Phase Component
Expected Duration and Timing
WTG foundation installation
- 5 months Q2 - Q3 2024
OSS foundation installation
- 2 - 3 days Q2 2024
Array cable installation
- 8 months QI - Q4 2024
HRG surveys
Any time of year
UXO/MEC detonation
-up to 7 days
Cable landfall installation
(temporary cofferdam, or casing
pipe and goal post installation
and removal)
- up to 4 months Q4 2023 - Q 1
2024
Offshore export cable
installation
- 5 months Q4 2023 - Q4 2024
HRG surveys
Any time of year
UXO/MEC detonation
-up to 6 days
HRG surveys
Any time of year Q4 2024-Q3
2028
Operations
Note: "QI, Q2, Q3, and Q4" each refer to a quarter of the year, starting in January and comprising 3
months each. Therefore, QI represents January through March, Q2 represents April through June, Q3
represents July through September, and Q4 represents October through December.
I - Project components in italics are not expected to result in take.
2 - We acknowledge that the schedule may need to shift, given unforeseeable circumstances (e.g.,
inclement weather, mechanical difficulties) but the dates and durations presented here represent the most
realistic schedule.
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A detailed description of the Specific
Geographic Region is provided in the
proposed rule as published in the
Federal Register (87 FR 79072,
December 23, 2022). Since the proposed
rule was published, no changes have
been made to the Specified Geographic
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Region. Generally, Revolution Wind’s
specified activities (i.e., impact pile
driving of WTGs and OSS monopile
foundations; vibratory pile driving
(installation and removal) of temporary
cofferdams, or pneumatic hammering of
casing pipes and vibratory pile driving
of goal posts; placement of scour
protection; trenching, laying, and burial
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activities associated with the
installation of the RWEC and inter-array
cables; HRG site characterization
surveys; UXO/MEC detonation; and
WTG operation) are concentrated in the
Project Area. Vessel transit from ports in
Maryland and Virginia could also occur;
therefore, vessel use could occur in the
Mid-Atlantic Bight.
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Comments and Responses
A notice of proposed rulemaking was
published in the Federal Register on
December 23, 2022 (87 FR 79072) and
a 15-day extension to the public
comment period was published on
January 19, 2023 (88 FR 3375). The
proposed rulemaking described, in
detail, Revolution Wind’s specified
activities, the specific geographic region
of the specified activities, the marine
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mammal species that may be affected by
those activities, and the anticipated
effects on marine mammals. In the
proposed rule, we requested that
interested persons submit relevant
information, suggestions, and comments
on Revolution Wind’s request for the
promulgation of regulations and
issuance of an associated LOA described
therein, our estimated take analyses, the
preliminary determinations, and the
proposed regulations. In total, the
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proposed rule was available for a 45-day
public comment period.
NMFS received 404 comment
submissions, including from the Marine
Mammal Commission (Commission),
several private organizations, and 396
from private citizens. Most of these
comments were out-of-scope or not
applicable to this specific action and
location (e.g., specific opposition to
offshore wind development offshore of
New Jersey; general opposition to or
support of offshore wind projects;
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concerns for other species outside
NMFS’ jurisdiction (i.e., birds)), and are
not described herein or discussed
further. Four comment letters were from
environmental non-governmental
organizations, including one from the
Responsible Offshore Development
Alliance (RODA), one from Oceana, Inc.
(Oceana), and two from the Natural
Resources Defense Council (NRDC), of
which one was a comment letter with an
attachment and the other was a request
to extend the comment period an
additional 15 days (hence, the extension
published in the Federal Register on
January 19, 2023 (88 FR 3375)). We also
received one comment letter from a
public organization, the Conservation
Law Foundation (CLF). These six letters
(excluding the NRDC request for a 15day comment period extension on the
proposed regulations) contained
substantive information that NMFS
considered in its estimated take
analysis, final determinations, and final
regulations. In addition, we received
comment letters from Salty Enterprises,
the Washington Dungeness Crab
Association, and a group of Rhode
Island fishermen. The comments are
described below, along with NMFS’
responses.
All substantive comments and letters
are available on NMFS’ website: https://
www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act. Please
review the corresponding public
comment link for full details regarding
the comments and letters.
Comment 1: The Commission
recommended that, until JASCO
Applied Sciences’ (hereafter, ‘‘JASCO’’)
model has been validated with in-situ
measurements from the impact
installation of monopiles and pin piles
in the northwest Atlantic, NMFS should
require Revolution Wind and thus
JASCO to re-estimate the various Level
A harassment and Level B harassment
zones for the final rule using source
levels that are at a minimum 3 dB
greater than those currently used.
Response: The Commission has
expressed concerns about the lack of
validation of JASCO’s models in
previous Commission letters for
Orsted’s other wind projects. JASCO has
compared their source model
predictions to an empirical model
prediction by the Institute of Technical
and Applied Physics (ITAP). The
empirical model is based on a large data
set of pile driving sounds measured at
750 meters (m) from the source
collected during installation of largediameter piles (up to 8 m) during wind
farm installation in the North Sea
(Bellmann, 2020). As no noise
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measurements exist for tapered 8/11-m
monopile at this time (yet to be installed
offshore), the ITAP prediction facilitates
a way of validating the source levels of
the numerical finite difference (FD)
model. The ITAP data are averaged
across different scenarios—pile sizes are
grouped, which includes different
hammers, water depths, depths of
penetration, and environmental
conditions—and the 95th percentile
level is reported, whereas the aim of
JASCO’s modeling is to estimate the
median value. While the ITAP forecast
and the FD source predictions were
comparable (see Appendix I of the
Revolution Wind Underwater Acoustic
and Exposure Modeling report (Ku¨sel et
al., 2022)), there is variance in the
underlying ITAP data and there are
parametric choices for the FD model in
the different environments, so an exact
match is not expected. As part of the
comparison, it was found that different
(but reasonable) parametric input
choices in the FD modeling can result
in output differences on the order of the
variance in the ITAP data so it was
concluded that the FD modeling
approach performed as well as can be
discernible given the available data.
While adding 3 dB to the JASCO
predictions at 750 m may bring JASCO’s
source predictions into line with the
finite-element (FE) predictions for the
portmanteau combining computation,
comparison, and pile (COMPILE)
scenario but it is not clear that this
would be more accurate. This approach
assumes that the FE models are correct
but Lippert et al. (2016) also state ‘‘a
drawback of (the FE) approach is that it
simulates the energy loss due to friction
in an indirect and rather nonphysical
way.’’ The Commission also suggested
that NMFS could have used damped
cylindrical spreading model (DCSM;
Lippert et al., 2018) and the source
levels provided by the time-domain
finite difference pile-driving source
model (TDFD PDSM); however, for
reasons described herein, NMFS has
determined JASCO’s model results are
reliable and achievable.
Recent measurements taken during
the Coastal Virginia Offshore Wind
(CVOW) Pilot Project reported the range
to the marine mammal Level B
threshold (160 dB re 1 microPascal
(1mPa)) from the 7.8-m pile installed
with a double big bubble curtain to be
3,891 m (12,765.75 feet (ft)) when using
a hammer operating at a maximum of
550 kilojoules (kJ) (WaterProof, 2020).
JASCO’s model prediction for 7/12-m
tapered piles using a 4,000 kJ hammer
is 3,833 m (12,575 ft). The Commission
states that, based on the CVOW reported
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sound levels, it is unrealistic that an
impact hammer with seven times more
energy intensity would result in a
smaller harassment zone. NMFS
disagrees. The 3,891-m distance to the
Level B harassment threshold measured
during the CVOW Pilot Project cited by
the Commission was obtained based on
the maximum measured sound pressure
level (RMS SPL), which is not an ideal
statistic to base estimates of Level B
harassment isopleths, as it is not
representative of average operating
conditions and represents one hammer
strike. Further, small differences in the
propagation environment could account
for the ranges being more comparable
than expected. Importantly, as described
below, NMFS is also now in receipt of
measurements from the South Fork
project which indicate JASCO’s
predicted distance to the Level B
harassment threshold is realistic and
attainable. Based on the expected
variance between the Revolution Wind
and CVOW projects and measurement
data from South Fork (see below), it
cannot be concluded that the CVOW
measured results (using the maximum
RMS SPL reported) indicate that
JASCO’s 4,684 m modeled distance to
Level B harassment threshold should be
increased.
Importantly, since the proposed rule
phase, NMFS has received interim
sound field verification reports from the
South Fork Wind project, which used
JASCO’s modeling. In all but one case,
and out of six tapered piles (8/10-m or
7/9.5-m) installed, the measured
distances to NMFS’ Level B harassment
threshold were lower than JASCO’s
model predicted. The distance to NMFS
Level B harassment threshold for the
South Fork project was modeled as
4,684 m while in-situ measurements
identified distances, excluding the one
aforementioned pile, ranging from 1.84
kilometers (km) to 3.25 km. JASCO’s
modeling predicts the distances to the
Level B harassment threshold during
installation of Revolution Wind
monopiles will be approximately 3.8 km
in summer, which is slightly greater
than the loudest pile installed during
the South Fork Wind results. We note
that South Fork Wind determined that
the one pile generating noise levels
above those predicted (the first pile) did
so due to a malfunctioning noise
attenuation system which was quickly
rectified and deployed appropriately on
all future piles. Further, in this final
rule, we are requiring Revolution
Wind’s measured sound levels do not
exceed those modeled, assuming 10 dB,
for at least three consecutively
measured monopiles. Based on all these
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reasons, NMFS is not requiring
Revolution Wind to remodel the
harassment zone sizes by adding 3 dB
to the source levels and is, instead,
carrying forward the modeling results as
presented in the proposed rule.
Of note, NMFS has also received
interim sound field reports from
Vineyard Wind. However, comparisons
between the modeled and measured
results are not as directly applicable as
the South Fork Wind results due to
assumptions in the model and
operations Therefore, the Vineyard
Wind data are less useful in judging
predicted alignment between modeled
and measured zones for the Revolution
Wind project.
Based on this discussion and given
our consideration of the best available
scientific information, including
available interim sound field
verification (SFV) reports from other
offshore wind construction projects in
the United States, we disagree with the
suggestions made by the Commission.
NMFS has incorporated the best
available scientific information into this
final rule, using recent measurements as
well as estimates obtained through
JASCO’s modeling.
Comment 2: The Commission
suggested that JASCO should consider
revising its exposure modeling to
include single-day simulations for
stationary, discrete sound sources and
numerous Monte Carlo simulations (e.g.,
at least 30) for modeling reports for
future rules.
Response: JASCO typically uses 7-day
simulations to get a representative
sample of the installation process (e.g.,
impact piling every day or every other
day). From those 7-day simulations,
several 24-hour windows within the 7day simulations are used to find the
average exposure expected in a 24-hour
period that includes impact pile driving.
The average 24-hour estimates are then
scaled by the number of days of impact
pile driving. The use of the 7-day
simulation allows for a robust
probability calculation. The
Commission recommends that, instead,
JASCO run 30 single-day simulations to
generate an average daily exposure.
While NMFS makes recommendations,
as appropriate, regarding the inputs,
assumptions, and methods used by
applicants to model and estimate
marine mammal take, there is no one
single correct overall methodology. The
Commission does not provide any
information to support an assertion that
the method used by JASCO is not
appropriate or sufficient, and NMFS
supports the use of this methodology.
Furthermore, it is unclear what the
Commission means by ‘‘stationary,
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discrete sound sources.’’ If the sources
referred to are monopiles, then JASCO’s
modeling approach does use a Monte
Carlo approach for sampling the
expected sound fields. With the typical
modeling density of 0.5 animats/km2,
there are usually tens of thousands of
animats meaning there are tens of
thousands of Monte Carlo samples. If
the suggestion is to run the simulations
(with tens of thousands of animats) 30
times, that is equivalent to increasing
the modeling density by 30. Previous
work, such as the work done by Houser
(2006), has indicated that such high
modeling densities are not necessary.
Please refer to NMFS’ related response
to Comment 1.
Comment 3: The Commission
recommended that NMFS authorize
Level A harassment (permanent
threshold shift (PTS)) takes for fin
whales, humpback whales, minke
whales, common dolphins, bottlenose
dolphins, and Atlantic white-sided
dolphins during UXO/MEC detonations
and increase to group size, if needed, in
the final rule.
Response: NMFS concurs with the
Commission’s general recommendation
and notes that the Commission did not
provide specific Level A harassment
(PTS) take numbers NMFS should
authorize in the final rule. As described
in the proposed rule, take by Level A
harassment is considered less likely
given the required shutdown zones and
the instantaneous duration of the
detonation, however, NMFS
acknowledges the large mitigation and
monitoring zone size (particularly for
heavier charge weight UXOs/MECs)
required for this activity, the cryptic
nature of some marine mammal species
(e.g., minke whales, dolphin spp.), and
that the authorized take numbers do not
fully account for the effectiveness of the
required mitigation measures other than
the 10 dB noise attenuation
incorporated in acoustic and exposure
modeling. Therefore, NMFS is
conservatively authorizing the number
of model-estimated takes by Level A
harassment (PTS) (increased to group
size when the modeled exposures were
less than a single group size) incidental
to UXO/MEC detonations that were
included in the exposure estimate table
(Table 23) in the proposed rule: 2 fin
whales (modeled exposures = 1.2), 2
humpback whales (modeled exposure =
0.9), 8 minke whales (modeled
exposures = 7.7), 35 common dolphins
(modeled exposure = 0.4), 8 bottlenose
dolphins (Western North Atlantic
offshore stock) (modeled exposure =
0.1), and 28 Atlantic white-sided
dolphins (modeled exposure = 0.1).
Consistent with this rationale, NMFS is
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also authorizing Level A harassment
(PTS) of two sei whales (modeled
exposure = 0.5) based on the result of
exposure modeling rounded to group
size.
Comment 4: The Commission
recommended that NMFS revise its take
estimates for impact installation of
monopiles based on the possibility that
only a single monopile is installed per
day over 79 days rather than three per
day over 26 days.
Response: The Commission asserted
that JASCO should have conducted
single-day simulations adjusted by the
respective density and multiplied by the
number of days of each activity (29 days
of the highest mean density month).
Further, as addressed in Comment 2, the
Commission suggested that single-day
simulations run 30 or 50 times per
activity, species, and season are more
consistent with other entities’ methods
for conducting exposure modeling and
would reduce the variance and standard
error in the predictions as compared to
single seven-day simulations. Regarding
density seeding, the Commission did
not provide a justification for the claim
that JASCO’s assumptions used to seed
its exposure modeling were
inappropriate. Additionally, the
Commission did not provide references
for the other ‘‘entities’’ that have
conducted exposure modeling using
single-day simulations, so we are unable
to make direct comparisons. We can,
however, further explain and address
the use of seven-day simulations.
JASCO ran JASCO’s Animal Simulation
Model Including Noise Exposure
(JASMINE) simulations for seven days,
assuming piling every day. Separate
simulations were run for each scenario
(e.g., pile diameter/number of piles per
day/season combination). The average
number of exposures for a 24-hour
window for the scenario in question was
then multiplied by the number of days
planned for that scenario. For example,
if the scenario includes installation of
three 7/15-m WTG monopiles per day in
the summer, JASCO ran the simulation
for 7 days, resetting exposures each day.
If the daily counts were 20, 19, 21, 20,
19, 22, and 20 the average number of
exposures per day would be 20.14. If
Revolution Wind plans to install that
particular configuration for 5 days, the
exposure estimate would be 20.14 × 5 =
100.71.
JASCO conducted 7-day simulations
because there is some variation in the
exposure estimates due to the statistical
nature of the exposure model and the
approach captures installation
conditions in multiple possible pile
locations across the wind farm area.
Modeling every pile location in the area
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is not practicable due to computational
limitations. For sequential piling
simulations, where more than one pile
is installed per day, the sound fields
may overlap but are temporally
separated. Whether or not a particular
animat is exposed to sound from
installation of one or the other, both, or
all piles is dependent on the spacing of
the locations and the swimming
behaviors of the animats. JASCO
modeled all other scenarios (e.g., one
pile per day, 7/12-m monopile, summer)
completely separately and multiplied
the resulting average number of
exposures per day for a given scenario
by the number of days Revolution Wind
plans to conduct the scenario.
The Commission cited an assumption
in the take estimate methodology for
installation of monopiles that could
push the take estimate in the direction
of less than the maximum expected
takes. However, there are multiple other
assumptions in the take estimate
methodology that consider conditions
that would result in the maximum
possible takes or even an overestimate
of possible takes. When all of these
assumptions are considered together,
NMFS expects the take estimation
model and methodology to produce the
maximum take that could occur
incidental to the specified activity.
While Revolution Wind
acknowledged that it may not install
three piles every day, it indicated it is
capable of installing up to three piles
per day with the goal is to complete
installation as quickly as possible.
Hence, to assume only one monopile
per day everyday (as recommended by
the Commission) would not be
consistent with what Revolution Wind,
a company with offshore wind farm
installation experience, indicated is
possible or is planned.
The exposure estimates contained
within the proposed rule are a product
of modeling that assumes three piles are
driven per day. This assumption is most
influential when estimating the number
of Level B harassment exposures but
provides minimal influence over the
number of Level A harassment
exposures modeled. There are several
conservative assumptions that offset the
potential to underestimate take should
Revolution Wind not be able to install
three piles per day every day, including,
but not limited to, all piles are installed
during 29 days of the highest density
month for each species from May–
December. This is conservative because
pile driving every day within a given
month is not possible due to historical
weather patterns and potential technical
issues that may be encountered and the
highest density of every species does
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not occur in the same month. It is more
likely that pile driving will occur over
several months in which marine
mammal species’ densities are lower.
For example, for North Atlantic right
whales, December is the highest density
month (from May–December); this
maximum density value was thus
conservatively incorporated in take
estimation even though NMFS added a
requirement in the final rule that
Revolution Wind must not plan to
impact pile drive monopiles during
December, unless NMFS gives approval
due to unforeseen circumstances.
Further, for some species, group size or
PSO data adjustments were made that
increased the amount of take authorized
compared to the modeled exposure
estimates. In addition, the modeled
exposure estimates on which the
amount of take authorized is based for
some species (versus group size or PSO
data adjustments) do not consider
natural avoidance of marine mammals
to noise levels that could elicit PTS, or
the use of mitigation such as shutdown
or clearance zones, which are designed
to effect the least practicable adverse
impact on marine mammals, including
North Atlantic right whales (e.g., pile
driving may not commence and must
shut down if a North Atlantic right
whale is observed at any distance).
NMFS has retained the exposure
estimate methodology from the
proposed rule despite the potential for
less pile driving per day (equating to
more days of pile driving) for the
reasons provided above. In some cases,
as described in this final rule, we have
increased the amount of take authorized
from that proposed for some species
(e.g., increased Level A harassment for
marine mammals with modeled Level A
harassment exposures) (see Comments
3, 5, and 6). Furthermore, as described
above, there are numerous other
conservative assumptions in the model
such that, when considered together,
support NMFS assessment that the
number of take authorized represents
the number of take expected to occur
incidental to the impact installation of
monopiles.
For these reasons, NMFS disagrees
with the Commission’s assessment that
the number of take is underestimated for
monopile installation and has not
adjusted take based on the possibility
that only a single monopile is installed
per day.
Comment 5: The Commission
recommended that NMFS should
authorize the model-estimated Level A
harassment takes of fin whales, minke
whales, sei whales, harbor porpoises,
gray seals, and harbor seals during
impact installation of monopiles.
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Response: NMFS agrees with the
Commission that some Level A take of
the species referenced may occur;
however, NMFS disagrees that the full
number of modeled Level A exposures
should equate to the number of take
authorized for all species. The exposure
modeling resulted in the following
estimated number of Level A
harassment (PTS) exposures incidental
to impact installation of monopiles: 7
humpback whales, 7 fin whales, 3 sei
whales, 61 minke whales, 321 harbor
porpoises, 5 gray seals, and 32 harbor
seals. Revolution Wind requested and
NMFS proposed to authorize in the
proposed rule 7 Level A harassment
(PTS) takes of humpback whales
because the size of the large whale
shutdown zone (summer 2.3 km; winter
4.4 km) is smaller than the distance to
the PTS Level A harassment isopleth
(summer 2.66 km; winter 6.29 km) for
this species. NMFS did not propose
Level A harassment of other marine
mammals because Revolution Wind did
not request it and in consideration of
mitigation measures, such as a
prescribed shutdown zone that is larger
than the 95 percent exposure range
(ER95%) Level A harassment (PTS) zone
for all species except, as noted,
humpback whales. While NMFS carried
this analysis forward in the proposed
rule, in making the final decision to
authorize Level A harassment of the
additional species indicated above,
NMFS considered the impracticality of
implementing shutdown measures
under certain pile installation
circumstances (i.e., pile instability or
pile refusal) for safety concerns, and the
cryptic nature of minke whales, harbor
porpoises, gray seals, and harbor seals
(particularly in higher sea states or
reduced visibility conditions). Although
the combination of visual and acoustic
monitoring is designed to reliably detect
marine mammals such that effective
mitigation can be implemented, NMFS
acknowledges PTS may not be entirely
avoidable.
Density-based exposure modeling
results indicate there is potential for 7
fin whale, 3 sei whale, 61 minke whale,
321 harbor porpoise, 32 harbor seal, and
5 gray seal PTS exposures. These
numbers represent the potential for PTS
absent consideration of any mitigation
or natural aversion that would prevent
them from approaching at the closer
distances associated with PTS and are
based on the assumption that all piles
would be driven in the highest density
month (May through December) for any
given species. Hence, based on
modeling assumptions alone, these
values can be considered a conservative.
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As described above, in the proposed
rule, based on Revolution Wind’s
request, we considered the potential for
shutdown measures to alleviate
potential for PTS except for humpback
whales. In consideration of the
Commission’s comment, we reevaluated the potential for marine
mammals of the aforementioned species
to remain undetected and remain close
enough and for long enough duration to
accumulate energy levels necessary to
elicit PTS. NMFS has determined that
where PTS density-based exposure
estimates are very low (i.e., three sei
whales, five gray seals), exposures could
occur. However, where exposure
estimates are higher, it would be overly
conservative to assume that all
exposures would occur given the
required mitigation and monitoring
measures, natural avoidance responses,
and that piles will be installed during
lower density months. Therefore, NMFS
is authorizing Level A harassment to sei
and gray seals equal to the exposure
estimates (three sei whale, five gray
seal). However, for other species, in
order to appropriately consider the
likelihood of aversion in the closer
vicinity of the source and the likely
effectiveness of the mitigation measures,
we estimate that 20 percent of the
calculated exposure estimates could
occur (rounded to the nearest whole
number), which is equal to 2 fin whale
exposures, 13 minke whale exposures,
65 harbor porpoise exposures, and 7
harbor seal exposures. This adjustment
is consistent with the adjustment used
in the Gulf of Mexico incidental take
regulations (86 FR 5354, January 19,
2021), which was informed by the
associated relative risk assessment
framework developed by an expert
working group to support the analyses
and findings in those regulations. The
risk assessment framework referenced
Ellison et al. (2016), in which modeled
scenarios using animal movement
models were used to evaluate predicted
PTS in which no aversion was assumed
relative to scenarios where reasonable
assumptions were made about aversion,
in line with historical response
probability assumptions and that
existing scientific literature suggest are
appropriate. Scenarios where no
aversion probability was used
overestimated the potential for high
levels of exposure required for PTS by
about five times. Accordingly, total
modeled injurious exposures calculated
without accounting for behavioral
aversion were multiplied by 0.2 as part
of the Expert Working Group (EWG) risk
analysis for the Gulf of Mexico, and we
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have determined that this adjustment is
similarly appropriate for this analysis.
Comment 6: The Commission
recommended that NMFS include in the
final rule a small number of Level A
harassment takes of harbor porpoises
incidental to cable landfall construction,
specifically installation and removal of
casing pipes.
Response: NMFS concurs with the
Commission’s general recommendation
and notes the Commission did not
recommend a number of takes by Level
A harassment. NMFS has added a small
number of Level A harassment takes of
harbor porpoises during pneumatic
hammering installation and removal of
casing pipes should this landfall
construction activity occur (rather than
installation of a cofferdam). Since
publication of the proposed rule,
Revolution Wind determined that it will
be impracticable to monitor a 4-km
shutdown zone. Based on NOAA
shipboard observations of harbor
porpoises used in habitat-based density
modeling conducted by Roberts et al.
(2016, 2023), the detection probability
for harbor porpoises drops off
substantially in the 750–1,000 m range
when sea states are a Beaufort Sea State
of 2 or less. Therefore, Revolution
concluded that 750 m is the maximum
practicable extent within which they
could effectively monitor for harbor
porpoise during casing pipe installation
and removal. NMFS has adjusted the
shutdown zone in this final rule to 750
m. Given this new information, similar
to our approach to responding to
Comments 3 and 5, we reconsidered the
available information on this species’
habitat distribution, the distance to the
Level A harassment threshold, and the
potential for harbor porpoise, a small,
fast moving species that can be difficult
to see, to be exposed to sound energy
levels necessary to induce PTS. As
described in the proposed rule,
modeling results estimate that a harbor
porpoise would have to remain at
approximately 4 km for 3 hours of
hammering per day to experience PTS
(or some lesser duration if the animal
approaches closer). Harbor porpoises are
one of the few marine mammals known
to occur regularly in Narragansett Bay
(e.g., Kenney and Vigness-Raposa, 2010)
and are most frequently observed in
winter and spring during which casing
pipe installation and removal would
occur (Q4 2023–Q1 2024). The potential
temporal and spatial overlap of harbor
porpoise occurrence with the PTS Level
A harassment acoustic footprint
resulting from pneumatic hammering,
the size of the PTS Level A harassment
zone (3,950 m), and the cryptic nature
of harbor porpoises (particularly at a
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distance) support authorization of Level
A harassment. Revolution Wind expects
that it will require 8 days of pneumatic
hammering to install the casing pipes.
Because Revolution Wind has not
specified exactly which 8 days in Q4
2023–Q1 2024 casing pipe installation
would occur, it is possible that they
would complete this activity in
December or January, when harbor
porpoise densities near the landfall
construction site are an order of
magnitude higher than in the other
months in which the species
consistently utilizes habitat in/near
Narragansett Bay (March–May), and the
potential for acoustic impacts from
pneumatic hammering is highest. Given
that there are no modeled results for
takes by Level A harassment, NMFS
conservatively assumes that one group
(group size = 2.7 rounded to 3; Kraus et
al., 2016) may be taken by Level A
harassment per day of pneumatic
hammering (n=8). Therefore, NMFS is
authorizing 24 takes by Level A
harassment zone of harbor porpoises
incidental to casing pipe installation.
Comment 7: The Commission is
concerned the number of take of
common dolphin proposed to be
authorized (3,913 common dolphins
across all activities) is an underestimate
considering the size of the Level B
harassment zones, the potential number
of days of activities, and the known
presence of delphinids in the area, and
recommended that NMFS ensure that
the number of Level B harassment takes
of common dolphins is sufficient for
impact driving of monopiles or other
activities (landfall construction, HRG
surveys, and UXO/MEC detonations)
and increase the total number, as
necessary, for the final rule. The
Commission notes that other windenergy operators have had to revise their
HRG survey incidental harassment
authorization mid-authorization and in
some cases, twice when the authorized
number of takes had been met (e.g., 86
FR 13695, March 10, 2021), thus, there
is the potential for this to occur for
Revolution Wind given the frequency of
common dolphin occurrence in the
Project Area. The Commission notes
4,644 common dolphins were observed
in the lease areas during combined HRG
surveys (i.e., site assessment surveys)
for Revolution Wind and two other
wind projects from September 2019 to
September 2020 (Smultea
Environmental Sciences, LLC, 2020).
Response: NMFS acknowledges the
importance of accurate take estimates.
NMFS notes that the IHA referenced by
the Commission that required multiple
revisions to increase the authorized take
numbers for delphinids, including
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common dolphins, was associated with
HRG surveys occurring off the coast of
Virginia and therefore, is not
representative of occurrence patterns in
the Project Area. Regarding the cited
monitoring results from Smultea
Environmental Sciences, LLC (Smultea)
(2020) from Orsted Wind Power, LLC’s
HRG surveys (84 FR 52464, October 2,
2019), NMFS also notes that this survey
covered 103,186 km while Revolution
Wind only plans to survey 29 percent of
that distance (30,345 km). However, the
common dolphin sighting data in the
Smultea (2020) monitoring report can
inform estimates of take within the
Project Area, given that the area
surveyed included the Revolution Wind
and surrounding leases.
Importantly, the common dolphin
take numbers Revolution Wind
requested and NMFS proposed for
authorization were based on the best
scientific information available and a
conservative methodology, including
that the number of takes was the largest
estimate among multiple take estimation
methods (i.e., modeled density-based
exposures, PSO data-derived estimates,
and published group size value) and the
data used to estimate take incidental to
cofferdam installation were collected
outside Narragansett Bay, where
common dolphin occur more frequently.
NMFS disagrees that authorization of
additional take of common dolphins
incidental for landfall construction
activities and WTG foundation
installation is warranted. While
common dolphins are known to occur
near the landfall construction location
in Narragansett Bay, the frequency of
occurrence is expected to be
significantly less than that in open
water; thus, the number of takes is
conservative as it is based on oceanic
PSO data. In addition, common
dolphins are rarely sighted in
Narragansett Bay in the winter months
(Kenney and Vigness-Raposa, 2010)
when cable landfall construction will
take place. The proposed common
dolphin density-based Level B
harassment take estimate for impact
foundation installation incorporated the
maximum monthly average density,
which occurs in December. However,
the final rule specifies that Revolution
Wind must not plan to install
foundations in December and may only
do so with NMFS-explicit approval.
Thus the take estimate for landfall
construction activities is conservative.
NMFS agrees with the Commission’s
recommendation to increase the number
of Level B harassment take of common
dolphins incidental to UXO/MEC
detonation given the prevalence of the
species in southern New England;
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however, the Commission did not
provide any suggested number of takes
NMFS should authorize and, as
described previously, based their
recommendation partially on PSO
sighting data that include observations
of common dolphins over a much larger
spatial scale than the Project Area.
While there is no new information to
consider, similar to our approach to
responding to Comments 3, 5 and 6, we
reconsidered the available information
on this species’ monthly densities,
which NMFS considers the best
available science for this purpose, and
the currently unpredictable timing of
UXO/MEC detonations. Given the
timing of UXO/MEC detonations is
unknown, it’s equally possible that
detonations could occur when common
dolphin densities are highest or lowest
in the Project Area, although take
estimation did conservatively
incorporate the maximum average
monthly common dolphin density from
May–December in the Lease Area
(November) and export cable route
(September). In addition, Revolution
Wind assumed six and seven
detonations would occur in the export
cable corridor and Lease Area,
respectively. However, it is possible that
more than the estimated number of
UXO/MECs could be located and
detonated in either area. The maximum
average monthly density used to
estimate take in the export cable
corridor (0.0389 individuals/km2) is
approximately half of the Lease Area
maximum average monthly density.
(0.0762 individuals/km2). Thus, should
more than seven detonations (if
required) occur in the Lease Area, the
estimated Level B harassment take
incidental to UXO/MEC detonation
could be underestimated. Based on
these factors, NMFS assumed that one
group (group size = 34.9, rounded to 35)
could be taken by Level B harassment
incidental to approximately half (n=7)
of all UXO/MEC detonations, and is,
therefore, authorizing a total of 632
common dolphin Level B harassment
takes due to UXO/MEC detonations; a
change from the proposed rule of 211 as
the corrected number of Level B
harassment takes of common dolphin
which Revolution Wind requested was
387 and the addition of 245 takes by
Level B harassment as a result of a
comment from the Commission.
Please note that Revolution Wind is
required to implement the As Low as
Reasonably Practicable (ALARP)
process, which indicates that detonation
would occur as a last resort after all
other methods (e.g., lift-and-shift) are
exhausted.
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NMFS agrees with the Commission’s
recommendation to increase take of
common dolphins incidental to HRG
surveys and is authorizing an additional
number of common dolphin takes based
on data in the PSO monitoring report
cited in their comment, which NMFS
considers to be the best available
science for this purpose. The total
number of common dolphins sighted by
PSOs is highly variable, depending on
the survey timing (which may align
more or less with peaks in expected
common dolphin occurrence), the
number of kilometers surveyed, and
survey conditions, among other factors.
As described above, Revolution Wind
anticipates that they may conduct HRG
surveys at any time of year throughout
construction and non-construction
years. Given common dolphins are one
of the most frequently sighted species
during HRG surveys (as reported by
PSOs in the monitoring reports cited
here) and the number of dolphins
sighted is highly variable and
dependent on multiple influencing
factors (e.g., time of year), NMFS is
conservatively authorizing 4,457
common dolphin Level B harassment
takes incidental to HRG surveys during
the year of construction, which is
equivalent to the number of common
dolphins taken by Level B harassment
during the HRG surveys the
Commission refers to in their comment
(Smultea Environmental Sciences, LLC,
2020). This is an 89 percent increase
from the 2,354 common dolphin Level
B harassment takes proposed for
authorization (87 FR 79072, December
23, 2022). Accordingly, NMFS is
authorizing 1,094 takes per year (89
percent increase from 579 per year, as
presented in the proposed rule) of
common dolphins, by Level B
harassment, incidental to HRG surveys
for each of the 4 years following
construction (4,376 total in the years
following construction).
Comment 8: The Commission
recommended that NMFS determine if
the 2017 Department of the Navy’s
(2017) group size estimates are more
appropriate or reflective of the expected
group size estimates for the Project than
those used in the proposed rule (see
Borcuk et al., 2017). If so, the
Commission suggested the take numbers
be amended in the final rule for all of
Revolution Wind’s activities.
Response: We appreciate the
Commission’s suggestion to review the
2017 Department of the Navy’s (2017)
group size estimates to see if they are
more applicable for the Project (see
Borcuk et al., 2017). Based on our
review, we disagree that the Navy’s
group size estimates are the most
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applicable in this case. First, the Navy
only provides group size estimates for
odontocetes, which means we would
still need to find applicable estimates
for non-odontocete species found in the
Atlantic Ocean. Second, the group sizes
provided in Kraus et al. (2016) (used for
10 species in our analysis) are derived
from data gathered specifically in the
Massachusetts and Rhode Island/
Massachusetts Wind Energy Areas (MA
and RI/MA WEAs), where Revolution
Wind’s Project will occur. The group
sizes in the Navy (2017) report are based
on data collected more broadly across
the entire East Coast of the United States
and Canada, including the Gulf of
Mexico, Sargasso Sea, Labrador Sea, and
Labrador Basin. Furthermore, Atlantic
Marine Assessment Program for
Protected Species (AMAPPS) data
(Palka et al., 2017; which was used as
a group size reference for six species in
our analyses) uses more recent
information, as demonstrated in the
2010–2021 annual reports found on
NMFS’ web page, (https://
www.fisheries.noaa.gov/new-englandmid-atlantic/population-assessments/
atlantic-marine-assessment-programprotected). The Navy (2017) group sizes
are based on data from 1990 through
2013 (see Table 3–1 in the report).
Lastly, based on monitoring reports
received from PSOs in the field (and
found on NMFS’ website: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable#expiredauthorizations), the group sizes
observed align more with estimates
found in Kraus et al. (2016) and
AMAPPS (Palka et al., 2017). For these
reasons, the group sizes proposed by
Revolution Wind, any adjustments
using Kraus et al. (2016) or AMAPPS
data, and any group sizes used in the
proposed and final rules are based on
the best available scientific information.
Comment 9: The Commission
disagrees with NMFS that the potential
for non-auditory injury and mortality
during UXO/MEC detonations are
considered de minimis. They stated that
although non-auditory injury and
mortality could be unlikely, these
outcomes are not de minimis because
these assumptions were based off
Bellmann et al. (2020) and Bellmann
(2021) and their reports of bubble
curtain effectiveness, which are based
on information obtained from mitigating
UXO/MECs in European waters using a
big bubble curtain. The Commission
went further to state that these results
from Bellmann are only potentially
possible if the single or double bubble
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curtain was optimized for the
environmental conditions and that these
results are specific to European charges,
which may not be representative of
charges in the United States as charges
in Europe have been degrading in the
water for approximately 75 years, which
compromises the integrity of the
trinitrotoluene (TNT)-equivalent
material. Additionally, the charge
weights described in Bellmann (2021)
are much smaller than those described
for Revolution Wind (i.e., 100 grams (g),
5 kilograms (kg), 10 kg compared to 454
kg). The Commission also adds that the
shockwave from the UXO/MEC
detonations may displace or disrupt the
bubble curtains due to the speed the
shockwave travels (i.e., supersonic).
Because of these reasons, the
Commission recommended that NMFS
re-estimate the distances to threshold
and the mitigation and monitoring
zones for mortality, Level A harassment,
and Level B harassment based on 0 dB
of sound attenuation.
The Commission also recommended
that NMFS estimate and authorize Level
B harassment behavior takes of marine
mammals, in addition to takes from
temporary threshold shift (TTS), for
UXO/MEC detonations in the final rule.
Finally, the Commission recommended
that, because of the reasons already
explained regarding attenuating UXO/
MEC detonations, NMFS should require
that Revolution Wind utilize a double
big bubble curtain (DBBC) during all
detonations and that NMFS not allow
Revolution Wind to detonate UXOs/
MECs when currents are moving faster
than 2 knots (kn; 2.3 miles per hour
(mph)).
Response: NMFS appreciates the
Commission’s recognition that European
waters offer a different environment
than the Atlantic Ocean and that the
conditions and size of explosives
potentially encountered in the
Revolution Wind Project Area.
Bellmann (2021) summarized findings
from Bellmann et al. (2021) that showed
use of a single big bubble curtain during
UXO/MEC detonation reduced noise
levels by 11 dB for broadband sound
exposure levels and up to 18 dB for
peak sound pressure (Lpk). While NMFS
agrees with the Commission’s comment
that big bubble curtains (BBCs)
attenuate high-frequency (HF) sound (<1
kHz) more efficiently than lowfrequency (LF) sound (Bellmann et al.,
2020) that corresponds to most of the
UXO/MEC energy, the broadband
attenuation is expected to be similar, if
the bubble curtain radius is large
enough to avoid nearfield effects of the
explosive detonations. While it is true
that theoretical explosive spectra are flat
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at low frequencies and decay at highfrequencies, there remains significant
energy at frequencies at which bubble
curtains have been shown to be effective
(Bellmann et al., 2020). A recent study
of UXO/MEC detonations in the North
Sea (Robinson et al., 2022) showed that
measured spectra at 5.1 km had the
majority of its energy between 32 and
250 Hz, in this range, the insertion loss
data from Bellman (2021) has a
minimum attenuation of approximately
16.8 dB in the 50-hertz (Hz) band and
is greater than 20 dB for all other bands.
Further, Verfuss et al. (2019) summarize
the effectiveness of bubble curtains on
UXO/MEC detonations beyond those
sizes considered in Bellman et al. (2021)
which, while variable, provide support
for the 10-dB broadband assumption
when bubble curtains are deployed
correctly (i.e., with a sufficiently large
diameter to suppress the flow of
displaced water). Therefore, the choice
of 10 dB as a broadband attenuation for
UXO/MEC detonations in our analysis is
based on the best scientific information
available and thus is appropriate.
In addressing the Commission’s
additional comments regarding
mitigating pile driving and UXO/MEC
detonations and the efficacy, the
physical principles of inserting an
impedance change between the source
and farther receivers is the same
whether the source is an explosive or a
pile. It is important, however, that the
bubble curtain be placed outside of the
region where the explosive causes
nonlinear changes in the medium.
While we do agree that ‘‘deployment’’
and ‘‘efficacy’’ are not synonymous
terms, there will be a deployed bubble
curtain on each of the piles driven for
the project so an understanding of
bubble curtain deployment strategies,
maintenance, and use will be
understood by the operations team. As
above, the mechanism of sound
attenuation, while frequency dependent,
does not change for the source as long
as the bubble curtain is deployed at
distance where the acoustics is linear.
For UXOs/MECs, the distances to
thresholds for different sized charges
likely to be encountered were calculated
by JASCO assuming the sources were
full strength and not degraded due to
time. While the Commission has also
accurately stated that the bubble curtain
could be displaced due to the
supersonic shock wave produced by the
detonation event, we acknowledge that
this would require the bubble curtain to
be placed in the area outside of the nonlinear zone.
NMFS is requiring Revolution Wind
to meet the noise levels modeled
assuming 10-dB attenuation, which
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must be verified by SFV and, as
recommended by the Commission, is
requiring Revolution Wind deploy a
double big bubble curtain (DBBC)
during all UXO/MEC detonations.
Further, we are requiring that the bubble
curtain be placed at a distance such that
the nozzle hose remains undamaged.
Given the best available science suggests
10-dB attenuation is achievable, the
additional information provided above
by JASCO, the requirement to meet the
noise levels modeled assuming 10 dB,
and the requirement to use a double big
bubble curtain, as well as the extensive
monitoring requirements associated
with the clearance requirements
(including aerial surveys if the clearance
zone is greater than 5 km), NMFS has
not adjusted any distances to thresholds
or take estimates assuming no noise
attenuation. At this time, NMFS is not
requiring UXO/MEC detonation be
limited to times when current speed is
2 kn (2.3 mph) or less but, as described
above, is requiring Revolution Wind to
meet the noise levels modeled. Should
SFV identify that noise levels are not
being met, NMFS will consider the
current conditions during detonation
and determine if such a measure is
necessary to meet the noise levels
modeled assuming 10-dB attenuation.
Nonetheless, regarding the
Commission’s comment about use of the
term ‘‘de minimis’’ to describe the
likelihood of non-auditory injury or
mortality, we concur that ‘‘unlikely’’ is
a better descriptor and have changed it
in this final rule where appropriate.
NMFS agrees with the Commission
that there is potential for behavioral
disturbance from a single detonation per
day and this impact is accounted for
with the Level B harassment takes
authorized from UXO/MEC detonations.
The current take estimation framework
allows for the consideration of animals
exhibiting behavioral disturbance
during single explosions as they are
counted as ‘‘taken by Level B
harassment’’ if they are exposed above
the TTS threshold, which is 5-dB higher
than the explosive behavioral
harassment threshold. The behavioral
threshold for underwater detonations
(i.e., 5 dB less than the TTS thresholds
for each functional hearing group) that
the Commission identifies in its
comment is only applicable to multiple
detonations per day. We acknowledge in
our analysis that individuals exposed
above the TTS threshold may also be
harassed by behavioral disruption and
those potential impacts are considered
in the negligible impact determination.
NMFS is not aware of evidence to
support the assertion that animals will
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have behavioral responses that would
qualify as take to temporally and
spatially isolated explosions at received
levels below the TTS threshold.
However, if any such responses were to
occur, they would be expected to be few
and to result from exposure to the
somewhat higher received levels
bounded by the TTS thresholds and
would, thereby, be accounted for in the
take estimates. The derivation of the
explosive injury criteria is provided in
the 2017 technical report titled ‘‘Criteria
and Thresholds for U.S. Navy Acoustic
and Explosive Effects Analysis (Phase
III).’’
In the final rule, we have clarified that
(1) Revolution Wind will be limited to
detonating one UXO/MEC per day, and
(2) that the TTS thresholds provided in
Table 5 are used to estimate the
potential for Level B (behavioral)
harassment. In both the proposed and
this final rule, NMFS applied the TTS
thresholds to determine the received
level at which Level B harassment
(which includes both behavioral
responses and TTS) may occur. Hence,
no adjustments to take estimates are
necessary.
Comment 10: Citing the dire situation
of North Atlantic right whales, the
commenter stated that NMFS should
clearly describe in the regulations or
LOA for wind projects that the activities
cannot result in any Level A
harassment, serious injury, or mortality
of North Atlantic right whales.
Response: The proposed rule clearly
states that no take of North Atlantic
right whales by Level A harassment,
mortality, or serious injury was
requested or proposed for authorization
(see the Estimated Take and Negligible
Impact Analysis and Determination
sections in the proposed rule) and those
statements are also included in this final
rule. In this final rule, for example,
Tables 27 and 28 show that only Level
B harassment is authorized for North
Atlantic right whales, and the North
Atlantic right whale sub-section in the
Negligible Impact Analysis and
Determination section also states that no
take of North Atlantic right whale by
Level A harassment, mortality, or
serious injury is anticipated or
authorized and any take that is
authorized is limited to Level B
harassment only.
Mitigation
Comment 11: Commenters
recommended that NMFS require
Revolution Wind to implement the best
commercially available combined noise
attenuation system (NAS) technology to
achieve the greatest level of noise
reduction and attenuation possible for
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pile driving. One commenter
recommended that NMFS require, at a
minimum, a 10-dB reduction in sound
exposure level (SEL), but other
commenters recommended that NMFS
require a minimum of 15-dB or greater
reductions, citing successes described in
Bellman et al. (2020 and 2022) and
recommended ‘‘state-of-the art’’
methods using a combination of two
NAS systems simultaneously. A
commenter further stated that NMFS
should require field measurements to be
taken throughout the construction
process, including on the first pile
installed, to ensure compliance with
noise reduction requirements. A
commenter also suggested that NMFS
require Revolution Wind to use HRG
acoustic sources at the lowest
practicable source levels needed to meet
the objectives of the site
characterization surveys.
Response: NMFS agrees that
underwater noise levels should be
reduced to the greatest degree
practicable to reduce impacts on marine
mammals as required by the MMPA. As
described in both the proposed and final
rule, NMFS has included requirements
for sound attenuation methods that
successfully (evidenced by required
sound field verification measurements)
reduce real-world noise levels produced
by impact pile driving of foundation
installation to, at a minimum, the levels
provided by JASCO modeled assuming
10 dB reduction, as analyzed in the
proposed rule. Preliminary sound
measurements from South Fork Wind,
another Orsted project, indicate that
with multiple NAS systems, measured
sound levels during impact driving
foundation piles using a 4,000 kJ
hammer are below those modeled
assuming a 10-dB reduction and
suggest, in fact, that two systems may
sometimes be necessary to reach the
targeted 10-dB reductions. While NMFS
is requiring that Revolution Wind
reduce sound levels to match the model
outputs analyzed (assuming a reduction
of 10 dB), we are not requiring greater
reduction as it is currently unclear
(based on measurements to date)
whether greater reductions are
consistently practicable for these
activities, even if multiple NAS systems
are used.
In response to the recommendation by
the commenters for NMFS to confirm
that a 10-dB reduction is achieved,
NMFS clarifies that, because no
unattenuated piles would be driven,
there is no way to confirm a 10-dB
reduction; rather, in-situ SFV
measurements will be required to
confirm that sound levels are at or
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below those modeled assuming a 10-dB
reduction.
Regarding the recommendation that
Revolution Wind should utilize its HRG
acoustic sources at the lowest
practicable source level to meet the
survey objective, NMFS agrees with this
suggestion and has incorporated this
requirement into the final rule.
Comment 12: To minimize the risk of
vessel strikes for all whales, especially
in recognition of the imperiled state of
North Atlantic right whales,
commenters recommended that NMFS
require a mandatory 10-kn (11.5 mph)
speed restriction for all project vessels
(including PSO survey vessels) at all
times, except for reasons of safety, and
in all places except in limited
circumstances where the best available
scientific information demonstrates that
whales do not occur in the area.
Another commenter made the same
recommendation but suggested no
exceptions. Alternatively, commenters
suggest that project proponents could
work with NMFS to develop an
‘‘Adaptive Plan’’ that modifies vessel
speed restrictions if the monitoring
methods informing the Adaptive Plan
are proven as effective when for vessels
traveling 10 kn (11.5 mph) or less and
must follow a scientific study design.
One commenter suggests that if the
Adaptive Plan is scientifically proven to
be equally or more effective than a 10kn speed restriction, that the Adaptive
Plan could be used as an alternative to
the 10-kn speed restriction. Commenters
also recommend that NMFS (1) require
all offshore personnel to be trained to
identify North Atlantic right whales and
other large whales, (2) that all vessels
maintain a 500 m separation distance
from North Atlantic right whale, 100 m
for other large whale species while also
maintaining a vigilant watch for North
Atlantic right whale and other large
whale species, (3) that NMFS require
vessels to slow down or maneuver their
vessels appropriately to avoid a
potential interaction with a North
Atlantic right whale and other large
whale species, and (4) that NMFS
require vessels to maintain a separation
distance from North Atlantic right
whales at all times.
Response: NMFS acknowledges that
vessel strikes pose a risk to all large
whales, including North Atlantic right
whales. Based on the density
information provided by Roberts et al.
(2023), many large whale species are
less frequently found within the
Revolution Wind Project Area during
the months when foundation
installation, which requires the use of
multiple vessels, would occur (i.e., May
through November and possibly
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December, if approved by NMFS).
Furthermore, while we acknowledge
that North Atlantic right whales can be
found year round in the Project Area,
NMFS, as described in the proposed
rule and included in this final rule, is
requiring Revolution Wind to reduce
speeds to 10 kn (11.5 mph) or less in
circumstances when North Atlantic
right whales are known to be present or
more likely to be in the area, which
include, but are not limited to, all Slow
Zones (Dynamic Management Area or
acoustic Slow Zone), when traveling
between ports in New Jersey, New York,
Maryland, or Virginia from November
1–April 30, and if a North Atlantic right
whale is detected visually or
acoustically at any distance or reported
within 10 km. Vessels are also required
to slow and maintain separation
distances if other species of large whales
are observed. Additionally, aside from
any requirements of this rule,
Revolution Wind is required to comply
with all spatial and temporal speed
restrictions outlined in existing
regulations. Together, these speed
requirements align with the
commenters’ recommendations.
The required mitigation measures, all
of which were included in the proposed
rule and are now required in the final
rule, can be found in Section 217.274(b)
of the regulatory text. For the final rule,
NMFS has also included a requirement
that all vessels be equipped with
automatic identification system (AIS) to
facilitate compliance checks with the
speed limit requirements. At least 180
days prior to the start of vessel
operations commencing, Revolution
Wind must submit both a Vessel Strike
Avoidance Plan, including plans for
conducting PAM in the transit corridors
should Revolution Wind determine they
wish to travel over 10 kn (11.5 mph) in
the transit corridors, to NMFS for
review and approval.
While NMFS acknowledges that
vessel strikes can result in injury or
mortality, we have analyzed the
potential for vessel strike resulting from
Revolution Wind’s activity and have
determined that based on the required
mitigation measures specific to vessel
strike avoidance included in the final
rule, the potential for vessel strike is so
low as to be discountable and thus, no
vessel strikes are expected or authorized
to occur. These measures also ensure
the least practicable adverse impact on
species or stocks and their habitat.
Therefore, we are not requiring projectrelated vessels to travel 10 kn (11.5
mph) or less at all times.
Comment 13: Commenters
recommended that NMFS should
prohibit pile driving during periods of
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highest risk for North Atlantic right
whales, which they defined as times of
the highest relative density of animals
during foraging and migration, and
times where cow-calf pairs, pregnant
females, surface active groups (that are
foraging or socializing), or aggregations
of three or more whales, are not
expected to be present. Citing multiple
information sources, commenters
further specifically recommended the
seasonal restriction for pile driving be
expanded to November 1 through April
30 to reflect the period of highest
detections of vocal activity, sightings,
and abundance estimates of North
Atlantic right whales. A commenter
recommends prohibiting pile driving
during seasons when protected species
are known to be present or migrating in
the Project Area, in addition to any
dynamic restrictions due to the presence
of North Atlantic right whale or other
endangered species.
Response: NMFS has restricted
foundation installation pile driving from
January through April which represent
the times of year when North Atlantic
right whales are most likely to be in the
Project Area. We recognize that the
density of whales begins to elevate in
December; however, it is not until
January when density greatly increases.
Revolution Wind has indicated that to
complete the project, pile driving in
December will be avoided as much as
possible but may be required. In this
final rule, NMFS has included an
additional measure wherein impact pile
driving must be avoided to the
maximum extent practicable in
December; however, with prior approval
by NMFS, it may occur if necessary to
complete the project. In any time of year
when foundation installation is
occurring, a visual or acoustic detection
of a North Atlantic right whale at any
distance triggers a pile driving delay or
shutdown. We also reiterate that
Revolution Wind is required to
implement a larger minimum visibility
zone in December (4.4 km (2.7 mi)) as
compared to other project months (2.3
km), reflecting the results of JASCO’s
underwater sound propagation
modeling. With the application of these
enhanced mitigation and monitoring
measures in December, impacts to the
North Atlantic right whale will be
further reduced, if any are encountered
when transiting through the Project
Area.
Regarding further restrictions on pile
driving in the month of November, as
noted in the comments and supporting
information and acknowledged by
NMFS in both the proposed and final
rules, North Atlantic right whale
distribution is shifting due to climate
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change and other factors, and they are
now present year round in the vicinity
of the project (e.g., Quintana-Rizzo et
al., 2021), with observations of feeding
behavior and some detections of
mothers with calves. However, as
shown in Roberts et al. (2023), which is
considered the best available science
regarding marine mammal densities in
the Atlantic Ocean, it is not until
January that densities begin to
significantly increase. Further, North
Atlantic right whales are not likely to be
engaged in extensive feeding behaviors
in the Project Area, in November,
relative to the extent of foraging in
habitat to the east (e.g., in and around
Nantucket Shoals). For these reasons
and given the inclusion of December in
the pile driving temporal restrictions,
except with NMFS prior approval,
NMFS finds that further expansion of
the pile driving restrictions (beyond
December–April) is unwarranted.
Inasmuch as commenters may be
suggesting prohibiting pile driving
when any protected species are present,
it would not be practicable to
implement as there is no time of year
when some species of marine mammals
are not present. The measures
prescribed in this final rule ensure the
least practicable adverse impact on
species or stocks and their habitat.
Comment 14: Commenters
recommended that NMFS increase the
size of the clearance and shutdown
zones for HRG surveys, require a delay
in the start and resumption of HRG
surveys and pile driving if a large whale
is visually or acoustically detected in
the clearance and shutdown zones,
require soft start for pile driving and
ramp up for HRG surveys, and require
PAM during HRG surveys. In addition,
a commenter acknowledges the purpose
of an exemption from shutdown for
safety reasons for pile driving but
recommends that, if this exemption
occurs, Revolution Wind must
immediately notify NMFS and provide
justification for using the exemption.
Additionally, a commenter stated that a
summary of the frequency of these
exceptions must be made publicly
available.
Response: NMFS disagrees with the
commenters’ recommendation to
increase HRG survey clearance and
shutdown zone sizes, and the
commenters’ do not provide additional
scientific information for NMFS to
consider to support their
recommendation. As described in the
proposed rule and this final rule, the
required 500-m shutdown zone for
North Atlantic right whales exceeds the
modeled distance to the largest 160-dB
Level B harassment isopleth (141 m
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during sparker use) by a large margin,
minimizing the likelihood that they will
be harassed in any manner during this
activity. For other Endangered Species
Act (ESA)-listed species (e.g., fin and sei
whales), the NMFS Greater Atlantic
Regional Fisheries Office (GARFO) 2021
Offshore Wind Site Assessment Survey
Programmatic ESA consultation (see
https://www.fisheries.noaa.gov/newengland-mid-atlantic/consultations/
section-7-take-reporting-programmaticsgreater-atlantic) determined that a 100m shutdown zone is sufficient to
minimize exposure to noise that could
be disturbing. Accordingly, NMFS has
adopted this shutdown zone size for all
baleen whale species, other than the
North Atlantic right whale.
NMFS notes that the recommended
requirement that any detection of a
North Atlantic right whale (visually,
and acoustically for pile driving) in the
associated clearance zone during the
clearance period would trigger a delay
to the onset of HRG surveys and pile
driving was included in the proposed
rule and is included in this final rule.
Similarly, NMFS notes that the
recommended requirement that any
detection of a North Atlantic right whale
(visually, or acoustically in the
associated ‘‘exclusion’’ zone) while pile
driving is occurring would trigger a
shutdown of pile driving (with the
noted safety exception) was included in
the proposed rule and is included in
this final rule. In this final rule, NMFS
has also added the requirement that
shutdown of pile driving must occur if
a North Atlantic right whale is visually
detected at any distance or acoustically
detected at any distance within the
PAM monitoring zone.
Regarding the resumption of pile
driving and HRG surveys following a
shutdown, NMFS notes that the
following requirements were included
in the proposed rule and in this final
rule: (1) PSOs must monitor clearance
zones prior to impact pile driving or use
of survey equipment starting, (2) impact
pile driving and survey activities must
begin only when the Lead PSO confirms
that no North Atlantic right whales or
other marine mammal species have been
detected in the applicable clearance
zones, and the PAM operator confirms
no detection of North Atlantic right
whales (for pile driving), and (3) softstart to pile driving or ramp-up to HRG
surveys are required.
The commenters do not provide
additional scientific information for
NMFS to consider to support their
recommendation to require PAM during
HRG surveys. NMFS disagrees that this
measure is warranted because it is not
expected to be effective for use in
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detecting the species of concern given
the noise from the vessel, the flow
noise, and the cable noise are in the
same frequency band and will mask the
vast majority of baleen whale calls.
Vessels produce low-frequency noise,
primarily through propeller cavitation,
with main energy in the 5–300 Hz
frequency range. Source levels range
from about 140 to 195 dB re 1 mPa at 1
m (NRC, 2003; Hildebrand, 2009),
depending on factors such as ship type,
load, and speed, and ship hull and
propeller design. Studies of vessel noise
show that it appears to increase
background noise levels in the 71–224
Hz range by 10–13 dB (Hatch et al.,
2012; McKenna et al., 2012; Rolland et
al., 2012). PAM systems employ
hydrophones towed in streamer cables
approximately 500 m behind a vessel.
Noise from water flow around the cables
and from strumming of the cables
themselves is also low frequency and
typically masks signals in the same
range. Experienced PAM operators
(Thode et al., 2017) emphasized that a
PAM operation could easily report no
acoustic encounters, depending on
species present, simply because
background noise levels rendered any
acoustic detection impossible. The same
report stated that a typical eight-element
array towed 500 m behind a vessel
could be expected to detect delphinids,
sperm whales, and beaked whales at the
required range but not baleen whales
due to expected background noise levels
(including seismic noise, vessel noise,
and flow noise).
Further, there are several additional
reasons why we do not agree that use of
PAM is warranted for HRG surveys.
While NMFS agrees that PAM can be an
important tool for augmenting detection
capabilities in certain circumstances
(e.g., foundation installation), its utility
in further reducing impacts during HRG
survey activities is limited. For this
activity, the area expected to be
ensonified above the Level B
harassment threshold is relatively small
(a maximum of 141 m); this reflects the
fact that the source level is
comparatively low and the intensity of
any resulting impacts would be lower
level and, further, it means that
inasmuch as PAM will only detect a
portion of any animals exposed within
a zone, the overall probability of PAM
detecting an animal in the harassment
zone is low (particularly because of flow
noise masking vocalizations). Together,
these factors support the limited value
of PAM for use in reducing take for
activities/sources with smaller zones.
Also, PAM is only capable of detecting
animals that are actively vocalizing,
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while many marine mammal species
vocalize infrequently or during certain
activities, which means that only a
subset of the animals within the range
of the PAM would be detected (and
potentially have reduced impacts).
Additionally, localization and range
detection can be challenging under
certain scenarios. For example,
odontocetes are fast moving and often
travel in large or dispersed groups
which makes localization difficult.
Given that the effects to marine
mammals from the types of HRG
surveys authorized in this final
rulemaking are expected to be limited to
low level behavioral harassment even in
the absence of mitigation, the limited
additional benefit anticipated by adding
this detection method (especially for
North Atlantic right whales and other
low frequency cetaceans, species for
which PAM has limited efficacy during
this specific activity), and the cost and
impracticability of implementing a fulltime PAM program, we have determined
the current requirements for visual
monitoring are sufficient to effect the
least practicable adverse impact on the
affected species or stocks and their
habitat during HRG surveys.
Regarding the recommendation that
Revolution Wind should be required to
notify NMFS in the event that
mitigation actions are not undertaken
based on specific exceptions (e.g.,
unable to shutdown pile driving for
safety reasons), NMFS notes that both
the proposed and final rules require
weekly, monthly, and annual reports
where Revolution Wind must provide
reasons why mitigation actions could
not occur (including for this exception).
We acknowledge the importance of
transparency in the reporting process
and plan to make all final annual and
5-year marine mammal monitoring
reports and final SFV report on our
website. However, NMFS will not be
making the weekly or monthly reports
available to the public given the amount
of total reports that would be obtained
over a 5-year period.
NMFS has determined that the
prescribed mitigation requirements are
sufficient to effect the least practicable
adverse impact on all affected species or
stocks.
Comment 15: Commenters
recommended that NMFS require piledriving clearance and shutdown zones
for large whales (other than North
Atlantic right whale) that are large
enough to avoid all take by Level A
harassment and minimize Level B
harassment to the most practicable
extent.
Response: The commenters do not
provide additional scientific
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information for NMFS to consider to
support their recommendation to
expand clearance and shutdown zones
to effect the least practicable adverse
impact on marine mammals,
particularly large whales, excluding the
North Atlantic right whale. The required
shutdown and clearance zones (equally
sized) for large whales (other than North
Atlantic right whale) are based on the
largest exposure range calculated for
any mysticete, other than humpback
whales, that represents the distance to
the Level A harassment (isopleth for the
low frequency hearing group, rounded
up to the nearest hundred for PSO
clarity. Required monitoring and
mitigation for these zones will minimize
Level A harassment and Level B
harassment to the extent practicable and
avoid most Level A harassment of large
whales (note that for all but minke
whales (n = 21), other species of large
whales have 9 or fewer takes by Level
A harassment across all 5 years of the
rule). Further enlargement of these
zones could interrupt and delay the
project such that a substantially higher
number of days would be needed to
complete the construction activities,
which would incur additional costs but,
importantly, also potentially increase
the number of days that marine
mammals are exposed to the
disturbance. Accordingly, NMFS has
determined that enlargement of these
zones is not warranted, and that the
existing required clearance and
shutdown zones support a suite of
measures that will effect the least
practicable adverse impact on other
large whales.
Comment 16: Commenters
recommended that NMFS require
clearance and shutdown zones for North
Atlantic right whales specifically,
including (1) a minimum of 5,000 m (3.1
mi) for the visual clearance, acoustic
clearance, and shutdown zones in all
directions from the driven pile location;
and (2) an acoustic shutdown zone that
would extend at least 2,000 m (1.2 mi)
in all directions from the driven pile
location.
Response: The commenters do not
provide additional scientific
information for NMFS to consider to
support their recommendation to
expand clearance and shutdown zones
for impact pile driving to effect the least
practicable adverse impact on North
Atlantic right whales. The proposed rule
and this final rule require impact pile
driving to be delayed or shutdown if a
North Atlantic right whale is visually or
acoustically detected at any distance.
Given NMFS neither anticipates nor
authorizes any take by Level A
harassment of North Atlantic right
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whales, NMFS concludes that these
measures will effect the least practicable
adverse impact on the species. Delaying
the project due to overly enlarged zone
sizes would result in longer
construction time frames, prolonging
the time periods over which marine
mammals may be exposed to
construction-related stressors.
Accordingly, NMFS has determined that
enlargement of these zones is not
warranted and that the existing required
clearance and shutdown zones support
a suite of measures that will effect the
least practicable adverse impact on
North Atlantic right whales and other
affected species.
Comment 17: For all large whale
species, commenters recommended that
NMFS require real-time PAM during
pile driving to monitor the acoustic
clearance and acoustic shutdown zones,
and must assume a detection range of at
least 10 km. They stated that this
monitoring must be undertaken from a
vessel other than the pile driving vessel
or from a stationary unit to avoid
masking of the hydrophone from the
pile driving vessel or other
development-related noise.
Response: As described in the
proposed rule, NMFS is requiring the
use of PAM to monitor 10 km zones
around the piles and that the systems be
capable of detecting marine mammals
during pile driving within this zone.
However, NMFS acknowledges that this
could be made clearer and has modified
Table 29 to clearly specify this 10-km
PAM monitoring zone. Revolution Wind
is required to submit a PAM Plan to
NMFS for approval at least 180 days
prior to the planned impact pile driving
start date. NMFS will not approve a
Plan where hydrophones used for PAM
would be deployed from the pile driving
vessel as this would result in
hydrophones inside the bubble curtains,
which would clearly be ineffective for
monitoring; therefore, there is no need
to explicitly state in this rule that this
would not be allowed. Further,
Revolution Wind may launch PAM
drones from shore; hence, NMFS is not
requiring that Revolution Wind deploy
any monitoring systems from a vessel.
Comment 18: Commenters
recommended that NMFS should
restrict pile driving at night and during
periods of low visibility to protect all
large whale species. This would include
no pile driving being allowed to begin
after 1.5 hours before civil sunset or
during times where the visual clearance
zone and shutdown zone (called the
‘‘exclusion zone’’ by the commenter)
cannot be visually monitored, as
determined by the Lead PSO.
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If nighttime pile driving is to be
allowed, the commenters recommended
that NMFS require that pile driving be
initiated no later than 1.5 hours prior to
civil sunset at the latest in order to
maximize monitoring capabilities
during hours of optimal visibility/
daylight. The commenters also
recommended that impact pile driving
started at least 1.5 hours prior to civil
sunset during good visibility conditions
can then continue after dark, as
necessary providing the best available
infrared technologies are used to
support visual monitoring of the
clearance and exclusion zones during
periods of darkness.
Commenters caveat this by stating
that NMFS should only allow pile
driving to continue after dark if the
activity began during daylight hours and
must continue for human safety or due
to installation feasibility (i.e., instability
or pile refusal) but only if required
nighttime monitoring protocols are
followed.
Commenters suggested that if pile
driving must continue after dark due to
safety reasons, Revolution Wind should
be required to notify NMFS with these
reasons and an explanation for
exemption. Additionally, a commenter
states that a summary of the frequency
of these exceptions must be made
publicly available to ensure that these
are indeed exceptions, rather than the
norm, for the project.
Response: NMFS acknowledges the
limitations inherent in visual detection
of marine mammals at night and that
these could potentially result in some
limited number of marine mammals
being exposed to higher levels of sound
for a longer duration before a shutdown
was implemented. However, there are
offsetting benefits to completing the pile
driving in a shorter total amount of
time, in that some number of marine
mammals (those that might intersect the
much larger Level B harassment zone)
would be exposed to fewer overall days
of pile driving noise, and potentially a
smaller magnitude or severity of
behavioral disturbance as a result given
repeated exposures would be
minimized. Further, Revolution Wind
submitted a final draft Alternative
Monitoring Plan (AMP) on August 4,
2023. NMFS will review the AMP to
determine sufficiency in maximizing
nighttime detection to support the
required mitigation measures. Should
NMFS approve the AMP, nighttime pile
driving may occur given Revolution
Wind adherence to the AMP.
NMFS disagrees with the
recommendation to require Revolution
Wind to notify NMFS each time that
pile(s) must be finished after dark due
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to safety and/or stability concerns and
note that the rule already requires
weekly reports during foundation
installation, which must contain
information that would inform on how
long impact pile driving occurred and if
it was necessary for this activity to
occur during hours of darkness (i.e.,
information that would document the
daily start and stop of all pile-driving
activities). These weekly reports would
be combined into monthly and annual
reports. We do not plan to make the
weekly or monthly reports publicly
available, due to the number or reports
that Revolution Wind must submit to
NMFS; however, as described in
Comment 39, we do plan to make the
final reports available, which must
summarize all of the information
contained in the weekly and monthly
reports. Accordingly, NMFS has
determined requiring additional
reporting beyond that described in the
proposed rule is not warranted and that
the existing reporting requirements
support a suite of measures that will
effect the least practicable adverse
impact on marine mammals and their
habitat.
Comment 19: Commenters
recommended that NMFS implement
diel restrictions for HRG surveys within
1.5 hours of civil sunset and in low
visibility conditions when the visual
clearance zone and shutdown zone
(referred to as the ‘‘exclusion zone’’ by
the commenter) cannot be visually
monitored by the Lead PSO.
Response: NMFS acknowledges the
limitations inherent in visual detection
of marine mammals at night. As
proposed, this final rule requires that
visual PSOs use alternative technology
(i.e., infrared or thermal cameras) during
periods of low visibility to monitor the
clearance and shutdown zones. We note
that no Level A harassment is expected
to result from exposure to HRG
equipment, even in the absence of
mitigation, given the characteristics of
the sources planned for use (supported
by the very small estimated Level A
harassment zones; i.e., <36.5 m (119.8
ft) for all sources). Regarding Level B
harassment, any potential impacts are
limited to short-term behavioral
responses. Given these factors combined
with other mitigation measures, NMFS
has determined that more restrictive
mitigation requirements are not
warranted.
Restricting surveys in the manner
suggested by the commenters may
reduce marine mammal exposures by
some degree at night if, in fact,
detectability is less at night and animals
do approach within the small
harassment zone but would not result in
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any significant reduction in either
intensity or duration of noise exposure
over the course of the surveys. In fact,
the restrictions recommended by the
commenters could result in the surveys
spending increased total time (number
of days) on the water introducing noise
into the marine environment, which
may result in greater overall impacts to
marine mammals; thus, the commenters
have not demonstrated that such a
requirement would result in a net
benefit. Furthermore, restricting the
ability of the applicant to begin
operations only during daylight hours,
which could result in the applicant
failing to collect the data they have
determined is necessary within the
specific timeframe and, subsequently,
may necessitate the need to conduct
additional surveys in the future across
additional days. This would result in
significantly increased costs incurred by
the applicant. Thus, the restriction
suggested by the commenters would not
be practicable for the applicant to
implement. In consideration of the
likely effects of the activity on marine
mammals absent mitigation, potential
unintended consequences of the
measures as proposed by the
commenters, and practicability of the
recommended measures for the
applicant, NMFS has determined that
restricting operations as recommended
is not warranted or practicable in this
case.
Comment 20: Commenters
recommended that NMFS prohibit HRG
surveys during times of highest risk for
North Atlantic right whales (foraging
and migration and times when mothercalf pairs, pregnant females, surface
active groups, or aggregations of three or
more whales (indicative of feeding or
social behavior), using the best available
science to define high-risk timeframes.
Commenters stated that the Project is
sited in critically important year round
North Atlantic right whale foraging and
socializing habitat; thus, NMFS should
require corresponding year-round
protections and critical mitigation
measures. Commenters recommended
that NMFS develop a real-time
mitigation and monitoring protocol to
dynamically manage the timing of HRG
surveys to ensure those activities are
undertaken during times of lowest risk
for all relevant large whale species.
Response: NMFS neither anticipates
nor authorizes take of North Atlantic
right whales by Level A harassment
(PTS) from this activity. While NMFS is
authorizing a total 22 Level B
harassment takes of North Atlantic right
whales incidental to HRG surveys over
the 5-year effective period of this
rulemaking, the required mitigation will
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affect the least practicable adverse
impact on the species from this activity.
Specifically, the largest modeled Level
B harassment zone size for the sparker
(141 m) is already much smaller than
the required separation, clearance, and
shutdown distances for North Atlantic
right whale (500 m) and any
unidentified large whale must be treated
as if it were a North Atlantic right
whale, triggering associated mitigation.
Any Level B harassment that is not
avoided is not expected to impact
important feeding or other behaviors
that may occur throughout the year in
the Project Area in a manner that poses
energetic or reproductive risks for any
individuals. NMFS also notes that North
Atlantic right whale presence, while not
completely absent, decreases
significantly during summer months as
compared to winter when the majority
of foundation installation would occur.
Given the minimal anticipated impacts
of the HRG survey, NMFS disagrees that
additional mitigation measures,
including dynamic management of HRG
surveys timing, are warranted.
Comment 21: Commenters suggested
that all acoustic and visual monitoring
must begin at least 60 minutes prior to
the start of or re-start of pile driving and
must be conducted throughout the
entire duration of the pile driving event.
They also suggest that visual monitoring
must continue for 30 minutes after pile
driving has ceased.
Response: The recommended
requirements were included in the
proposed rule and are carried forward in
this final rule. Also, as proposed, this
final rule includes a requirement that
Revolution Wind review PAM data
collected for at least 24 hours
immediately prior to pile driving, for
situational awareness. NMFS notes that
if PAM continues throughout any
pauses in pile driving, Revolution Wind
is not required to begin the clearance
process again (i.e., monitor for 60
minutes, ensuring the clearance zone is
free of marine mammals for 30 minutes
immediately prior to recommencing pile
driving). However, pile driving would
not be allowed to recommence until the
clearance zones are confirmed to be
visually and acoustically clear of marine
mammals.
Comment 22: Commenter
recommends that UXOs/MECs must first
be evaluated to see if they can be moved
without detonation. If detonation must
occur, the commenter states that the
mitigation measures for pile driving
should be the same with regards to
noise abatement technology, clearance
zones, and the use of PSOs. If the
impact area is larger than predicted after
detonation, the commenter suggests that
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expanded mitigation measures should
be implemented.
Response: As proposed, this final rule
requires Revolution Wind to use the
ALARP approach such that detonation
would be the last resort to removing a
UXO/MEC. That is, Revolution Wind is
required to use detonation as a means of
removing UXO/MECs only if all other
options of removal have been
exhausted. The following proposed
mitigation measures are also required by
this final rule: Revolution Wind will be
required to implement visual
monitoring using PSOs and PAM prior
to detonation; these PSOs and PAM
operators will be required to clear the
appropriate zones prior to Revolution
Wind detonating any UXO/MEC; SFV
must be conducted on every UXO/MEC;
and a double big bubble curtain must be
used that is positioned far enough away
from the blast such that the hose nozzles
are not damaged.
Furthermore, NMFS retains the ability
to modify existing mitigation measures
through adaptive mitigation in the event
new information becomes available and
if doing so creates a reasonable
likelihood of more effectively
accomplishing the goal(s) of the
measure.
Comment 23: Commenter asserts that
the LOA must include requirements to
hold all vessels associated with site
characterization surveys accountable to
the ITA requirements, including vessels
owned by the developer, contractors,
employees, and others regardless of
ownership, operator, and contract. They
state that exceptions and exemptions
will create enforcement uncertainty and
incentives to evade regulations through
reclassification and redesignation. They
recommend that NMFS simplify this by
requiring all vessels to abide by the
same requirements, regardless of size,
ownership, function, contract or other
specifics.
Response: NMFS agrees and notes, as
described in the proposed rule and this
final rule, that the regulations apply to
Revolution Wind and those persons it
authorizes or funds to conduct the
specified activities on its behalf; a copy
of the LOA must be in the possession of
Revolution Wind, its designees, all
vessel operators, PSOs/PAM operators;
and Revolution Wind must ensure that
the vessel operator and other relevant
vessel personnel, including the PSO
team, are briefed on all responsibilities,
communication procedures, marine
mammal monitoring protocols,
operational procedures, and rule
requirements prior to the start of survey
activity, and when relevant new
personnel join the survey operations.
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Comment 24: A commenter raised
concerns about offshore wind activities
leading to increases in vessel traffic and
vessel noise, which may increase the
risk of North Atlantic right whales being
struck by a vessel and may disrupt
normal North Atlantic right whale
behavior. Another commenter
recommends that NMFS restrict vessels
of all sizes associated with the projects
to travel at 10 kn (11.5 mph) or less at
all times to avoid vessel strikes to North
Atlantic right whales. Other
commenters recommend that NMFS
require management measures of all
boats that reduces the risk of lethal
vessel strikes to a level approaching
zero. They suggest implementing a
mandatory 10 kn (11.5 mph) speed
restriction for all project-associated
vessels at all times, except in limited
circumstances where the best available
scientific information demonstrates that
whales do not use an area. In addition,
a commenter claims that vessel speed
restrictions are not ‘fully mandated’ or
enforced for offshore wind vessels.
Response: While NMFS acknowledges
that vessel strikes can result in injury or
mortality, we have analyzed the
potential for vessel strike resulting from
Revolution Wind’s activities and have
determined that based on the nature of
the activity and the required mitigation
measures specific to vessel strike
avoidance included in the rulemaking,
the potential for vessel strike is so low
as to be discountable. All of the
mitigation measures that were included
in the proposed rulemaking are now
required in the final regulations (see
§ 217.274(b)). Based on our analysis, we
have determined that the vessel strike
avoidance measures in the rulemaking
are sufficient to ensure the least
practicable adverse impact on species or
stocks and their habitat.
Furthermore, we contend that the
commenter who raised concerns about
offshore wind activities leading to
increases in vessel traffic and vessel
noise is conflating two different points:
there is a difference between vessel
strike risks and impacts to marine
mammals due to noise from
construction. NMFS acknowledges the
aggregate impacts of Revolution Wind’s
vessel operations on the acoustic habitat
of marine mammals and has considered
it in the analysis (see responses to
Comments 14 and 42). Another
commenter’s reference to vessel speed
restrictions being ‘‘not fully mandated’’
is unclear. NMFS refers again to the
required vessel strike avoidance
measures described above. The
commenter does not provide a rationale
for its suggestion that vessel speed
restrictions are not enforced for offshore
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wind vessels. We note that all vessels
associated with Revolution Wind’s
activities must be equipped with a
properly installed, operational
Automatic Identification System (AIS)
device and Revolution Wind must
report all Maritime Mobile Service
Identify (MMSI) numbers to NMFS
Office of Protected Resources, thus
facilitating monitoring of vessel speeds.
In addition, NMFS maintains an
Enforcement Hotline for members of the
public to report violations of vessel
speed restrictions. Further, the LOA
states that the authorization may be
modified, suspended, or revoked if the
holder fails to abide by the conditions
prescribed therein.
Comment 25: A commenter states that
the LOA must include conditions for the
survey and construction activities that
will first avoid adverse effects on North
Atlantic right whales in and around the
area and then minimize and mitigate the
effects that cannot be avoided. This
should include a full assessment of
which activities, technologies and
strategies are truly necessary to achieve
site characterization and construction to
inform development of the offshore
wind projects and which are not critical,
asserting that NMFS should prescribe
the most appropriate techniques that
would produce the lowest impact while
achieving the same goals while
prohibiting those other tools/techniques
that would cause more frequent,
intense, or long-lasting effects.
Response: The MMPA requires that
we include measures that will effect the
least practicable adverse impact on the
affected species and stocks and, in
practice, NMFS agrees that the rule
should include conditions for the
construction activities that will first
avoid adverse effects on North Atlantic
right whales in and around the Project
Area, where practicable and then
minimize the effects that cannot be
avoided. NMFS has determined that this
final rule meets this requirement to
effect the least practicable adverse
impact. The commenter does not make
any specific recommendations of
measures to add to the rulemaking.
NMFS is required to authorize the
requested incidental take if it finds such
incidental take of small numbers of
marine mammals by the requestor while
engaging in the specified activities
within the specified geographic region
will have a negligible impact on such
species or stock and where appropriate,
will not have an unmitigable adverse
impact on the availability of such
species or stock for subsistence uses. As
described in this notice of final
rulemaking, NMFS finds that small
numbers of marine mammals may be
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taken relative to the population size of
the affected species or stocks and that
the incidental take of marine mammal
from all of Revolution Wind’s specified
activities combined will have a
negligible impact on all affected marine
mammal species or stocks. It is not
within NMFS’ authority to determine
the requestor’s specified activities.
Comment 26: A commenter
recommended that the use of quieter
foundations be given full consideration
when selecting a ‘‘preferred alternative’’
and that direct drive turbines be used in
lieu of gear boxes.
Response: The commenter’s reference
to a ‘‘preferred alternative’’ suggests this
comment is specific to the
Environmental Impact Statement (EIS)
BOEM developed for the project. NMFS
agrees with the commenter that full
consideration of various turbine
foundations should be evaluated in an
EIS but also recognizes that there are
technological challenges and that the
ultimate foundation type chosen must
be practicable. Regardless, this rule
evaluates the specified activities as
described in Revolution Wind’s MMPA
application, which includes installation
of monopiles. With respect to directdrive, NMFS agrees that the best
available science indicates that these are
known to be less noisy than gearboxes
and we understand gearboxes are older
technology. Revolution Wind has
confirmed with NMFS that direct drive
turbines will be used for the Revolution
Wind project.
Monitoring, Reporting, and Adaptive
Management
Comment 27: Commenters
recommended that NMFS increase the
frequency of information review for
adaptive management to at least once a
quarter and also have a mechanism in
place to undertake review and adaptive
management on an ad hoc basis if a
serious issue is identified (e.g., if
unauthorized levels of Level A take of
marine mammals are reported, or if
serious injury or mortality of an animal
occurs).
Response: Regarding the
recommendation that NMFS have a
mechanism in place to undertake review
and adaptive management on an ad hoc
basis if a serious issue is identified,
there are no timing restrictions in the
adaptive management provisions and,
therefore, NMFS may undertake review
and adaptive management actions at any
time under the regulations, as written.
Regarding the recommendation to
increase the frequency of information
review, Revolution Wind is required to
submit weekly, monthly, and annual
reports that NMFS will review in a
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timely manner and may act on pursuant
to the adaptive management provisions
at any time and, therefore, a separate
specific quarterly review is unnecessary.
Comment 28: Commenters
recommended that NMFS require robust
monitoring protocols during preclearance and when HRG surveys are
underway, including (1) passive
acoustic monitoring from a nearby
vessel (other than the survey vessel) or
a stationary unit to avoid masking, (2)
visual monitoring of the clearance zone
for North Atlantic right whales and
other large whales by two on-duty PSOs
each scanning 180 degrees and with
another two PSOs stationed on the
vessel (for a total of four PSOs on the
survey vessel), and (3) visual and
acoustic monitoring beginning 30
minutes prior to commencement or reinitiation of survey activities through
the duration of the survey.
Response: Regarding the
recommendation to require acoustic
monitoring (in any form) to support
clearance and shutdown requirements
for HRG surveys, please see NMFS
response to Comment 14, which
describes why PAM is not warranted for
HRG surveys. With respect to the
number of PSOs, NMFS is not requiring
four on-duty PSOs given the very small
harassment zone sizes associated with
HRG surveys. In the proposed rule and
in this final rule, PSOs are required to
commence monitoring for marine
mammals 30 minutes before HRG
surveys begin; hence, this
recommendation has already been
satisfied.
Comment 29: Commenters
recommended that NMFS require
infrared technology to support visual
monitoring for all vessels responsible
for crew transport and during any pile
driving activities that occur in periods
of darkness or nighttime to supplement
the visual monitoring efforts for marine
mammals. They additionally included a
suggestion that additional observers and
monitoring approaches (i.e., infrared,
drones, hydrophones) must be used, as
determined to be necessary, to ensure
that monitoring efforts for the clearance
and shutdown zones are effective during
daytime, nighttime, and during periods
of poor visibility.
Response: NMFS notes the
commenter’s recommendations were
included in the proposed rule and are
carried forward here. Specifically,
NMFS described in the proposed rule,
and is requiring in the final rule, that
infrared technologies and PAM
hydrophone deployments be available
and used before, during, and after pile
driving. Moreover, since publication of
the proposed rule, Revolution Wind has
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submitted an Alternative Monitoring
Plan that includes details about
advanced technologies for monitoring
marine mammals at night for both
trained crew observers and PSOs. As for
the recommendation to specifically
require drones, NMFS would evaluate
any proposal including drones on a
case-by-case basis but is not requiring
use of this technology. The commenter
did not provide data indicating drones
would be more effective than other
monitoring technology already required.
Comment 30: Commenters
recommended that additional
monitoring of the visual clearance and
shutdown zones must be undertaken by
PSOs located on the pile driving vessel
and on an additional vessel that would
circle the pile driving site. They
specified that a minimum of four PSOs
must be on each vessel and must have
two PSOs monitoring per shift operating
on a two on, two off rotation, with
another commenter suggesting that
human observation be supplemented
with infrared (IR) technology and
drones.
Response: NMFS notes the proposed
rule aligned with the recommendation,
requiring a total of four PSOs on each
monitoring vessel, two on-duty and two
off-duty, working in rotation. On-duty
PSOs on the pile driving vessel and the
secondary PSO vessel, circling at a
distance from the pile, would each
monitor 180 degrees. To ensure marine
mammal detection is maximized, and in
response to public comments, NMFS is
now requiring monitoring for marine
mammals before, during, and after
foundation installation and is requiring
in this final rule three on-duty PSOs on
both platforms such that each PSO is
responsible for 120 degree coverage. In
addition, as proposed, this final rule
requires that visual observers must be
equipped with alternative monitoring
technology (e.g., night vision devices,
infrared cameras) to monitor clearance
and shutdown zones during periods of
low visibility (e.g., darkness, rain, fog,
etc.).
Comment 31: Commenters
recommended that NMFS should
require sound field verification during
installation of WTG and OSS
foundations on the first monopile
installed and then on a random sample
of monopiles throughout the installation
process. They also noted that they do
not support the installation of
unmitigated piles. They added that all
sound source validation reports for field
measurements must be made publicly
available after being evaluated by both
NMFS and BOEM prior to the
installation of any additional
monopiles. Finally, the Commission
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recommended that NMFS require wind
farm applicants to include monitoring of
operational sound in their SFV plans in
all future proposed rules.
Response: NMFS notes that, as
proposed, this final rule requires that no
unmitigated piles can be installed and
that SFV is required for the first three
piles and additional piles where
conditions suggest noise levels may be
higher or propagate farther than those
piles previously measured.
Furthermore, under this final rule,
Revolution Wind must ensure that
measured sound levels do not exceed
those modeled assuming 10 dB of
attenuation, which will be validated
through SFV. Revolution Wind has the
Lease Area data to identify if a pile
would be more difficult to drive than
the initial piles measured, and the
requirement that they would have to
conduct SFV on such piles where
information suggests a pile may be more
difficult to drive. Given these
requirements, NMFS does not believe
random sampling is necessary.
NMFS acknowledges the importance
of transparency in the reporting process
(see Comment 39) and plans to make all
final SFV reports on our website.
Regarding the Commission’s suggestion
that NMFS require SFV during
operations, NMFS notes this
requirement was included in the
proposed rule and in this final rule
Comment 32: The Commission
suggested that the monitoring measures
included in the proposed rule may not
be sufficient in reducing the potential
for Level A harassment of North
Atlantic right whales, specifically
indicating that visually monitoring a 2.3
to 4.4 km would prove difficult and
cited literature (Oedekoven and Thomas
(2022)) estimating effectiveness of
marine mammal observers (MMOs) to be
54 percent for detecting rorquals at 914
m or more, 31 percent for small
cetaceans in pods of more than six, and
14 percent for small cetaceans in pods
of six or fewer. The Commission did not
provide any recommendations to
increase visual detection capabilities.
Response: The time of year when
Revolution Wind would be conducting
the majority of pile driving is when
North Atlantic right whale density in
the Project Area is relatively low, given
that pile driving is seasonally restricted
from December 1–April 30, unless
Revolution Wind receives NMFS’ prior
approval to conduct activities in
December. Although modeling predicts
17.5 Level A harassment North Atlantic
right whale exposures (Table 12 in final
rule), this estimate does not consider
any mitigation measures, other than 10
dB of sound attenuation, or natural
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avoidance of the animal to loud sounds.
Revolution Wind must delay or
shutdown impact pile driving if a North
Atlantic right whale is visually detected
at any distance or acoustically detected
at any distance within the PAM
monitoring zone, a measure that is more
conservative than the finite clearance
and shutdown zones determined for
other large whale species. The
Commission cites information from a
paper related to the use of trained
lookouts and a team of two on-duty
MMOs on moving Navy military vessels
actively engaged in sonar training
(Oedekoven and Thomas, 2022) to
support its claim that visual monitoring
would prove difficult. We note that
these ‘‘trained lookouts’’ are Navy
personnel who are specifically trained
as lookouts in contrast to NMFSapproved PSOs who are required to
have specific education backgrounds,
trainings, and experience before
undertaking PSO duties (see
requirements found in the regulatory
text at Section 217.275(a)). NMFS
disagrees that the statistics generated
from that report are equivalent to the
effectiveness of monitoring for the
Revolution Wind project. At least three
PSOs would be placed on the stationary
pile driving platform and three PSOs
would also be placed on each of two
dedicated PSO vessels traveling at slow
speeds (less than 10 kn (11.5 mph)) for
a total of nine PSOs. Concurrently, realtime PAM is required to supplement
visual monitoring during impact pile
driving and UXO/MEC detonation.
Further, Revolution Wind must monitor
several times daily supplemental marine
mammal detection information systems
(e.g., the Right Whale Sighting Advisory
System) to increase situational
awareness. We note that the MMO team
in Oedekoven and Thomas (2022) was
not always using PAM in that study and
had significantly more Balaenoptera
spp. sightings than the lookout team
(see Table 2 in Oedekoven and Thomas
(2022)). Given the monitoring measures
that are required for the Project in
combination with the mitigation
measures (i.e., clearance and shutdown
zones), NMFS disagrees that the
monitoring measures will be insufficient
to avoid Level A harassment (PTS) of
North Atlantic right whales.
Comment 33: The Commission
recommended that NMFS require
Revolution Wind to have PAM operators
also review acoustic data for at least 24
hours prior to UXO/MEC detonations,
when available.
Response: We appreciate the
Commission’s recommendation and
have incorporated it into the final rule.
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Comment 34: A commenter stated that
Revolution Wind should be required to
use PSOs at all times when underway.
Response: NMFS is not requiring
PSOs to be onboard every transiting
vessel. However, as described in the
proposed rule and carried forward in
this final rule, Revolution Wind must
have trained observers onboard all
vessels. The dedicated observer may be
a PSO or a crew member with no other
concurrent duties. NMFS is also
requiring Revolution Wind to provide a
Vessel Strike Avoidance Plan to NMFS
180 days prior to the onset of vessel use.
Revolution Wind submitted that plan on
July 13, 2023, and a revised version on
August 25, 2023. Once approved, all
plans will be made available on NMFS’
website.
Comment 35: A commenter
recommended that the LOA should
require all vessels supporting site
characterization to be equipped with
and to use Class A Automatic
Identification System (AIS) devices at
all times while on the water. The
commenter suggested this requirement
should apply to all vessels, regardless of
size, associated with the survey.
Response: NMFS agrees and has
included an AIS requirement in more
recently issued IHAs and wind
construction proposed rules. This final
rule includes a requirement that all
vessels associated with the project be
equipped with AIS.
Comment 36: The Commission
recommended that NMFS require
Revolution Wind to submit a PAM plan
and to allow for public comments to
occur prior to the issuance of the final
rule. The Commission specifies that this
plan should include the number, type(s)
(e.g., moored, towed, drifting,
autonomous), deployment location(s),
bandwidth/sampling rate, sensitivity of
the hydrophones, estimated detection
range(s) for ambient conditions and
during pile driving, and the detection
software to be used. They also
recommend that Revolution Wind and
other wind developers consider whether
vector sensors should be used in
addition to deployed hydrophones to
enhance detection capabilities, with a
particular focus on ‘‘those vocalizations
that may be drowned out by the hammer
strikes and resulting reverberation.’’
Response: NMFS notes that the
Commission’s recommendation for
Revolution Wind to submit a PAM Plan
to NMFS for approval is consistent with
the proposed rule and this final rule. As
proposed, under this final rule a PAM
plan must be submitted to NMFS at
least 180 days prior to the start of the
activity. Further, NMFS identified the
requirements that Revolution Wind
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must meet in its PAM plan in the
proposed rule, which was made
available for public comment, and those
requirements are included in this final
rule. Given NMFS’ extensive expertise
with passive acoustic monitoring and
the fact that we are coordinating with
BOEM’s Center for Marine Acoustics
(CMA), NMFS has determined that
approval of the plan does not warrant
public input. However, NMFS will
share the plan with the Commission for
review prior to approval of the plan.
NMFS has included the Commission’s
recommendations, among other things,
of what would be required in the PAM
plan.
Comment 37: The Commission
recommended that in the final rule
NMFS: (1) specify which modelestimated zones (i.e., acoustic ranges,
exposure ranges, mitigation zones,
monitoring zones) and which metrics
(i.e., flat Rmax, flat R95%) should be
compared to the in-situ Level A and B
harassment zones, (2) specify which
type of in-situ Level A harassment zone
(i.e., acoustic or exposure ranges)
should be calculated, and, (3) require
that in-situ measurements be conducted
for monopiles that are not represented
by the previous three locations (i.e.,
substrate composition, water depth) or
by the hammer energies and numbers of
strikes needed or number of piles
installed in a given day.
Response: We agree with the
Commission about the importance of
specifying quantities to be compared
following SFV and have required in the
final rule that calculations of the R95%
SEL and R95% SPLrms acoustic ranges for
Level A harassment and Level B
harassment, respectively, based on in
situ measurements must be compared to
the same modeled metrics.
Regarding the Commission’s third
suggestion, NMFS notes that, under the
proposed rule, if a monopile installation
site or construction scenario was
determined to be not representative of
the rest of the monopile installation
sites, Revolution Wind would be
required to provide information on how
additional sites and construction
scenarios would be selected for SFV
measurements, as would be described in
their Foundation Installation Pile
Driving SFV Plan. This plan would also
be required to describe the methodology
for collecting, analyzing, and preparing
SFV measurement data for submission
to NMFS. We agree with the
Commission that this information is
important and include the same
requirement in the final rule. However,
we do not agree with the suggestion to
require additional SFV based on
variations in the hammer energies,
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number of strikes used for installation,
or number of piles installed per day.
NMFS applied the largest distances
modeled, which represents the
maximum number of piles installed per
day, maximum strikes predicted, and
maximum hammer energies. Because of
this, Revolution Wind is required to stay
within the bounds of the analysis. We
also note that any variation assuming
less hammer strikes, less piles installed
per day, or lower hammer energies
would likely result in less anticipated
take per day, as the take authorized in
the final rule is based on the highest
bounds of the analysis. For all these
reasons, we are not requiring additional
SFV based on variations specific to the
hammer energy, number of piles
installed, or the total number of strikes.
Comment 38: The Commission
recommended that NMFS require
Revolution Wind to include in the pile
driving SFV report additional metrics
not identified in the proposed rule,
including SPLrms source levels,
cumulative SEL, ranges to Level A
harassment and Level B harassment
thresholds, and types and locations of
sound attenuation systems. In addition,
the Commission recommended that
NMFS require Revolution Wind to
deploy a minimum of three
hydrophones for SFV during impact pile
driving
Response: NMFS partially concurs
with the Commission’s
recommendations. This final rule
requires the interim report to include
peak, sound pressure level (SPL), and
cumulative sound exposure level
(SELcum) metrics for all hydrophones,
estimated distances to NMFS Level A
harassment and Level B harassment
threshold isopleths, types and locations
of sound attenuation systems. This
information is also required in the final
report. NMFS is not requiring source
levels be estimated in interim reports
given the quick turnaround time (48
hours) and amount of data needing to be
analyzed in that time. The purpose of
the interim reports are to determine that
modeled distances to isopleths
corresponding to Level A harassment
and Level B harassment thresholds are
not being exceeded and to determine if
any mitigative action needs to be taken.
Hence knowing source levels is not
required at this stage. However, NMFS
is requiring source levels (peak,
cumulative SEL, and SPLrms) be
included in the final SFV report.
Regarding the hydrophones for SFV
during pile driving, NMFS is requiring
that Revolution Wind place two
hydrophones at four locations at an
azimuth of least propagation loss and
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two at 750 m and 90 degrees from this
azimuth (total = 10 hydrophones).
Comment 39: Commenters stated that
the LOA must include a requirement for
all phases of the Revolution Wind site
characterization to subscribe to the
highest level of transparency, including
frequent reporting to Federal agencies,
requirements to report all visual and
acoustic detections of North Atlantic
right whales and any dead, injured, or
entangled marine mammals to NMFS or
the U.S. Coast Guard as soon as possible
and no later than the end of the PSO
shift. A commenter stated that to foster
stakeholder relationships and allow
public engagement and oversight of the
permitting, the ITA should require all
reports and data to be accessible on a
publicly available website. Another
commenter also suggested that all
quarterly reports of PSO sightings must
be made publicly available to continue
to inform marine mammal science and
protection.
Response: NMFS notes the
commenters’ recommendations to report
all visual and acoustic detections of
North Atlantic right whales and any
dead, injured, or entangled marine
mammals to NMFS are consistent with
the proposed rule and this final rule (see
Situational Reporting). We refer the
reader to section 217.275(g)(13)(i)–(vi)
of the regulations for more information
on situational reporting.
Daily visual and acoustic detections
of North Atlantic right whales and other
large whale species along the Eastern
Seaboard, as well as Slow Zone
locations, are publicly available on
WhaleMap (https://whalemap.org/
whalemap.html). Further, recent
acoustic detections of North Atlantic
right whales and other large whale
species are available to the public on
NOAA’s Passive Acoustic Cetacean Map
website (https://
www.fisheries.noaa.gov/resource/data/
passive-acoustic-cetacean-map). Given
the open access to the resources
described above, NMFS does not concur
that public access to quarterly PSO
reports is warranted, and we have not
included this measure in the
authorization. However, NMFS will post
all final reports to our website. We
reference the commenters to Section
217.275(g) for more information on
reporting requirements in the
regulations.
Effects Assessment
Comment 40: Commenters stated that
NMFS must utilize the best available
science in their analysis. A commenter
stated that NMFS must use the more
recent and best available science in
evaluating impacts to North Atlantic
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right whales, including updated
population estimates, recent habitat
usage patterns for the Project Area, and
a revised discussion of the acute and
cumulative stress on whales in the
region. Another commenter further
added that NMFS should use the most
comprehensive models for estimating
marine mammal take and developing
robust mitigation measures.
Response: The MMPA and its
implementing regulations require that
incidental take regulations be
established based on the best available
information, which does not always
mean the most recent information.
NMFS generally considers the
information in the most recent U.S.
Atlantic and Gulf of Mexico Marine
Mammal Stock Assessments Report
(SAR; Hayes et al., 2023) to be the best
available information for a particular
marine mammal stock because of the
MMPA’s rigorous SAR procedural
requirements, which includes peer
review by a statutorily established
Scientific Review Group.
Regarding the comment related to the
North Atlantic right whale population
abundance that was cited in the
proposed rule, since publication of the
proposed rule, NMFS has finalized the
2022 Stock Assessment Report
indicating the North Atlantic right
whale population abundance is
estimated as 338 individuals (Nbest; 95
percent confidence interval: 325–350;
88 FR 54592, August 11, 2023). NMFS
has used this most recent best available
scientific information in the analysis of
this final rule. This new estimate, which
is based off the analysis from Pace et al.
(2017) and subsequent refinements
found in Pace (2021), is included by
reference in the final 2022 SARs
(https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-stock-assessmentreports) and provides the most recent
and best available estimate, including
improvements to NMFS’ right whale
abundance model. Specifically, Pace
(2021) looked at a different way of
characterizing annual estimates of agespecific survival. The results from the
Pace (2021) paper that informed the
final 2022 SARs strengthened the case
for a change in mean survival rates after
2010 through 2011, but did not
significantly change other current
estimates (population size, number of
new animals, adult female survival)
derived from the model. Furthermore,
NMFS notes that the SARs are peer
reviewed by other scientific review
groups prior to being finalized and
published and that the North Atlantic
Right Whale Report Card (Pettis et al.,
2022) does not undertake this process.
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Based on this, NMFS has considered all
relevant information regarding North
Atlantic right whale, including the
information cited by the commenters.
However, NMFS has relied on the final
2022 SAR in this final rule as it reflects
the best available scientific information.
We note that this change in
abundance estimate does not change the
estimated take of North Atlantic right
whales or authorized take numbers, nor
affect our ability to make the required
findings under the MMPA for
Revolution Wind’s construction
activities.
