4370 Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 240104–0001] 

RIN 0648–BL74 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Coastal 

Virginia Offshore Wind Commercial 

Project Offshore of Virginia 

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, NMFS hereby promulgates 

regulations to govern the incidental 

taking of marine mammals incidental to 

the Virginia Electric and Power 

Company, doing business as Dominion 

Energy Virginia (Dominion Energy), 

construction of the Coastal Virginia 

Offshore Wind Commercial (CVOW–C) 

Project (hereafter, the CVOW–C Project 

or the Project) in Federal and State 

waters offshore of Virginia, 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 0483 (Lease Area) and along 

export cable routes to sea-to-shore 

transition points (collectively referred to 

as the ‘‘Project Area’’), over the course 

of 5 years (February 5, 2024 through 

February 4, 2029). 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 is effective from 

February 5, 2024, through February 4, 

2029. 

FOR FURTHER INFORMATION CONTACT: 

Kelsey Potlock, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of Dominion Energy’s 

Incidental Take Authorization (ITA) 

application, 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/marinemammal-protection/incidental-takeauthorizations-other-energy-activitiesrenewable. 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 Dominion Energy to incidentally 

take 21 species of marine mammals, 

comprising 22 stocks (7 stocks by Level 

A harassment and Level B harassment 

and 15 stocks by Level B harassment 

only), incidental to Dominion Energy’s 

5 years of construction activities. No 

mortality or serious injury is anticipated 

or authorized in this final rulemaking. 

Please see the Legal Authority for the 

Final Action section below for 

definitions of harassment, serious 

injury, and incidental take. 

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 (e.g., ‘‘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 Dominion Energy’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; 


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• The establishment of a seasonal 

moratorium on pile driving of 

foundation piles during the months of 

the highest presence of North Atlantic 

right whales (Eubalaena glacialis) in the 

Lease Area (November 1st through April 

30th, annually); 

• A requirement for both visual and 

passive acoustic monitoring to occur by 

NOAA Fisheries-approved Protected 

Species Observers (PSOs) and Passive 

Acoustic Monitoring (PAM) operators 

(where required) before, during, and 

after select activities; 

• A requirement of training for all 

Dominion Energy 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 devices during all 

foundation pile driving installation 

activities to reduce noise levels to those 

modeled assuming 10 decibels (dB); 

• A delay to the start of foundation 

installation if a North Atlantic right 

whale is observed at any distance by 

PSOs or acoustically detected within the 

PAM Monitoring Zone (10 kilometer 

(km)); 

• A delay to the start of foundation 

installation if other marine mammals 

are observed entering or within their 

respective clearance zones; 

• A requirement to shut down pile 

driving (if feasible) if a North Atlantic 

right whale is observed at any distance 

or if any other marine mammals are 

observed entering their respective 

shutdown zones; 

• A requirement to conduct sound 

field verification (SFV) during 

foundation pile driving to measure insitu 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 to monitor relevant 

Right Whale Sightings Advisory System 

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 to submit frequently 

scheduled and situational reports 

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 any 

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 

216.206(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)). 

Dominion Energy’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-project/fast-41-coveredprojects/coastal-virginia-offshore-windcommercial-project. 

Summary of Request 

On February 16, 2022, Dominion 

Energy 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. The request was for the 

incidental, but not intentional, taking of 

a small number of 21 marine mammal 

species (comprising 22 stocks) by Level 

B harassment (all 22 stocks) and by 

Level A harassment (7 species or 

stocks). Dominion Energy 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 

Dominion Energy and NMFS, Dominion 

Energy submitted a final revised 

application on August 5, 2022. NMFS 

deemed it adequate and complete on 

August 12, 2022. This final application 

is available on NMFS’ website at https:// 

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. 

On September 15, 2022, NMFS 

published a notice of receipt (NOR) of 

Dominion Energy’s adequate and 

complete application in the Federal 

Register (87 FR 56634), requesting 

public comments and information on 

Dominion Energy’s request during a 30- 

day public comment period. During the 

NOR public comment period, NMFS 

received a single comment letter from 

an environmental non-governmental 

organization: the Southern 

Environmental Law Center (SELC). We 

also received a single comment from a 

government agency: the United States 

Geological Survey. These comments 

entailed broader comments very similar 

to those we received during the 

proposed notice’s comment period, 

including, but not limited to: vessel 

strike avoidance measures; the use of 

best available science when evaluating a 

seasonal pile driving moratorium; 

suggestions on proposed clearance and 

shutdown (termed ‘‘exclusion’’) zones 

for North Atlantic right whales; 

cumulative impacts; and additional 

suggested mitigation, monitoring, and 

reporting measures in a supplemental 

attachment provided by the commenter. 