While NMFS cannot require
applicants to utilize specific models for
the purposes of estimating take
incidental to offshore wind construction
activities, we evaluate the models used
to support take estimates to ensure that
they are methodologically sound and
incorporate the best available science.
NMFS does require use of the Roberts et
al. (2016, 2023) density data and SARs
abundance estimates for all species,
both of which represent the best
available science regarding marine
mammal occurrence.
Comment 41: Several commenters
raised concerns regarding the
cumulative impacts of the multiple
offshore wind projects being developed
throughout the range of North Atlantic
right whales and other marine mammal
species and specifically recommend that
we carefully consider the take from all
of these projects in combination when
conducting the negligible impact
analysis for Revolution Wind. One
commenter recommended NMFS
establish an ‘‘IHA threshold’’ for
offshore wind activities regionally and
across project phases. Another
commenter suggests NMFS’ issuance of
ITAs for offshore wind construction
projects should be based on a
Programmatic Environmental Impact
Statement that assesses cumulative
impacts analyses of individual projects
as well as the cumulative impacts from
the consequent multiple project
developments rather than separate EISs
for each project. Another commenter
suggested that NMFS should analyze the
cumulative impacts of the multiple
concurrent phases of offshore wind
energy development on right whales
and other marine mammal species in
southern New England waters prior to
proceeding with permitting the
Revolution Wind Project.
Response: Neither the MMPA nor
NMFS’ implementing regulations call
for consideration of the take resulting
from other specified activities in the
negligible impact analysis. The
preamble to NMFS’ implementing
regulations (54 FR 40338, September 29,
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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. Consistent with that direction,
NMFS 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
1989 final rule for the MMPA
implementing regulations also
addressed public comments regarding
cumulative effects from future,
unrelated activities. There, NMFS stated
that such effects are not considered in
making findings under section 101(a)(5)
concerning negligible impact. In this
case, this incidental take regulation
(ITR), as well as other ITRs currently in
effect or proposed within the specified
geographic region, are appropriately
considered an unrelated activity relative
to the others. The ITRs are unrelated in
the sense that they are discrete actions
under section 101(a)(5)(A) issued to
discrete applicants. Section 101(a)(5)(A)
of the MMPA requires NMFS to make a
determination that the take incidental to
a ‘‘specified activity’’ will have a
negligible impact on the affected species
or stocks of marine mammals.
NMFS’ implementing regulations
require applicants to include in their
request a detailed description of the
specified activity or class of activities
that can be expected to result in
incidental taking of marine mammals.
50 CFR 216.104(a)(1). Thus, the
‘‘specified activity’’ for which incidental
take coverage is being sought under
section 101(a)(5)(A) is generally defined
and described by the applicant. Here,
Revolution Wind was the applicant for
the ITR, and we are responding to the
specified activity as described in that
application and making the necessary
findings on that basis.
Through the response to public
comments in the 1989 implementing
regulations (54 FR 40338, September 29,
1989), NMFS also indicated (1) that we
would consider cumulative effects that
are reasonably foreseeable when
preparing a National Environmental
Policy Act (NEPA) analysis and (2) that
reasonably foreseeable cumulative
effects would also be considered under
Section 7 of the ESA for listed species,
as appropriate. Accordingly, NMFS has
adopted an EIS written by BOEM and
reviewed by NMFS as part of its interagency coordination. This EIS addresses
cumulative impacts related to
Revolution Wind and substantially
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similar activities in similar locations.
Cumulative impacts regarding the
promulgation of the regulations and
issuance of a LOA for construction
activities, such as those planned by
Revolution Wind, have been adequately
addressed under NEPA in the adopted
EIS that supports NMFS’ determination
that this action has been appropriately
analyzed under NEPA. Separately, the
cumulative effects of Revolution Wind
on ESA-listed species, including North
Atlantic right whales, was analyzed
under Section 7 of the ESA when NMFS
engaged in formal inter-agency
consultation with GARFO. The
Biological Opinion for Revolution Wind
determined that NMFS’ promulgation of
the rulemaking and issuance of a LOA
for construction activities associated
with leasing, individually and
cumulatively, are likely to adversely
affect, but not jeopardize, listed marine
mammals.
Comment 42: Commenters stated that
(1) NMFS’ reliance on the 160 dB (re 1
mPa2s) threshold for behavioral
harassment is not supported by the best
available scientific information and
grossly underestimates takes by Level B
harassment and (2) an assertion the
monitoring protocols prescribed for the
clearance zones are under-protective.
Response: For the reasons described
below, NMFS disagrees that the 160-dB
threshold for behavioral harassment is
not supported by the best available
science. The potential for behavioral
response to an anthropogenic source can
be highly variable and context-specific
(Ellison et al., 2012). While NMFS
acknowledges the potential for Level B
harassment at exposures to received
levels below 160 dB rms, it should also
be acknowledged that not every animal
exposed to received levels above 160 dB
rms will respond in ways constituting
behavioral harassment. There are a
variety of studies indicating that
contextual variables play a very
important role in response to
anthropogenic noise, and the severity of
effects are not necessarily linear when
compared to a received level (RL).
Several studies (e.g., Nowacek et al.,
2004 and Kastelein et al., 2012 and
2015) showed there were behavioral
responses to sources below the 160 dB
threshold but also acknowledged the
importance of context in these
responses. For example, Nowacek et al.
(2004) reported the behavior of five out
of six North Atlantic right whales was
disrupted at RLs of only 133–148 dB re
1 mPa (returning to normal behavior
within minutes) when exposed to an
alert signal. However, the authors also
reported that none of the whales
responded to noise from transiting
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vessels or playbacks of ship noise even
though the RLs were at least as loud and
contained similar frequencies to those of
the alert signal. The authors state that a
possible explanation for whales
responding to the alert signal and not
responding to vessel noise is due to the
whales having been habituated to vessel
noise while the alert signal was a novel
sound. In addition, the authors noted
differences between the characteristics
of the vessel noise and alert signal,
which may also have played a part in
the differences in responses to the two
noise types. Therefore, it was concluded
that the signal itself, as opposed to the
RL, was responsible for the response.
DeRuiter et al. (2012) also indicate that
variability of responses to acoustic
stimuli depends not only on the species
receiving the sound and the sound
source, but also on the social,
behavioral, or environmental contexts of
exposure. Finally, Gong et al. (2014)
highlighted that behavioral responses
depend on many contextual factors,
including range to source, RL above
background noise, novelty of the signal,
and differences in behavioral state.
Similarly, Kastelein et al. (2015)
examined behavioral responses of a
harbor porpoise to sonar signals in a
quiet pool, but stated behavioral
responses of harbor porpoises at sea
would vary with context such as social
situation, sound propagation, and
background noise levels.
NMFS uses 160 dB (rms) as the
received sound pressure level for
estimating the onset of Level B
behavioral harassment takes and is
currently considered the best available
science while acknowledging that the
160 dBrms step-function approach is a
simplistic approach. However, there
appears to be a misconception regarding
the concept of the 160 dB threshold.
While it is correct that in practice it
works as a step-function (i.e., animals
exposed to received levels above the
threshold are considered to be ‘‘taken’’
and those exposed to levels below the
threshold are not), it is in fact intended
as a sort of mid-point of likely
behavioral responses, which are
extremely complex depending on many
factors including species, noise source,
individual experience, and behavioral
context. What this means is that,
conceptually, the function recognizes
that some animals exposed to levels
below the threshold will in fact react in
ways that appropriately considered take
while others that are exposed to levels
above the threshold will not. Use of the
160-dB threshold allows for a simplistic
quantitative estimate of take while we
can qualitatively address the variation
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in responses across different received
levels in our discussion and analysis.
Overall, we reiterate the lack of
scientific consensus regarding what
criteria might be more appropriate.
Defining sound levels that disrupt
behavioral patterns is difficult because
responses depend on the context in
which the animal receives the sound,
including an animal’s behavioral mode
when it hears sounds (e.g., feeding,
resting, or migrating), prior experience,
and biological factors (e.g., age and sex).
Other contextual factors, such as signal
characteristics, distance from the
source, and signal to noise ratio, may
also help determine response to a given
received level of sound. Therefore,
levels at which responses occur are not
necessarily consistent and can be
difficult to predict (Southall et al., 2007;
Ellison et al., 2012; Southall et al.,
2021). For example, Gomez et al. (2016)
reported that RL was not an appropriate
indicator of behavioral response.
There is currently no concurrence on
these complex issues, and NMFS
followed its practice at the time of
submission and review of this
application in assessing the likelihood
of disruption of behavioral patterns by
using the 160 dB threshold. This
threshold has remained in use in part
because of the practical need to use a
relatively simple threshold based on the
best available information that is both
predictable and measurable for most
activities. We note that the seminal
reviews presented by Southall et al.
(2007), Gomez et al. (2016), and
Southall et al. (2021) did not suggest
any specific new criteria due to lack of
convergence in the data. NMFS is
currently evaluating available
information towards development of
updated guidance for assessing the
effects of anthropogenic sound on
marine mammal behavior. However,
undertaking a process to derive
defensible exposure-response
relationships, as suggested by Tyack and
Thomas (2019), is complex. The recent
systematic review by Gomez et al.
(2016) was unable to derive criteria
expressing these types of exposureresponse relationships based on
currently available data.
NMFS acknowledges that there may
be methods of assessing likely
behavioral responses to acoustic stimuli
that better capture the variation and
context-dependency of those responses
than the simple 160 dB step-function
used here; there is no agreement on
what that method should be or how
more complicated methods may be
implemented by applicants. NMFS is
committed to continuing its work in
developing updated guidance with
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regard to acoustic thresholds but
pending additional consideration and
process is reliant upon an established
threshold that is reasonably reflective of
available science.
Regarding the assertion that
monitoring protocols prescribed for the
clearance and shutdown zones (called
‘‘exclusion zones’’ in the comment
letter) are under-protective, please refer
to Comments 13, 14, 22, 30.
Comment 43: Commenters
recommended that NMFS fully account
for the consequences of any other
proposed North Atlantic right whale
seasonal restriction on other protected
species and evaluate alternative risk
reduction strategies that would protect
multiple species.
Response: In order to promulgate a
rulemaking under Section 101(a)(5)(A)
of the MMPA, NMFS must find that the
total taking from the specified activities
will have a negligible impact on species
and stocks among other requirements,
and subsequently prescribe means of
effecting the least practicable adverse
impact on affected species or stock and
its habitat. In the proposed rule and in
this final rule, NMFS has determined
the specified activities will have a
negligible impact on species and stock
and the mitigation measures will affect
the least practicable adverse impact on
all of the affected species or stocks and
their habitat. NMFS acknowledges that
the seasonal restriction for impact pile
driving is to effect the least practicable
adverse impact on North Atlantic right
whales; however, NMFS notes that this
seasonal restriction provides additional
protections to large whale species that
occur off of Massachusetts during
winter months. For example, fin whales
are the second-most commonly
occurring baleen whale species, based
on density (Roberts et al., 2023), in the
Project Area from December through
February and the fin whale feeding
Biological Important Area (BIA) (March
through October) overlaps the seasonal
restriction period (March and April).
Harbor porpoises, as another example,
are also more likely to be more present
when foundation installation and UXO/
MEC detonation would not be
occurring. As described in this final
rule, there is no habitat of significance
in the specified geographic region other
than the seasonal migratory BIA for
North Atlantic right whales and a small
feeding BIA for fin whales.
Comment 44: A commenter claimed
that the analyses supporting the
proposed rule did not comprehensively
consider potential indirect negative
impacts to fishermen and coastal
communities that could result from
cumulative offshore wind activities,
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particularly as those activities impact
North Atlantic right whales (i.e., vessel
strike). In addition, a commenter
requested an explanation of how the
offshore wind industry will be held
accountable for their impacts and
asserts that the offshore wind industry
must be accountable for incidental takes
from construction and operations
separately from the take authorizations
for managed commercial fish stocks.
Commenters expressed concern about
the potential impacts of offshore wind
development on marine species,
particularly the North Atlantic right
whale, and the potential that any
disturbance, added distress, and
mortality of North Atlantic right whales
will be attributed to the commercial,
charter, and recreational fishers who
frequently access these same areas in
which offshore wind development is
occurring. They requested a moratorium
on new incidental harassment
authorizations until more is known
about the potential impacts of offshore
wind development on marine species.
Response: NMFS has determined that
no serious injury or mortality is
anticipated to result from Revolution
Wind’s specified activities, and as
discussed in the Negligible Impact
Analysis and Determination section in
this final rule, NMFS has determined
that Revolution Wind’s specified
activities will have a negligible impact
on marine mammal species or stocks.
Furthermore, NMFS has determined
that the mitigation measures will effect
the least practicable adverse impact on
marine mammals and their habitat.
Neither the MMPA nor our
implementing regulations require NMFS
to analyze impacts to other industries
(e.g., fisheries) or coastal communities
from issuance of an ITA pursuant to
section 101(a)(5)(A). We note that the
Revolution Wind Final EIS assesses the
impacts of both BOEM and NMFS’
actions (permitting Revolution Wind’s
activities and authorizing the associated
take of marine mammals, respectively)
on the human environment, including
to fishermen and coastal communities,
and NMFS considered the analysis, as
appropriate, in the final decisions under
the MMPA.
Regarding accountability, Revolution
Wind would be required to submit
frequent monitoring reports, which
would include accounts of any takes by
Level A harassment or Level B
harassment. NMFS must withdraw or
suspend any LOA, if issued under these
regulations, after notice and opportunity
for public comment, if it finds the
methods of taking or the mitigation,
monitoring, or reporting measures are
not being substantially complied with
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(16 U.S.C. 1371(a)(5)(B); 50 CFR
216.206(e)). Additionally, failure to
comply with the requirements of the
LOA may result in civil monetary
penalties, and knowing violations may
result in criminal penalties (16 U.S.C.
1375). NMFS notes the anticipated
impacts from Revolution Wind’s
activities (e.g., behavioral harassment,
acoustic disturbance, temporary hearing
loss) are different from those anticipated
from fishing activities (e.g.,
entanglement).
Other
Comment 45: Commenters
encouraged NMFS to issue LOAs on an
annual basis, rather than a single 5-year
LOA, to allow for the continuous
incorporation of the best available
scientific and commercial information
and to modify mitigation and
monitoring measures as necessary and
in a timely manner. Both commenters
also state that due to the precarious
nature of the North Atlantic right whale,
this annual approach is necessary to
implement flexible protections.
Response: While NMFS acknowledges
the commenters’ rationale, we do not
think it is necessary to issue annual
LOAs as: (1) the final rule includes
requirements for annual reports (in
addition to weekly and monthly
requirements) to support annual
evaluation of the activities and
monitoring results, and (2) the final rule
includes an Adaptive Management
provision (see § 217.277(c)) that allows
NMFS to make modifications to the
mitigation, monitoring, and reporting
measures found in the LOA if new
information supports the modifications
and doing so creates a reasonable
likelihood of more effectively
accomplishing the goals of the
measures.
Comment 46: The Commission
recommended that NMFS specify in
section 217.275(d)(9)(ii) of the final rule
that the final SFV report must include
source levels at 10 m during wind
turbine operations, received levels at 50
m, 100 m, and 250 m from the wind
turbine, operational parameters (i.e.,
direct drive/gearbox information,
turbine rotation rate), sea state
conditions, and any nearby
anthropogenic activities. In addition,
the Commission recommends that
NMFS rectify in the final rule the
following proposed rule omissions and
errors: (1) Proposed section 217.272(a)
should also specify impact pile driving
and removal of casing pipes and
vibratory pile installation or removal of
goal posts, (2) Proposed section
217.272(b) omitted impact removal of
casing pipes, (3) Proposed section
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217.274(d)(3)(vii) contradicts proposed
section 217.274(f)(5)(1), which specifies
that SFV must be conducted for each
UXO/MEC detonation, (4) Proposed
section 217.274(f)(2) specified that
seasonal restrictions for UXO/MEC
detonations would be in place from 1
December through 31 April; however,
April has only 30 days, (5) Bellmann
(2021) was cited incorrectly as
Bellmann and Betke (2021) in the
preamble to the final rule. (6) The terms
‘small odontocetes’, ‘delphinids and
harbor porpoises’, and ‘dolphins and
porpoises’ were used interchangeably
throughout the various mitigation
measures in proposed section 217.274,
and the terms ‘seals’ and ‘pinnipeds’
were used interchangeably or omitted
altogether from the various mitigation
measures in proposed section 217.274.
Response: We appreciate the specific
suggestions provided by the
Commission here. We have rectified all
of the concerns described in the
Commission’s list, except for those
found in (6) above. Please note that the
Section references for each of the items
noted by the Commission have changed
from those in the proposed rule due to
reorganization. We have not made
adjustments with respect to the
suggestions regarding the intermixed
use of ‘‘seals’’ versus ‘‘pinnipeds,’’ and
‘‘small odontocetes’’ (which we now
refer to as ‘‘odontocetes’’), ‘‘delphinids
and harbor porpoises’’, and ‘‘dolphins
and porpoises,’’ as those terms are
clearly describing the species at hand.
Furthermore, this variation in language
does not affect the clarity or
understanding of the final rule or its
provisions.
Comment 47: A commenter claimed
that NMFS, and BOEM should have
conducted more public outreach for the
Revolution Wind project and sought
public comments from parties outside of
the states in which the project’s landbased operations will occur, given that
marine mammals have migratory
patterns that range the entire East Coast.
Response: NMFS disagrees that public
outreach regarding the Revolution Wind
project was limited to individuals in
particular states. Both NMFS and BOEM
provided all members of the general
public from any location opportunities
to comment on and provide information
pertaining to Revolution Wind’s
potential impacts on marine mammals
and the environment. BOEM published
a Notice of Intent to prepare an EIS on
April 30, 2021 (86 FR 22972) in the
Federal Register, followed by a 30-day
public comment period and three
virtual scoping meetings (May 13, 18,
and 20, 2021) to facilitate public
engagement in development of an
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assessment of potential impacts from
Revolution Wind’s planned activities.
Additionally, BOEM’s draft EIS
(Revolution Wind Draft Environmental
Impact Statement (DEIS) for Commercial
Wind Lease OCS–A 0486) was made
available for public comment on
September 2, 2022 (87 FR 54248), which
included a 45-day comment period.
Finally, BOEM held three in-person
public hearings on October 4, 2022, in
Aquinnah, MA, October 5, 2022, in East
Greenwich, CT, and October 6, 2022, in
New Bedford, MA, and two virtual
public hearings (again, open to all
members of the public from any
location) on September 29 and October
11, 2022. On March 21, 2022, NMFS
published a Notice of Receipt (NOR) of
Revolution Wind’s adequate and
complete MMPA ITA application in the
Federal Register (87 FR 15942), which
included a 30-day public comment
period and access to the full
application, which was posted on
NMFS’ publicly available website
(https://www.fisheries.noaa.gov/action/
incidental-take-authorizationrevolution-wind-llc-constructionrevolution-wind-energy). NMFS
considered all of this information when
developing the proposed rule, which
was published in the Federal Register
on December 23, 2022 (87 FR 79072). A
45-day public comment period followed
publication of the proposed rule, during
which NMFS received 404 comment
submissions. NMFS carefully
considered each of the received
comments when developing this final
rule. Comments submitted on the NOI,
DEIS, NOR, and proposed rule were
submitted by individuals from a variety
of states, rather than the select few in
Revolution Wind’s Project Area. Thus,
all members of the public had notice
and opportunity to comment on
multiple occasions and had access to
relevant documents via NMFS’ and
BOEM’s websites.
Comment 48: A commenter claimed
that recent whale strandings are the
result of offshore wind pre-construction
activities. Another commenter suggested
that NMFS should consider whether or
not authorizing Level A harassment or
Level B harassment should be
permissible given the recent elevated
public concern about potential impacts
on marine mammals from offshore wind
activities.
Response: NMFS emphasizes that
there is no evidence that noise resulting
from offshore wind development-related
marine site characterization surveys,
cause marine mammal strandings, and
there is no evidence linking recent large
whale mortalities and currently ongoing
surveys. The commenters offer no such
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evidence or other scientific information
to substantiate their claim. The best
scientific information available
indicates that only Level B harassment,
or disruption of behavioral patterns
(e.g., avoidance), may occur as a result
of Revolution Wind’s HRG surveys.
NMFS will continue to gather data to
help us determine the cause of these
strandings. NMFS notes the
Commission’s statement: ‘‘There
continues to be no evidence to link
these large whale strandings to offshore
wind energy development, including no
evidence to link them to sound emitted
during wind development-related site
characterization surveys, known as HRG
surveys. Although HRG surveys have
been occurring off New England and the
mid-Atlantic coast, HRG devices have
never been implicated or causativelyassociated with baleen whale
strandings’’ (Marine Mammal
Commission Newsletter, Spring 2023).
There is an ongoing UME for humpback
whales along the Atlantic coast from
Maine to Florida, which includes
animals stranded since 2016, and we
provide further information on the
humpback UME in the humpback whale
subsection in the Description of Marine
Mammals in the Specific Geographic
Region section of this final rule.
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Changes From the Proposed to Final
Rule
Since the publication of the proposed
rule in the Federal Register (87 FR
79072, December 23, 2022), NMFS has
made changes, where appropriate, that
are reflected in the preamble text of this
final rule and the final regulatory text.
These changes are briefly identified
below, with more information included
in the indicated sections of the
preamble to this final rule.
Changes to Information Provided in the
Preamble
The information found in the
preamble of the proposed rule was
based on the best available information
at the time of publication. Since
publication of the proposed rule, new
information has become available,
which has been incorporated into this
final rule as discussed below.
The following changes are reflected in
the Description of Marine Mammals in
the Specific Geographic Region section
of the preamble to this final rule:
Given the release of NMFS’ final 2022
SARs (Hayes et al., 2023), we have
updated the population estimate for the
North Atlantic right whale (Eubalaena
glacialis) from 368 to 338 and the total
mortality/serious injury (M/SI) amount
from 8.1 to 31.2. This increase is due to
the inclusion of undetected annual M/
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SI in the total annual serious injury/
mortality.
Given the availability of new
information, we have made updates to
the UME summaries for North Atlantic
right whales, humpback whales, minke
whales, and phocid seals (pinnipeds).
The following changes are reflected in
the Estimated Take section the preamble
to this final rule:
Seal take estimates were previously
calculated by scaling the take estimates
derived from a single ‘‘seal’’ guild
density using proportions calculated
from the range-wide abundance values
in the NMFS stock assessment reports.
To more accurately estimate take for
each species for all activities in the final
rule, Revolution Wind scaled the single
seal guild exposure estimate using
proportions calculated from the relative
occurrence of each species reported in
PSO monitoring reports for HRG surveys
conducted in the Project Area from
2018–2021 (AIS-Inc., 2019; Bennett,
2021; Stevens et al., 2021; Stevens and
Mills, 2021) and more recent data
collected in 2023 during construction of
the South Fork Wind Farm (South Fork
Wind 2023, unpublished data).
Based on a recommendation by the
Commission, we have increased the
number of takes by Level A harassment
of harbor porpoises incidental to cable
landfall construction, specifically
pneumatic hammering, from 0 to 24,
should Revolution Wind choose to
install casing pipes.
Based on a recommendation by the
Commission, we have increased the
number of common dolphin takes by
Level B harassment for UXO/MEC
detonations (from 211 to 632); HRG
surveys during construction (from 2,354
to 4,457); and HRG surveys during
operations (from 2,312 to 4,376).
Based on our consideration of the
Commission’s recommendation, we are
authorizing the number of modelestimated Level A harassment (PTS)
take (increased to group size where
applicable) incidental to UXO/MEC
detonations: fin whales (n=2), sei
whales (n=2), humpback whales (n=2),
minke whales (n=8), common dolphins
(n=35), bottlenose dolphins (Western
North Atlantic offshore stock) (n=8), and
Atlantic white-sided dolphins (n=28).
The proposed rule did not authorize
Level A harassment (PTS) of these
species incidental to UXO/MEC
detonations.
Based on consideration of comments
from the Commission, we are now also
authorizing the amount of modelestimated Level A harassment (PTS)
take of sei whales (n=3) and 5 gray seals
(n=5), as well 20 percent of the modelestimated Level A harassment (PTS) for
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the other species, including fin whales
(2), minke whales (13), harbor porpoises
(65), and harbor seals (7) during impact
installation of monopiles. The proposed
rule did not authorize Level A
harassment (PTS) of these species
incidental to impact pile driving
monopiles.
In Tables 27 and 28, we have
corrected mathematical errors reflected
in Tables 32 and 33 of the proposed rule
resulting from transcription errors and
incorrect summation of take numbers
for a given species across all activities
(i.e., foundation installation, landfall
construction, UXO/MEC detonations,
and HRG surveys). The corrections do
not change NMFS’ findings.
In the proposed rule, NMFS proposed
to authorize take by Level B harassment
of sperm whales (n=2) incidental to
cofferdam installation. In this final rule,
NMFS is not authorizing Level B
harassment of sperm whales incidental
to this specified activity because the
sperm whale exposure estimate is 0.1
and the species exhibits a preference for
deep oceanic habitat rather than the
shallow waters in Narragansett Bay,
thus, the probability of take is de
minimis.
Changes in the Regulatory Text
We have made the following changes
to the regulatory text, which are
reflected, as appropriate, throughout
this final rule and described, as
appropriate, in the preamble.
For clarity and consistency, we
revised two paragraphs in § 217.270
Specified activity and specified
geographical region of the regulatory
text to fully describe the specified
activity and specified geographical
region.
The following changes are reflected in
§ 217.272 Permissible Methods of
Taking.
NMFS added vibratory pile driving of
goal posts to the list of permissible
methods of taking by Level B
harassment as ‘‘goal posts’’ was
inadvertently excluded;
Based on the Commission’s
recommendation to authorize take by
Level A harassment from pneumatic
hammering and NMFS’ concurrence,
NMFS added pneumatic hammering of
casing pipes to the list of permissible
methods of taking by Level A
harassment.
The following changes are reflected in
§ 217.274 Mitigation Requirements and
the associated Mitigation section of the
preamble to this final rule.
Based on a recommendation by a
commenter, NMFS added a requirement
that all project vessels must utilize AIS.
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Given that North Atlantic right whale
density in the Project Area increases by
an order of magnitude from November
to December, NMFS expanded the
seasonal restriction for impact pile
driving to include December, during
which impact pile driving must be
avoided, although, with prior approval
by NMFS, it may occur if necessary to
complete the project.
NMFS added a requirement for a 10m (32.8-ft) shutdown zone for all other
in-water activities that are not expected
to cause take of marine mammals (e.g.,
trenching, dredging) which may be
monitored by any individual on watch
(approved PSO not specifically
required).
NMFS has included mitigation and
monitoring zones specific to the
different UXO/MEC charge weights,
rather than a single zone size assuming
only the largest charge weight, as Orsted
has since provided evidence to NMFS
that they can reliably identify UXO/
MEC charge weights in the field.
We now specify that the mitigation
measure restricts all Project vessels,
rather than only crew transfer vessels,
from traveling over 10 kn (11.5 mph) in
the transit corridor unless Revolution
Wind conducts real-time acoustic
monitoring to detect large whales
(including North Atlantic right whales)
in and near the transit corridor, and that
this measure applies only when other
speed restrictions are not in place.
We now specify that an acoustic
detection of any large whale (rather than
only North Atlantic right whales) via the
PAM system within the transit corridor
will trigger a 10 kn (11.5 mph) or less
speed restriction for all Project vessels
until the whale can be confirmed
visually beyond 500m of the vessel or
24 hours following the detection and
any re-detection has passed.
The following changes are reflected in
the § 217.275 Monitoring and Reporting
requirements and the associated
Monitoring and Reporting section of the
preamble to this final rule:
NMFS updated the process for
obtaining NMFS approval for PSO and
PAM Operators to be similar to
requirements typically included for
seismic (e.g., airgun) surveys and have
clarified education, training, and
experience necessary to obtain NMFS’
approval.
NMFS added a requirement to have at
least three PSOs on pile driving vessels
rather than two PSOs, as was originally
described in the proposed rule.
NMFS increased the PAM shutdown
zone from 3.9 km (summer) and 4.4 km
(winter) by now requiring Revolution
Wind to delay or shutdown if a North
Atlantic right whale is acoustically
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detected at any distance within the
PAM monitoring zone.
Based on a recommendation by the
Marine Mammal Commission, NMFS
added a requirement that increases the
time that PAM data must be reviewed
prior to all UXO/MEC detonations from
1 to 24 hours (except in emergency
cases where the 24-hour delay before
the detonation occurred would create
risk to human safety).
NMFS added a requirement that a
double big bubble curtain must be
placed at a distance that would avoid
damage to the nozzle holes during all
UXO/MEC detonations.
Based on a recommendation by the
Marine Mammal Commission, NMFS
added a requirement that a pressure
transducer must be used during all
UXO/MEC detonations.
NMFS added a requirement stating
that Revolution Wind must use two
NAS to ensure that measured sound
levels do not exceed the levels modeled
for a 10-dB sound level reduction for
foundation installation (e.g., double
BBC (DBBC), hydro-sound damper, an
AdBm Helmholz resonator). A single
bubble curtain must not be used;
NMFS added requirements that SFV
must be conducted on every pile until
measured noise levels are at or below
the modeled noise levels, assuming 10
dB, for at least three consecutive
monopiles, and that SFV is required for
each UXO/MEC detonation.
NMFS added a requirement that
Revolution Wind must deploy at least
eight hydrophones at four locations (one
bottom and one mid-water column at
each location) along an azimuth that is
likely to see lowest propagation loss,
and two hydrophones (one bottom and
one mid-water) at 750 m, 90 degrees
from the primary azimuth during
installation of all piles where SFV
monitoring is required, and equivalent
requirements during all UXO/MEC
detonations.
NMFS is now requiring Revolution
Wind deploy two dedicated PSOs
vessels to monitor the clearance and
shutdown zones prior to and during
impact pile driving installation of
monopile foundations. In addition to
the three PSOs on the pile driving
platform, three PSOs must be deployed
on each of the dedicated PSO vessels to
monitor for marine mammals.
NMFS is now requiring that
Revolution Wind must deploy at least
three PSOs on each observation
platform for all detonations with
clearance zones less than 5 km (3.1 mi).
If the clearance zone is larger than 5 km,
at least one dedicated PSO vessel (with
at least three on-duty PSOs) and an
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72587
aerial platform (with at least two onduty PSOs) must be used.
NMFS added a requirement that
Revolution Wind submit a UXO/MEC
PAM plan for NMFS’ approval 180 days
prior to the start of any UXO/MEC
detonation.
NMFS now specifies that, for SFV
during monopile installations,
calculations of the R95≠ SEL and R95≠
SPLrms acoustic ranges for Level A
harassment and Level B harassment,
respectively, based on in situ
measurements must be compared to the
same modeled metrics.
Based on consideration of the
Commission recommendation, NMFS
has added additional specified reporting
requirements for SFV conducted during
operations, and clarified the general
SFV reporting metrics to align with the
Commission’s comments;
NMFS updated the North Atlantic
right whale detection (visual and
acoustic) reporting guidance.
NMFS removed the requirements for
reviewing data on an annual and
biennial basis for adaptive management
and instead will make adaptive
management decisions as new
information warrants it.
Description of Marine Mammals in the
Specific Geographic Region
As noted in the Changes From the
Proposed to Final Rule section, since
publication of the proposed rule (87 FR
79092, December 23, 2022), updates
have been made to the abundance
estimate for North Atlantic right whales
and the UME summaries of multiple
species. These changes are described in
detail in the sections below; otherwise,
the Description of Marine Mammals in
the Specific Geographic Region section
has not changed since the publication of
the proposed rule in the Federal
Register (87 FR 79072, December 23,
2022).
Sections 3 and 4 of Revolution Wind’s
application summarize available
information regarding status and trends,
distribution and habitat preferences,
and behavior and life history of the
potentially affected species (Revolution
Wind, 2022). NMFS fully considered all
of this information, and we refer the
reader to these descriptions in the
application, incorporated here by
reference, instead of reprinting the
information. Additional information
regarding population trends and threats
may be found in NMFS’ SARs (https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessments) and more
general information about these species
(e.g., physical and behavioral
descriptions) may be found on NMFS’
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website (https://
www.fisheries.noaa.gov/find-species).
Table 2 lists all species or stocks for
which take is authorized under this
final rule and summarizes information
related to the species or stock, including
regulatory status under the MMPA and
ESA and potential biological removal
(PBR), where known. PBR is defined as
the maximum number of animals, not
including natural mortalities, that may
be removed from a marine mammal
stock while allowing that stock to reach
or maintain its optimum sustainable
population (as described in NMFS’
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SARs; (16 U.S.C. 1362(20))). While no
mortality is anticipated or authorized
here, PBR and annual serious injury and
mortality from anthropogenic sources
are included here as gross indicators of
the status of the species and other
threats.
Marine mammal abundance estimates
presented in this document represent
the total number of individuals that
make up a given stock or the total
number estimated within a particular
study or survey area. NMFS’ stock
abundance estimates for most species
represent the total estimate of
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individuals within the geographic area,
if known, that comprises that stock. For
some species, this geographic area may
extend beyond U.S. waters. All managed
stocks in this region are assessed in
NMFS’ U.S. Atlantic and Gulf of Mexico
SARs. All values presented in Table 2
are the most recent available data at the
time of publication which can be found
in NMFS’ 2022 final SARs (Hayes et al.,
2023), available online at: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessment-reports.
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72589
Table 2 -- Marine Mammal Species that May Occur in the Project Area and be
Taken, by Harassment
Common
Name
Scientific
Name5
Stock
abundance
(CV, Nmm,
most recent
abundance
survey)2
ESA/MMP
A status;
Strategic
(Y/N) 1
Stock
PBR
Annual
M/SI3
Order Artiodactyla - Cetacea - Superfamily Mysticeti (baleen whales)
Family Balaenidae
North
Atlantic
right whale
Eubalaena
glacialis
Western
Atlantic
E,D,Y
338 (0; 332;
2020) 6
0.7
31.26
Family Balaenopteridae (rorquals)
Blue whale
Balaenopter
a musculus
Western
North
Atlantic
E,D,Y
UNK
(UNK;402;
1980-2008)
0.8
0
Fin whale
Balaenopter
aphysalus
Western
North
Atlantic
E,D,Y
6,802 (0.24;
5,573; 2016)
11
1.8
Humpback
whale
Megapter a
novaeanglia
e
Gulf of
Maine
-, -, y
1,396 (0;
1,380; 2016)
22
12.15
Sei whale
Balaenopter
a borealis
Nova Scotia
E,D,Y
6,292 (1.02;
3,098; 2016)
6.2
0.8
Minke
whale
Balaenopter
a
acutorostrat
a
Canadian
Eastern
Coastal
-, -, N
21,968
(0.31;
17,002;
2016)
170
10.6
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Physeteridae
Sperm
whale
Physeter
macrocepha
!us
North
Atlantic
E,D,Y
4,349 (0.28;
3,451; 2016)
3.9
0
-, -, N
93,233
(0.71;
54,433;
2016)
544
27
-, -, N
39,921
(0.27;
32,032;
2016)
320
0
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Atlantic
white-sided
dolphin
Lagenorhyn
chus acutus
Western
North
Atlantic
Atlantic
spotted
dolphin
Stenella
frontalis
Western
North
Atlantic
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Family Delphinidae
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-, -, N
62,851
(0.23;
51,914;
2016)
519
28
Western
North
Atlantic
-, -, N
39,215
(0.30;
30,627;
2016)
306
29
Grampus
griseus
Western
North
Atlantic
-, -, N
35,215
(0.19;
30,051;
2016)
301
34
Delphinus
delphis
Western
North
Atlantic
-, -, N
172,897
(0.21;
145,216;
2016)
1,452
390
851
164
-, -, N
27,300
(0.22;
22,785;
2016)
1,458
4,453
-, -, N
61,336
(0.08;
57,637;
2018)
1,729
339
Bottlenose
dolphin
Tursiops
truncatus
Western
North
Atlantic
Offshore
Long-fmned
pilot whales
Globicephal
a melas
Risso's
dolphin
Common
dolphin
Family Phocoenidae (porpoises)
Harbor
porpoise
Phocoena
phocoena
Gulf of
Maine/Bay
of Fundy
-, -, N
95,543
(0.31;
74,034;
2016)
Order Carnivora - Superfamily Pinnipedia
Gray seal4
Halichoerus
grypus
Western
North
Atlantic
Harbor seal
Phoca
vitulina
Western
North
Atlantic
l - ESA status: Endangered (E), Threatened (T) / MMPA status: Depleted (D). A dash(-) indicates that the
species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a
strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is
determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic
stock.
2 - NMFS' marine mammal stock assessment reports can be found online
at: https:/lwwwjisheries.noaa.gov/national/marine-mammal-protectionlmarine-mammal-stockassessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance.
3 - These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious
injury from all sources combined (e.g., commercial fisheries, vessel strike).
4 - NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total
stock abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is
for the total stock.
5 - Information on the classification of marine mammal species can be found on the web page for The
Society for Marine Mammalogy's Committee on Taxonomy (https://marinemammalscience.org/scienceand-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2023)).
6 - In the proposed rule (87 FR 79072, December 23, 2022), a population estimate of 368 was used which
represented the best available science at the time of publication. However, since the publication of the
proposed rule, a new estimate (n=338) was released in NMFS' draft and final 2022 SARs and has been
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Family Phocidae (earless seals)
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
72591
incorporated into this final rule. In addition, the total annual average observed North Atlantic right whale
mortality was updated in the final SARs from 8.1 to 31.2. Total annual average observed North Atlantic
right whale mortality during the period 2016 through 2020 was 8.1 animals and annual average observed
fishery mortality was 5. 7 animals. Numbers presented in this table (31.2 total mortality and 22 fishery
mortality) are 2015 through 2019 estimated annual means, accounting for undetected mortality and serious
injury. (Hayes et al., 2023).
All species that could potentially
occur in the Project Area are included
in Table 5 in Revolution Wind ITA
application and discussed therein.
While the majority of these species have
been documented or sighted in southern
New England (including off the coast of
Rhode Island) in the past, for the species
and stocks not listed in Table 2, NMFS
considers it unlikely that their
occurrence would overlap the activity in
a manner that would result in
harassment, due to their spatial
distribution (i.e., more northern or
southern ranges) and/or the
geomorphological characteristics of the
underwater environment (i.e., water
depth in the development area). There
are two pilot whale species, long-finned
(Globicephala melas) and short-finned
(Globicephala macrorhynchus), with
distributions that overlap in the
latitudinal range of the Project Area
(Hayes et al., 2023; Roberts et al., 2016;
Roberts et al., 2023). Because it is
difficult to differentiate between the two
species at sea, sightings, and thus the
densities calculated from them, are
generally reported together as
Globicephala spp. (Roberts et al., 2016;
Hayes et al., 2023). However, based on
the best available information, shortfinned pilot whales occur in habitat that
is both further offshore on the shelf
break and further south than the project
area (Hayes et al., 2020). Therefore,
NMFS assumes that any take of pilot
whales would be of long-finned pilot
whales. Similarly, in the Western North
Atlantic, there are two morphologically
and genetically distinct common
bottlenose morphotypes, the Western
North Atlantic Northern Migratory
Coastal stock and the Western North
Atlantic Offshore stock. The western
North Atlantic offshore stock is
primarily distributed along the outer
shelf and slope from Georges Bank to
Florida during spring and summer and
has been observed in the Gulf of Maine
during late summer and fall (Hayes et al.
2020), whereas the northern migratory
coastal stock is distributed along the
coast between southern Long Island,
New York, and Florida (Hayes et al.
2018). Given their distribution, only the
offshore stock is likely to occur in the
Project Area and is the only stock
included in this application.
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A detailed description of the species
likely to be affected by the Project,
including brief introductions to the
species and relevant stocks as well as
available information regarding
population trends and threats, and
information regarding local occurrence,
were provided in the proposed rule (87
FR 79072, December 23, 2022). Since
that time, a new SAR (Hayes et al.,
2023) has become available for the
North Atlantic right whale. Estimated
abundance for the species declined from
368 to 338 and annual M/SI increased
from 8.1 to 31.2. This large increase in
annual serious injury/mortality is a
result of NMFS including undetected
annual M/SI in the total annual serious
injury/mortality. The North Atlantic
right whale population remains in
decline, as described in the North
Atlantic Right Whale species section
below. We are not aware of any
additional changes in the status of the
species and stocks listed in Table 2;
therefore, detailed descriptions are not
provided here. Please refer to the
proposed rule for these descriptions (87
FR 79072, December 23, 2022). Please
also refer to NMFS’ website (https://
www.fisheries.noaa.gov/find-species) for
generalized species accounts.
Since the publication of the proposed
rule, the following updates have
occurred to the below species in regards
to general information or their active
UMEs.
North Atlantic Right Whale
In August 2023, NMFS released its
final 2022 SARs, which updated the
population estimate (Nbest) of North
Atlantic right whales from 368 to 338
individuals and the annual M/SI value
from 8.1 to 31.2 due to the addition of
estimated undetected mortality and
serious injury, as described above,
which had not been previously included
in the SAR. The population estimate is
slightly lower than the North Atlantic
Right Whale Consortium’s 2022 Report
Card, which identifies the population
estimate as 340 individuals (Pettis et al.,
2023). Elevated North Atlantic right
whale mortalities have occurred since
June 7, 2017, along the U.S. and
Canadian coast, with the leading
category for the cause of death for this
UME determined to be ‘‘human
interaction,’’ specifically from
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entanglements or vessel strikes. Since
publication of the proposed rule, the
number of animals considered part of
the UME has increased. As of September
11, 2023, there have been 36 confirmed
mortalities (dead, stranded, or floaters),
0 pending mortalities, and 34 seriously
injured free-swimming whales for a total
of 70 whales. As of October 14, 2022,
the UME also considers animals (n=45)
with sublethal injury or illness (called
‘‘morbidity’’) bringing the total number
of whales in the UME to 115. More
information about the North Atlantic
right whale UME is available online at:
https://www.fisheries.noaa.gov/
national/marine-life-distress/2017-2023north-atlantic-right-whale-unusualmortality-event.
Humpback Whale
Since January 2016, elevated
humpback whale mortalities have
occurred along the Atlantic coast from
Maine to Florida. This event was
declared a UME in April 2017. Partial or
full necropsy examinations have been
conducted on approximately half of the
208 known cases (as of September
2023). Of the whales examined
(approximately 90), about 40 percent
had evidence of human interaction
either from vessel strike or
entanglement (refer to https://
www.fisheries.noaa.gov/national/
marine-life-distress/2016-2023humpback-whale-unusual-mortalityevent-along-atlantic-coast). While a
portion of the whales have shown
evidence of pre-mortem vessel strike,
this finding is not consistent across all
whales examined and more research is
needed. NOAA is consulting with
researchers that are conducting studies
on the humpback whale populations,
and these efforts may provide
information on changes in whale
distribution and habitat use that could
provide additional insight into how
these vessel interactions occurred. More
information is available at: https://
www.fisheries.noaa.gov/national/
marine-life-distress/2016-2023humpback-whale-unusual-mortalityevent-along-atlantic-coast.
Since December 1, 2022, the number
of humpback strandings along the midAtlantic coast, from North Carolina to
New York, has been elevated. In some
cases, the cause of death is not yet
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known; in others, vessel strike has been
deemed the cause of death. As the
humpback whale population has grown,
they are seen more often in the MidAtlantic. These whales may be
following their prey (small fish) which
were reportedly close to shore in the
2022–2033 winter. Changing
distributions of prey impact larger
marine species that depend on them,
and result in changing distribution of
whales and other marine life. These
prey also attract fish that are targeted by
recreational and commercial fishermen,
which increases the number of boats
and amount of fishing gear in these
areas. This nearshore movement
increases the potential for
anthropogenic interactions, particularly
as the increased presence of whales in
areas traveled by boats of all sizes
increases the risk of vessel strikes.
ddrumheller on DSK120RN23PROD with RULES2
Minke Whale
Since January 2017, a UME has been
declared based on elevated minke whale
mortalities detected along the Atlantic
coast from Maine through South
Carolina. As of September, 2023, a total
of 158 minke whales have stranded
during this UME. Full or partial
necropsy examinations were conducted
on more than 60 percent of the whales.
Preliminary findings have shown
evidence of human interactions or
infectious disease in several of the
whales, but these findings are not
consistent across all of the whales
examined, so more research is needed.
This UME has been declared non-active
and is pending closure. More
information is available at: https://
www.fisheries.noaa.gov/national/
marine-life-distress/2017-2023-minkewhale-unusual-mortality-event-alongatlantic-coast.
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Phocid Seals
Since June 2022, elevated numbers of
harbor seal and gray seal mortalities
have occurred across the southern and
central coast of Maine. This event was
declared a UME in July 2022.
Preliminary testing of samples has
found some harbor and gray seals
positive for highly pathogenic avian
influenza. While the UME is not
occurring in the Project Area, the
populations affected by the UME are the
same as those potentially affected by the
Project. Information on this UME is
available online at: https://
www.fisheries.noaa.gov/2022-2023pinniped-unusual-mortality-eventalong-maine-coast.
The above event was preceded by a
different UME, occurring from 2018–
2020 (closure of the 2018–2020 UME is
pending). Beginning in July 2018,
elevated numbers of harbor seal and
gray seal mortalities occurred across
Maine, New Hampshire, and
Massachusetts. Additionally, stranded
seals have shown clinical signs as far
south as Virginia, although not in
elevated numbers, therefore the UME
investigation encompassed all seal
strandings from Maine to Virginia. A
total of 3,152 reported strandings (of all
species) occurred from July 1, 2018,
through March 13, 2020. Full or partial
necropsy examinations have been
conducted on some of the seals and
samples have been collected for testing.
Based on tests conducted thus far, the
main pathogen found in the seals is
phocine distemper virus. NMFS is
performing additional testing to identify
any other factors that may be involved
in this UME. Information on this UME
is available online at: https://
www.fisheries.noaa.gov/new-england-
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mid-atlantic/marine-life-distress/20182020-pinniped-unusual-mortality-eventalong.
Marine Mammal Hearing
Hearing is the most important sensory
modality for marine mammals
underwater, and exposure to
anthropogenic sound can have
deleterious effects. To appropriately
assess the potential effects of exposure
to sound, it is necessary to understand
the frequency ranges marine mammals
are able to hear. Current data indicate
that not all marine mammal species
have equal hearing capabilities (e.g.,
Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008).
To reflect this, Southall et al. (2007)
recommended that marine mammals be
divided into functional hearing groups
based on directly measured or estimated
hearing ranges on the basis of available
behavioral response data, audiograms
derived using auditory evoked potential
techniques, anatomical modeling, and
other data. Note that no direct
measurements of hearing ability have
been successfully completed for
mysticetes (i.e., low-frequency
cetaceans). Subsequently, NMFS (2018)
described generalized hearing ranges for
these marine mammal hearing groups.
Generalized hearing ranges were chosen
based on the approximately 65 dB
threshold from the normalized
composite audiograms, with the
exception for lower limits for lowfrequency cetaceans where the lower
bound was deemed to be biologically
implausible and the lower bound from
Southall et al. (2007) retained. Marine
mammal hearing groups and their
associated hearing ranges are provided
in Table 3.
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Table 3
-- M arme MammaIHearine: Grou
l)S
72593
(NMFS 2018)
Hearing Group
'
Generalized Hearing Range*
Low-frequency (LF) cetaceans
(baleen whales)
7 Hzto 35 kHz
Mid-frequency (MF) cetaceans
(dolphins, toothed whales, beaked whales,
bottlenose whales)
150 Hz to 160 kHz
High-frequency (HF) cetaceans
(true porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus cruciger & L.
australis)
275 Hz to 160 kHz
Phocid pinnipeds (PW) (underwater)
(true seals)
50 Hz to 86 kHz
The pinniped functional hearing
group was modified from Southall et al.
(2007) on the basis of data indicating
that phocid species have consistently
demonstrated an extended frequency
range of hearing compared to otariids,
especially in the higher frequency range
(Hemila¨ et al., 2006; Kastelein et al.,
2009; Reichmuth and Holt, 2013). For
more detail concerning these groups and
associated frequency ranges, please see
NMFS (2018) for a review of available
information.
NMFS notes that in 2019a, Southall et
al. recommended new names for
hearing groups that are widely
recognized. However, this new hearing
group classification does not change the
weighting functions or acoustic
thresholds (i.e., the weighting functions
and thresholds in Southall et al. (2019a)
are identical to NMFS 2018 Revised
Technical Guidance). When NMFS
updates our Technical Guidance, we
will be adopting the updated Southall et
al. (2019a) hearing group classification.
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Potential Effects of Specified Activities
on Marine Mammals and Their Habitat
The effects of underwater noise from
the Project’s specified activities have the
potential to result in the harassment of
marine mammals in the specified
geographic region. The proposed rule
(87 FR 79072, December 23, 2022)
included a discussion of the effects of
anthropogenic noise on marine
mammals and the potential effects of
underwater noise from the Revolution
Wind’s project activities on marine
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mammals and their habitat. While some
new literature has been published since
publication of the proposed rule (e.g.,
Meyer-Gutbrod et al., 2023), there is no
new information that NMFS is aware of
that changes the analysis in the
proposed rule. The information and
analysis included in the proposed rule
is incorporated by reference into this
final rule and is not repeated here;
please refer to the notice of the
proposed rule (87 FR79072, December
23, 2022).
Estimated Take
As noted in the Changes From the
Proposed to Final Rule section, NMFS
has revised take estimates for several
species based on our concurrence with
comments received on the proposed
rule and due to transcription and
mathematical errors summing take
estimates across activities for several
species. These changes are described in
detail in the sections below and,
otherwise, the methodology for and
number of estimated take has not
changed since the proposed rule.
This section provides an estimate of
the number of incidental takes
authorized through this rulemaking,
which will inform both NMFS’
consideration of ‘‘small numbers’’ and
the negligible impact determination.
Authorized takes would be primarily
by Level B harassment, as use of the
acoustic sources (i.e., impact and
vibratory pile driving, site
characterization surveys, and UXO/MEC
detonations) have the potential to result
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in disruption of marine mammal
behavioral patterns due to exposure to
elevated noise levels. Impacts such as
masking and TTS can contribute to
behavioral disturbances. There is also
some potential for auditory injury (Level
A harassment) to occur in select marine
mammal species incidental to the
specified activities (i.e., impact pile
driving, vibratory pile driving, and
UXO/MEC detonations). As described
below, the larger distances to the PTS
thresholds, when considering marine
mammal weighting functions,
demonstrate this potential. For midfrequency hearing sensitivities, when
thresholds and weighting and the
associated PTS zone sizes are
considered, the potential for PTS from
the noise produced by the project is
negligible. The required mitigation and
monitoring measures are expected to
minimize the severity of the taking to
the extent practicable.
As described previously, no serious
injury or mortality is anticipated or
authorized for this project. Below we
describe how the take numbers are
estimated.
Generally speaking, we estimate take
by considering: (1) acoustic thresholds
above which NMFS believes the best
available science indicates marine
mammals will be behaviorally harassed
or incur some degree of permanent
hearing impairment; (2) the area or
volume of water that will be ensonified
above these levels in a day; (3) the
density or occurrence of marine
mammals within these ensonified areas;
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* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the
group), where individual species' hearing ranges are typically not as broad. Generalized hearing range
chosen based on ~65 dB threshold from normalized composite audiogram, with the exception for lower
limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation).
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and, (4) and the number of days of
activities. We note that while these
basic factors can contribute to a basic
calculation to provide an initial
prediction of takes, additional
information that can qualitatively
inform take estimates is also sometimes
available (e.g., previous monitoring
results or average group size). Below, we
describe the factors considered here in
more detail and present the authorized
take estimates.
Marine Mammal Acoustic Thresholds
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NMFS recommends the use of
acoustic thresholds that identify the
received level of underwater sound
above which exposed marine mammals
would be reasonably expected to be
behaviorally harassed (equated to Level
B harassment) or to incur PTS of some
degree (equated to Level A harassment).
Thresholds have also been developed to
identify the levels above which animals
may incur different types of tissue
damage (non-acoustic Level A
harassment or mortality) from exposure
to pressure waves from explosive
detonation. Thresholds have also been
developed identifying the received level
of in-air sound above which exposed
pinnipeds would likely be behaviorally
harassed. A summary of all NMFS’
thresholds can be found at (https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-acoustic-technical-guidance).
Level B harassment—Though
significantly driven by received level,
the onset of behavioral disturbance from
anthropogenic noise exposure is also
informed to varying degrees by other
factors related to the source or exposure
context (e.g., frequency, predictability,
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duty cycle, duration of the exposure,
signal-to-noise ratio, distance to the
source), the environment (e.g., other
noises in the area) and the receiving
animals (hearing, motivation,
experience, demography, life stage,
depth) and can be difficult to predict
(e.g., Southall et al., 2007, 2021; Ellison
et al., 2012). Based on what the
available science indicates and the
practical need to use a threshold based
on a metric that is both predictable and
measurable for most activities, NMFS
typically uses a generalized acoustic
threshold based on received level to
estimate the onset of behavioral
harassment. NMFS generally predicts
that marine mammals are likely to be
behaviorally harassed in a manner
considered to be Level B harassment
when exposed to underwater
anthropogenic noise above root-meansquared pressure received levels (RMS
SPL) of 120 dB (referenced to re 1 mPa)
for continuous (e.g., vibratory pile
driving, drilling) and above RMS SPL
160 dB re 1 mPa for non-explosive
impulsive (e.g., seismic airguns) or
intermittent (e.g., scientific sonar)
sources (Table 4). Generally speaking,
Level B harassment take estimates based
on these behavioral harassment
thresholds are expected to include any
likely takes by TTS as, in most cases,
the likelihood of TTS occurs at
distances from the source less than
those at which behavioral harassment is
likely. TTS of a sufficient degree can
manifest as behavioral harassment, as
reduced hearing sensitivity and the
potential reduced opportunities to
detect important signals (conspecific
communication, predators, prey) may
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result in changes in behavior patterns
that would not otherwise occur.
Revolution Wind’s construction
activities include the use of continuous
(i.e., vibratory pile driving) and
intermittent (i.e., impact pile driving,
pneumatic hammering, HRG acoustic
sources) sources, therefore, the 120 and
160 dB re 1 mPa (rms) thresholds are
applicable. NMFS notes there are
separate explosive thresholds to account
for Level B harassment from a single
detonation per day and those are
included in Table 5 below.
Level A harassment—NMFS’
Technical Guidance for Assessing the
Effects of Anthropogenic Sound on
Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies
dual criteria to assess auditory injury
(Level A harassment) to five different
marine mammal groups (based on
hearing sensitivity) as a result of
exposure to noise from two different
types of sources (impulsive or nonimpulsive). As dual metrics, NMFS
considers onset of PTS (Level A
harassment) to have occurred when
either one of the two metrics is
exceeded (i.e., metric resulting in the
largest isopleth). Revolution Wind’s
project includes the use of both
impulsive and non-impulsive sources.
These thresholds are provided in
Table 4 below. The references, analysis,
and methodology used in the
development of the thresholds are
described in NMFS’ 2018 Technical
Guidance, which may be accessed at:
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-acoustic-technicalguidance.
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Table 4 -- Onset of Permanent Threshold Shift (PTS) (NMFS, 2018)
PTS Onset Thresholds*
(Received Level)
Hearing Group
Impulsive
Non-impulsive
Low-Frequency (LF) Cetaceans
Cell 1
Lp,0-pk,flat: 219 dB
LE,p, LF,24h: 183 dB
Cell 2
LE,p, LF,24h: 199 dB
Mid-Frequency (MF) Cetaceans
Cell 3
Lp,0-pk,flat: 230 dB
LE,p, MF,24h: 185 dB
Cell 4
LE,p,MF,24h: 198 dB
High-Frequency (HF) Cetaceans
Cell 5
Lp,0-pk,flat: 202 dB
LE,p,HF,24h: 155 dB
Cell 6
LE,p, HF,24h: 173 dB
Phocid Pinnipeds (PW)
(Underwater)
Cell 7
Lp,o-pk.t1a1: 218 dB
LE,p,PW,24h: 185 dB
Cell 8
LE,p,PW,24h: 201 dB
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure
level thresholds associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (Lp,O-pk) has a reference value of 1 µPa, and weighted cumulative sound
exposure level (LE,p) has a reference value of 1µPa 2s. In this Table, thresholds are abbreviated to be more
reflective of International Organization for Standardization standards (ISO, 2017). The subscript "flat" is
being included to indicate peak sound pressure are flat weighted or unweighted within the generalized
hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative
sound exposure level thresholds indicates the designated marine mammal auditory weighting function
(LF, MF, and HF cetaceans, and PW pinnipeds) and that the recommended accumulation period is 24
hours. The weighted cumulative sound exposure level thresholds could be exceeded in a multitude of
ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action
proponents to indicate the conditions under which these thresholds will be exceeded.
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Given Revolution Wind would be
limited to detonating one UXO/MEC per
day, the TTS threshold is used to
estimate the potential for Level B
(behavioral) harassment (i.e.,
individuals exposed above the TTS
threshold may also be harassed by
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behavioral disruption but we do not
anticipate any impacts from exposure to
UXO/MEC detonation below the TTS
threshold would constitute behavioral
harassment).
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Explosive sources—Based on the best
available science, NMFS uses the
acoustic and pressure thresholds
indicated in Tables 5 and 6 to predict
the onset of behavioral harassment,
TTS, PTS, tissue damage, and mortality
incidental to explosive detonations.
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Table 5 -- PTS Onset, TTS Onset, for Underwater Explosives (NMFS, 2018)
Hearing Group
PTS Impulsive
Thresholds (Level A
harassment)
TTS Impulsive
Thresholds (Level B
harassment)
Behavioral Threshold
(multiple detonations;
Level B harassment) 1
Low-Frequency (LF)
Cetaceans
Cell I
Lpk,flat: 219 dB
LE,LF,24h: 183 dB
Cell 2
Lpk,flat: 213 dB
LE,LF,24h: 168 dB
Cell 3
LE,LF,24h: 163 dB
Mid-Frequency (MF)
Cetaceans
Cell 4
Lpk,flat: 230 dB
LE,MF,24h: 185 dB
Cell 5
Lpk,flat: 224 dB
LE,MF,24h: 170 dB
Cell 6
LE,MF,24h: 165 dB
High-Frequency (HF)
Cetaceans
Cell 7
Lpk,flat: 202 dB
LE,HF,24h: 155 dB
Cell 8
Lpk,flat: 196 dB
LE,HF,24h: 140 dB
Cell 9
LE,HF,24h: 135 dB
Phocid Pinnipeds (PW)
(Underwater)
Cell JO
Lpk,flat: 218 dB
LE,PW,24h: 185 dB
Cell I I
Lpk,flat: 212 dB
LE,PW,24h: 170 dB
Cell 12
LE,PW,24h: 165 dB
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS/TTS onset.
Note: Peak sound pressure (Lpk) has a reference value of 1 µPa, and cumulative sound exposure level
(LE) has a reference value of 1µPa 2s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI, 2013). However, ANSI defines peak sound pressure as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the
subscript "flat" is being included to indicate peak sound pressure should be flat weighted or unweighted
within the overall marine mammal generalized hearing range. The subscript associated with cumulative
sound exposure level thresholds indicates the designated marine mammal auditory weighting function
(LF, MF, and HF cetaceans, and PW pinnipeds) and that the recommended accumulation period is 24
hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e.,
varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to
indicate the conditions under which these acoustic thresholds will be exceeded.
1 - Given Revolution Wind would be limited to detonating one UXO/MEC per day, the TTS threshold is
used to estimate the potential for Level B (behavioral) harassment (i.e., individuals exposed above the TTS
threshold may also be harassed by behavioral disruption but we do not anticipate any impacts from
exposure to UXO/MEC detonation below the TTS threshold would constitute behavioral harassment.
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close ranges) (Table 6). These criteria
have been developed by the U.S. Navy
(DoN (U.S. Department of the Navy)
2017) and are based on the mass of the
animal and the depth at which it is
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present in the water column. Equations
predicting the onset of the associated
potential effects are included below
(Table 6).
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Additional thresholds for nonauditory injury to lung and
gastrointestinal (GI) tracts from the blast
shock wave and/or onset of high peak
pressures are also relevant (at relatively
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72597
Table 6 -- Lung and G.I. Tract Injury Thresholds (DoN, 2017)
Mortality
Slight Lung Injury*
G.I. Tract Injury
Cell I
Cell 2
Cell 3
Modified Goertner
model; Equation 1
Modified Goertner
model; Equation 2
Hearing Group
(Severe lung injury)*
All Marine Mammals
Lpk,flat.'
23 7 dB
* Lung injury (severe and slight) thresholds are dependent on animal mass (Recommendation: Table C.9
from DoN (2017) based on adult and/or cal£'pup mass by species).
Note: Peak sound pressure (Lpk) has a reference value of 1 µPa. In this Table, thresholds are abbreviated
to reflect American National Standards Institute standards (ANSI, 2013). However, ANSI defines peak
sound pressure as incorporating frequency weighting, which is not the intent for this Technical Guidance.
Hence, the subscript "flat" is being included to indicate peak sound pressure should be flat weighted or
unweighted within the overall marine mammal generalized hearing range.
Modified Goertner Equations for severe and slight lung injury (pascal-second)
Equation 1: 103M113 (1 + D/10.1)1/6 Pa-s
Equation 2: 47.5Ml/3(1 + D/10.1)1/6 Pa-s
M animal (adult and/or calf/pup) mass (kg) (Table C.9 in DoN, 2017)
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Below, we discuss the acoustic
modeling, marine mammal density
information, and take estimation for
each of Revolution Wind’s construction
activities. NMFS has carefully
considered all information and analysis
presented by Revolution Wind as well
as all other applicable information and,
based on the best available science,
concurs that Revolution Wind’s
estimates of the types and amounts of
take for each species and stock are
complete and accurate.
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Marine Mammal Density and
Occurrence
In this section we provide the
information about the presence, density,
or group dynamics of marine mammals
that will inform the take calculations.
As noted above, depending on the
species and as described in the take
estimation section for each activity, take
estimates may be based on the Roberts
et al. (2023) density estimates, marine
mammal monitoring results from HRG
surveys, or average group sizes.
Habitat-based density models
produced by the Duke University
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Marine Geospatial Ecology Laboratory
and the Marine-life Data and Analysis
Team, based on the best available
marine mammal data from 1992–2022
obtained in a collaboration between
Duke University, the Northeast Regional
Planning Body, the University of North
Carolina Wilmington, the Virginia
Aquarium and Marine Science Center,
and NOAA (Roberts et al., 2016a, 2016b,
2017, 2018, 2020, 2021a, 2021b, 2023),
represent the best available information
regarding marine mammal densities in
the Project Area. More recently, these
data have been updated with new
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D animal depth (meters)
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modeling results and include density
estimates for pinnipeds (Roberts et al.,
2016b, 2017, 2018, 2023). Density data
are subdivided into five separate raster
data layers for each species, including:
Abundance (density), 95 percent
Confidence Interval of Abundance, 5
percent Confidence Interval of
Abundance, Standard Error of
Abundance, and Coefficient of Variation
of Abundance.
Revolution Wind’s initial densities
and take estimates were included in the
ITA application that was considered
Adequate & Complete on February 28,
2022, in line with NMFS’ standard ITA
guidance (https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/applyincidental-take-authorization).
However, on June 20, 2022, the Duke
Marine Geospatial Ecology Laboratory
released a new, and more
comprehensive, set of marine mammal
density models for the area along the
East Coast of the United States (Roberts
et al., 2023). The differences between
the new density data and the older data
necessitated the use of updated marine
mammal densities and, subsequently,
revised marine mammal take estimates.
This information was provided to NMFS
as a memo (referred to as the Revised
Density and Take Estimate Memo) on
August 19, 2022 after continued
discussion between Revolution Wind
and NMFS and NMFS has considered it
in this analysis. The Revised Density
and Take Estimate Memo was made
public on NMFS’ website (https://
www.fisheries.noaa.gov/action/
incidental-take-authorizationrevolution-wind-llc-constructionrevolution-wind-energy) on August 26,
2022.
Immediately below, we describe
observational data from monitoring
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reports and average group size
information, both of which are
appropriate to inform take estimates for
certain activities or species in lieu of
density estimates. As noted above, the
density and occurrence information
type resulting in the highest take
estimate was used, and the explanation
and results for each activity are
described in the specific activity subsections in the Modeling and Take
Estimation section.
For some species, observational data
from PSOs aboard HRG and
geotechnical (GT) survey vessels
indicate that the density-based exposure
estimates may be insufficient to account
for the number of individuals of a
species that may be encountered during
the planned activities. PSO data from
HRG and GT surveys conducted in and
near the Project Area from October 2018
through February 2021 (AIS-Inc., 2019;
Bennett, 2021; Stevens et al., 2021;
Stevens and Mills, 2021) were analyzed
to determine the average number of
individuals of each species observed per
vessel day. For each species, the total
number of individuals observed
(including the ‘‘proportion of
unidentified individuals’’) was divided
by the number of vessel days during
which observations were conducted in
2018–2021 HRG surveys (407 vessel
days) to calculate the number of
individuals observed per vessel day, as
shown in the final columns of Tables 7a
and 7b in the Updated Density and Take
Estimation Memo.
For other less-common species, the
predicted densities from Roberts et al.
(2023) are very low and the resulting
density-based exposure estimate is less
than a single animal or a typical group
size for the species. In such cases, the
mean group size was considered as an
alternative to the density-based or PSO
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data-based take estimates to account for
potential impacts on a group during an
activity. Mean group sizes for each
species were calculated from recent
aerial and/or vessel-based surveys as
shown in Table 7.
The estimated monthly density of
seals provided in Roberts et al. (2023)
includes all seal species present in the
region as a single guild. To split the
resulting ‘‘seal’’ density-based take
estimate by species (harbor and gray
seals), the estimate was multiplied by
the proportion of the combined
abundance attributable to each species.
In the proposed rule, seal take estimates
were previously calculated by scaling
the exposure estimates derived from a
single ‘‘seal’’ guild density using
proportions calculated from the rangewide abundance values in the NMFS
stock assessment reports (87 FR 79072,
December 23, 2022). To more accurately
estimate take for each species for all
activities in the final rule, Revolution
Wind instead scaled the single seal
guild take estimates using proportions
calculated from the relative occurrence
of each species reported in PSO
monitoring reports for HRG surveys
conducted in the Project Area from
2018–2021 (AIS-Inc., 2019; Bennett,
2021; Stevens et al., 2021; Stevens and
Mills, 2021) and more recent data
collected during construction of the
South Fork Wind Farm in 2023 (South
Fork Wind 2023, unpublished data). In
the combined dataset, there were 62 seal
sightings recorded to the species level.
Of those, 17 individuals were harbor
seals (0.27 or 27 percent) and 45 were
gray seals (0.73 or 73 percent).
Revolution Wind used these proportions
to recalculate the species-specific seal
take shown in Tables 12, 16, 20, 25, and
26.
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72599
Table 7 --Average Marine Mammal Species Group Sizes Used in Take Estimate
Calculations
Species
Individuals
Sightings
Mean Group Size
Source
North Atlantic
Right Whale*
145
60
2.4
Kraus et al. (2016)
Blue Whale*
3
3
1.0
Palka et al. (2017)
Fin Whale*
155
86
1.8
Kraus et al. (2016)
Humpback Whale
160
82
2.0
Kraus et al. (2016)
Minke Whale
103
83
1.2
Kraus et al. (2016)
Sei Whale*
41
25
1.6
Kraus et al. (2016)
Sperm Whale*
208
138
1.5
Palka et al. (2017)
Atlantic Spotted
Dolphin
1334
46
29.0
Palka et al. (2017)
Atlantic WhiteSided Dolphin
223
8
27.9
Kraus et al. (2016)
Bottlenose
Dolphin
259
33
7.8
Kraus et al. (2016)
Common Dolphin
2896
83
34.9
Kraus et al. (2016)
Pilot Whales
117
14
8.4
Kraus et al. (2016)
Risso's Dolphin
1215
224
5.4
Palka et al. (2017)
Harbor Porpoise
121
45
2.7
Kraus et al. (2016)
201
144
1.4
Palka et al. (2017)
(Harbor and Gray)
* Denotes species listed under the Endangered Species Act.
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The estimated exposure and take
tables for each activity present the
density-based exposure estimates, PSOdate derived take estimate, and mean
group size for each species. The number
of takes by Level B harassment
Revolution Wind requested and NMFS
authorizes is based on the largest of
these three values. As mentioned
previously, the amount of take by Level
A harassment authorized is based
strictly on density-based exposure
modeling results, rounded up to the
nearest whole number or group size, as
appropriate. As described in the
Comments and Responses section and
based on specific recommendations by
the Commission during the 45-day
public comment period, NMFS is
authorizing additional take for a subset
of species for particular activities.
Details are included in the following
activity-specific sections.
Modeling and Take Estimation
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Revolution Wind estimated potential
density-based exposures in two separate
ways, depending on the activity. For
WTG and OSS monopile foundation
installation, sophisticated sound and
animal movement modeling was
conducted to more accurately account
for the movement and behavior of
marine mammals and their exposure to
the underwater sound fields produced
during impact pile driving, as described
below. For landfall construction
activities, HRG surveys, and in-situ
UXO/MEC disposal (i.e., detonation),
takes were estimated by multiplying the
expected densities of marine mammals
in the activity area(s) by the area of
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water likely to be ensonified above
harassment threshold levels in a single
day (24-hour period). The result was
then multiplied by the number of days
on which the activity is expected to
occur, resulting in a density-based
exposure estimate for each activity. In
addition to the sophisticated modeling
conducted for WTG and OSS monopile
foundation installation, this method was
used to produce a take estimate for each
species for comparison with the
exposure-based estimate, PSO-data
estimate, and group size. Again, in some
cases, these results directly inform the
take estimates while, in other cases,
adjustments are made based on
monitoring results or average group size.
Below, we describe, in detail, the
approach used to estimate take, in
consideration of the acoustic thresholds
and appropriate marine mammal
density and occurrence information
described above for each of the four
different activities (WTG/OSS
foundation installation, UXO/MEC
detonation, landfall construction
activities, and HRG surveys). The
activity-specific exposure estimates (as
relevant to the analysis) and activityspecific take estimates are also
presented, alongside the combined
totals annually, across the entire 5-year
project, and as the maximum take of
marine mammals that could occur
within any 1 year.
WTG and OSS Monopile Foundation
Installation
Here, for WTG and OSS monopile
foundation installation, we provide
summary descriptions of the modeling
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methodology used to predict sound
levels generated from the Project with
respect to harassment thresholds and
potential exposures using animal
movement, the density and/or
occurrence information used to support
the take estimates for this activity, and
the resulting acoustic and exposure
ranges, exposures, and authorized takes.
Additional modeling details are
available in the proposed rule Federal
Register document (87 FR 79092,
December 23, 2022).
In this section, we present Revolution
Wind’s acoustic and exposure estimates
for installation of up to 79 WTG
foundations and 2 OSS foundations, as
requested by Revolution Wind.
The full installation parameters for
each size monopile are described below.
The two impact pile driving installation
acoustic modeling scenarios are:
(1) 7/12-m diameter WTG monopile
foundation: A total of 10,740 hammer
strikes per pile modeled over 220
minutes (3.7 hours); and,
(2) 7/15-m diameter OSS foundation:
A total of 11,564 hammer strikes per
pile modeled over 380 minutes (6.3
hours).
Representative hammering schedules
(Table 8), including increasing hammer
energy with increasing penetration
depth, were modeled because maximum
sound levels usually occur during the
last stage of impact pile driving, where
the greatest resistance is typically
encountered (Betke 2008). The
hammering schedule includes a soft
start, or a period of hammering at a
reduced hammer energy (relative to full
operating capacity).
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Table 8 -- Hammer Ener!!V Schedules for Monopile Installation Used in Source Modeling 1
Monopile foundations (7/12-m diameter)
OSS Foundations (7/15- m diameter)
Hammer: IHC S-4000
Hammer: IHC S-4000
Strike Count
Pile
Penetration
Depth (m)
Energy Level
(kilojoule, kJ)
Strike Count
Pile
Penetration
Depth
1,000
1,705
0-6
1,000
954
0-5
2,000
3,590
6-24
2,000
2,944
5-17
3,000
2,384
24-36
3,000
4,899
17-36
4,000
3,061
36-50
4,000
2,766
36-50
Total:
10,740
50
Total:
11,563
50
Energy Level
(kilojoule, kJ)
Revolution Wind will install
monopiles vertically to a maximum
penetration depth of 50 m; therefore, the
model includes this assumption. While
pile penetration depth among the
foundation positions might vary
slightly, this value was chosen as a
reasonable penetration depth for the
purposes of acoustic modeling based on
Revolution Wind’s engineering designs.
All modeling was performed assuming
that only one pile is driven at a time
(i.e., Revolution Wind will not conduct
concurrent monopile installations), up
to three WTG foundations will be
installed per day, and no more than one
OSS foundation will be installed per
day.
Sound fields produced during impact
pile driving were modeled by first
characterizing the sound signal
produced during pile driving using the
industry standard GRLWEAP (wave
equation analysis of pile driving) model
and JASCO Applied Sciences’ (JASCO)
Pile Driving Source Model (PDSM). We
provide a summary of the modelling
effort below but the full JASCO
modeling report can be found in Section
6 and Appendix A of Revolution Wind’s
ITA application (https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-ocean-
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wind-lcc-construction-revolution-windwind-energy-facility).
Underwater sound propagation (i.e.,
transmission loss) as a function of range
from each source was modeled using
JASCO’s Marine Operations Noise
Model (MONM) for multiple
propagation radials centered at the
source to yield three-dimensional (3D)
transmission loss fields in the
surrounding area. The MONM computes
received per-pulse SEL for directional
sources at specified depths.
MONM uses two separate models to
estimate transmission loss. At
frequencies less than 2 kHz, MONM
computes acoustic propagation via a
wide-angle parabolic equation (PE)
solution to the acoustic wave equation
based on a version of the U.S. Naval
Research Laboratory’s Range-dependent
Acoustic Model (RAM) modified to
account for an elastic seabed. MONM–
RAM incorporates bathymetry,
underwater sound speed as a function of
depth, and a geo-acoustic profile based
on seafloor composition, and accounts
for source horizontal directivity. The PE
method has been extensively
benchmarked and is widely employed
in the underwater acoustics community,
and MONM–RAM’s predictions have
been validated against experimental
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data in several underwater acoustic
measurement programs conducted by
JASCO. At frequencies greater than 2
kHz, MONM accounts for increased
sound attenuation due to volume
absorption at higher frequencies with
the widely used BELLHOP Gaussian
beam ray-trace propagation model. Both
propagation models account for full
exposure from a direct acoustic wave, as
well as exposure from acoustic wave
reflections and refractions (i.e., multipath arrivals at the receiver).
Two WTG and three OSS locations
within the Lease Area were selected for
acoustic modeling to provide
representative propagation conditions
and sound fields (see Figure 2 in Ku¨sel
et al., 2021). The two WTG locations
were selected to represent the relatively
shallow (36.8 m) northwest section of
the Lease Area to the somewhat deeper
(41.3 m) southeast section. The three
potential OSS locations (of which only
two will be used to install the two OSS
foundations) selected occupy similar
water depths (33.7, 34.2, and 34.4 m).
The acoustic propagation fields applied
to exposure modeling (described below)
were conservatively based on the WTG
(1 of 2) and OSS (1 of 3) locations
resulting in the largest fields.
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The model also incorporated two
different sound velocity profiles related
to in-situ measurements of temperature,
salinity, and pressure within the water
column to account for variations in the
acoustic propagation conditions
between summer (May–November) and
winter (December only).
Next, Revolution Wind modeled the
sound field produced during impact
pile driving by incorporating the results
of the source level modeling into an
acoustic propagation model. The sound
propagation model incorporated sitespecific environmental data that
considers bathymetry, sound speed in
the water column, and seabed geoacoustics in the construction area.
Revolution Wind estimated both
acoustic ranges and exposure ranges.
Acoustic ranges represent the distance
to a harassment threshold based on
sound propagation through the
environment (i.e., independent of any
receiver) while exposure range
represents the distance at which an
animal can accumulate enough energy
to exceed a Level A harassment
threshold in consideration of how it
moves through the environment (i.e.,
using movement modeling). In both
cases, the sound level estimates are
calculated from 3D sound fields and
then, at each horizontal sampling range,
the maximum received level that occurs
within the water column is used as the
received level at that range. These
maximum-over-depth (Rmax) values are
then compared to predetermined
threshold levels to determine acoustic
and exposure ranges to Level A
harassment and Level B harassment
zone isopleths. However, the ranges to
a threshold typically differ among radii
from a source, and might not be
continuous along a radii because sound
levels may drop below threshold at
some ranges and then exceed threshold
at farther ranges. To minimize the
influence of these inconsistencies, 5
percent of the farthest such footprints
were excluded from the model data. The
resulting range, R95%, was chosen to
identify the area over which marine
mammals may be exposed above a given
threshold, because, regardless of the
shape of the maximum-over-depth
footprint, the predicted range
encompasses at least 95 percent of the
horizontal area that would be exposed
to sound at or above the specified
threshold. The difference between Rmax
and R95% depends on the source
directivity and the heterogeneity of the
acoustic environment. R95% excludes
ends of protruding areas or small
isolated acoustic foci not representative
of the nominal ensonified zone. For
purposes of calculating Level A
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harassment take, Revolution Wind
applied exposure R95% ranges, not
acoustic R95% ranges, to estimate take
and determine mitigation distances for
the reasons described below.
In order to best evaluate the SELcum
harassment thresholds for PTS, it is
necessary to consider animal movement,
as the results are based on how sound
moves through the environment
between the source and the receiver.
Applying animal movement and
behavior within the modeled noise
fields provides the exposure range,
which allows for a more realistic
indication of the distances at which PTS
acoustic thresholds are reached that
considers the accumulation of sound
over different durations (note that in all
cases the distance to the peak threshold
is less than the SEL-based threshold).
As described in Section 2.6 of
Appendix A of Revolution Wind’s ITA
application, for modeled animals that
have received enough acoustic energy to
exceed a given Level A harassment
threshold, the exposure range for each
animal is defined as the closest point of
approach (CPA) to the source made by
that animal while it moved throughout
the modeled sound field, accumulating
received acoustic energy. The resulting
exposure range for each species is the
95th percentile of the CPA distances for
all animals that exceeded threshold
levels for that species (termed the 95
percent exposure range (ER95%)). The
ER95% ranges are species-specific rather
than categorized only by any functional
hearing group, which allows for the
incorporation of more species-specific
biological parameters (e.g., dive
durations, swim speeds, etc.) for
assessing the impact ranges into the
model. Furthermore, because these
ER95% ranges are species-specific, they
can be used to develop mitigation
monitoring or shutdown zones.
Sound exposure modeling, like
JASCO’s JASMINE, involves the use of
a 3D computer simulation in which
simulated animals (animats) move
through the modeled marine
environment over time in ways that are
defined by the known or assumed
movement patterns for each species
derived from visual observation, animal
borne tag, or other similar studies. The
predicted 3D sound fields (i.e., the
output of the acoustic modeling process
described earlier) are sampled by
animats using movement rules derived
from animal observations. The output of
the simulation is the exposure history
for each animat within the simulation.
The precise location of animats (and
their pathways) are not known prior to
a project, therefore, a repeated random
sampling technique (Monte Carlo) is
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used to estimate exposure probability
with many animats and randomized
starting positions. The probability of an
animat starting out in or transitioning
into a given behavioral state can be
defined in terms of the animat’s current
behavioral state, depth, and the time of
day. In addition, each travel parameter
and behavioral state has a termination
function that governs how long the
parameter value or overall behavioral
state persists in the simulation.
The sound field produced by the
activity, in this case impact pile driving,
is then added to the modeling
environment at the location and for the
duration of time anticipated for one or
more pile installations. At each time
step in the simulation, each animat
records the received sound levels at its
location resulting in a sound exposure
history for each animat. These exposure
histories are then analyzed to determine
whether and how many animats (i.e.,
simulated animals) were exposed above
harassment threshold levels. Finally, the
density of animats used in the modeling
environment, which is usually much
higher than the actual density of marine
mammals in the activity area so that the
results are more statistically robust, is
compared to the actual density of
marine mammals anticipated to be in or
near the Lease Area.
The output of the simulation is the
exposure history for each animat within
the simulation, and the combined
history of all animats gives a probability
density function of exposure during the
project. Scaling the probability density
function by the real-world densities for
an animal results in the mean number
of animats expected to be exposed over
the duration of the project. Due to the
probabilistic nature of the process,
fractions of animats may be predicted to
exceed threshold. If, for example, 0.1
animats are predicted to exceed
threshold in the model, that is
interpreted as a 10-percent chance that
one animat will exceed a relevant
threshold during the project, or
equivalently, if the simulation were rerun 10 times, 1 of the 10 simulations
would result in an animat exceeding the
threshold. Similarly, a mean number
prediction of 33.11 animats can be
interpreted as re-running the simulation
where the number of animats exceeding
the threshold may differ in each
simulation but the mean number of
animats over all of the simulations is
33.11. A portion of an individual marine
mammal cannot be taken during a
project, so it is common practice to
round mean number animat exposure
values to integers using standard
rounding methods. However, for lowprobability events it is more precise to
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provide the actual values. For this
reason, mean number values are not
rounded. A more detailed description of
this method is available in Appendix A
of Revolution Wind’s application.
For the Project, JASMINE animal
movement model was used to predict
both the ER95% ranges and the
probability of marine mammal exposure
to impact pile driving sound generated
by monopile installation. Sound fields
generated by the acoustic propagation
modeling described above were input
into the JASMINE model, and animats
were programmed based on the best
available information to ‘‘behave’’ in
ways that reflect the behaviors of the 16
marine mammal species expected to
occur in or near the Lease Area. The
various parameters for forecasting
realistic marine mammal behaviors (e.g.,
diving, foraging, surface times, etc.) are
determined based on the available
literature (e.g., tagging studies), or by
extrapolating from a species expected to
behave similarly (e.g., fin and sei
whales). More information regarding
modeling parameters can be found
Appendix A of the ITA application.
The mean numbers of animats that
may be exposed to noise exceeding
acoustic thresholds were calculated
based on installation of 1, 2, or 3 WTG
foundations and, separately, 1 or 2 OSS
foundations in 24 hours. Animats were
modeled to move throughout the 3D
sound fields produced by each
construction schedule for the entire
construction period. For PTS exposures,
both SPLpeak and SPLcum were calculated
for each species based on the
corresponding acoustic criteria. Once an
animat is taken within a 24-hour period,
the model does not allow it to be taken
a second time in that same period but
rather resets the 24-hour period on a
sliding scale across 7 days of exposure.
For Level A harassment, an individual
animat’s exposure levels are summed
over that 24-hour period to determine
its total received energy, and then
compared to the appropriate PTS
threshold. Takes by behavioral
disturbance are predicted when an
animat is modeled to come within the
area ensonified by sound levels
exceeding the corresponding Level B
harassment thresholds. Please note that
animal aversion was not incorporated
into the JASMINE model runs that were
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the basis for the take estimate for any
species. See Appendix A of the ITA
application for more details on the
JASMINE modeling methodology.
Revolution Wind will employ a noise
abatement system during all impact pile
driving of monopiles. Noise abatement
systems, such as bubble curtains, are
sometimes used to decrease the sound
levels radiated from a source. In
modeling the sound fields produced by
Revolution Wind’s planned activities,
hypothetical broadband attenuation
levels of 0 dB, 6 dB, 10 dB, 12 dB, 15
dB, and 20 dB for were modeled to
gauge effects on the ranges to threshold
isopleths given these levels of
attenuation. Although six attenuation
levels were evaluated, Revolution Wind
anticipates that the noise abatement
system ultimately chosen will be
capable of reliably reducing source
levels by 10 dB; therefore, modeling
results assuming 10-dB attenuation are
carried forward in this analysis.
Additional information related to
Revolution Wind’s use of noise
abatement systems is provided in the
Mitigation and Monitoring and
Reporting sections.
As described more generally above,
updated Roberts et al. (2023) habitatbased marine mammal density models
provided the densities used to inform
and scale the marine mammal exposure
estimates produced by the JASMINE
model. For monopile installation,
specifically, mean monthly densities for
all species were calculated by first
selecting density data from 5 x 5 km (3.1
x 3.1 mile) grid cells (Roberts et al.,
2016; Roberts et al. (2023) both within
the Lease Area and out to 10 km (6.2 mi)
from the perimeter of the Lease Area.
This is a reduction from the 50 km (31
mi) perimeter used in the ITR
application. The relatively large area
selected for density estimation
encompasses and extends
approximately to the largest estimated
exposure acoustic range (ER95%) to the
isopleth corresponding to Level B
harassment, assuming no noise
attenuation) (see Tables 19 and 20 of the
ITA application) for all hearing groups
using the unweighted threshold of 160
dB re 1 mPa (rms). Please see Figure 6
in Revolution Wind’s Updated Density
and Take Estimation Memo for an
example of a density map showing
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Roberts and Halpin (2022) density grid
cells overlaid on a map of the Lease
Area.
Although there is some uncertainty in
the monopile foundation installation
schedule, Revolution Wind anticipates
that it could occur over approximately
1 month provided good weather
conditions and no unexpected delays.
The exposure calculations were thus
conducted using marine mammal
densities from the month with the
highest average density estimate for
each species, based on the assumption
that all 79 WTG and 2 OSS foundations
will be installed in the highest density
month (78 WTG monopile (3 per day for
26 days), 1 WTG monopile (1 per day
for 1 day) and 2 OSS monopile
foundations (1 per day for 2 days)). Due
to differences in the seasonal migration
and occurrence patterns, the month
selected differs for each species. The
estimated monthly density of seals
provided in Roberts et al. (2023)
includes all seal species present in the
region as a single guild. To split the
resulting ‘‘seal’’ density-based exposure
estimate by species (harbor and gray
seals), the estimate was multiplied by
the proportion of the combined
abundance attributable to each species.
Specifically, the SAR Nbest abundance
estimates (Hayes et al., 2023) for the two
species (gray seal = 27,300, harbor seal
= 61,336; total = 88,636) were summed
and divided the total by the estimate for
each species to get the proportion of the
total for each species (gray seal = 0.308;
harbor seal = 0.692). The total estimated
exposure value based on the pooled seal
density provided by Roberts et al. (2023)
was then multiplied by these
proportions to get the species-specific
exposure estimates. Monthly densities
were unavailable for pilot whales, so the
annual mean density was used instead.
The blue whale density was considered
too low to be carried into exposure
estimation so the amount of blue whale
take Revolution Wind requested (see
Estimated Take) is instead based on
group size. Table 9 shows the maximum
average monthly densities by species
that were incorporated in exposure
modeling to obtain conservative
exposure estimates.
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Table 9 -- Maximum Monthly Marine Mammal Densities (Animals Per Km 2) Within and
Around the Lease Area Out To 10 Km (6.2 Mi)
Marine Mammal Species
North Atlantic right whale
Blue whale
0.0026 (December)
1
1•2
-
0.0029 (July)
1
Humpback whale
0.0021 (May)
Minke whale
0.0174 (May)
Sei whale
0.0013 (May)
1
Sperm whale 1
0.0004 (August)
Atlantic spotted dolphin
0.0005 (October)
Atlantic white-sided dolphin
0.0174 (May)
Bottlenose dolphin
0.0091 (August)
Common dolphin
0.0743 (December)
Pilot whales 3
0.0007 (annual)
Risso's dolphin
0.0017 (December)
Harbor porpoise
0.0515 (December)
Seals (Harbor and Gray)
0.2225 (May)
1 - Listed as Endangered under the Endangered Species Act.
2 - Exposure modeling for the blue whale was not conducted because impacts to those species approach zero due to
their low predicted densities in the Project; therefore, were excluded from all quantitative analyses and tables based
on modeling results.
3 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled density
provided represents both species. However, short-finned pilot whales are not expected to occur in the Project Area,
therefore, NMFS assumes that any take of pilot whales would be oflong-finned pilot whales.
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For the exposure analysis, it was
assumed that a maximum of three WTG
monopile foundations may be driven in
24 hours, presuming installations are
permitted to continue in darkness and
would occur in the highest density
month for any species. It is unlikely that
this installation rate will be consistently
possible throughout the WTG
foundation construction phase, but this
scenario was considered to have the
greatest potential impact on marine
mammals and was, therefore, carried
forward into take estimation. Exposure
ranges (ER95≠) to the Level A SELcum
thresholds and Level B SPLrms threshold
resulting from animal exposure
modeling for installation of one (for
comparative purposes) or three
(assumed for exposure modeling) WTG
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foundations and one OSS foundation
per day (assumed for exposure
modeling), assuming 10-dB of
attenuation, for the summer (when
Revolution Wind intends to install the
majority of monopile foundations) and
winter are shown in Tables 10 and 11.
Exposure ranges were also modeled
assuming installation of two WTG
foundations per day (not shown here);
see Appendix A of Revolution Wind’s
ITA application for those results.
Although only allowed with NMFS
approval in the case of unforeseen
circumstances, any activities conducted
in the winter (December) will utilize
monitoring and mitigation measures
based on the exposure ranges (ER95≠)
calculated using winter sound speed
profile, which are longer than ER95≠
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72605
modeled using a summer sound speed
profile. Revolution Wind does not plan
to install two OSS foundations in a
single day due to the distance between
the OSS locations coupled with the
longer installation time for the larger
diameter monopile (7/15-m versus 7/12m diameter WTG monopile); therefore,
modeling results are provided for
installation of a single OSS foundation
per day. Meaningful differences (greater
than 500 m) between species within the
same hearing group occurred for lowfrequency cetaceans, so exposure ranges
are shown separately for those species
(Tables 10 and 11). For mid-frequency
cetaceans and pinnipeds, the largest
value among the species in the hearing
group was selected to be included in
Tables 10 and 11.
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Table 10 -- Exposure Ranges 1 (ER9s%), in Kilometers, to Level A (SELcum) Thresholds for
Installation of One and Three 7/12-m WTG Monopiles (10,740 Strikes) and One 7/15-m
OSS Monopile (11,564 Strikes) During Summer and Winter Assuming 10-dB Attenuation
Hearing
Group
SELcum
Threshold
(dB re 1
µPa 2 ·s)
WTG Monopile (1
pile/day)
WTG Monopile (3
piles/day)
OSS Monopile (1
pile/day)
Summer
Winter
Summer
Winter
Summer
Winter
Lowfrequency
183
North
Atlantic
Right
Whale*
-
1.85
3.42
1.93
3.97
1.25
2.66
Fin
Whale*
-
2.15
3.53
2.23
4.38
1.57
2.68
Humpback
Whale
-
2.46
4.88
2.66
6.29
1.79
3.56
Minke
Whale
-
1.32
3.03
1.51
3.45
0.94
1.81
Sei
Whale*
-
1.42
2.82
1.81
3.67
1.22
2.05
Midfrequency
185
0
0.01
0.02
0.02
0
0
Highfrequency
155
1.28
2.29
1.34
2.33
0.83
1.25
Phocid
pinnipeds
185
0.6
0.73
0.44
0.81
0.37
0.37
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Table 11 -- Exposure Ranges 1 (ER9s%), in Kilometers, to the Level B (SPLrms)
Isopleth for Installation of One and Three 7/12-m WTG Monopiles or One 7/15-m
OSS Monopile During Summer and Winter Assuming 10-dB Attenuation
Hearing
Group
WTG Monopile (1 pile/day)
WTG Monopile (3
piles/day)
OSS Monopile (1 pile/day)
Summer
Winter
Summer
Winter
Summer
Winter
North
Atlantic
Right
Whale*
3.70
4.06
3.67
3.95
3.51
3.75
Fin Whale*
3.72
4.05
3.76
4.09
3.62
3.88
Humpback
Whale
3.75
4.15
3.72
4.11
3.61
3.87
Minke
Whale
3.71
4.07
3.63
4.07
3.56
3.84
Sei Whale*
3.66
4.11
3.67
4.02
3.58
3.92
Midfrequency
3.69
4.07
3.67
4.03
3.63
3.81
Highfrequency
3.71
4.00
3.62
4.03
3.50
3.91
Phocid
pinnipeds
3.79
4.21
3.80
4.23
3.75
4.02
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As mentioned previously, acoustic
ranges (R95%) were also modeled. These
thresholds were used to define the Level
B harassment threshold (160 dB rms) for
all species (see Mitigation) for WTG and
OSS foundation installation in summer
and winter (in parentheses):
• WTG monopile: 3,833 m (4,271 m)
• OSS monopile: 4,100 m (4,698 m)
Finally, the results of marine mammal
exposure modeling, assuming 10-dB
attenuation, for installation of 79 WTG
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and 2 OSS monopile foundations are
shown in columns 2 and 3 of Table 12;
these values assume that all 81
foundations (79 WTGs and 2 OSSs) will
be installed in a single year and form
the basis for the amount of take
requested by Revolution Wind and
authorized by NMFS. Columns 4 and 5
show what the take estimates would be
if the PSO data or average group size,
respectively, were used to inform the
take by Level B harassment in lieu of the
density and exposure modeling. The last
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two columns represent the take, by
Level A harassment (PTS) and Level B
harassment, respectively, NMFS is
authorizing, The Level A exposure
estimates shown in Table 12 are based
only on the Level A SELcum threshold
and associated exposure ranges (Table
10), as the very short distances to
isopleths based on the Level A SPLpk
thresholds (Table 14 in the ITA
application) resulted in no meaningful
likelihood of take from exposure to
those sound levels. The Level B
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* Listed as Endangered under the Endangered Species Act.
1 - Exposure ranges are a result of animal movement modeling.
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exposure estimates shown in Table 12
are based on the exposure ranges
resulting from sound exposure modeling
using the unweighted 160 dB SPLrms
threshold (Table 11). For each species,
the number of takes, by Level B
harassment, in the last column of Table
12 is based on the highest of the three
estimates shown in columns 3
(Exposure Modeling Take Estimates—
Level B), 4 (PSO Date Take Estimate),
and 5 (Mean Group Size).
Revolution Wind requested, and
NMFS proposed to authorize, Level A
harassment (PTS) take for humpback
whales (n=7) incidental to foundation
installation because, for this species
only, the shutdown zone is smaller
(summer = 2,300 m; winter = 4,400 m)
than the PTS Level A harassment ER95%
distance (summer = 2,660 m; winter =
6,290 m), thus humpback whales could
be exposed to noise levels capable of
inducing PTS before pile driving is
shutdown. However, based on
consideration of a comment from the
Commission, NMFS is also authorizing
a portion of the model-estimated Level
A harassment (PTS) take of additional
species. Revolution Wind must monitor
extensive zones prior to and during pile
driving during both daytime and
nighttime pile driving, if it occurs.
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Although the combination of PSOs
using promising new alternative visual
monitoring equipment and PAM
operators conducting extensive acoustic
monitoring is expected to facilitate
detection of marine mammals in the
clearance and shutdown zones during
daytime and nighttime (if it occurs) pile
installation, it’s possible that a marine
mammal may enter the shutdown zone
undetected. This situation is more likely
for species that are challenging to detect
(particularly in higher sea states),
including minke whales, harbor
porpoises, gray seals, and harbor seals.
As indicated in the proposed rule,
modeling resulted in the following
number of Level A harassment (PTS)
takes incidental to foundation
installation for the indicated species: 7
fin whales, 3 sei whales, 61 minke
whales, 321 harbor porpoises, 5 gray
seals, and 32 harbor seals. Although
some of these species are more difficult
to detect, particularly at the farthest
extent of the shutdown zones (e.g.,
minke whale: summer = 2,300 m, winter
= 4,400 m; harbor porpoise: summer =
1,400 m, winter = 2,400 m), NMFS
considers it unlikely that 7 fin whales,
61 minke whales, 321 harbor porpoises,
and 32 harbor seals would enter the
Level A harassment (PTS) zone
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undetected and remain there for an
extended duration, given the extensive
monitoring and mitigation (e.g., large
clearance zones) NMFS is requiring
Revolution Wind to implement. Thus,
for these species, NMFS is authorizing
20 percent of the model-estimated Level
A harassment (PTS) take proposed for
authorization (rounded up to the nearest
whole number) incidental to foundation
installation, which is equal to 2 fin
whales, 13 minke whales, 65 harbor
porpoises, and 7 harbor seals.
Additionally, NMFS is authorizing take,
by Level A harassment, of 7 humpback
whales (included in the proposed rule),
3 sei whales, and 5 gray seals, all of
which are based solely on the densitybased exposure estimate resulting from
animal movement modeling presented
in the proposed rule. We did not apply
a 20 percent reduction to density-based
exposure estimates for sei whales and
harbor seals given the estimates are low
in number and similar to a group size.
Although model estimated, Level A
harassment of 18 North Atlantic right
whales is not anticipated or authorized,
given the extensive mitigation and
monitoring measures prescribed to
avoid this level of harassment for North
Atlantic right whales.
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72609
Table 12 -- Estimated Take, By Level A Harassment and Level B Harassment, for
79 (7/12-m) WTG and Two (7/15-m) OSS Monopile Foundation Installations
Assumine: 10-dB Attenuation
Species
Authorized
Authorized
PSO Data
Mean Group
Annual Level Annual Level
Take Estimate
Size
A Take
B Take
17.5
21.6
1.4
2.4
0
22
NIA
6.4
NIA
14.9
15.8
1.0
1.8
0
22
1
16
6.5
11.5
47.1
2.0
7
48
60.9
2.5
0.0
191.2
7.8
2.8
5.8
0.4
-
1.2
1.6
1.5
132
33
0
192
8
3
0.0
0.0
-
29.0
0
29
0.1
199.5
4.6
27.9
0
200
0.0
68.8
51.4
7.8
0
69
0.0
1,327.6
1,308.9
34.9
0
1,328
0.0
5.5
-
8.4
0
9
0.0
15.5
3.6
5.4
0
16
320.9
661.0
1.3
2.7
65 2
661
4.9
32
731.1
328.0
3.5
4.6
1.4
1.4
53
72
732
329
* Denotes species listed under the Endangered Species Act.
1 - Exposure estimates assume all piles will be installed in a single year.
2 - NMFS considers it unlikely that 7 fm whales, 61 minke whales, 321 harbor porpoises, and 32 harbor
seals would enter their respective Level A harassment (PTS) zone undetected and remain there for an
extended period of time, given the extensive monitoring and mitigation (e.g., large clearance zones) NMFS
is requiring Revolution Wind to implement. Thus, NMFS is authorizing 20 percent of the model-estimated
Level A harassment (PTS) (rounded to the nearest whole number).
3 - NMFS is authorizing take, by Level A harassment, of 3 sei whales and 5 gray seals, both of which are
based solely on the density-based exposure estimates (rounded up to the nearest whole number) resulting
from animal movement modeling. We did not apply a 20 percent reduction to density-based exposure
estimates for these species given the exposure estimates are low in number and/or similar to a group size.
4 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled
density provided represents both species. However, short-finned pilot whales are not expected to occur in
the Project Area; therefore, NMFS assumes that any take of pilot whales would be oflong-finned pilot
whales.
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North Atlantic
Right Whale*
Blue Whale*
Fin Whale*
Humpback
Whale
Minke Whale
Sei Whale*
Sperm Whale*
Atlantic
Spotted
Dolphin
Atlantic
White-Sided
Dolphin
Bottlenose
Dolphin
Common
Dolphin
Long-finned
pilot whales 4
Risso's
Dolphin
Harbor
Porpoise
Gray Seal
Harbor Seal
Exposure Modeling Take
Estimates 1
Level A
Level B
(SPLnn,)
(SPLcwn)
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UXO/MEC Detonations
To assess the impacts from UXO/MEC
detonations, JASCO conducted acoustic
modeling based on previous underwater
acoustic assessment work that was
performed jointly between NMFS and
the United States Navy. JASCO
evaluated the effects thresholds for TTS,
PTS, non-auditory injury, and mortality
based on the appropriate metrics to use
as indicators of disturbance and injury:
(1) peak pressure level; (2) SEL; and (3)
acoustic impulse. Charge weights of 2.3
kg (5.1 pounds (lbs)), 9.1 kg (20.1 lbs),
45.5 kg (100.3 lbs), 227 kg (500 lbs), and
454 kg (1,000.9 lbs), which is the largest
charge the Navy considers for the
purposes of its analyses (see the
Description of the Specified Activities
section in the proposed rule), were
modeled to determine the ranges to
mortality, gastrointestinal injury, lung
injury, PTS, and TTS thresholds. These
charge weights were modeled at four
different locations and associated water
depths in the Project Area (12 m (Site
S1), 20 m (Site S2), 30 m (Site S3), and
45 m (Site S4)). The sites were deemed
to be representative of both the RWEC
(S1 and S2) and the Lease Area (S3 and
S4).
Here, we present distances to PTS and
TTS thresholds for all UXO/MEC charge
weights. In the proposed rule, we only
described the distances to thresholds for
the largest E12 charge weight. However,
as already described, Revolution Wind
will be able to identify and mitigate at
the relevant distances for each specific
charge weight, so we have incorporated
the maximum values for each size
herein. Because of implementation of
mitigation and monitoring measures, the
potential for mortality and non-auditory
injury is low and Revolution Wind did
not request and we are not authorizing
take by mortality or non-auditory injury.
All modeling results, including
mortality and non-auditory injury, can
be found in Appendix B of the
application.
UXOs/MECs were modeled at the
locations listed below. The locations for
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these modeling sites are shown in
Figure 1 of Appendix B in Revolution
Wind’s application:
• Shallow water RWEC: Site S1; In
the channel within Narragansett Bay (12
m depth);
• Shallow water RWEC: Site S2;
Intermediate waters outside of
Narragansett Bay (20 m depth);
• Shallow water Lease Area: Site S3;
Shallower waters in the southern
portion of the Hazard Zone 2 area (30
m depth);
• Deeper water Lease Area: Site S4;
Deeper waters in northern portion of the
Hazard Zone 2 area (45 m depth).
For the RWEC, JASCO selected the
largest distances to the PTS and TTS
isopleths between S1 and S2 to carry
forward for take estimation (Tables 45
and 47 in ITA application). This same
approach was used to determine the
largest distances to these isopleths for
the Lease Area (S3 and S4; Tables 46
and 48 in ITA application). The
distances were not always consistently
larger for one site versus the other, so
the results in Tables 45 and 47 in the
ITA application represent a mixture of
S1 and S2 for the RWEC and Tables 46
and 48 represent a mixture of results for
S3 and S4 for the Lease Area. For all
species, the distance to the SEL
threshold isopleth exceeded that for the
SPL peak isopleth (Table 29 in
Appendix B of the ITA application).
Model results for all sites and all charge
weights can be found in Appendix B of
Revolution Wind’s application. Further,
Revolution Wind presented results for
both mitigated and unmitigated
scenarios in the ITA application and the
August 2022 Updated Densities and
Takes Estimation Memo; however,
Revolution Wind has committed to use
a noise abatement system capable of 10dB attenuation (minimally a double
bubble curtain) during all detonations.
As a result, the Updated Densities and
Take Estimation Memo mitigated UXO/
MEC scenario is the one carried forward
into exposure and take estimation here.
Tables 13 and 14 provide the largest
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ranges R95% among all sites (S1–S4) to
the SEL-based PTS-Onset and SELbased TTS-Onset, assuming 10-dB
attenuation. Additional information can
be found in JASCO’s UXO/MEC report
and the Revised Density and Take
Estimate Memo on NMFS’ website
(https://www.fisheries.noaa.gov/action/
incidental-take-authorizationrevolution-wind-llc-constructionrevolution-wind-energy).
NMFS notes that the more detailed
results for the mortality and nonauditory injury analysis for marine
mammals for onset gastrointestinal
injury, onset lung injury, and onset of
mortality can be found in Appendix B
of the ITA application, which can be
found on NMFS’ website. NMFS
concurs with Revolution Wind’s
analysis and neither expects nor
authorizes any non-auditory injury,
serious injury, or mortality of marine
mammals from UXO/MEC detonation.
The modeled distances to the mortality
threshold for all UXO/MECs sizes for all
animal masses are small enough that
they can be effectively monitored (i.e.,
5–353 m; see Tables 35–38 in Appendix
B of Revolution Wind’s application) and
these types of impacts avoided, given
the robust mitigation and monitoring
measures required. The modeled
distances to non-auditory injury
thresholds range from 5–648 m (see
Tables 30–34 in Appendix B of the
application). Revolution Wind will be
required to conduct extensive
monitoring using both PSOs and PAM
operators and clear an area of marine
mammals prior to detonating any UXO/
MEC. Given that Revolution Wind will
be employing multiple platforms to
visually monitor marine mammals as
well as conducting passive acoustic
monitoring, it is reasonable to assume
that marine mammals will be reliably
detected within approximately 660 m of
the UXO/MEC being detonated and
mortality or non-auditory injury is not
likely to occur.
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Marine
Mammal
Hearing
Group
2.3 kg (5.1 lbs)
9.1 kg (20.1 lbs)
45.5 kg (100.3 lbs)
227 kg (500 lbs)
454 kg (1,000.9 lbs)
Sfmt 4725
E:\FR\FM\20OCR2.SGM
Rmax
R9s%
Rn.ax
R9s%
Rmax
R9s%
Rmax
R9s%
Rn.ax
R9s%
LFC
632
552
1,230
982
2,010
1,730
3,370
2,970
4,270
3,780
MFC
<50
<50
79
75
175
156
419
337
535
461
HFC
2,100
1,820
3,020
2,590
4,400
3,900
6,130
5,400
6,960
6,200
pp
192
182
413
357
822
690
1,410
1,220
1,830
1,600
Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP= phocid pinnipeds
20OCR2
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
19:13 Oct 19, 2023
Table 13 -- SEL-based R9s% PTS-Onset Ranges, in Meters, from all Site Modeled During UXO/MEC Detonation by Charge
Weight1 Assuming 10-dB Sound Attenuation
72611
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72612
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Marine
Mammal
Hearing
Group
2.3 kg (5.1 lbs)
9.1 kg (20.1 lbs)
45.5 kg (100.3 lbs)
227 kg (500 lbs)
Rmax
R95%
Rn.ax
R95%
Rmax
R95%
Rmax
R95%
Rn.ax
R95%
LFC
3,140
2,820
5,230
4,680
8,160
7,490
11,700
10,500
13,500
11,900
MFC
535
453
910
773
1,520
1,240
2,400
2,120
2,930
2,550
HFC
6,920
6,160
8,970
8,000
11,300
10,300
14,600
12,900
15,600
14,100
pp
1,730
1,470
2,710
2,350
4,340
3,820
6,640
5,980
7,820
7,020
Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP= phocid pinnipeds
454 kg (1,000.9 lbs)
20OCR2
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
19:13 Oct 19, 2023
ER20OC23.017
Table 14 -- SEL-based R9s% TTS-Onset Ranges, in Meters, from all Site Modeled During UXO/MEC Detonation by Charge
Weight, Assuming 10-dB Sound Attenuation
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
72613
Table 15 -- Maximum of Average Monthly Marine Mammal Densities
(Individuals/km 2) Within 15 Km of the RWEC and Lease Area (May-November),
and Associated Month
RWEC
Species
Lease Area
Maximum Density
Maximum Density
Month
Maximum Density
Maximum Density
Month
North Atlantic
right whale*
0.0009
May
0.0019
May
Blue whale*
0.0000
Annual
0.0000
Annual
Fin whale*
0.0015
July
0.0029
July
Humpback whale
0.0014
May
0.0020
May
Minke whale
0.0110
May
0.0167
May
Sei whale*
0.0007
May
0.0012
May
Sperm whale*
0.0002
August
0.0004
August
Atlantic spotted
dolphin
0.0002
October
0.0007
October
Atlantic whitesided dolphin
0.0086
May
0.0175
May
Bottlenose dolphin
0.0047
July
0.0093
August
Common dolphin
0.0389
November
0.0762
September
Pilot whales 1
0.0001
Annual
0.0007
Annual
Risso's dolphin
0.0003
November
0.0006
November
Harbor porpoise
0.0218
May
0.0392
May
Grey Seal
0.0769
May
0.0692
May
Harbor Seal
0.1728
May
0.1554
May
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BILLING CODE 3510–22–C
To estimate the maximum ensonified
zones that could result from UXO/MEC
detonations, the R95% to PTS and TTS
threshold isopleths within the RWEC
(S1 and S2; Tables 47 and 47 in ITA
application), respectively, were used as
radii to calculate the area of a circle (pi
× r2 where r is the range to the threshold
level) for each marine mammal hearing
group. The results represent the largest
area potentially ensonified above
threshold levels from a single
detonation within the RWEC. The same
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Jkt 262001
method was used to calculate the
maximum ensonified area from a single
detonation in the Lease Area (S3 and
S4), based on the distances in Tables 46
and 48 in the ITA application. Again,
modeling results are presented here for
mitigated (i.e., using a noise abatement
system) detonations of UXO/MECs. The
results for unmitigated detonations can
be found Tables 44–48 in the ITA
application.
As mentioned previously, Revolution
Wind used the Duke Habitat-based
Density Models to determine species-
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specific densities for inclusion in
estimation of take incidental to UXO/
MEC detonation. To avoid detonations
of UXO/MECs during periods when
North Atlantic right whale densities are
highest in and near the Project Area,
NMFS is imposing a seasonal restriction
on detonations from December 1–April
30. For each species, Revolution Wind
selected the highest average monthly
marine mammal density among the
months of May through November
(Roberts et al. (2023)) to conservatively
estimate exposures from UXO/MEC
E:\FR\FM\20OCR2.SGM
20OCR2
ER20OC23.018
* Denotes species listed under the Endangered Species Act.
1 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled
density provided represents both species. However, short-finned pilot whales are not expected to occur in
the Project Area, thus NMFS assumes that any take of pilot whales would be oflong-finned pilot whales.
72614
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
detonation for a given species (i.e.,
assumed all 13 UXO/MECs would be
detonated in the month with the highest
average density). This approach is
similar to what was used for
determining the most appropriate
species densities for monopile
foundation installation take estimation.
Given that UXOs/MECs detonations
have the potential to occur anywhere
within the Lease Area and RWEC, a 15km (9.32 mi) perimeter was applied
around the Lease Area when selecting
density data to include in take
estimation (reduced from the 50 km (31
mi) perimeter in the ITA application)
and a 10 km (6.2 mi) perimeter was
applied to the RWEC (see Figures 12
and 13 of the Updated Density and Take
Estimation Memo). In some cases where
monthly densities were unavailable,
annual densities were used instead for
certain species (i.e., blue whales, pilot
whale spp.).
Table 15 provides those densities and
the associated months in which the
species-specific densities are highest for
the RWEC and Lease Area, respectively.
In addition to assuming all
detonations would be of the largest
charge weight, Revolution Wind
assumed six detonations would occur in
the RWEC and seven would occur in the
Lease Area. To estimate take incidental
to UXO/MEC detonations in the RWEC,
the maximum ensonified areas based on
the largest R95% to Level A harassment
(PTS) and Level B harassment (TTS)
thresholds (assuming 10-dB attenuation)
from a single detonation in the RWEC,
shown in Tables 45 and 47 in
Revolution Wind’s ITA application,
were multiplied by six (the estimated
number of UXOs/MECs that may be
encountered in the RWEC) and then
multiplied by the marine mammal
densities shown in Table 15, resulting
in the take estimates in Table 16. For the
Lease Area, the same method was
applied, using the maximum ensonified
areas in Tables 46 and 48 in the ITA
application multiplied by seven (the
estimated number of UXOs/MECs that
may be encountered in the Lease Area)
and then multiplied by the marine
mammal densities shown in Table 15,
resulting in the values shown in the
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19:13 Oct 19, 2023
Jkt 262001
columns for the Lease Area (with the
heading ‘‘LA’’) of Table 16. Again,
Revolution Wind based the amount of
requested take on the number of
exposures estimated assuming 10-dB
attenuation using a noise abatement
system because they believe consistent,
successful implementation of this
mitigation measure will be possible.
Revolution Wind’s mitigation and
monitoring measures are intended to
avoid Level A take of most species and
the extent and severity of Level B
harassment (see Mitigation and
Monitoring and Reporting sections
below). However, given the relatively
large distances to the high-frequency
cetacean Level A harassment (PTS,
SELcum) isopleth applicable to harbor
porpoises, and the difficulty detecting
this species at sea, Revolution Wind
requested and NMFS authorizes take by
Level A harassment of 49 harbor
porpoises. Similarly, seals are difficult
to detect at longer ranges and, although
the distance to the phocid hearing group
SEL PTS threshold is not as large as that
for high-frequency cetaceans, it may not
be possible to detect all seals within the
threshold distances even with the
required monitoring measures.
Therefore, in addition to the requested
Level B harassment in Table 16,
Revolution Wind requested Level A
harassment of three gray seals and five
harbor seals. For the proposed rule,
NMFS adjusted the amount of take
proposed for authorization to 7 gray
seals and 16 harbor seals to correct for
Revolution Wind’s arithmetic error in
the application when summing the
density-based Level A exposures for the
Lease Area and RWEC for each species.
As described in the Comments and
Responses section in the final rule,
NMFS is also authorizing the amount of
model-estimated Level A harassment
(PTS) take (increased to group size
where applicable) incidental to UXO/
MEC detonations: 2 fin whales, 2
humpback whales, 8 minke whales, 35
common dolphins, 8 bottlenose
dolphins (Western North Atlantic
offshore stock), and 28 Atlantic whitesided dolphins. In making the decision
to authorize the take indicated above,
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NMFS considered the Commission’s
recommendation, the challenge of
monitoring the large mitigation and
monitoring zone size (particularly for
heavier charge weight UXOs/MECs)
required for this activity, difficulty
visually detecting smaller, cryptic
marine mammals (e.g., minke whales,
dolphin spp.) at the furthest extent of
the clearance zones, and that the
authorized take numbers do not fully
account for the effectiveness of the
required mitigation measures other than
the 10-dB noise attenuation
incorporated in acoustic and exposure
modeling.
As described for WTG and OSS
installation, the Commission suggested
that, given the frequency of common
dolphin occurrence in the Project Area,
NMFS should authorize an increased
(relative to the amount included in the
proposed rule) number of common
dolphin takes, by Level B harassment,
for all activities. Before we addressed
the Commission’s suggestion, we
corrected the following transcription
errors included in the proposed rule: the
proposed take, by Level B harassment,
should have been 14, not 9, bottlenose
dolphins and 387, not 211, common
dolphins. NMFS concurs with the
Commission’s suggestion and has
included 245 Level B harassment takes
of common dolphins incidental to UXO/
MEC detonations (in addition to the
corrected number (n=387) of estimated
Level B harassment takes). Because
Revolution Wind did not specify the
time of year for this activity, it’s equally
possible that detonations could occur
when common dolphin densities are
highest or lowest in the Project Area. To
account for this in determining the
appropriate number of additional
common dolphin takes to authorize,
NMFS assumed that one group (group
size = 34.9, rounded to 35) could be
taken by Level B harassment incidental
to every other detonation (n=7),
equaling 245 common dolphin takes.
Table 16 incorporates a total number of
632 Level B harassment takes (387 plus
245) of common dolphins incidental to
UXO/MEC detonations.
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Modeled Level A Harassment
Species
LA 1
RWEC2
Total (LA
+RWEC)
Modeled Level B Harassment
LA
RWEC
Total (LA
andRWEC)
PSOData
Take
Estimate
Mean Group
Size
Authorized
Authorized
Annual
Annual
Level A
._,evelB Take
Take
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72615
However, as described above, there
remains potential for Level A
harassment (PTS) for multiple species.
Temporary Cofferdam or Casing Pipe/
Goal Post Installation and Removal
20OCR2
Acoustic modeling, using JASCO’s
MONM–BELLHOP model (used for
modeling impact pile driving), was
performed for ;rsted’s Sunrise Wind
Farm project to determine distances to
the Level A harassment and Level B
harassment isopleths resulting from
E:\FR\FM\20OCR2.SGM
whales; (4) use of PAM to acoustically
detect North Atlantic right whales; (5)
implementation of clearance zones; (6)
use of noise mitigation technology; and,
(7) post-detonation monitoring visual
and acoustic monitoring by PSOs and
PAM operators.
The mitigation measures Revolution
Wind must implement during any UXO/
MEC detonations are expected to reduce
the likelihood of Level A harassment
(PTS) and, to a degree, Level B
harassment to the extent practicable.
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North
Atlantic
2.4
5.2
11.2
12
0
0.5
0.6
0.2
0.8
6.0
Right
Whale*
Blue
1
0.1
0.0
0.0
0.0
0.0
0.0
1.0
0
Whale*
23
Fin Whale*
0.8
0.4
1.2
8.9
1.8
7.8
16.7
3.2
17
Humpback
23
6.1
11.4
2.0
12
0.6
0.4
0.9
5.3
9.6
Whale
Minke
83
1.2
4.8
44.6
2.0
96
3.0
7.7
51.1
95.7
Whale
23
Sei Whale*
1.6
3.3
7.1
0.1
8
0.4
0.2
0.5
3.8
Sperm
0.1
0.1
2
0.0
1.5
0
0.0
0.0
0.0
Whale*
Atlantic
29.0
0
29
0.1
0.1
0.2
Spotted
0.0
0.0
0.0
Dolphin
Atlantic
White-Sided
27.9
28 3
28
0.1
2.4
0.1
2.1
4.5
0.0
0.7
Dolphin
Bottlenose
83
7.8
0.0
0.6
0.1
1.3
1.1
2.4
14
13.7
Dolphin
Common
0.3
0.2
0.4
10.3
9.3
19.6
34.9
35 3
386.9
632 4
Dolphin
Long-finned
Pilot
0.1
0.1
0.0
0.0
0.0
0.2
8.4
0
9
Whales5
Risso's
0.1
0.1
5.4
0
6
0.2
1.0
0.0
0.0
0.0
Dolphin
Harbor
2.7
49
33.1
15.8
48.9
161.9
147.0
309
308.9
0.3
Porpoise
17
327
Gray Seal
16.6
176.7
150.2
326.8
0.4
7.9
8.7
0.9
124
123.5
Harbor Seal
1.0
7
1.1
56.7
3.0
3.3
6.3
66.7
• Denotes species listed under the Endangered Species Act
1 - LA = Lease Area
2 - R WEC = Revolution Wind Export Cable route
3 - NMFS is authorizing Level A harassment of the modeled number of Level A harassment (PTS) takes. rounded up to the nearest whole number
and/or group size, as appropriate, in addition to the Level A harassment (PTS) take of harbor porpoises, gray seals, and harbor seals proposed for
authorization (87 FR 79072, December 23, 2022).
4 - NMFS is authorizing 632 Level B harassment takes of common dolphins incidental to UXO/MEC detonations, which includes the corrected
number of Level B harassment takes Revolution Wind requested (n=387) and an additional 245 takes as a result of a comment from the Commission
questioning if the amount of proposed take was sufficient.
5 - Roberts et al. (2023) does not distinguish between short- and long-fmned pilot whales, thus the pooled density provided represents both species.
However, short-finned pilot whales are not expected to occur in the Project Area, thus NMFS assumes that any take of pilot whales would be of
long-fmned pilot whales.
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
BILLING CODE 3510–22–C
19:13 Oct 19, 2023
While there would be no more than
13 detonations of UXOs/MECs, each of
which would be of very short duration
(approximately 1 second), UXO/MEC
detonations have a higher potential to
cause mortality and injury than other
Project activities and therefore have
specific mitigation measures designed to
prevent mortality and/or injury of
marine mammals, including: (1) time of
year/seasonal restrictions; (2) time of
day restrictions; (3) use of PSOs to
visually observe for North Atlantic right
VerDate Sep<11>2014
ER20OC23.019
Table 16 -- Estimated and Authorized Level A Harassment and Level B Harassment Takes Resulting from the
Detonation of Up to 13 UXOs, Assuming 10-dB of Sound Attenuation, Over 5 Years
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72616
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
installation and removal of steel sheet
piles to construct cofferdams and goal
posts, and installation and removal of
casing pipes using pneumatic
hammering (Ku¨sel et al., 2022b).
Revolution Wind will install the same
type of sheet piles and casing pipes in
a similar location using the exact same
methods as Sunrise Wind used to
inform a published analysis, therefore,
the modeling results described for
Sunrise Wind (Ku¨sel et al., 2022b) and
presented here are considered
applicable to Revolution Wind’s project.
For take assessment purposes, the sheet
pile cofferdam scenario results in a
larger amount (compared to pneumatic
hammering for casing pipe installation
and vibratory pile driving for goal posts)
of take by Level B harassment and was,
therefore, the scenario carried further in
the Estimated Take section. This is
because acoustic propagation modeling
predicts that the distance to the Level B
harassment threshold isopleth produced
by vibratory pile driving is
approximately 10 km, while the
distance to the same isopleth produced
by pneumatic hammering is
approximately 0.92 km. The sheet pile
cofferdam scenario will require up to 56
days of vibratory hammer use for
installation and removal, while the
casing pipe scenario (including goal
posts) will require 8 days of pneumatic
hammering (2 days to install and 2 days
to remove each casing pipe) and up to
12 days of vibratory pile driving.
Removal of the casing pipes also
involves the use of a pneumatic pipe
ramming tool, but the pipe would be
pulled out of the seabed while
hammering was occurring instead of
pushed into it. The larger number of
total days of pile driving for the sheet
pile cofferdam scenario coupled with
the fact that vibratory pile driving on all
of those days will produce the larger
Level B harassment zone means the
anticipated take, by Level B harassment,
from the sheet pile cofferdam scenario
will necessarily be higher and is,
therefore, carried forward as the more
conservative Level B harassment
assumption. The acoustic ranges to the
Level A harassment (SELcum) thresholds
from pneumatic hammering of the
casing pipe are estimated to be the
following for each hearing group: low
frequency = 3.87 km, mid frequency =
0.23 km, high frequency = 3.95 km, and
phocid pinnipeds = 1.29 km. Level A
harassment (SPLpk) thresholds are not
expected to be generated by pneumatic
hammering. The estimated distances to
Level A harassment SELcum thresholds
are larger than the distance to the Level
B harassment threshold (920 m). This is
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due to the high strike rate of the
pneumatic hammer resulting in a high
number of accumulated strikes per day.
Most cetacean species are not expected
to occur frequently close to this
nearshore site, and individuals of any
species (including seals) are not
expected to remain within the estimated
SELcum threshold distances for the entire
3-hour duration of hammering in a day.
However, based on the Commission’s
recommendation (see Comments and
Responses section) and given the (1)
relatively frequent occurrence of harbor
porpoises in Narragansett Bay,
particularly at the time of year when
Revolution Wind will conduct landfall
construction (Kenney and VignessRaposa 2010), (2) the large distance to
the Level A harassment SELcum
threshold isopleth for harbor porpoises
(3.95 km), and (3) the difficulty visually
detecting harbor porpoises (particularly
with increasing distance from the
source), it’s possible that this species
may be exposed to noise levels that rise
to the level of Level A harassment
(PTS). In addition, since publication of
the proposed rule, Revolution Wind
determined that it will be impracticable
to monitor a 4-km shutdown zone, as
described in the proposed rule (87 FR
79072, December 23, 2022). Based on
NOAA shipboard observations of harbor
porpoises used in habitat-based density
modeling conducted by Roberts et al.
(2016, 2023), the detection probability
for harbor porpoises drops off
substantially in the 750–1000 m range
when sea states are a Beaufort Sea State
of 2 or less. Therefore, Revolution
concluded that 750 m is the maximum
practicable extent within which they
could effectively monitor for harbor
porpoise during casing pipe installation
and removal. NMFS has adjusted the
shutdown zone in this final rule to 750
m. Based on these factors and a
recommendation from the Commission
(see Comments and Responses section),
NMFS is authorizing take of harbor
porpoises, by Level A harassment (PTS),
incidental to pneumatic hammering of
casing pipe installation should this
activity occur. Given (1) that work will
occur within Narragansett Bay, a habitat
that few marine mammal species
typically use, (2) the short duration of
pneumatic hammering, and (3) the
implementation of mitigation and
monitoring measures, Level A
harassment of all other marine mammal
species incidental to pneumatic
hammering of casing pipe installation is
not expected or authorized. In addition,
given the nature of vibratory pile
driving and the small distances to Level
A harassment thresholds (5–190 m),
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sheet pile cofferdam installation is also
not expected to result in Level A
harassment. Revolution Wind did not
request and NMFS is not authorizing
any Level A harassment incidental to
installation of sheet pile cofferdams via
vibratory pile driving.
In summary, the Level B harassment
zone produced by vibratory pile driving
of sheet piles (9.74 km) is significantly
larger than that produced by pneumatic
hammering of a casing pipe (0.92 km).
Additionally, as mentioned previously,
the sheet pile cofferdam scenario will
require up to a total of 56 days of
vibratory pile driving for installation
and removal, while the casing pipe
scenario will require up to 24 days of
vibratory pile driving plus 8 days of
pneumatic hammering. The larger
spatial impact for Level B harassment
combined with the longer duration of
sheet pile cofferdam installation will
produce a larger amount of Level B
harassment; therefore, this landfall
construction activity was carried
forward as the most conservative
scenario to estimate the amount of Level
B harassment.
JASCO used its MONM–BELLHOP to
predict acoustic propagation for
frequencies between 5 Hz and 25 kHz
produced by vibratory pile driven
installation of the steel sheet piles that
will be used to construct temporary
cofferdams (Ku¨sel et al., 2022b).
Acoustic propagation modeling was
based on a winter sound speed profile,
which was deemed both conservative
and appropriate for the Project because
of the timing of landfall construction
(Q4 2023–Q1 2024). Additional
modeling assumptions are included in
Table 17.
Decidecade band SEL levels were
obtained from vibratory pile driving
measurements available in the literature
(Illingworth and Rodkin, 2017). The
Illingworth and Rodkin (2017)
measurements are for vibratory driving
of four 12-in wide connected sheet piles
(48 inch/122 centimeter total width)
using an APE Model 300 vibratory
hammer (1842.0 kilonewton (kN)
centrifugal force). Illingworth and
Rodkin (2017) included SEL at 10 m
from the pile in the frequency band 5–
25,000 Hz. The average (from 10 piling
measurements) maximum broadband
SEL was 182.7 dB re 1 mPa2·s. For
modeling of vibratory driving of sheet
piles at the landfall construction
horizontal directional drilling (HDD)
location, SEL band levels were corrected
for spherical spreading (+20 dB,
corresponding to 10 m range) (Ku¨sel et
al., 2021).
Additional details on the acoustic
modeling conducted for the Sunrise
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Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
Wind project can be found in the
Sunrise Wind Farm Project Underwater
Noise and Exposure Modeling report
available on NMFS’ website: https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-sunrise-
72617
wind-llc-construction-and-operationsunrise-wind.
Table 17 -- Sheet Pile Installation Key Piling Assumptions Used in the Source
Modeline:
Parameter
Model Input
Vibratory Hammer
APE300
Pile Type
Sheet Pile
Pile Length
30m
Pile Width
0.6m
Pile Wall Thickness
2.54 cm
Seabed Penetration
10m
Time to Install 1 Pile
2 hours
Number of Piles per Day
4
Similar to the modeling approach for
impact pile driving, distances to
harassment thresholds are reported as
R95% values (Table 18). Distances to the
Level A harassment threshold (SELcum)
are relatively small, ranging from 5 m
for low-frequency cetaceans to 190 m for
high-frequency cetaceans. The distance
to the Level B harassment threshold is
9,740 m for all species.
Level A Harassment SELcum
Thresholds (dB re 1 µPa 2 ·s)
Level B Harassment SPLnns
Threshold (120 dB re 1 µPa)
Low-frequency
5
9,740
Mid-frequency
-
9,740
High-frequency
190
9,740
Phocid pinniped
10
9,740
Accounting for the effects that nearby
land would have on sound propagation
using geospatial information systems
(GIS) (Environmental Systems Research
Institute, Inc. (ESRI), 2017) results in a
reduction in the estimated area of 54.1
km2 (20.9 mi2) potentially being
ensonified above the 120 dB threshold.
As a cautionary approach, this 54.1 km2
(20.9 mi2) includes some areas beyond
9.74 km (6.05 mi) from the landfall
location and reflects the maximum area
potentially ensonified above threshold
levels from construction activities at
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that site, including if a larger vibratory
pile driving hammer were to be used.
Regarding how density and
occurrence information was applied in
estimating take for cofferdam
installation, the export cable landfall
construction work will take place near
Quonset Point in North Kingstown,
Rhode Island, which is within
Narragansett Bay. However, the habitatbased marine mammal densities from
Roberts et al. (2023) do not include
waters within Narragansett Bay. As an
alternative, densities calculated from
the area just outside of Narragansett Bay
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were used in exposure estimation. This
is a conservative approach since there
have been few reported sightings of
marine mammals, other than seals,
within Narragansett Bay (Raposa, 2009).
To select marine mammal density grid
cells from the Roberts et al. (2023) data
representative of the area just outside of
Narragansett Bay, a zone representing
the ensonified area plus a 5-km buffer
from the mouth of Narragansett Bay was
created in GIS (ESRI, 2017). This buffer
was then intersected with the density
grid cells for each individual species to
select those near the mouth of
E:\FR\FM\20OCR2.SGM
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ER20OC23.021
Marine Mammal Hearing Group
ER20OC23.020
ddrumheller on DSK120RN23PROD with RULES2
Table 18 -- Acoustic Ranges (R9s%), in Meters, to Level A Harassment {PTS) and
Level B Harassment Thresholds from Vibratory Pile Driving, Assuming a Winter
Sound Speed Profile
72618
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
Narragansett Bay (Figure 8 in
Revolution Wind’s Updated Density and
Take Estimation Memo). Since the
timing of landfall construction could
vary somewhat from the planned
schedule, the maximum average
monthly density from January through
December for each species was selected
(Table 19) and used to estimate
exposures from landfall construction.
BILLING CODE 3510–22–P
Table 19 -- Maximum Monthly Marine Mammal Densities In and Near the Mouth
of Narragansett Bay and the Month in Which Each Maximum Density Occurs
Maximum Monthly Density
Species
(Jnd/km2)
Maximum Density Month
North Atlantic Right Whale*
0.0002
March
Blue Whale*
0.0000
Annual
Fin Whale*
0.0000
-
Humpback Whale
0.0004
December
Minke Whale
0.0005
May
Sei Whale*
0.0002
April
Sperm Whale*
0.0000
-
Atlantic Spotted Dolphin
0.0000
-
Atlantic White-Sided Dolphin
November
0.0004
Bottlenose Dolphin
0.0002
September
Common Dolphin
0.0065
November
Pilot Whales 1
0.0000
-
Risso's Dolphin
0.0000
-
Harbor Porpoise
0.0125
December
Gray seal
0.128
October
Harbor seal
0.204
October
BILLING CODE 3510–22–C
ddrumheller on DSK120RN23PROD with RULES2
Cable Landfall Construction Take
Estimation
Given the short duration of the
activity and shallow, coastal location,
animat exposure modeling was not
conducted for cofferdam or casing pipe
and goal post installation and removal
to determine potential exposures from
vibratory pile driving. Rather, the
modeled acoustic ranges to Level A
harassment (PTS) and Level B
harassment isopleths were used to
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calculate the area around the cofferdam
predicted to be ensonified daily to
levels that exceed the thresholds, or the
Ensonified Area. The Ensonified Area
was calculated as the following:
Ensonified Area = pi*r2,
where r is the linear acoustic range
from the source to the Level A
harassment and Level B harassment
isopleths. Because the distance to the
Level B harassment threshold for
cofferdam installation and removal
(9,740 m) is larger than the distance for
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pneumatic hammering of casing pipes
(920 m), the amount of Level B
harassment take authorized assuming
cofferdam will be installed encompasses
any take that may occur incidental to
installing goal posts or casing pipes.
To calculate density-based exposures
estimates incidental to installation of
two cofferdams, the average marine
mammal densities from Table 19 were
multiplied by the daily ensonified area
(54.1 km2) for installation of sheet piles.
Given that use of the vibratory hammer
during cofferdam installation and
E:\FR\FM\20OCR2.SGM
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ER20OC23.022
* Denotes species listed under the Endangered Species Act.
1 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled
density provided represents both species. However, short-finned pilot whales are not expected to occur in
the Project Area, thus NMFS assumes that any take of pilot whales would be oflong-finned pilot whales.
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
removal may occur on up to 56 days, the
daily estimated take was multiplied by
56 to produce the results shown in
Table 20. However, as noted above, to
be conservative, Revolution Wind has
requested take by Level B harassment
based on the highest exposures
predicted among the density-based,
PSO-based, or average group size-based
estimates; the authorized take is
indicated in column 5 of Table 20.
Mysticete whales are unlikely to occur
in the immediate vicinity of the activity
or within Narragansett Bay (Raposa,
2009); therefore, Revolution Wind did
not request and NMFS is not
authorizing take of these species. In
their ITR application, Revolution Wind
requested two sperm whale Level B
harassment takes incidental to landfall
construction, which we included in the
proposed rule. In this final rule, NMFS
is not authorizing Level B harassment of
sperm whales incidental to the specified
activity because the sperm whale
exposure estimate is 0.1 and the species
exhibits a preference for deep oceanic
habitat rather than the shallow waters in
Narragansett Bay, thus, the probability
of take is de minimis. Finally, we
addressed the following transcription
errors included in the proposed rule: the
proposed take, by Level B harassment,
should have been 60, not 36, bottlenose
dolphins and 1,667, not 905, common
dolphins.
As mentioned in the Comments and
Responses section, the Commission
recommended that NMFS authorize
Level A harassment (PTS) of harbor
porpoises incidental to pneumatic
hammering of casing pipes, should
Revolution choose to conduct that
activity. Harbor porpoises are one of the
few marine mammals known to occur
regularly in Narragansett Bay (e.g.,
Kenney and Vigness-Raposa, 2010),
particularly in the winter during which
casing pipe installation would occur
(Q4 2023—Q1 2024). The likely
temporal and spatial overlap of harbor
purpose occurrence with the Level A
harassment (PTS) acoustic footprint
resulting from pneumatic hammering,
the size of the Level A harassment zone
(PTS) (3,950 m), and the species’ cryptic
nature support authorization of Level A
72619
harassment. Revolution Wind expects
that it will require 8 days of pneumatic
hammering to install and remove the
casing pipes. Because Revolution Wind
has not specified exactly which 8 days
in Q4 2023–Q1 2024 casing pipe
installation would occur, it is possible
that they would complete this activity
in December or January, when harbor
porpoise densities near the landfall
construction site are an order of
magnitude higher than in the other
months in which the species
consistently utilizes habitat in/near
Narragansett Bay (March-May), and the
potential for acoustic impacts from
pneumatic hammering is highest. Thus,
NMFS conservatively assumed that one
group (group size = 2.7; Kraus et al.,
2016) rounded to the nearest whole
number may be taken by Level A
harassment per day of pneumatic
hammering (n=8). Therefore, NMFS is
authorizing 24 takes, by Level A
harassment, of harbor porpoises
incidental to casing pipe installation
(Table 21).
BILLING CODE 3510–22–P
Species
Exposure Estimate
PSO Data Take
Estimate
Mean Group Size
Highest Level B
Take
Atlantic Spotted
Dolphin
0.1
-
29.0
29
Atlantic WhiteSided Dolphin
1.2
5.2
27.9
28
Bottlenose
Dolphin
0.5
59.2
7.8
60
Common Dolphin
19.6
1,666.6
34.9
1,667
Long-finned Pilot
Whales 1
0.0
-
8.4
9
Risso's Dolphin
0.1
4.1
5.4
6
Harbor Porpoise
37.8
1.5
2.7 1
38
Gray Seal
833.1
2.5
1.4
834
Harbor Seal
314.7
3.2
1.4
315
* Denotes species listed under the Endangered Species Act.
1 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled
density provided represents both species. However, short-finned pilot whales are not expected to occur in
the Project Area, thus NMFS assumes that any take of pilot whales would be oflong-finned pilot whales.
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Table 20 -- Estimated Level B Harassment Incidental to Cofferdam, Goal Posts, or
Casing Pipe Construction
72620
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
Table 21 -- Estimated Level A harassment (PTS) Incidental to Casing Pipe
Installation
Species
Level A harassment (PTS) take
Harbor porpoises
24 1
1 - NMFS has authorized Level A harassment (PTS) of24 harbor porpoises. NMFS calculated this number
of takes by multiplying group size (2.7, rounded to 3) times the number of days on which pneumatic
hammering will occur (n=8).
HRG Surveys
ddrumheller on DSK120RN23PROD with RULES2
NMFS considers the data provided by
Crocker and Fratantonio (2016) to
represent the best available information
on source levels associated with HRG
equipment and, therefore, recommends
that source levels provided by Crocker
and Fratantonio (2016) be incorporated
in the method described in NMFS
(2018) to estimate ranges to the Level A
harassment and Level B harassment
isopleths. In cases when the source level
for a specific type of HRG equipment is
not provided in Crocker and Fratantonio
(2016), NMFS recommends that either
the source levels provided by the
manufacturer be used, or, in instances
where source levels provided by the
manufacturer are unavailable or
unreliable, a proxy from Crocker and
Fratantonio (2016) be used instead.
Revolution Wind utilized the following
criteria for selecting the appropriate
inputs into the NMFS User Spreadsheet
Tool (NMFS, 2018):
(1) For equipment that was measured
in Crocker and Fratantonio (2016), the
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reported source level (SL) for the most
likely operational parameters was
selected.
(2) For equipment not measured in
Crocker and Fratantonio (2016), the best
available manufacturer specifications
were selected. Use of manufacturer
specifications represent the absolute
maximum output of any source and do
not adequately represent the operational
source. Therefore, they should be
considered an overestimate of the sound
propagation range for that equipment.
(3) For equipment that was not
measured in Crocker and Fratantonio
(2016) and did not have sufficient
manufacturer information, the closest
proxy source measured in Crocker and
Fratantonio (2016) was used.
The Dura-spark measurements and
specifications provided in Crocker and
Fratantonio (2016) were used for all
sparker systems that will be used during
HRG surveys. These included variants
of the Dura-spark sparker system and
various configurations of the GeoMarine
Geo-Source sparker system. The data
provided in Crocker and Fratantonio
(2016) represent the most applicable
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data for similar sparker systems with
comparable operating methods and
settings when manufacturer or other
reliable measurements are not available.
Crocker and Fratantonio (2016) provide
S-Boom measurements using two
different power sources (CSP–D700 and
CSP–N). The CSP–D700 power source
was used in the 700 joules (J)
measurements but not in the 1,000 J
measurements. The CSP–N source was
measured for both 700 J and 1,000 J
operations but resulted in a lower
source level; therefore, the single
maximum source level value was used
for both operational levels of the
S-Boom.
Table 22 identifies all the
representative survey equipment that
operates below 180 kHz (i.e., at
frequencies that are audible and have
the potential to disturb marine
mammals) that may be used in support
of planned survey activities and are
likely to be detected by marine
mammals given the source level,
frequency, and beamwidth of the
equipment.
BILLING CODE 3510–22–P
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BILLING CODE 3510–22–C
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
72621
Table 22 -- Summary of representative HRG Survey equipment
Operating Source
Pulse
Source
Equipment IRepresentat
Repetition Beamwidth Informatio
Frequency
Level
Level 0-pk Duration
Rate (Hz) (degrees) n Source
Type
ive Model
(kHz) SPLrm,(dB'
(dB)
(ms)
EdgeTech
2-16
195
20
6
24
MAN
216
EdgeTech
4-24
176
3.4
2
71
CF
424
Edgetech
0.7 -12
179
CF
9
8
80
Sub-bottom
512
Profiler GeoPulse
2-17
196
MAN
50
10
55
5430A
Teledyn
Benthos
2-17
197
15
MAN
60
100
CHIRP III
- TTY 170
Applied
Acoustics
203
211
4
Omni
CF
Sparker Dura-Spark 0.3 -1.2
1.1
UHD (400
~ips, 500 J) 1
Applied
Acoustics
triple plate
4
CF
0.1-5
205
211
0.6
80
Boomer
S-Boom
(700-1,000
J)2
ddrumheller on DSK120RN23PROD with RULES2
BILLING CODE 3510–22–C
When the NMFS Technical Guidance
(2016) was published, in recognition of
the fact that ensonified area/volume
could be more technically challenging
to predict because of the duration
component in the new thresholds, we
developed a User Spreadsheet that
includes tools to help predict a simple
isopleth that can be used in conjunction
with marine mammal density or
occurrence to help predict takes. We
note that because of some of the
assumptions included in the methods
used for these tools, we anticipate that
isopleths produced are typically going
to be overestimates of some degree,
which may result in some degree of
overestimation of Level A harassment.
VerDate Sep<11>2014
19:13 Oct 19, 2023
Jkt 262001
However, these tools offer the best way
to predict appropriate isopleths when
more sophisticated 3D modeling
methods are not available, and NMFS
continues to develop ways to
quantitatively refine these tools, and
will qualitatively address the output
where appropriate. For mobile sources
(such as the active acoustic sources
proposed for use during Revolution
Wind’s HRG surveys), the User
Spreadsheet predicts the closest
distance at which a stationary animal
would not incur PTS if the sound source
traveled by the animal in a straight line
at a constant speed. JASCO modeled
distances to Level A harassment
isopleths for all types of HRG
equipment and all marine mammal
PO 00000
Frm 00061
Fmt 4701
Sfmt 4700
functional hearing groups using the
NMFS User Spreadsheet and NMFS
Technical Guidance (2018).
For HRG surveys, in order to better
consider the narrower and directional
beams of the sources, NMFS has
developed an additional tool for
determining the sound pressure level
(SPLrms) at the 160-dB isopleth for the
purposes of estimating the extent of
Level B harassment isopleths associated
with HRG survey equipment (NMFS,
2020). This methodology incorporates
frequency-dependent absorption and
some directionality to refine estimated
ensonified zones. Revolution Wind used
NMFS’ methodology with additional
modifications to incorporate a seawater
absorption formula and account for
E:\FR\FM\20OCR2.SGM
20OCR2
ER20OC23.025
- = not applicable; ET= EdgeTech; J = joule; kHz= kilohertz; dB = decibels; SL = source level; UHD =
ultra-high defmition; AA = Applied Acoustics; rms = root-mean square; µPa= microPascals; re =
referenced to; SPL = sound pressure level; PK = zero-to-peak pressure level; Omni = omnidirectional
source.
1 - The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used
for all sparker systems that will be used in the surveys. These include variants of the Dura-spark sparker
system and various configurations of the GeoMarine Geo-Source sparker system. The data provided in
Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with
comparable operating methods and settings when manufacturer or other reliable measurements are not
available.
2 - Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources
(CSP-D700 and CSP-N). The CSP-D700 power source was used in the 700 J measurements but not in the
1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted
in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.
72622
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
energy emitted outside of the primary
beam of the source. For sources that
operate with different beam widths, the
maximum beam width was used (see
Table 22). The lowest frequency of the
source was used when calculating the
absorption coefficient.
Results of modeling using the
methodology described above indicated
that, of the HRG equipment planned for
use by Revolution Wind that has the
potential to result in Level B harassment
of marine mammals, sound produced by
the Applied Acoustics sparkers and
Applied Acoustics triple-plate S-boom
will propagate furthest to the Level B
harassment isopleth (141 m; Table 23).
For the purposes of take estimation, it
was conservatively assumed that
sparkers and/or boomers will be the
dominant acoustic source for all vessel
days (although, again, this may not
always be the case). Thus, the distances
to the isopleth corresponding to the
threshold for Level B harassment for the
boomer and sparkers (141 m) was used
as the basis of take calculations for all
marine mammals.
BILLING CODE 3510–22–P
Table 23 -- Distances to the Level B Harassment Thresholds for Each HRG Sound
Source or Comparable Sound Source Category for Each Marine Mammal Hearing
Group
Equipment Type
Representative Model
Distance to Level B harassment
threshold (m)
All (SPLnns)
EdgeTech 216
9
EdgeTech 424
4
Edgetech 512
6
GeoPulse 5430A
21
Teledyn Benthos CHIRP III TTV 170
48
Applied Acoustics Dura-Spark
UHD (700 tips, 1,000 J)
34
Applied Acoustics Dura-Spark
UHD (400 tips, 500 J)
Sparker
141
Applied Acoustics Dura-Spark
UHD (400 tips, 500 J)
Applied Acoustics triple plate SBoom (700-1,000 J)
Boomer
ddrumheller on DSK120RN23PROD with RULES2
To estimate densities for the HRG
surveys occurring both within the Lease
Area and within the RWEC based on
Roberts et al. (2023), a 5-km (3.11 mi)
VerDate Sep<11>2014
19:13 Oct 19, 2023
Jkt 262001
141
perimeter was applied around each area
(see Figures 10 and 11 of the Updated
Density and Take Estimation Memo).
Given this work could occur year-round,
PO 00000
Frm 00062
Fmt 4701
Sfmt 4700
141
the annual average density for each
species was calculated using average
monthly densities from January through
December (Table 24).
E:\FR\FM\20OCR2.SGM
20OCR2
ER20OC23.026
Sub-bottom Profiler
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
72623
Table 24 -- Annual Average Marine Mammal Densities (lndiv/km.2) Along the
RWEC and Lease Area
Species
RWEC
Lease Area
North Atlantic Right Whale*
0.0011
0.0027
Blue Whale*
0.0000
0.0000
Fin Whale*
0.0008
0.0016
Humpback Whale
0.0008
0.0010
Minke Whale
0.0022
0.0044
Sei Whale*
0.0003
0.0004
Sperm Whale*
0.0001
0.0001
Atlantic Spotted Dolphin
0.0000
0.0001
Atlantic White-Sided Dolphin
0.0038
0.0090
Bottlenose Dolphin
0.0021
0.0049
Common Dolphin
0.0202
0.0409
Pilot Whales 1
0.0001
0.0005
Risso's Dolphin
0.0001
0.0003
Harbor Porpoise
0.0191
0.0316
Seals (Harbor and Gray)
0.1477
0.1182
ddrumheller on DSK120RN23PROD with RULES2
BILLING CODE 3510–22–C
The maximum range (i.e., 141 m) to
the Level B harassment threshold and
the estimated trackline distance traveled
per day by a given survey vessel (i.e., 70
km) were used to calculate the daily
ensonified area, or zone of influence
(ZOI), around the survey vessel.
The ZOI is a representation of the
maximum extent of the ensonified area
around a HRG sound source over a 24hr period. The ZOI for each piece of
equipment operating at or below 180
kHz was calculated per the following
formula:
ZOI = (Distance/day × 2r) + pi*r2
Where r is the linear distance from the
source to the harassment isopleth.
The largest daily ZOI (19.8 km2),
associated with the use of boomers and
sparkers, was applied to all planned
vessel days.
Potential Level B harassment densitybased exposures were estimated by
VerDate Sep<11>2014
19:13 Oct 19, 2023
Jkt 262001
multiplying the average annual density
of each species within the survey area
by the daily ZOI. That product was then
multiplied by the number of planned
vessel days in each sector during the
approximately 1-year construction
timeframe (82.1 in RWEC, 165.7 in
Lease Area), and the product was
rounded to the nearest whole number.
These results are shown in columns 2
(Lease Area) and 3 (RWEC) of Table 25.
Similar to the approach described
above, to be conservative, Revolution
Wind has requested take by Level B
harassment based on the highest
exposures predicted by the densitybased, PSO based, or average group sizebased estimates, and the authorized take
is indicated in column 7 of Table 25
below.
As described in the Comments and
Responses section, the Commission
suggested that, given the frequency of
common dolphin occurrence in the
PO 00000
Frm 00063
Fmt 4701
Sfmt 4700
Project Area, NMFS should authorize an
increased (relative to the amount
included in the proposed rule) number
of common dolphin takes, by Level B
harassment for HRG surveys. Common
dolphins are regularly sighted by PSOs
during HRG surveys but, as described
previously, only a portion of those
sighted are actually within the Level B
harassment zone, as evidenced by PSO
monitoring reports for the Project Area
(e.g., Smultea Environmental Sciences,
LLC, 2020; Valencia et al., 2021;
Smultea Environmental Sciences, LLC,
2022). The total number of common
dolphins sighted by PSOs is highly
variable, depending on the survey
timing (which may align more or less
with peaks in expected common
dolphin occurrence), the number of
kilometers surveys, and survey
conditions, among other factors. As
described above, Revolution Wind
anticipates that they may conduct HRG
E:\FR\FM\20OCR2.SGM
20OCR2
ER20OC23.027
* Denotes species listed under the Endangered Species Act.
1 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled
density provided represents both species. However, short-finned pilot whales are not expected to occur in
the Project Area, thus NMFS assumes that any take of pilot whales would be oflong-finned pilot whales.
ddrumheller on DSK120RN23PROD with RULES2
North Atlantic
Right Whale*
7.4
1.8
9.2
-
2.4
10
Blue Whale*
0.0
0.0
0.0
-
1.0
1
Fin Whale*
4.4
1.4
5.8
6.6
1.8
7
Humpback Whale
2.8
1.2
4.0
16.5
2.0
17
Minke Whale
11.8
3.7
15.5
5.9
1.2
16
Sei Whale*
1.1
0.4
1.6
1.6
2
Frm 00064
-
Sperm Whale*
0.4
0.1
0.5
-
1.5
2
Atlantic Spotted
Dolphin
0.3
0.1
0.3
-
29.0
29
Atlantic WhiteSided Dolphin
24.5
6.5
31.0
-
27.9
31
Bottlenose
Dolphin
13.2
3.8
17.0
100.1
7.8
101
Common Dolphin
110.5
33.5
144.0
2,353.4
34.9
4,457 1
Long-Finned Pilot
Whales 2
1.4
0.1
1.5
-
8.4
9
Risso's Dolphin
0.8
0.2
1.0
2.3
5.4
6
Harbor Porpoise
85.4
30.9
116.3
-
2.7
117
Gray Seal
232.0
177.9
410.0
7.1
1.4
410
Harbor Seal
87.7
67.2
154.9
11.2
1.4
155
Jkt 262001
Fmt 4701
Sfmt 4725
E:\FR\FM\20OCR2.SGM
20OCR2
* Denotes species listed under the Endangered Species Act.
1 - In response to consideration of a comment from the Commission, NMFS is authorizing 4,457 Level B harassment takes of common dolphins
incidental to HRG surveys during construction (Years 1), which is an 80 percent increase from the number in the proposed rule (2,354). The
percentage increase is based on PSO observations in/near the Lease Area (Smultea Environmental Services, 2020).
2 - Roberts et al. (2023) does not distinguish between short- and long-fmned pilot whales, thus the pooled density provided represents both species.
However, short-finned pilot whales are not expected to occur in the Project Area, thus NMFS assumes that any take of pilot whales would be oflongfinned pilot whales.
ER20OC23.028
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
Authorized Level
BTake
72624
Mean Group Size
during the HRG surveys the
Commission refers to in their comment.
This is an 89 percent increase from the
2,354 common dolphin Level B
harassment takes proposed for
authorization.
PSO Data Take
Estimate
BILLING CODE 3510–22–P
Total Densitybased Take
Estimate
factors (e.g., time of year), NMFS
concurs with the Commission and is
conservatively authorizing 4,457
common dolphin Level B harassment
takes incidental to HRG surveys during
the year of construction, which is
equivalent to the number of common
dolphins taken by Level B harassment
Modeled
Exposures RWEC
surveys throughout the effective period
of the authorization. Given common
dolphins are one of the most frequently
sighted species during HRG surveys (as
reported by PSOs in the monitoring
reports cited here) and the number of
dolphins sighted is highly variable and
dependent on multiple influencing
Modeled
Exposures Lease
Area
19:13 Oct 19, 2023
Species
PO 00000
VerDate Sep<11>2014
Table 25 -- Estimated Take, by Level B Harassment, Incidental to HRG Surveys during the Construction Period (Year
1)
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
BILLING CODE 3510–22–C
ddrumheller on DSK120RN23PROD with RULES2
Authorized takes will be by Level B
harassment, in the form of disruption of
behavioral patterns for individual
marine mammals resulting from
exposure to noise from certain HRG
acoustic sources. Based primarily on the
characteristics of the signals produced
by the acoustic sources planned for use,
Level A harassment is neither
anticipated (even absent mitigation), nor
authorized. Consideration of the
anticipated effectiveness of the
mitigation measures (i.e., pre-start
clearance and shutdown measures),
discussed in detail below in the
Mitigation section, further strengthens
the conclusion that Level A harassment
is not a reasonably expected outcome of
the survey activity. Revolution Wind
did not request authorization of take by
Level A harassment, and no take by
Level A harassment is authorized by
NMFS. As described previously, no
serious injury or mortality is anticipated
or authorized for this activity.
VerDate Sep<11>2014
19:13 Oct 19, 2023
Jkt 262001
As mentioned previously, HRG
surveys will also routinely be carried
out during the period of time following
construction of the RWF and RWEC
which, for the purposes of exposure
modeling, Revolution Wind assumed to
be 4 years. Revolution Wind estimates
that HRG surveys will cover 2,117 km
within the Lease Area and 1,642 km
along the RWEC annually. Assuming 70
km are surveyed per day, this amounts
to 30.2 days of survey activity in the
Lease Area and 23.5 days of survey
activity along the RWEC each year, or
214.8 days total for the 4-year timeframe
following the construction period
(assuming all construction activities
occur in a single year). Density-based
take was estimated using the same
approach outlined above by multiplying
the daily ZOI by the annual average
densities and separately by the number
of vessel days planned for the RWEC
and Lease Area; the results are shown in
columns 2 and 3, respectively, in Table
PO 00000
Frm 00065
Fmt 4701
Sfmt 4700
72625
26. Using the same approach described
above, Revolution Wind estimated a
conservative amount of annual take, by
Level B harassment, based on the
highest exposures predicted by the
density-based, PSO-based, or average
group size-based estimates. The highest
predicted exposure value was
multiplied by four to yield the amount
of take Revolution Wind requested and
NMFS is authorizing, shown in column
8 of Table 26 below. Consistent with the
method used above to determine the
increased number of common dolphin
Level B harassment takes incidental to
HRG surveys during construction,
NMFS is authorizing 1,094 takes per
year (89 percent increase from 579 per
year, as presented in the proposed rule)
of common dolphins, by Level B
harassment, for each of the 4 years
following construction (4,376 total over
4 years).
BILLING CODE 3510–22–P
E:\FR\FM\20OCR2.SGM
20OCR2
ddrumheller on DSK120RN23PROD with RULES2
Fmt 4701
Sfmt 4700
20OCR2
impact installation of WTG and OSS
monopile foundations, depending on
whether or not delays in the schedule
for Year 1 occur. Years 3, 4, and 5 each
include 30.2 days of HRG surveys.
Although temporary cofferdam
installation/removal could occur in Year
2, all of the authorized takes were
allocated to Year 1 as this represents the
most accurate construction scenario. All
impact pile driving activities for the
WTGs and OSSs could also occur
outside of Year 1; however, all of the
E:\FR\FM\20OCR2.SGM
AnnualPSO
Data Take
Estimate
Mean Group
Size
Highest Annual
LevelB Take
(Years 2-5)
4-Year Level B
Take
2.1
-
2.4
3
12
0.0
0.0
-
1.0
1
4
1.0
0.4
1.3
1.6
1.8
2
8
Humpback
Whale
0.6
0.4
1.0
4.0
2.0
5
20
Minke Whale
2.6
1.0
3.6
1.5
1.2
4
16
Sei Whale*
0.3
0.1
0.4
-
1.6
2
8
Sperm Whale*
0.1
0.0
0.1
-
1.5
2
8
Atlantic Spotted
Dolphin
0.1
0.0
0.1
-
29.0
29
116
Atlantic WhiteSided Dolphin
5.4
1.8
7.2
-
27.9
28
112
Bottlenose
Dolphin
2.9
1.0
3.9
24.6
7.8
25
100
Common
Dolphin
24.5
9.4
33.8
578.0
34.9
1,094
4,376 1
Long-Finned
Pilot Whales 2
0.3
0.0
0.3
-
8.4
9
36
Risso's Dolphin
0.2
0.1
0.2
0.6
5.4
6
24
Harbor Porpoise
18.9
8.9
27.8
-
2.7
28
112
Gray Seal
64.1
29.8
113.9
1.7
1.4
114
456
Harbor Seal
24.2
18.8
43.0
2.7
1.4
44
176
Lease Area
RWEC
North Atlantic
Right Whale*
1.6
0.5
Blue Whale*
0.0
Fin Whale*
* Denotes species listed under the Endangered Species Act.
1 - In response to consideration of a comment from the Commission, NMFS is authorizing 1,094 Level B harassment takes of common dolphins per
year (Years 2-5) incidental to HRG surveys, which an 80 percent increase from the number in the proposed rule (579), amounting to 4,376 total Level
B harassment takes of common dolphins in non-construction year. The percentage increase is based on PSO observations in/near the Lease Area
(Smultea Environmental Services, 2020).
2 - Roberts et al. (2023) does not distinguish between short- and long-fmned pilot whales, thus the pooled density provided represents both species.
However, short-finned pilot whales are not expected to occur in the Project Area, thus NMFS assumes that any take of pilot whales would be oflongfmned pilot whales.
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
Frm 00066
temporary casing pipes UXO/MEC
detonations (assuming 10-dB
attenuation), and HRG surveys) as
shown in Table 27. The number of takes
that would occur in each year, based on
Revolution Wind’s current schedule, is
provided in Table 27. The Year 1 take
estimates include 165.7 days of HRG
surveys, impact installation of WTG and
OSS foundations, cofferdam
installation/removal, and mitigated
UXO/MEC detonations. Year 2 includes
30.2 days of HRG surveys, and potential
PO 00000
Annual Total
Density-based
Exposures
Species
72626
BILLING CODE 3510–22–C
Jkt 262001
Total Authorized Take Across All
Activities
19:13 Oct 19, 2023
NMFS is authorizing take by Level A
and Level B harassment incidental to
Project activities combined (i.e., impact
pile driving to install WTG and OSS
monopile foundations (assuming 10-dB
attenuation), vibratory pile driving to
install and remove temporary
cofferdams and goal posts, pneumatic
hammering to install and remove
VerDate Sep<11>2014
ER20OC23.029
Table 26 -- Estimated Take, by Level B Harassment, from HRG Surveys During Non-construction Years (Years 2-5)
and Total 4-year Take
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
takes were allocated to Year 1 as this
represents the most likely scenario.
The mitigation and monitoring
measures provided in the Mitigation
and Monitoring and Reporting sections
are activity-specific and are designed to
minimize acoustic exposures to marine
mammal species.
The number of takes that NMFS
authorized is considered conservative
for several reasons, including, but not
limited to, the following: authorized
take numbers are based on the highest
number resulting from among three take
estimate methodologies (density-based
exposure, PSO data-derived, and group
size); authorized take numbers assume
all foundation piles (n=81) will be
installed and all UXO/MECs
detonations would occur in the month
with the highest monthly average
density for each marine mammal
species; authorized Level B harassment
take numbers for landfall construction
assume 56 days of vibratory pile driving
for cofferdam installation, although the
VerDate Sep<11>2014
19:13 Oct 19, 2023
Jkt 262001
casing pipe and goal post alternative
would only require 24 days of vibratory
pile driving and a short period of
pneumatic hammering which has
shorter distances to the Level B
harassment isopleth than cofferdam
installation, if installed; authorized take
numbers assume sparkers and/or
boomers, which result in the largest
acoustic footprint, would be the
dominant source for all HRG surveys
days, although this may not be the case;
authorized take numbers for Level A
harassment (PTS) do not fully account
for the likelihood that marine mammals
will avoid a stimulus when possible
before the individual accumulates
enough acoustic energy to potentially
cause auditory injury, nor do the take
numbers fully account for the
effectiveness of the required mitigation
and monitoring measures (exception for
foundation installation and UXO/MEC
detonations, which incorporate 10-dB of
sound attenuation).
PO 00000
Frm 00067
Fmt 4701
Sfmt 4700
72627
NMFS also presents the percentage of
each marine mammal stock estimated to
be taken based on the total amount of
allowable annual take for each species,
which is presented in Table 28. Table 27
provides the total authorized take from
the entire 5-year effective period of the
rulemaking and issued LOA. NMFS
recognizes that schedules may shift due
to a number of planning and logistical
constraints such that take may be
redistributed throughout the 5 years.
However, the 5-year total amount of take
for each species, shown in Table 27, and
the maximum amount of take in any 1
year (Table 28) would not be exceeded.
Additionally, NMFS has required
extensive mitigation and monitoring
measures, provided in the Mitigation
and Monitoring and Reporting sections,
which are activity-specific and are
designed to minimize, to the extent
practicable, impacts to marine mammal
species.
BILLING CODE 3510–22–P
E:\FR\FM\20OCR2.SGM
20OCR2
ddrumheller on DSK120RN23PROD with RULES2
Year2
Year3
Year4
5-Year Total
Year 5
Jkt 262001
PO 00000
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E:\FR\FM\20OCR2.SGM
20OCR2
Level A
Level B
Level A
Level B
Level A
Level B
Level A
Level B
Level A
Level B
0
3
0
3
0
3
0
3
0
56
0
1
0
1
0
1
0
1
0
7
0
2
0
2
0
2
0
2
4
48
0
5
0
5
0
5
0
5
9
97
0
4
0
4
0
4
0
4
21
320
0
2
0
2
0
2
0
2
5
26
0
2
0
2
0
2
0
2
0
15
0
29
0
29
0
29
0
29
0
232
0
28
0
28
0
28
0
28
28
399
0
25
0
25
0
25
0
25
8
344
0
1,094
0
1,094
0
1,094
0
1,094
35
12,460
0
9
0
9
0
9
0
9
0
72
0
6
0
6
0
6
0
6
0
58
0
28
0
28
0
28
0
28
138
1,237
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
19:13 Oct 19, 2023
NMFS Year 1 (Maximum)
Stock
Species
Abundanc Level A Level B
e
North
Atlantic
44
0
338 1
Right
Whale*
Blue
412 2
0
3
Whale*
Fin
6,802
4
40
Whale*
Humpbac
1,396
9
77
k Whale
Minke
21,968
21
304
Whale
Sei
18
6,292
5
Whale*
Sperm
4,349
0
7
Whale*
Atlantic
Spotted 39,921
116
0
Dolphin
Atlantic
White93,233
28
287
sided
Dolphin
Bottlenos
62,851
244
8
e Dolphin
Common
172,974
8,084
35
Dolphin
Longfinned
39,215 4
0
36
Pilot
Whales 3
Risso's
35,215
0
34
Dolphin
Harbor
95,543
138
1,125
Porpoise
72628
VerDate Sep<11>2014
ER20OC23.030
Table 27 -- Annual and Total 5-Year Estimated Level A Harassment and Level B Harassment Takes for All Activities
Conducted During the Revolution Wind Offshore Wind Energy Facility Project (2023-2028)
ddrumheller on DSK120RN23PROD with RULES2
Jkt 262001
Frm 00069
Fmt 4701
Sfmt 4700
20OCR2
72629
is summed with the maximum
estimated number of Level B harassment
takes in any one year for each species
to yield the highest amount of estimated
take that could occur in any year. We
E:\FR\FM\20OCR2.SGM
within any 1 year, which in the case of
this rule is based on the predicted Year
1 for all species. In this calculation, the
maximum estimated number of Level A
harassment (PTS) takes in any one year
PO 00000
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
19:13 Oct 19, 2023
In making the negligible impact
determination and the necessary small
numbers finding, NMFS assesses the
greatest number of authorized take of
marine mammals that could occur
VerDate Sep<11>2014
ER20OC23.031
22
2,303
114
114
114
114
22
2,759
Grav Seal 27,300
0
0
0
0
Harbor
14
923
44
44
44
44
14
1,099
61,336
0
0
0
0
Seal
* Listed as Endangered under the Endangered Species Act (ESA).
1 - In the proposed rule (87 FR 79072, December 23, 2022), a population estimate of 368 was used which represented the best available science at the
time of publication. However, since the publication of the proposed rule, a new estimate (n=338) was released in NMFS' fmal 2022 SARs and has been
incorporated into this fmal rule. In addition, the total annual average observed North Atlantic right whale mortality was updated in the final SAR from
8.1 to 31.2. Total annual average observed North Atlantic right whale mortality during the period 2016 through 2020 was 8.1 animals and annual
average observed fishery mortality was 5. 7 animals. Numbers presented in this table (31.2 total mortality and 22 fishery mortality) are 2015 through
2019 estimated annual means, accounting for undetected mortality and serious injury. (Hayes et al., 2023).
2 - The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our small numbers
determination, as shown in parenthesis.
3 - Roberts et al. (2023) does not distinguish between short- and long-fmned pilot whales, thus the pooled density provided represents both species.
However, short-fmned pilot whales are not expected to occur in the Project Area, thus NMFS assumes that any take of pilot whales would be oflongfmned pilot whales.
4 - Long-finned pilot whale abundance estimate (Hayes et al., 2023).
ddrumheller on DSK120RN23PROD with RULES2
Max
Level B harassment
Max Annual Take (Max
Total Percent Stock
Level A Harassment +
Taken Based on
MaxLevelB
Maximum Annual Take 1
Harassment)
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Frm 00070
Fmt 4701
Sfmt 4700
20OCR2
expected to exceed those shown in
Table 28 in any year.
E:\FR\FM\20OCR2.SGM
of the rule; however, the rule allows for
that flexibility and the takes are not
PO 00000
North Atlantic Right2
44
44
338
0
13.0
Whale*
Blue Whale*
402 3
0
3
3
0.73
Fin Whale*
6,802
4
40
44
0.65
Humpback Whale
1,396
6.16
9
77
86
Minke Whale
21,968
21
304
325
1.48
Sei Whale*
6,292
18
23
5
0.37
Sperm Whale*
4,349
0.16
0
7
7
Atlantic Spotted
39,921
0
116
116
0.29
Dolphin
Atlantic White-Sided
93,233
28
287
315
0.34
Dolphin
Bottlenose Dolphin
62,851
8
244
252
0.40
Common Dolphin
172,974
35
8,084
8,119
4.70
Long-finned Pilot
39,215 5
0
36
36
0.09
Whales4
Risso's Dolphin
35,215
0
34
34
0.10
Harbor Porpoise
95,543
138
1,125
1,263
1.32
Gray Seal
27,300
22
2,303
2,325
8.52
Harbor Seal
61,336
14
923
937
1.53
* Listed as Endangered under the Endangered Species Act (ESA).
1 - Calculations of percentage of stock taken are based on the maximum requested Level A harassment take in any one year plus the total requested
Level B harassment take in any one year and then compared against the best available abundance estimate as shown in Table 2. For this action, the best
available abundance estimates are derived from the NMFS Stock Assessment Reports (Hayes et al., 2023).
2 - In the proposed rule (87 FR 79072, December 23, 2022), a population estimate of 368 was used which represented the best available science at the
time of publication. However, since the publication of the proposed rule, a new estimate (n=338) was released in NMFS' draft and fmal 2022 SARs and
has been incorporated into this fmal rule. In addition, the total annual average observed North Atlantic right whale mortality was updated in the fmal
SARs from 8.1 to 31.2. Total annual average observed North Atlantic right whale mortality during the period 2016 through 2020 was 8.1 animals and
annual average observed fishery mortality was 5. 7 animals. Numbers presented in this table (31.2 total mortality and 22 fishery mortality) are 2015
through 2019 estimated annual means, accounting for undetected mortality and serious injury. (Hayes et al., 2023).
3 - The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our small numbers
determination, as shown in parenthesis.
4 - Roberts et al. (2023) does not distinguish between short- and long-fmned pilot whales, thus the pooled density provided represents both species.
However, short-fmned pilot whales are not expected to occur in the Project Area, thus NMFS assumes that any take of pilot whales would be oflongfmned pilot whales.
5 - Long-finned pilot whale abundance estimate (Hayes et al., 2023).
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
Max
Level A Harassment
72630
Species
NMFS
Stock Abundance
recognize that certain activities could
shift within the 5-year effective period
19:13 Oct 19, 2023
BILLING CODE 3510–22–C
VerDate Sep<11>2014
ER20OC23.032
Table 28 -- Maximum Number of Authorized Takes (Level A Harassment and Level B Harassment) that Could Occur
in Any 1 Year of the Project and the Total Percent Stock that Would be Taken Based on the Maximum Annual
Authorized Take
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
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Mitigation
As noted in the Changes from the
Proposed to Final Rule section, NMFS
has added several new mitigation
requirements and clarified a few others,
and these changes are described in
detail in the sections below. Other than
the changes described, the required
measures remain the same as those
described in the proposed rule.
However, NMFS has also re-organized
and simplified the section to avoid full
duplication of the specific requirements
that are fully described in the regulatory
text.
In order to promulgate a rulemaking
under section 101(a)(5)(A) of the
MMPA, NMFS must set forth the
permissible methods of taking pursuant
to the activity, and other means of
effecting the least practicable adverse
impact on the species or stock and its
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of the species or stock for
taking for certain subsistence uses (latter
not applicable for this action). NMFS’
regulations require applicants for
incidental take authorizations to include
information about the availability and
feasibility (economic and technological)
of equipment, methods, and manner of
conducting the activity or other means
of effecting the least practicable adverse
impact upon the affected species or
stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or
may not be appropriate to ensure the
least practicable adverse impact on
species or stocks and their habitat, as
well as subsistence uses where
applicable, we carefully consider two
primary factors:
(1) The manner in which, and the
degree to which, the successful
implementation of the measure(s) is
expected to reduce impacts to marine
mammals, marine mammal species or
stocks, and their habitat. This considers
the nature of the potential adverse
impact being mitigated (likelihood,
scope, range). It further considers the
likelihood that the measure will be
effective if implemented (probability of
accomplishing the mitigating result if
implemented as planned), the
likelihood of effective implementation
(probability implemented as planned);
and,
(2) The practicability of the measures
for applicant implementation, which
may consider such things as cost,
impact on operations, and, in the case
of a military readiness activity,
personnel safety, practicality of
implementation, and impact on the
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19:13 Oct 19, 2023
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effectiveness of the military readiness
activity.
The mitigation strategies described
below are consistent with those required
and successfully implemented under
previous incidental take authorizations
issued in association with in-water
construction activities (e.g., soft-start,
establishing shutdown zones).
Additional measures have also been
incorporated to account for the fact that
the proposed construction activities
would occur offshore. Modeling was
performed to estimate harassment
zones, which were used to inform
mitigation measures for the project’s
activities to minimize Level A
harassment and Level B harassment to
the extent practicable, while providing
estimates of the areas within which
Level B harassment might occur.
Generally speaking, the mitigation
measures considered and required here
fall into three categories: temporal
(seasonal and daily) work restrictions,
real-time measures (shutdown,
clearance, and vessel strike avoidance),
and noise attenuation/reduction
measures. Seasonal work restrictions are
designed to avoid or minimize
operations when marine mammals are
concentrated or engaged in behaviors
that make them more susceptible or
make impacts more likely, in order to
reduce both the number and severity of
potential takes, and are effective in
reducing both chronic (longer-term) and
acute effects. Real-time measures, such
as implementation of shutdown and
clearance zones, as well as vessel strike
avoidance measures, are intended to
reduce the probability or severity of
harassment by taking steps in real time
once a higher-risk scenario is identified
(e.g., once animals are detected within
an impact zone). Noise attenuation
measures, such as bubble curtains, are
intended to reduce the noise at the
source, which reduces both acute
impacts, as well as the contribution to
aggregate and cumulative noise that may
result in longer term chronic impacts.
Below, we briefly describe the
required training, coordination, and
vessel strike avoidance measures that
apply to all specified activities, and
then in the following subsections we
describe the measures that apply
specifically to foundation installation,
landfall construction, HRG surveys, and
UXO/MEC detonation. Details on
specific requirements can be found in
Part 217—Regulations Governing The
Taking and Importing of Marine
Mammals at the end of this rulemaking.
Training and Coordination
NMFS requires all Revolution Wind
employees and contractors conducting
PO 00000
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Fmt 4701
Sfmt 4700
72631
activities on the water, including, but
not limited to, all vessel captains and
crew are trained in marine mammal
detection and identification,
communication protocols, and all
required measures to minimize impacts
on marine mammals and support
Revolution Wind’s compliance with the
LOA, if issued. Additionally, all
relevant personnel and the marine
mammal species monitoring team(s) are
required to participate in joint, onboard
briefings prior to the beginning of
project activities. The briefing must be
repeated whenever new relevant
personnel (e.g., new PSOs, construction
contractors, relevant crew) join the
project before work commences. During
this training, Revolution Wind is
required to instruct all project personnel
regarding the authority of the marine
mammal monitoring team(s). For
example, training must include that the
HRG acoustic equipment operator is
required to immediately comply with
any call for a delay or shut down by the
Lead PSO, and that any disagreement
between the Lead PSO and the project
personnel must only be discussed after
delay or shutdown has occurred. In
particular, all captains and vessel crew
must be trained in marine mammal
detection and vessel strike avoidance
measures to ensure marine mammals are
not struck by any project or projectrelated vessel.
Prior to the start of in-water
construction activities, vessel operators
and crews would receive training about
marine mammals and other protected
species known or with the potential to
occur in the Project Area, making
observations in all weather conditions,
and vessel strike avoidance measures. In
addition, training would include
information and resources available
regarding applicable Federal laws and
regulations for protected species.
Revolution Wind will provide
documentation of training to NMFS.
North Atlantic Right Whale Awareness
Monitoring
Revolution Wind must use available
sources of information on North
Atlantic right whale presence, including
daily monitoring of the Right Whale
Sightings Advisory System, monitoring
of U.S. Coast Guard very high frequency
(VHF) Channel 16 throughout each day
to receive notifications of any sightings,
and information associated with any
regulatory management actions (e.g.,
establishment of a zone identifying the
need to reduce vessel speeds).
Maintaining daily awareness and
coordination affords increased
protection of North Atlantic right
whales by understanding North Atlantic
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20OCR2
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Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
right whale presence in the area through
ongoing visual and passive acoustic
monitoring efforts and opportunities
(outside of Revolution Wind’s efforts),
and allows for planning of construction
activities, when practicable, to
minimize potential impacts on North
Atlantic right whales.
Vessel Strike Avoidance Measures
This final rule contains numerous
vessel strike avoidance measures that
reduce the risk that a vessel and marine
mammal could collide. While the
likelihood of a vessel strike is generally
low, they are one of the most common
ways that marine mammals are
seriously injured or killed by human
activities. Therefore, enhanced
mitigation and monitoring measures are
required to avoid vessel strikes to the
extent practicable. While many of these
measures are proactive intending to
avoid the heavy use of vessels during
times when marine mammals of
particular concern may be in the area,
several are reactive and occur when a
project personnel sights a marine
mammal. The mitigation requirements
are described generally here and in
detail in the regulation text at the end
of this final rule (see 50 CFR
217.274(b)). Revolution Wind will be
required to comply with these measures
unless an emergency situation presents
a threat to the health, safety, or life of
a person or when a vessel, actively
engaged in emergency rescue or
response duties, including vessel-indistress or environmental crisis
response, requires speeds in excess of
10 kn (11.5 mph) to fulfill those
responsibilities, while in the specified
geographical region.
While underway, Revolution Wind is
required to monitor for and maintain a
minimum separation distance from
marine mammals, and operate vessels in
a manner that reduces the potential for
vessel strike. Regardless of the vessel’s
size, all vessel operators, crews, and
dedicated visual observers (i.e., PSO or
trained crew member) must maintain a
vigilant watch for all marine mammals
during all vessel operations and slow
down, stop their vessel, or alter course
(as appropriate) to avoid striking any
marine mammal. The dedicated visual
observer on each vessel, equipped with
and trained to use suitable monitoring
technology (e.g., binoculars, night vision
devices), must be located at an
appropriate vantage point for ensuring
vessels are maintaining required vessel
separation distances from marine
mammals (e.g., 500 m from North
Atlantic right whales).
All project vessels, regardless of size,
must maintain the following minimum
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19:13 Oct 19, 2023
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separation zones: 500 m from North
Atlantic right whales; 100 m from sperm
whales and non-North Atlantic right
whale baleen whales; and 50 m from all
delphinid cetaceans and pinnipeds (an
exception is made for those species that
approach the vessel (i.e., bow-riding
dolphins)). If any of these species are
sighted within their respective
minimum separation zone, the
underway vessel must shift its engine to
neutral and the engines must not be
engaged until the animal(s) have been
observed to be outside of the vessel’s
path and beyond the respective
minimum separation zone. All project
vessels, regardless of size, must
immediately reduce speed to 10 kn (11.5
mph) or less for at least 24 hours when
a North Atlantic right whale is sighted
at any distance by any project-related
personnel or acoustically detected by
any project-related PAM system. Each
subsequent observation or acoustic
detection in the Project Area will trigger
an additional 24-hour period. If a North
Atlantic right whale is reported via any
of the monitoring systems within 10 km
(6.2 miles (mi)) of a transiting vessel(s),
that vessel must operate at 10 kn (11.5
mph) or less for 24 hours following the
reported detection. Additionally, in the
event that any project-related vessel,
regardless of size, observes any
unidentified large whale within 500 m
of an underway vessel, the vessel is
required to immediately reduce speeds
to 10 kn (11.5 mph) or less until the
minimum separation distance is
established.
All Project-related vessels are
required to comply with existing NMFS
vessel speed restrictions for North
Atlantic right whales and the measures
within this rulemaking for operating
vessels around North Atlantic right
whales and other marine mammals.
When no other speed restrictions are in
place, all Project-related vessels
(including crew transfer vessels) are
restricted from traveling over 10 kn
(11.5 mph), unless traveling in a
frequently traveled transit corridor (e.g.,
crew transfer corridor) from port to the
Lease Area while Revolution Wind
conducts real-time PAM to detect large
whales, in addition to visual
monitoring. All Revolution Wind’s
vessels, regardless of size, must
immediately reduce speed to 10 kn (11.5
mph) or less for at least 24 hours when
a North Atlantic right whale is sighted
at any distance by any project-related
personnel or acoustically detected by
any project-related PAM system (e.g., in
transit corridor). Each subsequent
observation or acoustic detection in the
Project area must trigger an additional
PO 00000
Frm 00072
Fmt 4701
Sfmt 4700
24-hour period. If a North Atlantic right
whale is reported via any of the
monitoring systems within 10
kilometers (km; 6.2 miles (mi)) of a
transiting vessel(s), that vessel must
operate at 10 kn (11.5 mph) or less for
24 hours following the reported
detection. If a large whale (other than a
North Atlantic right whale) is detected
via the transit corridor PAM system, all
vessels must travel at 10 kn (11.5 mph)
until the whale can be confirmed
visually beyond 500 m of the vessel or
24 hours has passed.
To maintain awareness of North
Atlantic right whale presence, vessel
operators, crew members, and the
marine mammal monitoring team would
monitor U.S. Coast Guard VHF Channel
16, WhaleAlert, the Right Whale
Sighting Advisory System (RWSAS),
and the PAM system. Any marine
mammal observed by project personnel
must be immediately communicated to
any on-duty PSOs, PAM operator(s), and
all vessel captains. Any North Atlantic
right whale or large whale observation
or acoustic detection by PSOs or PAM
operators must be conveyed to all vessel
captains. All vessels would be equipped
with an AIS and Revolution Wind must
report all Maritime Mobile Service
Identify (MMSI) numbers to NMFS
Office of Protected Resources prior to
initiating in-water activities. Revolution
Wind is required to submit a NMFSapproved North Atlantic Right Whale
Vessel Strike Avoidance Plan at least 90
days prior to commencement of vessel
use.
Revolution Wind’s compliance with
these measures will reduce the
likelihood of vessel strike to the extent
practicable. These measures increase
awareness of marine mammals in the
vicinity of project vessels and require
project vessels to reduce speed when
marine mammals are detected (by PSOs,
PAM, and/or through another source,
e.g., RWSAS) and maintain separation
distances when marine mammals are
encountered. While visual monitoring is
useful, reducing vessel speed is one of
the most effective, feasible options
available to reduce the likelihood of and
effects from a vessel strike. Numerous
studies have indicated that slowing the
speed of vessels reduces the risk of
lethal vessel collisions, particularly in
areas where right whales are abundant
and vessel traffic is common and
otherwise traveling at high speeds
(Vanderlaan and Taggart, 2007; Conn
and Silber, 2013; Van der Hoop et al.,
2015; Martin et al., 2015; Crum et al.,
2019).
E:\FR\FM\20OCR2.SGM
20OCR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
Seasonal and Daily Restrictions
Temporal restrictions in places where
marine mammals are concentrated,
engaged in biologically important
behaviors, and/or present in sensitive
life stages are effective measures for
reducing the magnitude and severity of
human impacts. The temporal
restrictions required here are built
around North Atlantic right whale
protection. Based upon the best
scientific information available (Roberts
et al., 2023), the highest densities of
North Atlantic right whales in the
Project Area are expected during the
months of January through April, with
an increase in density starting in
December. However, North Atlantic
right whales may be present in the
Project Area throughout the year,
although the numbers of North Atlantic
right whales are not expected to be as
large as those in foraging grounds to the
east (south of Martha’s Vineyard and
Nantucket) and north (e.g., Cape Cod
Bay, Gulf of St. Lawrence) or calving
grounds in the southeast U.S. from Cape
Fear, North Carolina, to below Cape
Canaveral, Florida.
NMFS is requiring seasonal work
restrictions to minimize the North
Atlantic right whales risk of exposure to
noise incidental to some project
activities. These seasonal work
restrictions are expected to greatly
reduce the number of takes of North
Atlantic right whales, and also afford
protection to other marine mammals
that are known to use the Project Area
with greater frequency during winter
months, including minke whales.
As described previously, no
foundation impact pile driving activities
will occur January 1 through April 30.
A new measure included in this final
rule requires Revolution Wind to avoid
impact pile driving to the maximum
extent practicable in December;
however, pile driving may occur in
December if it is unavoidable upon
approval from NMFS. Revolution Wind
plans to complete landfall construction
from Q4 2023 through Q1 2024;
however, NMFS is not seasonally
restricting this activity given its location
(nearshore, inside Narragansett Bay) and
relatively short duration of work
(particularly for installation and
removal of casing pipes), and the
minimal expected impacts to marine
mammals. Detonations will be
considered on a case-by-case basis, thus
Revolution Wind did not specify a
particular time of year during which
they will detonate UXOs/MECs.
However, Revolution Wind will be
restricted from detonating UXO/MECs
December 1 through April 30 to reduce
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19:13 Oct 19, 2023
Jkt 262001
impacts to North Atlantic right whales
during peak occurrence periods.
Seasonal restrictions do not apply to
HRG surveys; however, Revolution
Wind will only survey a predetermined
number of survey days each year (Year
1 = 218.7; Years 2–5 = 53.7/year or
214.8 total).
NMFS is also requiring temporal
restrictions for some activities. Within
any 24-hour period, Revolution Wind is
limited to installing up to three
monopile foundations. Revolution Wind
had requested to initiate pile driving
during nighttime when detection of
marine mammals is visually
challenging. Since the publication of the
proposed rule, Revolution Wind has
continued discussions with NMFS and
BOEM regarding field trials they have
been performing to demonstrate the
efficacy of their nighttime monitoring
methods and systems. These field trials
have provided information and
evidence that their systems are capable
of detecting marine mammals,
particularly large whales, at distances
necessary to ensure that the required
mitigation measures are effective. On
April 20, 2023, Revolution Wind
submitted an AMP for Nighttime Pile
Driving outlining nighttime monitoring
protocols and equipment. We reviewed
their AMP and, after further discussions
and revisions based on our comments
back to Revolution Wind, Revolution
Wind submitted a final draft AMP on
August 4, 2023. NMFS will review the
AMP to determine sufficiency. Should
NMFS approve the AMP, nighttime pile
driving may occur given Revolution
Wind adherence to the AMP and
additional mitigation and monitoring
measures prescribed by NMFS.
Any and all vibratory pile driving
associated with cofferdams and goal
post installation and removal must only
occur during daylight hours. UXO/MEC
detonation will be limited to daylight
hours only to ensure PSOs can most
effectively carry out visual clearance to
the farthest extent of the clearance zone
prior to detonation, should they need to
detonate a UXO/MEC of the largest
charge weight. Lastly, given the very
small Level B harassment zone
associated with HRG survey activities
and no anticipated or authorized Level
A harassment, NMFS is not requiring
any daily restrictions for HRG surveys.
More information on activity-specific
seasonal and daily restrictions can be
found in the regulatory text at the end
of this rulemaking.
Noise Abatement Systems
Revolution Wind is required to
employ NAS, also known as noise
attenuation systems, during all
PO 00000
Frm 00073
Fmt 4701
Sfmt 4700
72633
foundation installation (i.e., impact pile
driving) and UXO/MEC detonation
activities to reduce the sound pressure
levels that are transmitted through the
water in an effort to reduce ranges to
acoustic thresholds and minimize, to
the extent practicable, any acoustic
impacts resulting from these activities.
Revolution Wind is required to use at
least two NAS to ensure that measured
sound levels do not exceed the levels
modeled for a 10-dB sound level
reduction for foundation installation,
which is likely to include a double big
bubble curtain combined with another
NAS (e.g., hydro-sound damper, or an
AdBm Helmholz resonator), as well as
the adjustment of operational protocols
to minimize noise levels. For UXO/MEC
detonation, a double big bubble curtain
must be used and the hoses must be
placed at distances to avoid damage to
the bubble curtain during detonation. A
single bubble curtain, alone or in
combination with another NAS device,
may not be used for either pile driving
or UXO/MEC detonation as received
SFV data reveals this approach is
unlikely to attenuate sounds to the
degree distances to harassment
thresholds are less than or equal to
those modeled assuming 10-dB of
attenuation. Should the research and
development phase of newer systems
demonstrate effectiveness, as part of
adaptive management, Revolution Wind
may submit data on the effectiveness of
these systems and request approval from
NMFS to use them during foundation
installation and UXO/MEC detonation
activities.
Two categories of NAS exist: primary
and secondary. A primary NAS would
be used to reduce the level of noise
produced by foundation installation
activities at the source, typically
through adjustments on to the
equipment (e.g., hammer strike
parameters). Primary NAS are still
evolving and will be considered for use
during mitigation efforts when the NAS
has been demonstrated as effective in
commercial projects. However, as
primary NAS are not fully effective at
eliminating noise, a secondary NAS
would be employed. The secondary
NAS is a device or group of devices that
would reduce noise as it was
transmitted through the water away
from the pile, typically through a
physical barrier that would reflect or
absorb sound waves and therefore,
reduce the distance the higher energy
sound propagates through the water
column. Together, these systems must
reduce noise levels to those not
exceeding modeled ranges to Level A
harassment and Level B harassment
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isopleths corresponding to those
modeled assuming 10-dB sound
attenuation, pending results of Sound
Field Verification (SFV; see Sound Field
Verification section below and
§ 217.274(c)(14)).
Noise abatement systems, such as
bubble curtains, are used to decrease the
sound levels radiated from a source.
Bubbles create a local impedance
change that acts as a barrier to sound
transmission. The size of the bubbles
determines their effective frequency
band, with larger bubbles needed for
lower frequencies. There are a variety of
bubble curtain systems, confined or
unconfined bubbles, and some with
encapsulated bubbles or panels.
Attenuation levels also vary by type of
system, frequency band, and location.
Small bubble curtains have been
measured to reduce sound levels but
effective attenuation is highly
dependent on depth of water, current,
and configuration and operation of the
curtain (Austin et al., 2016; Koschinski
and Lu¨demann, 2013). Bubble curtains
vary in terms of the sizes of the bubbles
and those with larger bubbles tend to
perform a bit better and more reliably,
particularly when deployed with two
separate rings (Bellmann, 2014;
Koschinski and Lu¨demann, 2013; Nehls
et al., 2016). Encapsulated bubble
systems (e.g., Hydro Sound Dampers
(HSDs)), can be effective within their
targeted frequency ranges (e.g., 100–800
Hz), and when used in conjunction with
a bubble curtain appear to create the
greatest attenuation. The literature
presents a wide array of observed
attenuation results for bubble curtains.
The variability in attenuation levels is
the result of variation in design as well
as differences in site conditions and
difficulty in properly installing and
operating in-water attenuation devices.
The literature presents a wide array of
observed attenuation results for bubble
curtains. The variability in attenuation
levels is the result of variation in design
as well as differences in site conditions
and difficulty in properly installing and
operating in-water attenuation devices.
Da¨hne et al. (2017) found that single
bubble curtains that reduce sound levels
by 7 to 10 dB reduced the overall sound
level by approximately 12 dB when
combined as a double bubble curtain for
6-m steel monopiles in the North Sea.
During installation of monopiles
(consisting of approximately 8-m in
diameter) for more than 150 WTGs in
comparable water depths (>25 m) and
conditions in Europe indicate that
attenuation of 10 dB is readily achieved
(Bellmann, 2019; Bellmann et al., 2020)
using single BBCs for noise attenuation.
If a double big bubble curtain is used
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(noting a single bubble curtain is not
allowed), Revolution Wind is required
to maintain numerous operational
performance standards. These standards
are defined in the regulatory text at the
end of this rulemaking, and include, but
are not limited to, construction
contractors must train personnel in the
proper balancing of airflow to the
bubble ring and Revolution Wind must
submit a performance test and
maintenance report to NMFS within 72
hours following the performance test.
Corrections to the attenuation device to
meet regulatory requirements must
occur prior to use during foundation
installation activities and UXO/MEC
detonation. In addition, a full
maintenance check (e.g., manually
clearing holes) must occur prior to each
pile being installed or any UXO/MEC
detonated. If Revolution Wind uses a
noise mitigation device in addition to a
double big bubble curtain, similar
quality control measures are required.
Revolution Wind is required to
submit an SFV plan to NMFS for
approval at least 180 days prior to
installing foundations or detonating
UXO/MECs. They are also required to
submit interim and final SFV data
results to NMFS and make corrections
to the noise attenuation systems in the
case that any SFV measurements
demonstrate noise levels are above those
modeled assuming 10 dB. These
frequent and immediate reports allow
NMFS to better understand the sound
fields to which marine mammals are
being exposed and require immediate
corrective action should they be
misaligned with anticipated noise levels
within our analysis.
Noise abatement systems are not
required during landfall construction
activities and HRG surveys. Although
NAS is not practicable to implement
during landfall construction due to the
physical nature of linear sheet piles and
angled pipe piles, there is a low risk for
impacts to marine mammals due to the
short work duration and lower noise
levels produced during the activities.
Regarding HRG surveys, NAS cannot
practicably be employed around a
moving survey ship, but Revolution
Wind is required to make efforts to
minimize source levels by using the
lowest energy settings on equipment
that has the potential to result in
harassment of marine mammals (e.g.,
sparkers, boomers) and turn off
equipment when not actively surveying.
Overall, minimizing the amount and
duration of noise in the ocean from any
of the project’s activities through use of
all means necessary (e.g., noise
abatement, turning off power) will effect
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the least practicable adverse impact on
marine mammals.
Clearance and Shutdown Zones
NMFS requires the establishment of
both clearance and, where technically
feasible, shutdown zones during project
activities that have the potential to
result in harassment of marine
mammals. The purpose of ‘‘clearance’’
of a particular zone is to minimize
potential instances of auditory injury
and more severe behavioral
disturbances by delaying the
commencement of an activity if marine
mammals are near the activity. The
purpose of a shutdown is to prevent a
specific acute impact, such as auditory
injury or severe behavioral disturbance
of sensitive species, by halting the
activity.
All relevant clearance and shutdown
zones during project activities would be
monitored by NMFS-approved PSOs
and/or PAM operators (as described in
the regulatory text at the end of this
rulemaking). At least one PAM operator
must review data from at least 24 hours
prior to foundation installation or any
UXO/MEC detonations and must
actively monitor hydrophones for 60
minutes prior to commencement of
these activities. Any sighting or acoustic
detection within the PAM monitoring
zone of a North Atlantic right whale will
trigger a delay to commencing pile
driving and shutdown.
Prior to the start of certain specified
activities (i.e., foundation installation,
landfall construction, UXO/MEC
detonations, HRG surveys), Revolution
Wind must ensure designated areas (i.e.,
clearance zones, Tables 29–33) are clear
of marine mammals prior to
commencing activities to minimize the
potential for and degree of harassment.
For foundation installation and UXO/
MEC detonation, PSOs must visually
and acoustically monitor clearance
zones for marine mammals for a
minimum of 60 minutes, where the zone
must be confirmed free of marine
mammals at least 30 minutes directly
prior to commencing these activities.
For foundation installation, the
minimum visibility zone must extend
2,300 m from the pile May 1 through
November 30 and 4,400 m during
December (Table 29). These values
correspond to the seasonally-specific
modeled maximum ER95% distances to
the Level A harassment isopleths among
all low-frequency cetaceans (excluding
humpback whales), rounded up to the
nearest hundred, assuming three
monopiles are driven in a day and 10dB attenuation.
For vibratory pile driving for
cofferdam or goal post installation,
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pneumatic hammering for casing pipe
installation, and HRG surveys,
monitoring must be conducted for 30
minutes prior to initiating activities and
the clearance zones (Tables 30, 31, and
33) must be free of marine mammals
during that time.
For any other in-water construction
heavy machinery activities (e.g.,
trenching, cable laying, etc.), if a marine
mammal is on a path towards or comes
within 10 m (32.8 ft) of equipment,
Revolution Wind is required to cease
operations until the marine mammal has
moved more than 10 m on a path away
from the activity to avoid direct
interaction with equipment.
Once an activity begins, any marine
mammal entering their respective
shutdown zone would trigger activity
cessation. For impact pile driving, the
shutdown requirement may be waived if
it is not practicable due to imminent
risk of injury or loss of life to an
individual or risk of damage to a vessel
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that creates risk of injury or loss of life
for individuals or the lead engineer
determines there is pile refusal or pile
instability. In situations when shutdown
is called for during impact pile driving
but Revolution Wind determines
shutdown is not practicable due to
aforementioned emergency reasons,
reduced hammer energy must be
implemented when the lead engineer
determines it is practicable. Revolution
Wind must document and report to
NMFS all cases where the emergency
exemption is taken. Because UXO/MEC
detonations are instantaneous, no
shutdown is possible; therefore, there
are clearance zones but no shutdown
zones for UXO/MEC detonations (Table
32).
After shutdown, impact pile driving
may be reinitiated once all clearance
zones are clear of marine mammals for
the minimum species-specific periods,
or, if required to maintain pile stability,
at which time the lowest hammer
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72635
energy must be used to maintain
stability. If pile driving has been shut
down due to the presence of a North
Atlantic right whale, pile driving must
not restart until the North Atlantic right
whale has neither been visually or
acoustically detected for 30 minutes.
Upon re-starting pile driving, soft-start
protocols must be followed if pile
driving has ceased for 30 minutes or
longer.
The clearance and shutdown zone
sizes vary by species and are shown in
Tables 29 through 33. For foundation
installation and UXO/MEC detonation,
Revolution Wind is allowed to request
modification to these zone sizes
pending results of sound field
verification (see regulatory text at the
end of this rulemaking). Any changes to
zone size would be part of adaptive
management and would require NMFS’
approval.
BILLING CODE 3510–22–P
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any distance
PAM
Clearance
Zone
any distance within
PAM Monitoring Zone
Fmt 4701
Shutdown
Zone
any distance
PAM
Shutdown
Zone
any distance within
PAM Monitoring Zone
Sfmt 4725
Clearance
Zone
Frm 00076
WTG
Foundation
Type
PO 00000
North Atlantic right
whales
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Monitoring
details
oss
Other large whales
Delphinids
Harbor porpoises
WTG
oss
WTG
oss
WTG
oss
WTG
oss
2,300
(4,400)
1,600
(2,700)
NAS 2
NAS
1,400
(2,400)
900 (1,300)
500 (900)
400 (400)
1,400
(2,400)
900 (1,300)
500 (900)
400 (400)
n/a
2,300
(4,400)
1,600
(2,700)
NAS
NAS
n/a
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20OCR2
PAM
Monitoring
Zone
10,000 m
Minimum
Visibility
Zone
WTG: 2,300 (4,400) OSS: 1,600 (2,700)
Level B
Harassmen
tZone
WTG: 3,833 (4,271) OSS: 4,100 (4,698)
1 - Winter (i.e., December) distances are presented in parentheses.
2 - NAS (noise abatement system) means that the zone is small enough that it will be encompassed by the bubble curtain.
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19:13 Oct 19, 2023
Table 29 -- Clearance, Shutdown, Minimum Visibility, and Level B Harassment Zones (in Meters) During Impact Pile
Driving in Summer And Winter1
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Marine Mammal Species
Level A harassment
(SELcum) (m)
Level B harassment (m)
Clearance
Zone (m)
Shutdown Zone (m)
Low-frequency cetaceans
5
9,740
100
100
Mid-frequency cetaceans
(Sperm whale)
-
9,740
100
100
Mid-frequency cetaceans
(non-Sperm whale)
-
9,740
50
50
High-frequency cetaceans
190
9,740
200 1
200 1
Phocid Pinnipeds (in water)
10
9,740
50
50
1 - Distance has been increased from 100 m, as initially proposed by Revolution Wind, to ensure the clearance and shutdown zones are larger than the
Level A harassment zone (190 m).
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19:13 Oct 19, 2023
Table 30 -- Distances to Harassment Thresholds and Mitigation Zones During Vibratory Pile Driving
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Clearance
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Marine Mammal Hearing
Group
Level A harassment
(SELcum) (m)
Level B harassment (m)
Low-frequency
3,870
920
3,900
3,900
Mid-frequency
230
920
250
250
High-frequency
3,950
920
4,000
4,000
Phocid pinnipeds
1,290
920
1,300
1,300
Shutdown Zone (m)
Zone (m)
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ER20OC23.035
Table 31 -- Distances to Harassment Thresholds and Mitigation Zones During Pneumatic Hammering
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
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In the proposed rule, we presented
zone sizes based solely on the largest
charge weight due to uncertainty on
how accurately these charge weights
could be identified in the water. Since
the proposed rule, Revolution Wind has
demonstrated that they can reliably
identify charge weights in the field
charge, which will allow for
implementation of weight-specific
mitigative zones. Because of this,
Revolution Wind is required to
implement the ALARP process, as
described in the UXO/MEC Charge
Weight Memo. This process requires
Revolution Wind to undertake ‘‘lift-andshift’’ (i.e., physical removal) and then
lead up to in situ disposal, as necessary,
which could include low-order
(deflagration) to high-order (detonation)
methods of removal. Another approach
involves the cutting of the UXO/MEC to
extract any explosive components.