In June 2022, Duke University’s Marine 

Spatial Ecology Laboratory released 

updated habitat-based marine mammal 

density models (Roberts et al., 2023). 

Because Dominion Energy applied 

marine mammal densities to their 

analysis in their application, Dominion 

Energy submitted a final Updated 

Density and Take Estimation Memo 

(herein referred to as Updated Density 

and Take Estimation Memo) on January 

10, 2023 that included marine mammal 

densities and take estimates based on 

these new models which NMFS posted 

on our website in May 2023. 

In January 2023, BOEM informed 

NMFS that the proposed activity had 

changed from what is presented in the 

adequate and complete MMPA 

application. Specifically, the changed 

proposed activity involved the 

reduction of maximum wind turbine 

generators (WTGs) built (from 205 to 

202 WTGs) as under the original Project 

Design Envelope (PDE) and the offshore 

substations (OSSs) would be located in 

the vessel transit routes. Under the 202 


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build-out, three WTGs would be 

removed and the three OSSs would be 

shifted into these WTG positions. 

However, in late January 2023, 

Dominion Energy confirmed that their 

Preferred Layout of 176 WTGs is the 

base case for construction, but that they 

could possibly need up to 7 WTGs repiled in alternate positions due to 

unstable sediment conditions, which 

could necessitate up to 183 independent 

piling events. WTG positions have been 

removed from consideration for one or 

more of the following reasons: 

impracticable due to foundation 

technical design risk, shallow gas 

presence, commercial shipping and 

navigation risk concerns, erosion risk, 

and presence of a designated fish haven. 

Based on the information provided, 

NMFS carried forward the analysis 

assuming a total build-out of 176 WTGs 

plus seven re-piled WTGs (a total of 183 

independent piling events for WTGs) 

and the 3 originally planned OSSs. Due 

to the significant reduction of turbines 

from the original proposed action found 

in the adequate and complete ITA 

application (reduction of approximately 

14 percent), Dominion Energy, in 

consultation with NMFS, provided an 

updated proposed action summary, 

revised exposure estimates, revised take 

requests, and an updated piling 

schedule in mid-February 2023 

(hereinafter referred to as the Revised 

Proposed Action Memo). NMFS posted 

this to our website in May 2023. 

On May 4, 2023, NMFS published a 

proposed rule in the Federal Register 

for the CVOW–C Project (88 FR 28656). 

In the proposed rule, NMFS synthesized 

all of the information provided by 

Dominion Energy, 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 30 days on https://

www.regulations.gov starting on May 4, 

2023 and closed after June 5, 2023. The 

public comments can be viewed at 

https://www.regulations.gov/docket/ 

NOAA-NMFS-2023-0030; a summary of 

public comments received during this 

30-day period and NMFS responses are 

described in the Comments and 

Responses section. 

NMFS has previously issued six 

Incidental Harassment Authorizations 

(IHAs) to Dominion Energy. Two of 

those IHAs, issued in 2018 (83 FR 

39062, August 8, 2018) and 2020 (85 FR 

30930, May 21, 2020) supported the 

development of the Coastal Virginia 

Offshore Wind project, known as the 

CVOW Pilot Project (wherein two 

turbines were constructed). The 

remaining four IHAs (two of which were 

modified IHAs) were high resolution 

site characterization surveys within and 

around the CVOW–C Lease Area (see 85 

FR 55415, September 8, 2020; 85 FR 

81879, December 17, 2020; 86 FR 21298, 

April 22, 2021; and 87 FR 33730, June 

3, 2022). To date, Dominion Energy has 

complied with all the 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/marinemammal-protection/incidental-takeauthorizations-other-energy-activitiesrenewable. 

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 vessel speed 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 Dominion Energy 

if the measures in the vessel speed rule 

were to supersede any of the measures 

in the MMPA authorization. 

Description of the Specified Activities 

Overview 

Dominion Energy plans to construct 

and operate the Project, a 2,500 to 3,000- 

megawatt (MW) offshore wind farm, in 

the Project Area. The Project will allow 

the Commonwealth of Virginia to meet 

its renewable energy goals under the 

Virginia Clean Economy Act (HB 1526/ 

SB 851). 

Dominion Energy’s precursor pilot 

project (i.e., CVOW Pilot Project) was a 

12 MW, two-turbine test project and the 

first to be installed in Federal waters. 