Implementing the ALARP approach
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would minimize potential impacts to
marine mammals, as UXOs/MECs
would only be detonated as a last resort.
Revolution Wind will follow a Risk
Management Framework designed to
align with the ALARP principle, which
includes historical research/hazard
profiling, communication with all
relevant State and Federal Agencies,
and the standards within their removal
plan (see the UXO/MEC Charge Weight
Memo); there is a high level of certainty
that charge weights and appropriate
removal approaches can be
implemented in the field. Furthermore,
we are confident that this approach will
ensure the least practicable adverse
impact on marine mammals by
mitigating the potential for TTS for each
charge weight. The UXO/MEC Charge
Weight Memo is found on NMFS’
website at https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-
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72639
revolution-wind-llc-constructionrevolution-wind-energy.
In following this charge weightspecific approach, Revolution Wind is
required to clear the relevant zones that
apply to detonation of a specific charge
weight, as specified in Table 32. These
zones are based on (but not equal to) the
greatest TTS threshold distances for
each charge weight at any modeled site.
We note that harbor porpoises and seals
are difficult to detect at great distances
but, due to the UXO/MEC detonation
time of year restrictions, their
abundance is likely to be relatively low.
These zone sizes may be adjusted based
on SFV and confirmation of the UXO/
MEC or donor charge sizes after
approval by NMFS.
No minimum visibility zone is
required for UXO/MEC detonation as
the entire visual clearance zone must be
clear given the potential for lung and
gastrointestinal injury.
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Table 32 -- Clearance, Level A Harassment, and Level B Harassment Zones During
UXO/MEC Detonations, by Charge Weight and Assuming 10 dB of Sound Attenuation
Low-frequency
cetaceans
Mid-frequency
cetaceans
Highfrequency
cetaceans
Level A
harassment (m)
552
50
1,820
Level B
harassment (m)
2,82
453
6,160
1,470
Clearance Zone
(m)•· b
2,500
500
2,500
1,000
Level A
harassment (m)
982
75
2,590
Level B
harassment (m)
4,680
773
8,000
2,350
Clearance Zone
(m)•· b
4,000
600
4,000
1,500
Level A
harassment (m)
1,730
156
3,900
690
Level B
harassment (m)
7,490
1,240
10,300
3,820
Clearance Zone
(m)•· b
6,000
1,000
6,000
3,000
UXO/MEC Charge Weights
E4 (2.3 kg)
E6 (9.1 kg)
E8 (45.5 kg)
Level A
harassment (m)
ElO (227
kg)
337
5,400
182
357
1,220
Level B
harassment (m)
10,500
2,120
12,900
5,980
Clearance Zone
(m)•· b
9,000
1,500
9,000
4,000
Level A
harassment (m)
3,780
461
6,200
1,600
Level B
harassment (m)
11,900
2,550
14,100
7,020
Clearance Zone
(m)•· b
10,000
2,000
10,000
5,000
a - The clearance zones presented here for the Level B harassment thresholds were derived based on an approximate
proportion of the size of the Level B harassment isopleth.
b - Some of the zones have been rounded for PSO clarity.
Revolution Wind must establish
clearance and shutdown zones around
HRG survey equipment based upon the
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radial distance (Table 33) from the
acoustic source rather than the vessel
itself and monitor Level B harassment
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zones specific to equipment type (i.e.,
boomers, sparkers, and CHIRP subbottom profilers). Prior to initiating HRG
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E12 (454
kg)
2,970
Phocid
Pinnipeds
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations
survey activities, Revolution Wind must
implement a 30-minute pre-start
clearance period, during which the
entire clearance zone must be visible. If
an HRG source is active and a marine
mammal is observed within or entering
72641
a relevant shutdown zone (as described
above), an immediate shutdown of the
HRG survey equipment is required.
Table 33 -- Level B Harassment Threshold Ranges and Mitigation Zones During HRG
Surveys
Level B Harassment Zone (m)
Marine Mammal
Species
Boomer/Sparker
Clearance Zone
(m)
Shutdown Zone
(m)
500
500
100
100
CHIRPs
Low-frequency
cetacean (North
Atlantic right
whale)
141
Other lowfrequency
cetaceans (nonNorth Atlantic
right whale
species)
48
Mid-frequency
cetaceans
141
48
100
100a
High-frequency
cetaceans
141
48
100
100
Phocid Pinnipeds
(in water)
141
48
100
100
* Denotes species is listed under the Endangered Species Act.
a - An exception is noted for bow-riding delphinids of the following genera: Delphinus, Stene/la, Lagenorhynchus,
and Tursiops.
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Soft-Start/Ramp-Up
The use of a soft-start or ramp-up
procedure is believed to provide
additional protection to marine
mammals by warning them, or
providing them with a chance to leave
the area prior to the hammer or HRG
equipment operating at full capacity.
Soft-start typically involves initiating
hammer operation at a reduced energy
level (relative to full operating capacity)
followed by a waiting period.
Revolution Wind must utilize a softstart protocol for impact pile driving of
monopiles by performing four to six
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strikes per minute at 10 to 20 percent of
the maximum hammer energy, for a
minimum of 20 minutes. NMFS notes
that it is difficult to specify a reduction
in energy for any given hammer because
of variation across drivers and
installation conditions. The final
methodology will be developed by
Revolution Wind considering final
design details including site-specific
soil properties and other considerations.
HRG survey operators are required to
ramp up sources when the acoustic
sources are used unless the equipment
operates on a binary on/off switch. The
ramp up would involve starting from
the smallest setting to the operating
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level over a period of approximately 30
minutes. Given the instantaneous nature
of UXO/MEC detonations, no ramp-up/
soft-start protocol is possible.
Soft-start and ramp-up will be
required at the beginning of impact pile
driving and use of HRG equipment and
at any time following a cessation of
activity of 30 minutes or longer. Prior to
soft-start or ramp-up beginning, the
operator must receive confirmation from
the PSO that the clearance zone is clear
of any marine mammals.
Fishery Monitoring Surveys
While the likelihood of Revolution
Wind’s fishery monitoring surveys
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impacting marine mammals is minimal,
NMFS requires Revolution Wind to
adhere to gear and vessel mitigation
measures to reduce potential impacts to
the extent practicable. In addition, all
crew undertaking the fishery monitoring
survey activities are required to receive
protected species identification training
prior to activities occurring and attend
the aforementioned onboarding training.
The specific requirements that NMFS
has set for the fishery monitoring
surveys can be found in the regulatory
text at the end of this rulemaking.
Based on our evaluation of the
mitigation measures, as well as other
measures considered by NMFS, NMFS
has determined that these measures will
provide the means of affecting 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.
Monitoring and Reporting
As noted in the Changes From the
Proposed to Final Rule section, we have
added, modified, or clarified a number
of monitoring and reporting measures
since the proposed rule. These changes
are described in detail in the sections
below and, otherwise, the marine
mammal monitoring and reporting
requirements have not changed since
the proposed rule.
In order to promulgate a rulemaking
for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must set
forth 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 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.
Effective reporting is critical both to
compliance as well as ensuring that the
most value is obtained from the required
monitoring.
• Monitoring and reporting
requirements prescribed by NMFS
should contribute to improved
understanding of one or more of the
following:
• Occurrence of marine mammal
species or stocks in the area in which
take is anticipated (e.g., presence,
abundance, distribution, density);
• Nature, scope, or context of likely
marine mammal exposure to potential
stressors/impacts (individual or
cumulative, acute or chronic), through
better understanding of: (1) action or
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environment (e.g., source
characterization, propagation, ambient
noise); (2) affected species (e.g., life
history, dive patterns); (3) co-occurrence
of marine mammal species with the
action; or (4) biological or behavioral
context of exposure (e.g., age, calving or
feeding areas);
• Individual marine mammal
responses (behavioral or physiological)
to acoustic stressors (acute, chronic, or
cumulative), other stressors, or
cumulative impacts from multiple
stressors;
• How anticipated responses to
stressors impact either: (1) long-term
fitness and survival of individual
marine mammals; or (2) populations,
species, or stocks;
• Effects on marine mammal habitat
(e.g., marine mammal prey species,
acoustic habitat, or other important
physical components of marine
mammal habitat); and/or
• Mitigation and monitoring
effectiveness.
Separately, monitoring is also
regularly used to support mitigation
implementation, which is referred to as
mitigation monitoring, and monitoring
plans typically include measures that
both support mitigation implementation
and increase our understanding of the
impacts of the activity on marine
mammals.
During the planned activities, visual
monitoring by NMFS-approved PSOs
would be conducted before, during, and
after all impact pile driving, vibratory
pile driving, UXO/MEC detonations,
and HRG surveys. PAM must be
conducted during impact pile driving
and UXO/MEC detonation. Revolution
must verify that distances to harassment
isopleths are not larger than those
modeled assuming 10-dB attenuation by
performing SFV during impact pile
driving and UXO/MEC detonations.
Visual observations and acoustic
detections would be used to support the
activity-specific mitigation measures
(e.g., clearance zones). To increase
understanding of the impacts of the
activity on marine mammals, PSOs must
record all incidents of marine mammal
occurrence at any distance from the
piling locations, during active HRG
acoustic sources, and during UXO/MEC
detonations. PSOs would document all
behaviors and behavioral changes, in
concert with distance from an acoustic
source. The required monitoring is
described below, beginning with PSO
measures that are applicable to all the
aforementioned activities, followed by
activity-specific monitoring
requirements.
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Protected Species Observer and PAM
Operator Requirements
Revolution Wind is required to
employ NMFS-approved PSOs and PAM
operators. PSOs are trained
professionals who are tasked with
visually monitoring for marine
mammals during pile driving, UXO/
MEC detonation, HRG surveys, and
pneumatic hammering. The primary
purpose of a PSO is to carry out the
monitoring, collect data, and, when
appropriate, call for the implementation
of mitigation measures. In addition to
visual observations, NMFS requires that
Revolution Wind conduct PAM using
trained, experienced PAM operators
during impact pile driving, UXO/MEC
detonations, and vessel transit.
The inclusion of PAM, which would
be conducted by NMFS-approved PAM
operators, following a standardized
measurement, processing methods,
reporting metrics, and metadata
standards for offshore wind, alongside
visual data collection is valuable to
provide the most accurate record of
species presence as possible and,
together, these two monitoring methods
are well understood to provide best
results when combined together (e.g.,
Barlow and Taylor, 2005; Clark et al.,
2010; Gerrodette et al., 2011; Van Parijs
et al., 2021). Acoustic monitoring (in
addition to visual monitoring) increases
the likelihood of detecting marine
mammals within the shutdown and
clearance zones of project activities,
which when applied in combination of
required shutdowns helps to further
reduce the risk of marine mammals
being exposed to sound levels that
could otherwise result in acoustic injury
or more intense behavioral harassment.
The exact configuration and number
of PAM systems depends on the size of
the zone(s) being monitored, the amount
of noise expected in the area, and the
characteristics of the signals being
monitored. More closely spaced
hydrophones would allow for more
directionality, and perhaps, range to the
vocalizing marine mammals; although,
this approach would add additional
costs and greater levels of complexity to
the project. Larger baleen cetacean
species (i.e., mysticetes), which produce
loud and lower-frequency vocalizations,
may be able to be heard with fewer
hydrophones spaced at greater
distances. However, smaller cetaceans
(such as mid-frequency delphinids;
odontocetes) may necessitate more
hydrophones and to be spaced closer
together given the shorter range of the
shorter, mid-frequency acoustic signals
(e.g., whistles and echolocation clicks).
As there are no ‘‘perfect fit’’ single-
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optimal-array configurations, these setups would need to be considered on a
case-by-case basis.
NMFS does not formally administer
any PSO or PAM operator training
program or endorse specific providers
but will approve PSOs and PAM
operators that have successfully
completed courses that meet the
curriculum and training requirements
referenced below and further specified
in the regulatory text at the end of this
rulemaking.
NMFS will provide PSO and PAM
operator approvals in the context of the
need to ensure PSOs and PAM operators
have the necessary training and/or
experience to carry out their duties
competently. In order for PSOs and
PAM operators to be approved, NMFS
must review and approve PSO and PAM
operator resumes indicating successful
completion of an acceptable training
course. PSOs and PAM operators must
have previous experience observing
marine mammals and must have the
ability to work with all required and
relevant software and equipment. NMFS
may approve PSOs and PAM operators
as conditional or unconditional. A
conditional approval may be given to
one who is trained but has not yet
attained the requisite experience. An
unconditional approval is given to one
who is trained and has attained the
necessary experience. The specific
requirements for conditional and
unconditional approval can be found in
the regulatory text at the end of this
rulemaking.
Conditionally-approved PSOs and
PAM operators would be paired with an
unconditional-approved PSO (or PAM
operator, as appropriate) to ensure that
the quality of marine mammal
observations and data recording is kept
consistent. Additionally, activities
requiring PSO and/or PAM operator
monitoring must have a lead on duty.
The visual PSO field team, in
conjunction with the PAM team (i.e.,
marine mammal monitoring team),
would have a lead member (designated
as the ‘‘Lead PSO’’ or ‘‘Lead PAM
operator’’) who would be required to
meet the unconditional approval
standard.
Although PSOs and PAM operators
must be approved by NMFS, third-party
observer providers and/or companies
seeking PSO and PAM operator staffing
should expect that those having
satisfactorily completed acceptable
training and with the requisite
experience (if required) will be quickly
approved. Revolution Wind is required
to request PSO and PAM operator
approvals 60 days prior to those
personnel commencing work. An initial
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list of previously approved PSO and
PAM operators must be submitted by
Revolution Wind at least 30 days prior
to the start of the project. Should
Revolution Wind require additional
PSOs or PAM operators throughout the
project, Revolution Wind must submit a
subsequent list of pre-approved PSOs
and PAM operators to NMFS at least 15
days prior to planned use of that PSO
or PAM operator. A PSO may be trained
and/or experienced as both a PSO and
PAM operator and may perform either
duty, pursuant to scheduling
requirements (and vice versa).
A minimum number of PSOs would
be required to actively observe for the
presence of marine mammals during
certain project activities with more
PSOs required as the mitigation zone
sizes increase. A minimum number of
PAM operators would be required to
actively monitor for the presence of
marine mammals during foundation
installation and UXO/MEC detonation.
The types of equipment required (e.g.,
big eyes on the pile driving vessel) are
also designed to increase marine
mammal detection capabilities.
Specifics on these types of requirements
can be found in the regulations at the
end of this rulemaking. In summary, at
least three PSOs and one PAM operator
per acoustic data stream (equivalent to
the number of acoustic buoys) must be
on-duty and actively monitoring per
platform during foundation installation
and each UXO/MEC detonation event; at
least two PSOs must be on duty during
cable landfall construction (vibratory
pile installation and removal of sheet
piles or pneumatic hammering of casing
pipes); at least one PSO must be on-duty
during HRG surveys conducted during
daylight hours; and at least two PSOs
must be on-duty during HRG surveys
conducted during nighttime.
In addition to monitoring duties,
PSOs and PAM operators are
responsible for data collection. The data
collected by PSO and PAM operators
and subsequent analysis provide the
necessary information to inform an
estimate of the amount of take that
occurred during the project, better
understand the impacts of the project on
marine mammals, address the
effectiveness of monitoring and
mitigation measures, and to adaptively
manage activities and mitigation in the
future. Data reported includes
information on marine mammal
sightings, activity occurring at time of
sighting, monitoring conditions, and if
mitigative actions were taken. Specific
data collection requirements are
contained within the regulations at the
end of this rulemaking.
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Revolution Wind is required to
submit a Pile Driving and UXO/MEC
Marine Mammal Monitoring Plan and a
PAM Plan to NMFS 180 days in advance
of foundation installation activities. The
Plan must include details regarding PSO
monitoring and PAM protocols and
equipment proposed for us. More
specifically, the PAM Plan must include
a description of all proposed PAM
equipment, address how the proposed
PAM must follow standardized
measurement, processing methods,
reporting metrics, and metadata
standards for offshore wind as described
in ‘‘NOAA and BOEM Minimum
Recommendations for Use of Passive
Acoustic Listening Systems in Offshore
Wind Energy Development Monitoring
and Mitigation Programs’’ (Van Parijs et
al., 2021). NMFS must approve the plan
prior to foundation installation
activities or UXO/MEC detonation
commencing. Specific details on NMFS’
PSO or PAM operator qualifications and
requirements can be found in
§ 217.275(a) at the end of this
rulemaking. Additional information can
be found in Revolution Wind’s
Protected Species Mitigation and
Monitoring Plan (PSMMP) (Appendix B)
found in their ITA application on
NMFS’ website at https://
www.fisheries.noaa.gov/action/
incidental-take-authorizationrevolution-wind-llc-constructionrevolution-wind-energy.
Sound Field Verification
Revolution Wind must conduct SFV
measurements during all UXO/MEC
detonations and for all impact piledriving activities associated with the
installation of, at minimum, the first
three monopile foundations. SFV
measurements must continue until at
least three consecutive piles
demonstrate distances to thresholds are
at or below those modeled assuming 10
dB of attenuation. Subsequent SFV
measurements are also required should
larger piles be installed or additional
piles be driven that are anticipated to
produce longer distances to harassment
isopleths than those previously
measured (e.g., higher hammer energy,
greater number of strikes). The
measurements and reporting associated
with SFV can be found in the regulatory
text at the end of this rulemaking. The
requirements are extensive to ensure
monitoring is conducted appropriately
and the reporting frequency is such that
Revolution Wind is required to make
adjustments quickly (e.g., ensure bubble
curtain hose maintenance, check bubble
curtain air pressure supply, add
additional sound attenuation, etc.) to
ensure marine mammals are not
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experiencing noise levels above those
considered in this analysis. For
recommended SFV protocols for impact
pile driving, please consult ISO 18406
‘‘Underwater acoustics—Measurement
of radiated underwater sound from
percussive pile driving’’ (2017).
Reporting
Prior to any construction activities
occurring, Revolution Wind would
provide a report to NMFS Office of
Protected Resources that demonstrates
that all required training for Revolution
Wind personnel, which includes the
vessel crews, vessel captains, PSOs, and
PAM operators have completed all
required trainings.
NMFS would require standardized
and frequent reporting from Revolution
Wind during the life of the regulations
and LOA. All data collected relating to
the Project would be recorded using
industry-standard software (e.g.,
Mysticetus or a similar software)
installed on field laptops and/or tablets.
Revolution Wind is required to submit
weekly, monthly, annual, and
situational reports. The specifics of
what we require to be reported can be
found in the regulatory text at the end
of this final rule.
Weekly Report—During foundation
installation activities, Revolution Wind
would be required to compile and
submit weekly marine mammal
monitoring reports for foundation
installation pile driving to NMFS Office
of Protected Resources that document
the daily start and stop of all piledriving activities, the start and stop of
associated observation periods by PSOs,
details on the deployment of PSOs, a
record of all detections of marine
mammals (acoustic and visual), any
mitigation actions (or if mitigation
actions could not be taken, provide
reasons why), and details on the noise
abatement system(s) (e.g., system type,
distance deployed from the pile, bubble
rate, etc.). Weekly reports will be due on
Wednesday for the previous week
(Sunday–Saturday). The weekly reports
are also required to identify which
turbines become operational and when
(a map must be provided). Once all
foundation pile installation is complete,
weekly reports would no longer be
required.
Monthly Report—Revolution Wind is
required to compile and submit monthly
reports to NMFS Office of Protected
Resources that include a summary of all
information in the weekly reports,
including project activities carried out
in the previous month, vessel transits
(number, type of vessel, and route),
number of piles installed, all detections
of marine mammals, and any mitigative
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actions taken. Monthly reports would be
due on the 15th of the month for the
previous month. The monthly report
would also identify which turbines
become operational and when (a map
must be provided). Once all foundation
pile installation is complete, monthly
reports would no longer be required.
Annual Reporting—Revolution Wind
is required to submit an annual marine
mammal monitoring (both PSO and
PAM) report to NMFS Office of
Protected Resources no later than 90
days following the end of a given
calendar year describing, in detail, all of
the information required in the
monitoring section above. A final
annual report must be prepared and
submitted within 30 calendar days
following receipt of any NMFS
comments on the draft report.
Final 5-Year Reporting—Revolution
Wind must submit its draft 5-year
report(s) to NMFS Office of Protected
Resources on all visual and acoustic
monitoring conducted under the LOA
within 90 calendar days of the
completion of activities occurring under
the LOA. A final 5-year report must be
prepared and submitted within 60
calendar days following receipt of any
NMFS comments on the draft report.
Information contained within this report
is described at the beginning of this
section.
Situational Reporting—Specific
situations encountered during the
development of the Project requires
immediate reporting. For instance, if a
North Atlantic right whale is observed
at any time by PSOs or project
personnel, the sighting must be
immediately (if not feasible, as soon as
possible and no longer than 24 hours
after the sighting) reported to NMFS. If
a North Atlantic right whale is
acoustically detected at any time via a
project-related PAM system, the
detection must be reported as soon as
possible and no longer than 24 hours
after the detection to NMFS via the 24hour North Atlantic right whale
Detection Template (https://
www.fisheries.noaa.gov/resource/
document/passive-acoustic-reportingsystem-templates). Calling the hotline is
not necessary when reporting PAM
detections via the template.
If a sighting of a stranded, entangled,
injured, or dead marine mammal occurs,
the sighting would be reported to NMFS
Office of Protected Resources, the NMFS
Greater Atlantic Stranding Coordinator
for the New England/Mid-Atlantic area
(866–755–6622), and the U.S. Coast
Guard within 24 hours. If the injury or
death was caused by a project activity,
Revolution Wind must immediately
cease all activities until NMFS Office of
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Protected Resources is able to review
the circumstances of the incident and
determine what, if any, additional
measures are appropriate to ensure
compliance with the terms of the LOA.
NMFS Office of Protected Resources
may impose additional measures to
minimize the likelihood of further
prohibited take and ensure MMPA
compliance. Revolution Wind may not
resume their activities until notified by
NMFS Office of Protected Resources.
In the event of a vessel strike of a
marine mammal by any vessel
associated with the Project, Revolution
Wind must immediately report the
strike incident. If the strike occurs in the
Greater Atlantic region (Maine to
Virginia), Revolution Wind must call
the NMFS Greater Atlantic Stranding
Hotline. Separately, Revolution Wind
must also immediately report the
incident to NMFS Office of Protected
Resources and GARFO. Revolution
Wind must immediately cease all onwater activities until NMFS Office of
Protected Resources is able to review
the circumstances of the incident and
determine what, if any, additional
measures are appropriate to ensure
compliance with the terms of the LOA.
NMFS Office of Protected Resources
may impose additional measures to
minimize the likelihood of further
prohibited take and ensure MMPA
compliance. Revolution Wind may not
resume their activities until notified by
NMFS.
In the event of any lost gear associated
with the fishery surveys, Revolution
Wind must report to the GARFO as soon
as possible or within 24 hours of the
documented time of missing or lost gear.
This report must include information on
any markings on the gear and any efforts
undertaken or planned to recover the
gear.
The specifics of what NMFS Office of
Protected Resources requires to be
reported is listed at the end of this
rulemaking in the regulatory text.
Sound Field Verification—Revolution
Wind is required to submit interim SFV
reports after each foundation
installation and UXO/MEC detonation
monitored as soon as possible but
within 48 hours. A final SFV report for
all monopile foundation installation and
UXO/MEC detonations would be
required within 90 days following
completion of acoustic monitoring.
Adaptive Management
The regulations governing the take of
marine mammals incidental to
Revolution Wind’s construction
activities contain an adaptive
management component. Our
understanding of the effects of offshore
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wind construction activities (e.g.,
acoustic and explosive stressors) on
marine mammals continues to evolve,
which makes the inclusion of an
adaptive management component both
valuable and necessary within the
context of 5-year regulations.
The monitoring and reporting
requirements in this final rule provide
NMFS with information that helps us to
better understand the impacts of the
project’s activities on marine mammals
and informs our consideration of
whether any changes to mitigation and
monitoring are appropriate. The use of
adaptive management allows NMFS to
consider new information and modify
mitigation, monitoring, or reporting
requirements, as appropriate, with input
from Revolution Wind regarding
practicability, if such modifications will
have a reasonable likelihood of more
effectively accomplishing the goal of the
measures.
The following are some of the
possible sources of new information to
be considered through the adaptive
management process: (1) results from
monitoring reports, including the
weekly, monthly, situational, and
annual reports required; (2) results from
marine mammal and sound research;
and (3) any information which reveals
that marine mammals may have been
taken in a manner, extent, or number
not authorized by these regulations or
subsequent LOA. During the course of
the rule, Revolution Wind (and other
LOA Holders conducting offshore wind
development activities) are required to
participate in one or more adaptive
management meetings convened by
NMFS and/or BOEM, in which the
above information will be summarized
and discussed in the context of potential
changes to the mitigation or monitoring
measures.
Negligible Impact Analysis and
Determination
NMFS has defined negligible impact
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
(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., populationlevel effects). An estimate of the number
of 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’’
by mortality, serious injury, Level A
harassment and Level B harassment, we
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consider other factors, such as the likely
nature of any behavioral responses (e.g.,
intensity, duration), the context of any
such responses (e.g., critical
reproductive time or location,
migration), as well as effects on habitat,
and the likely effectiveness of
mitigation. We also assess the number,
intensity, and context of estimated takes
by evaluating this information relative
to population status. Consistent with the
1989 preamble for NMFS’ implementing
regulations (54 FR 40338, September 29,
1989), the impacts from other past and
ongoing anthropogenic activities are
incorporated into this analysis via their
impacts on the environmental baseline
(e.g., as reflected in the regulatory status
of the species, population size and
growth rate where known, ongoing
sources of human-caused mortality, or
ambient noise levels).
In the Estimated Take section in this
preamble, we discuss the estimated
maximum number of takes by Level A
harassment and Level B harassment that
could occur incidental to Revolution
Wind’s specified activities based on the
methods described. The impact that any
given take would have is dependent on
many case-specific factors that need to
be considered in the negligible impact
analysis (e.g., the context of behavioral
exposures such as duration or intensity
of a disturbance, the health of impacted
animals, the status of a species that
incurs fitness-level impacts to
individuals, etc.). In this final rule, we
evaluate the likely impacts of the
enumerated harassment takes that are
authorized in the context of the specific
circumstances surrounding these
predicted takes. We also collectively
evaluate this information, as well as
other more taxa-specific information
and mitigation measure effectiveness, in
group-specific discussions that support
our negligible impact conclusions for
each stock. As described above, no
serious injury or mortality is expected
or authorized for any species or stock.
The Description of the Specified
Activities section of this preamble
describes Revolution Wind’s specified
activities that may result in take of
marine mammals and an estimated
schedule for conducting those activities.
Revolution Wind has provided a
realistic construction schedule although
we recognize schedules may shift for a
variety of reasons (e.g., weather or
supply delays). However, the total
amount of take would not exceed the 5year totals and maximum annual total in
any given year indicated in Tables 27
and 28, respectively.
We base our analysis and negligible
impact determination on the maximum
number of takes that could occur and
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are authorized annually and across the
effective period of these regulations and
extensive qualitative consideration of
other contextual factors that influence
the degree of impact of the takes on the
affected individuals and the number
and context of the individuals affected.
As stated before, the number of takes,
both maximum annual and 5-year total,
alone are only a part of the analysis.
To avoid repetition, we provide some
general analysis in this Negligible
Impact Analysis and Determination
section that applies to all the species
listed in Table 2 given that some of the
anticipated effects of the project’s
construction activities on marine
mammals are expected to be relatively
similar in nature. Then, we subdivide
into more detailed discussions for
mysticetes, odontocetes, and pinnipeds
which have broad life history traits that
support an overarching discussion of
some factors considered within the
analysis for those groups (e.g., habitatuse patterns, high-level differences in
feeding strategies).
Last, we provide a negligible impact
determination for each species or stock,
providing species or stock-specific
information or analysis, where
appropriate (e.g., North Atlantic right
whales given their population status).
Organizing our analysis by grouping
species or stocks that share common
traits or that would respond similarly to
effects of the project activities and then
providing species- or stock-specific
information allows us to avoid
duplication while ensuring that we have
analyzed the effects of the specified
activities on each affected species or
stock. It is important to note that in the
group or species sections, we base our
negligible impact analysis on the
maximum annual take that is predicted
under the 5-year rule; however, the
majority of the impacts are associated
with WTG foundation and OSS
foundation installation, which will
occur largely within the first year of the
effective period of these regulations
(2023–2024). The estimated take in the
other years is expected to be notably
less, which is reflected in the total take
that would be allowable under the rule
(see Tables 27 and 28).
As described previously, no serious
injury or mortality is anticipated or
authorized in this rule. Any Level A
harassment authorized would be in the
form of auditory injury (i.e., PTS) and
not non-auditory injury (e.g., lung injury
or gastrointestinal injury from UXO/
MEC detonation). The number of takes
by harassment Revolution Wind
requested and NMFS is authorizing is
based on exposure models that consider
the outputs of acoustic source and
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propagation models and other data such
as frequency of occurrence or group
sizes. Several conservative parameters
and assumptions are ingrained into
these models, such as assuming forcing
functions that consider direct contact
with piles (i.e., no cushion allowances)
and application of the average summer
sound speed profile to all months
within a given season. The exposure
model results do not reflect any
mitigation measures (other than 10-dB
sound attenuation for impact pile
driving and UXO/MEC detonations) or
avoidance response. The number of
takes requested and authorized also
reflects careful consideration of other
data (e.g., group size data) and for Level
A harassment of some large whales, the
consideration of mitigation measures.
For all species, the number of take to be
authorized represents the maximum
amount of Level A harassment and
Level B harassment that could occur.
Behavioral Disturbance
In general, NMFS anticipates that
impacts on an individual that has been
harassed are likely to be more intense
when exposed to higher received levels
and for a longer duration (though this is
in no way a strictly linear relationship
for behavioral effects across species,
individuals, or circumstances) and less
severe impacts result when exposed to
lower received levels and for a brief
duration. However, there is also growing
evidence of the importance of
contextual factors such as distance from
a source in predicting marine mammal
behavioral response to sound—i.e.,
sounds of a similar level emanating
from a more distant source have been
shown to be less likely to evoke a
response of equal magnitude (DeRuiter
and Doukara, 2012; Falcone et al.,
2017). As described in the Potential
Effects to Marine Mammals and their
Habitat section of the proposed rule, the
intensity and duration of any impact
resulting from exposure to Revolution
Wind’s activities is dependent upon a
number of contextual factors including,
but not limited to, sound source
frequencies, whether the sound source
is moving towards the animal, hearing
ranges of marine mammals, behavioral
state at time of exposure, status of
individual exposed (e.g., reproductive
status, age class, health) and an
individual’s experience with similar
sound sources. Southall et al. (2021),
Ellison et al. (2012) and Moore and
Barlow (2013), among others, emphasize
the importance of context (e.g.,
behavioral state of the animals, distance
from the sound source) in evaluating
behavioral responses of marine
mammals to acoustic sources.
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Harassment of marine mammals may
result in behavioral modifications (e.g.,
avoidance, temporary cessation of
foraging or communicating, changes in
respiration or group dynamics, masking)
or may result in auditory impacts such
as hearing loss. In addition, some of the
lower level physiological stress
responses (e.g., change in respiration,
change in heart rate) discussed
previously would likely co-occur with
the behavioral modifications, although
these physiological responses are more
difficult to detect and fewer data exist
relating these responses to specific
received levels of sound. Takes by Level
B harassment, then, may have a stressrelated physiological component as
well; however, we would not expect
Revolution Wind’s activities to produce
conditions of long-term and continuous
exposure to noise leading to long-term
physiological stress responses in marine
mammals that could affect reproduction
or survival.
In the range of behavioral effects that
might be expected to be part of a
response that qualifies as an instance of
Level B harassment by behavioral
disturbance (which by nature of the way
it is modeled/counted, occurs within 1
day), the less severe end might include
exposure to comparatively lower levels
of a sound, at a greater distance from the
animal, for a few or several minutes. A
less severe exposure of this nature could
result in a behavioral response such as
avoiding an area that an animal would
otherwise have chosen to move through
or feed in for some amount of time, or
breaking off one or a few feeding bouts.
More severe effects could occur if an
animal gets close enough to the source
to receive a comparatively higher level,
is exposed continuously to one source
for a longer time, or is exposed
intermittently to different sources
throughout a day. Such effects might
result in an animal having a more severe
flight response, and leaving a larger area
for a day or more or potentially losing
feeding opportunities for a day.
However, such severe behavioral effects
are expected to occur infrequently.
Many species perform vital functions,
such as feeding, resting, traveling, and
socializing on a diel cycle (24-hour
cycle). Behavioral reactions to noise
exposure, when taking place in a
biologically important context, such as
disruption of critical life functions,
displacement, or avoidance of important
habitat, are more likely to be significant
if they last more than one day or recur
on subsequent days (Southall et al.,
2007) due to diel and lunar patterns in
diving and foraging behaviors observed
in many cetaceans (Baird et al., 2008;
Barlow et al., 2020; Henderson et al.,
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2016; Schorr et al., 2014). It is important
to note the water depth in the Project
Area is shallow (ranging from 2 to 40 m
in the RWEC and 24 to 50 m in the
Lease Area) and deep diving species,
such as sperm whales, are not expected
to be engaging in deep foraging dives
when exposed to noise above NMFS
harassment thresholds during the
specified activities. Therefore, we do
not anticipate impacts to deep foraging
behavior to be impacted by the specified
activities.
It is also important to identify that the
estimated number of takes does not
necessarily equate to the number of
individual animals Revolution Wind
expects to harass (which is lower), but
rather to the instances of take (i.e.,
exposures above the Level B harassment
thresholds) that may occur. These
instances may represent either brief
exposures of seconds for UXO/MEC
detonations, seconds to minutes for
HRG surveys, or, in some cases, longer
durations of exposure within a day (e.g.,
pile driving). Some individuals of a
species may experience recurring
instances of take over multiple days
throughout the year, while some
members of a species or stock may
experience one exposure as they move
through an area, which means that the
number of individuals taken is smaller
than the total estimated takes. In short,
for species that are more likely to be
migrating through the area and/or for
which only a comparatively smaller
number of takes are predicted (e.g.,
some of the mysticetes), it is more likely
that each take represents a different
individual, whereas for non-migrating
species with larger amounts of predicted
take, we expect that the total anticipated
takes represent exposures of a smaller
number of individuals of which some
would be taken across multiple days.
For Revolution Wind, impact pile
driving of foundation piles is most
likely to result in a higher magnitude
and severity of behavioral disturbance
than other activities (i.e., vibratory pile
driving, pneumatic hammering, UXO/
MEC detonations, and HRG surveys).
Impact pile driving has higher source
levels and longer durations (on an
annual basis) than vibratory pile driving
and HRG surveys. HRG survey
equipment also produces much higher
frequencies than pile driving, resulting
in minimal sound propagation. While
UXO/MEC detonations may have higher
source levels, impact pile driving is
planned for longer durations (i.e., a
maximum of 13 UXO/MEC detonations
are planned, which would result in only
instantaneous exposures). While impact
pile driving for foundation installation
is anticipated to be most impactful for
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these reasons, impacts are minimized, to
the extent practicable, through
implementation of mitigation measures,
including use of a sound attenuation
system, soft-starts, the implementation
of clearance zones that would facilitate
a delay to pile driving commencement,
and implementation of shutdown zones.
For example, given sufficient notice
through the use of soft-start, marine
mammals are expected to move away
from a sound source that is disturbing
prior to becoming exposed to very loud
noise levels. The requirement to couple
visual monitoring and PAM before and
during all foundation installation and
UXO/MEC detonations will increase the
overall capability to detect marine
mammals compared to one method
alone. Measures such as the requirement
to apply sound attenuation devices and
implement clearance zones also apply to
UXO/MEC detonation(s), which also
have the potential to elicit more severe
behavioral reactions in the unlikely
event that an animal is relatively close
to the explosion in the instant that it
occurs; hence, severity of behavioral
responses are expected to be lower than
would be the case without mitigation.
Occasional, milder behavioral
reactions are unlikely to cause long-term
consequences for individual animals or
populations, and even if some smaller
subset of the takes are in the form of a
longer (several hours or a day) and more
severe response, if they are not expected
to be repeated over numerous or
sequential days, impacts to individual
fitness are not anticipated. Also, the
effect of disturbance is strongly
influenced by whether it overlaps with
biologically important habitats when
individuals are present—avoiding
biologically important habitats will
provide opportunities to compensate for
reduced or lost foraging (Keen et al.,
2021). Nearly all studies and experts
agree that infrequent exposures of a
single day or less are unlikely to impact
an individual’s overall energy budget
(Farmer et al., 2018; Harris et al., 2017;
King et al., 2015; National Academy of
Science, 2017; New et al., 2014;
Southall et al., 2007; Villegas-Amtmann
et al., 2015).
Temporary Threshold Shift (TTS)
TTS is one form of Level B
harassment that marine mammals may
incur through exposure to Revolution
Wind’s activities and, as described
earlier, the takes by Level B harassment
may represent takes in the form of
behavioral disturbance, TTS, or both. As
discussed in the Potential Effects of
Specified Activities on Marine
Mammals and their Habitat section of
the proposed rule, in general, TTS can
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last from a few minutes to days, be of
varying degree and occur across
different frequency bandwidths, all of
which determine the severity of the
impacts on the affected individual,
which can range from minor to more
severe. Impact and vibratory pile
driving, pneumatic hammering, and
UXO/MEC detonations are broadband
noise sources but generate sounds in the
lower frequency ranges (with most of
the energy below 1–2 kHz but with a
small amount energy ranging up to 20
kHz); therefore, in general and all else
being equal, we anticipate the potential
for TTS is higher in low-frequency
cetaceans (i.e., mysticetes) than other
marine mammal hearing groups and
would be more likely to occur in
frequency bands in which they
communicate. However, we would not
expect the TTS to span the entire
communication or hearing range of any
species given the frequencies produced
by these activities do not span entire
hearing ranges for any particular
species. Additionally, though the
frequency range of TTS that marine
mammals might sustain would overlap
with some of the frequency ranges of
their vocalizations, the frequency range
of TTS from Revolution Wind’s pile
driving and UXO/MEC detonation
activities would not typically span the
entire frequency range of one
vocalization type, much less span all
types of vocalizations or other critical
auditory cues for any given species. The
mitigation measures required by NMFS
further reduce the potential for TTS in
mysticetes.
Generally, both the degree of TTS and
the duration of TTS would be greater if
the marine mammal is exposed to a
higher level of energy (which would
occur when the peak dB level is higher
or the duration is longer). The threshold
for the onset of TTS was discussed
previously (see to Estimated Take
section of this preamble). However,
source level alone is not a predictor of
TTS. An animal would have to
approach closer to the source or remain
in the vicinity of the sound source
appreciably longer to increase the
received SEL, which would be difficult
considering the required mitigation and
the nominal speed of the receiving
animal relative to the stationary sources
such as impact pile driving. The
recovery time of TTS is also of
importance when considering the
potential impacts from TTS. In TTS
laboratory studies (as discussed in the
Potential Effects of the Specified
Activities on Marine Mammals and their
Habitat section of the proposed rule),
some using exposures of almost an hour
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in duration or up to 217 SEL, almost all
individuals recovered within 1 day (or
less, often in minutes) and we note that
while the pile driving activities last for
hours a day, it is unlikely that most
marine mammals would stay in the
close vicinity of the source long enough
to incur more severe TTS. UXO/MEC
detonations also have the potential to
result in TTS. However, given the
duration of exposure is extremely short
(milliseconds), the degree of TTS (i.e.,
the amount of dB shift) is expected to
be small and TTS duration is expected
to be short (minutes to hours). Overall,
given the small number of times that
any individual might incur TTS, the low
degree of TTS and the short anticipated
duration, and the unlikely scenario that
any TTS overlapped the entirety of a
critical hearing range, it is unlikely that
TTS of the nature expected to result
from the project’s activities would result
in behavioral changes or other impacts
that would impact any individual’s (of
any hearing sensitivity) reproduction or
survival.
Permanent Threshold Shift (PTS)
NMFS is authorizing a small amount
of take by PTS to some marine mammal
individuals. The numbers of authorized
annual takes by Level A harassment are
relatively low for all marine mammal
stocks and species (Table 27). The only
activities incidental to which we
anticipate PTS may occur is from
exposure to impact pile driving and
UXO/MEC detonation, which produces
sounds that are both impulsive and
primarily concentrated in the lower
frequency ranges (below 1 kHz) (David,
2006; Krumpel et al., 2021).
There are no PTS data on cetaceans
and only one instance of PTS being
induced in older harbor seals
(Reichmuth et al., 2019). However,
available TTS data (of mid-frequency
hearing specialists exposed to mid- or
high-frequency sounds (Southall et al.,
2007; NMFS, 2018; Southall et al.,
2019)) suggest that most threshold shifts
occur in the frequency range of the
source up to one octave higher than the
source. We would anticipate a similar
result for PTS. Further, no more than a
small degree of PTS is expected to be
associated with any of the incurred
Level A harassment, given it is unlikely
that animals would stay in the close
vicinity of a source for a duration long
enough to produce more than a small
degree of PTS.
PTS would consist of minor
degradation of hearing capabilities
occurring predominantly at frequencies
one-half to one octave above the
frequency of the energy produced by
pile driving or instantaneous UXO/MEC
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detonation (i.e., the low-frequency
region below 2 kHz) (Cody and
Johnstone, 1981; McFadden, 1986;
Finneran, 2015), not severe hearing
impairment. If hearing impairment
occurs from either impact pile driving
or UXO/MEC detonation, it is most
likely that the affected animal would
lose a few decibels in its hearing
sensitivity, which in most cases is not
likely to meaningfully affect its ability
to forage and communicate with
conspecifics. Revolution Wind estimates
13 UXO/MECs may be detonated and
the exposure analysis conservatively
assumes that all of the UXOs/MECs
found would consist of the largest
charge weight of UXO/MEC (E12; 454
kg). However, it is highly unlikely that
all charges would be the maximum size;
thus, the amount of Level A harassment
that may occur incidental to the
detonation of the UXO/MECs is likely
less than what is estimated here. In
addition, during impact pile driving,
given sufficient notice through use of
soft-start prior to implementation of full
hammer energy during impact pile
driving, marine mammals are expected
to move away from a sound source that
is disturbing prior to it resulting in
severe PTS.
Auditory Masking or Communication
Impairment
The ultimate potential impacts of
masking on an individual are similar to
those discussed for TTS (e.g., decreased
ability to communicate, forage
effectively, or detect predators), but an
important difference is that masking
only occurs during the time of the
signal, versus TTS, which continues
beyond the duration of the signal. Also,
though, masking can result from the
sum of exposure to multiple signals,
none of which might individually cause
TTS. Fundamentally, masking is
referred to as a chronic effect because
one of the key potential harmful
components of masking is its duration—
the fact that an animal would have
reduced ability to hear or interpret
critical cues becomes much more likely
to cause a problem the longer it is
occurring. Inherent in the concept of
masking is the fact that the potential for
the effect is only present during the
times that the animal and the source are
in close enough proximity for the effect
to occur and, further, this time period
would need to coincide with a time that
the animal was utilizing sounds at the
masked frequency.
As our analysis has indicated, for this
project we expect that impact pile
driving foundations have the greatest
potential to mask marine mammal
signals, and this pile driving may occur
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for several, albeit intermittent, hours per
day, for multiple days per year. Masking
is fundamentally more of a concern at
lower frequencies (which are pile
driving dominant frequencies), because
low frequency signals propagate
significantly further than higher
frequencies and because they are more
likely to overlap both the narrower low
frequency calls of mysticetes, as well as
many non-communication cues related
to fish and invertebrate prey, and
geologic sounds that inform navigation.
However, the area in which masking
would occur for all marine mammal
species and stocks (e.g., predominantly
in the vicinity of the foundation pile
being driven) is small relative to the
extent of habitat used by each species
and stock. In summary, the nature of
Revolution Wind’s activities, paired
with habitat use patterns by marine
mammals, does not support the
likelihood that the level of masking that
could occur would have the potential to
affect reproductive success or survival.
Impacts on Habitat and Prey
Impact pile driving of monopile
foundations and UXO/MEC detonation
may result in fish and invertebrate
mortality or injury very close to the
source, and all of Revolution Wind’s
activities may cause some fish to leave
the area of disturbance. It is anticipated
that any mortality or injury would be
limited to a very small subset of
available prey and the implementation
of mitigation measures such as the use
of a noise attenuation system during
impact pile driving and UXO/MEC
detonation would further limit the
degree of impact (again noting UXO/
MEC detonation would be limited to 13
events over 5 years). Behavioral changes
in prey in response to construction
activities could temporarily impact
marine mammals’ foraging
opportunities in a limited portion of the
foraging range; however, due to the
relatively small area of the habitat that
may be affected at any given time (e.g.,
around a pile being driven), the impacts
to marine mammal habitat are not
expected to cause significant or longterm negative consequences.
Cable presence is not anticipated to
impact marine mammal habitat as these
would be buried, and any
electromagnetic fields emanating from
the cables are not anticipated to result
in consequences that would impact
marine mammals prey to the extent they
would be unavailable for consumption.
The presence of wind turbines within
the Lease Area could have longer-term
impacts on marine mammal habitat, as
the project would result in the
persistence of the structures within
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marine mammal habitat for more than
30 years. The presence of structures
such as wind turbines is, in general,
likely to result in certain oceanographic
effects in the marine environment and
may alter aggregations and distribution
of marine mammal zooplankton prey
through changing the strength of tidal
currents and associated fronts, changes
in stratification, primary production, the
degree of mixing, and stratification in
the water column (Chen et al., 2021;
Johnson et al., 2021; Christiansen et al.,
2022; Dorrell et al., 2022).
As discussed in the Potential Effects
of the Specified Activities on Marine
Mammals and their Habitat section of
the proposed rule, the project would
consist of no more than 81 foundations
(79 WTGs and 2 OSSs) in the Lease
Area, which will gradually become
operational following construction
completion, likely in Year 2 of the rule
(2024–2025). While there are likely to be
oceanographic impacts from the
presence of the Revolution Wind
project, meaningful oceanographic
impacts relative to stratification and
mixing that would significantly affect
marine mammal habitat and prey over
large areas in key foraging habitats
during the effective period of the
regulations are not anticipated (which
considers 2–3 years of turbine
operation). For these reasons, if
oceanographic features are affected by
the project during the effective period of
these regulations, the impact on marine
mammal habitat and their prey is likely
to be comparatively minor; therefore, we
are not authorizing take due to habitat
and prey impacts.
The Revolution Wind Biological
Opinion provided an evaluation of the
presence and operation of the Project
on, among other species, marine
mammals and their prey. While the
consultation considered the life of the
project (25+ years), we considered the
potential for the habitat and prey
impacts to occur within the 5-year
effective time frame of this rule. Overall,
the Biological Opinion concluded that
impacts from loss of sandy bottom
habitat (from the presence of turbines
and placement of scour protection) as
well as any beneficial reef effects are
expected to be so small that they cannot
be meaningfully measured, evaluated, or
detected and are, therefore,
insignificant. The Biological Opinion
also concluded that the presence and
operation of the wind farm may change
the distribution of plankton with the
wind farm, these changes are not
expected to affect the oceanographic
forces transporting zooplankton into the
area. Therefore, the Biological Opinion
concluded that the overall reduction in
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biomass of plankton is not an
anticipated outcome of operating the
Project. Thus, because changes in the
biomass of zooplankton are not
anticipated, any higher trophic level
impacts are also not anticipated. That is,
no effects to pelagic fish or benthic
invertebrates that depend on plankton
as forage food are expected to occur.
Zooplankton, fish and invertebrates are
all considered marine mammal prey
and, as fully described in the Biological
Opinion, measurable, detectable or
significant changes to marine mammal
prey abundance and distribution from
wind farm operation is not anticipated.
Mitigation To Reduce Impacts on All
Species
This rulemaking includes a variety of
mitigation measures designed to
minimize impacts on all marine
mammals to the extent practicable with
a focus on North Atlantic right whales
(the latter is described in more detail
below). For impact pile driving of
foundation piles and UXO/MEC
detonations, nine overarching
mitigation measures are required, which
are intended to reduce both the number
and intensity of marine mammal takes:
(1) seasonal/time of day work
restrictions; (2) use of multiple PSOs to
visually observe for marine mammals
(with any detection within specifically
designated zones that would trigger
delay or shutdown); (3) use of PAM to
acoustically detect marine mammals
with a focus on detecting baleen whales
(with any detection within designated
zones triggering delay or shutdown); (4)
implementation of clearance zones; (5)
implementation of shutdown zones; (6)
use of soft-start for impact pile driving
of foundations; (7) use of noise
attenuation technology; (8) maintaining
situational awareness of marine
mammal presence through the
requirement that any marine mammal
sighting(s) by Revolution Wind
personnel must be reported to PSOs; (9)
sound field verification monitoring; and
(10) Vessel Strike Avoidance measures
to reduce the risk of a collision with a
marine mammal and vessel. For
cofferdam, casing pipe, and goal post
installation and removal, we are
requiring five overarching mitigation
measures: (1) time of day work
restrictions; (2) use of multiple PSOs to
visually observe for marine mammals
(with any detection with specifically
designated zones that would trigger a
delay or shutdown); (3) implementation
of clearance zones; (4) implementation
of shutdown zones); and (5) maintaining
situational awareness of marine
mammal presence through the
requirement that any marine mammal
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sighting(s) by Revolution Wind
personnel must be reported to PSOs.
Lastly, for HRG surveys, we are
requiring six measures: (1) measures
specifically for Vessel Strike Avoidance;
(2) required use of one PSO during
daytime operations and two PSOs
utilizing specialized night-vision
technologies during nighttime
operations for HRG surveys; (3)
implementation of clearance zones; (4)
implementation of shutdown zones; (5)
use of ramp-up of acoustic sources; and
(6) maintaining situational awareness of
marine mammal presence through the
requirement that any marine mammal
sighting(s) by Revolution Wind
personnel must be reported to PSOs.
NMFS prescribes mitigation measures
based on the following rationale. For
activities with large harassment
isopleths, Revolution Wind is
committed to reducing the noise levels
generated to the lowest levels
practicable and is required to ensure
that they do not exceed a noise footprint
above that which was modeled,
assuming a 10-dB attenuation. Use of a
soft-start during impact pile driving will
allow animals to move away from (i.e.,
avoid) the sound source prior to
applying higher hammer energy levels
needed to install the pile (Revolution
Wind will use the minimum amount of
hammer energy to install piles).
Similarly, ramp-up during HRG surveys
will allow animals to move away and
avoid the acoustic sources before they
reach their maximum energy level
(Revolution Wind will use the lowest
energy level practicable to conduct
survey activities). For all activities (with
some exception for UXO/MEC
detonations, which would not have a
shutdown zone), clearance zone and
shutdown zone implementation, which
are required when marine mammals are
within given distances associated with
certain impact thresholds for all
activities, will reduce the magnitude
and severity of marine mammal take.
Additionally, the use of multiple PSOs
(WTG and OSS foundation installation,
temporary cofferdam, casing pipe, or
goal post installation and removal,
UXO/MEC detonations, HRG surveys),
PAM, operators (for impact foundation
installation and UXO/MEC detonations),
and maintaining awareness of marine
mammal sightings reported in the region
(WTG and OSS foundation installation,
temporary cofferdam casing pipe, or
goal post installation and removal,
UXO/MEC detonations, HRG surveys)
will aid in detecting marine mammals
that would trigger the implementation
of the mitigation measures. The
reporting requirements, including SFV
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reporting for foundation installation,
foundation operation, and UXO/MEC
detonations will assist NMFS in
identifying if impacts beyond those
analyzed in this final rule are occurring,
potentially leading to the need to enact
adaptive management measures in
addition to or in place of the mitigation
measures.
Mysticetes
Six mysticete species (comprising six
stocks) of cetaceans (North Atlantic
right whale, blue whale, humpback
whale, fin whale, sei whale, and minke
whale) may be taken by harassment.
These species, to varying extents, utilize
the specified geographic region,
including the Project Area, for the
purposes of migration, foraging, and
socializing. Mysticetes are in the lowfrequency hearing group.
Behavioral data on mysticete
reactions to pile driving noise are scant.
Kraus et al. (2019) predicted that the
three main impacts of offshore wind
farms on marine mammals would
consist of displacement, behavioral
disruptions, and stress. Broadly, we can
look to studies that have focused on
other noise sources such as seismic
surveys and military training exercises,
which suggest that exposure to loud
signals can result in avoidance of the
sound source (or displacement if the
activity continues for a longer duration
in a place where individuals would
otherwise have been staying, which is
less likely for mysticetes in this area),
disruption of foraging activities (if they
are occurring in the area), local masking
around the source, associated stress
responses, and impacts to prey, as well
as TTS or PTS in some cases.
Mysticetes encountered in the Project
Area are expected to be migrating
through and/or engaged in foraging
behavior. The extent to which an animal
engages in these behaviors in the area is
species-specific and varies seasonally.
Many mysticetes are expected to
predominantly be migrating through the
Project Area towards or from primary
feeding habitats (e.g., Cape Cod Bay,
Great South Channel, and Gulf of St.
Lawrence). While we have
acknowledged above that mortality,
hearing impairment, or displacement of
mysticete prey species may result
locally from impact pile driving and
UXO/MEC detonations, given the very
short duration of and broad availability
of prey species in the area and the
availability of alternative suitable
foraging habitat for the mysticete
species most likely to be affected, any
impacts on mysticete foraging are
expected to be minor. Whales
temporarily displaced from the Project
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Area are expected to have sufficient
remaining feeding habitat available to
them, and would not be prevented from
feeding in other areas within the
biologically important feeding habitats,
including to the east near Nantucket
Shoals. In addition, any displacement of
whales or interruption of foraging bouts
would be expected to be relatively
temporary in nature.
The potential for repeated exposures
is dependent upon the residency time of
whales with migratory animals unlikely
to be exposed on repeated occasions and
animals remaining in the area to be
more likely exposed repeatedly. For
mysticetes, where relatively low
numbers of species-specific take by
Level B harassment are predicted
(compared to the abundance of each
mysticete species or stock; see Table 28)
and movement patterns suggest that
individuals would not necessarily linger
in a particular area for multiple days,
each predicted take likely represents an
exposure of a different individual; the
behavioral impacts would, therefore, be
expected to occur within a single day
within a year and is not be expected to
impact reproduction or survival.
Species with longer residence time in
the Project Area may be subject to
repeated exposures across multiple
days.
In general, the duration of exposures
would not be continuous throughout
any given day and pile driving would
not occur on all consecutive days within
a given year due to weather delays or
any number of logistical constraints
Revolution Wind has identified.
Species-specific analysis regarding
potential for repeated exposures and
impacts is provided below.
Humpback whales, minke whales, fin
whales and sei whales are the mysticete
species for which PTS is anticipated
and authorized. As described
previously, PTS for mysticetes from
some project activities may overlap
frequencies used for communication,
navigation, or detecting prey. However,
given the nature and duration of the
activity, the mitigation measures, and
likely avoidance behavior, any PTS is
expected to be of a small degree, would
be limited to frequencies where pile
driving noise is concentrated (i.e., only
a small subset of their expected hearing
range) and would not be expected to
impact reproductive success or survival.
North Atlantic Right Whale
North Atlantic right whales are listed
as endangered under the ESA and as
both depleted and strategic under the
MMPA. As described in the Potential
Effects to Marine Mammals and Their
Habitat section of the proposed rule,
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North Atlantic right whales are
threatened by a low population
abundance, higher than average
mortality rates, and lower than average
reproductive rates. Recent studies have
reported individuals showing high
stress levels (e.g., Corkeron et al., 2017)
and poor health, which has further
implications on reproductive success
and calf survival (Christiansen et al.,
2020; Stewart et al., 2021; Stewart et al.,
2022). As described below, a UME has
been designated for North Atlantic right
whales. Given this, the status of the
North Atlantic right whale population is
of heightened concern and, therefore,
merits additional analysis and
consideration. No injury or mortality is
anticipated or authorized for this
species.
For North Atlantic right whales, this
rule authorizes up to 56 takes, by Level
B harassment, over the 5-year period,
with a maximum annual allowable take
of 44 (equating to approximately 13
percent of the stock abundance, if each
take were considered to be of a different
individual), with far lower numbers
expected in the years following
foundation installation (e.g., years when
only HRG surveys would be occurring).
Southern New England, including the
Project Area, is part of a known
migratory corridor for North Atlantic
right whales and may be a stopover site
for migrating North Atlantic right
whales moving to or from southeastern
calving grounds and northern foraging
grounds. However, North Atlantic right
whales range outside of the Project Area
for their main feeding, breeding, and
calving activities. Additional qualitative
observations in southern New England
include animals feeding and socializing
(Quintana-Rizzo et al., 2021). North
Atlantic right whales are primarily
concentrated in the northeastern and
southeastern sections of the
Massachusetts Wind Energy Area (MA
WEA) (i.e., east of the Project Area)
during the summer (June–August) and
winter (December–February) while
distribution likely shifts to the west,
closer to the Project Area, into the
Rhode Island/Massachusetts Wind
Energy Area (RI/MA WEA) in the spring
(March–May) (Quintana-Rizzo et al.,
2021). Approximately 23 percent of the
right whale population is present in
southern New England from December
through May, and the mean residence
time has tripled to an average of 13 days
during these months (Quintana-Rizzo et
al., 2021).
In general, North Atlantic right
whales in the Project Area are expected
to be engaging in migratory and/or
feeding behavior. Migrating whales
would typically be moving through the
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Project Area, rather than lingering for
extended periods of time; however,
foraging whales may remain in the
Project Area, with an average residence
time of 13 days between December and
May (Quintana-Rizzo et al., 2021). It is
important to note that the activities that
would occur from December through
April that may impact North Atlantic
right whales using the habitat for
foraging or migration would be
primarily HRG surveys, which are not
expected to result in very high received
levels given the rapid transmission loss
resulting in the small (less than 150 m)
Level B harassment zone. Across all
years, if an individual were to be
exposed during a subsequent year, the
impact of that exposure is likely
independent of the previous exposure
given the duration between exposures.
As described in the Description of
Marine Mammals in the Geographic
Area section of the Proposed Rule,
North Atlantic right whales are
presently experiencing an ongoing UME
(beginning in June 2017). Preliminary
findings support human interactions,
specifically vessel strikes and
entanglements, as the cause of death for
the majority of North Atlantic right
whales. Given the current status of the
North Atlantic right whale, the loss of
even one individual could significantly
impact the population. No mortality,
serious injury, or injury of North
Atlantic right whales as a result of the
project is expected or authorized. Any
disturbance to North Atlantic right
whales due to Revolution Wind’s
activities is expected to result in
temporary avoidance of the immediate
area of construction. As no injury,
serious injury, or mortality is expected
or authorized and Level B harassment of
North Atlantic right whales will be
reduced to the level of least practicable
adverse impact through use of
mitigation measures, the authorized
number of takes of North Atlantic right
whales would not exacerbate or
compound the effects of the ongoing
UME.
As described in the general Mysticetes
section above, foundation installation is
likely to result in the highest amount of
annual take and is of greatest concern
given loud source levels. This activity is
limited to up to 79 days assuming
Revolution Wind is only able to install
one foundation per day over a
maximum of 1 year, (although it will
likely be less as Revolution Wind
anticipates being able to install more
than one pile per day throughout the
construction period), during times
when, based on the best available
scientific data, North Atlantic right
whales are less frequently encountered
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due to their migratory behavior. The
potential types, severity, and magnitude
of impacts are also anticipated to mirror
that described in the general Mysticetes
section above, including avoidance (the
most likely outcome), changes in
foraging or vocalization behavior,
masking, a small amount of TTS, and
temporary physiological impacts (e.g.,
change in respiration, change in heart
rate). Importantly, the effects of the
activities are expected to be sufficiently
low-level and localized to specific areas
as to not meaningfully impact important
behaviors such as migration and
foraging for North Atlantic right whales.
These takes are expected to result in
temporary behavioral reactions, such as
slight displacement (but not
abandonment) of migratory habitat or
temporary cessation of feeding. Further,
given many of these exposures are
generally expected to occur to different
individual right whales migrating
through (i.e., many individuals would
not be impacted on more than one day
in a year), with some subset potentially
being exposed on no more than a few
days within the year, they are unlikely
to result in energetic consequences that
could affect reproduction or survival of
any individuals.
Overall, NMFS expects that any
behavioral harassment of North Atlantic
right whales incidental to the specified
activities would not result in changes to
their migration patterns or foraging
success, as only temporary avoidance of
an area during construction is expected
to occur. As described previously, North
Atlantic right whales migrate, forage, or
socialize in the Project Area but are not
expected to remain in this habitat for
extensive durations relative to core
foraging habitats to the east, south of
Nantucket and Martha’s Vineyard, Cape
Cod Bay, or the Great South Channel
(Quintana-Rizzo et al., 2021). Any
temporarily displaced animals would be
able to return to or continue to travel
through the Project Area and
subsequently utilize this habitat once
activities have ceased.
Although acoustic masking may occur
in the vicinity of the foundation
installation activities, based on the
acoustic characteristics of noise
associated with pile driving (e.g.,
frequency spectra, short duration of
exposure) and construction surveys
(e.g., intermittent signals), NMFS
expects masking effects to be minimal
(e.g., impact pile driving, pneumatic
hammering) to none (e.g., HRG surveys).
In addition, masking would likely only
occur during the period of time that a
North Atlantic right whale is in the
relatively close vicinity of pile driving,
which is expected to be intermittent
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within a day and confined to the
months in which North Atlantic right
whales are at lower densities and
primarily moving through the area. TTS
is another potential form of Level B
harassment that could result in brief
periods of slightly reduced hearing
sensitivity affecting behavioral patterns
by making it more difficult to hear or
interpret acoustic cues within the
frequency range (and slightly above) of
sound produced during impact pile
driving; however, any TTS would likely
be of low amount, limited duration, and
limited to frequencies where most
construction noise is centered (below 2
kHz). NMFS expects that right whale
hearing sensitivity would return to preexposure levels shortly after migrating
through the area or moving away from
the sound source.
As described in the Potential Effects
to Marine Mammals and Their Habitat
section of the proposed rule, the
distance of the receiver to the source
influences the severity of response with
greater distances typically eliciting less
severe responses. NMFS recognizes
North Atlantic right whales migrating
could be pregnant females (in the fall)
and cows with older calves (in spring)
and that these animals may slightly alter
their migration course in response to
any foundation pile driving; however,
we anticipate that course diversion
would be of small magnitude. Hence,
while some avoidance of the piledriving activities may occur, we
anticipate any avoidance behavior of
migratory North Atlantic right whales
would be similar to that of gray whales
(Tyack et al., 1983), on the order of
hundreds of meters up to 1 to 2 km.
This diversion from a migratory path
otherwise uninterrupted by the project’s
activities is not expected to result in
meaningful energetic costs that would
impact annual rates of recruitment of
survival. NMFS expects that North
Atlantic right whales would be able to
avoid areas during periods of active
noise production while not being forced
out of this portion of their habitat.
North Atlantic right whale presence
in the Project Area is year-round.
However, abundance during summer
months is lower compared to the winter
months with spring and fall serving as
‘‘shoulder seasons’’ wherein abundance
waxes (fall) or wanes (spring). Given
this year-round habitat usage, in
recognition that where and when
whales may actually occur during
project activities is unknown as it
depends on the annual migratory
behaviors, NMFS is requiring a suite of
mitigation measures designed to reduce
impacts to North Atlantic right whales
to the maximum extent practicable.
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These mitigation measures (e.g.,
seasonal/daily work restrictions, vessel
separation distances, reduced vessel
speed) would not only avoid the
likelihood of vessel strikes but also
would minimize the severity of
behavioral disruptions by minimizing
impacts (e.g., through sound reduction
using attenuation systems and reduced
temporal overlap of project activities
and North Atlantic right whales). This
would further ensure that the number of
takes by Level B harassment that are
estimated to occur are not expected to
affect reproductive success or
survivorship by detrimental impacts to
energy intake or cow/calf interactions
during migratory transit. However, even
in consideration of recent habitat-use
and distribution shifts, Revolution Wind
would still be installing foundations
when the presence of North Atlantic
right whales is expected to be lower.
As described in the Description of
Marine Mammals in the Specific
Geographic Region section in the
preamble of this rule, Revolution Wind
would be constructed within the North
Atlantic right whale migratory corridor
BIA, which represent areas and months
within which a substantial portion of a
species or population is known to
migrate. The Lease Area is relatively
small compared with the migratory BIA
area (approximately 339 km2 for OCS–
A–0486 versus the size of the full North
Atlantic right whale migratory BIA,
269,448 km2). Because of this, the
overall North Atlantic right whale
migration is not expected to be
impacted by the proposed activities.
Although North Atlantic right whales
forage to some degree in the Project
Area, there are no known breeding, or
calving areas within the Project Area.
Prey species are mobile (e.g., calanoid
copepods can initiate rapid and directed
escape responses) and are broadly
distributed throughout the Project Area.
Therefore, any impacts to prey that may
occur are also unlikely to impact marine
mammals.
The most significant measure to
minimize impacts to individual North
Atlantic right whales is the seasonal
moratorium on all foundation
installation activities from January 1
through April 30 and the limitation on
these activities in December (e.g., only
work with approval from NMFS) when
North Atlantic right whale abundance in
the Project Area is expected to be
highest. NMFS also expects this
measure to greatly reduce the potential
for mother-calf pairs to be exposed to
impact pile driving noise above the
Level B harassment threshold during
their annual spring migration through
the Project Area from calving grounds to
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primary foraging grounds (e.g., Cape
Cod Bay). UXO/MEC detonations would
also be restricted from December 1
through April 30, annually. NMFS
expects that exposures to North Atlantic
right whales would be reduced due to
the additional mitigation measures that
would ensure that any exposures above
the Level B harassment threshold would
result in only short-term effects to
individuals exposed.
Pile driving and UXO/MEC
detonations may only begin in the
absence of North Atlantic right whales
(based on visual and passive acoustic
monitoring). If pile driving or UXO/
MEC detonations have commenced,
NMFS anticipates North Atlantic right
whales would avoid the area, utilizing
nearby waters to carry on pre-exposure
behaviors. However, foundation
installation activities must be shut
down if a North Atlantic right whale is
sighted at any distance or acoustically
detected at any distance within the
PAM monitoring zone, unless a
shutdown is not feasible due to risk of
injury or loss of life. Shutdown may
occur anywhere if North Atlantic right
whales are seen within or beyond the
Level B harassment zone, further
minimizing the duration and intensity
of exposure. NMFS anticipates that if
North Atlantic right whales go
undetected and they are exposed to
foundation installation or UXO/MEC
detonation noise, it is unlikely a North
Atlantic right whale would approach
the sound source locations to the degree
that they would purposely expose
themselves to very high noise levels.
This is because typical observed whale
behavior demonstrates likely avoidance
of harassing levels of sound where
possible (Richardson et al., 1985). These
measures are designed to avoid PTS and
also reduce the severity of Level B
harassment, including the potential for
TTS. While some TTS could occur,
given the mitigation measures (e.g.,
delay pile driving upon a sighting or
acoustic detection and shutting down
upon a sighting or acoustic detection),
the potential for TTS to occur is low.
The clearance and shutdown
measures are most effective when
detection efficiency is maximized, as
the measures are triggered by a sighting
or acoustic detection. To maximize
detection efficiency, NMFS requires the
combination of PAM and visual
observers. NMFS is requiring
communication protocols with other
project vessels and other heightened
awareness efforts (e.g., daily monitoring
of North Atlantic right whale sighting
databases) such that as a North Atlantic
right whale approaches the source (and
thereby could be exposed to higher
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noise energy levels), PSO detection
efficacy would increase, the whale
would be detected, and a delay to
commencing foundation installation or
shutdown (if feasible) would occur. In
addition, the implementation of a softstart for impact pile driving would
provide an opportunity for whales to
move away from the source if they are
undetected, reducing received levels.
The UXO/MEC detonations mitigation
measures described above would further
reduce the potential to be exposed to
high received levels.
For HRG surveys, the maximum
distance to the Level B harassment
threshold is 141 m. The estimated take
by Level B harassment associated with
HRG surveys is to account for any
potential exposures of North Atlantic
right whales to active acoustic sources
should there be a delay shutting it down
(if called for). However, the authorized
Level B harassment takes do not account
for mitigation and monitoring, and
because of the short maximum distance
to the Level B harassment threshold, the
requirement that vessels maintain a
distance of 500 m from any North
Atlantic right whales, the fact whales
are unlikely to remain in close
proximity to an HRG survey vessel for
any length of time, and that the acoustic
source would be shut down if a North
Atlantic right whale is observed within
500 m of the source, any exposure to
noise levels above the harassment
threshold (if any) would be very brief.
To further minimize exposures, rampup of sub-bottom profilers must be
delayed during the clearance period if
PSOs detect a North Atlantic right
whale (or any other ESA-listed species)
within 500 m of the acoustic source.
With implementation of the mitigation
requirements, take by Level A
harassment is not anticipated and
therefore, not authorized. Potential
impacts associated with Level B
harassment would include low-level,
temporary behavioral modifications,
most likely in the form of avoidance
behavior. Given the high level of
precautions taken to minimize both the
number and intensity of Level B
harassment on North Atlantic right
whales, it is unlikely that the
anticipated low-level exposures would
lead to reduced reproductive success or
survival.
As described above, no serious injury
or mortality, or Level A harassment of
North Atlantic right whales is
anticipated or authorized. Extensive
North Atlantic right whale-specific
mitigation measures (beyond the robust
suite required for all species) are
expected to further minimize the
amount and severity of Level B
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harassment. Given the documented
habitat use within the Project Area,
many of the individuals predicted to be
taken (including no more than 56
instances of take, by Level B
harassment) over the course of the 5year rule (with an annual maximum of
no more than 44) would be impacted on
only 1 or 2 days in a year, although it
is possible that repeated exposures
beyond this may occur should North
Atlantic right whales briefly use the
Project Area as a ‘stopover’ site and stay
or swim in and out of the areas with pile
driving for more than day. Further, any
impacts to North Atlantic right whales
are expected to be in the form of lower
level behavioral disturbance.
Given the magnitude and severity of
the impacts discussed above, and in
consideration of the required mitigation
and other information presented,
Revolution Wind’s activities are not
expected to result in impacts on the
reproduction or survival of any
individuals, much less affect annual
rates of recruitment or survival. For
these reasons, we have determined that
the take (by Level B harassment)
anticipated and authorized would have
a negligible impact on the North
Atlantic right whale.
Blue Whale
The blue whale is listed as
endangered under the ESA, and the
Western North Atlantic stock is
considered depleted and strategic under
the MMPA. There are no known areas
of specific biological importance in or
around the Project Area, and there is no
ongoing UME. The actual abundance of
the stock is likely significantly greater
than what is reflected in the SAR
because the most recent population
estimates are primarily based on surveys
conducted in U.S. waters and the stock’s
range extends well beyond the U.S.
exclusive economic zone (EEZ). No
serious injury or mortality is anticipated
or authorized for this species.
The rule authorizes up to seven takes,
by Level B harassment, over the 5-year
period. The maximum annual allowable
take by Level B harassment is three,
which equates to approximately 0.73
percent of the stock abundance if each
take were considered to be of a different
individual. Based on the migratory
nature of blue whales and the fact that
there are neither feeding nor
reproductive areas documented in or
near the Project Area, and in
consideration of the very low number of
predicted annual takes, it is unlikely
that the predicted instances of takes
would represent repeat takes of any
individual—in other words, each take
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likely represents one whale exposed on
1 day within a year.
With respect to the severity of those
individual takes by Level B harassment,
we would anticipate impacts to be
limited to low-level, temporary
behavioral responses with avoidance
and potential masking impacts in the
vicinity of the turbine installation to be
the most likely type of response. Any
potential TTS would be concentrated at
half or one octave above the frequency
band of pile driving noise (most sound
is below 2 kHz) which does not include
the full predicted hearing range of blue
whales. Any hearing ability temporarily
impaired from TTS is anticipated to
return to pre-exposure conditions
within a relatively short time period
after the exposures cease. Any
avoidance of the Project Area due to the
activities would be expected to be
temporary.
Given the magnitude and severity of
the impacts discussed above, and in
consideration of the required mitigation
and other information presented,
Revolution Wind’s activities are not
expected to result in impacts on the
reproduction or survival of any
individuals, much less affect annual
rates of recruitment or survival. For
these reasons, we have determined that
the take by Level B harassment
anticipated and authorized will have a
negligible impact on the western North
Atlantic stock of blue whales.
Fin Whale
The fin whale is listed as endangered
under the ESA, and the western North
Atlantic stock is considered both
depleted and strategic under the MMPA.
No UME has been designated for this
species or stock. No serious injury or
mortality is anticipated or authorized
for this species.
The rule authorizes up to 52 takes, by
harassment only, over the 5 year period.
The maximum annual allowable take by
Level A harassment and Level B
harassment, is 4 and 40, respectively
(combined, this annual take (n=44)
equates to approximately 0.65 percent of
the stock abundance, if each take were
considered to be of a different
individual), with far lower numbers
than that expected in the years without
foundation installation (e.g., years when
only HRG surveys would be occurring).
Given the project overlaps a small
portion of a fin whale feeding BIA
(2,933 km2) in the months the project
will occur (March–October) and that
southern New England is generally
considered a feeding area, it is likely
that some subset of the individual
whales exposed could be taken several
times annually
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Level B harassment is expected to be
in the form of behavioral disturbance,
primarily resulting in avoidance of the
Project Area where foundation
installation is occurring and some lowlevel TTS and masking that may limit
the detection of acoustic cues for
relatively brief periods of time. Any
potential PTS would be minor (limited
to a few dB) and any TTS would be of
short duration and concentrated at half
or one octave above the frequency band
of pile driving noise (most sound is
below 2 kHz) which does not include
the full predicted hearing range of fin
whales.
Fin whales are present in the waters
off of New England year-round and are
one of the most frequently observed
large whales and cetaceans in
continental shelf waters, principally
from Cape Hatteras, North Carolina in
the Mid-Atlantic northward to Nova
Scotia, Canada (Sergeant, 1977; Sutcliffe
and Brodie, 1977; CETAP, 1982; Hain et
al., 1992; Geo-Marine, 2010; BOEM
2012; Edwards et al., 2015; Hayes et al.,
2022). In the Project Area, fin whales
densities are highest in the winter and
summer months (Roberts et al., 2023)
though detections do occur in spring
and fall (Watkins et al., 1987; Clark and
Gagnon, 2002; Geo-Marine, 2010;
Morano et al., 2012). However, fin
whales feed more extensively in waters
in the Great South Channel north to the
Gulf Maine into the Gulf of St.
Lawrence, areas north and east of the
Project Area (Hayes et al., 2023).
As described previously, the Project
Area overlaps approximately 11 percent
of a small fin whale feeding BIA (2,933
km2) east of Montauk Point, New York
(Figure 2.3 in LaBrecque et al., 2015)
that is active from March to October.
Foundation installations and UXO/MEC
detonations have seasonal work
restrictions such that the temporal
overlap between these project activities
and the active BIA timeframe would
exclude the months of March and April.
A separate larger year-round feeding
BIA (18,015 km2) located to the east in
the southern Gulf of Maine does not
overlap with the Project Area and would
thus not be impacted by project
activities. We anticipate that if foraging
is occurring in the Project Area and
foraging whales are exposed to noise
levels of sufficient strength, they would
avoid the Project Area and move into
the remaining 89 percent of the small
feeding BIA to continue foraging
without substantial energy expenditure
or, depending on the time of year, travel
to the larger year-round feeding BIA.
Given the documented habitat use
within the area, some of the individuals
taken would likely be exposed on
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multiple days. However, low level
impacts are generally expected from any
fin whale exposure. Given the
magnitude and severity of the impacts
discussed above (including no more
than 52 takes of the course of the 5-year
rule, and a maximum annual allowable
take by Level A harassment and Level
B harassment, of 4 and 40, respectively),
and in consideration of the required
mitigation and other information
presented, Revolution Wind’s activities
are not expected to result in impacts on
the reproduction or survival of any
individuals, much less affect annual
rates of recruitment or survival. For
these reasons, we have determined that
the take by harassment anticipated and
authorized will have a negligible impact
on the western North Atlantic stock of
fin whales.
Humpback Whale
The West Indies Distinct Population
Segments (DPS) of humpback whales is
not listed as threatened or endangered
under the ESA but the Gulf of Maine
stock, which includes individuals from
the West Indies DPS, is considered
strategic under the MMPA. However, as
described in the Description of Marine
Mammals in the Specific Geographic
Region section of this preamble to the
rule, humpback whales along the
Atlantic Coast have been experiencing
an active UME as elevated humpback
whale mortalities have occurred along
the Atlantic coast from Maine through
Florida since January 2016. Of the cases
examined, approximately 40 percent
had evidence of human interaction
(vessel strike or entanglement). The
UME does not yet provide cause for
concern regarding population-level
impacts, and take from vessel strike and
entanglement is not authorized. Despite
the UME, the relevant population of
humpback whales (the West Indies
breeding population, or DPS of which
the Gulf of Maine stock is a part)
remains stable at approximately 12,000
individuals.
The rule authorizes up to 106 takes,
by harassment only, over the 5-year
period. The maximum annual allowable
take by Level A harassment and Level
B harassment, is 9 and 77, respectively
(combined, this maximum annual take
(n=86) equates to approximately 6.16
percent of the stock abundance, if each
take were considered to be of a different
individual), with far lower numbers
than that expected in the years without
foundation installation (e.g., years when
only HRG surveys would be occurring).
Given that feeding is considered the
principal activity of humpback whales
in southern New England waters, it is
likely that some subset of the individual
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whales exposed could be taken several
times annually.
Among the activities analyzed, impact
pile driving is likely to result in the
highest amount of Level A harassment
annual take (n=9) of humpback whales.
The maximum amount of authorized
annual take by Level B harassment is
highest for impact pile driving (n=77;
WTG plus OSS foundations).
In the western North Atlantic,
humpback whales feed during spring,
summer, and fall over a geographic
range encompassing the eastern coast of
the U.S. Feeding is generally considered
to be focused in areas north of the
Project Area, including in a feeding BIA
in the Gulf of Maine/Stellwagen Bank/
Great South Channel, but has been
documented off the coast of southern
New England and as far south as
Virginia (Swingle et al., 2006). Foraging
animals tend to remain in the area for
extended durations to capitalize on the
food sources.
Assuming humpback whales who are
feeding in waters within or surrounding
the Project Area behave similarly, we
expect that the predicted instances of
disturbance could consist of some
individuals that may be exposed on
multiple days if they are utilizing the
area as foraging habitat. Also similar to
other baleen whales, if migrating, such
individuals would likely be exposed to
noise levels from the project above the
harassment thresholds only once during
migration through the Project Area.
For all the reasons described in the
Mysticetes section above, we anticipate
any potential PTS and TTS would be
concentrated at half or one octave above
the frequency band of pile driving noise
(most sound is below 2 kHz) which does
not include the full predicted hearing
range of baleen whales. If TTS is
incurred, hearing sensitivity would
likely return to pre-exposure levels
relatively shortly after exposure ends.
Any masking or physiological responses
would also be of low magnitude and
severity for reasons described above.
Given the magnitude and severity of
the impacts discussed above (including
no more than 106 takes over the course
of the 5-year rule, and a maximum
annual allowable take by Level A
harassment and Level B harassment, of
9 and 77 respectively), and in
consideration of the required mitigation
measures and other information
presented, Revolution Wind’s activities
are not expected to result in impacts on
the reproduction or survival of any
individuals, much less affect annual
rates of recruitment or survival. For
these reasons, we have determined that
the take by harassment anticipated and
authorized will have a negligible impact
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on the Gulf of Maine stock of humpback
whales.
Minke Whale
Minke whales are not listed under the
ESA, and the Canadian East Coast stock
is neither considered depleted nor
strategic under the MMPA. There are no
known areas of specific biological
importance in or adjacent to the Project
Area. As described in the Description of
Marine Mammals in the Specific
Geographic Region section of this
preamble, a UME has been designated
for this species but is pending closure.
No serious injury or mortality is
anticipated or authorized for this
species.
The rule authorizes up to 21 takes by
Level A harassment and 320 takes by
Level B harassment over the 5-year
period. The maximum annual allowable
take by Level A harassment and Level
B harassment is 21 and 304, respectively
(combined, this annual take (n=325)
equates to approximately 1.48 percent of
the stock abundance, if each take were
considered to be of a different
individual), with far lower numbers
than that expected in the years without
foundation installation (e.g., years when
only HRG surveys would be occurring).
As described in the Description of
Marine Mammals in the Specific
Geographic Region section, minke
whales are common offshore the U.S.
Eastern Seaboard with a strong seasonal
component in the continental shelf and
in deeper, off-shelf waters (CETAP,
1982; Hayes et al., 2022). Spring
through fall are times of relatively
widespread and common acoustic
occurrence on the continental shelf.
From September through April, minke
whales are frequently detected in deepocean waters throughout most of the
western North Atlantic (Clark and
Gagnon, 2002; Risch et al., 2014; Hayes
et al., 2023). Because minke whales are
migratory and their known feeding areas
are north and east of the Project Area,
including a feeding BIA in the
southwestern Gulf of Maine and
George’s Bank, they would be more
likely to be transiting through (with
each take representing a separate
individual), though it is possible that
some subset of the individual whales
exposed could be taken up to a few
times annually.
As previously detailed in the
Description of Marine Mammals in the
Specific Geographic Region section,
there is a UME for minke whales along
the Atlantic coast, from Maine through
South Carolina, with the highest
number of deaths in Massachusetts,
Maine, and New York. Preliminary
findings in several of the whales have
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shown evidence of human interactions
or infectious diseases. However, we note
that the population abundance is greater
than 21,000, and the take by harassment
authorized through this action is not
expected to exacerbate the UME.
We anticipate the impacts of this
harassment to follow those described in
the general Mysticetes section above.
Any potential PTS would be minor
(limited to a few dB) and any TTS
would be of short duration and
concentrated at half or one octave above
the frequency band of pile driving noise
(most sound is below 2 kHz) which does
not include the full predicted hearing
range of minke whales. Level B
harassment would be temporary, with
primary impacts being temporary
displacement of the Project Area but not
abandonment of any migratory or
foraging behavior.
Given the magnitude and severity of
the impacts discussed above (including
no more than 341 takes of the course of
the 5-year rule, and a maximum annual
allowable take by Level A harassment
and Level B harassment, of 21 and 304,
respectively), and in consideration of
the required mitigation and other
information presented, Revolution
Wind’s activities are not expected to
result in impacts on the reproduction or
survival of any individuals, much less
affect annual rates of recruitment or
survival. For these reasons, we have
determined that the take by harassment
anticipated and authorized will have a
negligible impact on the Canadian
Eastern Coastal stock of minke whales.
Sei Whale
Sei whales are listed as endangered
under the ESA, and the Nova Scotia
stock is considered both depleted and
strategic under the MMPA. There are no
known areas of specific biological
importance in or adjacent to the Project
Area, and no UME has been designated
for this species or stock. No serious
injury or mortality is anticipated or
authorized for this species.
The rule authorizes up to 31 takes by
harassment only over the 5-year period.
The maximum annual allowable take by
Level A harassment and Level B
harassment, is 5 and 18, respectively
(combined, this annual take (n=23)
equates to approximately 0.37 percent of
the stock abundance, if each take were
considered to be of a different
individual). As described in the
Description of Marine Mammals in the
Specific Geographic Region section of
this preamble, most of the sei whale
distribution is concentrated in Canadian
waters and seasonally in northerly U.S.
waters, although they are uncommonly
observed in the waters off of Rhode
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Island. Because sei whales are migratory
and their known feeding areas are east
and north of the Project Area (e.g., there
is a feeding BIA in the Gulf of Maine),
they would be more likely to be moving
through and, considering this and the
very low number of total takes, it is
unlikely that any individual would be
exposed more than once within a given
year.
With respect to the severity of those
individual takes by Level B harassment,
we anticipate impacts to be limited to
low-level, temporary behavioral
responses with avoidance and potential
masking impacts in the vicinity of the
WTG installation to be the most likely
type of response. Any potential PTS and
TTS would likely be concentrated at
half or one octave above the frequency
band of pile driving noise (most sound
is below 2 kHz) which does not include
the full predicted hearing range of sei
whales. Moreover, any TTS would be of
a small degree. Any avoidance of the
Project Area due to the Project’s
activities would be expected to be
temporary.
Given the magnitude and severity of
the impacts discussed above (including
no more than 31 takes of the course of
the 5-year rule, and a maximum annual
allowable take by Level A harassment
and Level B harassment, of 5 and 18,
respectively), and in consideration of
the required mitigation and other
information presented, Revolution
Wind’s activities are not expected to
result in impacts on the reproduction or
survival of any individuals, much less
affect annual rates of recruitment or
survival. For these reasons, we have
determined that the take by harassment
anticipated and authorized will have a
negligible impact on the Nova Scotia
stock of sei whales.
Odontocetes
In this section, we include
information here that applies to all of
the odontocete species and stocks
addressed below. Odontocetes include
dolphins, porpoises, and all other
whales possessing teeth and we further
divide them into the following
subsections: sperm whales, small
whales and dolphins, and harbor
porpoise. These sub-sections include
more specific information, as well as
conclusions for each stock represented.
The authorized takes of odontocetes
are incidental to all specified activities.
No serious injury or mortality is
anticipated or authorized. We anticipate
that, given ranges of individuals (i.e.,
that some individuals remain within a
small area for some period of time) and
non-migratory nature of some
odontocetes in general (especially as
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compared to mysticetes), these takes are
more likely to represent multiple
exposures of a smaller number of
individuals than is the case for
mysticetes, though some takes may also
represent one-time exposures to an
individual. Foundation installation is
likely to disturb odontocetes to the
greatest extent compared to UXO/MEC
detonations and HRG surveys. While we
expect animals to avoid the area during
foundation installation and UXO/MEC
detonations, their habitat range is
extensive compared to the area
ensonified during these activities. In
addition, as described above, UXO/MEC
detonations are instantaneous; therefore,
any disturbance would be very limited
in time.
As described earlier, Level B
harassment may include direct
disruptions in behavioral patterns (e.g.,
avoidance, changes in vocalizations
(from masking) or foraging), as well as
those associated with stress responses or
TTS. Odontocetes are highly mobile
species, and similar to mysticetes,
NMFS expects any avoidance behavior
to be limited to the area near the sound
source. While masking could occur
during foundation installation, it would
only occur in the vicinity of and during
the duration of the activity, and would
not generally occur in a frequency range
that overlaps most odontocete
communication or any echolocation
signals. The mitigation measures (e.g.,
use of sound attenuation systems,
implementation of clearance and
shutdown zones) would also minimize
received levels such that the severity of
any behavioral response would be
expected to be less than exposure to
unmitigated noise exposure.
Any masking or TTS effects are
anticipated to be of low-severity. First,
the frequency range of pile driving, the
most impactful planned activity in
terms of response severity, falls within
a portion of the frequency range of most
odontocete vocalizations. However,
odontocete vocalizations span a much
wider range than the low frequency
construction activities planned for the
project. As described above, recent
studies suggest odontocetes have a
mechanism to self-mitigate (i.e., reduce
hearing sensitivity) the impacts of noise
exposure, which could potentially
reduce TTS impacts. Any masking or
TTS is anticipated to be limited and
would typically only interfere with
communication within a portion of an
odontocete’s range and as discussed
earlier, the effects would only be
expected to be of a short duration and
for TTS, a relatively small degree.
Furthermore, odontocete echolocation
occurs predominantly at frequencies
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significantly higher than low frequency
construction activities. Therefore, there
is little likelihood that threshold shift
would interfere with feeding behaviors.
For HRG surveys, the sources operate at
higher frequencies than foundation
installation activities and UXO/MEC
detonations. However, sounds from
these sources attenuate very quickly in
the water column, as described above.
Therefore, any potential for PTS and
TTS and masking is very limited.
Further, odontocetes (e.g., common
dolphins, spotted dolphins, bottlenose
dolphins) have demonstrated an affinity
to bow-ride actively surveying HRG
surveys. Therefore, the severity of any
harassment, if it does occur, is
anticipated to be minimal based on the
lack of avoidance previously
demonstrated by these species.
The waters off the coast of Rhode
Island are used by several odontocete
species. However, none except the
sperm whale are listed under the ESA
and there are no known habitats of
particular importance. In general,
odontocete habitat ranges are farreaching along the Atlantic coast of the
U.S. and the waters off of New England,
including the Project Area, do not
contain any particularly unique
odontocete habitat features.
Sperm Whales
Sperm whales are listed as
endangered under the ESA, and the
North Atlantic stock is considered both
depleted and strategic under the MMPA.
The North Atlantic stock spans the East
Coast out into oceanic waters well
beyond the U.S. EEZ. Although listed as
endangered, the primary threat faced by
the sperm whale across its range (i.e.,
commercial whaling) has been
eliminated. Current potential threats to
the species globally include vessel
strikes, entanglement in fishing gear,
anthropogenic noise, exposure to
contaminants, climate change, and
marine debris. There is no currently
reported trend for the stock and
although the species is listed as
endangered under the ESA, there are no
specific issues with the status of the
stock that cause particular concern (e.g.,
no UMEs). There are no known areas of
biological importance (e.g., critical
habitat or BIAs) in or near the Project
Area. No mortality or serious injury is
anticipated or authorized for this
species.
The rule authorizes up to 15 takes by
Level B harassment over the 5-year
period. The maximum annual allowable
take by Level B harassment is 7, which
equates to approximately 0.16 percent of
the stock abundance, if each take were
considered to be of a different
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individual, with lower numbers than
that expected in the years without
foundation installation (e.g., years when
only HRG surveys would be occurring).
Given sperm whale’s preference for
deeper waters, especially for feeding, it
is unlikely that individuals will remain
in the Project Area for multiple days,
and therefore, the estimated takes likely
represent exposures of different
individuals on 1 day each annually.
If sperm whales are present in the
Project Area during any Project
activities, they will likely be only
transient visitors and not engaging in
any significant behaviors. Further, the
potential for TTS is low for reasons
described in the general Odontocete
section, but if it does occur, any hearing
shift would be small and of a short
duration. Because whales are not
expected to be foraging in the Project
Area, any TTS is not expected to
interfere with foraging behavior.
Given the magnitude and severity of
the impacts discussed above (including
no more than 15 takes by Level B
harassment over the course of the 5-year
rule, a maximum annual allowable take
of 7, and in consideration of the
required mitigation and other
information presented, Revolution
Wind’s activities are not expected to
result in impacts on the reproduction or
survival of any individuals, much less
affect annual rates of recruitment or
survival. For these reasons, we have
determined that the take by Level B
harassment anticipated and authorized
will have a negligible impact on the
North Atlantic stock of sperm whales.
Dolphins and Small Whales (Including
Delphinids)
The six species and stocks included
in this group (which are indicated in
Table 2 in the Delphinidae family) are
not listed under the ESA. There are no
known areas of specific biological
importance in or around the Project
Area for any of these species, and no
UMEs have been designated for any of
these species. No serious injury or
mortality is anticipated or authorized
for these species.
The six delphinid species with takes
authorized for the Project are the
Atlantic spotted dolphin, Atlantic
white-sided dolphin, common
bottlenose dolphin, common dolphin,
long-finned pilot whale, and Risso’s
dolphin. The rule would allow for the
authorization of up to between 58 and
12,460 takes (depending on species) by
Level A harassment and/or Level B
harassment over the 5-year period. The
maximum annual allowable take for
these species by Level A harassment
and Level B harassment ranges from 0
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to 35 and 34 to 8,086, respectively (this
annual take equates to approximately
0.09 to 4.7 percent of the stock
abundance, depending on each species,
if each take were considered to be of a
different individual), with far lower
numbers than that expected in the years
without foundation installation (e.g.,
years when only HRG surveys would be
occurring).
For all stocks listed above, given the
number of takes, while many of the
takes likely represent exposures of
different individuals on 1 day a year,
some subset of the individuals exposed
could be taken up to a few times
annually.
The number of takes, likely movement
patterns of the affected species, and the
intensity of any Level A harassment or
Level B harassment, combined with the
availability of alternate nearby foraging
habitat suggests that the likely impacts
would not impact the reproduction or
survival of any individuals. While
delphinids may be taken on several
occasions, none of these species are
known to have small home ranges
within the Project Area or known to be
particularly sensitive to anthropogenic
noise. The potential for PTS in dolphins
and small whales is very low and, if
PTS does occur, would occur to a
limited number of individuals, be of
small degree, and would be limited to
the frequency ranges of the activities
(which do not span across most of their
hearing range). Some TTS can also
occur but, again, it would be limited to
the frequency ranges of the activities
and any loss of hearing sensitivity is
anticipated to return to pre-exposure
conditions shortly after the animals
move away from the source or the
source ceases.
Given the magnitude and severity of
the impacts discussed above and in
consideration of the required mitigation
and other information presented,
Revolution Wind’s activities are not
expected to result in impacts on the
reproduction or survival of any
individuals, much less affect annual
rates of recruitment or survival. For
these reasons, we have determined that
the take by harassment anticipated and
authorized will have a negligible impact
on all of the species and stocks
addressed in this section.
Harbor Porpoises
Harbor porpoises are not listed as
threatened or endangered under the
ESA, and the Gulf of Maine/Bay of
Fundy stock is neither considered
depleted or strategic under the MMPA.
The stock is found predominantly in
northern U.S. coastal waters (less than
150 m depth) and up into Canada’s Bay
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of Fundy (between New Brunswick and
Nova Scotia). Although the population
trend is not known, there are no UMEs
or other factors that cause particular
concern for this stock. No mortality or
non-auditory injury are anticipated or
authorized for this stock.
The rule authorizes up to 1,375 takes,
by harassment only, over the 5-year
period. The maximum annual allowable
take by Level A harassment and Level
B harassment, would be 138 and 1,237,
respectively (combined, this annual take
(n=1,263) equates to approximately 1.32
percent of the stock abundance, if each
take were considered to be of a different
individual), with lower numbers than
that expected in the years without
foundation installation (e.g., years when
only HRG surveys would be occurring).
Given the number of takes, while many
of the takes likely represent exposures
of different individuals on 1 day a year,
some subset of the individuals exposed
could be taken up to a few times
annually.
Regarding the severity of takes by
Level A harassment and Level B
harassment, because harbor porpoises
are particularly sensitive to noise, it is
likely that a fair number of the
responses could be of a moderate
nature, particularly to pile driving,
UXO/MEC detonations, and pneumatic
hammering. In response to pile driving,
harbor porpoises are likely to avoid the
area during construction, as previously
demonstrated in Tougaard et al. (2009)
in Denmark, in Dahne et al. (2013) in
Germany, and in Vallejo et al. (2017) in
the United Kingdom, although a study
by Graham et al. (2019) may indicate
that the avoidance distance could
decrease over time. However,
foundation installation is scheduled to
occur off the coast of Rhode Island and
given alternative foraging areas, any
avoidance of the area by individuals is
not likely to impact the reproduction or
survival of any individuals. Regarding
UXO/MEC detonations and pneumatic
hammering, any TTS or behavioral
response would be brief and of low
severity given only 1 UXO/MEC would
be detonated on any given day and only
up to 13 UXO/MECs could be detonated
under these regulations and the brevity
of pneumatic hammering required for
installation and removal of both casing
pipes (3 hours per day over 2 days per
casing pipe for a total of 12 hours over
8 days).
With respect to PTS and TTS, the
effects on an individual are likely
relatively low, given the frequency
bands of pile driving (most energy
below 2 kHz) compared to harbor
porpoise hearing (150 Hz to 160 kHz
peaking around 40 kHz). Specifically,
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TTS is unlikely to impact hearing ability
in their more sensitive hearing ranges or
the frequencies in which they
communicate and echolocate. We
expect any PTS that may occur to be
within the very low end of their hearing
range where harbor porpoises are not
particularly sensitive and any PTS
would be of small magnitude. As such,
any PTS would not interfere with key
foraging or reproductive strategies
necessary for reproduction or survival.
As discussed in Hayes et al. (2022),
harbor porpoises are seasonally
distributed. During fall (October through
November) and spring (April through
June), harbor porpoises are widely
dispersed from New Jersey to Maine
with lower densities farther north and
south. During winter (January to March),
intermediate densities of harbor
porpoises can be found in waters off
New Jersey to North Carolina and lower
densities are found in waters off New
York to New Brunswick, Canada. In
non-summer months they have been
seen from the coastline to deep waters
(>1,800 m; Westgate et al., 1998),
although the majority are found over the
continental shelf. While harbor
porpoises are likely to avoid the area
during any of the project’s construction
activities, as demonstrated during
European wind farm construction, the
time of year in which most work would
occur is when harbor porpoises are not
in highest abundance, and any work
that does occur would not result in the
species’ abandonment of the waters off
of Rhode Island.
Given the magnitude and severity of
the impacts discussed above, and in
consideration of the required mitigation
and other information presented,
Revolution Wind’s activities are not
expected to result in impacts on the
reproduction or survival of any
individuals, much less affect annual
rates of recruitment or survival. For
these reasons, we have determined that
the take by harassment anticipated and
authorized will have a negligible impact
on the Gulf of Maine/Bay of Fundy
stock of harbor porpoises.
Phocids (Harbor Seals and Gray Seals)
The harbor seal and gray seal are not
listed under the ESA, and neither the
western North Atlantic stock of gray seal
nor the western North Atlantic stock of
harbor seal are considered depleted or
strategic under the MMPA. There are no
known areas of specific biological
importance in or around the Project
Area. As described in the Description of
Marine Mammals in the Specific
Geographic Region section of this
preamble, a UME has been designated
for harbor seals and gray seals and is
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described further below. No serious
injury or mortality is anticipated or
authorized for this species.
For the 2 seal species, the rule
authorizes up to between 1,113 (harbor
seals) and 2,781(gray seals) takes, by
harassment only, over the 5-year period.
The maximum annual allowable take for
each species by Level A harassment and
Level B harassment, would range from
14 to 923 (harbor seals), and 22 to 2,303,
respectively (combined, this annual take
(n=937 to 2,325) equates to
approximately 1.53 to 8.5 percent of the
stock abundance, if each take were
considered to be of a different
individual), with far lower numbers
than that expected in the years without
foundation installation (e.g., years when
only HRG surveys would be occurring).
Though gray seals and harbor seals are
considered migratory and no specific
feeding areas have been designated in
the area, the higher number of takes
relative to the stock abundance suggests
that while some of the takes likely
represent exposures of different
individuals on 1 day a year, it is likely
that some subset of the individuals
exposed could be taken several times
annually.
Harbor and gray seals occur in
southern New England waters most
often from December through April.
Seals are more likely to be close to shore
(e.g., closer to the edge of the area
ensonified above NMFS’ harassment
threshold), such that exposure to
foundation installation would be
expected to be at comparatively lower
levels. Known haulouts for seals occur
along the shores of Massachusetts and
throughout Narragansett Bay, near the
landfall construction location. However,
neither Revolution Wind nor NMFS
expect in-air sounds produced to cause
take of hauled out pinnipeds at
distances greater several hundred
meters. NMFS does not expect any
harassment to occur and has not
authorized any take from in-air impacts
on hauled out seals.