Designed as a research/test project, the 

two turbines associated with the CVOW 

Pilot Project became operational in 

October 2020 approximately 27 miles 

(mi; 43.45 kilometers (km)) off of 

Virginia Beach, Virginia. Information on 

this Pilot Project was used to inform the 

CVOW–C project. More information on 

the Pilot Project can be found on 

BOEM’s website (https://

www.boem.gov/renewable-energy/stateactivities/coastal-virginia-offshore-windproject-cvow) and in the IHA authorized 

by NMFS in May 2020 for BOEM Lease 

Area OCS–A–0497 (https://

www.bfisheries.bnoaa.bgov/action/ 

incidental-take-authorization-dominionenergy-virginia-offshore-windconstruction-activities). 

The Project will consist of several 

different types of permanent offshore 

infrastructure, including 176 WTGs 

(e.g., the Siemens Gamesa SG–14–222 

DD 14–MW model with power boost 

technology potentially allowing up to 

14.7–MW, equating to a total of 2,587.2– 

MW for full build-out) and associated 

foundations, three OSSs, offshore 

substation array cables, offshore export 

cables, and substation interconnector 

cables. Overall, Dominion Energy will 

conduct the following specified 

activities: install 176 WTGs and 3 OSS 

on monopile foundations via vibratory 

and impact pile driving; install and 

subsequently remove up to 9 

cofferdams, by vibratory pile driving, 

and install up to 108 goal posts (12 goal 

posts for each of 9 Direct Pipe 

locations), by impact pile driving, to 

assist in the installation of the export 

cable; conduct several types of fishery 

and ecological monitoring surveys; 

place scour protection; trenching, 

laying, and burial activities associated 

with the installation of the export cable 

from OSSs to shore-based converter 

stations and inter-array cables between 

turbines; conduct HRG vessel-based site 

characterization surveys using active 

acoustic sources with frequencies of less 

than 180 kilohertz (kHz); transit within 

the Project Area and between ports and 

the Lease Area to transport crew, 


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supplies, and materials to support 

construction activities; and WTG 

operation. From the sea-to-shore 

transition point, onshore underground 

export cables are then connected in 

series to switching stations/substations, 

overhead transmission lines, and 

ultimately to the grid connection, which 

will be located in a parking lot found 

west of the firing range at the State 

Military Reservation located in Virginia 

Beach, Virginia. 

Marine mammals exposed to elevated 

noise levels during vibratory and impact 

pile driving and site characterization 

surveys may be taken by Level A 

harassment and/or Level B harassment, 

depending on the specified activity and 

species. 

A detailed description of the specified 

activities is provided in the proposed 

rule as published in the Federal 

Register (88 FR 28656, May 4, 2023). 

Since the proposed rule was published, 

Dominion Energy has not modified the 

specified activities. Please refer to the 

proposed rule for more information on 

the description of the specified 

activities. 

Dates and Duration 

Dominion Energy anticipates its 

specified activities to occur throughout 

all 5 years of the effective period of the 

regulations, beginning on February 5, 

2024 and continuing through February 

4, 2029. Dominion Energy’s anticipated 

construction schedule can be found in 

Table 1. Dominion Energy 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. 

TABLE 1—CONSTRUCTION SCHEDULE a

Project activity Expected timing Expected duration 

(approximate) 

Scour Protection Pre-Installation .......................................................................... Q2 through Q4 of 2024 ........................

Q2 through Q4 of 2025 ........................

9 months. 

9 months. 

WTG Foundation Installation b e ........................................................................... Q2 through Q4 of 2024 ........................

Q2 through Q4 of 2025 ........................

6 months. 

6 months. 

Scour Protection Post-installation ........................................................................ Q2 through Q4 of 2024 ........................

Q2 through Q4 of 2025 ........................

9 months. 

9 months. 

OSS Foundation Installation b e ............................................................................ Q2 through Q4 of 2024 ........................

Q2 through Q4 of 2025 ........................

6 months. 

6 months. 

Cable Landfall Construction (Goal Posts and Cofferdams) h .............................. Q1 through Q4 of 2024 ........................ 6 months. 

HRG Surveys c d ................................................................................................... Q1 2024 through Q4 2028 ................... Any time of year. 

Site Preparation .................................................................................................... Q1 2024 through Q2 2024 ................... 6 months. 

Inter-array Cable Installation ................................................................................ Q2 2025 through Q4 2026 ................... 19 months. 

Export Cable Installation ...................................................................................... Q3 2024 through Q3 2025 ................... 14 months. 

Fishery Monitoring Surveys: f g

Surf Clam ...................................................................................................... Q2 2023 ................................................ 1 week. 

Whelk ............................................................................................................ Q2 2023 through Q1 2025 ................... 24 months. 

Black Sea Bass ............................................................................................. Q2 2023 through Q1 2025 ................... 24 months. 