As described in the Potential Effects
to Marine Mammals and Their Habitat
section in the proposed rule,
construction of wind farms in Europe
resulted in pinnipeds temporarily
avoiding construction areas but
returning within short time frames after
construction was complete (Carroll et
al., 2010; Hamre et al., 2011; Hastie et
al., 2015; Russell et al., 2016; Brasseur
et al., 2010). Effects on pinnipeds that
are taken by Level B harassment in the
Project Area would likely be limited to
reactions such as increased swimming
speeds, increased surfacing time, or
decreased foraging (if such activity were
occurring). Most likely, individuals
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72657
would simply move away from the
sound source and be temporarily
displaced from those areas (Lucke et al.,
2006; Edren et al., 2010; Skeate et al.,
2012; Russell et al., 2016). Given the
low anticipated magnitude of impacts
from any given exposure (e.g.,
temporary avoidance), even repeated
Level B harassment across a few days of
some small subset of individuals, which
could occur, is unlikely to result in
impacts on the reproduction or survival
of any individuals. Moreover, pinnipeds
would benefit from the mitigation
measures described in § 217.275.
As described above, noise from pile
driving is mainly low frequency, and
while any PTS and TTS that does occur
would fall within the lower end of
pinniped hearing ranges (50 Hz to 86
kHz), PTS and TTS would not occur at
frequencies around 5 kHz where
pinniped hearing is most susceptible to
noise-induced hearing loss (Kastelein et
al., 2018). In summary, any PTS and
TTS would be of small degree and not
occur across the entire, or even most
sensitive, hearing range. Hence, any
impacts from PTS and TTS are likely to
be of low severity and not interfere with
behaviors critical to reproduction or
survival.
Elevated numbers of harbor seal and
gray seal mortalities were first observed
in July 2018 and occurred across Maine,
New Hampshire, and Massachusetts
until 2020. Based on tests conducted so
far, the main pathogen found in the
seals belonging to that UME was
phocine distemper virus, although
additional testing to identify other
factors that may be involved in this
UME are underway. Currently, the only
active UME is occurring in Maine with
some harbor and gray seals testing
positive for highly pathogenic avian
inÖuenza (HPAI) H5N1. Although
elevated strandings continue, neither
UME (alone or in combination) provide
cause for concern regarding populationlevel impacts to any of these stocks. For
harbor seals, the population abundance
is over 61,000 and annual mortality/
serious injury (M/SI) (n=339) is well
below PBR (1,729) (Hayes et al., 2020).
The population abundance for gray seals
in the United States is over 27,000, with
an estimated overall abundance,
including seals in Canada, of
approximately 450,000. In addition, the
abundance of gray seals is likely
increasing in the U.S. Atlantic, as well
as in Canada (Hayes et al., 2020).
Given the magnitude and severity of
the impacts discussed above, and in
consideration of the required mitigation
and other information presented,
Revolution Wind’s activities are not
expected to result in impacts on the
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reproduction or survival of any
individuals, much less affect annual
rates of recruitment or survival. For
these reasons, we have determined that
the take by harassment anticipated and
authorized will have a negligible impact
on harbor and gray seals.
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Negligible Impact Determination
No mortality or serious injury is
anticipated to occur or authorized. As
described in the analysis above, the
impacts resulting from the project’s
activities cannot be reasonably expected
to, and are not reasonably likely to,
adversely affect any of the species or
stocks through effects on annual rates of
recruitment or survival. 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 required
mitigation and monitoring measures,
NMFS finds that the authorized
incidental take of marine mammals from
all of Revolution Wind’s specified
activities combined will have a
negligible impact on all affected marine
mammal species or stocks.
Small Numbers
As noted above, only small numbers
of incidental take may be authorized
under sections 101(a)(5)(A) and (D) of
the MMPA for specified activities other
than military readiness activities. The
MMPA does not define small numbers
and so, in practice, where estimated
numbers are available, NMFS compares
the number of individuals estimated to
be taken to the most appropriate
estimation of abundance of the relevant
species or stock in our determination of
whether an authorization is limited to
small numbers of marine mammals.
When the predicted number of
individuals to be taken is less than onethird of the species or stock abundance,
the take is considered to be of small
numbers. Additionally, other qualitative
factors may be considered in the
analysis, such as the temporal or spatial
scale of the activities.
NMFS is authorizing incidental take
by Level A harassment and/or Level B
harassment of 16 species of marine
mammals (with 16 managed stocks).
The maximum number of instances of
takes by combined Level A harassment
and Level B harassment possible within
any 1 year relative to the best available
population abundance is less than onethird for all species and stocks
potentially impacted.
For nine stocks, less than 1 percent of
the stock abundance is authorized for
take by harassment; for four stocks, less
than or equal to 5 percent of the stock
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abundance is authorized for take by
harassment; for two stocks, less than 9
percent of the stock abundance has been
authorized for take by harassment; and
for one stock, less than 13 percent of the
stock abundance has been authorized
for take by harassment. Specific to the
North Atlantic right whale, the
maximum annual amount of take, which
is by Level B harassment only, is 44, or
13 percent of the stock abundance,
assuming that each instance of take
represents a different individual. Please
see Table 28 for information relating to
this small numbers analysis.
Based on the analysis contained
herein of the activities, including the
required mitigation and monitoring
measures, and the anticipated take of
marine mammals, NMFS finds that
small numbers of marine mammals
would be taken relative to the
population size of the affected species
or stocks.
Unmitigable Adverse Impact Analysis
and Determination
There are no relevant subsistence uses
of the affected marine mammal stocks or
species implicated by this action.
Therefore, NMFS has determined that
the total taking of affected species or
stocks would not have an unmitigable
adverse impact on the availability of
such species or stocks for taking for
subsistence purposes.
Classification
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered
Species Act of 1973 (16 U.S.C. 1531 et
seq.) requires that each Federal agency
ensure that any action it authorizes,
funds, or carries out is not likely to
jeopardize the continued existence of
any endangered or threatened species or
result in the destruction or adverse
modification of designated critical
habitat. To ensure ESA compliance for
the promulgation of rulemakings, NMFS
consults internally whenever we
propose to authorize take for
endangered or threatened species, in
this case with NOAA GARFO.
The NMFS Office of Protected
Resources has authorized the take of
five marine mammal species, which are
listed under the ESA: the North Atlantic
right, sei, fin, blue, and sperm whale.
The Permit and Conservation Division
requested initiation of section 7
consultation on November 1, 2022 with
GARFO for the promulgation of this
rulemaking. NMFS issued a Biological
Opinion on July 21, 2023 concluding
that the promulgation of the rule and
issuance of the LOA thereunder is not
likely to jeopardize the continued
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existence of threatened and endangered
species under NMFS’ jurisdiction and is
not likely to result in the destruction or
adverse modification of designated or
proposed critical habitat. The Biological
Opinion is available at https://
repository.library.noaa.gov/view/noaa/
51759.
Revolution Wind is required to abide
by the promulgated regulations, as well
as the reasonable and prudent measure
and terms and conditions of the
Biological Opinion and Incidental Take
Statement, as issued by NMFS.
National Environmental Policy Act
(NEPA)
To comply with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and NOAA
Administrative Order (NAO) 216–6A,
NMFS must evaluate our proposed
action (i.e., promulgation of regulations)
and alternatives with respect to
potential impacts on the human
environment. NMFS participated as a
cooperating agency on the BOEM 2023
Final Environmental Impact Statement
(FEIS), which was finalized on July 17,
2023, and is available at: https://
www.boem.gov/renewable-energy/stateactivities/revolution-wind-final-eis.
After carefully considering
alternatives described and analyzed in
the Revolution Wind FEIS and
comments from the public on the Draft
EIS, BOEM identified a preferred
alternative (Alternative G) for
consideration, which reduces the
number of WTG foundations Revolution
Wind can install from 79 to 65 but still
includes installation of 2 OSSs (for a
total of 67 foundations). NMFS is
serving as a cooperating agency
pursuant to 40 CFR 1501.8 because the
scope of the Proposed Action
(construction of the Revolution Wind
offshore wind energy facility, as
proposed by Revolution Wind) and
alternatives (variations of the Proposed
Action that consider other specific
concerns, e.g., reducing impacts to the
benthic habitat) involves activities that
could affect marine resources, and due
to NMFS’ jurisdiction by law and
special expertise. Issuance of an LOA
under the MMPA triggers independent
NEPA compliance obligations, which
may be satisfied by adopting the FEIS
prepared by BOEM. As a cooperating
agency, NMFS provided extensive
comments on the Draft Environmental
Impact Statement. Based on BOEM’s
satisfactory revisions to the DEIS, NMFS
made the decision to adopt the FEIS. On
August 21, 2023, NMFS signed a joint
Record of Decision (ROD), which
satisfied NMFS’ obligation under NEPA.
The full text of the mitigation,
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monitoring, and reporting requirements
for Alternative G are available in
Appendix A of the ROD, which is
available on BOEM’s website at: https://
www.boem.gov/renewable-energy/stateactivities/revolution-wind.
In accordance with 40 CFR 1506.3,
NMFS independently reviewed and
evaluated the 2023 Revolution Wind
FEIS and determined that it is adequate
and sufficient to meet our
responsibilities under NEPA for the
promulgation of this rule and issuance
of the associated LOA. NMFS, therefore,
has adopted the 2023 Revolution Wind
FEIS through a joint ROD with BOEM.
The joint ROD for adoption of the 2023
Revolution Wind FEIS and
promulgation of this final rule and
subsequent issuance of a LOA can be
found at https://
www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act.
Executive Order 12866
The Office of Management and Budget
has determined that this rule is not
significant for purposes of Executive
Order 12866.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act (RFA; 5 U.S.C. 601 et seq.), the
Chief Counsel for Regulation of the
Department of Commerce certified to
the Chief Counsel for Advocacy of the
Small Business Administration during
the proposed rule stage that this action
would not have a significant economic
impact on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
No comments were received regarding
this certification. As a result, a
regulatory flexibility analysis was not
required and none was prepared.
ddrumheller on DSK120RN23PROD with RULES2
Paperwork Reduction Act
Notwithstanding any other provision
of law, no person is required to respond
to nor shall a person be subject to a
penalty for failure to comply with a
collection of information subject to the
requirements of the Paperwork
Reduction Act (PRA) unless that
collection of information displays a
currently valid Office of Management
and Budget (OMB) control number.
These requirements have been approved
by OMB under control number 0648–
0151 and include applications for
regulations, subsequent LOA, and
reports. Send comments regarding any
aspect of this data collection, including
suggestions for reducing the burden, to
NMFS.
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Coastal Zone Management Act (CZMA)
The Coastal Zone Management Act
requires that any applicant for a
required Federal license or permit to
conduct an activity, within the coastal
zone or within the geographic location
descriptions (i.e., areas outside the
coastal zone in which an activity would
have reasonably foreseeable coastal
effects), affecting any land or water use
or natural resource of the coastal zone
be consistent with the enforceable
policies of a state’s federally-approved
coastal management program. NMFS
determined that Revolution Wind’s
application for an incidental take
regulations is an unlisted activity and,
thus, is not subject to Federal
consistency requirements in the absence
of the receipt and prior approval of an
unlisted activity review request from the
state by the Director of NOAA’s Office
for Coastal Management. Pursuant to 15
CFR 930.54, NMFS published notice of
receipt of Revolution Wind’s
application in the Federal Register on
March 21, 2022 (87 FR 15942) and
published notice of the proposed rule
on December 23, 2022 (87 FR 79072).
The state of Rhode Island did not
request approval from the Director of
NOAA’s Office for Coastal Management
to review Revolution Wind’s application
as an unlisted activity, and the time
period for making such request has
expired. Therefore, NMFS has
determined the incidental take
authorization is not subject to Federal
consistency review.
List of Subjects in 50 CFR Part 217
Administrative practice and
procedure, Endangered and threatened
species, Fish, Fisheries, Marine
mammals, Penalties, Reporting and
recordkeeping requirements, Wildlife.
Dated: September 29, 2023.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble,
NMFS amends 50 CFR part 217 to read
as follows:
PART 217—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED
ACTIVITIES
1. The authority citation for part 217
continues to read:
■
Authority: 16 U.S.C. 1361 et seq., unless
otherwise noted.
2. Add subpart BB, consisting of
§§ 217.270 through 217.279, to read as
follows:
■
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72659
Subpart BB—Taking Marine Mammals
Incidental to Construction of the Revolution
Wind Project Offshore of Rhode Island
Sec.
217.270 Specified activity and specified
geographical region.
217.271 Effective dates.
217.272 Permissible methods of taking.
217.273 Prohibitions.
217.274 Mitigation requirements.
217.275 Monitoring and reporting
requirements.
217.276 Letter of Authorization.
217.277 Modifications of Letter of
Authorization.
217.278–217.279 [Reserved]
Subpart BB—Taking Marine Mammals
Incidental to Construction of the
Revolution Wind Project Offshore of
Rhode Island
§ 217.270 Specified activity and specified
geographical region.
(a) Regulations in this subpart apply
to activities associated with the
Revolution Wind project (hereafter
referred to as the ‘‘Project’’) by
Revolution Wind, LLC (hereafter
referred to as ‘‘Letter of Authorization
(LOA) Holder’’) and those persons it
authorizes or funds to conduct activities
on its behalf in the specified
geographical region outlined in
paragraph (b) of this section.
Requirements imposed on LOA Holder
must be implemented by those persons
it authorizes or funds to conduct
activities on its behalf.
(b) The specified geographical region
is the Mid-Atlantic Bight, which
includes, but is not limited to, the
Bureau of Ocean Energy Management
(BOEM) Lease Area Outer Continental
Shelf (OCS)–A 0486 Commercial Lease
of Submerged Lands for Renewable
Energy Development, two export cable
routes, and two sea-to-shore transition
points located at Quonset Point in North
Kingstown, Rhode Island.
(c) The specified activities are impact
pile driving of wind turbine generator
(WTGs) and offshore substation (OSSs)
foundations; vibratory pile driving
(install and subsequently remove) of
cofferdams and goal posts; pneumatic
hammering (install and subsequently
remove) of casing pipes; high-resolution
geophysical (HRG) site characterization
surveys; detonation of unexploded
ordnances or munitions and explosives
of concern (UXOs/MECs); vessel transit
within the specified geographical region
to transport crew, supplies, and
materials; WTG operation; fishery and
ecological monitoring surveys;
placement of scour protection; and
trenching, laying, and burial activities
associated with the installation of the
export cable routes from OSSs to shore-
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based converter stations and inter-array
cables between turbines.
§ 217.271
Effective dates.
The regulations in this subpart are
effective from November 20, 2023,
through November 19, 2028.
§ 217.272
Permissible methods of taking.
Under the LOA, issued pursuant to
§§ 217.276, and 217.277, and § 216.106
of this chapter, the LOA Holder, and
those persons it authorizes or funds to
conduct activities on its behalf, may
incidentally, but not intentionally, take
marine mammals within the vicinity of
BOEM Lease Area OCS–A 0486
Commercial Lease of Submerged Lands
for Renewable Energy Development,
along export cable routes, and at the two
sea-to-shore transition points located at
Quonset Point in North Kingstown,
Rhode Island in the following ways,
provided LOA Holder is in complete
compliance with all terms, conditions,
and requirements of the regulations in
this subpart and an LOA issue under
§§ 217.276 and 217.277:
(a) By Level B harassment associated
with the acoustic disturbance of marine
mammals by impact pile driving (WTG
and OSS foundation installation),
vibratory pile driving (cofferdam and
goal post installation and removal),
pneumatic hammering (casing pipe
installation and removal), UXO/MEC
detonations, and HRG site
characterization surveys;
(b) By Level A harassment associated
with the acoustic disturbance of marine
mammals by impact pile driving of
WTG and OSS foundations, pneumatic
hammering of casing pipes, and UXO/
MEC detonations;
(c) Take by mortality or serious injury
of any marine mammal species is not
authorized; and
(d) The incidental take of marine
mammals by the activities listed in
paragraphs (a) and (b) of this section is
limited to the following stocks:
TABLE 1 TO PARAGRAPH (d)
Marine mammal species
Scientific name
North Atlantic right whale ...................................
Blue whale .........................................................
Fin whale ............................................................
Humpback whale ...............................................
Minke whale .......................................................
Sei whale ...........................................................
Sperm whale ......................................................
Atlantic spotted dolphin ......................................
Atlantic white-sided dolphin ...............................
Bottlenose dolphin .............................................
Eubalaena glacialis ..........................................
Balaenoptera musculus ....................................
Balaenoptera physalus .....................................
Megaptera novaeangliae ..................................
Balaenoptera acutorostrata ..............................
Balaenoptera borealis ......................................
Physeter macrocephalus ..................................
Stenella frontalis ...............................................
Lagenorhynchus acutus ...................................
Tursiops truncatus ............................................
Common dolphin ................................................
Long-finned pilot whale ......................................
Risso’s dolphin ...................................................
Harbor porpoise .................................................
Gray seal ............................................................
Harbor seal ........................................................
Delphinus delphis .............................................
Globicephala melas ..........................................
Grampus griseus ..............................................
Phocoena phocoena ........................................
Halichoerus grypus ..........................................
Phoca vitulina ...................................................
ddrumheller on DSK120RN23PROD with RULES2
§ 217.273
Prohibitions.
Except for the takings described in
§ 217.272 and authorized by an LOA
issued under §§ 217.276 or 217.277, it is
unlawful for any person to do any of the
following in connection with the
activities described in this subpart:
(a) Violate or fail to comply with the
terms, conditions, and requirements of
this subpart or an LOA issued under
§§ 217.276 and 217.277;
(b) Take any marine mammal stock
not specified in § 217.272(d);
(c) Take any marine mammal stock
specified in the LOA in any manner
other than as specified in the LOA; or
(d) Take any marine mammal stock
specified in § 217.272(d) after National
Marine Fisheries Service (NMFS) Office
of Protected Resources determines such
taking results in more than a negligible
impact on the stock of marine mammals.
§ 217.274
Mitigation requirements.
When conducting the activities
identified in § 217.270(c) within the
specified geographical area described in
§ 217.270(b), LOA Holder must
implement the mitigation measures
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Stock
contained in this section and any LOA
issued under §§ 217.276 and 217.277.
These mitigation measures include, but
are not limited to:
(a) General conditions. LOA Holder
must comply with the following general
measures:
(1) A copy of any issued LOA must be
in the possession of LOA Holder and its
designees, all vessel operators, visual
protected species observers (PSOs),
passive acoustic monitoring (PAM)
operators, pile driver operators, and any
other relevant designees operating
under the authority of the issued LOA;
(2) LOA Holder must conduct training
for construction, survey, and vessel
personnel and the marine mammal
monitoring team (PSO and PAM
operators) prior to the start of all inwater construction activities in order to
explain responsibilities, communication
procedures, marine mammal detection
and identification, mitigation,
monitoring, and reporting requirements,
safety and operational procedures, and
authorities of the marine mammal
monitoring team(s). This training must
be repeated for new personnel who join
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Western Atlantic.
Western North Atlantic.
Western North Atlantic.
Gulf of Maine.
Canadian Eastern Coastal.
Nova Scotia.
North Atlantic.
Western North Atlantic.
Western North Atlantic.
Western North Atlantic—Offshore.
Northern Migratory Coastal.
Western North Atlantic.
Western North Atlantic.
Western North Atlantic.
Gulf of Maine/Bay of Fundy.
Western North Atlantic.
Western North Atlantic.
the work during the project. A
description of the training program must
be provided to NMFS at least 60 days
prior to the initial training before inwater activities begin. Confirmation of
all required training must be
documented on a training course log
sheet and reported to NMFS Office of
Protected Resources prior to initiating
project activities;
(3) Prior to and when conducting any
in-water activities and vessel
operations, LOA Holder personnel and
contractors (e.g., vessel operators, PSOs)
must use available sources of
information on North Atlantic right
whale presence in or near the Project
Area including daily monitoring of the
Right Whale Sightings Advisory System,
and monitoring of Coast Guard VHF
Channel 16 throughout the day to
receive notification of any sightings
and/or information associated with any
Slow Zones (i.e., Dynamic Management
Areas (DMAs) and/or acousticallytriggered Slow Zones) to provide
situational awareness for both vessel
operators, PSO(s), and PAM operator(s);
The marine mammal monitoring team
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must monitor these systems no less than
every 4 hours. For any UXO/MEC
detonation, these systems must be
monitored for 24 hours and immediately
prior to blasting;
(4) Any marine mammal observed by
project personnel must be immediately
communicated to any on-duty PSOs,
PAM operator(s), and all vessel
captains. Any large whale observation
or acoustic detection by PSOs or PAM
operators must be conveyed to all vessel
captains;
(5) For North Atlantic right whales,
any visual or acoustic detection must
trigger a delay to the commencement of
impact pile driving, UXO/MEC
detonation, and HRG surveys;
(6) In the event that a large whale is
sighted or acoustically detected that
cannot be confirmed as a non-North
Atlantic right whale, it must be treated
as if it were a North Atlantic right whale
for purposes of mitigation;
(7) If a delay to commencing an
activity is called for by the Lead PSO or
PAM operator, LOA Holder must take
the required mitigative action. If a
shutdown of an activity is called for by
the Lead PSO or PAM operator, LOA
Holder must take the required mitigative
action unless shutdown would result in
imminent risk of injury or loss of life to
an individual, pile refusal, or pile
instability. Any disagreements between
the Lead PSO, PAM operator, and the
activity operator regarding delays or
shutdowns would only be discussed
after the mitigative action has occurred;
(8) If an individual from a species for
which authorization has not been
granted, or a species for which
authorization has been granted but the
authorized take number has been met, is
observed entering or within the relevant
Level B harassment zone prior to
beginning a specified activity, the
activity must be delayed. If the activity
is ongoing, it must be shut down
immediately unless shutdown would
result in imminent risk of injury or loss
of life to an individual, pile refusal, or
pile instability. The activity must not
commence or resume until the animal(s)
has been confirmed to have left and is
on a path away from the Level B
harassment zone or after 15 minutes for
odontocetes (excluding sperm whales)
and pinnipeds, and 30 minutes for
sperm and baleen whales (including
North Atlantic right whales) with no
further sightings;
(9) For in-water construction heavy
machinery activities listed in
§ 217.270(c), if a marine mammal is on
a path towards or comes within 10
meters (m) (32.8 feet (ft)) of equipment,
LOA Holder must cease operations until
the marine mammal has moved more
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than 10 m on a path away from the
activity to avoid direct interaction with
equipment;
(10) All vessels must be equipped
with a properly installed, operational
Automatic Identification System (AIS)
device and LOA Holder must report all
Maritime Mobile Service Identify
(MMSI) numbers to NMFS Office of
Protected Resources;
(11) By accepting the issued LOA,
LOA Holder consents to on-site
observation and inspections by Federal
agency personnel (including NOAA
personnel) during activities described in
this subpart, for the purposes of
evaluating the implementation and
effectiveness of measures contained
within the LOA and this subpart; and
(12) It is prohibited to assault, harm,
harass (including sexually harass),
oppose, impede, intimidate, impair, or
in any way influence or interfere with
a PSO, PAM Operator, or vessel crew
member acting as an observer, or
attempt the same. This prohibition
includes, but is not limited to, any
action that interferes with an observer’s
responsibilities or that creates an
intimidating, hostile, or offensive
environment. Personnel may report any
violations to the NMFS Office of Law
Enforcement.
(b) Vessel strike avoidance measures.
LOA Holder must comply with the
following vessel strike avoidance
measures, unless an emergency
situation presents a threat to the health,
safety, or life of a person or when a
vessel, actively engaged in emergency
rescue or response duties, including
vessel-in-distress or environmental
crisis response, requires speeds in
excess of 10 kn (11.5 miles per hour
(mph)) to fulfill those responsibilities,
while in the specified geographical
region:
(1) Prior to the start of the Project’s
activities involving vessels, LOA Holder
must receive a protected species
training that covers, at a minimum,
identification of marine mammals that
have the potential to occur where
vessels would be operating; detection
observation methods in both good
weather conditions (i.e., clear visibility,
low winds, low sea states) and bad
weather conditions (i.e., fog, high
winds, high sea states, with glare);
sighting communication protocols; all
vessel speed and approach limit
mitigation requirements (e.g., vessel
strike avoidance measures); and
information and resources available to
the project personnel regarding the
applicability of Federal laws and
regulations for protected species. This
training must be repeated for any new
vessel personnel who join the Project.
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72661
The dedicated visual observers must
receive prior training on protected
species detection and identification,
vessel strike minimization procedures,
how and when to communicate with the
vessel captain, and reporting
requirements in this subpart.
Confirmation of the observers’ training
and understanding of the Incidental
Take Authorization (ITA) requirements
must be documented on a training
course log sheet and reported to NMFS;
(2) LOA Holder’s vessels, regardless of
their vessel’s size, must maintain a
vigilant watch for all marine mammals
during all vessel operations and slow
down, stop their vessel, or alter course
to avoid striking any marine mammal;
(3) LOA Holder’s underway vessels
(e.g., transiting, surveying) operating at
any speed must have a dedicated visual
observer on duty on each vessel at all
times to monitor for marine mammals
primarily within a 180° direction of the
forward path of the vessel (90° port to
90° starboard) located at an appropriate
vantage point for ensuring vessels are
maintaining appropriate separation
distances. Visual observers must be
equipped with alternative monitoring
technology (e.g., night vision devices,
infrared cameras) for periods of low
visibility (e.g., darkness, rain, fog, etc.).
The dedicated visual observer must
receive prior training on protected
species detection and identification,
vessel strike minimization procedures,
how and when to communicate with the
vessel captain, use of visual monitoring
and alternative monitoring equipment,
and reporting requirements in this
subpart. Visual observers may be thirdparty observers (i.e., NMFS-approved
PSOs as defined in § 217.275 (a)(1)) or
trained crew members;
(4) LOA Holder must continuously
monitor the U.S. Coast Guard VHF
Channel 16 at the onset of transiting
through the duration of transiting, over
which notifications of North Atlantic
right whale Slow Zones (DMAs and
acoustically-triggered Slow Zones) are
broadcasted. At the onset of transiting
and at least once every 4 hours, vessel
operators and/or trained crew
member(s) must also monitor the LOA
Holder’s Project-Wide Situational
Awareness System, WhaleAlert, and
relevant NOAA information systems
such as the Right Whale Sighting
Advisory System (RWSAS) for the
presence of North Atlantic right whales;
(5) All LOA Holder’s vessels must
transit at 10 kn (11.5 mph) or less
within any active North Atlantic right
whale Seasonal Management Area
(SMA) and Slow Zone (i.e., Dynamic
Management Areas (DMA) or
acoustically-triggered Slow Zones);
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(6) Between November 1 and April 30,
all vessels, regardless of size, must
operate port to port (specifically from
ports in Massachusetts, Rhode Island,
Connecticut, New York, New Jersey,
Virginia, and Maryland), and within the
Lease Area and Revolution Wind Export
Cable (RWEC) corridor at 10 k (11.5
mph) or less, except for vessels
transiting in Narragansett Bay or Long
Island Sound;
(7) All LOA Holder’s vessel(s)
(including crew transfer vessels) are
restricted from traveling over 10 kn
(11.5 mph), unless traveling in a
frequently traveled transit corridor (e.g.,
crew transfer corridor) between port to
the Lease Area while LOA Holder
monitors the transit corridor to detect
large whales (including North Atlantic
right whales) in real-time with PAM
prior to and during transits. This
measure only applies when no other
vessel speed restrictions are in place;
(8) All LOA Holder’s vessels,
regardless of size, must immediately
reduce speed to 10 kn (11.5 mph) or less
for at least 24 hours when a North
Atlantic right whale is sighted at any
distance by any project-related
personnel or acoustically detected by
any project-related PAM system. Each
subsequent observation or acoustic
detection in the Project area must trigger
an additional 24-hour period of
operating at 10 kn or less. If a North
Atlantic right whale is reported via any
of the monitoring systems (see (b)(4) of
this section) within 10 kilometers (km;
6.2 miles (mi)) of a transiting vessel(s),
that vessel must operate at 10 kn (11.5
mph) or less for 24 hours following the
reported detection;
(8) LOA Holder’s vessels, regardless of
size, must immediately reduce speed to
10 kn (11.5 mph) or less when any large
whale (other than a North Atlantic right
whale) is observed within 500 m (1,640
ft) of an underway vessel;
(9) If a large whale (other than a North
Atlantic right whale) is detected via the
transit corridor PAM system, all vessels
must travel at 10 kn (11.5 mph) until the
whale can be confirmed visually beyond
500 m of the vessel or 24 hours has
passed.
(10) LOA Holder’s vessels must
maintain a minimum separation
distance of 500 m (1,640 ft) from North
Atlantic right whales. If underway, all
vessels must steer a course away from
any sighted North Atlantic right whale
at 10 kn (11.5 mph) or less such that the
500-m minimum separation distance
requirement is not violated. If a North
Atlantic right whale is sighted within
500 m of an underway vessel, that
vessel must reduce speed and shift the
engine to neutral. Engines must not be
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engaged until the whale has moved
outside of the vessel’s path and beyond
500 m. If a whale is observed but cannot
be confirmed as a species other than a
North Atlantic right whale, the vessel
operator must assume that it is a North
Atlantic right whale and take the vessel
strike avoidance measures described in
this paragraph;
(11) LOA Holder’s vessels must
maintain a minimum separation
distance of 100 m (328 ft) from sperm
whales and non-North Atlantic right
whale baleen whales. If one of these
species is sighted within 100 m of a
transiting vessel, LOA Holder’s vessel
must reduce speed and shift the engine
to neutral. Engines must not be engaged
until the whale has moved outside of
the vessel’s path and beyond 100 m (328
ft);
(12) LOA Holder’s vessels must
maintain a minimum separation
distance of 50 m (164 ft) from all
delphinid cetaceans and pinnipeds with
an exception made for those that
approach the vessel (i.e., bow-riding
dolphins). If a delphinid cetacean that is
not bow riding or a pinniped is sighted
within 50 m of a transiting vessel, LOA
Holder’s vessel operator must shift the
engine to neutral, with an exception
made for those that approach the vessel
(e.g., bow-riding dolphins). Engines
must not be engaged until the animal(s)
has moved outside of the vessel’s path
and beyond 50 m;
(13) When a marine mammal(s) is
sighted while LOA Holder’s vessel(s) is
transiting, the vessel must not divert or
alter course to approach any marine
mammal and must take action as
necessary to avoid violating the relevant
separation distances (e.g., attempt to
remain parallel to the animal’s course,
slow down, and avoid excessive speed
or abrupt changes in direction until the
animal has left the area). If a separation
distance is triggered, any vessel
underway must avoid abrupt changes in
course direction and take appropriate
action as specified in paragraphs (b)(10),
(b)(11), and (b)(12) of this section. This
measure does not apply to any vessel
towing gear or any situation where
respecting the relevant separation
distance would be unsafe (i.e., any
situation where the vessel is
navigationally constrained);
(14) LOA Holder is required to abide
by other speed and approach
regulations. Nothing in this subpart
exempts vessels from any other
applicable marine mammal speed and
approach regulations;
(15) LOA Holder must check, daily,
for information regarding the
establishment of mandatory or
voluntary vessel strike avoidance areas
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(i.e., DMAs, SMAs, Slow Zones) and any
information regarding North Atlantic
right whale sighting locations;
(16) LOA Holder must submit a North
Atlantic Right Whale Vessel Strike
Avoidance Plan to NMFS Office of
Protected Resources for review and
approval at least 90 days prior to the
planned start of vessel activity. The plan
must provide details on the vessel-based
observer and PAM protocols for
transiting vessels. If a plan is not
submitted or approved by NMFS prior
to vessel operations, all project vessels
transiting, year round, must travel at
speeds of 10 kn (11.5 mph) or less. LOA
Holder must comply with any approved
North Atlantic Right Whale Vessel
Strike Avoidance Plan; and
(17) Speed over ground will be used
to measure all vessel speed restrictions.
(c) WTG and OSS foundation
installation. The following requirements
apply to impact pile driving activities
associated with the installation of WTG
and OSS foundations:
(1) Impact pile driving must not occur
January 1 through April 30. Impact pile
driving must be avoided to the
maximum extent practicable in
December; however, it may occur if
necessary to complete the project with
prior approval by NMFS;
(2) Monopiles must be no larger than
15 m (49 ft) in diameter, representing
the larger end of the monopile design.
During all monopile installation, the
minimum amount of hammer energy
necessary to effectively and safely
install and maintain the integrity of the
piles must be used. Hammer energies
must not exceed 4,000 kilojoules for
monopile installation. No more than
three monopiles may be installed per
day;
(3) LOA Holder(s) must not initiate
pile driving earlier than 1 hour after
civil sunrise or later than 1.5 hours prior
to civil sunset, unless LOA Holder
submits and NMFS approves an
Alternative Monitoring Plan as part of
the Pile Driving and Marine Mammal
Monitoring Plan that reliably
demonstrates the efficacy of their
nighttime monitoring equipment and
protocols;
(4) LOA Holder must utilize a softstart protocol for each impact pile
driving event of all foundations by
performing 4 to 6 strikes per minute at
10 to 20 percent of the maximum
hammer energy, for a minimum of 20
minutes;
(5) Soft-start must occur at the
beginning of impact driving and at any
time following a cessation of impact pile
driving of 30 minutes or longer;
(6) LOA Holder must establish
clearance zones, which must be
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measured using the radial distance
around the pile being driven. If a marine
mammal is detected within or about to
enter the applicable clearance zones,
prior to the beginning of soft-start
procedures, impact pile driving must be
delayed until the animal has been
visually observed exiting the clearance
zone or until a specific time period has
elapsed with no further sightings. The
specific time periods are 15 minutes for
odontocetes (excluding sperm whales)
and pinnipeds, and 30 minutes for
sperm and baleen whales (including the
North Atlantic right whale);
(7) For North Atlantic right whales,
any visual observation at any distance
or acoustic detection within the PAM
monitoring zone must trigger a delay to
the commencement of pile driving. Pile
driving may begin only if no North
Atlantic right whale visual detections at
any distance or acoustic detections
within the PAM monitoring zone have
occurred during the 60-minute
clearance zone monitoring period;
(8) LOA Holder must deploy at least
two fully functional, uncompromised
noise abatement systems that reduce
noise levels to the modeled harassment
isopleths, assuming 10-dB attenuation,
during all impact pile driving:
(i) A single bubble curtain must not be
used;
(ii) Any bubble curtain(s) must
distribute air bubbles using an air flow
rate of at least 0.5 m3/(minute*m). The
bubble curtain(s) must surround 100
percent of the piling perimeter
throughout the full depth of the water
column. In the unforeseen event of a
single compressor malfunction, the
offshore personnel operating the bubble
curtain(s) must adjust the air supply and
operating pressure such that the
maximum possible sound attenuation
performance of the bubble curtain(s) is
achieved;
(iii) The lowest bubble ring must be
in contact with the seafloor for the full
circumference of the ring, and the
weights attached to the bottom ring
must ensure 100-percent seafloor
contact;
(iv) No parts of the ring or other
objects may prevent full seafloor contact
with a bubble curtain ring;
(v) Construction contractors must
train personnel in the proper balancing
of airflow to the bubble curtain ring.
LOA Holder must provide NMFS Office
of Protected Resources with a bubble
curtain performance test and
maintenance report to review within 72
hours after each pile using a bubble
curtain is installed. Additionally, a full
maintenance check (e.g., manually
clearing holes) must occur prior to each
pile being installed; and
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(vi) Corrections to the bubble ring(s)
to meet the performance standards, as
described in (c)(8)(ii) through (v) of this
paragraph, must occur prior to impact
pile driving of monopiles. If LOA
Holder uses a noise mitigation device in
addition to the bubble curtain, LOA
Holder must maintain similar quality
control measures as described in
paragraph (c)(9) of this section.
(9) LOA Holder must utilize NMFSapproved PAM systems, as described in
paragraph (c)(16) of this section. The
PAM system components (i.e., acoustic
buoys) must not be placed closer than
1 km to the pile being driven so that the
activities do not mask the PAM system.
LOA Holder must provide an adequate
demonstration of and justification for
the detection range of the system they
plan to deploy while considering
potential masking from concurrent piledriving and vessel noise. The PAM
system must be able to detect a
vocalization of North Atlantic right
whales up to 10 km.
(10) LOA Holder must utilize PSO(s)
and PAM operator(s), as described in
§ 217.275(c). At least 3 on-duty PSOs
must be deployed on the pile driving
platform. Additionally, two dedicatedPSO vessels must be used at least 60
minutes before, during, and 30 minutes
after all pile driving, and each
dedicated-PSO vessel must have at least
three PSOs on duty during these time
periods.
(11) LOA Holder must establish
shutdown zones, which must be
measured using the radial distance
around the pile being driven. If a marine
mammal is detected (visually or
acoustically) entering or within the
respective shutdown zone after pile
driving has begun, the PSO or PAM
operator must call for a shutdown of
pile driving and LOA Holder must stop
pile driving immediately, unless
shutdown is not practicable due to
imminent risk of injury or loss of life to
an individual or risk of damage to a
vessel that creates risk of injury or loss
of life for individuals, or the lead
engineer determines there is pile refusal
or pile instability. If pile driving is not
shutdown in one of these situations,
LOA Holder must reduce hammer
energy to the lowest level practicable
and the reason(s) for not shutting down
must be documented and reported to
NMFS Office of Protected Resources
within the applicable monitoring
reports (e.g., weekly, monthly);
(12) Any visual observation at any
distance or acoustic detection within
the PAM Monitoring Zone of a North
Atlantic right whale triggers shutdown
requirements under paragraph (c)(11) of
this section. If pile driving has been
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shut down due to the presence of a
North Atlantic right whale, pile driving
may not restart until the North Atlantic
right whale has neither been visually or
acoustically detected for 30 minutes;
(13) If pile driving has been shut
down due to the presence of a marine
mammal other than a North Atlantic
right whale, pile driving must not restart
until either the marine mammal(s) has
voluntarily left the specific clearance
zones and has been visually or
acoustically confirmed beyond that
clearance zone, or, when specific time
periods have elapsed with no further
sightings or acoustic detections have
occurred. The specific time periods are
15 minutes for odontocetes (excluding
sperm whales) and pinnipeds, and 30
minutes for sperm and baleen whales
(including North Atlantic right whales)
whales. In cases where these criteria are
not met, pile driving may restart only if
necessary to maintain pile stability at
which time LOA Holder must use the
lowest hammer energy practicable to
maintain stability;
(14) LOA Holder must conduct sound
field verification (SFV) measurements
during pile driving activities associated
with the installation of, at minimum,
the first three monopile foundations.
SFV measurements must continue until
at least three consecutive piles
demonstrate noise levels are at or below
those modeled, assuming 10-decibels
(dB) of attenuation. Subsequent SFV
measurements are also required should
larger piles be installed or if additional
piles are driven that may produce
louder sound fields than those
previously measured (e.g., higher
hammer energy, greater number of
strikes). SFV measurements must be
conducted as follows:
(i) Measurements must be made at a
minimum of four distances from the
pile(s) being driven, along a single
transect, in the direction of lowest
transmission loss (i.e., projected lowest
transmission loss coefficient), including,
but not limited to, 750 m (2,460 ft) and
three additional ranges selected such
that measurement of Level A
harassment and Level B harassment
isopleths are accurate, feasible, and
avoids extrapolation. At least one
additional measurement at an azimuth
90 degrees from the array at 750 m must
be made. At each location, there must be
a near bottom and mid-water column
hydrophone (measurement systems);
(ii) The recordings must be
continuous throughout the duration of
all pile driving of each foundation;
(iii) The SFV measurement systems
must have a sensitivity appropriate for
the expected sound levels from pile
driving received at the nominal ranges
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throughout the installation of the pile.
The frequency range of SFV
measurement systems must cover the
range of at least 20 hertz (Hz) to 20
kilohertz (kHz). The SFV measurement
systems must be designed to have
omnidirectional sensitivity so that the
broadband received level of all pile
driving exceeds the system noise floor
by at least 10 dB. The dynamic range of
the SFV measurement system must be
sufficient such that at each location, and
the signals avoid poor signal-to-noise
ratios for low amplitude signals and
avoid clipping, nonlinearity, and
saturation for high amplitude signals;
(iv) All hydrophones used in SFV
measurements systems are required to
have undergone a full system, traceable
laboratory calibration conforming to
International Electrotechnical
Commission (IEC) 60565, or an
equivalent standard procedure, from a
factory or accredited source to ensure
the hydrophone receives accurate sound
levels, at a date not to exceed 2 years
before deployment. Additional in-situ
calibration checks using a pistonphone
are required to be performed before and
after each hydrophone deployment. If
the measurement system employs filters
via hardware or software (e.g., highpass, low-pass, etc.), which is not
already accounted for by the calibration,
the filter performance (i.e., the filter’s
frequency response) must be known,
reported, and the data corrected before
analysis;
(v) LOA Holder must be prepared
with additional equipment (e.g.,
hydrophones, recording devices,
hydrophone calibrators, cables,
batteries), which exceeds the amount of
equipment necessary to perform the
measurements, such that technical
issues can be mitigated before
measurement;
(vi) LOA Holder must submit 48-hour
interim reports after each foundation is
measured (see § 217.275(g) section for
interim and final reporting
requirements);
(vii) LOA Holder must not exceed
modeled distances to NMFS marine
mammal Level A harassment and Level
B harassment thresholds, assuming 10dB attenuation, for foundation
installation. If any of the interim SFV
measurement reports submitted for the
first three monopiles indicate the
modeled distances to NMFS marine
mammal Level A harassment and Level
B harassment thresholds assuming 10dB attenuation are being exceeded, LOA
Holder must implement additional
sound attenuation measures such that
measured distances to thresholds for
future piles do not exceed modeled
distances to thresholds assuming 10-dB
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attenuation. LOA Holder must also
increase clearance and shutdown zone
sizes to those identified by NMFS until
SFV measurements on at least three
additional foundations all demonstrate
acoustic distances to harassment
threshold isopleths meet or are less than
those modeled assuming 10-dB of
attenuation. LOA Holder must operate
fully functional sound attenuation
systems (e.g., ensure hose maintenance,
pressure testing) to meet noise levels
modeled, assuming 10-dB attenuation;
(viii) If, after additional measurements
conducted pursuant to requirements of
paragraph (c)(14)(vii) of this section,
acoustic measurements indicate that
ranges to isopleths corresponding to the
Level A harassment and Level B
harassment thresholds are less than the
ranges predicted by modeling (assuming
10-dB attenuation), LOA Holder may
request to NMFS Office of Protected
Resources a modification of the
clearance and shutdown zones. For
NMFS Office of Protected Resources to
consider a modification request for
reduced zone sizes, LOA Holder must
have conducted SFV measurements on
an additional three foundations and
ensure that subsequent foundations
would be installed under conditions
that are predicted to produce equal to or
smaller harassment zones than those
modeled assuming 10-dB of attenuation;
(ix) LOA Holder must conduct SFV
measurements upon commencement of
turbine operations to estimate turbine
operational source levels, in accordance
with a NMFS-approved Foundation
Installation Pile Driving SFV Plan. SFV
must be conducted in the same manner
as previously described in (c)(14)(i)
through (v) of this section, with
appropriate adjustments to
measurement distances, number of
hydrophones, and hydrophone
sensitivities being made, as necessary;
and
(x) LOA Holder must submit a SFV
Plan to NMFS Office of Protected
Resources for review and approval at
least 180 days prior to planned start of
foundation installation activities and
abide by the Plan if approved. At
minimum, the SFV Plan must describe
how LOA Holder would ensure that the
first three monopile foundation
installation sites selected for SFV
measurements are representative of the
rest of the monopile installation sites
such that future pile installation events
are anticipated to produce similar sound
levels to those piles measured. In the
case that these sites/scenarios are not
determined to be representative of all
other pile installation sites, LOA Holder
must include information in the SFV
Plan on how additional sites/scenarios
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would be selected for SFV
measurements. The SFV Plan must also
include methodology for collecting,
analyzing, and preparing SFV
measurement data for submission to
NMFS Office of Protected Resources and
describe how the effectiveness of the
sound attenuation methodology would
be evaluated based on the results. SFV
for pile driving may not occur until
NMFS approves the SFV Plan for this
activity.
(15) LOA Holder must submit a
Foundation Installation Pile Driving
Marine Mammal Monitoring Plan to
NMFS Office of Protected Resources for
review and approval at least 180 days
prior to planned start of pile driving and
abide by the Plan if approved. LOA
Holder must obtain both NMFS Office of
Protected Resources and NMFS Greater
Atlantic Regional Fisheries Office
Protected Resources Division’s
concurrence with this Plan prior to the
start of any pile driving. The Plan must
include a description of all monitoring
equipment and PAM and PSO protocols
(including number and location of
PSOs) for all pile driving. No foundation
pile installation can occur without
NMFS’ approval of the Plan; and
(16) LOA Holder must submit a
Passive Acoustic Monitoring Plan (PAM
Plan) to NMFS Office of Protected
Resources for review and approval at
least 180 days prior to the planned start
of foundation installation activities
(impact pile driving) and abide by the
Plan if approved. The PAM Plan must
include a description of all proposed
PAM equipment, address how the
proposed passive acoustic monitoring
must follow standardized measurement,
processing methods, reporting metrics,
and metadata standards for offshore
wind. The PAM Plan must describe all
proposed PAM equipment, procedures,
and protocols including proof that
vocalizing North Atlantic right whales
will be detected within the clearance
and shutdown zones. No pile
installation can occur if LOA Holder’s
PAM Plan does not receive approval
from NMFS Office of Protected
Resources and NMFS Greater Atlantic
Regional Fisheries Office Protected
Resources Division.
(d) Cofferdam and casing pipe/goal
post installation and removal. The
following requirements apply to the
installation and removal of cofferdams,
casing pipes, and goal posts at the cable
landfall construction sites:
(1) Installation and removal of
cofferdams, casing pipes, and goal posts
must not occur during nighttime hours;
(2) LOA Holder must establish and
implement clearance zones for the
installation and removal of cofferdams,
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casing pipes, and goal posts using visual
monitoring. These zones must be
measured using the radial distance from
the cofferdam, casing pipe, and goal
post being installed and/or removed;
(3) LOA Holder must utilize PSO(s),
as described in § 217.275(d). At least 2
on-duty PSOs must monitor for marine
mammals at least 30 minutes before,
during, and 30 minutes after vibratory
pile driving associated with installation
of cofferdam and goal posts and
pneumatic hammering associated with
casing pipe installation; and
(4) If a marine mammal is observed
entering or within the respective
shutdown zone after vibratory pile
driving or pneumatic hammering has
begun, the PSO must call for a
shutdown of vibratory pile driving and
pneumatic hammering. LOA Holder
must stop vibratory pile driving and
pneumatic hammering immediately
unless shutdown is not practicable due
to imminent risk of injury or loss of life
to an individual or if there is a risk of
damage to the vessel that would create
a risk of injury or loss of life for
individuals or if the lead engineer
determines there is refusal or instability.
In any of these situations, LOA Holder
must document the reason(s) for not
shutting down and report the
information to NMFS Office of Protected
Resources in the next available weekly
report (as described in § 217.275(g)).
(e) UXO/MEC detonations. The
following requirements apply to all
UXO/MEC detonations:
(1) Upon encountering an UXO/MEC,
LOA Holder may only resort to highorder removal (i.e., detonation) if all
other means of removal are
impracticable;
(2) LOA Holder may detonate a
maximum of 13 UXO/MECs of varying
sizes but no larger than 1,000 pounds
(lbs; 454 kilograms (kg)) charge weight
(i.e., E12), over the effective period of
this rulemaking;
(3) LOA Holder must not detonate
UXO/MECs from December 1 through
April 30, annually;
(4) UXO/MEC detonations must only
occur during daylight hours;
(5) No more than one detonation may
occur within a 24-hour period;
(6) LOA Holder must establish and
implement clearance zones for UXO/
MEC detonation using both visual and
acoustic monitoring, as described in
paragraphs (c)(6), (7), and (11) through
(13) of this section. UXO/MEC clearance
zones are specific to the known charge
weight size of the UXO/MEC to be
detonated; if charge weight is unknown
or uncertain, then the largest zone size
must be used;
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(7) LOA Holder must utilize PSO(s)
and PAM operator(s), as described in
§ 217.275(c). At least 3 PSOs on the
activity platform and on each of 2
dedicated PSO vessels must be used for
all detonations with clearance zones
less than 5 km. If the clearance zone is
larger than 5 km, at least one dedicated
PSO vessel (with at least three on-duty
PSOs) and an aerial platform (with at
least two on-duty PSOs) must be used.
Clearance zone size is measured using
the radial distance from the UXO/MEC
to be detonated;
(8) LOA Holder must utilize NMFSapproved PAM systems, as described in
the PAM Plan see § 217.274(c)(16));
(9) LOA Holder must deploy at least
a double big bubble curtain during all
UXO/MEC detonations. The double
bubble curtain must be deployed at a
distance that avoids damage to the hose
nozzles:
(i) Any bubble curtain(s) must
distribute air bubbles using an air flow
rate of at least 0.5 m3/(minute*m). The
bubble curtain(s) must surround 100
percent of the UXO/MEC detonation
location throughout the full depth of the
water column;
(ii) The lowest bubble ring must be in
contact with the seafloor for the full
circumference of the ring, and the
weights attached to the bottom ring
must ensure 100-percent seafloor
contact;
(iii) No parts of the ring or other
objects may prevent full seafloor contact
with a bubble curtain ring;
(iv) Construction contractors must
train personnel in the proper balancing
of airflow to the bubble curtain ring.
LOA Holder must provide NMFS Office
of Protected Resources with a bubble
curtain performance test and
maintenance report to review within 72
hours after each UXO/MEC is detonated.
Additionally, a full maintenance check
(e.g., manually clearing holes) must
occur prior to each UXO/MEC
detonation; and
(v) Corrections to the bubble ring(s) to
meet the performance standards in this
paragraph (e)(9) of this section must
occur prior to UXO/MEC detonation.
(10) LOA Holder must conduct SFV
during all UXO/MEC detonations as
described in (c)(14) of this section and
deploy a pressure transducer;
(11) Clearance zones must be fully
visible for at least 60 minutes and all
marine mammal(s) must be confirmed to
be outside of the clearance zone for at
least 30 minutes prior to detonation.
PAM must also be conducted for at least
60 minutes and the zone must be
acoustically cleared during this time. If
a marine mammal is observed entering
or within the clearance zone prior to
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denotation, the activity must be
delayed. Detonation may only
commence if all marine mammals have
been confirmed to have voluntarily left
the clearance zones and been visually
confirmed to be beyond the clearance
zone, or when 15 minutes have elapsed
without any redetections of odontocetes
(excluding sperm whales) and
pinnipeds, or 30 minutes have elapsed
without any redetections of sperm and
baleen whales (including the North
Atlantic right whale); or
(12) For UXO/MEC detonations, LOA
Holder must follow all measures
described in (c)(8)(ii) through (vi) and
(c)(14)(i) through (x), of this section as
applicable, as well as the measures
below:
(i) LOA Holder must not exceed
modeled distances to NMFS marine
mammal Level A harassment and Level
B harassment thresholds, assuming 10dB attenuation, for UXO/MEC
detonations. If any of the interim SFV
measurement reports submitted for any
UXO/MEC detonations indicate the
modeled distances to NMFS marine
mammal Level A harassment and Level
B harassment thresholds assuming 10dB attenuation for future detonations
will be exceeded, then LOA Holder
must implement additional sound
attenuation measures on all subsequent
UXO/MEC detonations, including but
not limited to the deployment of
additional noise abatement systems
(NAS) to assist in achieving
measurements in alignment with the
modeled ranges. LOA Holder must also
increase clearance zone sizes to those
identified by NMFS until SFV
measurements on UXO/MECs
demonstrate distances to harassment
thresholds will be met or will be less
than those modeled assuming 10-dB of
attenuation. LOA Holder must operate
fully functional sound attenuation
systems (e.g., ensure hose maintenance,
pressure testing) to meet noise levels
modeled, assuming 10 dB attenuation,
for UXO/MECs of the same charge
weight or else no detonation activities
may occur until NMFS and LOA Holder
can evaluate the situation and ensure
future UXO/MEC detonations do not
exceed noise levels modeled, assuming
10-dB attenuation;
(ii) LOA Holder must submit a SFV
Plan for UXO/MEC detonation to NMFS
Office of Protected Resources for review
and approval at least 180 days prior to
planned start of UXO/MEC detonation
activities and abide by the Plan if
approved. The SFV Plan must include
methodology for collecting, analyzing,
and preparing SFV measurement data
for submission to NMFS Office of
Protected Resources and describe how
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the effectiveness of the sound
attenuation methodology would be
evaluated based on the results. SFV for
UXO/MEC detonation cannot occur
until NMFS approves the SFV Plan for
this activity;
(iii) LOA Holder must submit a UXO/
MEC Marine Mammal Monitoring Plan
to NMFS Office of Protected Resources
for review and approval at least 180
days prior to planned start of UXO/MEC
detonation, respectively, and abide by
the Plan if approved. LOA Holder must
obtain both NMFS Office of Protected
Resources and NMFS Greater Atlantic
Regional Fisheries Office Protected
Resources Division’s concurrence with
this Plan prior to the start of any UXO/
MEC detonations. The Plan must
include a description of all monitoring
equipment and PAM and PSO protocols
(including number and location of
PSOs) for all UXO/MEC detonations.
The Plan must include final UXO/MEC
detonation project design (e.g., number
and type of UXO/MECs, removal
method(s), charge weight(s), anticipated
start date, etc.) and all information
related to PAM and PSO monitoring
protocols for UXO/MEC activities. The
Plan must detail all plans and
procedures for sound attenuation as
well as for monitoring marine mammals
during all UXO/MEC detonations. No
UXO/MEC detonations can occur
without NMFS’ approval of the Plan;
and
(iv) LOA Holder must submit a
Passive Acoustic Monitoring Plan (PAM
Plan) to NMFS Office of Protected
Resources for review and approval at
least 180 days prior to the planned start
of UXO/MEC detonations and abide by
the Plan if approved. The PAM Plan
must include a description of all
proposed PAM equipment, address how
the proposed passive acoustic
monitoring must follow standardized
measurement, processing methods,
reporting metrics, and metadata
standards for offshore wind. The Plan
must describe all proposed PAM
equipment, procedures, and protocols
including proof that vocalizing North
Atlantic right whales will be detected
within the clearance and shutdown
zones. No UXO/MEC detonations can
occur if LOA Holder’s PAM Plan does
not receive approval from NMFS Office
of Protected Resources and NMFS
Greater Atlantic Regional Fisheries
Office Protected Resources Division.
(f) HRG surveys. The following
requirements apply to HRG surveys
operating sub-bottom profilers (SBPs)
(i.e., boomers, sparkers, and
Compressed High Intensity Radiated
Pulse (CHIRPS)):
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(1) LOA Holder must establish and
implement clearance and shutdown
zones for HRG surveys using visual
monitoring, as described in § 217.275(e)
conducted by PSOs, as described in
§ 217.275(b);
(2) LOA Holder must utilize PSO(s),
as described in § 217.275(e);
(3) LOA Holder must abide by the
relevant Project Design Criteria (PDCs 4,
5, and 7) of the programmatic
consultation completed by NMFS’
Greater Atlantic Regional Fisheries
Office on June 29, 2021 (revised
September 2021), pursuant to section 7
of the Endangered Species Act (ESA).
To the extent that any relevant Best
Management Practices (BMPs) described
in these PDCs are more stringent than
the requirements herein, those BMPs
supersede these requirements;
(4) SBPs (hereinafter referred to as
‘‘acoustic sources’’) must be deactivated
when not acquiring data or preparing to
acquire data, except as necessary for
testing. Acoustic sources must be used
at the lowest source level to meet the
survey objective, when in use, and must
be turned off when they are not
necessary for the survey;
(5) LOA Holder is required to rampup acoustic sources prior to
commencing full power, unless the
equipment operates on a binary on/off
switch, and ensure visual clearance
zones are fully visible (e.g., not
obscured by darkness, rain, fog) and
clear of marine mammals, as determined
by the Lead PSO, for at least 30 minutes
immediately prior to the initiation of
survey activities using acoustic sources
specified in the LOA;
(6) Prior to a ramp-up procedure
starting or activating acoustic sources,
the acoustic source operator (operator)
must notify a designated PSO of the
planned start of ramp-up as agreed upon
with the Lead PSO. The notification
time must not be less than 60 minutes
prior to the planned ramp-up or
activation in order to allow the PSOs
time to monitor the clearance zone(s) for
30 minutes immediately prior to the
initiation of ramp-up or activation (prestart clearance). LOA Holder must
implement a 30-minute clearance period
of the clearance zones immediately
prior to the commencing of the survey
or when there is more than a 30-minute
break in survey activities or PSO
monitoring. A clearance period is a
period when no marine mammals are
detected in the relevant zone. During
this 30-minute pre-start clearance
period, the entire applicable clearance
zones must be visible, except as
indicated in paragraph (f)(10) of this
section;
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(7) Ramp-ups must be scheduled so as
to minimize the time spent with the
source activated;
(8) A PSO conducting pre-start
clearance observations must be notified
again immediately prior to reinitiating
ramp-up procedures and the operator
must receive confirmation from the PSO
to proceed;
(9) If a marine mammal is observed
within a clearance zone during the
clearance period, ramp-up of acoustic
sources may not begin until the
animal(s) has been observed voluntarily
exiting its respective clearance zone or
until a specific time period has elapsed
with no further sighting. The specific
time period is 15 minutes for
odontocetes (excluding sperm whales)
and pinnipeds, and 30 minutes for
sperm and baleen whales, including
North Atlantic right whales;
(10) In any case when the clearance
process has begun in conditions with
good visibility, including via the use of
night vision equipment (infrared (IR)/
thermal camera), and the Lead PSO has
determined that the clearance zones are
clear of marine mammals, survey
operations are allowed to commence
(i.e., no delay is required) despite
periods of inclement weather and/or
loss of daylight. Ramp-up may occur at
times of poor visibility, including
nighttime, if appropriate visual
monitoring has occurred with no
detections of marine mammals in the 30
minutes prior to beginning ramp-up;
(11) Once the survey has commenced,
LOA Holder must shut down acoustic
sources if a marine mammal enters a
respective shutdown zone. In cases
when the shutdown zones become
obscured for brief periods due to
inclement weather, survey operations
are allowed to continue (i.e., no
shutdown is required) so long as no
marine mammals have been detected.
The shutdown requirement does not
apply to small delphinids of the
following genera: Delphinus, Stenella,
Lagenorhynchus, and Tursiops. If there
is uncertainty regarding the
identification of a marine mammal
species (i.e., whether the observed
marine mammal belongs to one of the
delphinid genera for which shutdown is
waived), the PSOs must use their best
professional judgment in making the
decision to call for a shutdown.
Shutdown is required if a delphinid that
belongs to a genus other than those
specified in this paragraph (f)(11) is
detected in the shutdown zone;
(12) If an acoustic source has been
shut down due to the presence of a
marine mammal, the use of an acoustic
source may not commence or resume
until the animal(s) has been confirmed
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to have left the Level B harassment zone
or until a full 15 minutes for
odontocetes (excluding sperm whales)
and pinnipeds, or 30 minutes for sperm
and baleen whales, including North
Atlantic right whales, have elapsed with
no further sighting;
(13) LOA Holder must immediately
shut down any acoustic source if a
marine mammal is sighted entering or
within its respective shutdown zones. If
there is uncertainty regarding the
identification of a marine mammal
species (i.e., whether the observed
marine mammal belongs to one of the
delphinid genera for which shutdown is
waived), the PSOs must use their best
professional judgment in making the
decision to call for a shutdown.
Shutdown is required if a delphinid that
belongs to a genus other than those
specified in paragraph (f)(11) of this
section is detected in the shutdown
zone; and
(14) If an acoustic source is shut down
for a period longer than 30 minutes, all
clearance and ramp-up procedures must
be initiated. If an acoustic source is shut
down for reasons other than mitigation
(e.g., mechanical difficulty) for less than
30 minutes, acoustic sources may be
activated again without ramp-up only if
PSOs have maintained constant
observation and no additional
detections of any marine mammal
occurred within the respective
shutdown zones.
(g) Fisheries monitoring surveys. The
following measures apply to fishery
monitoring surveys:
(1) Survey gear must be deployed as
soon as possible once the vessel arrives
on station. Gear must not be deployed
if there is a risk of interaction with
marine mammals. Gear may be
deployed after 15 minutes of no marine
mammal sightings within 1 nautical
mile (nmi; 1,852 m) of the sampling
station;
(2) LOA Holder must implement the
following ‘‘move-on’’ rule: if marine
mammals are sighted within 1 nmi of
the planned location and 15 minutes
before gear deployment, then LOA
Holder must move the vessel away from
the marine mammal to a different
section of the sampling area. If, after
moving on, marine mammals are still
visible from the vessel, LOA Holder
must move again or skip the station;
(3) If a marine mammal is at risk of
interacting with gear after it is deployed
or set, all gear must be immediately
removed from the water. If marine
mammals are sighted before the gear is
fully removed from the water, the vessel
must slow its speed and maneuver the
vessel away from the animals to
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minimize potential interactions with the
observed animal;
(4) LOA Holder must maintain visual
marine mammal monitoring effort by
trained lookouts during the entire
period of time that gear is in the water
(i.e., throughout gear deployment,
fishing, and retrieval);
(5) All fisheries monitoring gear must
be fully cleaned and repaired (if
damaged) before each use/deployment;
(6) LOA Holder’s fixed gear must
comply with the Atlantic Large Whale
Take Reduction Plan regulations at 50
CFR 229.32 during fisheries monitoring
surveys;
(7) Trawl tows must be limited to a
maximum of a 20-minute trawl time at
3.0 kn (3.5 mph);
(8) All gear must be emptied as close
to the deck/sorting area and as quickly
as possible after retrieval;
(9) During trawl surveys, vessel crew
must open the codend of the trawl net
close to the deck in order to avoid injury
to animals that may be caught in the
gear;
(10) Baited remote underwater video
(BRUV) sampling must limit soak
duration to 60 minutes or less, BRUVs
must use a weighted line attached to
surface and subsurface buoys that must
hold a stereo-camera system in the
water column and a system at the
seafloor, and the vessel must remain on
location with the gear while it is in use;
(11) Each chevron trap must have a
vertical buoy line and must limit soak
duration to 90 minutes or less;
(12) All fishery survey-related buoy
lines must include the breaking strength
of all lines being less than 1,700 pounds
(771 kg). This may be accomplished by
using whole buoy line that has a
breaking strength of 1,700 lbs; or buoy
line with weak inserts that result in line
having an overall breaking strength of
1,700 lbs;
(13) During any survey that uses
vertical lines, buoy lines must be
weighted and must not float at the
surface of the water and all groundlines
must consist of sinking lines. All
groundlines must be composed entirely
of sinking lines. Buoy lines must utilize
weak links. Weak links must break
cleanly leaving behind the bitter end of
the line. The bitter end of the line must
be free of any knots when the weak link
breaks. Splices are not considered to be
knots. The attachment of buoys, toggles,
or other floatation devices to
groundlines is prohibited;
(14) All in-water survey gear,
including buoys, must be properly
labeled with the scientific permit
number or identification as LOA
Holder’s research gear. All buoy
markings must comply with instructions
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received by the NOAA Greater Atlantic
Regional Fisheries Office Protected
Resources Division;
(15) All survey gear must be removed
from the water whenever not in active
survey use (i.e., no wet storage); and
(16) All reasonable efforts that do not
compromise human safety must be
undertaken to recover gear.
§ 217.275 Monitoring and reporting
requirements.
(a) Protected species observer (PSO)
and passive acoustic monitoring (PAM)
operator qualifications. LOA Holder
must implement the following measures
applicable to PSOs and PAM operators:
(1) LOA Holder must use
independent, NMFS-approved PSOs
and PAM operators, meaning that the
PSOs and PAM operators must be
employed by a third-party observer
provider, and must have no tasks other
than to conduct observational effort,
collect data, and communicate with and
instruct relevant crew with regard to the
presence of protected species and
mitigation requirements;
(2) All PSOs and PAM operators must
have successfully attained a bachelor’s
degree from an accredited college or
university with a major in one of the
natural sciences, a minimum of 30
semester hours or equivalent in the
biological sciences, and at least one
undergraduate course in math or
statistics. The educational requirements
may be waived if the PSO or PAM
operator has acquired the relevant skills
through a suitable amount of alternate
experience. Requests for such a waiver
must be submitted to NMFS Office of
Protected Resources and must include
written justification containing
alternative experience. Alternate
experience that may be considered
includes, but is not limited to, previous
work experience conducting academic,
commercial, or government-sponsored
marine mammal visual and/or acoustic
surveys or previous work experience as
a PSO/PAM operator;
(3) PSOs must have visual acuity in
both eyes (with correction of vision
being permissible) sufficient enough to
discern moving targets on the water’s
surface with the ability to estimate the
target size and distance (binocular use is
allowable); ability to conduct field
observations and collect data according
to the assigned protocols; sufficient
training, orientation, or experience with
the construction operation to provide
for personal safety during observations;
writing skills sufficient to document
observations, including but not limited
to, the number and species of marine
mammals observed, the dates and times
of when in-water construction activities
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were conducted, the dates and time
when in-water construction activities
were suspended to avoid potential
incidental take of marine mammals from
construction noise within a defined
shutdown zone, and marine mammal
behavior; and the ability to
communicate orally, by radio, or inperson, with project personnel to
provide real-time information on marine
mammals observed in the area;
(4) All PSOs must be trained in
northwestern Atlantic Ocean marine
mammal identification and behaviors
and must be able to conduct field
observations and collect data according
to assigned protocols. Additionally,
PSOs must have the ability to work with
all required and relevant software and
equipment necessary during
observations (as described in
217.275(b)(6) and 217.275(b)(7) of this
section);
(5) All PSOs and PAM operators must
successfully complete a relevant
training course within the last 5 years,
including obtaining a certificate of
course completion;
(6) PSOs and PAM operators are
responsible for obtaining NMFS’
approval. NMFS may approve PSOs and
PAM operators as conditional or
unconditional. A conditionallyapproved PSO or PAM operator may be
one who has completed training in the
last 5 years but has not yet attained the
requisite field experience. An
unconditionally approved PSO or PAM
operator is one who has completed
training within the last 5 years and
attained the necessary experience (i.e.,
demonstrate experience with
monitoring for marine mammals at
clearance and shutdown zone sizes
similar to those produced during the
respective activity). Lead PSO or PAM
operators must be unconditionally
approved and have a minimum of 90
days in an northwestern Atlantic Ocean
offshore environment performing the
role (either visual or acoustic), with the
conclusion of the most recent relevant
experience not more than 18 months
previous. A conditionally approved PSO
or PAM operator must be paired with an
unconditionally approved PSO or PAM
operator;
(7) PSOs for cable landfall
construction (i.e., vibratory pile
installation and removal, pneumatic
hammering) and HRG surveys may be
unconditionally or conditionally
approved. PSOs and PAM operators for
foundation installation and UXO/MEC
activities must be unconditionally
approved;
(8) At least one on-duty PSO and
PAM operator, where applicable, for
each activity (e.g., impact pile driving,
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vibratory pile driving, UXO/MEC
detonation activities, and HRG surveys)
must be designated as the Lead PSO or
Lead PAM operator;
(9) LOA Holder must submit NMFS
previously approved PSOs and PAM
operators to NMFS Office of Protected
Resources for review and confirmation
of their approval for specific roles at
least 30 days prior to commencement of
the activities requiring PSOs/PAM
operators or 15 days prior to when new
PSOs/PAM operators are required after
activities have commenced;
(10) For prospective PSOs and PAM
operators not previously approved or for
PSOs and PAM operators whose
approval is not current, LOA Holder
must submit resumes for approval at
least 60 days prior to PSO and PAM
operator use. Resumes must include
information related to relevant
education, experience, and training,
including dates, duration, location, and
description of prior PSO or PAM
operator experience. Resumes must be
accompanied by relevant
documentation of successful completion
of necessary training;
(11) PAM operators are responsible
for obtaining NMFS approval. To be
approved as a PAM operator, the person
must meet the following qualifications:
The PAM operator must demonstrate
that they have prior experience with
real-time acoustic detection systems
and/or have completed specialized
training for operating PAM systems and
detecting and identifying Atlantic
Ocean marine mammals sounds, in
particular: North Atlantic right whale
sounds, humpback whale sounds, and
how to deconflict them from similar
North Atlantic right whale sounds, and
other co-occurring species’ sounds in
the area including sperm whales; must
be able to distinguish between whether
a marine mammal or other species
sound is detected, possibly detected, not
detected and similar terminology must
be used across companies/projects;
where localization of sounds or deriving
bearings and distance are possible, the
PAM operators need to have
demonstrated experience using this
technique; PAM operators must be
independent observers (i.e., not
construction personnel); PAM operators
must demonstrate experience with
relevant acoustic software and
equipment; PAM operators must have
the qualifications and relevant
experience/training to safely deploy and
retrieve equipment and program the
software, as necessary; PAM operators
must be able to test software and
hardware functionality prior to
operation; and PAM operators must
have evaluated their acoustic detection
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software using the PAM Atlantic baleen
whale annotated data set available from
the National Centers for Environmental
Information (NCEI) and provide
evaluation/performance metric;
(12) PAM operators must be able to
review and classify acoustic detections
in real-time (prioritizing North Atlantic
right whales and noting detection of
other cetaceans) during the real-time
monitoring periods;
(13) PSOs may work as PAM
operators and vice versa, with NMFSapproval; however, they may only
perform one role at any one time and
must not exceed work time restrictions,
which must be tallied cumulatively; and
(14) All PSOs and PAM operators
must complete a Permits and
Environmental Compliance Plan
training and a 2-day refresher session
that must be held with the PSO provider
and Project compliance representative(s)
prior to the start of in-water project
activities (e.g., HRG surveys, foundation
installations, cable landfall activities,
UXO/MEC detonations).
(b) General PSO and PAM operator
requirements. The following measures
apply to PSOs and PAM operators and
must be implemented by LOA Holder:
(1) PSOs must monitor for marine
mammals prior to, during, and
following impact pile driving, vibratory
pile driving, pneumatic hammering,
UXO/MEC detonation activities, and
HRG surveys that use sub-bottom
profilers (with specific monitoring
durations and needs described in
paragraphs (c) through (f) of this section,
respectively). Monitoring must be done
while free from distractions and in a
consistent, systematic, and diligent
manner;
(2) For foundation installation and
UXO/MEC detonation, PSOs must
visually clear (i.e., confirm no
observations of marine mammals) the
entire minimum visibility zone for a full
30 minutes immediately prior to
commencing activities. For cable
landfall activities (i.e., cofferdams,
casing pipes, and goal posts) and HRG
surveys, which do not have a minimum
visibility zone, the entire clearance zone
must be visually cleared and as much of
the Level B harassment zone as possible;
(3) All PSOs must be located at the
best vantage point(s) on any platform, as
determined by the Lead PSO, in order
to obtain 360-degree visual coverage of
the entire clearance and shutdown
zones around the activity area, and as
much of the Level B harassment zone as
possible. PAM operators may be located
on a vessel or remotely on-shore, the
PAM operator(s) must assist PSOs in
ensuring full coverage of the clearance
and shutdown zones. The PAM operator
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must monitor the PAM monitoring zone
for large whales;
(4) All on-duty PSOs must remain in
real-time contact with the on-duty PAM
operator(s), PAM operators must
immediately communicate all acoustic
detections of marine mammals to PSOs,
including any determination regarding
species identification, distance, and
bearing (where relevant) relative to the
pile being driven and the degree of
confidence (e.g., possible, probable
detection) in the determination. All onduty PSOs and PAM operator(s) must
remain in contact with the on-duty
construction personnel responsible for
implementing mitigations (e.g., delay to
pile driving or UXO/MEC detonation) to
ensure communication on marine
mammal observations can easily,
quickly, and consistently occur between
all on-duty PSOs, PAM operator(s), and
on-water Project personnel;
(5) The PAM operator must inform the
Lead PSO(s) on duty of animal
detections approaching or within
applicable ranges of interest to the
activity occurring via the data collection
software system (e.g., Mysticetus or
similar system) who must be
responsible for requesting that the
designated crewmember implement the
necessary mitigation procedures (i.e.,
delay);
(6) PSOs must use high magnification
(25x) binoculars, standard handheld
(7x) binoculars, and the naked eye to
search continuously for marine
mammals. During foundation
installation and UXO/MEC detonations,
at least two PSOs on the pile driving
and detonation-dedicated PSO vessel
must be equipped with functional Big
Eye binoculars (e.g., 25 x 150; 2.7 view
angle; individual ocular focus; height
control); these must be pedestal
mounted on the deck at the best vantage
point that provides for optimal sea
surface observation and PSO safety.
PAM operators must have the
appropriate equipment (i.e., a computer
station equipped with a data collection
software system available wherever they
are stationed) and use a NMFSapproved PAM system to conduct
monitoring. PAM systems are approved
through the PAM Plan, as described in
§ 217.274(c)(16);
(7) During periods of low visibility
(e.g., darkness, rain, fog, poor weather
conditions, etc.), PSOs must use
alternative technology (i.e., infrared or
thermal cameras) to monitor the
clearance and shutdown zones as
approved by NMFS; and
(8) PSOs and PAM operators must not
exceed 4 consecutive watch hours on
duty at any time, must have a 2-hour
(minimum) break between watches, and
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must not exceed a combined watch
schedule of more than 12 hours in a 24hour period. If the schedule includes
PSOs and PAM operators on-duty for 2hour shifts, a minimum 1-hour break
between watches must be allowed.
(c) PSO and PAM operator
requirements during WTG and OSS
foundation installation and UXO/MEC
detonations. The following measures
apply to PSOs and PAM operators
during WTG and OSS foundation
installation and UXO/MEC detonations
and must be implemented by LOA
Holder:
(1) PSOs and PAM operator(s), using
a NMFS-approved PAM system, must
monitor for marine mammals 60
minutes prior to, during, and 30
minutes following all pile-driving and
UXO/MEC detonation activities. If PSOs
cannot visually monitor the minimum
visibility zone prior to impact pile
driving or the clearance zone prior to
any UXO/MEC detonation at all times
using the equipment described in
paragraphs (b)(6) and (b)(7) of this
section, pile-driving operations or UXO/
MEC detonation must not commence or
must shutdown if they are currently
active;
(2) At least three on-duty PSOs must
be stationed and observing from the
activity platform during impact pile
driving or UXO/MEC detonation and at
least three on-duty PSOs must be
stationed on each dedicated PSO vessel.
If an aerial platform is required or used
(see § 217.274(e)(7)), at least two onduty PSOs must be actively searching
for marine mammals. Concurrently, at
least one PAM operator per acoustic
data stream (equivalent to the number of
acoustic buoys) must be actively
monitoring for marine mammals 60
minutes before, during, and 30 minutes
after impact pile driving or UXO/MEC
detonation in accordance with a NMFSapproved PAM Plan; and
(3) LOA Holder must conduct PAM
for at least 24 hours immediately prior
to pile driving or UXO/MEC detonation
activities. The PAM operator must
review all detections from the previous
24-hr period immediately prior to
impact pile driving and UXO/MEC
detonation activities.
(d) PSO requirements during
cofferdam, casing pipe, and goal post
installation and removal. The following
measures apply to PSOs during
cofferdam, casing pipe, and goal post
installation and removal and must be
implemented by LOA Holder:
(1) At least two PSOs must be on
active duty during all activities related
to the installation and removal of
cofferdams, casing pipes, and goal posts;
and
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(2) PSOs must monitor the clearance
zone for the presence of marine
mammals for 30 minutes before,
throughout the installation of the sheet
piles (and casing pipe, if installed), and
for 30 minutes after all vibratory pile
driving and pneumatic hammering
activities have ceased. Sheet pile or
casing pipe installation must only
commence when visual clearance zones
are fully visible (e.g., not obscured by
darkness, rain, fog) and clear of marine
mammals, as determined by the Lead
PSO, for at least 30 minutes
immediately prior to initiation of
vibratory pile driving and pneumatic
hammering.
(e) PSO requirements during HRG
surveys. The following measures apply
to PSOs during HRG surveys using
acoustic sources that have the potential
to result in harassment and must be
implemented by LOA Holder:
(1) Between 4 and 6 PSOs must be
present on every 24-hour survey vessel
and two to three PSOs must be present
on every 12-hour survey vessel;
(2) At least one PSO must be on active
duty monitoring during HRG surveys
conducted during daylight (i.e., from 30
minutes prior to civil sunrise through 30
minutes following civil sunset) and at
least two PSOs must be on activity duty
monitoring during HRG surveys
conducted at night;
(3) PSOs on HRG vessels must begin
monitoring 30 minutes prior to
activating acoustic sources, during the
use of these acoustic sources, and for 30
minutes after use of these acoustic
sources has ceased;
(4) Any observations of marine
mammals must be communicated to
PSOs on all nearby survey vessels
during concurrent HRG surveys; and
(5) During daylight hours when
survey equipment is not operating, LOA
Holder must ensure that visual PSOs
conduct, as rotation schedules allow,
observations for comparison of sighting
rates and behavior with and without use
of the specified acoustic sources. Offeffort PSO monitoring must be reflected
in the monthly PSO monitoring reports.
(f) Monitoring requirements during
fisheries monitoring surveys. The
following measures apply during
fisheries monitoring surveys and must
be implemented by LOA Holder:
(1) All captains and crew conducting
fishery surveys must be trained in
marine mammal detection and
identification; and
(2) Marine mammal monitoring must
be conducted within 1 nmi from the
planned survey location by the trained
captain and/or a member of the
scientific crew for 15 minutes prior to
deploying gear, throughout gear
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deployment and use, and for 15 minutes
after haul back.
(g) Reporting. LOA Holder must
comply with the following reporting
measures:
(1) Prior to initiation of any on-water
project activities, LOA Holder must
demonstrate in a report submitted to
NMFS Office of Protected Resources
that all required training for LOA
Holder personnel (including the vessel
crews, vessel captains, PSOs, and PAM
operators) has been completed;
(2) LOA Holder must use a
standardized reporting system during
the effective period of the LOA. All data
collected related to the Project must be
recorded using industry-standard
software that is installed on field
laptops and/or tablets. Unless stated
otherwise, all reports must be submitted
to NMFS Office of Protected Resources
(PR.ITP.MonitoringReports@noaa.gov),
dates must be in MM/DD/YYYY format,
and location information must be
provided in Decimal Degrees and with
the coordinate system information (e.g.,
NAD83, WGS84, etc.);
(3) For all visual monitoring efforts
and marine mammal sightings, the
following information must be collected
and reported to NMFS Office of
Protected Resources: the date and time
that monitored activity begins or ends;
the construction activities occurring
during each observation period; the
watch status (i.e., sighting made by PSO
on/off effort, opportunistic, crew,
alternate vessel/platform); the PSO who
sighted the animal; the time of sighting;
the weather parameters (e.g., wind
speed, percent cloud cover, visibility);
the water conditions (e.g., Beaufort sea
state, tide state, water depth); all marine
mammal sightings, regardless of
distance from the construction activity;
species (or lowest possible taxonomic
level possible); the pace of the
animal(s); the estimated number of
animals (minimum/maximum/high/
low/best); the estimated number of
animals by cohort (e.g., adults,
yearlings, juveniles, calves, group
composition, etc.); the description (i.e.,
as many distinguishing features as
possible of each individual seen,
including length, shape, color, pattern,
scars or markings, shape and size of
dorsal fin, shape of head, and blow
characteristics); the description of any
marine mammal behavioral observations
(e.g., observed behaviors such as feeding
or traveling) and observed changes in
behavior, including an assessment of
behavioral responses thought to have
resulted from the specific activity; the
animal’s closest distance and bearing
from the pile being driven or specified
HRG equipment and estimated time
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entered or spent within the Level A
harassment and/or Level B harassment
zone(s); the activity at time of sighting
(e.g., vibratory installation/removal,
impact pile driving, construction
survey), use of any noise attenuation
device(s), and specific phase of activity
(e.g., ramp-up of HRG equipment, HRG
acoustic source on/off, soft-start for pile
driving, active pile driving, etc.); the
marine mammal occurrence in Level A
harassment or Level B harassment
zones; the description of any mitigationrelated action implemented, or
mitigation-related actions called for but
not implemented, in response to the
sighting (e.g., delay, shutdown, etc.) and
time and location of the action; other
human activity in the area, and; other
applicable information, as required in
any LOA issued under §§ 217.276 and
217.277;
(4) LOA Holder must compile and
submit weekly reports during
foundation installation to NMFS Office
of Protected Resources that document
the daily start and stop of all pile
driving associated with the Project; the
start and stop of associated observation
periods by PSOs; details on the
deployment of PSOs; a record of all
detections of marine mammals (acoustic
and visual); any mitigation actions (or if
mitigation actions could not be taken,
provide reasons why); and details on the
noise attenuation system(s) used and its
performance. Weekly reports are due on
Wednesday for the previous week
(Sunday–Saturday) and must include
the information required under this
section. The weekly report must also
identify which turbines become
operational and when (a map must be
provided). Once all foundation pile
installation is completed, weekly
reports are no longer required by LOA
Holder;
(5) LOA Holder must compile and
submit monthly reports to NMFS Office
of Protected Resources during
foundation installation that include a
summary of all information in the
weekly reports, including project
activities carried out in the previous
month, vessel transits (number, type of
vessel, MMSI number, and route),
number of piles installed, all detections
of marine mammals, and any mitigative
action taken. Monthly reports are due
on the 15th of the month for the
previous month. The monthly report
must also identify which turbines
become operational and when (a map
must be provided). Full PAM detection
data and metadata must also be
submitted monthly on the 15th of every
month for the previous month via the
webform on the NMFS North Atlantic
Right Whale Passive Acoustic Reporting
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System website at https://
www.fisheries.noaa.gov/resource/
document/passive-acoustic-reportingsystem-templates;
(6) LOA Holder must submit a draft
annual report to NMFS Office of
Protected Resources no later than 90
days following the end of a given
calendar year. LOA Holder must
provide a final report within 30 days
following resolution of NMFS’
comments on the draft report. The draft
and final reports must detail the
following: the total number of marine
mammals of each species/stock detected
and how many were within the
designated Level A harassment and
Level B harassment zone(s) with
comparison to authorized take of marine
mammals for the associated activity;
marine mammal detections and
behavioral observations before, during,
and after each activity; what mitigation
measures were implemented (i.e.,
number of shutdowns or clearance zone
delays, etc.) or, if no mitigative actions
was taken, why not; operational details
(e.g., days and duration of impact and
vibratory pile driving, days and number
of UXO/MEC detonations, days and
amount of HRG survey effort); any PAM
systems used; the results, effectiveness,
and which noise attenuation systems
were used during relevant activities
(i.e., impact pile driving, and UXO/MEC
detonations); summarized information
related to situational reporting; and any
other important information relevant to
the Project, including additional
information that may be identified
through the adaptive management
process;
(7) LOA Holder must submit its draft
5-year report to NMFS Office of
Protected Resources on all visual and
acoustic monitoring conducted within
90 calendar days of the completion of
activities occurring under the LOA. A 5year report must be prepared and
submitted within 60 calendar days
following receipt of any NMFS Office of
Protected Resources comments on the
draft report. If no comments are
received from NMFS Office of Protected
Resources within 60 calendar days of
NMFS Office of Protected Resources
receipt of the draft report, the report
shall be considered final;
(8) For those foundation piles and
UXO/MEC detonations requiring SFV
measurements, LOA Holder must
provide the initial results of the SFV
measurements to NMFS Office of
Protected Resources in an interim report
after each foundation installation event
and each UXO/MEC detonation event as
soon as they are available and prior to
a subsequent detonation or foundation
installation, but no later than 48 hours
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after each completed foundation
installation event and 48 hours after a
detonation. The report must include, at
minimum: hammer energies/schedule
used during pile driving, including, the
total number of strikes and the
maximum hammer energy; the modelestimated acoustic ranges (R95% SEL and
R95% SPLrms) to compare with the realworld sound field measurements; the
estimated UXO/MEC charge size (or
physical size if charge size is unknown)
and donor charge size in trinitrotoluene
(TNT) equivalent weight for either high
(donor charge used to detonate/destroy
UXO/MEC) or low order (e.g.,
deflagration where donor charge
disrupts/consumes UXO/MEC)
detonations and description of UXO/
MEC (e.g., munition type, state of
submergence, approximate age); peak
sound pressure level (SPLpk), root-meansquare sound pressure level that
contains 90 percent of the acoustic
energy (SPLrms), and sound exposure
level (SEL, in single strike for pile
driving, SELss,), for each hydrophone,
including at least the maximum,
arithmetic mean, minimum, median
(L50) and L5 (95 percent exceedance)
statistics for each metric; estimated
marine mammal Level A harassment
and Level B harassment acoustic
isopleths, calculated using the
maximum-over-depth L5 (95 percent
exceedance level, maximum of both
hydrophones) of the associated sound
metric; comparison of modeled results
assuming 10-dB attenuation against the
measured marine mammal Level A
harassment and Level B harassment
acoustic isopleths; estimated
transmission loss coefficients; pile
identifier name, location of the pile and
UXO/MEC and each hydrophone array
in latitude/longitude; depths of each
hydrophone; one-third-octave band
single strike SEL spectra; if filtering is
applied, full filter characteristics must
be reported; and hydrophone
specifications including the type,
model, and sensitivity. LOA Holder
must also report any immediate
observations which are suspected to
have a significant impact on the results
including but not limited to: observed
noise mitigation system issues,
obstructions along the measurement
transect, and technical issues with
hydrophones or recording devices. If
any in-situ calibration checks for
hydrophones reveal a calibration drift
greater than 0.75 dB, pistonphone
calibration checks are inconclusive, or
calibration checks are otherwise not
effectively performed, LOA Holder must
indicate full details of the calibration
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procedure, results, and any associated
issues in the 48-hour interim reports;
(9) The final results of SFV
measurements from each foundation
installation and all UXO/MEC
detonation must be submitted as soon as
possible, but no later than 90 days
following completion of SFV
measurements for each activity. The
final reports must include all details
prescribed above for the interim report
as well as, at minimum, the following:
the peak sound pressure level (SPLpk),
the root-mean-square sound pressure
level that contains 90 percent of the
acoustic energy (SPLrms), the single
strike sound exposure level (SELss), the
integration time for SPLrms, the
spectrum, and the 24-hour cumulative
SEL extrapolated from measurements at
all hydrophones. The final report must
also include at least the maximum,
mean, minimum, median (L50) and L5
(95 percent exceedance) statistics for
each metric; the SEL and SPL power
spectral density and/or one-third octave
band levels (usually calculated as
decidecade band levels) at the receiver
locations must be reported; the sound
levels reported must be in median,
arithmetic mean, and L5 (95 percent
exceedance) (i.e., average in linear
space), and in dB; range of TL
coefficients; the local environmental
conditions, such as wind speed,
transmission loss data collected on-site
(or the sound velocity profile); baseline
pre- and post-activity ambient sound
levels (broadband and/or within
frequencies of concern); a description of
depth and sediment type, as
documented in the Construction and
Operation Plan (COP), at the recording
and foundation installation and UXO/
MEC detonation locations; the extents of
the measured Level A harassment and
Level B harassment zone(s); hammer
energies required for pile installation
and the number of strikes per pile; the
charge weights and other relevant
characteristics of UXO/MEC
detonations; the hydrophone equipment
and methods (i.e., recording device,
bandwidth/sampling rate; distance from
the pile and UXO/MEC where
recordings were made; the depth of
recording device(s)); a description of the
SFV measurement hardware and
software, including software version
used, calibration data, bandwidth
capability and sensitivity of
hydrophone(s), any filters used in
hardware or software, any limitations
with the equipment, and other relevant
information; the spatial configuration of
the noise attenuation device(s) relative
to the pile and UXO/MEC charge; a
description of the noise abatement
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72671
system and operational parameters (e.g.,
bubble flow rate, distance deployed
from the pile and/or UXO/MEC, etc.),
and any action taken to adjust the noise
abatement system. A discussion which
includes any observations which are
suspected to have a significant impact
on the results including but not limited
to: observed noise mitigation system
issues, obstructions along the
measurement transect, and technical
issues with hydrophones or recording
devices. The final results of SFV
measurements during wind turbine
operations must include source levels at
10 m from the foundation; received
levels at 50 m, 100 m, and 250 m from
the foundation; operational parameters
(i.e., direct drive/gearbox information,
turbine rotation rate); sea state
conditions, and any nearby
anthropogenic activities;
(10) If at any time during the project
LOA Holder becomes aware of any issue
or issues which may (to any reasonable
subject-matter expert, including the
persons performing the measurements
and analysis) call into question the
validity of any measured Level A
harassment or Level B harassment
isopleths to a significant degree, which
were previously transmitted or
communicated to NMFS Office of
Protected Resources, LOA Holder must
inform NMFS Office of Protected
Resources within 1 business day of
becoming aware of this issue or before
the next pile is driven (or UXO/MEC is
detonated), whichever comes first;
(11) If a North Atlantic right whale is
acoustic detected at any time by a
project-related PAM system, LOA
Holder must ensure the detection is
reported as soon as possible to NMFS,
but no longer than 24 hours after the
detection via the 24-hour North Atlantic
right whale Detection Template (https://
www.fisheries.noaa.gov/resource/
document/passive-acoustic-reportingsystem-templates). Calling the hotline is
not necessary when reporting PAM
detections via the template;
(12) Full detection data, metadata,
and location of recorders (or GPS tracks,
if applicable) from all real-time
hydrophones used for monitoring
during construction must be submitted
within 90 calendar days after
conclusion of activities requiring PAM
for mitigation. Reporting must use the
webform templates on the NMFS
Passive Acoustic Reporting System
website at https://
www.fisheries.noaa.gov/resource/
document/passive-acoustic-reportingsystem-templates. The full acoustic
recordings from all real-time
hydrophones must also be sent to the
NCEI for archiving within 90 calendar
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days after pile driving has ended and
instruments have been pulled from the
water;
(13) LOA Holder must submit
situational reports if the following
circumstances occur (including all
instances wherein an exemption is
taken must be reported to NMFS Office
of Protected Resources within 24 hours):
(i) If a North Atlantic right whale is
observed at any time by PSOs or project
personnel, LOA Holder must ensure the
sighting is immediately (if not feasible,
as soon as possible and no longer than
24 hours after the sighting) reported to
NMFS and the Right Whale Sightings
Advisory System (RWSAS). If in the
Northeast Region (Maine to Virginia/
North Carolina border) call (866–755–
6622). If in the Southeast Region (North
Carolina to Florida) call (877–WHALE–
HELP or 877–942–5343). If calling
NMFS is not possible, reports can also
be made to the U.S. Coast Guard via
channel 16 or through the WhaleAlert
app (https://www.whalealert.org/). The
sighting report must include the time,
date, and location of the sighting,
number of whales, animal description/
certainty of sighting (provide photos/
video if taken), Lease Area/project
name, PSO/personnel name, PSO
provider company (if applicable), and
reporter’s contact information;
(ii) If a North Atlantic right whale is
observed at any time by PSOs or project
personnel, LOA Holder must submit a
summary report must be sent to NMFS
Greater Atlantic Regional Fisheries
(nmfs.gar.incidental-take@noaa.gov),
NMFS Office of Protected Resources,
and NMFS Northeast Fisheries Science
Center (ne.rw.survey@noaa.gov) within
24 hours with the above information
and the vessel/platform from which the
sighting was made, activity the vessel/
platform was engaged in at time of
sighting, project construction and/or
survey activity at the time of the
sighting (e.g., pile driving, cable
installation, HRG survey), distance from
vessel/platform to sighting at time of
detection, and any mitigation actions
taken in response to the sighting;
(iii) If an observation of a large whale
occurs during vessel transit, LOA
Holder must report the time, date, and
location of the sighting; the vessel’s
activity, heading, and speed (knots);
Beaufort sea state; water depth (meters);
visibility conditions; marine mammal
species identification to the best of the
observer’s ability and any distinguishing
characteristics; initial distance and
bearing to marine mammal from vessel
and closest point of approach; and any
avoidance measures taken in response
to the marine mammal sighting;
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19:13 Oct 19, 2023
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(iv) LOA Holder must provide NMFS
Office of Protected Resources with
notification of planned UXO/MEC
detonation as soon as possible but at
least 48 hours prior to the planned
detonation, unless this 48-hour
notification would create delays to the
detonation that would result in
imminent risk of human life or safety.
This notification must include the
coordinates of the planned detonation,
the estimated charge size, and any other
information available on the
characteristics of the UXO/MEC. If any
UXO/MEC detonation occurs, within 72
hours after a detonation but before the
next detonation, whichever is sooner,
LOA Holder must report to NMFS Office
of Protected Resources the time, date,
location (latitude/longitude Decimal
Degrees), charge weight size,
justification on why detonation was
necessary and other means of removal
or avoidance could not occur, all
detections of marine mammals within
the UXO/MEC zones, and any mitigative
action taken;
(v) In the event that personnel
involved in the Project discover a
stranded, entangled, injured, or dead
marine mammal, LOA Holder must
immediately report the observation to
NMFS. If in the Greater Atlantic Region
(Maine to Virginia) call the NMFS
Greater Atlantic Stranding Hotline (866–
755–6622); if in the Southeast Region
(North Carolina to Florida), call the
NMFS Southeast Stranding Hotline
(877–942–5343). Separately, LOA
Holder must report the incident to
NMFS Office of Protected Resources
(PR.ITP.MonitoringReports@noaa.gov)
and, if in the Greater Atlantic region
(Maine to Virginia), NMFS Greater
Atlantic Regional Fisheries Office
(GARFO) (nmfs.gar.incidental-take@
noaa.gov, nmfs.gar.stranding@noaa.gov)
or, if in the Southeast region (North
Carolina to Florida), NMFS Southeast
Regional Office
(SERO)(secmammalreports@noaa.gov)
as soon as feasible. The report (via
phone or email) must include contact
(name, phone number, etc.), the time,
date, and location of the first discovery
(and updated location information if
known and applicable); Species
identification (if known) or description
of the animal(s) involved; condition of
the animal(s) (including carcass
condition if the animal is dead);
observed behaviors of the animal(s), if
alive; if available, photographs or video
footage of the animal(s); and general
circumstances under which the animal
was discovered; and
(vi) In the event of a vessel strike of
a marine mammal by any vessel
associated with the Project or if other
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project activities cause a non-auditory
injury or death of a marine mammal,
LOA Holder must immediately report
the incident to NMFS. If in the Greater
Atlantic Region (Maine to Virginia) call
the NMFS Greater Atlantic Stranding
Hotline (866–755–6622) and if in the
Southeast Region (North Carolina to
Florida) call the NMFS Southeast
Stranding Hotline (877–942–5343).
Separately, LOA Holder must
immediately report the incident to
NMFS Office of Protected Resources
(PR.ITP.MonitoringReports@noaa.gov)
and, if in the Greater Atlantic region
(Maine to Virginia), NMFS GARFO
(nmfs.gar.incidental-take@noaa.gov,
nmfs.gar.stranding@noaa.gov) or, if in
the Southeast region (North Carolina to
Florida), NMFS SERO
(secmammalreports@noaa.gov). The
report must include the time, date, and
location of the incident; species
identification (if known) or description
of the animal(s) involved; vessel size
and motor configuration (inboard,
outboard, jet propulsion); vessel’s speed
leading up to and during the incident;
vessel’s course/heading and what
operations were being conducted (if
applicable); status of all sound sources
in use; description of avoidance
measures/requirements that were in
place at the time of the strike and what
additional measures were taken, if any,
to avoid strike; environmental
conditions (e.g., wind speed and
direction, Beaufort sea state, cloud
cover, visibility) immediately preceding
the strike; estimated size and length of
animal that was struck; description of
the behavior of the marine mammal
immediately preceding and following
the strike; if available, description of the
presence and behavior of any other
marine mammals immediately
preceding the strike; estimated fate of
the animal (e.g., dead, injured but alive,
injured and moving, blood or tissue
observed in the water, status unknown,
disappeared); and, to the extent
practicable, photographs or video
footage of the animal(s). LOA Holder
must immediately cease all on-water
activities until the NMFS Office of
Protected Resources is able to review
the circumstances of the incident and
determine what, if any, additional
measures are appropriate to ensure
compliance with the terms of the LOA.
NMFS Office of Protected Resources
may impose additional measures to
minimize the likelihood of further
prohibited take and ensure MMPA
compliance. LOA Holder may not
resume their activities until notified by
NMFS Office of Protected Resources;
and
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(14) LOA Holder must report any lost
gear associated with the fishery surveys
to the NMFS GARFO Protected
Resources Division (nmfs.gar.incidentaltake@noaa.gov) as soon as possible or
within 24 hours of the documented time
of missing or lost gear. This report must
include information on any markings on
the gear and any efforts undertaken or
planned to recover the gear.
§ 217.276
Letter of Authorization.
(a) To incidentally take marine
mammals pursuant to this subpart, LOA
Holder must apply for and obtain an
LOA.
(b) An LOA, unless suspended or
revoked, may be effective for a period of
time not to exceed November 19, 2028,
the expiration date of this subpart.
(c) In the event of projected changes
to the activity or to mitigation and
monitoring measures required by an
LOA, LOA Holder must apply for and
obtain a modification of the LOA as
described in § 217.277.
(d) The LOA must set forth:
(1) Permissible methods of incidental
taking;
(2) Means of effecting the least
practicable adverse impact (i.e.,
mitigation) on the species, its habitat,
and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and
reporting.
(e) Issuance of the LOA must be based
on a determination that the level of
taking is consistent with the findings
made for the total taking allowable
under the regulations of this subpart.
(f) Notice of issuance or denial of an
LOA must be published in the Federal
Register within 30 days of a
determination.
§ 217.277 Modifications of Letter of
Authorization.
ddrumheller on DSK120RN23PROD with RULES2
(a) A LOA issued under § 217.276,
and this section for the activities
VerDate Sep<11>2014
19:13 Oct 19, 2023
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identified in § 217.270(c) shall be
modified upon request by LOA Holder,
provided that:
(1) The specified activity and
mitigation, monitoring, and reporting
measures, as well as the anticipated
impacts, are the same as those described
and analyzed for this subpart (excluding
changes made pursuant to the adaptive
management provision in paragraph
(c)(1) of this section); and
(2) NMFS Office of Protected
Resources determines that the
mitigation, monitoring, and reporting
measures required by the previous LOA
under this subpart were implemented.
(b) For a LOA modification request by
the applicant that includes changes to
the activity or the mitigation,
monitoring, or reporting (excluding
changes made pursuant to the adaptive
management provision in paragraph
(c)(1) of this section), the LOA shall be
modified, provided that:
(1) NMFS Office of Protected
Resources determines that the changes
to the activity or the mitigation,
monitoring, or reporting do not change
the findings made for the regulations in
this subpart and do not result in more
than a minor change in the total
estimated number of takes (or
distribution by species or years); and
(2) NMFS Office of Protected
Resources may, if appropriate, publish a
notice of proposed modified LOA in the
Federal Register, including the
associated analysis of the change, and
solicit public comment before issuing
the LOA.
(c) An LOA issued under § 217.276 or
this section for the activities identified
in § 217.270(c) may be modified by
NMFS Office of Protected Resources
under the following circumstances:
(1) Through adaptive management,
NMFS Office of Protected Resources
may modify (including delete, modify,
or add to) the existing mitigation,
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72673
monitoring, or reporting measures (after
consulting with LOA Holder regarding
the practicability of the modifications),
if doing so creates a reasonable
likelihood of more effectively
accomplishing the goals of the
mitigation and monitoring;
(i) Possible sources of data that could
contribute to the decision to modify the
mitigation, monitoring, or reporting
measures in an LOA include, but are not
limited to:
(A) Results from LOA Holder’s
monitoring(s);
(B) Results from other marine
mammals and/or sound research or
studies; and
(C) Any information that reveals
marine mammals may have been taken
in a manner, extent, or number not
authorized by the regulations in this
subpart or subsequent LOA.
(ii) If, through adaptive management,
the modifications to the mitigation,
monitoring, or reporting measures are
substantial, NMFS Office of Protected
Resources shall publish a notice of
proposed LOA in the Federal Register
and solicit public comment.
(2) If NMFS Office of Protected
Resources determines that an emergency
exists that poses a significant risk to the
well-being of the species or stocks of
marine mammals specified in the LOA
issued pursuant to §§ 217.272 and
217.276 or this section, an LOA may be
modified without prior notice or
opportunity for public comment. Notice
would be published in the Federal
Register within 30 days of the action.
§§ 217.278–217.279
[Reserved]
Subparts CC through KK [Reserved]
3. Add and reserve subparts CC
through KK.
■
[FR Doc. 2023–22056 Filed 10–19–23; 8:45 am]
BILLING CODE 3510–22–P
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Agencies
[Federal Register Volume 88, Number 202 (Friday, October 20, 2023)]
[Rules and Regulations]
[Pages 72562-72673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22056]
[[Page 72561]]
Vol. 88
Friday,
No. 202
October 20, 2023
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Revolution Wind Offshore Wind Farm
Project Offshore Rhode Island; Final Rule
Federal Register / Vol. 88 , No. 202 / Friday, October 20, 2023 /
Rules and Regulations
[[Page 72562]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
RIN 0648-BL52
[Docket No. 230928-0235]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Revolution Wind Offshore Wind
Farm Project Offshore Rhode Island
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, notification is hereby given
that NMFS promulgates regulations to govern the incidental taking of
marine mammals incidental to Revolution Wind, LLC's (Revolution Wind),
a subsidiary wholly owned by Orsted Wind Power North America, LLC
(Orsted), construction of the Revolution Wind Offshore Wind Energy
Project (hereafter known as the ``Project'') in Federal and State
waters offshore Rhode Island, specifically within the Bureau of Ocean
Energy Management (BOEM) Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf (OCS) Lease
Area OCS-A-0486 (Lease Area) and along two export cable routes to sea-
to-shore transition points (collectively referred to as the ``Project
Area''), over the course of 5 years (November 20, 2023 through November
19, 2028). These regulations, which allow for the issuance of a Letter
of Authorization (LOA) for the incidental take of marine mammals during
construction-related activities within the Project Area during the
effective dates of the regulations, prescribe the permissible methods
of taking and other means of effecting the least practicable adverse
impact on marine mammal species or stocks and their habitat, as well as
requirements pertaining to the monitoring and reporting of such taking.
DATES: This rulemaking and issued LOA are effective from November 20,
2023 through November 19, 2028.
FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Revolution Wind's Incidental Take Authorization (ITA)
application and supporting documents, received public comments, and the
proposed rulemaking, as well as a list of the references cited in this
document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these
documents, please call the contact listed above (see FOR FURTHER
INFORMATION CONTACT).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the
authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to authorize
the take of marine mammals incidental to construction of the Project
within the Project Area. NMFS received a request from Revolution Wind
to incidentally take individuals of 16 species of marine mammals,
comprising 16 stocks (10 stocks by Level A harassment and Level B
harassment and 6 stocks by Level B harassment), incidental to
Revolution Wind's 5 years of construction activities. No mortality or
serious injury was requested nor is it anticipated or authorized in
this final rulemaking.
Legal Authority for the Final Action
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made, regulations are
promulgated (when applicable), and public notice and an opportunity for
public comment are provided.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). If such findings are made, NMFS must prescribe the
permissible methods of taking, ``other means of effecting the least
practicable adverse impact'' on the affected species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, and on the availability of
the species or stocks for taking for certain subsistence uses (referred
to as ``mitigation''); and requirements pertaining to the monitoring
and reporting of such takings.
As noted above, no serious injury or mortality is anticipated or
authorized in this final rule. Relevant definitions of MMPA statutory
and regulatory terms are included below:
U.S. Citizens--Individual U.S. citizens or any corporation
or similar entity if it is organized under the laws of the United
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR
216.103);
Take--to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13);
50 CFR 216.3);
Incidental harassment, incidental taking, and incidental,
but not intentional taking--an accidental taking. This does not mean
that the taking is unexpected, but rather it includes those takings
that are infrequent, unavoidable or accidental (see 50 CFR 216.103);
Serious Injury--any injury that will likely result in
mortality (50 CFR 216.3);
Level A harassment--any act of pursuit, torment, or
annoyance which has the potential to injure a marine mammal or marine
mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and
Level B harassment--any act of pursuit, torment, or
annoyance which has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (16 U.S.C. 1362(18); 50 CFR 216.3).
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I, provide the legal basis for proposing
and, if appropriate, issuing regulations and an associated LOA(s). This
final rule establishes permissible methods of taking and mitigation,
monitoring, and reporting requirements for Revolution Wind's
construction activities.
Summary of Major Provisions Within the Final Rule
The major provisions of this final rule are:
The authorized take of marine mammals by Level A
harassment and/or Level B harassment;
No authorized take of marine mammals by mortality or
serious injury;
The establishment of a seasonal moratorium on impact pile
driving of foundation piles during the months of
[[Page 72563]]
the highest presence of North Atlantic right whales (Eubalaena
glacialis) in the Lease Area (December 1-April 30, annually), unless
prior approval from NMFS for pile driving in December;
A requirement for unexploded ordnance or munitions and
explosives of concern (UXO/MEC) detonations to only occur during hours
of daylight and not during hours of darkness;
A requirement for both visual and passive acoustic
monitoring (PAM) to occur by trained, NOAA Fisheries-approved Protected
Species Observers (PSOs) and PAM operators (where required) before,
during, and after select activities;
A requirement for training for all Revolution Wind
personnel to ensure marine mammal protocols and procedures are
understood;
The establishment of clearance and shutdown zones for all
in-water construction activities to prevent or reduce the risk of Level
A harassment and to minimize the risk of Level B harassment;
A requirement to use sound attenuation device(s) during
all foundation impact pile driving installation activities and UXO/MEC
detonations to reduce noise levels to those modeled assuming 10
decibels (dB);
A delay to the start of foundation installation and UXO/
MEC detonations if a North Atlantic right whale is observed at any
distance by PSOs or acoustically detected within certain distances;
A delay to the start of foundation installation and UXO/
MEC detonations if other marine mammals are observed entering or within
their respective clearance zones;
A requirement to shut down impact pile driving (if
feasible) if a North Atlantic right whale is observed or if any other
marine mammals are observed entering their respective shut down zones;
A requirement to implement sound field verification during
impact pile driving of foundation piles and during UXO/MEC detonations
to measure in situ noise levels for comparison against the modeled
results;
A requirement to implement soft-starts during impact pile
driving using the least amount of hammer energy necessary for
installation;
A requirement to implement ramp-up during the use of high-
resolution geophysical (HRG) marine site characterization survey
equipment;
A requirement for PSOs to continue to monitor for 30
minutes after any impact pile driving for foundation installation and
after any UXO/MEC detonations;
A requirement for the increased awareness of North
Atlantic right whale presence through monitoring of the appropriate
networks and Channel 16, as well as reporting any sightings to the
sighting network;
A requirement to implement various vessel strike avoidance
measures;
A requirement to implement measures during fisheries
monitoring surveys, such as removing gear from the water if marine
mammals are considered at-risk or are interacting with gear; and
A requirement for frequently scheduled and situational
reporting including, but not limited to, information regarding
activities occurring, marine mammal observations and acoustic
detections, and sound field verification monitoring results.
NMFS must withdraw or suspend an LOA issued under these
regulations, after notice and opportunity for public comment, if it
finds the methods of taking or the mitigation, monitoring, or reporting
measures are not being substantially complied with (16 U.S.C.
1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with
the requirements of the LOA may result in civil monetary penalties and
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50
CFR 216.106(g)).
Fixing America's Surface Transportation Act (FAST-41)
This project is covered under Title 41 of the Fixing America's
Surface Transportation Act, or ``FAST-41.'' FAST-41'' includes a suite
of provisions designed to expedite the environmental review for covered
infrastructure projects, including enhanced interagency coordination as
well as milestone tracking on the public-facing Permitting Dashboard.
FAST-41 also places a 2-year limitations period on any judicial claim
that challenges the validity of a Federal agency decision to issue or
deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-
6(a)(1)(A)).
Revolution Wind's project is listed on the Permitting Dashboard,
where milestones and schedules related to the environmental review and
permitting for the project can be found at: https://www.permits.performance.gov/permitting-projects/revolution-wind-farm-project.
Summary of Request
On October 8, 2021, Revolution Wind submitted a request for the
promulgation of regulations and issuance of an associated LOA to take
marine mammals incidental to construction activities associated with
the Project in the Project Area. The request was for the incidental,
but not intentional, taking of a small number of 16 marine mammal
species (comprising 16 stocks) by Level B harassment (all 16 stocks)
and by Level A harassment (10 species or stocks). Revolution Wind did
not request and NMFS neither expects nor authorizes incidental take by
serious injury or mortality.
In response to our questions and comments, and following extensive
information exchange between Revolution Wind and NMFS, Revolution Wind
submitted a final version of the revised application on February 23,
2022. NMFS deemed it adequate and complete on February 28, 2022. This
final application is available on NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy.
On March 21, 2022, NMFS published a notice of receipt (NOR) of
Revolution Wind's adequate and complete application in the Federal
Register (87 FR 15942), requesting public comments and information on
Revolution Wind's request during a 30-day public comment period. During
the NOR public comment period, NMFS received comment letters from two
environmental non-governmental organizations: Oceana and the Rhode
Island Saltwater Anglers Association (RISSA).
On December 23, 2022, NMFS published the proposed rule for the
Revolution Wind Project in the Federal Register (87 FR 79072). In the
proposed rule, NMFS synthesized all of the information provided by
Revolution Wind, all best available scientific information and
literature relevant to the proposed project, outlined, in detail,
proposed mitigation designed to effect the least practicable adverse
impacts on marine mammal species and stocks as well as proposed
monitoring and reporting measures, and made preliminary negligible
impact and small numbers determinations. The public comment period on
the proposed rule was open for 45-days on https://www.regulations.gov
starting on December 23, 2022 and closed after February 6, 2023.
Specific details on the public comments received during this 45-day
period are described in the Comments and Responses section.
NMFS has previously issued four Incidental Harassment
Authorizations (IHAs) to Orsted, Revolution Wind's
[[Page 72564]]
parent company, for high resolution geophysical marine site
characterization surveys of Revolution Wind's BOEM Lease Area OCS-A
0486, two other BOEM lease areas (OCS-A 0487, OCS-A 0500), and along
potential export cable routes (see 84 FR 52464, October 2, 2019; 85 FR
63508, October 8, 2020; 87 FR 13975, March 11, 2022; and 87 FR 61575,
October 12, 2022). To date, Orsted has complied with all IHA
requirements (e.g., mitigation, monitoring, and reporting) of the
previous IHAs and information regarding their monitoring results may be
found in the Estimated Take section. These monitoring reports can be
found on NMFS' website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations (87 FR 46921,
August 1, 2022) to further reduce the likelihood of mortalities and
serious injuries to endangered right whales from vessel collisions,
which are a leading cause of the species' decline and a primary factor
in an ongoing Unusual Mortality Event (UME). Should a final vessel
speed rule be issued and become effective during the effective period
of these regulations (or any other MMPA incidental take authorization),
the authorization holder will be required to comply with any and all
applicable requirements contained within the final rule. Specifically,
where measures in any final vessel speed rule are more protective or
restrictive than those in this or any other MMPA authorization,
authorization holders will be required to comply with the requirements
of the vessel speed rule. Alternatively, where measures in this or any
other MMPA authorization are more restrictive or protective than those
in any final vessel speed rule, the measures in the MMPA authorization
will remain in place. The responsibility to comply with the applicable
requirements of any vessel speed rule will become effective immediately
upon the effective date of any final vessel speed rule, and when notice
is published on the effective date, NMFS will also notify Revolution
Wind if the measures in the speed rule were to supersede any of the
measures in the MMPA authorization such that they were no longer
required.
Description of the Specified Activities
Overview
Revolution Wind plans to construct and operate the Project, a 704
megawatt (MW) offshore wind farm in the Project Area. The Project will
allow the states of Rhode Island and Connecticut to meet their
renewable energy goals. The Project, which includes the Revolution Wind
Farm (RWF) and Revolution Wind Export Cable corridor (RWEC), will
consist of several different types of permanent offshore
infrastructure, including wind turbine generators (WTGs; e.g., Siemens
Gamesa 11 megawatt (MW)) and associated foundations, offshore
substations (OSS), offshore substation array cables, offshore export
cables, and substation interconnector cables. Overall, Revolution Wind
will conduct the following specified activities: install 79 WTGs and 2
OSS on monopile foundations via impact pile driving; install and
subsequently remove cofferdams to assist in the installation of the
export cable route by vibratory pile driving, or installation of a
casing pipe by pneumatic hammering and goal posts by vibratory pile
driving; several types of fishery and ecological monitoring surveys;
placement of scour protection; trenching, laying, and burial activities
associated with the installation of the export cable route from OSSs to
shore-based converter stations and inter-array cables between turbines;
HRG vessel-based site characterization surveys using active acoustic
sources with frequencies of less than 180 kilohertz (kHz); the
detonation of up to 13 UXOs/MECs of different charge weights, as
necessary; transit within the Project Area and between ports and the
Lease Area to transport crew, supplies, and materials to support pile
installation via vessels, and WTG operation. All offshore cables will
connect to onshore export cables, substations, and grid connections,
which will be located at Quonset Point in North Kingstown, Rhode
Island. Marine mammals exposed to elevated noise levels during impact
and vibratory pile driving, detonations of UXOs/MECs, and/or site
characterization surveys may be taken by Level A harassment and/or
Level B harassment, depending on the specified activity. A detailed
description of the Project is provided in the published notice of the
proposed rule (87 FR 79072, December 23, 2022).
Dates and Duration
Revolution Wind anticipates its specified activities will occur
throughout all 5 years of the regulations, beginning on November 20,
2023 and continuing through November 19, 2028. Revolution Wind
anticipates the following construction schedule over the 5 year period
(Table 1). Revolution Wind has noted that these are the best and
conservative estimates for activity durations but that the schedule may
shift due to weather, mechanical, or other related delays. Additional
information on dates and activity-specific durations can be found in
the proposed rule and are not repeated here.
BILLING CODE 3510-22-P
[[Page 72565]]
[GRAPHIC] [TIFF OMITTED] TR20OC23.000
Specific Geographic Region
A detailed description of the Specific Geographic Region is
provided in the proposed rule as published in the Federal Register (87
FR 79072, December 23, 2022). Since the proposed rule was published, no
changes have been made to the Specified Geographic Region. Generally,
Revolution Wind's specified activities (i.e., impact pile driving of
WTGs and OSS monopile foundations; vibratory pile driving (installation
and removal) of temporary cofferdams, or pneumatic hammering of casing
pipes and vibratory pile driving of goal posts; placement of scour
protection; trenching, laying, and burial activities associated with
the installation of the RWEC and inter-array cables; HRG site
characterization surveys; UXO/MEC detonation; and WTG operation) are
concentrated in the Project Area. Vessel transit from ports in Maryland
and Virginia could also occur; therefore, vessel use could occur in the
Mid-Atlantic Bight.
[[Page 72566]]
[GRAPHIC] [TIFF OMITTED] TR20OC23.001
BILLING CODE 3510-22-C
Comments and Responses
A notice of proposed rulemaking was published in the Federal
Register on December 23, 2022 (87 FR 79072) and a 15-day extension to
the public comment period was published on January 19, 2023 (88 FR
3375). The proposed rulemaking described, in detail, Revolution Wind's
specified activities, the specific geographic region of the specified
activities, the marine mammal species that may be affected by those
activities, and the anticipated effects on marine mammals. In the
proposed rule, we requested that interested persons submit relevant
information, suggestions, and comments on Revolution Wind's request for
the promulgation of regulations and issuance of an associated LOA
described therein, our estimated take analyses, the preliminary
determinations, and the proposed regulations. In total, the proposed
rule was available for a 45-day public comment period.
NMFS received 404 comment submissions, including from the Marine
Mammal Commission (Commission), several private organizations, and 396
from private citizens. Most of these comments were out-of-scope or not
applicable to this specific action and location (e.g., specific
opposition to offshore wind development offshore of New Jersey; general
opposition to or support of offshore wind projects;
[[Page 72567]]
concerns for other species outside NMFS' jurisdiction (i.e., birds)),
and are not described herein or discussed further. Four comment letters
were from environmental non-governmental organizations, including one
from the Responsible Offshore Development Alliance (RODA), one from
Oceana, Inc. (Oceana), and two from the Natural Resources Defense
Council (NRDC), of which one was a comment letter with an attachment
and the other was a request to extend the comment period an additional
15 days (hence, the extension published in the Federal Register on
January 19, 2023 (88 FR 3375)). We also received one comment letter
from a public organization, the Conservation Law Foundation (CLF).
These six letters (excluding the NRDC request for a 15-day comment
period extension on the proposed regulations) contained substantive
information that NMFS considered in its estimated take analysis, final
determinations, and final regulations. In addition, we received comment
letters from Salty Enterprises, the Washington Dungeness Crab
Association, and a group of Rhode Island fishermen. The comments are
described below, along with NMFS' responses.
All substantive comments and letters are available on NMFS'
website: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Please review the
corresponding public comment link for full details regarding the
comments and letters.
Comment 1: The Commission recommended that, until JASCO Applied
Sciences' (hereafter, ``JASCO'') model has been validated with in-situ
measurements from the impact installation of monopiles and pin piles in
the northwest Atlantic, NMFS should require Revolution Wind and thus
JASCO to re-estimate the various Level A harassment and Level B
harassment zones for the final rule using source levels that are at a
minimum 3 dB greater than those currently used.
Response: The Commission has expressed concerns about the lack of
validation of JASCO's models in previous Commission letters for
Orsted's other wind projects. JASCO has compared their source model
predictions to an empirical model prediction by the Institute of
Technical and Applied Physics (ITAP). The empirical model is based on a
large data set of pile driving sounds measured at 750 meters (m) from
the source collected during installation of large-diameter piles (up to
8 m) during wind farm installation in the North Sea (Bellmann, 2020).
As no noise measurements exist for tapered 8/11-m monopile at this time
(yet to be installed offshore), the ITAP prediction facilitates a way
of validating the source levels of the numerical finite difference (FD)
model. The ITAP data are averaged across different scenarios--pile
sizes are grouped, which includes different hammers, water depths,
depths of penetration, and environmental conditions--and the 95th
percentile level is reported, whereas the aim of JASCO's modeling is to
estimate the median value. While the ITAP forecast and the FD source
predictions were comparable (see Appendix I of the Revolution Wind
Underwater Acoustic and Exposure Modeling report (K[uuml]sel et al.,
2022)), there is variance in the underlying ITAP data and there are
parametric choices for the FD model in the different environments, so
an exact match is not expected. As part of the comparison, it was found
that different (but reasonable) parametric input choices in the FD
modeling can result in output differences on the order of the variance
in the ITAP data so it was concluded that the FD modeling approach
performed as well as can be discernible given the available data. While
adding 3 dB to the JASCO predictions at 750 m may bring JASCO's source
predictions into line with the finite-element (FE) predictions for the
portmanteau combining computation, comparison, and pile (COMPILE)
scenario but it is not clear that this would be more accurate. This
approach assumes that the FE models are correct but Lippert et al.
(2016) also state ``a drawback of (the FE) approach is that it
simulates the energy loss due to friction in an indirect and rather
nonphysical way.'' The Commission also suggested that NMFS could have
used damped cylindrical spreading model (DCSM; Lippert et al., 2018)
and the source levels provided by the time-domain finite difference
pile-driving source model (TDFD PDSM); however, for reasons described
herein, NMFS has determined JASCO's model results are reliable and
achievable.
Recent measurements taken during the Coastal Virginia Offshore Wind
(CVOW) Pilot Project reported the range to the marine mammal Level B
threshold (160 dB re 1 microPascal (1[mu]Pa)) from the 7.8-m pile
installed with a double big bubble curtain to be 3,891 m (12,765.75
feet (ft)) when using a hammer operating at a maximum of 550 kilojoules
(kJ) (WaterProof, 2020). JASCO's model prediction for 7/12-m tapered
piles using a 4,000 kJ hammer is 3,833 m (12,575 ft). The Commission
states that, based on the CVOW reported sound levels, it is unrealistic
that an impact hammer with seven times more energy intensity would
result in a smaller harassment zone. NMFS disagrees. The 3,891-m
distance to the Level B harassment threshold measured during the CVOW
Pilot Project cited by the Commission was obtained based on the maximum
measured sound pressure level (RMS SPL), which is not an ideal
statistic to base estimates of Level B harassment isopleths, as it is
not representative of average operating conditions and represents one
hammer strike. Further, small differences in the propagation
environment could account for the ranges being more comparable than
expected. Importantly, as described below, NMFS is also now in receipt
of measurements from the South Fork project which indicate JASCO's
predicted distance to the Level B harassment threshold is realistic and
attainable. Based on the expected variance between the Revolution Wind
and CVOW projects and measurement data from South Fork (see below), it
cannot be concluded that the CVOW measured results (using the maximum
RMS SPL reported) indicate that JASCO's 4,684 m modeled distance to
Level B harassment threshold should be increased.
Importantly, since the proposed rule phase, NMFS has received
interim sound field verification reports from the South Fork Wind
project, which used JASCO's modeling. In all but one case, and out of
six tapered piles (8/10-m or 7/9.5-m) installed, the measured distances
to NMFS' Level B harassment threshold were lower than JASCO's model
predicted. The distance to NMFS Level B harassment threshold for the
South Fork project was modeled as 4,684 m while in-situ measurements
identified distances, excluding the one aforementioned pile, ranging
from 1.84 kilometers (km) to 3.25 km. JASCO's modeling predicts the
distances to the Level B harassment threshold during installation of
Revolution Wind monopiles will be approximately 3.8 km in summer, which
is slightly greater than the loudest pile installed during the South
Fork Wind results. We note that South Fork Wind determined that the one
pile generating noise levels above those predicted (the first pile) did
so due to a malfunctioning noise attenuation system which was quickly
rectified and deployed appropriately on all future piles. Further, in
this final rule, we are requiring Revolution Wind's measured sound
levels do not exceed those modeled, assuming 10 dB, for at least three
consecutively measured monopiles. Based on all these
[[Page 72568]]
reasons, NMFS is not requiring Revolution Wind to remodel the
harassment zone sizes by adding 3 dB to the source levels and is,
instead, carrying forward the modeling results as presented in the
proposed rule.
Of note, NMFS has also received interim sound field reports from
Vineyard Wind. However, comparisons between the modeled and measured
results are not as directly applicable as the South Fork Wind results
due to assumptions in the model and operations Therefore, the Vineyard
Wind data are less useful in judging predicted alignment between
modeled and measured zones for the Revolution Wind project.
Based on this discussion and given our consideration of the best
available scientific information, including available interim sound
field verification (SFV) reports from other offshore wind construction
projects in the United States, we disagree with the suggestions made by
the Commission. NMFS has incorporated the best available scientific
information into this final rule, using recent measurements as well as
estimates obtained through JASCO's modeling.
Comment 2: The Commission suggested that JASCO should consider
revising its exposure modeling to include single-day simulations for
stationary, discrete sound sources and numerous Monte Carlo simulations
(e.g., at least 30) for modeling reports for future rules.
Response: JASCO typically uses 7-day simulations to get a
representative sample of the installation process (e.g., impact piling
every day or every other day). From those 7-day simulations, several
24-hour windows within the 7-day simulations are used to find the
average exposure expected in a 24-hour period that includes impact pile
driving. The average 24-hour estimates are then scaled by the number of
days of impact pile driving. The use of the 7-day simulation allows for
a robust probability calculation. The Commission recommends that,
instead, JASCO run 30 single-day simulations to generate an average
daily exposure. While NMFS makes recommendations, as appropriate,
regarding the inputs, assumptions, and methods used by applicants to
model and estimate marine mammal take, there is no one single correct
overall methodology. The Commission does not provide any information to
support an assertion that the method used by JASCO is not appropriate
or sufficient, and NMFS supports the use of this methodology.
Furthermore, it is unclear what the Commission means by
``stationary, discrete sound sources.'' If the sources referred to are
monopiles, then JASCO's modeling approach does use a Monte Carlo
approach for sampling the expected sound fields. With the typical
modeling density of 0.5 animats/km\2\, there are usually tens of
thousands of animats meaning there are tens of thousands of Monte Carlo
samples. If the suggestion is to run the simulations (with tens of
thousands of animats) 30 times, that is equivalent to increasing the
modeling density by 30. Previous work, such as the work done by Houser
(2006), has indicated that such high modeling densities are not
necessary. Please refer to NMFS' related response to Comment 1.
Comment 3: The Commission recommended that NMFS authorize Level A
harassment (permanent threshold shift (PTS)) takes for fin whales,
humpback whales, minke whales, common dolphins, bottlenose dolphins,
and Atlantic white-sided dolphins during UXO/MEC detonations and
increase to group size, if needed, in the final rule.
Response: NMFS concurs with the Commission's general recommendation
and notes that the Commission did not provide specific Level A
harassment (PTS) take numbers NMFS should authorize in the final rule.
As described in the proposed rule, take by Level A harassment is
considered less likely given the required shutdown zones and the
instantaneous duration of the detonation, however, NMFS acknowledges
the large mitigation and monitoring zone size (particularly for heavier
charge weight UXOs/MECs) required for this activity, the cryptic nature
of some marine mammal species (e.g., minke whales, dolphin spp.), and
that the authorized take numbers do not fully account for the
effectiveness of the required mitigation measures other than the 10 dB
noise attenuation incorporated in acoustic and exposure modeling.
Therefore, NMFS is conservatively authorizing the number of model-
estimated takes by Level A harassment (PTS) (increased to group size
when the modeled exposures were less than a single group size)
incidental to UXO/MEC detonations that were included in the exposure
estimate table (Table 23) in the proposed rule: 2 fin whales (modeled
exposures = 1.2), 2 humpback whales (modeled exposure = 0.9), 8 minke
whales (modeled exposures = 7.7), 35 common dolphins (modeled exposure
= 0.4), 8 bottlenose dolphins (Western North Atlantic offshore stock)
(modeled exposure = 0.1), and 28 Atlantic white-sided dolphins (modeled
exposure = 0.1). Consistent with this rationale, NMFS is also
authorizing Level A harassment (PTS) of two sei whales (modeled
exposure = 0.5) based on the result of exposure modeling rounded to
group size.
Comment 4: The Commission recommended that NMFS revise its take
estimates for impact installation of monopiles based on the possibility
that only a single monopile is installed per day over 79 days rather
than three per day over 26 days.
Response: The Commission asserted that JASCO should have conducted
single-day simulations adjusted by the respective density and
multiplied by the number of days of each activity (29 days of the
highest mean density month). Further, as addressed in Comment 2, the
Commission suggested that single-day simulations run 30 or 50 times per
activity, species, and season are more consistent with other entities'
methods for conducting exposure modeling and would reduce the variance
and standard error in the predictions as compared to single seven-day
simulations. Regarding density seeding, the Commission did not provide
a justification for the claim that JASCO's assumptions used to seed its
exposure modeling were inappropriate. Additionally, the Commission did
not provide references for the other ``entities'' that have conducted
exposure modeling using single-day simulations, so we are unable to
make direct comparisons. We can, however, further explain and address
the use of seven-day simulations. JASCO ran JASCO's Animal Simulation
Model Including Noise Exposure (JASMINE) simulations for seven days,
assuming piling every day. Separate simulations were run for each
scenario (e.g., pile diameter/number of piles per day/season
combination). The average number of exposures for a 24-hour window for
the scenario in question was then multiplied by the number of days
planned for that scenario. For example, if the scenario includes
installation of three 7/15-m WTG monopiles per day in the summer, JASCO
ran the simulation for 7 days, resetting exposures each day. If the
daily counts were 20, 19, 21, 20, 19, 22, and 20 the average number of
exposures per day would be 20.14. If Revolution Wind plans to install
that particular configuration for 5 days, the exposure estimate would
be 20.14 x 5 = 100.71.
JASCO conducted 7-day simulations because there is some variation
in the exposure estimates due to the statistical nature of the exposure
model and the approach captures installation conditions in multiple
possible pile locations across the wind farm area. Modeling every pile
location in the area
[[Page 72569]]
is not practicable due to computational limitations. For sequential
piling simulations, where more than one pile is installed per day, the
sound fields may overlap but are temporally separated. Whether or not a
particular animat is exposed to sound from installation of one or the
other, both, or all piles is dependent on the spacing of the locations
and the swimming behaviors of the animats. JASCO modeled all other
scenarios (e.g., one pile per day, 7/12-m monopile, summer) completely
separately and multiplied the resulting average number of exposures per
day for a given scenario by the number of days Revolution Wind plans to
conduct the scenario.
The Commission cited an assumption in the take estimate methodology
for installation of monopiles that could push the take estimate in the
direction of less than the maximum expected takes. However, there are
multiple other assumptions in the take estimate methodology that
consider conditions that would result in the maximum possible takes or
even an overestimate of possible takes. When all of these assumptions
are considered together, NMFS expects the take estimation model and
methodology to produce the maximum take that could occur incidental to
the specified activity.
While Revolution Wind acknowledged that it may not install three
piles every day, it indicated it is capable of installing up to three
piles per day with the goal is to complete installation as quickly as
possible. Hence, to assume only one monopile per day everyday (as
recommended by the Commission) would not be consistent with what
Revolution Wind, a company with offshore wind farm installation
experience, indicated is possible or is planned.
The exposure estimates contained within the proposed rule are a
product of modeling that assumes three piles are driven per day. This
assumption is most influential when estimating the number of Level B
harassment exposures but provides minimal influence over the number of
Level A harassment exposures modeled. There are several conservative
assumptions that offset the potential to underestimate take should
Revolution Wind not be able to install three piles per day every day,
including, but not limited to, all piles are installed during 29 days
of the highest density month for each species from May-December. This
is conservative because pile driving every day within a given month is
not possible due to historical weather patterns and potential technical
issues that may be encountered and the highest density of every species
does not occur in the same month. It is more likely that pile driving
will occur over several months in which marine mammal species'
densities are lower. For example, for North Atlantic right whales,
December is the highest density month (from May-December); this maximum
density value was thus conservatively incorporated in take estimation
even though NMFS added a requirement in the final rule that Revolution
Wind must not plan to impact pile drive monopiles during December,
unless NMFS gives approval due to unforeseen circumstances. Further,
for some species, group size or PSO data adjustments were made that
increased the amount of take authorized compared to the modeled
exposure estimates. In addition, the modeled exposure estimates on
which the amount of take authorized is based for some species (versus
group size or PSO data adjustments) do not consider natural avoidance
of marine mammals to noise levels that could elicit PTS, or the use of
mitigation such as shutdown or clearance zones, which are designed to
effect the least practicable adverse impact on marine mammals,
including North Atlantic right whales (e.g., pile driving may not
commence and must shut down if a North Atlantic right whale is observed
at any distance).
NMFS has retained the exposure estimate methodology from the
proposed rule despite the potential for less pile driving per day
(equating to more days of pile driving) for the reasons provided above.
In some cases, as described in this final rule, we have increased the
amount of take authorized from that proposed for some species (e.g.,
increased Level A harassment for marine mammals with modeled Level A
harassment exposures) (see Comments 3, 5, and 6). Furthermore, as
described above, there are numerous other conservative assumptions in
the model such that, when considered together, support NMFS assessment
that the number of take authorized represents the number of take
expected to occur incidental to the impact installation of monopiles.
For these reasons, NMFS disagrees with the Commission's assessment
that the number of take is underestimated for monopile installation and
has not adjusted take based on the possibility that only a single
monopile is installed per day.
Comment 5: The Commission recommended that NMFS should authorize
the model-estimated Level A harassment takes of fin whales, minke
whales, sei whales, harbor porpoises, gray seals, and harbor seals
during impact installation of monopiles.
Response: NMFS agrees with the Commission that some Level A take of
the species referenced may occur; however, NMFS disagrees that the full
number of modeled Level A exposures should equate to the number of take
authorized for all species. The exposure modeling resulted in the
following estimated number of Level A harassment (PTS) exposures
incidental to impact installation of monopiles: 7 humpback whales, 7
fin whales, 3 sei whales, 61 minke whales, 321 harbor porpoises, 5 gray
seals, and 32 harbor seals. Revolution Wind requested and NMFS proposed
to authorize in the proposed rule 7 Level A harassment (PTS) takes of
humpback whales because the size of the large whale shutdown zone
(summer 2.3 km; winter 4.4 km) is smaller than the distance to the PTS
Level A harassment isopleth (summer 2.66 km; winter 6.29 km) for this
species. NMFS did not propose Level A harassment of other marine
mammals because Revolution Wind did not request it and in consideration
of mitigation measures, such as a prescribed shutdown zone that is
larger than the 95 percent exposure range (ER95)
Level A harassment (PTS) zone for all species except, as noted,
humpback whales. While NMFS carried this analysis forward in the
proposed rule, in making the final decision to authorize Level A
harassment of the additional species indicated above, NMFS considered
the impracticality of implementing shutdown measures under certain pile
installation circumstances (i.e., pile instability or pile refusal) for
safety concerns, and the cryptic nature of minke whales, harbor
porpoises, gray seals, and harbor seals (particularly in higher sea
states or reduced visibility conditions). Although the combination of
visual and acoustic monitoring is designed to reliably detect marine
mammals such that effective mitigation can be implemented, NMFS
acknowledges PTS may not be entirely avoidable.
Density-based exposure modeling results indicate there is potential
for 7 fin whale, 3 sei whale, 61 minke whale, 321 harbor porpoise, 32
harbor seal, and 5 gray seal PTS exposures. These numbers represent the
potential for PTS absent consideration of any mitigation or natural
aversion that would prevent them from approaching at the closer
distances associated with PTS and are based on the assumption that all
piles would be driven in the highest density month (May through
December) for any given species. Hence, based on modeling assumptions
alone, these values can be considered a conservative.
[[Page 72570]]
As described above, in the proposed rule, based on Revolution Wind's
request, we considered the potential for shutdown measures to alleviate
potential for PTS except for humpback whales. In consideration of the
Commission's comment, we re-evaluated the potential for marine mammals
of the aforementioned species to remain undetected and remain close
enough and for long enough duration to accumulate energy levels
necessary to elicit PTS. NMFS has determined that where PTS density-
based exposure estimates are very low (i.e., three sei whales, five
gray seals), exposures could occur. However, where exposure estimates
are higher, it would be overly conservative to assume that all
exposures would occur given the required mitigation and monitoring
measures, natural avoidance responses, and that piles will be installed
during lower density months. Therefore, NMFS is authorizing Level A
harassment to sei and gray seals equal to the exposure estimates (three
sei whale, five gray seal). However, for other species, in order to
appropriately consider the likelihood of aversion in the closer
vicinity of the source and the likely effectiveness of the mitigation
measures, we estimate that 20 percent of the calculated exposure
estimates could occur (rounded to the nearest whole number), which is
equal to 2 fin whale exposures, 13 minke whale exposures, 65 harbor
porpoise exposures, and 7 harbor seal exposures. This adjustment is
consistent with the adjustment used in the Gulf of Mexico incidental
take regulations (86 FR 5354, January 19, 2021), which was informed by
the associated relative risk assessment framework developed by an
expert working group to support the analyses and findings in those
regulations. The risk assessment framework referenced Ellison et al.
(2016), in which modeled scenarios using animal movement models were
used to evaluate predicted PTS in which no aversion was assumed
relative to scenarios where reasonable assumptions were made about
aversion, in line with historical response probability assumptions and
that existing scientific literature suggest are appropriate. Scenarios
where no aversion probability was used overestimated the potential for
high levels of exposure required for PTS by about five times.
Accordingly, total modeled injurious exposures calculated without
accounting for behavioral aversion were multiplied by 0.2 as part of
the Expert Working Group (EWG) risk analysis for the Gulf of Mexico,
and we have determined that this adjustment is similarly appropriate
for this analysis.
Comment 6: The Commission recommended that NMFS include in the
final rule a small number of Level A harassment takes of harbor
porpoises incidental to cable landfall construction, specifically
installation and removal of casing pipes.
Response: NMFS concurs with the Commission's general recommendation
and notes the Commission did not recommend a number of takes by Level A
harassment. NMFS has added a small number of Level A harassment takes
of harbor porpoises during pneumatic hammering installation and removal
of casing pipes should this landfall construction activity occur
(rather than installation of a cofferdam). Since publication of the
proposed rule, Revolution Wind determined that it will be impracticable
to monitor a 4-km shutdown zone. Based on NOAA shipboard observations
of harbor porpoises used in habitat-based density modeling conducted by
Roberts et al. (2016, 2023), the detection probability for harbor
porpoises drops off substantially in the 750-1,000 m range when sea
states are a Beaufort Sea State of 2 or less. Therefore, Revolution
concluded that 750 m is the maximum practicable extent within which
they could effectively monitor for harbor porpoise during casing pipe
installation and removal. NMFS has adjusted the shutdown zone in this
final rule to 750 m. Given this new information, similar to our
approach to responding to Comments 3 and 5, we reconsidered the
available information on this species' habitat distribution, the
distance to the Level A harassment threshold, and the potential for
harbor porpoise, a small, fast moving species that can be difficult to
see, to be exposed to sound energy levels necessary to induce PTS. As
described in the proposed rule, modeling results estimate that a harbor
porpoise would have to remain at approximately 4 km for 3 hours of
hammering per day to experience PTS (or some lesser duration if the
animal approaches closer). Harbor porpoises are one of the few marine
mammals known to occur regularly in Narragansett Bay (e.g., Kenney and
Vigness-Raposa, 2010) and are most frequently observed in winter and
spring during which casing pipe installation and removal would occur
(Q4 2023-Q1 2024). The potential temporal and spatial overlap of harbor
porpoise occurrence with the PTS Level A harassment acoustic footprint
resulting from pneumatic hammering, the size of the PTS Level A
harassment zone (3,950 m), and the cryptic nature of harbor porpoises
(particularly at a distance) support authorization of Level A
harassment. Revolution Wind expects that it will require 8 days of
pneumatic hammering to install the casing pipes. Because Revolution
Wind has not specified exactly which 8 days in Q4 2023-Q1 2024 casing
pipe installation would occur, it is possible that they would complete
this activity in December or January, when harbor porpoise densities
near the landfall construction site are an order of magnitude higher
than in the other months in which the species consistently utilizes
habitat in/near Narragansett Bay (March-May), and the potential for
acoustic impacts from pneumatic hammering is highest. Given that there
are no modeled results for takes by Level A harassment, NMFS
conservatively assumes that one group (group size = 2.7 rounded to 3;
Kraus et al., 2016) may be taken by Level A harassment per day of
pneumatic hammering (n=8). Therefore, NMFS is authorizing 24 takes by
Level A harassment zone of harbor porpoises incidental to casing pipe
installation.
Comment 7: The Commission is concerned the number of take of common
dolphin proposed to be authorized (3,913 common dolphins across all
activities) is an underestimate considering the size of the Level B
harassment zones, the potential number of days of activities, and the
known presence of delphinids in the area, and recommended that NMFS
ensure that the number of Level B harassment takes of common dolphins
is sufficient for impact driving of monopiles or other activities
(landfall construction, HRG surveys, and UXO/MEC detonations) and
increase the total number, as necessary, for the final rule. The
Commission notes that other wind-energy operators have had to revise
their HRG survey incidental harassment authorization mid-authorization
and in some cases, twice when the authorized number of takes had been
met (e.g., 86 FR 13695, March 10, 2021), thus, there is the potential
for this to occur for Revolution Wind given the frequency of common
dolphin occurrence in the Project Area. The Commission notes 4,644
common dolphins were observed in the lease areas during combined HRG
surveys (i.e., site assessment surveys) for Revolution Wind and two
other wind projects from September 2019 to September 2020 (Smultea
Environmental Sciences, LLC, 2020).
Response: NMFS acknowledges the importance of accurate take
estimates. NMFS notes that the IHA referenced by the Commission that
required multiple revisions to increase the authorized take numbers for
delphinids, including
[[Page 72571]]
common dolphins, was associated with HRG surveys occurring off the
coast of Virginia and therefore, is not representative of occurrence
patterns in the Project Area. Regarding the cited monitoring results
from Smultea Environmental Sciences, LLC (Smultea) (2020) from Orsted
Wind Power, LLC's HRG surveys (84 FR 52464, October 2, 2019), NMFS also
notes that this survey covered 103,186 km while Revolution Wind only
plans to survey 29 percent of that distance (30,345 km). However, the
common dolphin sighting data in the Smultea (2020) monitoring report
can inform estimates of take within the Project Area, given that the
area surveyed included the Revolution Wind and surrounding leases.
Importantly, the common dolphin take numbers Revolution Wind
requested and NMFS proposed for authorization were based on the best
scientific information available and a conservative methodology,
including that the number of takes was the largest estimate among
multiple take estimation methods (i.e., modeled density-based
exposures, PSO data-derived estimates, and published group size value)
and the data used to estimate take incidental to cofferdam installation
were collected outside Narragansett Bay, where common dolphin occur
more frequently.
NMFS disagrees that authorization of additional take of common
dolphins incidental for landfall construction activities and WTG
foundation installation is warranted. While common dolphins are known
to occur near the landfall construction location in Narragansett Bay,
the frequency of occurrence is expected to be significantly less than
that in open water; thus, the number of takes is conservative as it is
based on oceanic PSO data. In addition, common dolphins are rarely
sighted in Narragansett Bay in the winter months (Kenney and Vigness-
Raposa, 2010) when cable landfall construction will take place. The
proposed common dolphin density-based Level B harassment take estimate
for impact foundation installation incorporated the maximum monthly
average density, which occurs in December. However, the final rule
specifies that Revolution Wind must not plan to install foundations in
December and may only do so with NMFS-explicit approval. Thus the take
estimate for landfall construction activities is conservative.
NMFS agrees with the Commission's recommendation to increase the
number of Level B harassment take of common dolphins incidental to UXO/
MEC detonation given the prevalence of the species in southern New
England; however, the Commission did not provide any suggested number
of takes NMFS should authorize and, as described previously, based
their recommendation partially on PSO sighting data that include
observations of common dolphins over a much larger spatial scale than
the Project Area. While there is no new information to consider,
similar to our approach to responding to Comments 3, 5 and 6, we
reconsidered the available information on this species' monthly
densities, which NMFS considers the best available science for this
purpose, and the currently unpredictable timing of UXO/MEC detonations.
Given the timing of UXO/MEC detonations is unknown, it's equally
possible that detonations could occur when common dolphin densities are
highest or lowest in the Project Area, although take estimation did
conservatively incorporate the maximum average monthly common dolphin
density from May-December in the Lease Area (November) and export cable
route (September). In addition, Revolution Wind assumed six and seven
detonations would occur in the export cable corridor and Lease Area,
respectively. However, it is possible that more than the estimated
number of UXO/MECs could be located and detonated in either area. The
maximum average monthly density used to estimate take in the export
cable corridor (0.0389 individuals/km\2\) is approximately half of the
Lease Area maximum average monthly density. (0.0762 individuals/km\2\).
Thus, should more than seven detonations (if required) occur in the
Lease Area, the estimated Level B harassment take incidental to UXO/MEC
detonation could be underestimated. Based on these factors, NMFS
assumed that one group (group size = 34.9, rounded to 35) could be
taken by Level B harassment incidental to approximately half (n=7) of
all UXO/MEC detonations, and is, therefore, authorizing a total of 632
common dolphin Level B harassment takes due to UXO/MEC detonations; a
change from the proposed rule of 211 as the corrected number of Level B
harassment takes of common dolphin which Revolution Wind requested was
387 and the addition of 245 takes by Level B harassment as a result of
a comment from the Commission.
Please note that Revolution Wind is required to implement the As
Low as Reasonably Practicable (ALARP) process, which indicates that
detonation would occur as a last resort after all other methods (e.g.,
lift-and-shift) are exhausted.
NMFS agrees with the Commission's recommendation to increase take
of common dolphins incidental to HRG surveys and is authorizing an
additional number of common dolphin takes based on data in the PSO
monitoring report cited in their comment, which NMFS considers to be
the best available science for this purpose. The total number of common
dolphins sighted by PSOs is highly variable, depending on the survey
timing (which may align more or less with peaks in expected common
dolphin occurrence), the number of kilometers surveyed, and survey
conditions, among other factors. As described above, Revolution Wind
anticipates that they may conduct HRG surveys at any time of year
throughout construction and non-construction years. Given common
dolphins are one of the most frequently sighted species during HRG
surveys (as reported by PSOs in the monitoring reports cited here) and
the number of dolphins sighted is highly variable and dependent on
multiple influencing factors (e.g., time of year), NMFS is
conservatively authorizing 4,457 common dolphin Level B harassment
takes incidental to HRG surveys during the year of construction, which
is equivalent to the number of common dolphins taken by Level B
harassment during the HRG surveys the Commission refers to in their
comment (Smultea Environmental Sciences, LLC, 2020). This is an 89
percent increase from the 2,354 common dolphin Level B harassment takes
proposed for authorization (87 FR 79072, December 23, 2022).
Accordingly, NMFS is authorizing 1,094 takes per year (89 percent
increase from 579 per year, as presented in the proposed rule) of
common dolphins, by Level B harassment, incidental to HRG surveys for
each of the 4 years following construction (4,376 total in the years
following construction).
Comment 8: The Commission recommended that NMFS determine if the
2017 Department of the Navy's (2017) group size estimates are more
appropriate or reflective of the expected group size estimates for the
Project than those used in the proposed rule (see Borcuk et al., 2017).
If so, the Commission suggested the take numbers be amended in the
final rule for all of Revolution Wind's activities.
Response: We appreciate the Commission's suggestion to review the
2017 Department of the Navy's (2017) group size estimates to see if
they are more applicable for the Project (see Borcuk et al., 2017).
Based on our review, we disagree that the Navy's group size estimates
are the most
[[Page 72572]]
applicable in this case. First, the Navy only provides group size
estimates for odontocetes, which means we would still need to find
applicable estimates for non-odontocete species found in the Atlantic
Ocean. Second, the group sizes provided in Kraus et al. (2016) (used
for 10 species in our analysis) are derived from data gathered
specifically in the Massachusetts and Rhode Island/Massachusetts Wind
Energy Areas (MA and RI/MA WEAs), where Revolution Wind's Project will
occur. The group sizes in the Navy (2017) report are based on data
collected more broadly across the entire East Coast of the United
States and Canada, including the Gulf of Mexico, Sargasso Sea, Labrador
Sea, and Labrador Basin. Furthermore, Atlantic Marine Assessment
Program for Protected Species (AMAPPS) data (Palka et al., 2017; which
was used as a group size reference for six species in our analyses)
uses more recent information, as demonstrated in the 2010-2021 annual
reports found on NMFS' web page, (https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected). The Navy (2017) group sizes are based on data from
1990 through 2013 (see Table 3-1 in the report). Lastly, based on
monitoring reports received from PSOs in the field (and found on NMFS'
website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable#expired-authorizations), the group sizes observed align more
with estimates found in Kraus et al. (2016) and AMAPPS (Palka et al.,
2017). For these reasons, the group sizes proposed by Revolution Wind,
any adjustments using Kraus et al. (2016) or AMAPPS data, and any group
sizes used in the proposed and final rules are based on the best
available scientific information.
Comment 9: The Commission disagrees with NMFS that the potential
for non-auditory injury and mortality during UXO/MEC detonations are
considered de minimis. They stated that although non-auditory injury
and mortality could be unlikely, these outcomes are not de minimis
because these assumptions were based off Bellmann et al. (2020) and
Bellmann (2021) and their reports of bubble curtain effectiveness,
which are based on information obtained from mitigating UXO/MECs in
European waters using a big bubble curtain. The Commission went further
to state that these results from Bellmann are only potentially possible
if the single or double bubble curtain was optimized for the
environmental conditions and that these results are specific to
European charges, which may not be representative of charges in the
United States as charges in Europe have been degrading in the water for
approximately 75 years, which compromises the integrity of the
trinitrotoluene (TNT)-equivalent material. Additionally, the charge
weights described in Bellmann (2021) are much smaller than those
described for Revolution Wind (i.e., 100 grams (g), 5 kilograms (kg),
10 kg compared to 454 kg). The Commission also adds that the shockwave
from the UXO/MEC detonations may displace or disrupt the bubble
curtains due to the speed the shockwave travels (i.e., supersonic).
Because of these reasons, the Commission recommended that NMFS re-
estimate the distances to threshold and the mitigation and monitoring
zones for mortality, Level A harassment, and Level B harassment based
on 0 dB of sound attenuation.
The Commission also recommended that NMFS estimate and authorize
Level B harassment behavior takes of marine mammals, in addition to
takes from temporary threshold shift (TTS), for UXO/MEC detonations in
the final rule. Finally, the Commission recommended that, because of
the reasons already explained regarding attenuating UXO/MEC
detonations, NMFS should require that Revolution Wind utilize a double
big bubble curtain (DBBC) during all detonations and that NMFS not
allow Revolution Wind to detonate UXOs/MECs when currents are moving
faster than 2 knots (kn; 2.3 miles per hour (mph)).
Response: NMFS appreciates the Commission's recognition that
European waters offer a different environment than the Atlantic Ocean
and that the conditions and size of explosives potentially encountered
in the Revolution Wind Project Area. Bellmann (2021) summarized
findings from Bellmann et al. (2021) that showed use of a single big
bubble curtain during UXO/MEC detonation reduced noise levels by 11 dB
for broadband sound exposure levels and up to 18 dB for peak sound
pressure (Lpk). While NMFS agrees with the Commission's
comment that big bubble curtains (BBCs) attenuate high-frequency (HF)
sound (<1 kHz) more efficiently than low-frequency (LF) sound (Bellmann
et al., 2020) that corresponds to most of the UXO/MEC energy, the
broadband attenuation is expected to be similar, if the bubble curtain
radius is large enough to avoid nearfield effects of the explosive
detonations. While it is true that theoretical explosive spectra are
flat at low frequencies and decay at high-frequencies, there remains
significant energy at frequencies at which bubble curtains have been
shown to be effective (Bellmann et al., 2020). A recent study of UXO/
MEC detonations in the North Sea (Robinson et al., 2022) showed that
measured spectra at 5.1 km had the majority of its energy between 32
and 250 Hz, in this range, the insertion loss data from Bellman (2021)
has a minimum attenuation of approximately 16.8 dB in the 50-hertz (Hz)
band and is greater than 20 dB for all other bands. Further, Verfuss et
al. (2019) summarize the effectiveness of bubble curtains on UXO/MEC
detonations beyond those sizes considered in Bellman et al. (2021)
which, while variable, provide support for the 10-dB broadband
assumption when bubble curtains are deployed correctly (i.e., with a
sufficiently large diameter to suppress the flow of displaced water).
Therefore, the choice of 10 dB as a broadband attenuation for UXO/MEC
detonations in our analysis is based on the best scientific information
available and thus is appropriate.
In addressing the Commission's additional comments regarding
mitigating pile driving and UXO/MEC detonations and the efficacy, the
physical principles of inserting an impedance change between the source
and farther receivers is the same whether the source is an explosive or
a pile. It is important, however, that the bubble curtain be placed
outside of the region where the explosive causes nonlinear changes in
the medium. While we do agree that ``deployment'' and ``efficacy'' are
not synonymous terms, there will be a deployed bubble curtain on each
of the piles driven for the project so an understanding of bubble
curtain deployment strategies, maintenance, and use will be understood
by the operations team. As above, the mechanism of sound attenuation,
while frequency dependent, does not change for the source as long as
the bubble curtain is deployed at distance where the acoustics is
linear. For UXOs/MECs, the distances to thresholds for different sized
charges likely to be encountered were calculated by JASCO assuming the
sources were full strength and not degraded due to time. While the
Commission has also accurately stated that the bubble curtain could be
displaced due to the supersonic shock wave produced by the detonation
event, we acknowledge that this would require the bubble curtain to be
placed in the area outside of the non-linear zone.
NMFS is requiring Revolution Wind to meet the noise levels modeled
assuming 10-dB attenuation, which
[[Page 72573]]
must be verified by SFV and, as recommended by the Commission, is
requiring Revolution Wind deploy a double big bubble curtain (DBBC)
during all UXO/MEC detonations. Further, we are requiring that the
bubble curtain be placed at a distance such that the nozzle hose
remains undamaged. Given the best available science suggests 10-dB
attenuation is achievable, the additional information provided above by
JASCO, the requirement to meet the noise levels modeled assuming 10 dB,
and the requirement to use a double big bubble curtain, as well as the
extensive monitoring requirements associated with the clearance
requirements (including aerial surveys if the clearance zone is greater
than 5 km), NMFS has not adjusted any distances to thresholds or take
estimates assuming no noise attenuation. At this time, NMFS is not
requiring UXO/MEC detonation be limited to times when current speed is
2 kn (2.3 mph) or less but, as described above, is requiring Revolution
Wind to meet the noise levels modeled. Should SFV identify that noise
levels are not being met, NMFS will consider the current conditions
during detonation and determine if such a measure is necessary to meet
the noise levels modeled assuming 10-dB attenuation. Nonetheless,
regarding the Commission's comment about use of the term ``de minimis''
to describe the likelihood of non-auditory injury or mortality, we
concur that ``unlikely'' is a better descriptor and have changed it in
this final rule where appropriate.
NMFS agrees with the Commission that there is potential for
behavioral disturbance from a single detonation per day and this impact
is accounted for with the Level B harassment takes authorized from UXO/
MEC detonations. The current take estimation framework allows for the
consideration of animals exhibiting behavioral disturbance during
single explosions as they are counted as ``taken by Level B
harassment'' if they are exposed above the TTS threshold, which is 5-dB
higher than the explosive behavioral harassment threshold. The
behavioral threshold for underwater detonations (i.e., 5 dB less than
the TTS thresholds for each functional hearing group) that the
Commission identifies in its comment is only applicable to multiple
detonations per day. We acknowledge in our analysis that individuals
exposed above the TTS threshold may also be harassed by behavioral
disruption and those potential impacts are considered in the negligible
impact determination. NMFS is not aware of evidence to support the
assertion that animals will have behavioral responses that would
qualify as take to temporally and spatially isolated explosions at
received levels below the TTS threshold. However, if any such responses
were to occur, they would be expected to be few and to result from
exposure to the somewhat higher received levels bounded by the TTS
thresholds and would, thereby, be accounted for in the take estimates.
The derivation of the explosive injury criteria is provided in the 2017
technical report titled ``Criteria and Thresholds for U.S. Navy
Acoustic and Explosive Effects Analysis (Phase III).''
In the final rule, we have clarified that (1) Revolution Wind will
be limited to detonating one UXO/MEC per day, and (2) that the TTS
thresholds provided in Table 5 are used to estimate the potential for
Level B (behavioral) harassment. In both the proposed and this final
rule, NMFS applied the TTS thresholds to determine the received level
at which Level B harassment (which includes both behavioral responses
and TTS) may occur. Hence, no adjustments to take estimates are
necessary.
Comment 10: Citing the dire situation of North Atlantic right
whales, the commenter stated that NMFS should clearly describe in the
regulations or LOA for wind projects that the activities cannot result
in any Level A harassment, serious injury, or mortality of North
Atlantic right whales.
Response: The proposed rule clearly states that no take of North
Atlantic right whales by Level A harassment, mortality, or serious
injury was requested or proposed for authorization (see the Estimated
Take and Negligible Impact Analysis and Determination sections in the
proposed rule) and those statements are also included in this final
rule. In this final rule, for example, Tables 27 and 28 show that only
Level B harassment is authorized for North Atlantic right whales, and
the North Atlantic right whale sub-section in the Negligible Impact
Analysis and Determination section also states that no take of North
Atlantic right whale by Level A harassment, mortality, or serious
injury is anticipated or authorized and any take that is authorized is
limited to Level B harassment only.
Mitigation
Comment 11: Commenters recommended that NMFS require Revolution
Wind to implement the best commercially available combined noise
attenuation system (NAS) technology to achieve the greatest level of
noise reduction and attenuation possible for pile driving. One
commenter recommended that NMFS require, at a minimum, a 10-dB
reduction in sound exposure level (SEL), but other commenters
recommended that NMFS require a minimum of 15-dB or greater reductions,
citing successes described in Bellman et al. (2020 and 2022) and
recommended ``state-of-the art'' methods using a combination of two NAS
systems simultaneously. A commenter further stated that NMFS should
require field measurements to be taken throughout the construction
process, including on the first pile installed, to ensure compliance
with noise reduction requirements. A commenter also suggested that NMFS
require Revolution Wind to use HRG acoustic sources at the lowest
practicable source levels needed to meet the objectives of the site
characterization surveys.
Response: NMFS agrees that underwater noise levels should be
reduced to the greatest degree practicable to reduce impacts on marine
mammals as required by the MMPA. As described in both the proposed and
final rule, NMFS has included requirements for sound attenuation
methods that successfully (evidenced by required sound field
verification measurements) reduce real-world noise levels produced by
impact pile driving of foundation installation to, at a minimum, the
levels provided by JASCO modeled assuming 10 dB reduction, as analyzed
in the proposed rule. Preliminary sound measurements from South Fork
Wind, another Orsted project, indicate that with multiple NAS systems,
measured sound levels during impact driving foundation piles using a
4,000 kJ hammer are below those modeled assuming a 10-dB reduction and
suggest, in fact, that two systems may sometimes be necessary to reach
the targeted 10-dB reductions. While NMFS is requiring that Revolution
Wind reduce sound levels to match the model outputs analyzed (assuming
a reduction of 10 dB), we are not requiring greater reduction as it is
currently unclear (based on measurements to date) whether greater
reductions are consistently practicable for these activities, even if
multiple NAS systems are used.
In response to the recommendation by the commenters for NMFS to
confirm that a 10-dB reduction is achieved, NMFS clarifies that,
because no unattenuated piles would be driven, there is no way to
confirm a 10-dB reduction; rather, in-situ SFV measurements will be
required to confirm that sound levels are at or
[[Page 72574]]
below those modeled assuming a 10-dB reduction.
Regarding the recommendation that Revolution Wind should utilize
its HRG acoustic sources at the lowest practicable source level to meet
the survey objective, NMFS agrees with this suggestion and has
incorporated this requirement into the final rule.
Comment 12: To minimize the risk of vessel strikes for all whales,
especially in recognition of the imperiled state of North Atlantic
right whales, commenters recommended that NMFS require a mandatory 10-
kn (11.5 mph) speed restriction for all project vessels (including PSO
survey vessels) at all times, except for reasons of safety, and in all
places except in limited circumstances where the best available
scientific information demonstrates that whales do not occur in the
area. Another commenter made the same recommendation but suggested no
exceptions. Alternatively, commenters suggest that project proponents
could work with NMFS to develop an ``Adaptive Plan'' that modifies
vessel speed restrictions if the monitoring methods informing the
Adaptive Plan are proven as effective when for vessels traveling 10 kn
(11.5 mph) or less and must follow a scientific study design. One
commenter suggests that if the Adaptive Plan is scientifically proven
to be equally or more effective than a 10-kn speed restriction, that
the Adaptive Plan could be used as an alternative to the 10-kn speed
restriction. Commenters also recommend that NMFS (1) require all
offshore personnel to be trained to identify North Atlantic right
whales and other large whales, (2) that all vessels maintain a 500 m
separation distance from North Atlantic right whale, 100 m for other
large whale species while also maintaining a vigilant watch for North
Atlantic right whale and other large whale species, (3) that NMFS
require vessels to slow down or maneuver their vessels appropriately to
avoid a potential interaction with a North Atlantic right whale and
other large whale species, and (4) that NMFS require vessels to
maintain a separation distance from North Atlantic right whales at all
times.
Response: NMFS acknowledges that vessel strikes pose a risk to all
large whales, including North Atlantic right whales. Based on the
density information provided by Roberts et al. (2023), many large whale
species are less frequently found within the Revolution Wind Project
Area during the months when foundation installation, which requires the
use of multiple vessels, would occur (i.e., May through November and
possibly December, if approved by NMFS). Furthermore, while we
acknowledge that North Atlantic right whales can be found year round in
the Project Area, NMFS, as described in the proposed rule and included
in this final rule, is requiring Revolution Wind to reduce speeds to 10
kn (11.5 mph) or less in circumstances when North Atlantic right whales
are known to be present or more likely to be in the area, which
include, but are not limited to, all Slow Zones (Dynamic Management
Area or acoustic Slow Zone), when traveling between ports in New
Jersey, New York, Maryland, or Virginia from November 1-April 30, and
if a North Atlantic right whale is detected visually or acoustically at
any distance or reported within 10 km. Vessels are also required to
slow and maintain separation distances if other species of large whales
are observed. Additionally, aside from any requirements of this rule,
Revolution Wind is required to comply with all spatial and temporal
speed restrictions outlined in existing regulations. Together, these
speed requirements align with the commenters' recommendations.
The required mitigation measures, all of which were included in the
proposed rule and are now required in the final rule, can be found in
Section 217.274(b) of the regulatory text. For the final rule, NMFS has
also included a requirement that all vessels be equipped with automatic
identification system (AIS) to facilitate compliance checks with the
speed limit requirements. At least 180 days prior to the start of
vessel operations commencing, Revolution Wind must submit both a Vessel
Strike Avoidance Plan, including plans for conducting PAM in the
transit corridors should Revolution Wind determine they wish to travel
over 10 kn (11.5 mph) in the transit corridors, to NMFS for review and
approval.
While NMFS acknowledges that vessel strikes can result in injury or
mortality, we have analyzed the potential for vessel strike resulting
from Revolution Wind's activity and have determined that based on the
required mitigation measures specific to vessel strike avoidance
included in the final rule, the potential for vessel strike is so low
as to be discountable and thus, no vessel strikes are expected or
authorized to occur. These measures also ensure the least practicable
adverse impact on species or stocks and their habitat. Therefore, we
are not requiring project-related vessels to travel 10 kn (11.5 mph) or
less at all times.
Comment 13: Commenters recommended that NMFS should prohibit pile
driving during periods of highest risk for North Atlantic right whales,
which they defined as times of the highest relative density of animals
during foraging and migration, and times where cow-calf pairs, pregnant
females, surface active groups (that are foraging or socializing), or
aggregations of three or more whales, are not expected to be present.
Citing multiple information sources, commenters further specifically
recommended the seasonal restriction for pile driving be expanded to
November 1 through April 30 to reflect the period of highest detections
of vocal activity, sightings, and abundance estimates of North Atlantic
right whales. A commenter recommends prohibiting pile driving during
seasons when protected species are known to be present or migrating in
the Project Area, in addition to any dynamic restrictions due to the
presence of North Atlantic right whale or other endangered species.
Response: NMFS has restricted foundation installation pile driving
from January through April which represent the times of year when North
Atlantic right whales are most likely to be in the Project Area. We
recognize that the density of whales begins to elevate in December;
however, it is not until January when density greatly increases.
Revolution Wind has indicated that to complete the project, pile
driving in December will be avoided as much as possible but may be
required. In this final rule, NMFS has included an additional measure
wherein impact pile driving must be avoided to the maximum extent
practicable in December; however, with prior approval by NMFS, it may
occur if necessary to complete the project. In any time of year when
foundation installation is occurring, a visual or acoustic detection of
a North Atlantic right whale at any distance triggers a pile driving
delay or shutdown. We also reiterate that Revolution Wind is required
to implement a larger minimum visibility zone in December (4.4 km (2.7
mi)) as compared to other project months (2.3 km), reflecting the
results of JASCO's underwater sound propagation modeling. With the
application of these enhanced mitigation and monitoring measures in
December, impacts to the North Atlantic right whale will be further
reduced, if any are encountered when transiting through the Project
Area.
Regarding further restrictions on pile driving in the month of
November, as noted in the comments and supporting information and
acknowledged by NMFS in both the proposed and final rules, North
Atlantic right whale distribution is shifting due to climate
[[Page 72575]]
change and other factors, and they are now present year round in the
vicinity of the project (e.g., Quintana-Rizzo et al., 2021), with
observations of feeding behavior and some detections of mothers with
calves. However, as shown in Roberts et al. (2023), which is considered
the best available science regarding marine mammal densities in the
Atlantic Ocean, it is not until January that densities begin to
significantly increase. Further, North Atlantic right whales are not
likely to be engaged in extensive feeding behaviors in the Project
Area, in November, relative to the extent of foraging in habitat to the
east (e.g., in and around Nantucket Shoals). For these reasons and
given the inclusion of December in the pile driving temporal
restrictions, except with NMFS prior approval, NMFS finds that further
expansion of the pile driving restrictions (beyond December-April) is
unwarranted.
Inasmuch as commenters may be suggesting prohibiting pile driving
when any protected species are present, it would not be practicable to
implement as there is no time of year when some species of marine
mammals are not present. The measures prescribed in this final rule
ensure the least practicable adverse impact on species or stocks and
their habitat.
Comment 14: Commenters recommended that NMFS increase the size of
the clearance and shutdown zones for HRG surveys, require a delay in
the start and resumption of HRG surveys and pile driving if a large
whale is visually or acoustically detected in the clearance and
shutdown zones, require soft start for pile driving and ramp up for HRG
surveys, and require PAM during HRG surveys. In addition, a commenter
acknowledges the purpose of an exemption from shutdown for safety
reasons for pile driving but recommends that, if this exemption occurs,
Revolution Wind must immediately notify NMFS and provide justification
for using the exemption. Additionally, a commenter stated that a
summary of the frequency of these exceptions must be made publicly
available.
Response: NMFS disagrees with the commenters' recommendation to
increase HRG survey clearance and shutdown zone sizes, and the
commenters' do not provide additional scientific information for NMFS
to consider to support their recommendation. As described in the
proposed rule and this final rule, the required 500-m shutdown zone for
North Atlantic right whales exceeds the modeled distance to the largest
160-dB Level B harassment isopleth (141 m during sparker use) by a
large margin, minimizing the likelihood that they will be harassed in
any manner during this activity. For other Endangered Species Act
(ESA)-listed species (e.g., fin and sei whales), the NMFS Greater
Atlantic Regional Fisheries Office (GARFO) 2021 Offshore Wind Site
Assessment Survey Programmatic ESA consultation (see https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic) determined that a 100-
m shutdown zone is sufficient to minimize exposure to noise that could
be disturbing. Accordingly, NMFS has adopted this shutdown zone size
for all baleen whale species, other than the North Atlantic right
whale.
NMFS notes that the recommended requirement that any detection of a
North Atlantic right whale (visually, and acoustically for pile
driving) in the associated clearance zone during the clearance period
would trigger a delay to the onset of HRG surveys and pile driving was
included in the proposed rule and is included in this final rule.
Similarly, NMFS notes that the recommended requirement that any
detection of a North Atlantic right whale (visually, or acoustically in
the associated ``exclusion'' zone) while pile driving is occurring
would trigger a shutdown of pile driving (with the noted safety
exception) was included in the proposed rule and is included in this
final rule. In this final rule, NMFS has also added the requirement
that shutdown of pile driving must occur if a North Atlantic right
whale is visually detected at any distance or acoustically detected at
any distance within the PAM monitoring zone.
Regarding the resumption of pile driving and HRG surveys following
a shutdown, NMFS notes that the following requirements were included in
the proposed rule and in this final rule: (1) PSOs must monitor
clearance zones prior to impact pile driving or use of survey equipment
starting, (2) impact pile driving and survey activities must begin only
when the Lead PSO confirms that no North Atlantic right whales or other
marine mammal species have been detected in the applicable clearance
zones, and the PAM operator confirms no detection of North Atlantic
right whales (for pile driving), and (3) soft-start to pile driving or
ramp-up to HRG surveys are required.
The commenters do not provide additional scientific information for
NMFS to consider to support their recommendation to require PAM during
HRG surveys. NMFS disagrees that this measure is warranted because it
is not expected to be effective for use in detecting the species of
concern given the noise from the vessel, the flow noise, and the cable
noise are in the same frequency band and will mask the vast majority of
baleen whale calls. Vessels produce low-frequency noise, primarily
through propeller cavitation, with main energy in the 5-300 Hz
frequency range. Source levels range from about 140 to 195 dB re 1
[mu]Pa at 1 m (NRC, 2003; Hildebrand, 2009), depending on factors such
as ship type, load, and speed, and ship hull and propeller design.
Studies of vessel noise show that it appears to increase background
noise levels in the 71-224 Hz range by 10-13 dB (Hatch et al., 2012;
McKenna et al., 2012; Rolland et al., 2012). PAM systems employ
hydrophones towed in streamer cables approximately 500 m behind a
vessel. Noise from water flow around the cables and from strumming of
the cables themselves is also low frequency and typically masks signals
in the same range. Experienced PAM operators (Thode et al., 2017)
emphasized that a PAM operation could easily report no acoustic
encounters, depending on species present, simply because background
noise levels rendered any acoustic detection impossible. The same
report stated that a typical eight-element array towed 500 m behind a
vessel could be expected to detect delphinids, sperm whales, and beaked
whales at the required range but not baleen whales due to expected
background noise levels (including seismic noise, vessel noise, and
flow noise).
Further, there are several additional reasons why we do not agree
that use of PAM is warranted for HRG surveys. While NMFS agrees that
PAM can be an important tool for augmenting detection capabilities in
certain circumstances (e.g., foundation installation), its utility in
further reducing impacts during HRG survey activities is limited. For
this activity, the area expected to be ensonified above the Level B
harassment threshold is relatively small (a maximum of 141 m); this
reflects the fact that the source level is comparatively low and the
intensity of any resulting impacts would be lower level and, further,
it means that inasmuch as PAM will only detect a portion of any animals
exposed within a zone, the overall probability of PAM detecting an
animal in the harassment zone is low (particularly because of flow
noise masking vocalizations). Together, these factors support the
limited value of PAM for use in reducing take for activities/sources
with smaller zones. Also, PAM is only capable of detecting animals that
are actively vocalizing,
[[Page 72576]]
while many marine mammal species vocalize infrequently or during
certain activities, which means that only a subset of the animals
within the range of the PAM would be detected (and potentially have
reduced impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of HRG
surveys authorized in this final rulemaking are expected to be limited
to low level behavioral harassment even in the absence of mitigation,
the limited additional benefit anticipated by adding this detection
method (especially for North Atlantic right whales and other low
frequency cetaceans, species for which PAM has limited efficacy during
this specific activity), and the cost and impracticability of
implementing a full-time PAM program, we have determined the current
requirements for visual monitoring are sufficient to effect the least
practicable adverse impact on the affected species or stocks and their
habitat during HRG surveys.
Regarding the recommendation that Revolution Wind should be
required to notify NMFS in the event that mitigation actions are not
undertaken based on specific exceptions (e.g., unable to shutdown pile
driving for safety reasons), NMFS notes that both the proposed and
final rules require weekly, monthly, and annual reports where
Revolution Wind must provide reasons why mitigation actions could not
occur (including for this exception). We acknowledge the importance of
transparency in the reporting process and plan to make all final annual
and 5-year marine mammal monitoring reports and final SFV report on our
website. However, NMFS will not be making the weekly or monthly reports
available to the public given the amount of total reports that would be
obtained over a 5-year period.
NMFS has determined that the prescribed mitigation requirements are
sufficient to effect the least practicable adverse impact on all
affected species or stocks.
Comment 15: Commenters recommended that NMFS require pile-driving
clearance and shutdown zones for large whales (other than North
Atlantic right whale) that are large enough to avoid all take by Level
A harassment and minimize Level B harassment to the most practicable
extent.
Response: The commenters do not provide additional scientific
information for NMFS to consider to support their recommendation to
expand clearance and shutdown zones to effect the least practicable
adverse impact on marine mammals, particularly large whales, excluding
the North Atlantic right whale. The required shutdown and clearance
zones (equally sized) for large whales (other than North Atlantic right
whale) are based on the largest exposure range calculated for any
mysticete, other than humpback whales, that represents the distance to
the Level A harassment (isopleth for the low frequency hearing group,
rounded up to the nearest hundred for PSO clarity. Required monitoring
and mitigation for these zones will minimize Level A harassment and
Level B harassment to the extent practicable and avoid most Level A
harassment of large whales (note that for all but minke whales (n =
21), other species of large whales have 9 or fewer takes by Level A
harassment across all 5 years of the rule). Further enlargement of
these zones could interrupt and delay the project such that a
substantially higher number of days would be needed to complete the
construction activities, which would incur additional costs but,
importantly, also potentially increase the number of days that marine
mammals are exposed to the disturbance. Accordingly, NMFS has
determined that enlargement of these zones is not warranted, and that
the existing required clearance and shutdown zones support a suite of
measures that will effect the least practicable adverse impact on other
large whales.
Comment 16: Commenters recommended that NMFS require clearance and
shutdown zones for North Atlantic right whales specifically, including
(1) a minimum of 5,000 m (3.1 mi) for the visual clearance, acoustic
clearance, and shutdown zones in all directions from the driven pile
location; and (2) an acoustic shutdown zone that would extend at least
2,000 m (1.2 mi) in all directions from the driven pile location.
Response: The commenters do not provide additional scientific
information for NMFS to consider to support their recommendation to
expand clearance and shutdown zones for impact pile driving to effect
the least practicable adverse impact on North Atlantic right whales.
The proposed rule and this final rule require impact pile driving to be
delayed or shutdown if a North Atlantic right whale is visually or
acoustically detected at any distance. Given NMFS neither anticipates
nor authorizes any take by Level A harassment of North Atlantic right
whales, NMFS concludes that these measures will effect the least
practicable adverse impact on the species. Delaying the project due to
overly enlarged zone sizes would result in longer construction time
frames, prolonging the time periods over which marine mammals may be
exposed to construction-related stressors. Accordingly, NMFS has
determined that enlargement of these zones is not warranted and that
the existing required clearance and shutdown zones support a suite of
measures that will effect the least practicable adverse impact on North
Atlantic right whales and other affected species.
Comment 17: For all large whale species, commenters recommended
that NMFS require real-time PAM during pile driving to monitor the
acoustic clearance and acoustic shutdown zones, and must assume a
detection range of at least 10 km. They stated that this monitoring
must be undertaken from a vessel other than the pile driving vessel or
from a stationary unit to avoid masking of the hydrophone from the pile
driving vessel or other development-related noise.
Response: As described in the proposed rule, NMFS is requiring the
use of PAM to monitor 10 km zones around the piles and that the systems
be capable of detecting marine mammals during pile driving within this
zone. However, NMFS acknowledges that this could be made clearer and
has modified Table 29 to clearly specify this 10-km PAM monitoring
zone. Revolution Wind is required to submit a PAM Plan to NMFS for
approval at least 180 days prior to the planned impact pile driving
start date. NMFS will not approve a Plan where hydrophones used for PAM
would be deployed from the pile driving vessel as this would result in
hydrophones inside the bubble curtains, which would clearly be
ineffective for monitoring; therefore, there is no need to explicitly
state in this rule that this would not be allowed. Further, Revolution
Wind may launch PAM drones from shore; hence, NMFS is not requiring
that Revolution Wind deploy any monitoring systems from a vessel.
Comment 18: Commenters recommended that NMFS should restrict pile
driving at night and during periods of low visibility to protect all
large whale species. This would include no pile driving being allowed
to begin after 1.5 hours before civil sunset or during times where the
visual clearance zone and shutdown zone (called the ``exclusion zone''
by the commenter) cannot be visually monitored, as determined by the
Lead PSO.
[[Page 72577]]
If nighttime pile driving is to be allowed, the commenters
recommended that NMFS require that pile driving be initiated no later
than 1.5 hours prior to civil sunset at the latest in order to maximize
monitoring capabilities during hours of optimal visibility/daylight.
The commenters also recommended that impact pile driving started at
least 1.5 hours prior to civil sunset during good visibility conditions
can then continue after dark, as necessary providing the best available
infrared technologies are used to support visual monitoring of the
clearance and exclusion zones during periods of darkness.
Commenters caveat this by stating that NMFS should only allow pile
driving to continue after dark if the activity began during daylight
hours and must continue for human safety or due to installation
feasibility (i.e., instability or pile refusal) but only if required
nighttime monitoring protocols are followed.
Commenters suggested that if pile driving must continue after dark
due to safety reasons, Revolution Wind should be required to notify
NMFS with these reasons and an explanation for exemption. Additionally,
a commenter states that a summary of the frequency of these exceptions
must be made publicly available to ensure that these are indeed
exceptions, rather than the norm, for the project.
Response: NMFS acknowledges the limitations inherent in visual
detection of marine mammals at night and that these could potentially
result in some limited number of marine mammals being exposed to higher
levels of sound for a longer duration before a shutdown was
implemented. However, there are offsetting benefits to completing the
pile driving in a shorter total amount of time, in that some number of
marine mammals (those that might intersect the much larger Level B
harassment zone) would be exposed to fewer overall days of pile driving
noise, and potentially a smaller magnitude or severity of behavioral
disturbance as a result given repeated exposures would be minimized.
Further, Revolution Wind submitted a final draft Alternative Monitoring
Plan (AMP) on August 4, 2023. NMFS will review the AMP to determine
sufficiency in maximizing nighttime detection to support the required
mitigation measures. Should NMFS approve the AMP, nighttime pile
driving may occur given Revolution Wind adherence to the AMP.
NMFS disagrees with the recommendation to require Revolution Wind
to notify NMFS each time that pile(s) must be finished after dark due
to safety and/or stability concerns and note that the rule already
requires weekly reports during foundation installation, which must
contain information that would inform on how long impact pile driving
occurred and if it was necessary for this activity to occur during
hours of darkness (i.e., information that would document the daily
start and stop of all pile-driving activities). These weekly reports
would be combined into monthly and annual reports. We do not plan to
make the weekly or monthly reports publicly available, due to the
number or reports that Revolution Wind must submit to NMFS; however, as
described in Comment 39, we do plan to make the final reports
available, which must summarize all of the information contained in the
weekly and monthly reports. Accordingly, NMFS has determined requiring
additional reporting beyond that described in the proposed rule is not
warranted and that the existing reporting requirements support a suite
of measures that will effect the least practicable adverse impact on
marine mammals and their habitat.
Comment 19: Commenters recommended that NMFS implement diel
restrictions for HRG surveys within 1.5 hours of civil sunset and in
low visibility conditions when the visual clearance zone and shutdown
zone (referred to as the ``exclusion zone'' by the commenter) cannot be
visually monitored by the Lead PSO.
Response: NMFS acknowledges the limitations inherent in visual
detection of marine mammals at night. As proposed, this final rule
requires that visual PSOs use alternative technology (i.e., infrared or
thermal cameras) during periods of low visibility to monitor the
clearance and shutdown zones. We note that no Level A harassment is
expected to result from exposure to HRG equipment, even in the absence
of mitigation, given the characteristics of the sources planned for use
(supported by the very small estimated Level A harassment zones; i.e.,
<36.5 m (119.8 ft) for all sources). Regarding Level B harassment, any
potential impacts are limited to short-term behavioral responses. Given
these factors combined with other mitigation measures, NMFS has
determined that more restrictive mitigation requirements are not
warranted.
Restricting surveys in the manner suggested by the commenters may
reduce marine mammal exposures by some degree at night if, in fact,
detectability is less at night and animals do approach within the small
harassment zone but would not result in any significant reduction in
either intensity or duration of noise exposure over the course of the
surveys. In fact, the restrictions recommended by the commenters could
result in the surveys spending increased total time (number of days) on
the water introducing noise into the marine environment, which may
result in greater overall impacts to marine mammals; thus, the
commenters have not demonstrated that such a requirement would result
in a net benefit. Furthermore, restricting the ability of the applicant
to begin operations only during daylight hours, which could result in
the applicant failing to collect the data they have determined is
necessary within the specific timeframe and, subsequently, may
necessitate the need to conduct additional surveys in the future across
additional days. This would result in significantly increased costs
incurred by the applicant. Thus, the restriction suggested by the
commenters would not be practicable for the applicant to implement. In
consideration of the likely effects of the activity on marine mammals
absent mitigation, potential unintended consequences of the measures as
proposed by the commenters, and practicability of the recommended
measures for the applicant, NMFS has determined that restricting
operations as recommended is not warranted or practicable in this case.
Comment 20: Commenters recommended that NMFS prohibit HRG surveys
during times of highest risk for North Atlantic right whales (foraging
and migration and times when mother-calf pairs, pregnant females,
surface active groups, or aggregations of three or more whales
(indicative of feeding or social behavior), using the best available
science to define high-risk timeframes. Commenters stated that the
Project is sited in critically important year round North Atlantic
right whale foraging and socializing habitat; thus, NMFS should require
corresponding year-round protections and critical mitigation measures.
Commenters recommended that NMFS develop a real-time mitigation and
monitoring protocol to dynamically manage the timing of HRG surveys to
ensure those activities are undertaken during times of lowest risk for
all relevant large whale species.
Response: NMFS neither anticipates nor authorizes take of North
Atlantic right whales by Level A harassment (PTS) from this activity.
While NMFS is authorizing a total 22 Level B harassment takes of North
Atlantic right whales incidental to HRG surveys over the 5-year
effective period of this rulemaking, the required mitigation will
[[Page 72578]]
affect the least practicable adverse impact on the species from this
activity. Specifically, the largest modeled Level B harassment zone
size for the sparker (141 m) is already much smaller than the required
separation, clearance, and shutdown distances for North Atlantic right
whale (500 m) and any unidentified large whale must be treated as if it
were a North Atlantic right whale, triggering associated mitigation.
Any Level B harassment that is not avoided is not expected to impact
important feeding or other behaviors that may occur throughout the year
in the Project Area in a manner that poses energetic or reproductive
risks for any individuals. NMFS also notes that North Atlantic right
whale presence, while not completely absent, decreases significantly
during summer months as compared to winter when the majority of
foundation installation would occur. Given the minimal anticipated
impacts of the HRG survey, NMFS disagrees that additional mitigation
measures, including dynamic management of HRG surveys timing, are
warranted.
Comment 21: Commenters suggested that all acoustic and visual
monitoring must begin at least 60 minutes prior to the start of or re-
start of pile driving and must be conducted throughout the entire
duration of the pile driving event. They also suggest that visual
monitoring must continue for 30 minutes after pile driving has ceased.
Response: The recommended requirements were included in the
proposed rule and are carried forward in this final rule. Also, as
proposed, this final rule includes a requirement that Revolution Wind
review PAM data collected for at least 24 hours immediately prior to
pile driving, for situational awareness. NMFS notes that if PAM
continues throughout any pauses in pile driving, Revolution Wind is not
required to begin the clearance process again (i.e., monitor for 60
minutes, ensuring the clearance zone is free of marine mammals for 30
minutes immediately prior to recommencing pile driving). However, pile
driving would not be allowed to recommence until the clearance zones
are confirmed to be visually and acoustically clear of marine mammals.
Comment 22: Commenter recommends that UXOs/MECs must first be
evaluated to see if they can be moved without detonation. If detonation
must occur, the commenter states that the mitigation measures for pile
driving should be the same with regards to noise abatement technology,
clearance zones, and the use of PSOs. If the impact area is larger than
predicted after detonation, the commenter suggests that expanded
mitigation measures should be implemented.
Response: As proposed, this final rule requires Revolution Wind to
use the ALARP approach such that detonation would be the last resort to
removing a UXO/MEC. That is, Revolution Wind is required to use
detonation as a means of removing UXO/MECs only if all other options of
removal have been exhausted. The following proposed mitigation measures
are also required by this final rule: Revolution Wind will be required
to implement visual monitoring using PSOs and PAM prior to detonation;
these PSOs and PAM operators will be required to clear the appropriate
zones prior to Revolution Wind detonating any UXO/MEC; SFV must be
conducted on every UXO/MEC; and a double big bubble curtain must be
used that is positioned far enough away from the blast such that the
hose nozzles are not damaged.
Furthermore, NMFS retains the ability to modify existing mitigation
measures through adaptive mitigation in the event new information
becomes available and if doing so creates a reasonable likelihood of
more effectively accomplishing the goal(s) of the measure.
Comment 23: Commenter asserts that the LOA must include
requirements to hold all vessels associated with site characterization
surveys accountable to the ITA requirements, including vessels owned by
the developer, contractors, employees, and others regardless of
ownership, operator, and contract. They state that exceptions and
exemptions will create enforcement uncertainty and incentives to evade
regulations through reclassification and redesignation. They recommend
that NMFS simplify this by requiring all vessels to abide by the same
requirements, regardless of size, ownership, function, contract or
other specifics.
Response: NMFS agrees and notes, as described in the proposed rule
and this final rule, that the regulations apply to Revolution Wind and
those persons it authorizes or funds to conduct the specified
activities on its behalf; a copy of the LOA must be in the possession
of Revolution Wind, its designees, all vessel operators, PSOs/PAM
operators; and Revolution Wind must ensure that the vessel operator and
other relevant vessel personnel, including the PSO team, are briefed on
all responsibilities, communication procedures, marine mammal
monitoring protocols, operational procedures, and rule requirements
prior to the start of survey activity, and when relevant new personnel
join the survey operations.
Comment 24: A commenter raised concerns about offshore wind
activities leading to increases in vessel traffic and vessel noise,
which may increase the risk of North Atlantic right whales being struck
by a vessel and may disrupt normal North Atlantic right whale behavior.
Another commenter recommends that NMFS restrict vessels of all sizes
associated with the projects to travel at 10 kn (11.5 mph) or less at
all times to avoid vessel strikes to North Atlantic right whales. Other
commenters recommend that NMFS require management measures of all boats
that reduces the risk of lethal vessel strikes to a level approaching
zero. They suggest implementing a mandatory 10 kn (11.5 mph) speed
restriction for all project-associated vessels at all times, except in
limited circumstances where the best available scientific information
demonstrates that whales do not use an area. In addition, a commenter
claims that vessel speed restrictions are not `fully mandated' or
enforced for offshore wind vessels.
Response: While NMFS acknowledges that vessel strikes can result in
injury or mortality, we have analyzed the potential for vessel strike
resulting from Revolution Wind's activities and have determined that
based on the nature of the activity and the required mitigation
measures specific to vessel strike avoidance included in the
rulemaking, the potential for vessel strike is so low as to be
discountable. All of the mitigation measures that were included in the
proposed rulemaking are now required in the final regulations (see
Sec. 217.274(b)). Based on our analysis, we have determined that the
vessel strike avoidance measures in the rulemaking are sufficient to
ensure the least practicable adverse impact on species or stocks and
their habitat.
Furthermore, we contend that the commenter who raised concerns
about offshore wind activities leading to increases in vessel traffic
and vessel noise is conflating two different points: there is a
difference between vessel strike risks and impacts to marine mammals
due to noise from construction. NMFS acknowledges the aggregate impacts
of Revolution Wind's vessel operations on the acoustic habitat of
marine mammals and has considered it in the analysis (see responses to
Comments 14 and 42). Another commenter's reference to vessel speed
restrictions being ``not fully mandated'' is unclear. NMFS refers again
to the required vessel strike avoidance measures described above. The
commenter does not provide a rationale for its suggestion that vessel
speed restrictions are not enforced for offshore
[[Page 72579]]
wind vessels. We note that all vessels associated with Revolution
Wind's activities must be equipped with a properly installed,
operational Automatic Identification System (AIS) device and Revolution
Wind must report all Maritime Mobile Service Identify (MMSI) numbers to
NMFS Office of Protected Resources, thus facilitating monitoring of
vessel speeds. In addition, NMFS maintains an Enforcement Hotline for
members of the public to report violations of vessel speed
restrictions. Further, the LOA states that the authorization may be
modified, suspended, or revoked if the holder fails to abide by the
conditions prescribed therein.
Comment 25: A commenter states that the LOA must include conditions
for the survey and construction activities that will first avoid
adverse effects on North Atlantic right whales in and around the area
and then minimize and mitigate the effects that cannot be avoided. This
should include a full assessment of which activities, technologies and
strategies are truly necessary to achieve site characterization and
construction to inform development of the offshore wind projects and
which are not critical, asserting that NMFS should prescribe the most
appropriate techniques that would produce the lowest impact while
achieving the same goals while prohibiting those other tools/techniques
that would cause more frequent, intense, or long-lasting effects.
Response: The MMPA requires that we include measures that will
effect the least practicable adverse impact on the affected species and
stocks and, in practice, NMFS agrees that the rule should include
conditions for the construction activities that will first avoid
adverse effects on North Atlantic right whales in and around the
Project Area, where practicable and then minimize the effects that
cannot be avoided. NMFS has determined that this final rule meets this
requirement to effect the least practicable adverse impact. The
commenter does not make any specific recommendations of measures to add
to the rulemaking. NMFS is required to authorize the requested
incidental take if it finds such incidental take of small numbers of
marine mammals by the requestor while engaging in the specified
activities within the specified geographic region will have a
negligible impact on such species or stock and where appropriate, will
not have an unmitigable adverse impact on the availability of such
species or stock for subsistence uses. As described in this notice of
final rulemaking, NMFS finds that small numbers of marine mammals may
be taken relative to the population size of the affected species or
stocks and that the incidental take of marine mammal from all of
Revolution Wind's specified activities combined will have a negligible
impact on all affected marine mammal species or stocks. It is not
within NMFS' authority to determine the requestor's specified
activities.
Comment 26: A commenter recommended that the use of quieter
foundations be given full consideration when selecting a ``preferred
alternative'' and that direct drive turbines be used in lieu of gear
boxes.
Response: The commenter's reference to a ``preferred alternative''
suggests this comment is specific to the Environmental Impact Statement
(EIS) BOEM developed for the project. NMFS agrees with the commenter
that full consideration of various turbine foundations should be
evaluated in an EIS but also recognizes that there are technological
challenges and that the ultimate foundation type chosen must be
practicable. Regardless, this rule evaluates the specified activities
as described in Revolution Wind's MMPA application, which includes
installation of monopiles. With respect to direct-drive, NMFS agrees
that the best available science indicates that these are known to be
less noisy than gearboxes and we understand gearboxes are older
technology. Revolution Wind has confirmed with NMFS that direct drive
turbines will be used for the Revolution Wind project.
Monitoring, Reporting, and Adaptive Management
Comment 27: Commenters recommended that NMFS increase the frequency
of information review for adaptive management to at least once a
quarter and also have a mechanism in place to undertake review and
adaptive management on an ad hoc basis if a serious issue is identified
(e.g., if unauthorized levels of Level A take of marine mammals are
reported, or if serious injury or mortality of an animal occurs).
Response: Regarding the recommendation that NMFS have a mechanism
in place to undertake review and adaptive management on an ad hoc basis
if a serious issue is identified, there are no timing restrictions in
the adaptive management provisions and, therefore, NMFS may undertake
review and adaptive management actions at any time under the
regulations, as written. Regarding the recommendation to increase the
frequency of information review, Revolution Wind is required to submit
weekly, monthly, and annual reports that NMFS will review in a timely
manner and may act on pursuant to the adaptive management provisions at
any time and, therefore, a separate specific quarterly review is
unnecessary.
Comment 28: Commenters recommended that NMFS require robust
monitoring protocols during pre-clearance and when HRG surveys are
underway, including (1) passive acoustic monitoring from a nearby
vessel (other than the survey vessel) or a stationary unit to avoid
masking, (2) visual monitoring of the clearance zone for North Atlantic
right whales and other large whales by two on-duty PSOs each scanning
180 degrees and with another two PSOs stationed on the vessel (for a
total of four PSOs on the survey vessel), and (3) visual and acoustic
monitoring beginning 30 minutes prior to commencement or re-initiation
of survey activities through the duration of the survey.
Response: Regarding the recommendation to require acoustic
monitoring (in any form) to support clearance and shutdown requirements
for HRG surveys, please see NMFS response to Comment 14, which
describes why PAM is not warranted for HRG surveys. With respect to the
number of PSOs, NMFS is not requiring four on-duty PSOs given the very
small harassment zone sizes associated with HRG surveys. In the
proposed rule and in this final rule, PSOs are required to commence
monitoring for marine mammals 30 minutes before HRG surveys begin;
hence, this recommendation has already been satisfied.
Comment 29: Commenters recommended that NMFS require infrared
technology to support visual monitoring for all vessels responsible for
crew transport and during any pile driving activities that occur in
periods of darkness or nighttime to supplement the visual monitoring
efforts for marine mammals. They additionally included a suggestion
that additional observers and monitoring approaches (i.e., infrared,
drones, hydrophones) must be used, as determined to be necessary, to
ensure that monitoring efforts for the clearance and shutdown zones are
effective during daytime, nighttime, and during periods of poor
visibility.
Response: NMFS notes the commenter's recommendations were included
in the proposed rule and are carried forward here. Specifically, NMFS
described in the proposed rule, and is requiring in the final rule,
that infrared technologies and PAM hydrophone deployments be available
and used before, during, and after pile driving. Moreover, since
publication of the proposed rule, Revolution Wind has
[[Page 72580]]
submitted an Alternative Monitoring Plan that includes details about
advanced technologies for monitoring marine mammals at night for both
trained crew observers and PSOs. As for the recommendation to
specifically require drones, NMFS would evaluate any proposal including
drones on a case-by-case basis but is not requiring use of this
technology. The commenter did not provide data indicating drones would
be more effective than other monitoring technology already required.
Comment 30: Commenters recommended that additional monitoring of
the visual clearance and shutdown zones must be undertaken by PSOs
located on the pile driving vessel and on an additional vessel that
would circle the pile driving site. They specified that a minimum of
four PSOs must be on each vessel and must have two PSOs monitoring per
shift operating on a two on, two off rotation, with another commenter
suggesting that human observation be supplemented with infrared (IR)
technology and drones.
Response: NMFS notes the proposed rule aligned with the
recommendation, requiring a total of four PSOs on each monitoring
vessel, two on-duty and two off-duty, working in rotation. On-duty PSOs
on the pile driving vessel and the secondary PSO vessel, circling at a
distance from the pile, would each monitor 180 degrees. To ensure
marine mammal detection is maximized, and in response to public
comments, NMFS is now requiring monitoring for marine mammals before,
during, and after foundation installation and is requiring in this
final rule three on-duty PSOs on both platforms such that each PSO is
responsible for 120 degree coverage. In addition, as proposed, this
final rule requires that visual observers must be equipped with
alternative monitoring technology (e.g., night vision devices, infrared
cameras) to monitor clearance and shutdown zones during periods of low
visibility (e.g., darkness, rain, fog, etc.).
Comment 31: Commenters recommended that NMFS should require sound
field verification during installation of WTG and OSS foundations on
the first monopile installed and then on a random sample of monopiles
throughout the installation process. They also noted that they do not
support the installation of unmitigated piles. They added that all
sound source validation reports for field measurements must be made
publicly available after being evaluated by both NMFS and BOEM prior to
the installation of any additional monopiles. Finally, the Commission
recommended that NMFS require wind farm applicants to include
monitoring of operational sound in their SFV plans in all future
proposed rules.
Response: NMFS notes that, as proposed, this final rule requires
that no unmitigated piles can be installed and that SFV is required for
the first three piles and additional piles where conditions suggest
noise levels may be higher or propagate farther than those piles
previously measured. Furthermore, under this final rule, Revolution
Wind must ensure that measured sound levels do not exceed those modeled
assuming 10 dB of attenuation, which will be validated through SFV.
Revolution Wind has the Lease Area data to identify if a pile would be
more difficult to drive than the initial piles measured, and the
requirement that they would have to conduct SFV on such piles where
information suggests a pile may be more difficult to drive. Given these
requirements, NMFS does not believe random sampling is necessary.
NMFS acknowledges the importance of transparency in the reporting
process (see Comment 39) and plans to make all final SFV reports on our
website. Regarding the Commission's suggestion that NMFS require SFV
during operations, NMFS notes this requirement was included in the
proposed rule and in this final rule
Comment 32: The Commission suggested that the monitoring measures
included in the proposed rule may not be sufficient in reducing the
potential for Level A harassment of North Atlantic right whales,
specifically indicating that visually monitoring a 2.3 to 4.4 km would
prove difficult and cited literature (Oedekoven and Thomas (2022))
estimating effectiveness of marine mammal observers (MMOs) to be 54
percent for detecting rorquals at 914 m or more, 31 percent for small
cetaceans in pods of more than six, and 14 percent for small cetaceans
in pods of six or fewer. The Commission did not provide any
recommendations to increase visual detection capabilities.
Response: The time of year when Revolution Wind would be conducting
the majority of pile driving is when North Atlantic right whale density
in the Project Area is relatively low, given that pile driving is
seasonally restricted from December 1-April 30, unless Revolution Wind
receives NMFS' prior approval to conduct activities in December.
Although modeling predicts 17.5 Level A harassment North Atlantic right
whale exposures (Table 12 in final rule), this estimate does not
consider any mitigation measures, other than 10 dB of sound
attenuation, or natural avoidance of the animal to loud sounds.
Revolution Wind must delay or shutdown impact pile driving if a North
Atlantic right whale is visually detected at any distance or
acoustically detected at any distance within the PAM monitoring zone, a
measure that is more conservative than the finite clearance and
shutdown zones determined for other large whale species. The Commission
cites information from a paper related to the use of trained lookouts
and a team of two on-duty MMOs on moving Navy military vessels actively
engaged in sonar training (Oedekoven and Thomas, 2022) to support its
claim that visual monitoring would prove difficult. We note that these
``trained lookouts'' are Navy personnel who are specifically trained as
lookouts in contrast to NMFS-approved PSOs who are required to have
specific education backgrounds, trainings, and experience before
undertaking PSO duties (see requirements found in the regulatory text
at Section 217.275(a)). NMFS disagrees that the statistics generated
from that report are equivalent to the effectiveness of monitoring for
the Revolution Wind project. At least three PSOs would be placed on the
stationary pile driving platform and three PSOs would also be placed on
each of two dedicated PSO vessels traveling at slow speeds (less than
10 kn (11.5 mph)) for a total of nine PSOs. Concurrently, real-time PAM
is required to supplement visual monitoring during impact pile driving
and UXO/MEC detonation. Further, Revolution Wind must monitor several
times daily supplemental marine mammal detection information systems
(e.g., the Right Whale Sighting Advisory System) to increase
situational awareness. We note that the MMO team in Oedekoven and
Thomas (2022) was not always using PAM in that study and had
significantly more Balaenoptera spp. sightings than the lookout team
(see Table 2 in Oedekoven and Thomas (2022)). Given the monitoring
measures that are required for the Project in combination with the
mitigation measures (i.e., clearance and shutdown zones), NMFS
disagrees that the monitoring measures will be insufficient to avoid
Level A harassment (PTS) of North Atlantic right whales.
Comment 33: The Commission recommended that NMFS require Revolution
Wind to have PAM operators also review acoustic data for at least 24
hours prior to UXO/MEC detonations, when available.