Note: ‘‘Q1, Q2, Q3, and Q4’’ each refer to a quarter of the year, starting in January and comprising 3 months each. Therefore, Q1 represents 

January through March, Q2 represents April through June, Q3 represents July through September, and Q4 represents October through December. aWhile the effective period of the final regulations would extend a few months into 2029, no activities are planned to occur in 2029 by Dominion Energy, so these were not included in this table. bActivities would only occur from May 1st through October 31st annually. 

cActivities would begin in February 2024, upon the issuance of an associated LOA, and continue through construction and post-construction. dFor HRG surveys, Dominion Energy anticipates up to 65 days of surveys would occur during the pre-construction period (2024), up to 307 

days during the primary construction years (2025 and 2026), and up to 736 days would be needed during the post-construction years (2027 and 

2028) with a 50/50 split of 368 days each year. No surveys are planned for 2029. e Dominion Energy anticipates that all WTGs and OSS foundations will be installed by October 31, 2025; however, unanticipated delays may 

require some foundation pile driving to occur in 2026 and/or 2027. fSome fishery monitoring survey activities are planned prior to February 2024 but are not included here as they would not occur during the effective dates of the rule and an associated LOA. g Dates displayed here are for field work, as that would be the only component that could impact marine mammals. 

hAlthough cable landfall activities are anticipated to occur over 9–12 months total, activities capable of harassing marine mammals would only 

occur for the specified duration described here as other activities necessary for landfall construction (i.e., area preparation, material transportation, etc.) would also occur. 

Specified Geographic Region 

A detailed description of the 

Specified Geographic Region is 

provided in the proposed rule as 

published in the Federal Register (88 

FR 28656, May 4, 2023). Since the 

proposed rule was published, no 

changes have been made to the 

Specified Geographic Region. Generally, 

Dominion Energy’s specified activities 

(i.e., vibratory and impact pile driving of 

WTGs on monopile and OSS on jacket 

foundations; vibratory pile driving 

(installation and removal) of temporary 

cofferdams; impact pile driving 

(installation) of goal posts; placement of 

scour protection; trenching, laying, and 

burial activities associated with the 

installation of the export cable and 

inter-array cables; HRG site 

characterization surveys; and WTG 

operation) are concentrated in the 

Project Area (Figure 1). A couple of 

Dominion Energy’s specified activities 

(i.e., fishery and ecological monitoring 

surveys and transport vessels) will 

occur in the Mid-Atlantic Bight. 

BILLING CODE 3510–22–P 


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Figure 1—Project Area 

BILLING CODE 3510–22–C Comments and Responses 

A notice of proposed rulemaking was 

published in the Federal Register on 

May 4, 2023 (88 FR 28656). The 

proposed rulemaking described, in 

detail, Dominion Energy’s specified 

activities, the specified geographic 

region of the specified activities, the 


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Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 4375 

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 Dominion Energy’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. The proposed rule 

was available for a 30-day public 

comment period. 

In total, NMFS received 169 comment 

submissions, comprising 161 individual 

comments from private citizens and 6 

comment letters from organizations or 

public groups including, but not limited 

to: the Marine Mammal Commission 

(the Commission), Oceana, Inc. 

(Oceana), SELC, Responsible Offshore 

Development Alliance (RODA), West 

Coast Pelagic Conservation Group 

(WCPCG); and the Virginia Department 

of Wildlife Resources (VDWR). Some of 

the comments received are considered 

out-of-scope, including, but not limited 

to, comments related to the non-offshore 

wind farm development; concerns for 

other species outside of NMFS’ 

jurisdiction (i.e., birds, tortoises, bats, 

insects); costs associated with offshore 

wind development; recycling of turbine 

components; national security concerns; 

other projects that are not the CVOW– 

C Project; and project decommissioning, 

which would occur outside the effective 

period of this rule. These comments are 

not described herein or discussed 

further. Moreover, where comments 

recommended that the final rule include 

mitigation, monitoring, or reporting 

measures that were already included in 

the proposed rule and such measures 

are carried forward in this final rule, 

they are not included here, as those 

comments did not raise significant 

points for NMFS to consider. 

Furthermore, if a comment received was 

unclear, we do not include it here as we 

could not determine whether it raised a 

significant point for NMFS to consider. 

NMFS also received a comment letter 

from Gatzke Dillion & Ballance LLP on 

behalf of the Committee for a 

Constructive Tomorrow (CFACT), the 

American Coalition for Ocean 

Protection (ACOP), and the Heartland 

Institute after the close of the public 

comment period. 

The six letters (i.e., Oceana, RODA, 

WCPCG, SELC, VDWR, and the 

Commission), as well as individual 

comments, received during the public 

comment period contained significant 

points that NMFS considered in its 

estimated take analysis, including: 

required mitigation, monitoring, and 

reporting measures; final 

determinations; and final regulations. 

These are described and responded to 

below. 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. 

Modeling and Take Estimates 

Comment 1: The Commission claimed 

NMFS ‘‘underestimated the numbers of 

Level A harassment and Level B 

harassment takes (including failing to 

round up to group size) . . .’’ 

Specifically, the Commission claimed 

NMFS underestimated the number of 

takes for harbor seals because harbor 

seals occur in much greater numbers 

than gray seals off Virginia (see Jones 

and Rees, 2022). 

Response: NMFS incorporated group 

size into the estimated take analysis (see 

the Estimated Take of Marine Mammals 

section in the proposed rule (88 FR 

28656, May 4, 2023) and Estimated Take 

section of this final rule). The 

Commission did not provide specific 

recommendations to adjust any take 

estimates other than for harbor and gray 

seals. NMFS has reviewed the number 

of takes by Level A harassment and 

Level B harassment for all species and 

disagrees it is an underestimate. 

While the Commission does indeed 

cite a relevant paper, Jones and Rees 

(2022), as the basis for their observation, 

NMFS does not believe this paper alone 

is enough justification for adjusting 

take. The study sites in Jones and Rees 

(2022) are not applicable to Dominion 

Energy’s activities (i.e., they are located 

in estuarine habitat) as NMFS does not 

expect these specific areas to be 

impacted by the construction work for 

CVOW–C. 

Specifically in addressing the 

Commission’s concerns with the 50/50 

allocation of take for pinnipeds between 

each species, NMFS disagrees that this 

method is incorrect and that this 

approach over- or under-estimates take. 

The Duke University density models 

(Roberts et al., 2023) group some species 

together (including phocid seals) to 

provide a single density estimate. While 

we acknowledge that more harbor seals 

have been observed in inland 

Chesapeake Bay waters than gray seals, 

there is not sufficient at-sea data to 

better proportion the number of takes by 

species; therefore, we assumed a 50/50 

split consistent with Roberts et al. 

(2023). Importantly, for each species, we 

believe the maximum number of takes 

authorized in any given year (n=84 for 

each species) is a reasonable estimate of 

the number of harassment takes that 

may occur incidental to the specified 

activities given the majority of work that 

may result in marine mammal 

harassment would be occurring during 

times (May 1st through October 31st) 

when seals are less likely to be present 

in Virginia waters. For these reasons, we 

disagree with the Commission’s claim 

and have not modified the take estimate 

approach in this final rule. 

Comment 2: A commenter disagreed 

with NMFS’ preliminary small numbers 

determination based on the sum of takes 

for all species. 

Response: Under the MMPA, the 

Secretary of Commerce, as delegated to 

NMFS, shall allow the incidental taking 

of ‘‘small numbers of marine mammals 

of a species or population stock’’ if 

specific findings are made (16 U.S.C. 

1371(a)(5)(a)(i)). Thus, the small 

numbers finding is done at the species 

or population level. 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. NMFS 

has made the necessary small numbers 

finding for all affected species and 

stocks. 

Comment 3: A commenter stated that 

there is the potential for repeated 

exposures to adversely affect species’ or 

stocks’ annual rates of recruitment or 

survival. 

Response: NMFS fully considered the 

potential for repeated exposures in the 

proposed rule and this final rule when 

determining if the specified activities 

would result in a negligible impact to 

the affected species and stocks. The 

Negligible Impact Analysis and 

Determination section in both the 

proposed and final rules discusses the 

potential for repeated exposures and the 

potential related impacts. As described 

in those sections, NMFS has determined 

that the impacts resulting from the 

specified activities (recognizing that the 

potential for repeated exposures varies 

with the species due to habitat use (e.g., 

migrating whales versus species that 

may remain in the area over longer 

periods of time)), will have a negligible 

impact on the affected species and 

stocks. 

Comment 4: Commenters stated that 

there is no evidence or research proving 

that the CVOW–C Project would not 

cause the mortality or serious injury of 

marine mammals. The commenters 

further stated that there is no evidence 

proving that the estimated take 


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proposed by NMFS in the proposed rule 

is accurate or the maximum total. 

Response: Regarding take by serious 

injury or mortality, the proposed rule 

clearly states that no serious injury and/ 

or mortality is expected or proposed for 

authorization, and the same carries into 

the final rule for which no take by 

serious injury or mortality has been 

authorized (see also 50 CFR 217.292(c)). 