Response: We appreciate the Commission's recommendation and have
incorporated it into the final rule.
[[Page 72581]]
Comment 34: A commenter stated that Revolution Wind should be
required to use PSOs at all times when underway.
Response: NMFS is not requiring PSOs to be onboard every transiting
vessel. However, as described in the proposed rule and carried forward
in this final rule, Revolution Wind must have trained observers onboard
all vessels. The dedicated observer may be a PSO or a crew member with
no other concurrent duties. NMFS is also requiring Revolution Wind to
provide a Vessel Strike Avoidance Plan to NMFS 180 days prior to the
onset of vessel use. Revolution Wind submitted that plan on July 13,
2023, and a revised version on August 25, 2023. Once approved, all
plans will be made available on NMFS' website.
Comment 35: A commenter recommended that the LOA should require all
vessels supporting site characterization to be equipped with and to use
Class A Automatic Identification System (AIS) devices at all times
while on the water. The commenter suggested this requirement should
apply to all vessels, regardless of size, associated with the survey.
Response: NMFS agrees and has included an AIS requirement in more
recently issued IHAs and wind construction proposed rules. This final
rule includes a requirement that all vessels associated with the
project be equipped with AIS.
Comment 36: The Commission recommended that NMFS require Revolution
Wind to submit a PAM plan and to allow for public comments to occur
prior to the issuance of the final rule. The Commission specifies that
this plan should include the number, type(s) (e.g., moored, towed,
drifting, autonomous), deployment location(s), bandwidth/sampling rate,
sensitivity of the hydrophones, estimated detection range(s) for
ambient conditions and during pile driving, and the detection software
to be used. They also recommend that Revolution Wind and other wind
developers consider whether vector sensors should be used in addition
to deployed hydrophones to enhance detection capabilities, with a
particular focus on ``those vocalizations that may be drowned out by
the hammer strikes and resulting reverberation.''
Response: NMFS notes that the Commission's recommendation for
Revolution Wind to submit a PAM Plan to NMFS for approval is consistent
with the proposed rule and this final rule. As proposed, under this
final rule a PAM plan must be submitted to NMFS at least 180 days prior
to the start of the activity. Further, NMFS identified the requirements
that Revolution Wind must meet in its PAM plan in the proposed rule,
which was made available for public comment, and those requirements are
included in this final rule. Given NMFS' extensive expertise with
passive acoustic monitoring and the fact that we are coordinating with
BOEM's Center for Marine Acoustics (CMA), NMFS has determined that
approval of the plan does not warrant public input. However, NMFS will
share the plan with the Commission for review prior to approval of the
plan. NMFS has included the Commission's recommendations, among other
things, of what would be required in the PAM plan.
Comment 37: The Commission recommended that in the final rule NMFS:
(1) specify which model-estimated zones (i.e., acoustic ranges,
exposure ranges, mitigation zones, monitoring zones) and which metrics
(i.e., flat Rmax, flat R95) should be
compared to the in-situ Level A and B harassment zones, (2) specify
which type of in-situ Level A harassment zone (i.e., acoustic or
exposure ranges) should be calculated, and, (3) require that in-situ
measurements be conducted for monopiles that are not represented by the
previous three locations (i.e., substrate composition, water depth) or
by the hammer energies and numbers of strikes needed or number of piles
installed in a given day.
Response: We agree with the Commission about the importance of
specifying quantities to be compared following SFV and have required in
the final rule that calculations of the R95 SEL and
R95 SPLrms acoustic ranges for Level A
harassment and Level B harassment, respectively, based on in situ
measurements must be compared to the same modeled metrics.
Regarding the Commission's third suggestion, NMFS notes that, under
the proposed rule, if a monopile installation site or construction
scenario was determined to be not representative of the rest of the
monopile installation sites, Revolution Wind would be required to
provide information on how additional sites and construction scenarios
would be selected for SFV measurements, as would be described in their
Foundation Installation Pile Driving SFV Plan. This plan would also be
required to describe the methodology for collecting, analyzing, and
preparing SFV measurement data for submission to NMFS. We agree with
the Commission that this information is important and include the same
requirement in the final rule. However, we do not agree with the
suggestion to require additional SFV based on variations in the hammer
energies, number of strikes used for installation, or number of piles
installed per day. NMFS applied the largest distances modeled, which
represents the maximum number of piles installed per day, maximum
strikes predicted, and maximum hammer energies. Because of this,
Revolution Wind is required to stay within the bounds of the analysis.
We also note that any variation assuming less hammer strikes, less
piles installed per day, or lower hammer energies would likely result
in less anticipated take per day, as the take authorized in the final
rule is based on the highest bounds of the analysis. For all these
reasons, we are not requiring additional SFV based on variations
specific to the hammer energy, number of piles installed, or the total
number of strikes.
Comment 38: The Commission recommended that NMFS require Revolution
Wind to include in the pile driving SFV report additional metrics not
identified in the proposed rule, including SPLrms source
levels, cumulative SEL, ranges to Level A harassment and Level B
harassment thresholds, and types and locations of sound attenuation
systems. In addition, the Commission recommended that NMFS require
Revolution Wind to deploy a minimum of three hydrophones for SFV during
impact pile driving
Response: NMFS partially concurs with the Commission's
recommendations. This final rule requires the interim report to include
peak, sound pressure level (SPL), and cumulative sound exposure level
(SELcum) metrics for all hydrophones, estimated distances to
NMFS Level A harassment and Level B harassment threshold isopleths,
types and locations of sound attenuation systems. This information is
also required in the final report. NMFS is not requiring source levels
be estimated in interim reports given the quick turnaround time (48
hours) and amount of data needing to be analyzed in that time. The
purpose of the interim reports are to determine that modeled distances
to isopleths corresponding to Level A harassment and Level B harassment
thresholds are not being exceeded and to determine if any mitigative
action needs to be taken. Hence knowing source levels is not required
at this stage. However, NMFS is requiring source levels (peak,
cumulative SEL, and SPLrms) be included in the final SFV
report. Regarding the hydrophones for SFV during pile driving, NMFS is
requiring that Revolution Wind place two hydrophones at four locations
at an azimuth of least propagation loss and
[[Page 72582]]
two at 750 m and 90 degrees from this azimuth (total = 10 hydrophones).
Comment 39: Commenters stated that the LOA must include a
requirement for all phases of the Revolution Wind site characterization
to subscribe to the highest level of transparency, including frequent
reporting to Federal agencies, requirements to report all visual and
acoustic detections of North Atlantic right whales and any dead,
injured, or entangled marine mammals to NMFS or the U.S. Coast Guard as
soon as possible and no later than the end of the PSO shift. A
commenter stated that to foster stakeholder relationships and allow
public engagement and oversight of the permitting, the ITA should
require all reports and data to be accessible on a publicly available
website. Another commenter also suggested that all quarterly reports of
PSO sightings must be made publicly available to continue to inform
marine mammal science and protection.
Response: NMFS notes the commenters' recommendations to report all
visual and acoustic detections of North Atlantic right whales and any
dead, injured, or entangled marine mammals to NMFS are consistent with
the proposed rule and this final rule (see Situational Reporting). We
refer the reader to section 217.275(g)(13)(i)-(vi) of the regulations
for more information on situational reporting.
Daily visual and acoustic detections of North Atlantic right whales
and other large whale species along the Eastern Seaboard, as well as
Slow Zone locations, are publicly available on WhaleMap (https://whalemap.org/whalemap.html). Further, recent acoustic detections of
North Atlantic right whales and other large whale species are available
to the public on NOAA's Passive Acoustic Cetacean Map website (https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map).
Given the open access to the resources described above, NMFS does not
concur that public access to quarterly PSO reports is warranted, and we
have not included this measure in the authorization. However, NMFS will
post all final reports to our website. We reference the commenters to
Section 217.275(g) for more information on reporting requirements in
the regulations.
Effects Assessment
Comment 40: Commenters stated that NMFS must utilize the best
available science in their analysis. A commenter stated that NMFS must
use the more recent and best available science in evaluating impacts to
North Atlantic right whales, including updated population estimates,
recent habitat usage patterns for the Project Area, and a revised
discussion of the acute and cumulative stress on whales in the region.
Another commenter further added that NMFS should use the most
comprehensive models for estimating marine mammal take and developing
robust mitigation measures.
Response: The MMPA and its implementing regulations require that
incidental take regulations be established based on the best available
information, which does not always mean the most recent information.
NMFS generally considers the information in the most recent U.S.
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments Report
(SAR; Hayes et al., 2023) to be the best available information for a
particular marine mammal stock because of the MMPA's rigorous SAR
procedural requirements, which includes peer review by a statutorily
established Scientific Review Group.
Regarding the comment related to the North Atlantic right whale
population abundance that was cited in the proposed rule, since
publication of the proposed rule, NMFS has finalized the 2022 Stock
Assessment Report indicating the North Atlantic right whale population
abundance is estimated as 338 individuals (Nbest; 95 percent confidence
interval: 325-350; 88 FR 54592, August 11, 2023). NMFS has used this
most recent best available scientific information in the analysis of
this final rule. This new estimate, which is based off the analysis
from Pace et al. (2017) and subsequent refinements found in Pace
(2021), is included by reference in the final 2022 SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports) and provides the most recent and best
available estimate, including improvements to NMFS' right whale
abundance model. Specifically, Pace (2021) looked at a different way of
characterizing annual estimates of age-specific survival. The results
from the Pace (2021) paper that informed the final 2022 SARs
strengthened the case for a change in mean survival rates after 2010
through 2011, but did not significantly change other current estimates
(population size, number of new animals, adult female survival) derived
from the model. Furthermore, NMFS notes that the SARs are peer reviewed
by other scientific review groups prior to being finalized and
published and that the North Atlantic Right Whale Report Card (Pettis
et al., 2022) does not undertake this process. Based on this, NMFS has
considered all relevant information regarding North Atlantic right
whale, including the information cited by the commenters. However, NMFS
has relied on the final 2022 SAR in this final rule as it reflects the
best available scientific information.
We note that this change in abundance estimate does not change the
estimated take of North Atlantic right whales or authorized take
numbers, nor affect our ability to make the required findings under the
MMPA for Revolution Wind's construction activities.
While NMFS cannot require applicants to utilize specific models for
the purposes of estimating take incidental to offshore wind
construction activities, we evaluate the models used to support take
estimates to ensure that they are methodologically sound and
incorporate the best available science. NMFS does require use of the
Roberts et al. (2016, 2023) density data and SARs abundance estimates
for all species, both of which represent the best available science
regarding marine mammal occurrence.
Comment 41: Several commenters raised concerns regarding the
cumulative impacts of the multiple offshore wind projects being
developed throughout the range of North Atlantic right whales and other
marine mammal species and specifically recommend that we carefully
consider the take from all of these projects in combination when
conducting the negligible impact analysis for Revolution Wind. One
commenter recommended NMFS establish an ``IHA threshold'' for offshore
wind activities regionally and across project phases. Another commenter
suggests NMFS' issuance of ITAs for offshore wind construction projects
should be based on a Programmatic Environmental Impact Statement that
assesses cumulative impacts analyses of individual projects as well as
the cumulative impacts from the consequent multiple project
developments rather than separate EISs for each project. Another
commenter suggested that NMFS should analyze the cumulative impacts of
the multiple concurrent phases of offshore wind energy development on
right whales and other marine mammal species in southern New England
waters prior to proceeding with permitting the Revolution Wind Project.
Response: Neither the MMPA nor NMFS' implementing regulations call
for consideration of the take resulting from other specified activities
in the negligible impact analysis. The preamble to NMFS' implementing
regulations (54 FR 40338, September 29,
[[Page 72583]]
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.
Consistent with that direction, NMFS 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 1989 final rule for the
MMPA implementing regulations also addressed public comments regarding
cumulative effects from future, unrelated activities. There, NMFS
stated that such effects are not considered in making findings under
section 101(a)(5) concerning negligible impact. In this case, this
incidental take regulation (ITR), as well as other ITRs currently in
effect or proposed within the specified geographic region, are
appropriately considered an unrelated activity relative to the others.
The ITRs are unrelated in the sense that they are discrete actions
under section 101(a)(5)(A) issued to discrete applicants. Section
101(a)(5)(A) of the MMPA requires NMFS to make a determination that the
take incidental to a ``specified activity'' will have a negligible
impact on the affected species or stocks of marine mammals.
NMFS' implementing regulations require applicants to include in
their request a detailed description of the specified activity or class
of activities that can be expected to result in incidental taking of
marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified activity''
for which incidental take coverage is being sought under section
101(a)(5)(A) is generally defined and described by the applicant. Here,
Revolution Wind was the applicant for the ITR, and we are responding to
the specified activity as described in that application and making the
necessary findings on that basis.
Through the response to public comments in the 1989 implementing
regulations (54 FR 40338, September 29, 1989), NMFS also indicated (1)
that we would consider cumulative effects that are reasonably
foreseeable when preparing a National Environmental Policy Act (NEPA)
analysis and (2) that reasonably foreseeable cumulative effects would
also be considered under Section 7 of the ESA for listed species, as
appropriate. Accordingly, NMFS has adopted an EIS written by BOEM and
reviewed by NMFS as part of its inter-agency coordination. This EIS
addresses cumulative impacts related to Revolution Wind and
substantially similar activities in similar locations. Cumulative
impacts regarding the promulgation of the regulations and issuance of a
LOA for construction activities, such as those planned by Revolution
Wind, have been adequately addressed under NEPA in the adopted EIS that
supports NMFS' determination that this action has been appropriately
analyzed under NEPA. Separately, the cumulative effects of Revolution
Wind on ESA-listed species, including North Atlantic right whales, was
analyzed under Section 7 of the ESA when NMFS engaged in formal inter-
agency consultation with GARFO. The Biological Opinion for Revolution
Wind determined that NMFS' promulgation of the rulemaking and issuance
of a LOA for construction activities associated with leasing,
individually and cumulatively, are likely to adversely affect, but not
jeopardize, listed marine mammals.
Comment 42: Commenters stated that (1) NMFS' reliance on the 160 dB
(re 1 [mu]Pa\2\s) threshold for behavioral harassment is not supported
by the best available scientific information and grossly underestimates
takes by Level B harassment and (2) an assertion the monitoring
protocols prescribed for the clearance zones are under-protective.
Response: For the reasons described below, NMFS disagrees that the
160-dB threshold for behavioral harassment is not supported by the best
available science. The potential for behavioral response to an
anthropogenic source can be highly variable and context-specific
(Ellison et al., 2012). While NMFS acknowledges the potential for Level
B harassment at exposures to received levels below 160 dB rms, it
should also be acknowledged that not every animal exposed to received
levels above 160 dB rms will respond in ways constituting behavioral
harassment. There are a variety of studies indicating that contextual
variables play a very important role in response to anthropogenic
noise, and the severity of effects are not necessarily linear when
compared to a received level (RL). Several studies (e.g., Nowacek et
al., 2004 and Kastelein et al., 2012 and 2015) showed there were
behavioral responses to sources below the 160 dB threshold but also
acknowledged the importance of context in these responses. For example,
Nowacek et al. (2004) reported the behavior of five out of six North
Atlantic right whales was disrupted at RLs of only 133-148 dB re 1
[mu]Pa (returning to normal behavior within minutes) when exposed to an
alert signal. However, the authors also reported that none of the
whales responded to noise from transiting vessels or playbacks of ship
noise even though the RLs were at least as loud and contained similar
frequencies to those of the alert signal. The authors state that a
possible explanation for whales responding to the alert signal and not
responding to vessel noise is due to the whales having been habituated
to vessel noise while the alert signal was a novel sound. In addition,
the authors noted differences between the characteristics of the vessel
noise and alert signal, which may also have played a part in the
differences in responses to the two noise types. Therefore, it was
concluded that the signal itself, as opposed to the RL, was responsible
for the response. DeRuiter et al. (2012) also indicate that variability
of responses to acoustic stimuli depends not only on the species
receiving the sound and the sound source, but also on the social,
behavioral, or environmental contexts of exposure. Finally, Gong et al.
(2014) highlighted that behavioral responses depend on many contextual
factors, including range to source, RL above background noise, novelty
of the signal, and differences in behavioral state. Similarly,
Kastelein et al. (2015) examined behavioral responses of a harbor
porpoise to sonar signals in a quiet pool, but stated behavioral
responses of harbor porpoises at sea would vary with context such as
social situation, sound propagation, and background noise levels.
NMFS uses 160 dB (rms) as the received sound pressure level for
estimating the onset of Level B behavioral harassment takes and is
currently considered the best available science while acknowledging
that the 160 dBrms step-function approach is a simplistic
approach. However, there appears to be a misconception regarding the
concept of the 160 dB threshold. While it is correct that in practice
it works as a step-function (i.e., animals exposed to received levels
above the threshold are considered to be ``taken'' and those exposed to
levels below the threshold are not), it is in fact intended as a sort
of mid-point of likely behavioral responses, which are extremely
complex depending on many factors including species, noise source,
individual experience, and behavioral context. What this means is that,
conceptually, the function recognizes that some animals exposed to
levels below the threshold will in fact react in ways that
appropriately considered take while others that are exposed to levels
above the threshold will not. Use of the 160-dB threshold allows for a
simplistic quantitative estimate of take while we can qualitatively
address the variation
[[Page 72584]]
in responses across different received levels in our discussion and
analysis.
Overall, we reiterate the lack of scientific consensus regarding
what criteria might be more appropriate. Defining sound levels that
disrupt behavioral patterns is difficult because responses depend on
the context in which the animal receives the sound, including an
animal's behavioral mode when it hears sounds (e.g., feeding, resting,
or migrating), prior experience, and biological factors (e.g., age and
sex). Other contextual factors, such as signal characteristics,
distance from the source, and signal to noise ratio, may also help
determine response to a given received level of sound. Therefore,
levels at which responses occur are not necessarily consistent and can
be difficult to predict (Southall et al., 2007; Ellison et al., 2012;
Southall et al., 2021). For example, Gomez et al. (2016) reported that
RL was not an appropriate indicator of behavioral response.
There is currently no concurrence on these complex issues, and NMFS
followed its practice at the time of submission and review of this
application in assessing the likelihood of disruption of behavioral
patterns by using the 160 dB threshold. This threshold has remained in
use in part because of the practical need to use a relatively simple
threshold based on the best available information that is both
predictable and measurable for most activities. We note that the
seminal reviews presented by Southall et al. (2007), Gomez et al.
(2016), and Southall et al. (2021) did not suggest any specific new
criteria due to lack of convergence in the data. NMFS is currently
evaluating available information towards development of updated
guidance for assessing the effects of anthropogenic sound on marine
mammal behavior. However, undertaking a process to derive defensible
exposure-response relationships, as suggested by Tyack and Thomas
(2019), is complex. The recent systematic review by Gomez et al. (2016)
was unable to derive criteria expressing these types of exposure-
response relationships based on currently available data.
NMFS acknowledges that there may be methods of assessing likely
behavioral responses to acoustic stimuli that better capture the
variation and context-dependency of those responses than the simple 160
dB step-function used here; there is no agreement on what that method
should be or how more complicated methods may be implemented by
applicants. NMFS is committed to continuing its work in developing
updated guidance with regard to acoustic thresholds but pending
additional consideration and process is reliant upon an established
threshold that is reasonably reflective of available science.
Regarding the assertion that monitoring protocols prescribed for
the clearance and shutdown zones (called ``exclusion zones'' in the
comment letter) are under-protective, please refer to Comments 13, 14,
22, 30.
Comment 43: Commenters recommended that NMFS fully account for the
consequences of any other proposed North Atlantic right whale seasonal
restriction on other protected species and evaluate alternative risk
reduction strategies that would protect multiple species.
Response: In order to promulgate a rulemaking under Section
101(a)(5)(A) of the MMPA, NMFS must find that the total taking from the
specified activities will have a negligible impact on species and
stocks among other requirements, and subsequently prescribe means of
effecting the least practicable adverse impact on affected species or
stock and its habitat. In the proposed rule and in this final rule,
NMFS has determined the specified activities will have a negligible
impact on species and stock and the mitigation measures will affect the
least practicable adverse impact on all of the affected species or
stocks and their habitat. NMFS acknowledges that the seasonal
restriction for impact pile driving is to effect the least practicable
adverse impact on North Atlantic right whales; however, NMFS notes that
this seasonal restriction provides additional protections to large
whale species that occur off of Massachusetts during winter months. For
example, fin whales are the second-most commonly occurring baleen whale
species, based on density (Roberts et al., 2023), in the Project Area
from December through February and the fin whale feeding Biological
Important Area (BIA) (March through October) overlaps the seasonal
restriction period (March and April). Harbor porpoises, as another
example, are also more likely to be more present when foundation
installation and UXO/MEC detonation would not be occurring. As
described in this final rule, there is no habitat of significance in
the specified geographic region other than the seasonal migratory BIA
for North Atlantic right whales and a small feeding BIA for fin whales.
Comment 44: A commenter claimed that the analyses supporting the
proposed rule did not comprehensively consider potential indirect
negative impacts to fishermen and coastal communities that could result
from cumulative offshore wind activities, particularly as those
activities impact North Atlantic right whales (i.e., vessel strike). In
addition, a commenter requested an explanation of how the offshore wind
industry will be held accountable for their impacts and asserts that
the offshore wind industry must be accountable for incidental takes
from construction and operations separately from the take
authorizations for managed commercial fish stocks.
Commenters expressed concern about the potential impacts of
offshore wind development on marine species, particularly the North
Atlantic right whale, and the potential that any disturbance, added
distress, and mortality of North Atlantic right whales will be
attributed to the commercial, charter, and recreational fishers who
frequently access these same areas in which offshore wind development
is occurring. They requested a moratorium on new incidental harassment
authorizations until more is known about the potential impacts of
offshore wind development on marine species.
Response: NMFS has determined that no serious injury or mortality
is anticipated to result from Revolution Wind's specified activities,
and as discussed in the Negligible Impact Analysis and Determination
section in this final rule, NMFS has determined that Revolution Wind's
specified activities will have a negligible impact on marine mammal
species or stocks. Furthermore, NMFS has determined that the mitigation
measures will effect the least practicable adverse impact on marine
mammals and their habitat. Neither the MMPA nor our implementing
regulations require NMFS to analyze impacts to other industries (e.g.,
fisheries) or coastal communities from issuance of an ITA pursuant to
section 101(a)(5)(A). We note that the Revolution Wind Final EIS
assesses the impacts of both BOEM and NMFS' actions (permitting
Revolution Wind's activities and authorizing the associated take of
marine mammals, respectively) on the human environment, including to
fishermen and coastal communities, and NMFS considered the analysis, as
appropriate, in the final decisions under the MMPA.
Regarding accountability, Revolution Wind would be required to
submit frequent monitoring reports, which would include accounts of any
takes by Level A harassment or Level B harassment. NMFS must withdraw
or suspend any LOA, if issued under these regulations, after notice and
opportunity for public comment, if it finds the methods of taking or
the mitigation, monitoring, or reporting measures are not being
substantially complied with
[[Page 72585]]
(16 U.S.C. 1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to
comply with the requirements of the LOA may result in civil monetary
penalties, and knowing violations may result in criminal penalties (16
U.S.C. 1375). NMFS notes the anticipated impacts from Revolution Wind's
activities (e.g., behavioral harassment, acoustic disturbance,
temporary hearing loss) are different from those anticipated from
fishing activities (e.g., entanglement).
Other
Comment 45: Commenters encouraged NMFS to issue LOAs on an annual
basis, rather than a single 5-year LOA, to allow for the continuous
incorporation of the best available scientific and commercial
information and to modify mitigation and monitoring measures as
necessary and in a timely manner. Both commenters also state that due
to the precarious nature of the North Atlantic right whale, this annual
approach is necessary to implement flexible protections.
Response: While NMFS acknowledges the commenters' rationale, we do
not think it is necessary to issue annual LOAs as: (1) the final rule
includes requirements for annual reports (in addition to weekly and
monthly requirements) to support annual evaluation of the activities
and monitoring results, and (2) the final rule includes an Adaptive
Management provision (see Sec. 217.277(c)) that allows NMFS to make
modifications to the mitigation, monitoring, and reporting measures
found in the LOA if new information supports the modifications and
doing so creates a reasonable likelihood of more effectively
accomplishing the goals of the measures.
Comment 46: The Commission recommended that NMFS specify in section
217.275(d)(9)(ii) of the final rule that the final SFV report must
include source levels at 10 m during wind turbine operations, received
levels at 50 m, 100 m, and 250 m from the wind turbine, operational
parameters (i.e., direct drive/gearbox information, turbine rotation
rate), sea state conditions, and any nearby anthropogenic activities.
In addition, the Commission recommends that NMFS rectify in the final
rule the following proposed rule omissions and errors: (1) Proposed
section 217.272(a) should also specify impact pile driving and removal
of casing pipes and vibratory pile installation or removal of goal
posts, (2) Proposed section 217.272(b) omitted impact removal of casing
pipes, (3) Proposed section 217.274(d)(3)(vii) contradicts proposed
section 217.274(f)(5)(1), which specifies that SFV must be conducted
for each UXO/MEC detonation, (4) Proposed section 217.274(f)(2)
specified that seasonal restrictions for UXO/MEC detonations would be
in place from 1 December through 31 April; however, April has only 30
days, (5) Bellmann (2021) was cited incorrectly as Bellmann and Betke
(2021) in the preamble to the final rule. (6) The terms `small
odontocetes', `delphinids and harbor porpoises', and `dolphins and
porpoises' were used interchangeably throughout the various mitigation
measures in proposed section 217.274, and the terms `seals' and
`pinnipeds' were used interchangeably or omitted altogether from the
various mitigation measures in proposed section 217.274.
Response: We appreciate the specific suggestions provided by the
Commission here. We have rectified all of the concerns described in the
Commission's list, except for those found in (6) above. Please note
that the Section references for each of the items noted by the
Commission have changed from those in the proposed rule due to
reorganization. We have not made adjustments with respect to the
suggestions regarding the intermixed use of ``seals'' versus
``pinnipeds,'' and ``small odontocetes'' (which we now refer to as
``odontocetes''), ``delphinids and harbor porpoises'', and ``dolphins
and porpoises,'' as those terms are clearly describing the species at
hand. Furthermore, this variation in language does not affect the
clarity or understanding of the final rule or its provisions.
Comment 47: A commenter claimed that NMFS, and BOEM should have
conducted more public outreach for the Revolution Wind project and
sought public comments from parties outside of the states in which the
project's land-based operations will occur, given that marine mammals
have migratory patterns that range the entire East Coast.
Response: NMFS disagrees that public outreach regarding the
Revolution Wind project was limited to individuals in particular
states. Both NMFS and BOEM provided all members of the general public
from any location opportunities to comment on and provide information
pertaining to Revolution Wind's potential impacts on marine mammals and
the environment. BOEM published a Notice of Intent to prepare an EIS on
April 30, 2021 (86 FR 22972) in the Federal Register, followed by a 30-
day public comment period and three virtual scoping meetings (May 13,
18, and 20, 2021) to facilitate public engagement in development of an
assessment of potential impacts from Revolution Wind's planned
activities. Additionally, BOEM's draft EIS (Revolution Wind Draft
Environmental Impact Statement (DEIS) for Commercial Wind Lease OCS-A
0486) was made available for public comment on September 2, 2022 (87 FR
54248), which included a 45-day comment period. Finally, BOEM held
three in-person public hearings on October 4, 2022, in Aquinnah, MA,
October 5, 2022, in East Greenwich, CT, and October 6, 2022, in New
Bedford, MA, and two virtual public hearings (again, open to all
members of the public from any location) on September 29 and October
11, 2022. On March 21, 2022, NMFS published a Notice of Receipt (NOR)
of Revolution Wind's adequate and complete MMPA ITA application in the
Federal Register (87 FR 15942), which included a 30-day public comment
period and access to the full application, which was posted on NMFS'
publicly available website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy). NMFS considered all of this information when
developing the proposed rule, which was published in the Federal
Register on December 23, 2022 (87 FR 79072). A 45-day public comment
period followed publication of the proposed rule, during which NMFS
received 404 comment submissions. NMFS carefully considered each of the
received comments when developing this final rule. Comments submitted
on the NOI, DEIS, NOR, and proposed rule were submitted by individuals
from a variety of states, rather than the select few in Revolution
Wind's Project Area. Thus, all members of the public had notice and
opportunity to comment on multiple occasions and had access to relevant
documents via NMFS' and BOEM's websites.
Comment 48: A commenter claimed that recent whale strandings are
the result of offshore wind pre-construction activities. Another
commenter suggested that NMFS should consider whether or not
authorizing Level A harassment or Level B harassment should be
permissible given the recent elevated public concern about potential
impacts on marine mammals from offshore wind activities.
Response: NMFS emphasizes that there is no evidence that noise
resulting from offshore wind development-related marine site
characterization surveys, cause marine mammal strandings, and there is
no evidence linking recent large whale mortalities and currently
ongoing surveys. The commenters offer no such
[[Page 72586]]
evidence or other scientific information to substantiate their claim.
The best scientific information available indicates that only Level B
harassment, or disruption of behavioral patterns (e.g., avoidance), may
occur as a result of Revolution Wind's HRG surveys. NMFS will continue
to gather data to help us determine the cause of these strandings. NMFS
notes the Commission's statement: ``There continues to be no evidence
to link these large whale strandings to offshore wind energy
development, including no evidence to link them to sound emitted during
wind development-related site characterization surveys, known as HRG
surveys. Although HRG surveys have been occurring off New England and
the mid-Atlantic coast, HRG devices have never been implicated or
causatively-associated with baleen whale strandings'' (Marine Mammal
Commission Newsletter, Spring 2023). There is an ongoing UME for
humpback whales along the Atlantic coast from Maine to Florida, which
includes animals stranded since 2016, and we provide further
information on the humpback UME in the humpback whale subsection in the
Description of Marine Mammals in the Specific Geographic Region section
of this final rule.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
(87 FR 79072, December 23, 2022), NMFS has made changes, where
appropriate, that are reflected in the preamble text of this final rule
and the final regulatory text. These changes are briefly identified
below, with more information included in the indicated sections of the
preamble to this final rule.
Changes to Information Provided in the Preamble
The information found in the preamble of the proposed rule was
based on the best available information at the time of publication.
Since publication of the proposed rule, new information has become
available, which has been incorporated into this final rule as
discussed below.
The following changes are reflected in the Description of Marine
Mammals in the Specific Geographic Region section of the preamble to
this final rule:
Given the release of NMFS' final 2022 SARs (Hayes et al., 2023), we
have updated the population estimate for the North Atlantic right whale
(Eubalaena glacialis) from 368 to 338 and the total mortality/serious
injury (M/SI) amount from 8.1 to 31.2. This increase is due to the
inclusion of undetected annual M/SI in the total annual serious injury/
mortality.
Given the availability of new information, we have made updates to
the UME summaries for North Atlantic right whales, humpback whales,
minke whales, and phocid seals (pinnipeds).
The following changes are reflected in the Estimated Take section
the preamble to this final rule:
Seal take estimates were previously calculated by scaling the take
estimates derived from a single ``seal'' guild density using
proportions calculated from the range-wide abundance values in the NMFS
stock assessment reports. To more accurately estimate take for each
species for all activities in the final rule, Revolution Wind scaled
the single seal guild exposure estimate using proportions calculated
from the relative occurrence of each species reported in PSO monitoring
reports for HRG surveys conducted in the Project Area from 2018-2021
(AIS-Inc., 2019; Bennett, 2021; Stevens et al., 2021; Stevens and
Mills, 2021) and more recent data collected in 2023 during construction
of the South Fork Wind Farm (South Fork Wind 2023, unpublished data).
Based on a recommendation by the Commission, we have increased the
number of takes by Level A harassment of harbor porpoises incidental to
cable landfall construction, specifically pneumatic hammering, from 0
to 24, should Revolution Wind choose to install casing pipes.
Based on a recommendation by the Commission, we have increased the
number of common dolphin takes by Level B harassment for UXO/MEC
detonations (from 211 to 632); HRG surveys during construction (from
2,354 to 4,457); and HRG surveys during operations (from 2,312 to
4,376).
Based on our consideration of the Commission's recommendation, we
are authorizing the number of model-estimated Level A harassment (PTS)
take (increased to group size where applicable) incidental to UXO/MEC
detonations: fin whales (n=2), sei whales (n=2), humpback whales (n=2),
minke whales (n=8), common dolphins (n=35), bottlenose dolphins
(Western North Atlantic offshore stock) (n=8), and Atlantic white-sided
dolphins (n=28). The proposed rule did not authorize Level A harassment
(PTS) of these species incidental to UXO/MEC detonations.
Based on consideration of comments from the Commission, we are now
also authorizing the amount of model-estimated Level A harassment (PTS)
take of sei whales (n=3) and 5 gray seals (n=5), as well 20 percent of
the model-estimated Level A harassment (PTS) for the other species,
including fin whales (2), minke whales (13), harbor porpoises (65), and
harbor seals (7) during impact installation of monopiles. The proposed
rule did not authorize Level A harassment (PTS) of these species
incidental to impact pile driving monopiles.
In Tables 27 and 28, we have corrected mathematical errors
reflected in Tables 32 and 33 of the proposed rule resulting from
transcription errors and incorrect summation of take numbers for a
given species across all activities (i.e., foundation installation,
landfall construction, UXO/MEC detonations, and HRG surveys). The
corrections do not change NMFS' findings.
In the proposed rule, NMFS proposed to authorize take by Level B
harassment of sperm whales (n=2) incidental to cofferdam installation.
In this final rule, NMFS is not authorizing Level B harassment of sperm
whales incidental to this specified activity because the sperm whale
exposure estimate is 0.1 and the species exhibits a preference for deep
oceanic habitat rather than the shallow waters in Narragansett Bay,
thus, the probability of take is de minimis.
Changes in the Regulatory Text
We have made the following changes to the regulatory text, which
are reflected, as appropriate, throughout this final rule and
described, as appropriate, in the preamble.
For clarity and consistency, we revised two paragraphs in Sec.
217.270 Specified activity and specified geographical region of the
regulatory text to fully describe the specified activity and specified
geographical region.
The following changes are reflected in Sec. 217.272 Permissible
Methods of Taking.
NMFS added vibratory pile driving of goal posts to the list of
permissible methods of taking by Level B harassment as ``goal posts''
was inadvertently excluded;
Based on the Commission's recommendation to authorize take by Level
A harassment from pneumatic hammering and NMFS' concurrence, NMFS added
pneumatic hammering of casing pipes to the list of permissible methods
of taking by Level A harassment.
The following changes are reflected in Sec. 217.274 Mitigation
Requirements and the associated Mitigation section of the preamble to
this final rule.
Based on a recommendation by a commenter, NMFS added a requirement
that all project vessels must utilize AIS.
[[Page 72587]]
Given that North Atlantic right whale density in the Project Area
increases by an order of magnitude from November to December, NMFS
expanded the seasonal restriction for impact pile driving to include
December, during which impact pile driving must be avoided, although,
with prior approval by NMFS, it may occur if necessary to complete the
project.
NMFS added a requirement for a 10-m (32.8-ft) shutdown zone for all
other in-water activities that are not expected to cause take of marine
mammals (e.g., trenching, dredging) which may be monitored by any
individual on watch (approved PSO not specifically required).
NMFS has included mitigation and monitoring zones specific to the
different UXO/MEC charge weights, rather than a single zone size
assuming only the largest charge weight, as Orsted has since provided
evidence to NMFS that they can reliably identify UXO/MEC charge weights
in the field.
We now specify that the mitigation measure restricts all Project
vessels, rather than only crew transfer vessels, from traveling over 10
kn (11.5 mph) in the transit corridor unless Revolution Wind conducts
real-time acoustic monitoring to detect large whales (including North
Atlantic right whales) in and near the transit corridor, and that this
measure applies only when other speed restrictions are not in place.
We now specify that an acoustic detection of any large whale
(rather than only North Atlantic right whales) via the PAM system
within the transit corridor will trigger a 10 kn (11.5 mph) or less
speed restriction for all Project vessels until the whale can be
confirmed visually beyond 500m of the vessel or 24 hours following the
detection and any re-detection has passed.
The following changes are reflected in the Sec. 217.275 Monitoring
and Reporting requirements and the associated Monitoring and Reporting
section of the preamble to this final rule:
NMFS updated the process for obtaining NMFS approval for PSO and
PAM Operators to be similar to requirements typically included for
seismic (e.g., airgun) surveys and have clarified education, training,
and experience necessary to obtain NMFS' approval.
NMFS added a requirement to have at least three PSOs on pile
driving vessels rather than two PSOs, as was originally described in
the proposed rule.
NMFS increased the PAM shutdown zone from 3.9 km (summer) and 4.4
km (winter) by now requiring Revolution Wind to delay or shutdown if a
North Atlantic right whale is acoustically detected at any distance
within the PAM monitoring zone.
Based on a recommendation by the Marine Mammal Commission, NMFS
added a requirement that increases the time that PAM data must be
reviewed prior to all UXO/MEC detonations from 1 to 24 hours (except in
emergency cases where the 24-hour delay before the detonation occurred
would create risk to human safety).
NMFS added a requirement that a double big bubble curtain must be
placed at a distance that would avoid damage to the nozzle holes during
all UXO/MEC detonations.
Based on a recommendation by the Marine Mammal Commission, NMFS
added a requirement that a pressure transducer must be used during all
UXO/MEC detonations.
NMFS added a requirement stating that Revolution Wind must use two
NAS to ensure that measured sound levels do not exceed the levels
modeled for a 10-dB sound level reduction for foundation installation
(e.g., double BBC (DBBC), hydro-sound damper, an AdBm Helmholz
resonator). A single bubble curtain must not be used;
NMFS added requirements that SFV must be conducted on every pile
until measured noise levels are at or below the modeled noise levels,
assuming 10 dB, for at least three consecutive monopiles, and that SFV
is required for each UXO/MEC detonation.
NMFS added a requirement that Revolution Wind must deploy at least
eight hydrophones at four locations (one bottom and one mid-water
column at each location) along an azimuth that is likely to see lowest
propagation loss, and two hydrophones (one bottom and one mid-water) at
750 m, 90 degrees from the primary azimuth during installation of all
piles where SFV monitoring is required, and equivalent requirements
during all UXO/MEC detonations.
NMFS is now requiring Revolution Wind deploy two dedicated PSOs
vessels to monitor the clearance and shutdown zones prior to and during
impact pile driving installation of monopile foundations. In addition
to the three PSOs on the pile driving platform, three PSOs must be
deployed on each of the dedicated PSO vessels to monitor for marine
mammals.
NMFS is now requiring that Revolution Wind must deploy at least
three PSOs on each observation platform for all detonations with
clearance zones less than 5 km (3.1 mi). If the clearance zone is
larger than 5 km, at least one dedicated PSO vessel (with at least
three on-duty PSOs) and an aerial platform (with at least two on-duty
PSOs) must be used.
NMFS added a requirement that Revolution Wind submit a UXO/MEC PAM
plan for NMFS' approval 180 days prior to the start of any UXO/MEC
detonation.
NMFS now specifies that, for SFV during monopile installations,
calculations of the R95% SEL and R95%
SPLrms acoustic ranges for Level A harassment and Level B
harassment, respectively, based on in situ measurements must be
compared to the same modeled metrics.
Based on consideration of the Commission recommendation, NMFS has
added additional specified reporting requirements for SFV conducted
during operations, and clarified the general SFV reporting metrics to
align with the Commission's comments;
NMFS updated the North Atlantic right whale detection (visual and
acoustic) reporting guidance.
NMFS removed the requirements for reviewing data on an annual and
biennial basis for adaptive management and instead will make adaptive
management decisions as new information warrants it.
Description of Marine Mammals in the Specific Geographic Region
As noted in the Changes From the Proposed to Final Rule section,
since publication of the proposed rule (87 FR 79092, December 23,
2022), updates have been made to the abundance estimate for North
Atlantic right whales and the UME summaries of multiple species. These
changes are described in detail in the sections below; otherwise, the
Description of Marine Mammals in the Specific Geographic Region section
has not changed since the publication of the proposed rule in the
Federal Register (87 FR 79072, December 23, 2022).
Sections 3 and 4 of Revolution Wind's application summarize
available information regarding status and trends, distribution and
habitat preferences, and behavior and life history of the potentially
affected species (Revolution Wind, 2022). NMFS fully considered all of
this information, and we refer the reader to these descriptions in the
application, incorporated here by reference, instead of reprinting the
information. Additional information regarding population trends and
threats may be found in NMFS' SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS'
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website (https://www.fisheries.noaa.gov/find-species).
Table 2 lists all species or stocks for which take is authorized
under this final rule and summarizes information related to the species
or stock, including regulatory status under the MMPA and ESA and
potential biological removal (PBR), where known. PBR is defined as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (as described in
NMFS' SARs; (16 U.S.C. 1362(20))). While no mortality is anticipated or
authorized here, PBR and annual serious injury and mortality from
anthropogenic sources are included here as gross indicators of the
status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in
Table 2 are the most recent available data at the time of publication
which can be found in NMFS' 2022 final SARs (Hayes et al., 2023),
available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.
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All species that could potentially occur in the Project Area are
included in Table 5 in Revolution Wind ITA application and discussed
therein. While the majority of these species have been documented or
sighted in southern New England (including off the coast of Rhode
Island) in the past, for the species and stocks not listed in Table 2,
NMFS considers it unlikely that their occurrence would overlap the
activity in a manner that would result in harassment, due to their
spatial distribution (i.e., more northern or southern ranges) and/or
the geomorphological characteristics of the underwater environment
(i.e., water depth in the development area). There are two pilot whale
species, long-finned (Globicephala melas) and short-finned
(Globicephala macrorhynchus), with distributions that overlap in the
latitudinal range of the Project Area (Hayes et al., 2023; Roberts et
al., 2016; Roberts et al., 2023). Because it is difficult to
differentiate between the two species at sea, sightings, and thus the
densities calculated from them, are generally reported together as
Globicephala spp. (Roberts et al., 2016; Hayes et al., 2023). However,
based on the best available information, short-finned pilot whales
occur in habitat that is both further offshore on the shelf break and
further south than the project area (Hayes et al., 2020). Therefore,
NMFS assumes that any take of pilot whales would be of long-finned
pilot whales. Similarly, in the Western North Atlantic, there are two
morphologically and genetically distinct common bottlenose morphotypes,
the Western North Atlantic Northern Migratory Coastal stock and the
Western North Atlantic Offshore stock. The western North Atlantic
offshore stock is primarily distributed along the outer shelf and slope
from Georges Bank to Florida during spring and summer and has been
observed in the Gulf of Maine during late summer and fall (Hayes et al.
2020), whereas the northern migratory coastal stock is distributed
along the coast between southern Long Island, New York, and Florida
(Hayes et al. 2018). Given their distribution, only the offshore stock
is likely to occur in the Project Area and is the only stock included
in this application.
A detailed description of the species likely to be affected by the
Project, including brief introductions to the species and relevant
stocks as well as available information regarding population trends and
threats, and information regarding local occurrence, were provided in
the proposed rule (87 FR 79072, December 23, 2022). Since that time, a
new SAR (Hayes et al., 2023) has become available for the North
Atlantic right whale. Estimated abundance for the species declined from
368 to 338 and annual M/SI increased from 8.1 to 31.2. This large
increase in annual serious injury/mortality is a result of NMFS
including undetected annual M/SI in the total annual serious injury/
mortality. The North Atlantic right whale population remains in
decline, as described in the North Atlantic Right Whale species section
below. We are not aware of any additional changes in the status of the
species and stocks listed in Table 2; therefore, detailed descriptions
are not provided here. Please refer to the proposed rule for these
descriptions (87 FR 79072, December 23, 2022). Please also refer to
NMFS' website (https://www.fisheries.noaa.gov/find-species) for
generalized species accounts.
Since the publication of the proposed rule, the following updates
have occurred to the below species in regards to general information or
their active UMEs.
North Atlantic Right Whale
In August 2023, NMFS released its final 2022 SARs, which updated
the population estimate (Nbest) of North Atlantic right
whales from 368 to 338 individuals and the annual M/SI value from 8.1
to 31.2 due to the addition of estimated undetected mortality and
serious injury, as described above, which had not been previously
included in the SAR. The population estimate is slightly lower than the
North Atlantic Right Whale Consortium's 2022 Report Card, which
identifies the population estimate as 340 individuals (Pettis et al.,
2023). Elevated North Atlantic right whale mortalities have occurred
since June 7, 2017, along the U.S. and Canadian coast, with the leading
category for the cause of death for this UME determined to be ``human
interaction,'' specifically from entanglements or vessel strikes. Since
publication of the proposed rule, the number of animals considered part
of the UME has increased. As of September 11, 2023, there have been 36
confirmed mortalities (dead, stranded, or floaters), 0 pending
mortalities, and 34 seriously injured free-swimming whales for a total
of 70 whales. As of October 14, 2022, the UME also considers animals
(n=45) with sublethal injury or illness (called ``morbidity'') bringing
the total number of whales in the UME to 115. More information about
the North Atlantic right whale UME is available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event.
Humpback Whale
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. This event was
declared a UME in April 2017. Partial or full necropsy examinations
have been conducted on approximately half of the 208 known cases (as of
September 2023). Of the whales examined (approximately 90), about 40
percent had evidence of human interaction either from vessel strike or
entanglement (refer to https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast). While a portion of the whales have shown evidence of
pre-mortem vessel strike, this finding is not consistent across all
whales examined and more research is needed. NOAA is consulting with
researchers that are conducting studies on the humpback whale
populations, and these efforts may provide information on changes in
whale distribution and habitat use that could provide additional
insight into how these vessel interactions occurred. More information
is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.
Since December 1, 2022, the number of humpback strandings along the
mid-Atlantic coast, from North Carolina to New York, has been elevated.
In some cases, the cause of death is not yet
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known; in others, vessel strike has been deemed the cause of death. As
the humpback whale population has grown, they are seen more often in
the Mid-Atlantic. These whales may be following their prey (small fish)
which were reportedly close to shore in the 2022-2033 winter. Changing
distributions of prey impact larger marine species that depend on them,
and result in changing distribution of whales and other marine life.
These prey also attract fish that are targeted by recreational and
commercial fishermen, which increases the number of boats and amount of
fishing gear in these areas. This nearshore movement increases the
potential for anthropogenic interactions, particularly as the increased
presence of whales in areas traveled by boats of all sizes increases
the risk of vessel strikes.
Minke Whale
Since January 2017, a UME has been declared based on elevated minke
whale mortalities detected along the Atlantic coast from Maine through
South Carolina. As of September, 2023, a total of 158 minke whales have
stranded during this UME. Full or partial necropsy examinations were
conducted on more than 60 percent of the whales. Preliminary findings
have shown evidence of human interactions or infectious disease in
several of the whales, but these findings are not consistent across all
of the whales examined, so more research is needed. This UME has been
declared non-active and is pending closure. More information is
available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast.
Phocid Seals
Since June 2022, elevated numbers of harbor seal and gray seal
mortalities have occurred across the southern and central coast of
Maine. This event was declared a UME in July 2022. Preliminary testing
of samples has found some harbor and gray seals positive for highly
pathogenic avian influenza. While the UME is not occurring in the
Project Area, the populations affected by the UME are the same as those
potentially affected by the Project. Information on this UME is
available online at: https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast.
The above event was preceded by a different UME, occurring from
2018-2020 (closure of the 2018-2020 UME is pending). Beginning in July
2018, elevated numbers of harbor seal and gray seal mortalities
occurred across Maine, New Hampshire, and Massachusetts. Additionally,
stranded seals have shown clinical signs as far south as Virginia,
although not in elevated numbers, therefore the UME investigation
encompassed all seal strandings from Maine to Virginia. A total of
3,152 reported strandings (of all species) occurred from July 1, 2018,
through March 13, 2020. Full or partial necropsy examinations have been
conducted on some of the seals and samples have been collected for
testing. Based on tests conducted thus far, the main pathogen found in
the seals is phocine distemper virus. NMFS is performing additional
testing to identify any other factors that may be involved in this UME.
Information on this UME is available online at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 dB
threshold from the normalized composite audiograms, with the exception
for lower limits for low-frequency cetaceans where the lower bound was
deemed to be biologically implausible and the lower bound from Southall
et al. (2007) retained. Marine mammal hearing groups and their
associated hearing ranges are provided in Table 3.
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The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013). For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
NMFS notes that in 2019a, Southall et al. recommended new names for
hearing groups that are widely recognized. However, this new hearing
group classification does not change the weighting functions or
acoustic thresholds (i.e., the weighting functions and thresholds in
Southall et al. (2019a) are identical to NMFS 2018 Revised Technical
Guidance). When NMFS updates our Technical Guidance, we will be
adopting the updated Southall et al. (2019a) hearing group
classification.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the Project's specified
activities have the potential to result in the harassment of marine
mammals in the specified geographic region. The proposed rule (87 FR
79072, December 23, 2022) included a discussion of the effects of
anthropogenic noise on marine mammals and the potential effects of
underwater noise from the Revolution Wind's project activities on
marine mammals and their habitat. While some new literature has been
published since publication of the proposed rule (e.g., Meyer-Gutbrod
et al., 2023), there is no new information that NMFS is aware of that
changes the analysis in the proposed rule. The information and analysis
included in the proposed rule is incorporated by reference into this
final rule and is not repeated here; please refer to the notice of the
proposed rule (87 FR79072, December 23, 2022).
Estimated Take
As noted in the Changes From the Proposed to Final Rule section,
NMFS has revised take estimates for several species based on our
concurrence with comments received on the proposed rule and due to
transcription and mathematical errors summing take estimates across
activities for several species. These changes are described in detail
in the sections below and, otherwise, the methodology for and number of
estimated take has not changed since the proposed rule.
This section provides an estimate of the number of incidental takes
authorized through this rulemaking, which will inform both NMFS'
consideration of ``small numbers'' and the negligible impact
determination.
Authorized takes would be primarily by Level B harassment, as use
of the acoustic sources (i.e., impact and vibratory pile driving, site
characterization surveys, and UXO/MEC detonations) have the potential
to result in disruption of marine mammal behavioral patterns due to
exposure to elevated noise levels. Impacts such as masking and TTS can
contribute to behavioral disturbances. There is also some potential for
auditory injury (Level A harassment) to occur in select marine mammal
species incidental to the specified activities (i.e., impact pile
driving, vibratory pile driving, and UXO/MEC detonations). As described
below, the larger distances to the PTS thresholds, when considering
marine mammal weighting functions, demonstrate this potential. For mid-
frequency hearing sensitivities, when thresholds and weighting and the
associated PTS zone sizes are considered, the potential for PTS from
the noise produced by the project is negligible. The required
mitigation and monitoring measures are expected to minimize the
severity of the taking to the extent practicable.
As described previously, no serious injury or mortality is
anticipated or authorized for this project. Below we describe how the
take numbers are estimated.
Generally speaking, we estimate take by considering: (1) acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas;
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and, (4) and the number of days of activities. We note that while these
basic factors can contribute to a basic calculation to provide an
initial prediction of takes, additional information that can
qualitatively inform take estimates is also sometimes available (e.g.,
previous monitoring results or average group size). Below, we describe
the factors considered here in more detail and present the authorized
take estimates.
Marine Mammal Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment). Thresholds have also been developed to identify the levels
above which animals may incur different types of tissue damage (non-
acoustic Level A harassment or mortality) from exposure to pressure
waves from explosive detonation. Thresholds have also been developed
identifying the received level of in-air sound above which exposed
pinnipeds would likely be behaviorally harassed. A summary of all NMFS'
thresholds can be found at (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance).
Level B harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., other noises in the area) and the
receiving animals (hearing, motivation, experience, demography, life
stage, depth) and can be difficult to predict (e.g., Southall et al.,
2007, 2021; Ellison et al., 2012). Based on what the available science
indicates and the practical need to use a threshold based on a metric
that is both predictable and measurable for most activities, NMFS
typically uses a generalized acoustic threshold based on received level
to estimate the onset of behavioral harassment. NMFS generally predicts
that marine mammals are likely to be behaviorally harassed in a manner
considered to be Level B harassment when exposed to underwater
anthropogenic noise above root-mean-squared pressure received levels
(RMS SPL) of 120 dB (referenced to re 1 [mu]Pa) for continuous (e.g.,
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa
for non-explosive impulsive (e.g., seismic airguns) or intermittent
(e.g., scientific sonar) sources (Table 4). Generally speaking, Level B
harassment take estimates based on these behavioral harassment
thresholds are expected to include any likely takes by TTS as, in most
cases, the likelihood of TTS occurs at distances from the source less
than those at which behavioral harassment is likely. TTS of a
sufficient degree can manifest as behavioral harassment, as reduced
hearing sensitivity and the potential reduced opportunities to detect
important signals (conspecific communication, predators, prey) may
result in changes in behavior patterns that would not otherwise occur.
Revolution Wind's construction activities include the use of
continuous (i.e., vibratory pile driving) and intermittent (i.e.,
impact pile driving, pneumatic hammering, HRG acoustic sources)
sources, therefore, the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are
applicable. NMFS notes there are separate explosive thresholds to
account for Level B harassment from a single detonation per day and
those are included in Table 5 below.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). As dual
metrics, NMFS considers onset of PTS (Level A harassment) to have
occurred when either one of the two metrics is exceeded (i.e., metric
resulting in the largest isopleth). Revolution Wind's project includes
the use of both impulsive and non-impulsive sources.
These thresholds are provided in Table 4 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
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Explosive sources--Based on the best available science, NMFS uses
the acoustic and pressure thresholds indicated in Tables 5 and 6 to
predict the onset of behavioral harassment, TTS, PTS, tissue damage,
and mortality incidental to explosive detonations. Given Revolution
Wind would be limited to detonating one UXO/MEC per day, the TTS
threshold is used to estimate the potential for Level B (behavioral)
harassment (i.e., individuals exposed above the TTS threshold may also
be harassed by behavioral disruption but we do not anticipate any
impacts from exposure to UXO/MEC detonation below the TTS threshold
would constitute behavioral harassment).
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Additional thresholds for non-auditory injury to lung and
gastrointestinal (GI) tracts from the blast shock wave and/or onset of
high peak pressures are also relevant (at relatively close ranges)
(Table 6). These criteria have been developed by the U.S. Navy (DoN
(U.S. Department of the Navy) 2017) and are based on the mass of the
animal and the depth at which it is present in the water column.
Equations predicting the onset of the associated potential effects are
included below (Table 6).
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Below, we discuss the acoustic modeling, marine mammal density
information, and take estimation for each of Revolution Wind's
construction activities. NMFS has carefully considered all information
and analysis presented by Revolution Wind as well as all other
applicable information and, based on the best available science,
concurs that Revolution Wind's estimates of the types and amounts of
take for each species and stock are complete and accurate.
Marine Mammal Density and Occurrence
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations. As noted above, depending on the species and as described
in the take estimation section for each activity, take estimates may be
based on the Roberts et al. (2023) density estimates, marine mammal
monitoring results from HRG surveys, or average group sizes.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory and the Marine-life Data and Analysis
Team, based on the best available marine mammal data from 1992-2022
obtained in a collaboration between Duke University, the Northeast
Regional Planning Body, the University of North Carolina Wilmington,
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et
al., 2016a, 2016b, 2017, 2018, 2020, 2021a, 2021b, 2023), represent the
best available information regarding marine mammal densities in the
Project Area. More recently, these data have been updated with new
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modeling results and include density estimates for pinnipeds (Roberts
et al., 2016b, 2017, 2018, 2023). Density data are subdivided into five
separate raster data layers for each species, including: Abundance
(density), 95 percent Confidence Interval of Abundance, 5 percent
Confidence Interval of Abundance, Standard Error of Abundance, and
Coefficient of Variation of Abundance.
Revolution Wind's initial densities and take estimates were
included in the ITA application that was considered Adequate & Complete
on February 28, 2022, in line with NMFS' standard ITA guidance (https://www.fisheries.noaa.gov/national/marine-mammal-protection/apply-incidental-take-authorization). However, on June 20, 2022, the Duke
Marine Geospatial Ecology Laboratory released a new, and more
comprehensive, set of marine mammal density models for the area along
the East Coast of the United States (Roberts et al., 2023). The
differences between the new density data and the older data
necessitated the use of updated marine mammal densities and,
subsequently, revised marine mammal take estimates. This information
was provided to NMFS as a memo (referred to as the Revised Density and
Take Estimate Memo) on August 19, 2022 after continued discussion
between Revolution Wind and NMFS and NMFS has considered it in this
analysis. The Revised Density and Take Estimate Memo was made public on
NMFS' website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy)
on August 26, 2022.
Immediately below, we describe observational data from monitoring
reports and average group size information, both of which are
appropriate to inform take estimates for certain activities or species
in lieu of density estimates. As noted above, the density and
occurrence information type resulting in the highest take estimate was
used, and the explanation and results for each activity are described
in the specific activity sub-sections in the Modeling and Take
Estimation section.
For some species, observational data from PSOs aboard HRG and
geotechnical (GT) survey vessels indicate that the density-based
exposure estimates may be insufficient to account for the number of
individuals of a species that may be encountered during the planned
activities. PSO data from HRG and GT surveys conducted in and near the
Project Area from October 2018 through February 2021 (AIS-Inc., 2019;
Bennett, 2021; Stevens et al., 2021; Stevens and Mills, 2021) were
analyzed to determine the average number of individuals of each species
observed per vessel day. For each species, the total number of
individuals observed (including the ``proportion of unidentified
individuals'') was divided by the number of vessel days during which
observations were conducted in 2018-2021 HRG surveys (407 vessel days)
to calculate the number of individuals observed per vessel day, as
shown in the final columns of Tables 7a and 7b in the Updated Density
and Take Estimation Memo.
For other less-common species, the predicted densities from Roberts
et al. (2023) are very low and the resulting density-based exposure
estimate is less than a single animal or a typical group size for the
species. In such cases, the mean group size was considered as an
alternative to the density-based or PSO data-based take estimates to
account for potential impacts on a group during an activity. Mean group
sizes for each species were calculated from recent aerial and/or
vessel-based surveys as shown in Table 7.
The estimated monthly density of seals provided in Roberts et al.
(2023) includes all seal species present in the region as a single
guild. To split the resulting ``seal'' density-based take estimate by
species (harbor and gray seals), the estimate was multiplied by the
proportion of the combined abundance attributable to each species. In
the proposed rule, seal take estimates were previously calculated by
scaling the exposure estimates derived from a single ``seal'' guild
density using proportions calculated from the range-wide abundance
values in the NMFS stock assessment reports (87 FR 79072, December 23,
2022). To more accurately estimate take for each species for all
activities in the final rule, Revolution Wind instead scaled the single
seal guild take estimates using proportions calculated from the
relative occurrence of each species reported in PSO monitoring reports
for HRG surveys conducted in the Project Area from 2018-2021 (AIS-Inc.,
2019; Bennett, 2021; Stevens et al., 2021; Stevens and Mills, 2021) and
more recent data collected during construction of the South Fork Wind
Farm in 2023 (South Fork Wind 2023, unpublished data). In the combined
dataset, there were 62 seal sightings recorded to the species level. Of
those, 17 individuals were harbor seals (0.27 or 27 percent) and 45
were gray seals (0.73 or 73 percent). Revolution Wind used these
proportions to recalculate the species-specific seal take shown in
Tables 12, 16, 20, 25, and 26.
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The estimated exposure and take tables for each activity present
the density-based exposure estimates, PSO-date derived take estimate,
and mean group size for each species. The number of takes by Level B
harassment Revolution Wind requested and NMFS authorizes is based on
the largest of these three values. As mentioned previously, the amount
of take by Level A harassment authorized is based strictly on density-
based exposure modeling results, rounded up to the nearest whole number
or group size, as appropriate. As described in the Comments and
Responses section and based on specific recommendations by the
Commission during the 45-day public comment period, NMFS is authorizing
additional take for a subset of species for particular activities.
Details are included in the following activity-specific sections.
Modeling and Take Estimation
Revolution Wind estimated potential density-based exposures in two
separate ways, depending on the activity. For WTG and OSS monopile
foundation installation, sophisticated sound and animal movement
modeling was conducted to more accurately account for the movement and
behavior of marine mammals and their exposure to the underwater sound
fields produced during impact pile driving, as described below. For
landfall construction activities, HRG surveys, and in-situ UXO/MEC
disposal (i.e., detonation), takes were estimated by multiplying the
expected densities of marine mammals in the activity area(s) by the
area of water likely to be ensonified above harassment threshold levels
in a single day (24-hour period). The result was then multiplied by the
number of days on which the activity is expected to occur, resulting in
a density-based exposure estimate for each activity. In addition to the
sophisticated modeling conducted for WTG and OSS monopile foundation
installation, this method was used to produce a take estimate for each
species for comparison with the exposure-based estimate, PSO-data
estimate, and group size. Again, in some cases, these results directly
inform the take estimates while, in other cases, adjustments are made
based on monitoring results or average group size.
Below, we describe, in detail, the approach used to estimate take,
in consideration of the acoustic thresholds and appropriate marine
mammal density and occurrence information described above for each of
the four different activities (WTG/OSS foundation installation, UXO/MEC
detonation, landfall construction activities, and HRG surveys). The
activity-specific exposure estimates (as relevant to the analysis) and
activity-specific take estimates are also presented, alongside the
combined totals annually, across the entire 5-year project, and as the
maximum take of marine mammals that could occur within any 1 year.
WTG and OSS Monopile Foundation Installation
Here, for WTG and OSS monopile foundation installation, we provide
summary descriptions of the modeling methodology used to predict sound
levels generated from the Project with respect to harassment thresholds
and potential exposures using animal movement, the density and/or
occurrence information used to support the take estimates for this
activity, and the resulting acoustic and exposure ranges, exposures,
and authorized takes. Additional modeling details are available in the
proposed rule Federal Register document (87 FR 79092, December 23,
2022).
In this section, we present Revolution Wind's acoustic and exposure
estimates for installation of up to 79 WTG foundations and 2 OSS
foundations, as requested by Revolution Wind.
The full installation parameters for each size monopile are
described below. The two impact pile driving installation acoustic
modeling scenarios are:
(1) 7/12-m diameter WTG monopile foundation: A total of 10,740
hammer strikes per pile modeled over 220 minutes (3.7 hours); and,
(2) 7/15-m diameter OSS foundation: A total of 11,564 hammer
strikes per pile modeled over 380 minutes (6.3 hours).
Representative hammering schedules (Table 8), including increasing
hammer energy with increasing penetration depth, were modeled because
maximum sound levels usually occur during the last stage of impact pile
driving, where the greatest resistance is typically encountered (Betke
2008). The hammering schedule includes a soft start, or a period of
hammering at a reduced hammer energy (relative to full operating
capacity).
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Revolution Wind will install monopiles vertically to a maximum
penetration depth of 50 m; therefore, the model includes this
assumption. While pile penetration depth among the foundation positions
might vary slightly, this value was chosen as a reasonable penetration
depth for the purposes of acoustic modeling based on Revolution Wind's
engineering designs. All modeling was performed assuming that only one
pile is driven at a time (i.e., Revolution Wind will not conduct
concurrent monopile installations), up to three WTG foundations will be
installed per day, and no more than one OSS foundation will be
installed per day.
Sound fields produced during impact pile driving were modeled by
first characterizing the sound signal produced during pile driving
using the industry standard GRLWEAP (wave equation analysis of pile
driving) model and JASCO Applied Sciences' (JASCO) Pile Driving Source
Model (PDSM). We provide a summary of the modelling effort below but
the full JASCO modeling report can be found in Section 6 and Appendix A
of Revolution Wind's ITA application (https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-revolution-wind-wind-energy-facility).
Underwater sound propagation (i.e., transmission loss) as a
function of range from each source was modeled using JASCO's Marine
Operations Noise Model (MONM) for multiple propagation radials centered
at the source to yield three-dimensional (3D) transmission loss fields
in the surrounding area. The MONM computes received per-pulse SEL for
directional sources at specified depths.
MONM uses two separate models to estimate transmission loss. At
frequencies less than 2 kHz, MONM computes acoustic propagation via a
wide-angle parabolic equation (PE) solution to the acoustic wave
equation based on a version of the U.S. Naval Research Laboratory's
Range-dependent Acoustic Model (RAM) modified to account for an elastic
seabed. MONM-RAM incorporates bathymetry, underwater sound speed as a
function of depth, and a geo-acoustic profile based on seafloor
composition, and accounts for source horizontal directivity. The PE
method has been extensively benchmarked and is widely employed in the
underwater acoustics community, and MONM-RAM's predictions have been
validated against experimental data in several underwater acoustic
measurement programs conducted by JASCO. At frequencies greater than 2
kHz, MONM accounts for increased sound attenuation due to volume
absorption at higher frequencies with the widely used BELLHOP Gaussian
beam ray-trace propagation model. Both propagation models account for
full exposure from a direct acoustic wave, as well as exposure from
acoustic wave reflections and refractions (i.e., multi-path arrivals at
the receiver).
Two WTG and three OSS locations within the Lease Area were selected
for acoustic modeling to provide representative propagation conditions
and sound fields (see Figure 2 in K[uuml]sel et al., 2021). The two WTG
locations were selected to represent the relatively shallow (36.8 m)
northwest section of the Lease Area to the somewhat deeper (41.3 m)
southeast section. The three potential OSS locations (of which only two
will be used to install the two OSS foundations) selected occupy
similar water depths (33.7, 34.2, and 34.4 m). The acoustic propagation
fields applied to exposure modeling (described below) were
conservatively based on the WTG (1 of 2) and OSS (1 of 3) locations
resulting in the largest fields.
[[Page 72602]]
The model also incorporated two different sound velocity profiles
related to in-situ measurements of temperature, salinity, and pressure
within the water column to account for variations in the acoustic
propagation conditions between summer (May-November) and winter
(December only).
Next, Revolution Wind modeled the sound field produced during
impact pile driving by incorporating the results of the source level
modeling into an acoustic propagation model. The sound propagation
model incorporated site-specific environmental data that considers
bathymetry, sound speed in the water column, and seabed geo-acoustics
in the construction area.
Revolution Wind estimated both acoustic ranges and exposure ranges.
Acoustic ranges represent the distance to a harassment threshold based
on sound propagation through the environment (i.e., independent of any
receiver) while exposure range represents the distance at which an
animal can accumulate enough energy to exceed a Level A harassment
threshold in consideration of how it moves through the environment
(i.e., using movement modeling). In both cases, the sound level
estimates are calculated from 3D sound fields and then, at each
horizontal sampling range, the maximum received level that occurs
within the water column is used as the received level at that range.
These maximum-over-depth (Rmax) values are then compared to
predetermined threshold levels to determine acoustic and exposure
ranges to Level A harassment and Level B harassment zone isopleths.
However, the ranges to a threshold typically differ among radii from a
source, and might not be continuous along a radii because sound levels
may drop below threshold at some ranges and then exceed threshold at
farther ranges. To minimize the influence of these inconsistencies, 5
percent of the farthest such footprints were excluded from the model
data. The resulting range, R95, was chosen to
identify the area over which marine mammals may be exposed above a
given threshold, because, regardless of the shape of the maximum-over-
depth footprint, the predicted range encompasses at least 95 percent of
the horizontal area that would be exposed to sound at or above the
specified threshold. The difference between Rmax and
R95 depends on the source directivity and the
heterogeneity of the acoustic environment. R95
excludes ends of protruding areas or small isolated acoustic foci not
representative of the nominal ensonified zone. For purposes of
calculating Level A harassment take, Revolution Wind applied exposure
R95 ranges, not acoustic R95
ranges, to estimate take and determine mitigation distances for the
reasons described below.
In order to best evaluate the SELcum harassment
thresholds for PTS, it is necessary to consider animal movement, as the
results are based on how sound moves through the environment between
the source and the receiver. Applying animal movement and behavior
within the modeled noise fields provides the exposure range, which
allows for a more realistic indication of the distances at which PTS
acoustic thresholds are reached that considers the accumulation of
sound over different durations (note that in all cases the distance to
the peak threshold is less than the SEL-based threshold).
As described in Section 2.6 of Appendix A of Revolution Wind's ITA
application, for modeled animals that have received enough acoustic
energy to exceed a given Level A harassment threshold, the exposure
range for each animal is defined as the closest point of approach (CPA)
to the source made by that animal while it moved throughout the modeled
sound field, accumulating received acoustic energy. The resulting
exposure range for each species is the 95th percentile of the CPA
distances for all animals that exceeded threshold levels for that
species (termed the 95 percent exposure range
(ER95)). The ER95 ranges are
species-specific rather than categorized only by any functional hearing
group, which allows for the incorporation of more species-specific
biological parameters (e.g., dive durations, swim speeds, etc.) for
assessing the impact ranges into the model. Furthermore, because these
ER95 ranges are species-specific, they can be used
to develop mitigation monitoring or shutdown zones.
Sound exposure modeling, like JASCO's JASMINE, involves the use of
a 3D computer simulation in which simulated animals (animats) move
through the modeled marine environment over time in ways that are
defined by the known or assumed movement patterns for each species
derived from visual observation, animal borne tag, or other similar
studies. The predicted 3D sound fields (i.e., the output of the
acoustic modeling process described earlier) are sampled by animats
using movement rules derived from animal observations. The output of
the simulation is the exposure history for each animat within the
simulation. The precise location of animats (and their pathways) are
not known prior to a project, therefore, a repeated random sampling
technique (Monte Carlo) is used to estimate exposure probability with
many animats and randomized starting positions. The probability of an
animat starting out in or transitioning into a given behavioral state
can be defined in terms of the animat's current behavioral state,
depth, and the time of day. In addition, each travel parameter and
behavioral state has a termination function that governs how long the
parameter value or overall behavioral state persists in the simulation.
The sound field produced by the activity, in this case impact pile
driving, is then added to the modeling environment at the location and
for the duration of time anticipated for one or more pile
installations. At each time step in the simulation, each animat records
the received sound levels at its location resulting in a sound exposure
history for each animat. These exposure histories are then analyzed to
determine whether and how many animats (i.e., simulated animals) were
exposed above harassment threshold levels. Finally, the density of
animats used in the modeling environment, which is usually much higher
than the actual density of marine mammals in the activity area so that
the results are more statistically robust, is compared to the actual
density of marine mammals anticipated to be in or near the Lease Area.
The output of the simulation is the exposure history for each
animat within the simulation, and the combined history of all animats
gives a probability density function of exposure during the project.
Scaling the probability density function by the real-world densities
for an animal results in the mean number of animats expected to be
exposed over the duration of the project. Due to the probabilistic
nature of the process, fractions of animats may be predicted to exceed
threshold. If, for example, 0.1 animats are predicted to exceed
threshold in the model, that is interpreted as a 10-percent chance that
one animat will exceed a relevant threshold during the project, or
equivalently, if the simulation were re-run 10 times, 1 of the 10
simulations would result in an animat exceeding the threshold.
Similarly, a mean number prediction of 33.11 animats can be interpreted
as re-running the simulation where the number of animats exceeding the
threshold may differ in each simulation but the mean number of animats
over all of the simulations is 33.11. A portion of an individual marine
mammal cannot be taken during a project, so it is common practice to
round mean number animat exposure values to integers using standard
rounding methods. However, for low-probability events it is more
precise to
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provide the actual values. For this reason, mean number values are not
rounded. A more detailed description of this method is available in
Appendix A of Revolution Wind's application.
For the Project, JASMINE animal movement model was used to predict
both the ER95 ranges and the probability of marine
mammal exposure to impact pile driving sound generated by monopile
installation. Sound fields generated by the acoustic propagation
modeling described above were input into the JASMINE model, and animats
were programmed based on the best available information to ``behave''
in ways that reflect the behaviors of the 16 marine mammal species
expected to occur in or near the Lease Area. The various parameters for
forecasting realistic marine mammal behaviors (e.g., diving, foraging,
surface times, etc.) are determined based on the available literature
(e.g., tagging studies), or by extrapolating from a species expected to
behave similarly (e.g., fin and sei whales). More information regarding
modeling parameters can be found Appendix A of the ITA application.
The mean numbers of animats that may be exposed to noise exceeding
acoustic thresholds were calculated based on installation of 1, 2, or 3
WTG foundations and, separately, 1 or 2 OSS foundations in 24 hours.
Animats were modeled to move throughout the 3D sound fields produced by
each construction schedule for the entire construction period. For PTS
exposures, both SPLpeak and SPLcum were
calculated for each species based on the corresponding acoustic
criteria. Once an animat is taken within a 24-hour period, the model
does not allow it to be taken a second time in that same period but
rather resets the 24-hour period on a sliding scale across 7 days of
exposure. For Level A harassment, an individual animat's exposure
levels are summed over that 24-hour period to determine its total
received energy, and then compared to the appropriate PTS threshold.
Takes by behavioral disturbance are predicted when an animat is modeled
to come within the area ensonified by sound levels exceeding the
corresponding Level B harassment thresholds. Please note that animal
aversion was not incorporated into the JASMINE model runs that were the
basis for the take estimate for any species. See Appendix A of the ITA
application for more details on the JASMINE modeling methodology.
Revolution Wind will employ a noise abatement system during all
impact pile driving of monopiles. Noise abatement systems, such as
bubble curtains, are sometimes used to decrease the sound levels
radiated from a source. In modeling the sound fields produced by
Revolution Wind's planned activities, hypothetical broadband
attenuation levels of 0 dB, 6 dB, 10 dB, 12 dB, 15 dB, and 20 dB for
were modeled to gauge effects on the ranges to threshold isopleths
given these levels of attenuation. Although six attenuation levels were
evaluated, Revolution Wind anticipates that the noise abatement system
ultimately chosen will be capable of reliably reducing source levels by
10 dB; therefore, modeling results assuming 10-dB attenuation are
carried forward in this analysis. Additional information related to
Revolution Wind's use of noise abatement systems is provided in the
Mitigation and Monitoring and Reporting sections.
As described more generally above, updated Roberts et al. (2023)
habitat-based marine mammal density models provided the densities used
to inform and scale the marine mammal exposure estimates produced by
the JASMINE model. For monopile installation, specifically, mean
monthly densities for all species were calculated by first selecting
density data from 5 x 5 km (3.1 x 3.1 mile) grid cells (Roberts et al.,
2016; Roberts et al. (2023) both within the Lease Area and out to 10 km
(6.2 mi) from the perimeter of the Lease Area. This is a reduction from
the 50 km (31 mi) perimeter used in the ITR application. The relatively
large area selected for density estimation encompasses and extends
approximately to the largest estimated exposure acoustic range
(ER95) to the isopleth corresponding to Level B
harassment, assuming no noise attenuation) (see Tables 19 and 20 of the
ITA application) for all hearing groups using the unweighted threshold
of 160 dB re 1 [mu]Pa (rms). Please see Figure 6 in Revolution Wind's
Updated Density and Take Estimation Memo for an example of a density
map showing Roberts and Halpin (2022) density grid cells overlaid on a
map of the Lease Area.
Although there is some uncertainty in the monopile foundation
installation schedule, Revolution Wind anticipates that it could occur
over approximately 1 month provided good weather conditions and no
unexpected delays. The exposure calculations were thus conducted using
marine mammal densities from the month with the highest average density
estimate for each species, based on the assumption that all 79 WTG and
2 OSS foundations will be installed in the highest density month (78
WTG monopile (3 per day for 26 days), 1 WTG monopile (1 per day for 1
day) and 2 OSS monopile foundations (1 per day for 2 days)). Due to
differences in the seasonal migration and occurrence patterns, the
month selected differs for each species. The estimated monthly density
of seals provided in Roberts et al. (2023) includes all seal species
present in the region as a single guild. To split the resulting
``seal'' density-based exposure estimate by species (harbor and gray
seals), the estimate was multiplied by the proportion of the combined
abundance attributable to each species. Specifically, the SAR
Nbest abundance estimates (Hayes et al., 2023) for the two
species (gray seal = 27,300, harbor seal = 61,336; total = 88,636) were
summed and divided the total by the estimate for each species to get
the proportion of the total for each species (gray seal = 0.308; harbor
seal = 0.692). The total estimated exposure value based on the pooled
seal density provided by Roberts et al. (2023) was then multiplied by
these proportions to get the species-specific exposure estimates.
Monthly densities were unavailable for pilot whales, so the annual mean
density was used instead. The blue whale density was considered too low
to be carried into exposure estimation so the amount of blue whale take
Revolution Wind requested (see Estimated Take) is instead based on
group size. Table 9 shows the maximum average monthly densities by
species that were incorporated in exposure modeling to obtain
conservative exposure estimates.
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For the exposure analysis, it was assumed that a maximum of three
WTG monopile foundations may be driven in 24 hours, presuming
installations are permitted to continue in darkness and would occur in
the highest density month for any species. It is unlikely that this
installation rate will be consistently possible throughout the WTG
foundation construction phase, but this scenario was considered to have
the greatest potential impact on marine mammals and was, therefore,
carried forward into take estimation. Exposure ranges
(ER95%) to the Level A SELcum thresholds and
Level B SPLrms threshold resulting from animal exposure
modeling for installation of one (for comparative purposes) or three
(assumed for exposure modeling) WTG foundations and one OSS foundation
per day (assumed for exposure modeling), assuming 10-dB of attenuation,
for the summer (when Revolution Wind intends to install the majority of
monopile foundations) and winter are shown in Tables 10 and 11.
Exposure ranges were also modeled assuming installation of two WTG
foundations per day (not shown here); see Appendix A of Revolution
Wind's ITA application for those results. Although only allowed with
NMFS approval in the case of unforeseen circumstances, any activities
conducted in the winter (December) will utilize monitoring and
mitigation measures based on the exposure ranges (ER95%)
calculated using winter sound speed profile, which are longer than
ER95% modeled using a summer sound speed profile. Revolution
Wind does not plan to install two OSS foundations in a single day due
to the distance between the OSS locations coupled with the longer
installation time for the larger diameter monopile (7/15-m versus 7/12-
m diameter WTG monopile); therefore, modeling results are provided for
installation of a single OSS foundation per day. Meaningful differences
(greater than 500 m) between species within the same hearing group
occurred for low-frequency cetaceans, so exposure ranges are shown
separately for those species (Tables 10 and 11). For mid-frequency
cetaceans and pinnipeds, the largest value among the species in the
hearing group was selected to be included in Tables 10 and 11.
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As mentioned previously, acoustic ranges (R95)
were also modeled. These thresholds were used to define the Level B
harassment threshold (160 dB rms) for all species (see Mitigation) for
WTG and OSS foundation installation in summer and winter (in
parentheses):
WTG monopile: 3,833 m (4,271 m)
OSS monopile: 4,100 m (4,698 m)
Finally, the results of marine mammal exposure modeling, assuming
10-dB attenuation, for installation of 79 WTG and 2 OSS monopile
foundations are shown in columns 2 and 3 of Table 12; these values
assume that all 81 foundations (79 WTGs and 2 OSSs) will be installed
in a single year and form the basis for the amount of take requested by
Revolution Wind and authorized by NMFS. Columns 4 and 5 show what the
take estimates would be if the PSO data or average group size,
respectively, were used to inform the take by Level B harassment in
lieu of the density and exposure modeling. The last two columns
represent the take, by Level A harassment (PTS) and Level B harassment,
respectively, NMFS is authorizing, The Level A exposure estimates shown
in Table 12 are based only on the Level A SELcum threshold
and associated exposure ranges (Table 10), as the very short distances
to isopleths based on the Level A SPLpk thresholds (Table 14
in the ITA application) resulted in no meaningful likelihood of take
from exposure to those sound levels. The Level B
[[Page 72608]]
exposure estimates shown in Table 12 are based on the exposure ranges
resulting from sound exposure modeling using the unweighted 160 dB
SPLrms threshold (Table 11). For each species, the number of
takes, by Level B harassment, in the last column of Table 12 is based
on the highest of the three estimates shown in columns 3 (Exposure
Modeling Take Estimates--Level B), 4 (PSO Date Take Estimate), and 5
(Mean Group Size).
Revolution Wind requested, and NMFS proposed to authorize, Level A
harassment (PTS) take for humpback whales (n=7) incidental to
foundation installation because, for this species only, the shutdown
zone is smaller (summer = 2,300 m; winter = 4,400 m) than the PTS Level
A harassment ER95 distance (summer = 2,660 m; winter
= 6,290 m), thus humpback whales could be exposed to noise levels
capable of inducing PTS before pile driving is shutdown. However, based
on consideration of a comment from the Commission, NMFS is also
authorizing a portion of the model-estimated Level A harassment (PTS)
take of additional species. Revolution Wind must monitor extensive
zones prior to and during pile driving during both daytime and
nighttime pile driving, if it occurs. Although the combination of PSOs
using promising new alternative visual monitoring equipment and PAM
operators conducting extensive acoustic monitoring is expected to
facilitate detection of marine mammals in the clearance and shutdown
zones during daytime and nighttime (if it occurs) pile installation,
it's possible that a marine mammal may enter the shutdown zone
undetected. This situation is more likely for species that are
challenging to detect (particularly in higher sea states), including
minke whales, harbor porpoises, gray seals, and harbor seals. As
indicated in the proposed rule, modeling resulted in the following
number of Level A harassment (PTS) takes incidental to foundation
installation for the indicated species: 7 fin whales, 3 sei whales, 61
minke whales, 321 harbor porpoises, 5 gray seals, and 32 harbor seals.
Although some of these species are more difficult to detect,
particularly at the farthest extent of the shutdown zones (e.g., minke
whale: summer = 2,300 m, winter = 4,400 m; harbor porpoise: summer =
1,400 m, winter = 2,400 m), NMFS considers it unlikely that 7 fin
whales, 61 minke whales, 321 harbor porpoises, and 32 harbor seals
would enter the Level A harassment (PTS) zone undetected and remain
there for an extended duration, given the extensive monitoring and
mitigation (e.g., large clearance zones) NMFS is requiring Revolution
Wind to implement. Thus, for these species, NMFS is authorizing 20
percent of the model-estimated Level A harassment (PTS) take proposed
for authorization (rounded up to the nearest whole number) incidental
to foundation installation, which is equal to 2 fin whales, 13 minke
whales, 65 harbor porpoises, and 7 harbor seals. Additionally, NMFS is
authorizing take, by Level A harassment, of 7 humpback whales (included
in the proposed rule), 3 sei whales, and 5 gray seals, all of which are
based solely on the density-based exposure estimate resulting from
animal movement modeling presented in the proposed rule. We did not
apply a 20 percent reduction to density-based exposure estimates for
sei whales and harbor seals given the estimates are low in number and
similar to a group size.
Although model estimated, Level A harassment of 18 North Atlantic
right whales is not anticipated or authorized, given the extensive
mitigation and monitoring measures prescribed to avoid this level of
harassment for North Atlantic right whales.
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UXO/MEC Detonations
To assess the impacts from UXO/MEC detonations, JASCO conducted
acoustic modeling based on previous underwater acoustic assessment work
that was performed jointly between NMFS and the United States Navy.
JASCO evaluated the effects thresholds for TTS, PTS, non-auditory
injury, and mortality based on the appropriate metrics to use as
indicators of disturbance and injury: (1) peak pressure level; (2) SEL;
and (3) acoustic impulse. Charge weights of 2.3 kg (5.1 pounds (lbs)),
9.1 kg (20.1 lbs), 45.5 kg (100.3 lbs), 227 kg (500 lbs), and 454 kg
(1,000.9 lbs), which is the largest charge the Navy considers for the
purposes of its analyses (see the Description of the Specified
Activities section in the proposed rule), were modeled to determine the
ranges to mortality, gastrointestinal injury, lung injury, PTS, and TTS
thresholds. These charge weights were modeled at four different
locations and associated water depths in the Project Area (12 m (Site
S1), 20 m (Site S2), 30 m (Site S3), and 45 m (Site S4)). The sites
were deemed to be representative of both the RWEC (S1 and S2) and the
Lease Area (S3 and S4).
Here, we present distances to PTS and TTS thresholds for all UXO/
MEC charge weights. In the proposed rule, we only described the
distances to thresholds for the largest E12 charge weight. However, as
already described, Revolution Wind will be able to identify and
mitigate at the relevant distances for each specific charge weight, so
we have incorporated the maximum values for each size herein. Because
of implementation of mitigation and monitoring measures, the potential
for mortality and non-auditory injury is low and Revolution Wind did
not request and we are not authorizing take by mortality or non-
auditory injury. All modeling results, including mortality and non-
auditory injury, can be found in Appendix B of the application.
UXOs/MECs were modeled at the locations listed below. The locations
for these modeling sites are shown in Figure 1 of Appendix B in
Revolution Wind's application:
Shallow water RWEC: Site S1; In the channel within
Narragansett Bay (12 m depth);
Shallow water RWEC: Site S2; Intermediate waters outside
of Narragansett Bay (20 m depth);
Shallow water Lease Area: Site S3; Shallower waters in the
southern portion of the Hazard Zone 2 area (30 m depth);
Deeper water Lease Area: Site S4; Deeper waters in
northern portion of the Hazard Zone 2 area (45 m depth).
For the RWEC, JASCO selected the largest distances to the PTS and
TTS isopleths between S1 and S2 to carry forward for take estimation
(Tables 45 and 47 in ITA application). This same approach was used to
determine the largest distances to these isopleths for the Lease Area
(S3 and S4; Tables 46 and 48 in ITA application). The distances were
not always consistently larger for one site versus the other, so the
results in Tables 45 and 47 in the ITA application represent a mixture
of S1 and S2 for the RWEC and Tables 46 and 48 represent a mixture of
results for S3 and S4 for the Lease Area. For all species, the distance
to the SEL threshold isopleth exceeded that for the SPL peak isopleth
(Table 29 in Appendix B of the ITA application). Model results for all
sites and all charge weights can be found in Appendix B of Revolution
Wind's application. Further, Revolution Wind presented results for both
mitigated and unmitigated scenarios in the ITA application and the
August 2022 Updated Densities and Takes Estimation Memo; however,
Revolution Wind has committed to use a noise abatement system capable
of 10-dB attenuation (minimally a double bubble curtain) during all
detonations. As a result, the Updated Densities and Take Estimation
Memo mitigated UXO/MEC scenario is the one carried forward into
exposure and take estimation here. Tables 13 and 14 provide the largest
ranges R95 among all sites (S1-S4) to the SEL-based
PTS-Onset and SEL-based TTS-Onset, assuming 10-dB attenuation.
Additional information can be found in JASCO's UXO/MEC report and the
Revised Density and Take Estimate Memo on NMFS' website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy).
NMFS notes that the more detailed results for the mortality and
non-auditory injury analysis for marine mammals for onset
gastrointestinal injury, onset lung injury, and onset of mortality can
be found in Appendix B of the ITA application, which can be found on
NMFS' website. NMFS concurs with Revolution Wind's analysis and neither
expects nor authorizes any non-auditory injury, serious injury, or
mortality of marine mammals from UXO/MEC detonation. The modeled
distances to the mortality threshold for all UXO/MECs sizes for all
animal masses are small enough that they can be effectively monitored
(i.e., 5-353 m; see Tables 35-38 in Appendix B of Revolution Wind's
application) and these types of impacts avoided, given the robust
mitigation and monitoring measures required. The modeled distances to
non-auditory injury thresholds range from 5-648 m (see Tables 30-34 in
Appendix B of the application). Revolution Wind will be required to
conduct extensive monitoring using both PSOs and PAM operators and
clear an area of marine mammals prior to detonating any UXO/MEC. Given
that Revolution Wind will be employing multiple platforms to visually
monitor marine mammals as well as conducting passive acoustic
monitoring, it is reasonable to assume that marine mammals will be
reliably detected within approximately 660 m of the UXO/MEC being
detonated and mortality or non-auditory injury is not likely to occur.
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To estimate the maximum ensonified zones that could result from
UXO/MEC detonations, the R95 to PTS and TTS
threshold isopleths within the RWEC (S1 and S2; Tables 47 and 47 in ITA
application), respectively, were used as radii to calculate the area of
a circle (pi x r\2\ where r is the range to the threshold level) for
each marine mammal hearing group. The results represent the largest
area potentially ensonified above threshold levels from a single
detonation within the RWEC. The same method was used to calculate the
maximum ensonified area from a single detonation in the Lease Area (S3
and S4), based on the distances in Tables 46 and 48 in the ITA
application. Again, modeling results are presented here for mitigated
(i.e., using a noise abatement system) detonations of UXO/MECs. The
results for unmitigated detonations can be found Tables 44-48 in the
ITA application.
As mentioned previously, Revolution Wind used the Duke Habitat-
based Density Models to determine species-specific densities for
inclusion in estimation of take incidental to UXO/MEC detonation. To
avoid detonations of UXO/MECs during periods when North Atlantic right
whale densities are highest in and near the Project Area, NMFS is
imposing a seasonal restriction on detonations from December 1-April
30. For each species, Revolution Wind selected the highest average
monthly marine mammal density among the months of May through November
(Roberts et al. (2023)) to conservatively estimate exposures from UXO/
MEC
[[Page 72614]]
detonation for a given species (i.e., assumed all 13 UXO/MECs would be
detonated in the month with the highest average density). This approach
is similar to what was used for determining the most appropriate
species densities for monopile foundation installation take estimation.
Given that UXOs/MECs detonations have the potential to occur anywhere
within the Lease Area and RWEC, a 15-km (9.32 mi) perimeter was applied
around the Lease Area when selecting density data to include in take
estimation (reduced from the 50 km (31 mi) perimeter in the ITA
application) and a 10 km (6.2 mi) perimeter was applied to the RWEC
(see Figures 12 and 13 of the Updated Density and Take Estimation
Memo). In some cases where monthly densities were unavailable, annual
densities were used instead for certain species (i.e., blue whales,
pilot whale spp.).
Table 15 provides those densities and the associated months in
which the species-specific densities are highest for the RWEC and Lease
Area, respectively.
In addition to assuming all detonations would be of the largest
charge weight, Revolution Wind assumed six detonations would occur in
the RWEC and seven would occur in the Lease Area. To estimate take
incidental to UXO/MEC detonations in the RWEC, the maximum ensonified
areas based on the largest R95 to Level A harassment
(PTS) and Level B harassment (TTS) thresholds (assuming 10-dB
attenuation) from a single detonation in the RWEC, shown in Tables 45
and 47 in Revolution Wind's ITA application, were multiplied by six
(the estimated number of UXOs/MECs that may be encountered in the RWEC)
and then multiplied by the marine mammal densities shown in Table 15,
resulting in the take estimates in Table 16. For the Lease Area, the
same method was applied, using the maximum ensonified areas in Tables
46 and 48 in the ITA application multiplied by seven (the estimated
number of UXOs/MECs that may be encountered in the Lease Area) and then
multiplied by the marine mammal densities shown in Table 15, resulting
in the values shown in the columns for the Lease Area (with the heading
``LA'') of Table 16. Again, Revolution Wind based the amount of
requested take on the number of exposures estimated assuming 10-dB
attenuation using a noise abatement system because they believe
consistent, successful implementation of this mitigation measure will
be possible.
Revolution Wind's mitigation and monitoring measures are intended
to avoid Level A take of most species and the extent and severity of
Level B harassment (see Mitigation and Monitoring and Reporting
sections below). However, given the relatively large distances to the
high-frequency cetacean Level A harassment (PTS, SELcum)
isopleth applicable to harbor porpoises, and the difficulty detecting
this species at sea, Revolution Wind requested and NMFS authorizes take
by Level A harassment of 49 harbor porpoises. Similarly, seals are
difficult to detect at longer ranges and, although the distance to the
phocid hearing group SEL PTS threshold is not as large as that for
high-frequency cetaceans, it may not be possible to detect all seals
within the threshold distances even with the required monitoring
measures. Therefore, in addition to the requested Level B harassment in
Table 16, Revolution Wind requested Level A harassment of three gray
seals and five harbor seals. For the proposed rule, NMFS adjusted the
amount of take proposed for authorization to 7 gray seals and 16 harbor
seals to correct for Revolution Wind's arithmetic error in the
application when summing the density-based Level A exposures for the
Lease Area and RWEC for each species. As described in the Comments and
Responses section in the final rule, NMFS is also authorizing the
amount of model-estimated Level A harassment (PTS) take (increased to
group size where applicable) incidental to UXO/MEC detonations: 2 fin
whales, 2 humpback whales, 8 minke whales, 35 common dolphins, 8
bottlenose dolphins (Western North Atlantic offshore stock), and 28
Atlantic white-sided dolphins. In making the decision to authorize the
take indicated above, NMFS considered the Commission's recommendation,
the challenge of monitoring the large mitigation and monitoring zone
size (particularly for heavier charge weight UXOs/MECs) required for
this activity, difficulty visually detecting smaller, cryptic marine
mammals (e.g., minke whales, dolphin spp.) at the furthest extent of
the clearance zones, and that the authorized take numbers do not fully
account for the effectiveness of the required mitigation measures other
than the 10-dB noise attenuation incorporated in acoustic and exposure
modeling.
As described for WTG and OSS installation, the Commission suggested
that, given the frequency of common dolphin occurrence in the Project
Area, NMFS should authorize an increased (relative to the amount
included in the proposed rule) number of common dolphin takes, by Level
B harassment, for all activities. Before we addressed the Commission's
suggestion, we corrected the following transcription errors included in
the proposed rule: the proposed take, by Level B harassment, should
have been 14, not 9, bottlenose dolphins and 387, not 211, common
dolphins. NMFS concurs with the Commission's suggestion and has
included 245 Level B harassment takes of common dolphins incidental to
UXO/MEC detonations (in addition to the corrected number (n=387) of
estimated Level B harassment takes). Because Revolution Wind did not
specify the time of year for this activity, it's equally possible that
detonations could occur when common dolphin densities are highest or
lowest in the Project Area. To account for this in determining the
appropriate number of additional common dolphin takes to authorize,
NMFS assumed that one group (group size = 34.9, rounded to 35) could be
taken by Level B harassment incidental to every other detonation (n=7),
equaling 245 common dolphin takes. Table 16 incorporates a total number
of 632 Level B harassment takes (387 plus 245) of common dolphins
incidental to UXO/MEC detonations.
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While there would be no more than 13 detonations of UXOs/MECs, each
of which would be of very short duration (approximately 1 second), UXO/
MEC detonations have a higher potential to cause mortality and injury
than other Project activities and therefore have specific mitigation
measures designed to prevent mortality and/or injury of marine mammals,
including: (1) time of year/seasonal restrictions; (2) time of day
restrictions; (3) use of PSOs to visually observe for North Atlantic
right whales; (4) use of PAM to acoustically detect North Atlantic
right whales; (5) implementation of clearance zones; (6) use of noise
mitigation technology; and, (7) post-detonation monitoring visual and
acoustic monitoring by PSOs and PAM operators.
The mitigation measures Revolution Wind must implement during any
UXO/MEC detonations are expected to reduce the likelihood of Level A
harassment (PTS) and, to a degree, Level B harassment to the extent
practicable. However, as described above, there remains potential for
Level A harassment (PTS) for multiple species.
Temporary Cofferdam or Casing Pipe/Goal Post Installation and Removal
Acoustic modeling, using JASCO's MONM-BELLHOP model (used for
modeling impact pile driving), was performed for [Oslash]rsted's
Sunrise Wind Farm project to determine distances to the Level A
harassment and Level B harassment isopleths resulting from
[[Page 72616]]
installation and removal of steel sheet piles to construct cofferdams
and goal posts, and installation and removal of casing pipes using
pneumatic hammering (K[uuml]sel et al., 2022b). Revolution Wind will
install the same type of sheet piles and casing pipes in a similar
location using the exact same methods as Sunrise Wind used to inform a
published analysis, therefore, the modeling results described for
Sunrise Wind (K[uuml]sel et al., 2022b) and presented here are
considered applicable to Revolution Wind's project. For take assessment
purposes, the sheet pile cofferdam scenario results in a larger amount
(compared to pneumatic hammering for casing pipe installation and
vibratory pile driving for goal posts) of take by Level B harassment
and was, therefore, the scenario carried further in the Estimated Take
section. This is because acoustic propagation modeling predicts that
the distance to the Level B harassment threshold isopleth produced by
vibratory pile driving is approximately 10 km, while the distance to
the same isopleth produced by pneumatic hammering is approximately 0.92
km. The sheet pile cofferdam scenario will require up to 56 days of
vibratory hammer use for installation and removal, while the casing
pipe scenario (including goal posts) will require 8 days of pneumatic
hammering (2 days to install and 2 days to remove each casing pipe) and
up to 12 days of vibratory pile driving. Removal of the casing pipes
also involves the use of a pneumatic pipe ramming tool, but the pipe
would be pulled out of the seabed while hammering was occurring instead
of pushed into it. The larger number of total days of pile driving for
the sheet pile cofferdam scenario coupled with the fact that vibratory
pile driving on all of those days will produce the larger Level B
harassment zone means the anticipated take, by Level B harassment, from
the sheet pile cofferdam scenario will necessarily be higher and is,
therefore, carried forward as the more conservative Level B harassment
assumption. The acoustic ranges to the Level A harassment
(SELcum) thresholds from pneumatic hammering of the casing
pipe are estimated to be the following for each hearing group: low
frequency = 3.87 km, mid frequency = 0.23 km, high frequency = 3.95 km,
and phocid pinnipeds = 1.29 km. Level A harassment (SPLpk)
thresholds are not expected to be generated by pneumatic hammering. The
estimated distances to Level A harassment SELcum thresholds
are larger than the distance to the Level B harassment threshold (920
m). This is due to the high strike rate of the pneumatic hammer
resulting in a high number of accumulated strikes per day. Most
cetacean species are not expected to occur frequently close to this
nearshore site, and individuals of any species (including seals) are
not expected to remain within the estimated SELcum threshold
distances for the entire 3-hour duration of hammering in a day.
However, based on the Commission's recommendation (see Comments and
Responses section) and given the (1) relatively frequent occurrence of
harbor porpoises in Narragansett Bay, particularly at the time of year
when Revolution Wind will conduct landfall construction (Kenney and
Vigness-Raposa 2010), (2) the large distance to the Level A harassment
SELcum threshold isopleth for harbor porpoises (3.95 km),
and (3) the difficulty visually detecting harbor porpoises
(particularly with increasing distance from the source), it's possible
that this species may be exposed to noise levels that rise to the level
of Level A harassment (PTS). In addition, since publication of the
proposed rule, Revolution Wind determined that it will be impracticable
to monitor a 4-km shutdown zone, as described in the proposed rule (87
FR 79072, December 23, 2022). Based on NOAA shipboard observations of
harbor porpoises used in habitat-based density modeling conducted by
Roberts et al. (2016, 2023), the detection probability for harbor
porpoises drops off substantially in the 750-1000 m range when sea
states are a Beaufort Sea State of 2 or less. Therefore, Revolution
concluded that 750 m is the maximum practicable extent within which
they could effectively monitor for harbor porpoise during casing pipe
installation and removal. NMFS has adjusted the shutdown zone in this
final rule to 750 m. Based on these factors and a recommendation from
the Commission (see Comments and Responses section), NMFS is
authorizing take of harbor porpoises, by Level A harassment (PTS),
incidental to pneumatic hammering of casing pipe installation should
this activity occur. Given (1) that work will occur within Narragansett
Bay, a habitat that few marine mammal species typically use, (2) the
short duration of pneumatic hammering, and (3) the implementation of
mitigation and monitoring measures, Level A harassment of all other
marine mammal species incidental to pneumatic hammering of casing pipe
installation is not expected or authorized. In addition, given the
nature of vibratory pile driving and the small distances to Level A
harassment thresholds (5-190 m), sheet pile cofferdam installation is
also not expected to result in Level A harassment. Revolution Wind did
not request and NMFS is not authorizing any Level A harassment
incidental to installation of sheet pile cofferdams via vibratory pile
driving.