Regarding the claim that there is no 

evidence proving the take estimates are 

accurate, the take numbers, as shown in 

the proposed and final rule, are based 

on the best available marine mammal 

density data, published and peer 

reviewed scientific literature, on-thewater reports from other nearby projects 

or past MMPA actions, and highly 

complex statistical models of which 

real-world assumptions and inputs have 

been incorporated to estimate on a 

project-by-project basis. In the 

Estimated Take section, NMFS has 

provided detailed rationale for why the 

number and manner of takes authorized 

in this final rule are reasonable and 

based on the best available science. The 

commenter did not provide any 

information to support their claim that 

take estimates are not representative of 

the take that may occur incidental to the 

project. NMFS disagrees with the 

commenter and expects that the take 

numbers authorized for this action are 

sufficient given the activity proposed 

and planned by Dominion Energy. 

Mitigation 

Comment 5: The commenter stated 

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 relevant, 

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 Dominion Energy’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 if 

the requestor’s specified activities are 

truly necessary or critical; however, 

NMFS does identify and has required in 

this final rule mitigation measures the 

effect the least practicable adverse 

impact on marine mammals. 

Comment 6: The commenter stated 

that the LOA should use buffer zones to 

avoid any effects of turbine presence on 

North Atlantic right whales and 

foraging. 

Response: Buffer zones have been 

suggested to mitigate impacts from 

offshore wind related activities near 

areas of significance (e.g., known 

feeding grounds). As described in the 

proposed rule and herein, the project 

area, located offshore Virginia, is not 

considered foraging habitat and while 

some opportunistic foraging may occur, 

it is primarily a migratory corridor. 

Therefore, NMFS disagrees that a new 

mitigation measure creating a buffer 

zone is necessary to effect the least 

practicable adverse impact on North 

Atlantic right whales. 

Comment 7: One commenter 

recommended that NMFS require 

clearance and shutdown zones for all 

protected species that included (1) a 

minimum of 5,000 m (3.1 mi) for the 

visual and acoustic clearance zones; 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. Commenters also 

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 required shutdown 

and clearance zones (equally sized) for 

large whales (other than North Atlantic 

right whale) are based on the largest 

Level A harassment exposure range 

calculated for a mysticete, other than 

humpback whales, rounded up to the 

nearest hundred for PSO clarity. For all 

other species (e.g., dolphins, harbor 

porpoise, seals), clearance and 

shutdown zones have been developed in 

consideration of modeled distances to 

relevant PTS thresholds with respect to 

minimizing the potential for take by 

Level A harassment, which were 

rounded up for PSO clarity. NMFS has 

determined that these zone sizes effect 

the least practicable adverse impact on 

marine mammals. Further, delaying the 

project unnecessarily due to very large 

clearance and shutdown zones could 

have unintended adverse impacts on 

marine mammals by extending the 

construction schedule. The commenters 

do not provide additional scientific 

information to support their suggestion 

to expand clearance and shutdown 

zones to the distances recommended. 

NMFS has not incorporated this 

recommendation into this final rule. 

NMFS agrees that mitigation measures 

should be designed to avoid and 

minimize the potential for PTS and has 

included such measures in this 

rulemaking to effect the least practicable 

adverse impact on marine mammals. 

Specifically, in addition to requiring 

shutdown of pile driving if North 

Atlantic right whales are detected at any 

distance, NMFS has identified and 

required reasonable mitigation measures 

to avoid or minimize adverse impacts to 

marine mammals, such as setting this 

Project’s impact pile driving clearance 

zones to be larger than the Level A 

harassment (PTS) zones for all other 

large whale species. NMFS believes that 

these measures are effective and would 

result in avoiding (North Atlantic right 

whale) or minimizing (other large 

whales) the takes by Level A 

harassment. We anticipate that where 

there is potential for Level A 

harassment, any auditory injury will be 

minimized through the implementation 

of noise abatement, soft starts, and 

clearance and shutdown zones. NMFS 

has made its required negligible impact 

finding based on the amount of take that 

may be authorized in the LOA. 

NMFS agrees with the commenter that 

impacts should be minimized to the 

maximum extent practicable and we 

have done so with the required 


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mitigation measures. Enlargement of 

these zones is not practicable as it could 

interrupt and delay the project such that 

construction activities would occur over 

longer timeframes, which would incur 

additional costs but, importantly, also 

potentially increase the number of days 

that marine mammals are exposed to the 

disturbance. Conducting activities as 

expeditiously as possible when large 

whales are less likely to occur in the 

area is a means by which to minimize 

harassment. 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 8: A commenter 

recommended that, to protect all 

protected species, NMFS should restrict 

pile driving at night while another 

recommended pile driving should only 

be allowed to continue after dark if the 

activity was started during daylight 

hours and must continue due to human 

safety or installation feasibility (i.e., 

stability) concerns, but that nighttime 

monitoring protocols be required. A 

commenter suggested that if pile driving 

must continue after dark, Dominion 

Energy should be required to notify 

NMFS with these reasons and an 

explanation for exemption and 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: Dominion Energy did not 

request, and NMFS did not evaluate, 

nighttime pile driving except in the 

following circumstance. In the proposed 

rule, we indicated that Dominion 

Energy must initiate pile driving prior to 

1.5 hours before civil sunset and not 

before 1 hour after civil sunrise unless 

they submit to NMFS, for approval, an 

Alternative Monitoring Plan for 

nighttime pile driving activities. Within 

the final regulations and consistent with 

the commenter’s recommendation, 

Dominion Energy will be allowed, due 

to safety and stability concerns, to finish 

piles at night when the pile has been 

started during daylight hours, in which 

they still must provide an Alternative 

Monitoring Plan for NMFS review and 

approval to ensure that they can 

appropriately monitor and mitigate for 

marine mammals in reduced visibility 

conditions. This Plan will describe the 

alternative monitoring technologies that 

would be used to observe for marine 

mammals, which as described in the 

proposed rule and carried over into the 

final rule, includes technologies such as 

infrared or thermal cameras, that are 

considered practical in low-light 

conditions and other periods of reduced 

visibility to allow for the continuation 

of monitoring the applicable clearance 

and shutdown zones. This Alternative 

Monitoring Plan is also applicable to 

reduced visibility conditions. 

Regarding the reporting requirement 

specified by the commenter, required 

weekly and monthly reports during 

foundation installation must contain 

information that would inform how long 

and when pile driving occurred, as 

Dominion Energy is required to 

document the daily start and stop times 

of all pile-driving activities. At 

minimum, a final annual report with 

this information will be made available 

to the public, as recommended by the 

commenter. 

Comment 9: Given the potential of the 

project to increase the vessel traffic in 

and around the project area, a 

commenter suggests that the regulations 

include a vessel traffic plan to minimize 

the effects of service vessels on marine 

wildlife and include the following 

requirements for all project vessels, 

regardless of their function, ownership, 

or operator, to further reduce impacts to 

marine mammals: (1) all vessels 

associated with the proposed 

construction should be required to carry 

and use PSOs at all times when under 

way; and (2) limit all vessels, regardless 

of size, to speeds less than 10 knots (kn) 

at all times with no exceptions allowed. 

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 or less 

and must follow a scientific study 

design. One commenter further 

suggested 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. Identical or similar 

vessel mitigation measures were 

suggested by others. 

Response: Dominion Energy is 

required to abide by a suite of vessel 

strike avoidance measures that include, 

for example, seasonal and dynamic 

vessel speed restrictions to 10 kn (18.5 

km/hour) or less; required use of 

dedicated observers (i.e., visual PSOs 

during construction activities or trained 

lookouts during vessel transit) on all 

transiting vessels; and a requirement to 

maintain awareness of North Atlantic 

right whale presence and occurrence 

through monitoring of North Atlantic 

right whale sighting systems (i.e., 

RWSAS, U.S. Coast Guard Channel 16, 

the establishment of any Dynamic 

Management Areas (DMAs)). 

Additionally, as included in the 

proposed rule and required in this final 

rule, Dominion Energy is required to 

submit a North Atlantic Right Whale 

Vessel Strike Avoidance Plan to NMFS 

for review and approval (see 

§ 217.294(b)(16)). While a year-round 

10-kn requirement could potentially 

fractionally reduce the already 

discountable probability of a vessel 

strike, this theoretical reduction is not 

expected to manifest in measurable realworld differences in impact. Further, 

additional limitations on speed have 

significant practicability impacts on 

applicants, in that, given the distance of 

CVOW–C’s Lease Area offshore of 

Virginia, vessels trips to and from shore 

would significantly increase in duration 

to the extent that delays to the project 

and planned construction schedule 

would be likely to occur resulting in 

impracticable economic and resource 

(e.g., vessel availability) constraints. 

Additionally, requiring a PSO on all 

transiting vessels (in lieu of trained 

crew members) also contribute to 

unnecessary and impracticable 

economic and resources issues (as space 

on vessels is limited), which could also 

extend the number of days necessary to 

complete all pile driving of foundations. 

While NMFS is requiring a dedicated 

observer to be aboard all transiting 

vessels, we find a dedicated trained 

crew member is sufficient to observe for 

marine mammals, particularly large 

whales, to further reduce risk of vessel 

strike. Furthermore, Dominion Energy 

has committed to the use of PAM within 

the vessel transit corridor to further aid 

in the detection of marine mammals. 