In summary, the Level B harassment zone produced by vibratory pile
driving of sheet piles (9.74 km) is significantly larger than that
produced by pneumatic hammering of a casing pipe (0.92 km).
Additionally, as mentioned previously, the sheet pile cofferdam
scenario will require up to a total of 56 days of vibratory pile
driving for installation and removal, while the casing pipe scenario
will require up to 24 days of vibratory pile driving plus 8 days of
pneumatic hammering. The larger spatial impact for Level B harassment
combined with the longer duration of sheet pile cofferdam installation
will produce a larger amount of Level B harassment; therefore, this
landfall construction activity was carried forward as the most
conservative scenario to estimate the amount of Level B harassment.
JASCO used its MONM-BELLHOP to predict acoustic propagation for
frequencies between 5 Hz and 25 kHz produced by vibratory pile driven
installation of the steel sheet piles that will be used to construct
temporary cofferdams (K[uuml]sel et al., 2022b). Acoustic propagation
modeling was based on a winter sound speed profile, which was deemed
both conservative and appropriate for the Project because of the timing
of landfall construction (Q4 2023-Q1 2024). Additional modeling
assumptions are included in Table 17.
Decidecade band SEL levels were obtained from vibratory pile
driving measurements available in the literature (Illingworth and
Rodkin, 2017). The Illingworth and Rodkin (2017) measurements are for
vibratory driving of four 12-in wide connected sheet piles (48 inch/122
centimeter total width) using an APE Model 300 vibratory hammer (1842.0
kilonewton (kN) centrifugal force). Illingworth and Rodkin (2017)
included SEL at 10 m from the pile in the frequency band 5-25,000 Hz.
The average (from 10 piling measurements) maximum broadband SEL was
182.7 dB re 1 [micro]Pa\2\[middot]s. For modeling of vibratory driving
of sheet piles at the landfall construction horizontal directional
drilling (HDD) location, SEL band levels were corrected for spherical
spreading (+20 dB, corresponding to 10 m range) (K[uuml]sel et al.,
2021).
Additional details on the acoustic modeling conducted for the
Sunrise
[[Page 72617]]
Wind project can be found in the Sunrise Wind Farm Project Underwater
Noise and Exposure Modeling report available on NMFS' website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
[GRAPHIC] [TIFF OMITTED] TR20OC23.020
Similar to the modeling approach for impact pile driving, distances
to harassment thresholds are reported as R95 values
(Table 18). Distances to the Level A harassment threshold
(SELcum) are relatively small, ranging from 5 m for low-
frequency cetaceans to 190 m for high-frequency cetaceans. The distance
to the Level B harassment threshold is 9,740 m for all species.
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Accounting for the effects that nearby land would have on sound
propagation using geospatial information systems (GIS) (Environmental
Systems Research Institute, Inc. (ESRI), 2017) results in a reduction
in the estimated area of 54.1 km\2\ (20.9 mi\2\) potentially being
ensonified above the 120 dB threshold. As a cautionary approach, this
54.1 km\2\ (20.9 mi\2\) includes some areas beyond 9.74 km (6.05 mi)
from the landfall location and reflects the maximum area potentially
ensonified above threshold levels from construction activities at that
site, including if a larger vibratory pile driving hammer were to be
used.
Regarding how density and occurrence information was applied in
estimating take for cofferdam installation, the export cable landfall
construction work will take place near Quonset Point in North
Kingstown, Rhode Island, which is within Narragansett Bay. However, the
habitat-based marine mammal densities from Roberts et al. (2023) do not
include waters within Narragansett Bay. As an alternative, densities
calculated from the area just outside of Narragansett Bay were used in
exposure estimation. This is a conservative approach since there have
been few reported sightings of marine mammals, other than seals, within
Narragansett Bay (Raposa, 2009).
To select marine mammal density grid cells from the Roberts et al.
(2023) data representative of the area just outside of Narragansett
Bay, a zone representing the ensonified area plus a 5-km buffer from
the mouth of Narragansett Bay was created in GIS (ESRI, 2017). This
buffer was then intersected with the density grid cells for each
individual species to select those near the mouth of
[[Page 72618]]
Narragansett Bay (Figure 8 in Revolution Wind's Updated Density and
Take Estimation Memo). Since the timing of landfall construction could
vary somewhat from the planned schedule, the maximum average monthly
density from January through December for each species was selected
(Table 19) and used to estimate exposures from landfall construction.
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BILLING CODE 3510-22-C
Cable Landfall Construction Take Estimation
Given the short duration of the activity and shallow, coastal
location, animat exposure modeling was not conducted for cofferdam or
casing pipe and goal post installation and removal to determine
potential exposures from vibratory pile driving. Rather, the modeled
acoustic ranges to Level A harassment (PTS) and Level B harassment
isopleths were used to calculate the area around the cofferdam
predicted to be ensonified daily to levels that exceed the thresholds,
or the Ensonified Area. The Ensonified Area was calculated as the
following:
Ensonified Area = pi*r\2\,
where r is the linear acoustic range from the source to the Level A
harassment and Level B harassment isopleths. Because the distance to
the Level B harassment threshold for cofferdam installation and removal
(9,740 m) is larger than the distance for pneumatic hammering of casing
pipes (920 m), the amount of Level B harassment take authorized
assuming cofferdam will be installed encompasses any take that may
occur incidental to installing goal posts or casing pipes.
To calculate density-based exposures estimates incidental to
installation of two cofferdams, the average marine mammal densities
from Table 19 were multiplied by the daily ensonified area (54.1 km\2\)
for installation of sheet piles. Given that use of the vibratory hammer
during cofferdam installation and
[[Page 72619]]
removal may occur on up to 56 days, the daily estimated take was
multiplied by 56 to produce the results shown in Table 20. However, as
noted above, to be conservative, Revolution Wind has requested take by
Level B harassment based on the highest exposures predicted among the
density-based, PSO-based, or average group size-based estimates; the
authorized take is indicated in column 5 of Table 20. Mysticete whales
are unlikely to occur in the immediate vicinity of the activity or
within Narragansett Bay (Raposa, 2009); therefore, Revolution Wind did
not request and NMFS is not authorizing take of these species. In their
ITR application, Revolution Wind requested two sperm whale Level B
harassment takes incidental to landfall construction, which we included
in the proposed rule. In this final rule, NMFS is not authorizing Level
B harassment of sperm whales incidental to the specified activity
because the sperm whale exposure estimate is 0.1 and the species
exhibits a preference for deep oceanic habitat rather than the shallow
waters in Narragansett Bay, thus, the probability of take is de
minimis. Finally, we addressed the following transcription errors
included in the proposed rule: the proposed take, by Level B
harassment, should have been 60, not 36, bottlenose dolphins and 1,667,
not 905, common dolphins.
As mentioned in the Comments and Responses section, the Commission
recommended that NMFS authorize Level A harassment (PTS) of harbor
porpoises incidental to pneumatic hammering of casing pipes, should
Revolution choose to conduct that activity. Harbor porpoises are one of
the few marine mammals known to occur regularly in Narragansett Bay
(e.g., Kenney and Vigness-Raposa, 2010), particularly in the winter
during which casing pipe installation would occur (Q4 2023--Q1 2024).
The likely temporal and spatial overlap of harbor purpose occurrence
with the Level A harassment (PTS) acoustic footprint resulting from
pneumatic hammering, the size of the Level A harassment zone (PTS)
(3,950 m), and the species' cryptic nature support authorization of
Level A harassment. Revolution Wind expects that it will require 8 days
of pneumatic hammering to install and remove the casing pipes. Because
Revolution Wind has not specified exactly which 8 days in Q4 2023-Q1
2024 casing pipe installation would occur, it is possible that they
would complete this activity in December or January, when harbor
porpoise densities near the landfall construction site are an order of
magnitude higher than in the other months in which the species
consistently utilizes habitat in/near Narragansett Bay (March-May), and
the potential for acoustic impacts from pneumatic hammering is highest.
Thus, NMFS conservatively assumed that one group (group size = 2.7;
Kraus et al., 2016) rounded to the nearest whole number may be taken by
Level A harassment per day of pneumatic hammering (n=8). Therefore,
NMFS is authorizing 24 takes, by Level A harassment, of harbor
porpoises incidental to casing pipe installation (Table 21).
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[[Page 72620]]
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HRG Surveys
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described in NMFS (2018) to estimate ranges to the Level A
harassment and Level B harassment isopleths. In cases when the source
level for a specific type of HRG equipment is not provided in Crocker
and Fratantonio (2016), NMFS recommends that either the source levels
provided by the manufacturer be used, or, in instances where source
levels provided by the manufacturer are unavailable or unreliable, a
proxy from Crocker and Fratantonio (2016) be used instead. Revolution
Wind utilized the following criteria for selecting the appropriate
inputs into the NMFS User Spreadsheet Tool (NMFS, 2018):
(1) For equipment that was measured in Crocker and Fratantonio
(2016), the reported source level (SL) for the most likely operational
parameters was selected.
(2) For equipment not measured in Crocker and Fratantonio (2016),
the best available manufacturer specifications were selected. Use of
manufacturer specifications represent the absolute maximum output of
any source and do not adequately represent the operational source.
Therefore, they should be considered an overestimate of the sound
propagation range for that equipment.
(3) For equipment that was not measured in Crocker and Fratantonio
(2016) and did not have sufficient manufacturer information, the
closest proxy source measured in Crocker and Fratantonio (2016) was
used.
The Dura-spark measurements and specifications provided in Crocker
and Fratantonio (2016) were used for all sparker systems that will be
used during HRG surveys. These included variants of the Dura-spark
sparker system and various configurations of the GeoMarine Geo-Source
sparker system. The data provided in Crocker and Fratantonio (2016)
represent the most applicable data for similar sparker systems with
comparable operating methods and settings when manufacturer or other
reliable measurements are not available. Crocker and Fratantonio (2016)
provide S-Boom measurements using two different power sources (CSP-D700
and CSP-N). The CSP-D700 power source was used in the 700 joules (J)
measurements but not in the 1,000 J measurements. The CSP-N source was
measured for both 700 J and 1,000 J operations but resulted in a lower
source level; therefore, the single maximum source level value was used
for both operational levels of the S-Boom.
Table 22 identifies all the representative survey equipment that
operates below 180 kHz (i.e., at frequencies that are audible and have
the potential to disturb marine mammals) that may be used in support of
planned survey activities and are likely to be detected by marine
mammals given the source level, frequency, and beamwidth of the
equipment.
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[[Page 72621]]
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When the NMFS Technical Guidance (2016) was published, in
recognition of the fact that ensonified area/volume could be more
technically challenging to predict because of the duration component in
the new thresholds, we developed a User Spreadsheet that includes tools
to help predict a simple isopleth that can be used in conjunction with
marine mammal density or occurrence to help predict takes. We note that
because of some of the assumptions included in the methods used for
these tools, we anticipate that isopleths produced are typically going
to be overestimates of some degree, which may result in some degree of
overestimation of Level A harassment. However, these tools offer the
best way to predict appropriate isopleths when more sophisticated 3D
modeling methods are not available, and NMFS continues to develop ways
to quantitatively refine these tools, and will qualitatively address
the output where appropriate. For mobile sources (such as the active
acoustic sources proposed for use during Revolution Wind's HRG
surveys), the User Spreadsheet predicts the closest distance at which a
stationary animal would not incur PTS if the sound source traveled by
the animal in a straight line at a constant speed. JASCO modeled
distances to Level A harassment isopleths for all types of HRG
equipment and all marine mammal functional hearing groups using the
NMFS User Spreadsheet and NMFS Technical Guidance (2018).
For HRG surveys, in order to better consider the narrower and
directional beams of the sources, NMFS has developed an additional tool
for determining the sound pressure level (SPLrms) at the
160-dB isopleth for the purposes of estimating the extent of Level B
harassment isopleths associated with HRG survey equipment (NMFS, 2020).
This methodology incorporates frequency-dependent absorption and some
directionality to refine estimated ensonified zones. Revolution Wind
used NMFS' methodology with additional modifications to incorporate a
seawater absorption formula and account for
[[Page 72622]]
energy emitted outside of the primary beam of the source. For sources
that operate with different beam widths, the maximum beam width was
used (see Table 22). The lowest frequency of the source was used when
calculating the absorption coefficient.
Results of modeling using the methodology described above indicated
that, of the HRG equipment planned for use by Revolution Wind that has
the potential to result in Level B harassment of marine mammals, sound
produced by the Applied Acoustics sparkers and Applied Acoustics
triple-plate S-boom will propagate furthest to the Level B harassment
isopleth (141 m; Table 23). For the purposes of take estimation, it was
conservatively assumed that sparkers and/or boomers will be the
dominant acoustic source for all vessel days (although, again, this may
not always be the case). Thus, the distances to the isopleth
corresponding to the threshold for Level B harassment for the boomer
and sparkers (141 m) was used as the basis of take calculations for all
marine mammals.
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To estimate densities for the HRG surveys occurring both within the
Lease Area and within the RWEC based on Roberts et al. (2023), a 5-km
(3.11 mi) perimeter was applied around each area (see Figures 10 and 11
of the Updated Density and Take Estimation Memo). Given this work could
occur year-round, the annual average density for each species was
calculated using average monthly densities from January through
December (Table 24).
[[Page 72623]]
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The maximum range (i.e., 141 m) to the Level B harassment threshold
and the estimated trackline distance traveled per day by a given survey
vessel (i.e., 70 km) were used to calculate the daily ensonified area,
or zone of influence (ZOI), around the survey vessel.
The ZOI is a representation of the maximum extent of the ensonified
area around a HRG sound source over a 24-hr period. The ZOI for each
piece of equipment operating at or below 180 kHz was calculated per the
following formula:
ZOI = (Distance/day x 2r) + pi*r\2\
Where r is the linear distance from the source to the harassment
isopleth.
The largest daily ZOI (19.8 km\2\), associated with the use of
boomers and sparkers, was applied to all planned vessel days.
Potential Level B harassment density-based exposures were estimated
by multiplying the average annual density of each species within the
survey area by the daily ZOI. That product was then multiplied by the
number of planned vessel days in each sector during the approximately
1-year construction timeframe (82.1 in RWEC, 165.7 in Lease Area), and
the product was rounded to the nearest whole number. These results are
shown in columns 2 (Lease Area) and 3 (RWEC) of Table 25. Similar to
the approach described above, to be conservative, Revolution Wind has
requested take by Level B harassment based on the highest exposures
predicted by the density-based, PSO based, or average group size-based
estimates, and the authorized take is indicated in column 7 of Table 25
below.
As described in the Comments and Responses section, the Commission
suggested that, given the frequency of common dolphin occurrence in the
Project Area, NMFS should authorize an increased (relative to the
amount included in the proposed rule) number of common dolphin takes,
by Level B harassment for HRG surveys. Common dolphins are regularly
sighted by PSOs during HRG surveys but, as described previously, only a
portion of those sighted are actually within the Level B harassment
zone, as evidenced by PSO monitoring reports for the Project Area
(e.g., Smultea Environmental Sciences, LLC, 2020; Valencia et al.,
2021; Smultea Environmental Sciences, LLC, 2022). The total number of
common dolphins sighted by PSOs is highly variable, depending on the
survey timing (which may align more or less with peaks in expected
common dolphin occurrence), the number of kilometers surveys, and
survey conditions, among other factors. As described above, Revolution
Wind anticipates that they may conduct HRG
[[Page 72624]]
surveys throughout the effective period of the authorization. Given
common dolphins are one of the most frequently sighted species during
HRG surveys (as reported by PSOs in the monitoring reports cited here)
and the number of dolphins sighted is highly variable and dependent on
multiple influencing factors (e.g., time of year), NMFS concurs with
the Commission and is conservatively authorizing 4,457 common dolphin
Level B harassment takes incidental to HRG surveys during the year of
construction, which is equivalent to the number of common dolphins
taken by Level B harassment during the HRG surveys the Commission
refers to in their comment. This is an 89 percent increase from the
2,354 common dolphin Level B harassment takes proposed for
authorization.
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[GRAPHIC] [TIFF OMITTED] TR20OC23.028
[[Page 72625]]
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Authorized takes will be by Level B harassment, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to noise from certain HRG acoustic sources.
Based primarily on the characteristics of the signals produced by the
acoustic sources planned for use, Level A harassment is neither
anticipated (even absent mitigation), nor authorized. Consideration of
the anticipated effectiveness of the mitigation measures (i.e., pre-
start clearance and shutdown measures), discussed in detail below in
the Mitigation section, further strengthens the conclusion that Level A
harassment is not a reasonably expected outcome of the survey activity.
Revolution Wind did not request authorization of take by Level A
harassment, and no take by Level A harassment is authorized by NMFS. As
described previously, no serious injury or mortality is anticipated or
authorized for this activity.
As mentioned previously, HRG surveys will also routinely be carried
out during the period of time following construction of the RWF and
RWEC which, for the purposes of exposure modeling, Revolution Wind
assumed to be 4 years. Revolution Wind estimates that HRG surveys will
cover 2,117 km within the Lease Area and 1,642 km along the RWEC
annually. Assuming 70 km are surveyed per day, this amounts to 30.2
days of survey activity in the Lease Area and 23.5 days of survey
activity along the RWEC each year, or 214.8 days total for the 4-year
timeframe following the construction period (assuming all construction
activities occur in a single year). Density-based take was estimated
using the same approach outlined above by multiplying the daily ZOI by
the annual average densities and separately by the number of vessel
days planned for the RWEC and Lease Area; the results are shown in
columns 2 and 3, respectively, in Table 26. Using the same approach
described above, Revolution Wind estimated a conservative amount of
annual take, by Level B harassment, based on the highest exposures
predicted by the density-based, PSO-based, or average group size-based
estimates. The highest predicted exposure value was multiplied by four
to yield the amount of take Revolution Wind requested and NMFS is
authorizing, shown in column 8 of Table 26 below. Consistent with the
method used above to determine the increased number of common dolphin
Level B harassment takes incidental to HRG surveys during construction,
NMFS is authorizing 1,094 takes per year (89 percent increase from 579
per year, as presented in the proposed rule) of common dolphins, by
Level B harassment, for each of the 4 years following construction
(4,376 total over 4 years).
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[[Page 72626]]
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BILLING CODE 3510-22-C
Total Authorized Take Across All Activities
NMFS is authorizing take by Level A and Level B harassment
incidental to Project activities combined (i.e., impact pile driving to
install WTG and OSS monopile foundations (assuming 10-dB attenuation),
vibratory pile driving to install and remove temporary cofferdams and
goal posts, pneumatic hammering to install and remove temporary casing
pipes UXO/MEC detonations (assuming 10-dB attenuation), and HRG
surveys) as shown in Table 27. The number of takes that would occur in
each year, based on Revolution Wind's current schedule, is provided in
Table 27. The Year 1 take estimates include 165.7 days of HRG surveys,
impact installation of WTG and OSS foundations, cofferdam installation/
removal, and mitigated UXO/MEC detonations. Year 2 includes 30.2 days
of HRG surveys, and potential impact installation of WTG and OSS
monopile foundations, depending on whether or not delays in the
schedule for Year 1 occur. Years 3, 4, and 5 each include 30.2 days of
HRG surveys. Although temporary cofferdam installation/removal could
occur in Year 2, all of the authorized takes were allocated to Year 1
as this represents the most accurate construction scenario. All impact
pile driving activities for the WTGs and OSSs could also occur outside
of Year 1; however, all of the
[[Page 72627]]
takes were allocated to Year 1 as this represents the most likely
scenario.
The mitigation and monitoring measures provided in the Mitigation
and Monitoring and Reporting sections are activity-specific and are
designed to minimize acoustic exposures to marine mammal species.
The number of takes that NMFS authorized is considered conservative
for several reasons, including, but not limited to, the following:
authorized take numbers are based on the highest number resulting from
among three take estimate methodologies (density-based exposure, PSO
data-derived, and group size); authorized take numbers assume all
foundation piles (n=81) will be installed and all UXO/MECs detonations
would occur in the month with the highest monthly average density for
each marine mammal species; authorized Level B harassment take numbers
for landfall construction assume 56 days of vibratory pile driving for
cofferdam installation, although the casing pipe and goal post
alternative would only require 24 days of vibratory pile driving and a
short period of pneumatic hammering which has shorter distances to the
Level B harassment isopleth than cofferdam installation, if installed;
authorized take numbers assume sparkers and/or boomers, which result in
the largest acoustic footprint, would be the dominant source for all
HRG surveys days, although this may not be the case; authorized take
numbers for Level A harassment (PTS) do not fully account for the
likelihood that marine mammals will avoid a stimulus when possible
before the individual accumulates enough acoustic energy to potentially
cause auditory injury, nor do the take numbers fully account for the
effectiveness of the required mitigation and monitoring measures
(exception for foundation installation and UXO/MEC detonations, which
incorporate 10-dB of sound attenuation).
NMFS also presents the percentage of each marine mammal stock
estimated to be taken based on the total amount of allowable annual
take for each species, which is presented in Table 28. Table 27
provides the total authorized take from the entire 5-year effective
period of the rulemaking and issued LOA. NMFS recognizes that schedules
may shift due to a number of planning and logistical constraints such
that take may be redistributed throughout the 5 years. However, the 5-
year total amount of take for each species, shown in Table 27, and the
maximum amount of take in any 1 year (Table 28) would not be exceeded.
Additionally, NMFS has required extensive mitigation and monitoring
measures, provided in the Mitigation and Monitoring and Reporting
sections, which are activity-specific and are designed to minimize, to
the extent practicable, impacts to marine mammal species.
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[[Page 72628]]
[GRAPHIC] [TIFF OMITTED] TR20OC23.030
[[Page 72629]]
[GRAPHIC] [TIFF OMITTED] TR20OC23.031
In making the negligible impact determination and the necessary
small numbers finding, NMFS assesses the greatest number of authorized
take of marine mammals that could occur within any 1 year, which in the
case of this rule is based on the predicted Year 1 for all species. In
this calculation, the maximum estimated number of Level A harassment
(PTS) takes in any one year is summed with the maximum estimated number
of Level B harassment takes in any one year for each species to yield
the highest amount of estimated take that could occur in any year. We
[[Page 72630]]
recognize that certain activities could shift within the 5-year
effective period of the rule; however, the rule allows for that
flexibility and the takes are not expected to exceed those shown in
Table 28 in any year.
[GRAPHIC] [TIFF OMITTED] TR20OC23.032
BILLING CODE 3510-22-C
[[Page 72631]]
Mitigation
As noted in the Changes from the Proposed to Final Rule section,
NMFS has added several new mitigation requirements and clarified a few
others, and these changes are described in detail in the sections
below. Other than the changes described, the required measures remain
the same as those described in the proposed rule. However, NMFS has
also re-organized and simplified the section to avoid full duplication
of the specific requirements that are fully described in the regulatory
text.
In order to promulgate a rulemaking under section 101(a)(5)(A) of
the MMPA, NMFS must set forth the permissible methods of taking
pursuant to the activity, and other means of effecting the least
practicable adverse impact on the species or stock and its habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance, and on the availability of the species or stock
for taking for certain subsistence uses (latter not applicable for this
action). NMFS' regulations require applicants for incidental take
authorizations to include information about the availability and
feasibility (economic and technological) of equipment, methods, and
manner of conducting the activity or other means of effecting the least
practicable adverse impact upon the affected species or stocks and
their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and,
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
The mitigation strategies described below are consistent with those
required and successfully implemented under previous incidental take
authorizations issued in association with in-water construction
activities (e.g., soft-start, establishing shutdown zones). Additional
measures have also been incorporated to account for the fact that the
proposed construction activities would occur offshore. Modeling was
performed to estimate harassment zones, which were used to inform
mitigation measures for the project's activities to minimize Level A
harassment and Level B harassment to the extent practicable, while
providing estimates of the areas within which Level B harassment might
occur.
Generally speaking, the mitigation measures considered and required
here fall into three categories: temporal (seasonal and daily) work
restrictions, real-time measures (shutdown, clearance, and vessel
strike avoidance), and noise attenuation/reduction measures. Seasonal
work restrictions are designed to avoid or minimize operations when
marine mammals are concentrated or engaged in behaviors that make them
more susceptible or make impacts more likely, in order to reduce both
the number and severity of potential takes, and are effective in
reducing both chronic (longer-term) and acute effects. Real-time
measures, such as implementation of shutdown and clearance zones, as
well as vessel strike avoidance measures, are intended to reduce the
probability or severity of harassment by taking steps in real time once
a higher-risk scenario is identified (e.g., once animals are detected
within an impact zone). Noise attenuation measures, such as bubble
curtains, are intended to reduce the noise at the source, which reduces
both acute impacts, as well as the contribution to aggregate and
cumulative noise that may result in longer term chronic impacts.
Below, we briefly describe the required training, coordination, and
vessel strike avoidance measures that apply to all specified
activities, and then in the following subsections we describe the
measures that apply specifically to foundation installation, landfall
construction, HRG surveys, and UXO/MEC detonation. Details on specific
requirements can be found in Part 217--Regulations Governing The Taking
and Importing of Marine Mammals at the end of this rulemaking.
Training and Coordination
NMFS requires all Revolution Wind employees and contractors
conducting activities on the water, including, but not limited to, all
vessel captains and crew are trained in marine mammal detection and
identification, communication protocols, and all required measures to
minimize impacts on marine mammals and support Revolution Wind's
compliance with the LOA, if issued. Additionally, all relevant
personnel and the marine mammal species monitoring team(s) are required
to participate in joint, onboard briefings prior to the beginning of
project activities. The briefing must be repeated whenever new relevant
personnel (e.g., new PSOs, construction contractors, relevant crew)
join the project before work commences. During this training,
Revolution Wind is required to instruct all project personnel regarding
the authority of the marine mammal monitoring team(s). For example,
training must include that the HRG acoustic equipment operator is
required to immediately comply with any call for a delay or shut down
by the Lead PSO, and that any disagreement between the Lead PSO and the
project personnel must only be discussed after delay or shutdown has
occurred. In particular, all captains and vessel crew must be trained
in marine mammal detection and vessel strike avoidance measures to
ensure marine mammals are not struck by any project or project-related
vessel.
Prior to the start of in-water construction activities, vessel
operators and crews would receive training about marine mammals and
other protected species known or with the potential to occur in the
Project Area, making observations in all weather conditions, and vessel
strike avoidance measures. In addition, training would include
information and resources available regarding applicable Federal laws
and regulations for protected species. Revolution Wind will provide
documentation of training to NMFS.
North Atlantic Right Whale Awareness Monitoring
Revolution Wind must use available sources of information on North
Atlantic right whale presence, including daily monitoring of the Right
Whale Sightings Advisory System, monitoring of U.S. Coast Guard very
high frequency (VHF) Channel 16 throughout each day to receive
notifications of any sightings, and information associated with any
regulatory management actions (e.g., establishment of a zone
identifying the need to reduce vessel speeds). Maintaining daily
awareness and coordination affords increased protection of North
Atlantic right whales by understanding North Atlantic
[[Page 72632]]
right whale presence in the area through ongoing visual and passive
acoustic monitoring efforts and opportunities (outside of Revolution
Wind's efforts), and allows for planning of construction activities,
when practicable, to minimize potential impacts on North Atlantic right
whales.
Vessel Strike Avoidance Measures
This final rule contains numerous vessel strike avoidance measures
that reduce the risk that a vessel and marine mammal could collide.
While the likelihood of a vessel strike is generally low, they are one
of the most common ways that marine mammals are seriously injured or
killed by human activities. Therefore, enhanced mitigation and
monitoring measures are required to avoid vessel strikes to the extent
practicable. While many of these measures are proactive intending to
avoid the heavy use of vessels during times when marine mammals of
particular concern may be in the area, several are reactive and occur
when a project personnel sights a marine mammal. The mitigation
requirements are described generally here and in detail in the
regulation text at the end of this final rule (see 50 CFR 217.274(b)).
Revolution Wind will be required to comply with these measures unless
an emergency situation presents a threat to the health, safety, or life
of a person or when a vessel, actively engaged in emergency rescue or
response duties, including vessel-in-distress or environmental crisis
response, requires speeds in excess of 10 kn (11.5 mph) to fulfill
those responsibilities, while in the specified geographical region.
While underway, Revolution Wind is required to monitor for and
maintain a minimum separation distance from marine mammals, and operate
vessels in a manner that reduces the potential for vessel strike.
Regardless of the vessel's size, all vessel operators, crews, and
dedicated visual observers (i.e., PSO or trained crew member) must
maintain a vigilant watch for all marine mammals during all vessel
operations and slow down, stop their vessel, or alter course (as
appropriate) to avoid striking any marine mammal. The dedicated visual
observer on each vessel, equipped with and trained to use suitable
monitoring technology (e.g., binoculars, night vision devices), must be
located at an appropriate vantage point for ensuring vessels are
maintaining required vessel separation distances from marine mammals
(e.g., 500 m from North Atlantic right whales).
All project vessels, regardless of size, must maintain the
following minimum separation zones: 500 m from North Atlantic right
whales; 100 m from sperm whales and non-North Atlantic right whale
baleen whales; and 50 m from all delphinid cetaceans and pinnipeds (an
exception is made for those species that approach the vessel (i.e.,
bow-riding dolphins)). If any of these species are sighted within their
respective minimum separation zone, the underway vessel must shift its
engine to neutral and the engines must not be engaged until the
animal(s) have been observed to be outside of the vessel's path and
beyond the respective minimum separation zone. All project vessels,
regardless of size, must immediately reduce speed to 10 kn (11.5 mph)
or less for at least 24 hours when a North Atlantic right whale is
sighted at any distance by any project-related personnel or
acoustically detected by any project-related PAM system. Each
subsequent observation or acoustic detection in the Project Area will
trigger an additional 24-hour period. If a North Atlantic right whale
is reported via any of the monitoring systems within 10 km (6.2 miles
(mi)) of a transiting vessel(s), that vessel must operate at 10 kn
(11.5 mph) or less for 24 hours following the reported detection.
Additionally, in the event that any project-related vessel, regardless
of size, observes any unidentified large whale within 500 m of an
underway vessel, the vessel is required to immediately reduce speeds to
10 kn (11.5 mph) or less until the minimum separation distance is
established.
All Project-related vessels are required to comply with existing
NMFS vessel speed restrictions for North Atlantic right whales and the
measures within this rulemaking for operating vessels around North
Atlantic right whales and other marine mammals. When no other speed
restrictions are in place, all Project-related vessels (including crew
transfer vessels) are restricted from traveling over 10 kn (11.5 mph),
unless traveling in a frequently traveled transit corridor (e.g., crew
transfer corridor) from port to the Lease Area while Revolution Wind
conducts real-time PAM to detect large whales, in addition to visual
monitoring. All Revolution Wind's vessels, regardless of size, must
immediately reduce speed to 10 kn (11.5 mph) or less for at least 24
hours when a North Atlantic right whale is sighted at any distance by
any project-related personnel or acoustically detected by any project-
related PAM system (e.g., in transit corridor). Each subsequent
observation or acoustic detection in the Project area must trigger an
additional 24-hour period. If a North Atlantic right whale is reported
via any of the monitoring systems within 10 kilometers (km; 6.2 miles
(mi)) of a transiting vessel(s), that vessel must operate at 10 kn
(11.5 mph) or less for 24 hours following the reported detection. If a
large whale (other than a North Atlantic right whale) is detected via
the transit corridor PAM system, all vessels must travel at 10 kn (11.5
mph) until the whale can be confirmed visually beyond 500 m of the
vessel or 24 hours has passed.
To maintain awareness of North Atlantic right whale presence,
vessel operators, crew members, and the marine mammal monitoring team
would monitor U.S. Coast Guard VHF Channel 16, WhaleAlert, the Right
Whale Sighting Advisory System (RWSAS), and the PAM system. Any marine
mammal observed by project personnel must be immediately communicated
to any on-duty PSOs, PAM operator(s), and all vessel captains. Any
North Atlantic right whale or large whale observation or acoustic
detection by PSOs or PAM operators must be conveyed to all vessel
captains. All vessels would be equipped with an AIS and Revolution Wind
must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS
Office of Protected Resources prior to initiating in-water activities.
Revolution Wind is required to submit a NMFS-approved North Atlantic
Right Whale Vessel Strike Avoidance Plan at least 90 days prior to
commencement of vessel use.
Revolution Wind's compliance with these measures will reduce the
likelihood of vessel strike to the extent practicable. These measures
increase awareness of marine mammals in the vicinity of project vessels
and require project vessels to reduce speed when marine mammals are
detected (by PSOs, PAM, and/or through another source, e.g., RWSAS) and
maintain separation distances when marine mammals are encountered.
While visual monitoring is useful, reducing vessel speed is one of the
most effective, feasible options available to reduce the likelihood of
and effects from a vessel strike. Numerous studies have indicated that
slowing the speed of vessels reduces the risk of lethal vessel
collisions, particularly in areas where right whales are abundant and
vessel traffic is common and otherwise traveling at high speeds
(Vanderlaan and Taggart, 2007; Conn and Silber, 2013; Van der Hoop et
al., 2015; Martin et al., 2015; Crum et al., 2019).
[[Page 72633]]
Seasonal and Daily Restrictions
Temporal restrictions in places where marine mammals are
concentrated, engaged in biologically important behaviors, and/or
present in sensitive life stages are effective measures for reducing
the magnitude and severity of human impacts. The temporal restrictions
required here are built around North Atlantic right whale protection.
Based upon the best scientific information available (Roberts et al.,
2023), the highest densities of North Atlantic right whales in the
Project Area are expected during the months of January through April,
with an increase in density starting in December. However, North
Atlantic right whales may be present in the Project Area throughout the
year, although the numbers of North Atlantic right whales are not
expected to be as large as those in foraging grounds to the east (south
of Martha's Vineyard and Nantucket) and north (e.g., Cape Cod Bay, Gulf
of St. Lawrence) or calving grounds in the southeast U.S. from Cape
Fear, North Carolina, to below Cape Canaveral, Florida.
NMFS is requiring seasonal work restrictions to minimize the North
Atlantic right whales risk of exposure to noise incidental to some
project activities. These seasonal work restrictions are expected to
greatly reduce the number of takes of North Atlantic right whales, and
also afford protection to other marine mammals that are known to use
the Project Area with greater frequency during winter months, including
minke whales.
As described previously, no foundation impact pile driving
activities will occur January 1 through April 30. A new measure
included in this final rule requires Revolution Wind to avoid impact
pile driving to the maximum extent practicable in December; however,
pile driving may occur in December if it is unavoidable upon approval
from NMFS. Revolution Wind plans to complete landfall construction from
Q4 2023 through Q1 2024; however, NMFS is not seasonally restricting
this activity given its location (nearshore, inside Narragansett Bay)
and relatively short duration of work (particularly for installation
and removal of casing pipes), and the minimal expected impacts to
marine mammals. Detonations will be considered on a case-by-case basis,
thus Revolution Wind did not specify a particular time of year during
which they will detonate UXOs/MECs. However, Revolution Wind will be
restricted from detonating UXO/MECs December 1 through April 30 to
reduce impacts to North Atlantic right whales during peak occurrence
periods. Seasonal restrictions do not apply to HRG surveys; however,
Revolution Wind will only survey a predetermined number of survey days
each year (Year 1 = 218.7; Years 2-5 = 53.7/year or 214.8 total).
NMFS is also requiring temporal restrictions for some activities.
Within any 24-hour period, Revolution Wind is limited to installing up
to three monopile foundations. Revolution Wind had requested to
initiate pile driving during nighttime when detection of marine mammals
is visually challenging. Since the publication of the proposed rule,
Revolution Wind has continued discussions with NMFS and BOEM regarding
field trials they have been performing to demonstrate the efficacy of
their nighttime monitoring methods and systems. These field trials have
provided information and evidence that their systems are capable of
detecting marine mammals, particularly large whales, at distances
necessary to ensure that the required mitigation measures are
effective. On April 20, 2023, Revolution Wind submitted an AMP for
Nighttime Pile Driving outlining nighttime monitoring protocols and
equipment. We reviewed their AMP and, after further discussions and
revisions based on our comments back to Revolution Wind, Revolution
Wind submitted a final draft AMP on August 4, 2023. NMFS will review
the AMP to determine sufficiency. Should NMFS approve the AMP,
nighttime pile driving may occur given Revolution Wind adherence to the
AMP and additional mitigation and monitoring measures prescribed by
NMFS.
Any and all vibratory pile driving associated with cofferdams and
goal post installation and removal must only occur during daylight
hours. UXO/MEC detonation will be limited to daylight hours only to
ensure PSOs can most effectively carry out visual clearance to the
farthest extent of the clearance zone prior to detonation, should they
need to detonate a UXO/MEC of the largest charge weight. Lastly, given
the very small Level B harassment zone associated with HRG survey
activities and no anticipated or authorized Level A harassment, NMFS is
not requiring any daily restrictions for HRG surveys.
More information on activity-specific seasonal and daily
restrictions can be found in the regulatory text at the end of this
rulemaking.
Noise Abatement Systems
Revolution Wind is required to employ NAS, also known as noise
attenuation systems, during all foundation installation (i.e., impact
pile driving) and UXO/MEC detonation activities to reduce the sound
pressure levels that are transmitted through the water in an effort to
reduce ranges to acoustic thresholds and minimize, to the extent
practicable, any acoustic impacts resulting from these activities.
Revolution Wind is required to use at least two NAS to ensure that
measured sound levels do not exceed the levels modeled for a 10-dB
sound level reduction for foundation installation, which is likely to
include a double big bubble curtain combined with another NAS (e.g.,
hydro-sound damper, or an AdBm Helmholz resonator), as well as the
adjustment of operational protocols to minimize noise levels. For UXO/
MEC detonation, a double big bubble curtain must be used and the hoses
must be placed at distances to avoid damage to the bubble curtain
during detonation. A single bubble curtain, alone or in combination
with another NAS device, may not be used for either pile driving or
UXO/MEC detonation as received SFV data reveals this approach is
unlikely to attenuate sounds to the degree distances to harassment
thresholds are less than or equal to those modeled assuming 10-dB of
attenuation. Should the research and development phase of newer systems
demonstrate effectiveness, as part of adaptive management, Revolution
Wind may submit data on the effectiveness of these systems and request
approval from NMFS to use them during foundation installation and UXO/
MEC detonation activities.
Two categories of NAS exist: primary and secondary. A primary NAS
would be used to reduce the level of noise produced by foundation
installation activities at the source, typically through adjustments on
to the equipment (e.g., hammer strike parameters). Primary NAS are
still evolving and will be considered for use during mitigation efforts
when the NAS has been demonstrated as effective in commercial projects.
However, as primary NAS are not fully effective at eliminating noise, a
secondary NAS would be employed. The secondary NAS is a device or group
of devices that would reduce noise as it was transmitted through the
water away from the pile, typically through a physical barrier that
would reflect or absorb sound waves and therefore, reduce the distance
the higher energy sound propagates through the water column. Together,
these systems must reduce noise levels to those not exceeding modeled
ranges to Level A harassment and Level B harassment
[[Page 72634]]
isopleths corresponding to those modeled assuming 10-dB sound
attenuation, pending results of Sound Field Verification (SFV; see
Sound Field Verification section below and Sec. 217.274(c)(14)).
Noise abatement systems, such as bubble curtains, are used to
decrease the sound levels radiated from a source. Bubbles create a
local impedance change that acts as a barrier to sound transmission.
The size of the bubbles determines their effective frequency band, with
larger bubbles needed for lower frequencies. There are a variety of
bubble curtain systems, confined or unconfined bubbles, and some with
encapsulated bubbles or panels. Attenuation levels also vary by type of
system, frequency band, and location. Small bubble curtains have been
measured to reduce sound levels but effective attenuation is highly
dependent on depth of water, current, and configuration and operation
of the curtain (Austin et al., 2016; Koschinski and L[uuml]demann,
2013). Bubble curtains vary in terms of the sizes of the bubbles and
those with larger bubbles tend to perform a bit better and more
reliably, particularly when deployed with two separate rings (Bellmann,
2014; Koschinski and L[uuml]demann, 2013; Nehls et al., 2016).
Encapsulated bubble systems (e.g., Hydro Sound Dampers (HSDs)), can be
effective within their targeted frequency ranges (e.g., 100-800 Hz),
and when used in conjunction with a bubble curtain appear to create the
greatest attenuation. The literature presents a wide array of observed
attenuation results for bubble curtains. The variability in attenuation
levels is the result of variation in design as well as differences in
site conditions and difficulty in properly installing and operating in-
water attenuation devices.
The literature presents a wide array of observed attenuation
results for bubble curtains. The variability in attenuation levels is
the result of variation in design as well as differences in site
conditions and difficulty in properly installing and operating in-water
attenuation devices. D[auml]hne et al. (2017) found that single bubble
curtains that reduce sound levels by 7 to 10 dB reduced the overall
sound level by approximately 12 dB when combined as a double bubble
curtain for 6-m steel monopiles in the North Sea. During installation
of monopiles (consisting of approximately 8-m in diameter) for more
than 150 WTGs in comparable water depths (>25 m) and conditions in
Europe indicate that attenuation of 10 dB is readily achieved
(Bellmann, 2019; Bellmann et al., 2020) using single BBCs for noise
attenuation. If a double big bubble curtain is used (noting a single
bubble curtain is not allowed), Revolution Wind is required to maintain
numerous operational performance standards. These standards are defined
in the regulatory text at the end of this rulemaking, and include, but
are not limited to, construction contractors must train personnel in
the proper balancing of airflow to the bubble ring and Revolution Wind
must submit a performance test and maintenance report to NMFS within 72
hours following the performance test. Corrections to the attenuation
device to meet regulatory requirements must occur prior to use during
foundation installation activities and UXO/MEC detonation. In addition,
a full maintenance check (e.g., manually clearing holes) must occur
prior to each pile being installed or any UXO/MEC detonated. If
Revolution Wind uses a noise mitigation device in addition to a double
big bubble curtain, similar quality control measures are required.
Revolution Wind is required to submit an SFV plan to NMFS for
approval at least 180 days prior to installing foundations or
detonating UXO/MECs. They are also required to submit interim and final
SFV data results to NMFS and make corrections to the noise attenuation
systems in the case that any SFV measurements demonstrate noise levels
are above those modeled assuming 10 dB. These frequent and immediate
reports allow NMFS to better understand the sound fields to which
marine mammals are being exposed and require immediate corrective
action should they be misaligned with anticipated noise levels within
our analysis.
Noise abatement systems are not required during landfall
construction activities and HRG surveys. Although NAS is not
practicable to implement during landfall construction due to the
physical nature of linear sheet piles and angled pipe piles, there is a
low risk for impacts to marine mammals due to the short work duration
and lower noise levels produced during the activities. Regarding HRG
surveys, NAS cannot practicably be employed around a moving survey
ship, but Revolution Wind is required to make efforts to minimize
source levels by using the lowest energy settings on equipment that has
the potential to result in harassment of marine mammals (e.g.,
sparkers, boomers) and turn off equipment when not actively surveying.
Overall, minimizing the amount and duration of noise in the ocean from
any of the project's activities through use of all means necessary
(e.g., noise abatement, turning off power) will effect the least
practicable adverse impact on marine mammals.
Clearance and Shutdown Zones
NMFS requires the establishment of both clearance and, where
technically feasible, shutdown zones during project activities that
have the potential to result in harassment of marine mammals. The
purpose of ``clearance'' of a particular zone is to minimize potential
instances of auditory injury and more severe behavioral disturbances by
delaying the commencement of an activity if marine mammals are near the
activity. The purpose of a shutdown is to prevent a specific acute
impact, such as auditory injury or severe behavioral disturbance of
sensitive species, by halting the activity.
All relevant clearance and shutdown zones during project activities
would be monitored by NMFS-approved PSOs and/or PAM operators (as
described in the regulatory text at the end of this rulemaking). At
least one PAM operator must review data from at least 24 hours prior to
foundation installation or any UXO/MEC detonations and must actively
monitor hydrophones for 60 minutes prior to commencement of these
activities. Any sighting or acoustic detection within the PAM
monitoring zone of a North Atlantic right whale will trigger a delay to
commencing pile driving and shutdown.
Prior to the start of certain specified activities (i.e.,
foundation installation, landfall construction, UXO/MEC detonations,
HRG surveys), Revolution Wind must ensure designated areas (i.e.,
clearance zones, Tables 29-33) are clear of marine mammals prior to
commencing activities to minimize the potential for and degree of
harassment. For foundation installation and UXO/MEC detonation, PSOs
must visually and acoustically monitor clearance zones for marine
mammals for a minimum of 60 minutes, where the zone must be confirmed
free of marine mammals at least 30 minutes directly prior to commencing
these activities. For foundation installation, the minimum visibility
zone must extend 2,300 m from the pile May 1 through November 30 and
4,400 m during December (Table 29). These values correspond to the
seasonally-specific modeled maximum ER95 distances
to the Level A harassment isopleths among all low-frequency cetaceans
(excluding humpback whales), rounded up to the nearest hundred,
assuming three monopiles are driven in a day and 10-dB attenuation.
For vibratory pile driving for cofferdam or goal post installation,
[[Page 72635]]
pneumatic hammering for casing pipe installation, and HRG surveys,
monitoring must be conducted for 30 minutes prior to initiating
activities and the clearance zones (Tables 30, 31, and 33) must be free
of marine mammals during that time.
For any other in-water construction heavy machinery activities
(e.g., trenching, cable laying, etc.), if a marine mammal is on a path
towards or comes within 10 m (32.8 ft) of equipment, Revolution Wind is
required to cease operations until the marine mammal has moved more
than 10 m on a path away from the activity to avoid direct interaction
with equipment.
Once an activity begins, any marine mammal entering their
respective shutdown zone would trigger activity cessation. For impact
pile driving, the shutdown requirement may be waived if it is not
practicable due to imminent risk of injury or loss of life to an
individual or risk of damage to a vessel that creates risk of injury or
loss of life for individuals or the lead engineer determines there is
pile refusal or pile instability. In situations when shutdown is called
for during impact pile driving but Revolution Wind determines shutdown
is not practicable due to aforementioned emergency reasons, reduced
hammer energy must be implemented when the lead engineer determines it
is practicable. Revolution Wind must document and report to NMFS all
cases where the emergency exemption is taken. Because UXO/MEC
detonations are instantaneous, no shutdown is possible; therefore,
there are clearance zones but no shutdown zones for UXO/MEC detonations
(Table 32).
After shutdown, impact pile driving may be reinitiated once all
clearance zones are clear of marine mammals for the minimum species-
specific periods, or, if required to maintain pile stability, at which
time the lowest hammer energy must be used to maintain stability. If
pile driving has been shut down due to the presence of a North Atlantic
right whale, pile driving must not restart until the North Atlantic
right whale has neither been visually or acoustically detected for 30
minutes. Upon re-starting pile driving, soft-start protocols must be
followed if pile driving has ceased for 30 minutes or longer.
The clearance and shutdown zone sizes vary by species and are shown
in Tables 29 through 33. For foundation installation and UXO/MEC
detonation, Revolution Wind is allowed to request modification to these
zone sizes pending results of sound field verification (see regulatory
text at the end of this rulemaking). Any changes to zone size would be
part of adaptive management and would require NMFS' approval.
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In the proposed rule, we presented zone sizes based solely on the
largest charge weight due to uncertainty on how accurately these charge
weights could be identified in the water. Since the proposed rule,
Revolution Wind has demonstrated that they can reliably identify charge
weights in the field charge, which will allow for implementation of
weight-specific mitigative zones. Because of this, Revolution Wind is
required to implement the ALARP process, as described in the UXO/MEC
Charge Weight Memo. This process requires Revolution Wind to undertake
``lift-and-shift'' (i.e., physical removal) and then lead up to in situ
disposal, as necessary, which could include low-order (deflagration) to
high-order (detonation) methods of removal. Another approach involves
the cutting of the UXO/MEC to extract any explosive components.
Implementing the ALARP approach would minimize potential impacts to
marine mammals, as UXOs/MECs would only be detonated as a last resort.
Revolution Wind will follow a Risk Management Framework designed to
align with the ALARP principle, which includes historical research/
hazard profiling, communication with all relevant State and Federal
Agencies, and the standards within their removal plan (see the UXO/MEC
Charge Weight Memo); there is a high level of certainty that charge
weights and appropriate removal approaches can be implemented in the
field. Furthermore, we are confident that this approach will ensure the
least practicable adverse impact on marine mammals by mitigating the
potential for TTS for each charge weight. The UXO/MEC Charge Weight
Memo is found on NMFS' website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy.
In following this charge weight-specific approach, Revolution Wind
is required to clear the relevant zones that apply to detonation of a
specific charge weight, as specified in Table 32. These zones are based
on (but not equal to) the greatest TTS threshold distances for each
charge weight at any modeled site. We note that harbor porpoises and
seals are difficult to detect at great distances but, due to the UXO/
MEC detonation time of year restrictions, their abundance is likely to
be relatively low. These zone sizes may be adjusted based on SFV and
confirmation of the UXO/MEC or donor charge sizes after approval by
NMFS.
No minimum visibility zone is required for UXO/MEC detonation as
the entire visual clearance zone must be clear given the potential for
lung and gastrointestinal injury.
[[Page 72640]]
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Revolution Wind must establish clearance and shutdown zones around
HRG survey equipment based upon the radial distance (Table 33) from the
acoustic source rather than the vessel itself and monitor Level B
harassment zones specific to equipment type (i.e., boomers, sparkers,
and CHIRP sub-bottom profilers). Prior to initiating HRG
[[Page 72641]]
survey activities, Revolution Wind must implement a 30-minute pre-start
clearance period, during which the entire clearance zone must be
visible. If an HRG source is active and a marine mammal is observed
within or entering a relevant shutdown zone (as described above), an
immediate shutdown of the HRG survey equipment is required.
[GRAPHIC] [TIFF OMITTED] TR20OC23.037
BILLING CODE 3510-22-C
Soft-Start/Ramp-Up
The use of a soft-start or ramp-up procedure is believed to provide
additional protection to marine mammals by warning them, or providing
them with a chance to leave the area prior to the hammer or HRG
equipment operating at full capacity. Soft-start typically involves
initiating hammer operation at a reduced energy level (relative to full
operating capacity) followed by a waiting period. Revolution Wind must
utilize a soft-start protocol for impact pile driving of monopiles by
performing four to six strikes per minute at 10 to 20 percent of the
maximum hammer energy, for a minimum of 20 minutes. NMFS notes that it
is difficult to specify a reduction in energy for any given hammer
because of variation across drivers and installation conditions. The
final methodology will be developed by Revolution Wind considering
final design details including site-specific soil properties and other
considerations. HRG survey operators are required to ramp up sources
when the acoustic sources are used unless the equipment operates on a
binary on/off switch. The ramp up would involve starting from the
smallest setting to the operating level over a period of approximately
30 minutes. Given the instantaneous nature of UXO/MEC detonations, no
ramp-up/soft-start protocol is possible.
Soft-start and ramp-up will be required at the beginning of impact
pile driving and use of HRG equipment and at any time following a
cessation of activity of 30 minutes or longer. Prior to soft-start or
ramp-up beginning, the operator must receive confirmation from the PSO
that the clearance zone is clear of any marine mammals.
Fishery Monitoring Surveys
While the likelihood of Revolution Wind's fishery monitoring
surveys
[[Page 72642]]
impacting marine mammals is minimal, NMFS requires Revolution Wind to
adhere to gear and vessel mitigation measures to reduce potential
impacts to the extent practicable. In addition, all crew undertaking
the fishery monitoring survey activities are required to receive
protected species identification training prior to activities occurring
and attend the aforementioned onboarding training. The specific
requirements that NMFS has set for the fishery monitoring surveys can
be found in the regulatory text at the end of this rulemaking.
Based on our evaluation of the mitigation measures, as well as
other measures considered by NMFS, NMFS has determined that these
measures will provide the means of affecting 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.
Monitoring and Reporting
As noted in the Changes From the Proposed to Final Rule section, we
have added, modified, or clarified a number of monitoring and reporting
measures since the proposed rule. These changes are described in detail
in the sections below and, otherwise, the marine mammal monitoring and
reporting requirements have not changed since the proposed rule.
In order to promulgate a rulemaking for an activity, section
101(a)(5)(A) of the MMPA states that NMFS must set forth 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 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. Effective reporting is critical
both to compliance as well as ensuring that the most value is obtained
from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS
should contribute to improved understanding of one or more of the
following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and/or
Mitigation and monitoring effectiveness.
Separately, monitoring is also regularly used to support mitigation
implementation, which is referred to as mitigation monitoring, and
monitoring plans typically include measures that both support
mitigation implementation and increase our understanding of the impacts
of the activity on marine mammals.
During the planned activities, visual monitoring by NMFS-approved
PSOs would be conducted before, during, and after all impact pile
driving, vibratory pile driving, UXO/MEC detonations, and HRG surveys.
PAM must be conducted during impact pile driving and UXO/MEC
detonation. Revolution must verify that distances to harassment
isopleths are not larger than those modeled assuming 10-dB attenuation
by performing SFV during impact pile driving and UXO/MEC detonations.
Visual observations and acoustic detections would be used to support
the activity-specific mitigation measures (e.g., clearance zones). To
increase understanding of the impacts of the activity on marine
mammals, PSOs must record all incidents of marine mammal occurrence at
any distance from the piling locations, during active HRG acoustic
sources, and during UXO/MEC detonations. PSOs would document all
behaviors and behavioral changes, in concert with distance from an
acoustic source. The required monitoring is described below, beginning
with PSO measures that are applicable to all the aforementioned
activities, followed by activity-specific monitoring requirements.
Protected Species Observer and PAM Operator Requirements
Revolution Wind is required to employ NMFS-approved PSOs and PAM
operators. PSOs are trained professionals who are tasked with visually
monitoring for marine mammals during pile driving, UXO/MEC detonation,
HRG surveys, and pneumatic hammering. The primary purpose of a PSO is
to carry out the monitoring, collect data, and, when appropriate, call
for the implementation of mitigation measures. In addition to visual
observations, NMFS requires that Revolution Wind conduct PAM using
trained, experienced PAM operators during impact pile driving, UXO/MEC
detonations, and vessel transit.
The inclusion of PAM, which would be conducted by NMFS-approved PAM
operators, following a standardized measurement, processing methods,
reporting metrics, and metadata standards for offshore wind, alongside
visual data collection is valuable to provide the most accurate record
of species presence as possible and, together, these two monitoring
methods are well understood to provide best results when combined
together (e.g., Barlow and Taylor, 2005; Clark et al., 2010; Gerrodette
et al., 2011; Van Parijs et al., 2021). Acoustic monitoring (in
addition to visual monitoring) increases the likelihood of detecting
marine mammals within the shutdown and clearance zones of project
activities, which when applied in combination of required shutdowns
helps to further reduce the risk of marine mammals being exposed to
sound levels that could otherwise result in acoustic injury or more
intense behavioral harassment.
The exact configuration and number of PAM systems depends on the
size of the zone(s) being monitored, the amount of noise expected in
the area, and the characteristics of the signals being monitored. More
closely spaced hydrophones would allow for more directionality, and
perhaps, range to the vocalizing marine mammals; although, this
approach would add additional costs and greater levels of complexity to
the project. Larger baleen cetacean species (i.e., mysticetes), which
produce loud and lower-frequency vocalizations, may be able to be heard
with fewer hydrophones spaced at greater distances. However, smaller
cetaceans (such as mid-frequency delphinids; odontocetes) may
necessitate more hydrophones and to be spaced closer together given the
shorter range of the shorter, mid-frequency acoustic signals (e.g.,
whistles and echolocation clicks). As there are no ``perfect fit''
single-
[[Page 72643]]
optimal-array configurations, these set-ups would need to be considered
on a case-by-case basis.
NMFS does not formally administer any PSO or PAM operator training
program or endorse specific providers but will approve PSOs and PAM
operators that have successfully completed courses that meet the
curriculum and training requirements referenced below and further
specified in the regulatory text at the end of this rulemaking.
NMFS will provide PSO and PAM operator approvals in the context of
the need to ensure PSOs and PAM operators have the necessary training
and/or experience to carry out their duties competently. In order for
PSOs and PAM operators to be approved, NMFS must review and approve PSO
and PAM operator resumes indicating successful completion of an
acceptable training course. PSOs and PAM operators must have previous
experience observing marine mammals and must have the ability to work
with all required and relevant software and equipment. NMFS may approve
PSOs and PAM operators as conditional or unconditional. A conditional
approval may be given to one who is trained but has not yet attained
the requisite experience. An unconditional approval is given to one who
is trained and has attained the necessary experience. The specific
requirements for conditional and unconditional approval can be found in
the regulatory text at the end of this rulemaking.
Conditionally-approved PSOs and PAM operators would be paired with
an unconditional-approved PSO (or PAM operator, as appropriate) to
ensure that the quality of marine mammal observations and data
recording is kept consistent. Additionally, activities requiring PSO
and/or PAM operator monitoring must have a lead on duty. The visual PSO
field team, in conjunction with the PAM team (i.e., marine mammal
monitoring team), would have a lead member (designated as the ``Lead
PSO'' or ``Lead PAM operator'') who would be required to meet the
unconditional approval standard.
Although PSOs and PAM operators must be approved by NMFS, third-
party observer providers and/or companies seeking PSO and PAM operator
staffing should expect that those having satisfactorily completed
acceptable training and with the requisite experience (if required)
will be quickly approved. Revolution Wind is required to request PSO
and PAM operator approvals 60 days prior to those personnel commencing
work. An initial list of previously approved PSO and PAM operators must
be submitted by Revolution Wind at least 30 days prior to the start of
the project. Should Revolution Wind require additional PSOs or PAM
operators throughout the project, Revolution Wind must submit a
subsequent list of pre-approved PSOs and PAM operators to NMFS at least
15 days prior to planned use of that PSO or PAM operator. A PSO may be
trained and/or experienced as both a PSO and PAM operator and may
perform either duty, pursuant to scheduling requirements (and vice
versa).
A minimum number of PSOs would be required to actively observe for
the presence of marine mammals during certain project activities with
more PSOs required as the mitigation zone sizes increase. A minimum
number of PAM operators would be required to actively monitor for the
presence of marine mammals during foundation installation and UXO/MEC
detonation. The types of equipment required (e.g., big eyes on the pile
driving vessel) are also designed to increase marine mammal detection
capabilities. Specifics on these types of requirements can be found in
the regulations at the end of this rulemaking. In summary, at least
three PSOs and one PAM operator per acoustic data stream (equivalent to
the number of acoustic buoys) must be on-duty and actively monitoring
per platform during foundation installation and each UXO/MEC detonation
event; at least two PSOs must be on duty during cable landfall
construction (vibratory pile installation and removal of sheet piles or
pneumatic hammering of casing pipes); at least one PSO must be on-duty
during HRG surveys conducted during daylight hours; and at least two
PSOs must be on-duty during HRG surveys conducted during nighttime.
In addition to monitoring duties, PSOs and PAM operators are
responsible for data collection. The data collected by PSO and PAM
operators and subsequent analysis provide the necessary information to
inform an estimate of the amount of take that occurred during the
project, better understand the impacts of the project on marine
mammals, address the effectiveness of monitoring and mitigation
measures, and to adaptively manage activities and mitigation in the
future. Data reported includes information on marine mammal sightings,
activity occurring at time of sighting, monitoring conditions, and if
mitigative actions were taken. Specific data collection requirements
are contained within the regulations at the end of this rulemaking.
Revolution Wind is required to submit a Pile Driving and UXO/MEC
Marine Mammal Monitoring Plan and a PAM Plan to NMFS 180 days in
advance of foundation installation activities. The Plan must include
details regarding PSO monitoring and PAM protocols and equipment
proposed for us. More specifically, the PAM Plan must include a
description of all proposed PAM equipment, address how the proposed PAM
must follow standardized measurement, processing methods, reporting
metrics, and metadata standards for offshore wind as described in
``NOAA and BOEM Minimum Recommendations for Use of Passive Acoustic
Listening Systems in Offshore Wind Energy Development Monitoring and
Mitigation Programs'' (Van Parijs et al., 2021). NMFS must approve the
plan prior to foundation installation activities or UXO/MEC detonation
commencing. Specific details on NMFS' PSO or PAM operator
qualifications and requirements can be found in Sec. 217.275(a) at the
end of this rulemaking. Additional information can be found in
Revolution Wind's Protected Species Mitigation and Monitoring Plan
(PSMMP) (Appendix B) found in their ITA application on NMFS' website at
https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy.
Sound Field Verification
Revolution Wind must conduct SFV measurements during all UXO/MEC
detonations and for all impact pile-driving activities associated with
the installation of, at minimum, the first three monopile foundations.
SFV measurements must continue until at least three consecutive piles
demonstrate distances to thresholds are at or below those modeled
assuming 10 dB of attenuation. Subsequent SFV measurements are also
required should larger piles be installed or additional piles be driven
that are anticipated to produce longer distances to harassment
isopleths than those previously measured (e.g., higher hammer energy,
greater number of strikes). The measurements and reporting associated
with SFV can be found in the regulatory text at the end of this
rulemaking. The requirements are extensive to ensure monitoring is
conducted appropriately and the reporting frequency is such that
Revolution Wind is required to make adjustments quickly (e.g., ensure
bubble curtain hose maintenance, check bubble curtain air pressure
supply, add additional sound attenuation, etc.) to ensure marine
mammals are not
[[Page 72644]]
experiencing noise levels above those considered in this analysis. For
recommended SFV protocols for impact pile driving, please consult ISO
18406 ``Underwater acoustics--Measurement of radiated underwater sound
from percussive pile driving'' (2017).
Reporting
Prior to any construction activities occurring, Revolution Wind
would provide a report to NMFS Office of Protected Resources that
demonstrates that all required training for Revolution Wind personnel,
which includes the vessel crews, vessel captains, PSOs, and PAM
operators have completed all required trainings.
NMFS would require standardized and frequent reporting from
Revolution Wind during the life of the regulations and LOA. All data
collected relating to the Project would be recorded using industry-
standard software (e.g., Mysticetus or a similar software) installed on
field laptops and/or tablets. Revolution Wind is required to submit
weekly, monthly, annual, and situational reports. The specifics of what
we require to be reported can be found in the regulatory text at the
end of this final rule.
Weekly Report--During foundation installation activities,
Revolution Wind would be required to compile and submit weekly marine
mammal monitoring reports for foundation installation pile driving to
NMFS Office of Protected Resources that document the daily start and
stop of all pile-driving activities, the start and stop of associated
observation periods by PSOs, details on the deployment of PSOs, a
record of all detections of marine mammals (acoustic and visual), any
mitigation actions (or if mitigation actions could not be taken,
provide reasons why), and details on the noise abatement system(s)
(e.g., system type, distance deployed from the pile, bubble rate,
etc.). Weekly reports will be due on Wednesday for the previous week
(Sunday-Saturday). The weekly reports are also required to identify
which turbines become operational and when (a map must be provided).
Once all foundation pile installation is complete, weekly reports would
no longer be required.
Monthly Report--Revolution Wind is required to compile and submit
monthly reports to NMFS Office of Protected Resources that include a
summary of all information in the weekly reports, including project
activities carried out in the previous month, vessel transits (number,
type of vessel, and route), number of piles installed, all detections
of marine mammals, and any mitigative actions taken. Monthly reports
would be due on the 15th of the month for the previous month. The
monthly report would also identify which turbines become operational
and when (a map must be provided). Once all foundation pile
installation is complete, monthly reports would no longer be required.
Annual Reporting--Revolution Wind is required to submit an annual
marine mammal monitoring (both PSO and PAM) report to NMFS Office of
Protected Resources no later than 90 days following the end of a given
calendar year describing, in detail, all of the information required in
the monitoring section above. A final annual report must be prepared
and submitted within 30 calendar days following receipt of any NMFS
comments on the draft report.
Final 5-Year Reporting--Revolution Wind must submit its draft 5-
year report(s) to NMFS Office of Protected Resources on all visual and
acoustic monitoring conducted under the LOA within 90 calendar days of
the completion of activities occurring under the LOA. A final 5-year
report must be prepared and submitted within 60 calendar days following
receipt of any NMFS comments on the draft report. Information contained
within this report is described at the beginning of this section.
Situational Reporting--Specific situations encountered during the
development of the Project requires immediate reporting. For instance,
if a North Atlantic right whale is observed at any time by PSOs or
project personnel, the sighting must be immediately (if not feasible,
as soon as possible and no longer than 24 hours after the sighting)
reported to NMFS. If a North Atlantic right whale is acoustically
detected at any time via a project-related PAM system, the detection
must be reported as soon as possible and no longer than 24 hours after
the detection to NMFS via the 24-hour North Atlantic right whale
Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is
not necessary when reporting PAM detections via the template.
If a sighting of a stranded, entangled, injured, or dead marine
mammal occurs, the sighting would be reported to NMFS Office of
Protected Resources, the NMFS Greater Atlantic Stranding Coordinator
for the New England/Mid-Atlantic area (866-755-6622), and the U.S.
Coast Guard within 24 hours. If the injury or death was caused by a
project activity, Revolution Wind must immediately cease all activities
until NMFS Office of Protected Resources is able to review the
circumstances of the incident and determine what, if any, additional
measures are appropriate to ensure compliance with the terms of the
LOA. NMFS Office of Protected Resources may impose additional measures
to minimize the likelihood of further prohibited take and ensure MMPA
compliance. Revolution Wind may not resume their activities until
notified by NMFS Office of Protected Resources.
In the event of a vessel strike of a marine mammal by any vessel
associated with the Project, Revolution Wind must immediately report
the strike incident. If the strike occurs in the Greater Atlantic
region (Maine to Virginia), Revolution Wind must call the NMFS Greater
Atlantic Stranding Hotline. Separately, Revolution Wind must also
immediately report the incident to NMFS Office of Protected Resources
and GARFO. Revolution Wind must immediately cease all on-water
activities until NMFS Office of Protected Resources is able to review
the circumstances of the incident and determine what, if any,
additional measures are appropriate to ensure compliance with the terms
of the LOA. NMFS Office of Protected Resources may impose additional
measures to minimize the likelihood of further prohibited take and
ensure MMPA compliance. Revolution Wind may not resume their activities
until notified by NMFS.
In the event of any lost gear associated with the fishery surveys,
Revolution Wind must report to the GARFO as soon as possible or within
24 hours of the documented time of missing or lost gear. This report
must include information on any markings on the gear and any efforts
undertaken or planned to recover the gear.
The specifics of what NMFS Office of Protected Resources requires
to be reported is listed at the end of this rulemaking in the
regulatory text.
Sound Field Verification--Revolution Wind is required to submit
interim SFV reports after each foundation installation and UXO/MEC
detonation monitored as soon as possible but within 48 hours. A final
SFV report for all monopile foundation installation and UXO/MEC
detonations would be required within 90 days following completion of
acoustic monitoring.
Adaptive Management
The regulations governing the take of marine mammals incidental to
Revolution Wind's construction activities contain an adaptive
management component. Our understanding of the effects of offshore
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wind construction activities (e.g., acoustic and explosive stressors)
on marine mammals continues to evolve, which makes the inclusion of an
adaptive management component both valuable and necessary within the
context of 5-year regulations.
The monitoring and reporting requirements in this final rule
provide NMFS with information that helps us to better understand the
impacts of the project's activities on marine mammals and informs our
consideration of whether any changes to mitigation and monitoring are
appropriate. The use of adaptive management allows NMFS to consider new
information and modify mitigation, monitoring, or reporting
requirements, as appropriate, with input from Revolution Wind regarding
practicability, if such modifications will have a reasonable likelihood
of more effectively accomplishing the goal of the measures.
The following are some of the possible sources of new information
to be considered through the adaptive management process: (1) results
from monitoring reports, including the weekly, monthly, situational,
and annual reports required; (2) results from marine mammal and sound
research; and (3) any information which reveals that marine mammals may
have been taken in a manner, extent, or number not authorized by these
regulations or subsequent LOA. During the course of the rule,
Revolution Wind (and other LOA Holders conducting offshore wind
development activities) are required to participate in one or more
adaptive management meetings convened by NMFS and/or BOEM, in which the
above information will be summarized and discussed in the context of
potential changes to the mitigation or monitoring measures.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact 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 (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 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'' by mortality, serious injury, Level A harassment and Level B
harassment, we consider other factors, such as the likely nature of any
behavioral responses (e.g., intensity, duration), the context of any
such responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS' implementing
regulations (54 FR 40338, September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
In the Estimated Take section in this preamble, we discuss the
estimated maximum number of takes by Level A harassment and Level B
harassment that could occur incidental to Revolution Wind's specified
activities based on the methods described. The impact that any given
take would have is dependent on many case-specific factors that need to
be considered in the negligible impact analysis (e.g., the context of
behavioral exposures such as duration or intensity of a disturbance,
the health of impacted animals, the status of a species that incurs
fitness-level impacts to individuals, etc.). In this final rule, we
evaluate the likely impacts of the enumerated harassment takes that are
authorized in the context of the specific circumstances surrounding
these predicted takes. We also collectively evaluate this information,
as well as other more taxa-specific information and mitigation measure
effectiveness, in group-specific discussions that support our
negligible impact conclusions for each stock. As described above, no
serious injury or mortality is expected or authorized for any species
or stock.
The Description of the Specified Activities section of this
preamble describes Revolution Wind's specified activities that may
result in take of marine mammals and an estimated schedule for
conducting those activities. Revolution Wind has provided a realistic
construction schedule although we recognize schedules may shift for a
variety of reasons (e.g., weather or supply delays). However, the total
amount of take would not exceed the 5-year totals and maximum annual
total in any given year indicated in Tables 27 and 28, respectively.
We base our analysis and negligible impact determination on the
maximum number of takes that could occur and are authorized annually
and across the effective period of these regulations and extensive
qualitative consideration of other contextual factors that influence
the degree of impact of the takes on the affected individuals and the
number and context of the individuals affected. As stated before, the
number of takes, both maximum annual and 5-year total, alone are only a
part of the analysis.
To avoid repetition, we provide some general analysis in this
Negligible Impact Analysis and Determination section that applies to
all the species listed in Table 2 given that some of the anticipated
effects of the project's construction activities on marine mammals are
expected to be relatively similar in nature. Then, we subdivide into
more detailed discussions for mysticetes, odontocetes, and pinnipeds
which have broad life history traits that support an overarching
discussion of some factors considered within the analysis for those
groups (e.g., habitat-use patterns, high-level differences in feeding
strategies).
Last, we provide a negligible impact determination for each species
or stock, providing species or stock-specific information or analysis,
where appropriate (e.g., North Atlantic right whales given their
population status). Organizing our analysis by grouping species or
stocks that share common traits or that would respond similarly to
effects of the project activities and then providing species- or stock-
specific information allows us to avoid duplication while ensuring that
we have analyzed the effects of the specified activities on each
affected species or stock. It is important to note that in the group or
species sections, we base our negligible impact analysis on the maximum
annual take that is predicted under the 5-year rule; however, the
majority of the impacts are associated with WTG foundation and OSS
foundation installation, which will occur largely within the first year
of the effective period of these regulations (2023-2024). The estimated
take in the other years is expected to be notably less, which is
reflected in the total take that would be allowable under the rule (see
Tables 27 and 28).
As described previously, no serious injury or mortality is
anticipated or authorized in this rule. Any Level A harassment
authorized would be in the form of auditory injury (i.e., PTS) and not
non-auditory injury (e.g., lung injury or gastrointestinal injury from
UXO/MEC detonation). The number of takes by harassment Revolution Wind
requested and NMFS is authorizing is based on exposure models that
consider the outputs of acoustic source and
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propagation models and other data such as frequency of occurrence or
group sizes. Several conservative parameters and assumptions are
ingrained into these models, such as assuming forcing functions that
consider direct contact with piles (i.e., no cushion allowances) and
application of the average summer sound speed profile to all months
within a given season. The exposure model results do not reflect any
mitigation measures (other than 10-dB sound attenuation for impact pile
driving and UXO/MEC detonations) or avoidance response. The number of
takes requested and authorized also reflects careful consideration of
other data (e.g., group size data) and for Level A harassment of some
large whales, the consideration of mitigation measures. For all
species, the number of take to be authorized represents the maximum
amount of Level A harassment and Level B harassment that could occur.
Behavioral Disturbance
In general, NMFS anticipates that impacts on an individual that has
been harassed are likely to be more intense when exposed to higher
received levels and for a longer duration (though this is in no way a
strictly linear relationship for behavioral effects across species,
individuals, or circumstances) and less severe impacts result when
exposed to lower received levels and for a brief duration. However,
there is also growing evidence of the importance of contextual factors
such as distance from a source in predicting marine mammal behavioral
response to sound--i.e., sounds of a similar level emanating from a
more distant source have been shown to be less likely to evoke a
response of equal magnitude (DeRuiter and Doukara, 2012; Falcone et
al., 2017). As described in the Potential Effects to Marine Mammals and
their Habitat section of the proposed rule, the intensity and duration
of any impact resulting from exposure to Revolution Wind's activities
is dependent upon a number of contextual factors including, but not
limited to, sound source frequencies, whether the sound source is
moving towards the animal, hearing ranges of marine mammals, behavioral
state at time of exposure, status of individual exposed (e.g.,
reproductive status, age class, health) and an individual's experience
with similar sound sources. Southall et al. (2021), Ellison et al.
(2012) and Moore and Barlow (2013), among others, emphasize the
importance of context (e.g., behavioral state of the animals, distance
from the sound source) in evaluating behavioral responses of marine
mammals to acoustic sources. Harassment of marine mammals may result in
behavioral modifications (e.g., avoidance, temporary cessation of
foraging or communicating, changes in respiration or group dynamics,
masking) or may result in auditory impacts such as hearing loss. In
addition, some of the lower level physiological stress responses (e.g.,
change in respiration, change in heart rate) discussed previously would
likely co-occur with the behavioral modifications, although these
physiological responses are more difficult to detect and fewer data
exist relating these responses to specific received levels of sound.
Takes by Level B harassment, then, may have a stress-related
physiological component as well; however, we would not expect
Revolution Wind's activities to produce conditions of long-term and
continuous exposure to noise leading to long-term physiological stress
responses in marine mammals that could affect reproduction or survival.
In the range of behavioral effects that might be expected to be
part of a response that qualifies as an instance of Level B harassment
by behavioral disturbance (which by nature of the way it is modeled/
counted, occurs within 1 day), the less severe end might include
exposure to comparatively lower levels of a sound, at a greater
distance from the animal, for a few or several minutes. A less severe
exposure of this nature could result in a behavioral response such as
avoiding an area that an animal would otherwise have chosen to move
through or feed in for some amount of time, or breaking off one or a
few feeding bouts. More severe effects could occur if an animal gets
close enough to the source to receive a comparatively higher level, is
exposed continuously to one source for a longer time, or is exposed
intermittently to different sources throughout a day. Such effects
might result in an animal having a more severe flight response, and
leaving a larger area for a day or more or potentially losing feeding
opportunities for a day. However, such severe behavioral effects are
expected to occur infrequently.
Many species perform vital functions, such as feeding, resting,
traveling, and socializing on a diel cycle (24-hour cycle). Behavioral
reactions to noise exposure, when taking place in a biologically
important context, such as disruption of critical life functions,
displacement, or avoidance of important habitat, are more likely to be
significant if they last more than one day or recur on subsequent days
(Southall et al., 2007) due to diel and lunar patterns in diving and
foraging behaviors observed in many cetaceans (Baird et al., 2008;
Barlow et al., 2020; Henderson et al., 2016; Schorr et al., 2014). It
is important to note the water depth in the Project Area is shallow
(ranging from 2 to 40 m in the RWEC and 24 to 50 m in the Lease Area)
and deep diving species, such as sperm whales, are not expected to be
engaging in deep foraging dives when exposed to noise above NMFS
harassment thresholds during the specified activities. Therefore, we do
not anticipate impacts to deep foraging behavior to be impacted by the
specified activities.
It is also important to identify that the estimated number of takes
does not necessarily equate to the number of individual animals
Revolution Wind expects to harass (which is lower), but rather to the
instances of take (i.e., exposures above the Level B harassment
thresholds) that may occur. These instances may represent either brief
exposures of seconds for UXO/MEC detonations, seconds to minutes for
HRG surveys, or, in some cases, longer durations of exposure within a
day (e.g., pile driving). Some individuals of a species may experience
recurring instances of take over multiple days throughout the year,
while some members of a species or stock may experience one exposure as
they move through an area, which means that the number of individuals
taken is smaller than the total estimated takes. In short, for species
that are more likely to be migrating through the area and/or for which
only a comparatively smaller number of takes are predicted (e.g., some
of the mysticetes), it is more likely that each take represents a
different individual, whereas for non-migrating species with larger
amounts of predicted take, we expect that the total anticipated takes
represent exposures of a smaller number of individuals of which some
would be taken across multiple days.
For Revolution Wind, impact pile driving of foundation piles is
most likely to result in a higher magnitude and severity of behavioral
disturbance than other activities (i.e., vibratory pile driving,
pneumatic hammering, UXO/MEC detonations, and HRG surveys). Impact pile
driving has higher source levels and longer durations (on an annual
basis) than vibratory pile driving and HRG surveys. HRG survey
equipment also produces much higher frequencies than pile driving,
resulting in minimal sound propagation. While UXO/MEC detonations may
have higher source levels, impact pile driving is planned for longer
durations (i.e., a maximum of 13 UXO/MEC detonations are planned, which
would result in only instantaneous exposures). While impact pile
driving for foundation installation is anticipated to be most impactful
for
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these reasons, impacts are minimized, to the extent practicable,
through implementation of mitigation measures, including use of a sound
attenuation system, soft-starts, the implementation of clearance zones
that would facilitate a delay to pile driving commencement, and
implementation of shutdown zones. For example, given sufficient notice
through the use of soft-start, marine mammals are expected to move away
from a sound source that is disturbing prior to becoming exposed to
very loud noise levels. The requirement to couple visual monitoring and
PAM before and during all foundation installation and UXO/MEC
detonations will increase the overall capability to detect marine
mammals compared to one method alone. Measures such as the requirement
to apply sound attenuation devices and implement clearance zones also
apply to UXO/MEC detonation(s), which also have the potential to elicit
more severe behavioral reactions in the unlikely event that an animal
is relatively close to the explosion in the instant that it occurs;
hence, severity of behavioral responses are expected to be lower than
would be the case without mitigation.
Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if
some smaller subset of the takes are in the form of a longer (several
hours or a day) and more severe response, if they are not expected to
be repeated over numerous or sequential days, impacts to individual
fitness are not anticipated. Also, the effect of disturbance is
strongly influenced by whether it overlaps with biologically important
habitats when individuals are present--avoiding biologically important
habitats will provide opportunities to compensate for reduced or lost
foraging (Keen et al., 2021). Nearly all studies and experts agree that
infrequent exposures of a single day or less are unlikely to impact an
individual's overall energy budget (Farmer et al., 2018; Harris et al.,
2017; King et al., 2015; National Academy of Science, 2017; New et al.,
2014; Southall et al., 2007; Villegas-Amtmann et al., 2015).
Temporary Threshold Shift (TTS)
TTS is one form of Level B harassment that marine mammals may incur
through exposure to Revolution Wind's activities and, as described
earlier, the takes by Level B harassment may represent takes in the
form of behavioral disturbance, TTS, or both. As discussed in the
Potential Effects of Specified Activities on Marine Mammals and their
Habitat section of the proposed rule, in general, TTS can last from a
few minutes to days, be of varying degree and occur across different
frequency bandwidths, all of which determine the severity of the
impacts on the affected individual, which can range from minor to more
severe. Impact and vibratory pile driving, pneumatic hammering, and
UXO/MEC detonations are broadband noise sources but generate sounds in
the lower frequency ranges (with most of the energy below 1-2 kHz but
with a small amount energy ranging up to 20 kHz); therefore, in general
and all else being equal, we anticipate the potential for TTS is higher
in low-frequency cetaceans (i.e., mysticetes) than other marine mammal
hearing groups and would be more likely to occur in frequency bands in
which they communicate. However, we would not expect the TTS to span
the entire communication or hearing range of any species given the
frequencies produced by these activities do not span entire hearing
ranges for any particular species. Additionally, though the frequency
range of TTS that marine mammals might sustain would overlap with some
of the frequency ranges of their vocalizations, the frequency range of
TTS from Revolution Wind's pile driving and UXO/MEC detonation
activities would not typically span the entire frequency range of one
vocalization type, much less span all types of vocalizations or other
critical auditory cues for any given species. The mitigation measures
required by NMFS further reduce the potential for TTS in mysticetes.
Generally, both the degree of TTS and the duration of TTS would be
greater if the marine mammal is exposed to a higher level of energy
(which would occur when the peak dB level is higher or the duration is
longer). The threshold for the onset of TTS was discussed previously
(see to Estimated Take section of this preamble). However, source level
alone is not a predictor of TTS. An animal would have to approach
closer to the source or remain in the vicinity of the sound source
appreciably longer to increase the received SEL, which would be
difficult considering the required mitigation and the nominal speed of
the receiving animal relative to the stationary sources such as impact
pile driving. The recovery time of TTS is also of importance when
considering the potential impacts from TTS. In TTS laboratory studies
(as discussed in the Potential Effects of the Specified Activities on
Marine Mammals and their Habitat section of the proposed rule), some
using exposures of almost an hour in duration or up to 217 SEL, almost
all individuals recovered within 1 day (or less, often in minutes) and
we note that while the pile driving activities last for hours a day, it
is unlikely that most marine mammals would stay in the close vicinity
of the source long enough to incur more severe TTS. UXO/MEC detonations
also have the potential to result in TTS. However, given the duration
of exposure is extremely short (milliseconds), the degree of TTS (i.e.,
the amount of dB shift) is expected to be small and TTS duration is
expected to be short (minutes to hours). Overall, given the small
number of times that any individual might incur TTS, the low degree of
TTS and the short anticipated duration, and the unlikely scenario that
any TTS overlapped the entirety of a critical hearing range, it is
unlikely that TTS of the nature expected to result from the project's
activities would result in behavioral changes or other impacts that
would impact any individual's (of any hearing sensitivity) reproduction
or survival.
Permanent Threshold Shift (PTS)
NMFS is authorizing a small amount of take by PTS to some marine
mammal individuals. The numbers of authorized annual takes by Level A
harassment are relatively low for all marine mammal stocks and species
(Table 27). The only activities incidental to which we anticipate PTS
may occur is from exposure to impact pile driving and UXO/MEC
detonation, which produces sounds that are both impulsive and primarily
concentrated in the lower frequency ranges (below 1 kHz) (David, 2006;
Krumpel et al., 2021).
There are no PTS data on cetaceans and only one instance of PTS
being induced in older harbor seals (Reichmuth et al., 2019). However,
available TTS data (of mid-frequency hearing specialists exposed to
mid- or high-frequency sounds (Southall et al., 2007; NMFS, 2018;
Southall et al., 2019)) suggest that most threshold shifts occur in the
frequency range of the source up to one octave higher than the source.
We would anticipate a similar result for PTS. Further, no more than a
small degree of PTS is expected to be associated with any of the
incurred Level A harassment, given it is unlikely that animals would
stay in the close vicinity of a source for a duration long enough to
produce more than a small degree of PTS.
PTS would consist of minor degradation of hearing capabilities
occurring predominantly at frequencies one-half to one octave above the
frequency of the energy produced by pile driving or instantaneous UXO/
MEC
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detonation (i.e., the low-frequency region below 2 kHz) (Cody and
Johnstone, 1981; McFadden, 1986; Finneran, 2015), not severe hearing
impairment. If hearing impairment occurs from either impact pile
driving or UXO/MEC detonation, it is most likely that the affected
animal would lose a few decibels in its hearing sensitivity, which in
most cases is not likely to meaningfully affect its ability to forage
and communicate with conspecifics. Revolution Wind estimates 13 UXO/
MECs may be detonated and the exposure analysis conservatively assumes
that all of the UXOs/MECs found would consist of the largest charge
weight of UXO/MEC (E12; 454 kg). However, it is highly unlikely that
all charges would be the maximum size; thus, the amount of Level A
harassment that may occur incidental to the detonation of the UXO/MECs
is likely less than what is estimated here. In addition, during impact
pile driving, given sufficient notice through use of soft-start prior
to implementation of full hammer energy during impact pile driving,
marine mammals are expected to move away from a sound source that is
disturbing prior to it resulting in severe PTS.
Auditory Masking or Communication Impairment
The ultimate potential impacts of masking on an individual are
similar to those discussed for TTS (e.g., decreased ability to
communicate, forage effectively, or detect predators), but an important
difference is that masking only occurs during the time of the signal,
versus TTS, which continues beyond the duration of the signal. Also,
though, masking can result from the sum of exposure to multiple
signals, none of which might individually cause TTS. Fundamentally,
masking is referred to as a chronic effect because one of the key
potential harmful components of masking is its duration--the fact that
an animal would have reduced ability to hear or interpret critical cues
becomes much more likely to cause a problem the longer it is occurring.
Inherent in the concept of masking is the fact that the potential for
the effect is only present during the times that the animal and the
source are in close enough proximity for the effect to occur and,
further, this time period would need to coincide with a time that the
animal was utilizing sounds at the masked frequency.
As our analysis has indicated, for this project we expect that
impact pile driving foundations have the greatest potential to mask
marine mammal signals, and this pile driving may occur for several,
albeit intermittent, hours per day, for multiple days per year. Masking
is fundamentally more of a concern at lower frequencies (which are pile
driving dominant frequencies), because low frequency signals propagate
significantly further than higher frequencies and because they are more
likely to overlap both the narrower low frequency calls of mysticetes,
as well as many non-communication cues related to fish and invertebrate
prey, and geologic sounds that inform navigation. However, the area in
which masking would occur for all marine mammal species and stocks
(e.g., predominantly in the vicinity of the foundation pile being
driven) is small relative to the extent of habitat used by each species
and stock. In summary, the nature of Revolution Wind's activities,
paired with habitat use patterns by marine mammals, does not support
the likelihood that the level of masking that could occur would have
the potential to affect reproductive success or survival.
Impacts on Habitat and Prey
Impact pile driving of monopile foundations and UXO/MEC detonation
may result in fish and invertebrate mortality or injury very close to
the source, and all of Revolution Wind's activities may cause some fish
to leave the area of disturbance. It is anticipated that any mortality
or injury would be limited to a very small subset of available prey and
the implementation of mitigation measures such as the use of a noise
attenuation system during impact pile driving and UXO/MEC detonation
would further limit the degree of impact (again noting UXO/MEC
detonation would be limited to 13 events over 5 years). Behavioral
changes in prey in response to construction activities could
temporarily impact marine mammals' foraging opportunities in a limited
portion of the foraging range; however, due to the relatively small
area of the habitat that may be affected at any given time (e.g.,
around a pile being driven), the impacts to marine mammal habitat are
not expected to cause significant or long-term negative consequences.
Cable presence is not anticipated to impact marine mammal habitat
as these would be buried, and any electromagnetic fields emanating from
the cables are not anticipated to result in consequences that would
impact marine mammals prey to the extent they would be unavailable for
consumption.
The presence of wind turbines within the Lease Area could have
longer-term impacts on marine mammal habitat, as the project would
result in the persistence of the structures within marine mammal
habitat for more than 30 years. The presence of structures such as wind
turbines is, in general, likely to result in certain oceanographic
effects in the marine environment and may alter aggregations and
distribution of marine mammal zooplankton prey through changing the
strength of tidal currents and associated fronts, changes in
stratification, primary production, the degree of mixing, and
stratification in the water column (Chen et al., 2021; Johnson et al.,
2021; Christiansen et al., 2022; Dorrell et al., 2022).
As discussed in the Potential Effects of the Specified Activities
on Marine Mammals and their Habitat section of the proposed rule, the
project would consist of no more than 81 foundations (79 WTGs and 2
OSSs) in the Lease Area, which will gradually become operational
following construction completion, likely in Year 2 of the rule (2024-
2025). While there are likely to be oceanographic impacts from the
presence of the Revolution Wind project, meaningful oceanographic
impacts relative to stratification and mixing that would significantly
affect marine mammal habitat and prey over large areas in key foraging
habitats during the effective period of the regulations are not
anticipated (which considers 2-3 years of turbine operation). For these
reasons, if oceanographic features are affected by the project during
the effective period of these regulations, the impact on marine mammal
habitat and their prey is likely to be comparatively minor; therefore,
we are not authorizing take due to habitat and prey impacts.
The Revolution Wind Biological Opinion provided an evaluation of
the presence and operation of the Project on, among other species,
marine mammals and their prey. While the consultation considered the
life of the project (25+ years), we considered the potential for the
habitat and prey impacts to occur within the 5-year effective time
frame of this rule. Overall, the Biological Opinion concluded that
impacts from loss of sandy bottom habitat (from the presence of
turbines and placement of scour protection) as well as any beneficial
reef effects are expected to be so small that they cannot be
meaningfully measured, evaluated, or detected and are, therefore,
insignificant. The Biological Opinion also concluded that the presence
and operation of the wind farm may change the distribution of plankton
with the wind farm, these changes are not expected to affect the
oceanographic forces transporting zooplankton into the area. Therefore,
the Biological Opinion concluded that the overall reduction in
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biomass of plankton is not an anticipated outcome of operating the
Project. Thus, because changes in the biomass of zooplankton are not
anticipated, any higher trophic level impacts are also not anticipated.
That is, no effects to pelagic fish or benthic invertebrates that
depend on plankton as forage food are expected to occur. Zooplankton,
fish and invertebrates are all considered marine mammal prey and, as
fully described in the Biological Opinion, measurable, detectable or
significant changes to marine mammal prey abundance and distribution
from wind farm operation is not anticipated.
Mitigation To Reduce Impacts on All Species
This rulemaking includes a variety of mitigation measures designed
to minimize impacts on all marine mammals to the extent practicable
with a focus on North Atlantic right whales (the latter is described in
more detail below). For impact pile driving of foundation piles and
UXO/MEC detonations, nine overarching mitigation measures are required,
which are intended to reduce both the number and intensity of marine
mammal takes: (1) seasonal/time of day work restrictions; (2) use of
multiple PSOs to visually observe for marine mammals (with any
detection within specifically designated zones that would trigger delay
or shutdown); (3) use of PAM to acoustically detect marine mammals with
a focus on detecting baleen whales (with any detection within
designated zones triggering delay or shutdown); (4) implementation of
clearance zones; (5) implementation of shutdown zones; (6) use of soft-
start for impact pile driving of foundations; (7) use of noise
attenuation technology; (8) maintaining situational awareness of marine
mammal presence through the requirement that any marine mammal
sighting(s) by Revolution Wind personnel must be reported to PSOs; (9)
sound field verification monitoring; and (10) Vessel Strike Avoidance
measures to reduce the risk of a collision with a marine mammal and
vessel. For cofferdam, casing pipe, and goal post installation and
removal, we are requiring five overarching mitigation measures: (1)
time of day work restrictions; (2) use of multiple PSOs to visually
observe for marine mammals (with any detection with specifically
designated zones that would trigger a delay or shutdown); (3)
implementation of clearance zones; (4) implementation of shutdown
zones); and (5) maintaining situational awareness of marine mammal
presence through the requirement that any marine mammal sighting(s) by
Revolution Wind personnel must be reported to PSOs. Lastly, for HRG
surveys, we are requiring six measures: (1) measures specifically for
Vessel Strike Avoidance; (2) required use of one PSO during daytime
operations and two PSOs utilizing specialized night-vision technologies
during nighttime operations for HRG surveys; (3) implementation of
clearance zones; (4) implementation of shutdown zones; (5) use of ramp-
up of acoustic sources; and (6) maintaining situational awareness of
marine mammal presence through the requirement that any marine mammal
sighting(s) by Revolution Wind personnel must be reported to PSOs.
NMFS prescribes mitigation measures based on the following
rationale. For activities with large harassment isopleths, Revolution
Wind is committed to reducing the noise levels generated to the lowest
levels practicable and is required to ensure that they do not exceed a
noise footprint above that which was modeled, assuming a 10-dB
attenuation. Use of a soft-start during impact pile driving will allow
animals to move away from (i.e., avoid) the sound source prior to
applying higher hammer energy levels needed to install the pile
(Revolution Wind will use the minimum amount of hammer energy to
install piles). Similarly, ramp-up during HRG surveys will allow
animals to move away and avoid the acoustic sources before they reach
their maximum energy level (Revolution Wind will use the lowest energy
level practicable to conduct survey activities). For all activities
(with some exception for UXO/MEC detonations, which would not have a
shutdown zone), clearance zone and shutdown zone implementation, which
are required when marine mammals are within given distances associated
with certain impact thresholds for all activities, will reduce the
magnitude and severity of marine mammal take. Additionally, the use of
multiple PSOs (WTG and OSS foundation installation, temporary
cofferdam, casing pipe, or goal post installation and removal, UXO/MEC
detonations, HRG surveys), PAM, operators (for impact foundation
installation and UXO/MEC detonations), and maintaining awareness of
marine mammal sightings reported in the region (WTG and OSS foundation
installation, temporary cofferdam casing pipe, or goal post
installation and removal, UXO/MEC detonations, HRG surveys) will aid in
detecting marine mammals that would trigger the implementation of the
mitigation measures. The reporting requirements, including SFV
reporting for foundation installation, foundation operation, and UXO/
MEC detonations will assist NMFS in identifying if impacts beyond those
analyzed in this final rule are occurring, potentially leading to the
need to enact adaptive management measures in addition to or in place
of the mitigation measures.
Mysticetes
Six mysticete species (comprising six stocks) of cetaceans (North
Atlantic right whale, blue whale, humpback whale, fin whale, sei whale,
and minke whale) may be taken by harassment. These species, to varying
extents, utilize the specified geographic region, including the Project
Area, for the purposes of migration, foraging, and socializing.
Mysticetes are in the low-frequency hearing group.
Behavioral data on mysticete reactions to pile driving noise are
scant. Kraus et al. (2019) predicted that the three main impacts of
offshore wind farms on marine mammals would consist of displacement,
behavioral disruptions, and stress. Broadly, we can look to studies
that have focused on other noise sources such as seismic surveys and
military training exercises, which suggest that exposure to loud
signals can result in avoidance of the sound source (or displacement if
the activity continues for a longer duration in a place where
individuals would otherwise have been staying, which is less likely for
mysticetes in this area), disruption of foraging activities (if they
are occurring in the area), local masking around the source, associated
stress responses, and impacts to prey, as well as TTS or PTS in some
cases.
Mysticetes encountered in the Project Area are expected to be
migrating through and/or engaged in foraging behavior. The extent to
which an animal engages in these behaviors in the area is species-
specific and varies seasonally. Many mysticetes are expected to
predominantly be migrating through the Project Area towards or from
primary feeding habitats (e.g., Cape Cod Bay, Great South Channel, and
Gulf of St. Lawrence). While we have acknowledged above that mortality,
hearing impairment, or displacement of mysticete prey species may
result locally from impact pile driving and UXO/MEC detonations, given
the very short duration of and broad availability of prey species in
the area and the availability of alternative suitable foraging habitat
for the mysticete species most likely to be affected, any impacts on
mysticete foraging are expected to be minor. Whales temporarily
displaced from the Project
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Area are expected to have sufficient remaining feeding habitat
available to them, and would not be prevented from feeding in other
areas within the biologically important feeding habitats, including to
the east near Nantucket Shoals. In addition, any displacement of whales
or interruption of foraging bouts would be expected to be relatively
temporary in nature.
The potential for repeated exposures is dependent upon the
residency time of whales with migratory animals unlikely to be exposed
on repeated occasions and animals remaining in the area to be more
likely exposed repeatedly. For mysticetes, where relatively low numbers
of species-specific take by Level B harassment are predicted (compared
to the abundance of each mysticete species or stock; see Table 28) and
movement patterns suggest that individuals would not necessarily linger
in a particular area for multiple days, each predicted take likely
represents an exposure of a different individual; the behavioral
impacts would, therefore, be expected to occur within a single day
within a year and is not be expected to impact reproduction or
survival. Species with longer residence time in the Project Area may be
subject to repeated exposures across multiple days.
In general, the duration of exposures would not be continuous
throughout any given day and pile driving would not occur on all
consecutive days within a given year due to weather delays or any
number of logistical constraints Revolution Wind has identified.
Species-specific analysis regarding potential for repeated exposures
and impacts is provided below.
Humpback whales, minke whales, fin whales and sei whales are the
mysticete species for which PTS is anticipated and authorized. As
described previously, PTS for mysticetes from some project activities
may overlap frequencies used for communication, navigation, or
detecting prey. However, given the nature and duration of the activity,
the mitigation measures, and likely avoidance behavior, any PTS is
expected to be of a small degree, would be limited to frequencies where
pile driving noise is concentrated (i.e., only a small subset of their
expected hearing range) and would not be expected to impact
reproductive success or survival.
North Atlantic Right Whale
North Atlantic right whales are listed as endangered under the ESA
and as both depleted and strategic under the MMPA. As described in the
Potential Effects to Marine Mammals and Their Habitat section of the
proposed rule, North Atlantic right whales are threatened by a low
population abundance, higher than average mortality rates, and lower
than average reproductive rates. Recent studies have reported
individuals showing high stress levels (e.g., Corkeron et al., 2017)
and poor health, which has further implications on reproductive success
and calf survival (Christiansen et al., 2020; Stewart et al., 2021;
Stewart et al., 2022). As described below, a UME has been designated
for North Atlantic right whales. Given this, the status of the North
Atlantic right whale population is of heightened concern and,
therefore, merits additional analysis and consideration. No injury or
mortality is anticipated or authorized for this species.
For North Atlantic right whales, this rule authorizes up to 56
takes, by Level B harassment, over the 5-year period, with a maximum
annual allowable take of 44 (equating to approximately 13 percent of
the stock abundance, if each take were considered to be of a different
individual), with far lower numbers expected in the years following
foundation installation (e.g., years when only HRG surveys would be
occurring).
Southern New England, including the Project Area, is part of a
known migratory corridor for North Atlantic right whales and may be a
stopover site for migrating North Atlantic right whales moving to or
from southeastern calving grounds and northern foraging grounds.
However, North Atlantic right whales range outside of the Project Area
for their main feeding, breeding, and calving activities. Additional
qualitative observations in southern New England include animals
feeding and socializing (Quintana-Rizzo et al., 2021). North Atlantic
right whales are primarily concentrated in the northeastern and
southeastern sections of the Massachusetts Wind Energy Area (MA WEA)
(i.e., east of the Project Area) during the summer (June-August) and
winter (December-February) while distribution likely shifts to the
west, closer to the Project Area, into the Rhode Island/Massachusetts
Wind Energy Area (RI/MA WEA) in the spring (March-May) (Quintana-Rizzo
et al., 2021). Approximately 23 percent of the right whale population
is present in southern New England from December through May, and the
mean residence time has tripled to an average of 13 days during these
months (Quintana-Rizzo et al., 2021).
In general, North Atlantic right whales in the Project Area are
expected to be engaging in migratory and/or feeding behavior. Migrating
whales would typically be moving through the Project Area, rather than
lingering for extended periods of time; however, foraging whales may
remain in the Project Area, with an average residence time of 13 days
between December and May (Quintana-Rizzo et al., 2021). It is important
to note that the activities that would occur