NMFS has determined that these and 

other included measures ensure the 

least practicable adverse impact on 

species or stocks and their habitat. 

Therefore, we are not requiring projectrelated vessels to travel 10 kn or less at 

all times. 

Regarding an ‘‘Adaptive Plan’’, the 

proposed rule and this final rule contain 

adaptive management provisions that 

allows NMFS to modify mitigation, 

monitoring, or reporting measures if 

doing so creates a reasonable likelihood 

of more effectively accomplishing the 

goal(s) of the measure (see § 217.297(c)). 

Dominion Energy may also request 

modifications to the mitigation and 

monitoring measures (see § 217.297(a)– 

(b)). Therefore, NMFS disagrees that an 

Adaptive Plan is necessary to affect the 

least practicable adverse impact on 

marine mammals. 

Comment 10: Commenters 

recommended that NMFS require 


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Dominion Energy to implement the best, 

commercially available combined NAS 

technology to achieve the greatest level 

of noise reduction and attenuation 

possible for pile driving, with a specific 

recommendation that NMFS require, at 

a minimum, a 10-dB reduction in SEL. 

The 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. 

Response: NMFS agrees with the 

suggestion made by the commenters that 

underwater noise levels should be 

reduced to the greatest degree 

practicable to reduce impacts on marine 

mammals. 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 realworld noise levels produced by impact 

pile driving of foundation installation 

to, at a minimum, the levels modeled 

assuming 10-dB reduction, as analyzed 

in this rulemaking. Preliminary sound 

measurements from South Fork Wind 

indicate that with multiple NAS 

systems, measured sound levels during 

impact driving foundation piles using a 

4,000 kilojoules (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 Dominion 

Energy reduce sound levels to at or 

below 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 

below those modeled assuming a 10-dB 

reduction. 

In addition to the SFV requirements 

in the proposed rule, we added to this 

final rule the requirement that 

Dominion Energy must conduct 

abbreviated SFV monitoring (consisting 

of a single acoustic recorder placed at an 

appropriate distance from the pile) on 

all foundation installations for which 

the complete SFV monitoring, as 

required in the proposed rule, is not 

carried out consistent with the 

Biological Opinion. NMFS is requiring 

that these SFV results must be included 

in the weekly reports. Any indications 

that distances to the identified Level A 

harassment and Level B harassment 

thresholds for whales must be addressed 

by Dominion Energy, including an 

explanation of factors that contributed 

to the exceedance and corrective actions 

that were taken to avoid exceedance on 

subsequent piles. 

Comment 11: Commenters 

recommended that, for HRG surveys, 

NMFS require the use of PAM and 

include a 1,000-m (0.62-mi) acoustic 

clearance zone for North Atlantic right 

whales and also increase the visual 

clearance zone to 1,000 m for right 

whales. Another commenter 

recommended that NMFS increase the 

size of the visual clearance and 

shutdown zones during HRG surveys to 

500 m (0.31 mi) for all other large 

whales. They also suggested that HRG 

surveys should be halted or shut down 

if North Atlantic right whales or other 

large whales are acoustically detected. 

One commenter who also supported 

PAM during HRG surveys, stated that 

the real-time PAM system should be 

capable of detecting protected species at 

least 10,000 m (6.2 mi) and would be 

undertaken by a vessel other than the 

pile driving vessel or from a stationary 

unit to avoid masking effects of the 

hydrophone. The commenter also 

suggested that PAM be used during all 

impact pile driving, during vibratory 

pile driving of the cofferdams, and 

during HRG surveys. 

Response: NMFS disagrees PAM is 

necessary during HRG surveys. While 

NMFS agrees that PAM can be an 

important tool for augmenting detection 

capabilities in certain circumstances, its 

utility in further reducing impacts 

during HRG survey activities is limited. 

First, it is generally accepted that, even 

in the absence of additional acoustic 

sources, using a towed passive acoustic 

sensor to detect baleen whales 

(including North Atlantic right whales) 

is not typically effective because 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 Hertz (Hz) 

frequency range. Source levels range 

from about 140 to 195 decibel (dB) re 1 

mPa (micropascal) 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 

participating in a recent workshop 

(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 

workshop 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). 

Second, for HRG surveys, the area 

expected to be ensonified above the 

Level B harassment threshold is 

relatively small (a maximum of 100 m 

via the GeoMarine Dual 400 Sparker at 

800 joules); this reflects the fact that the 

source level is comparatively low and 

the intensity of any resulting impacts 

would be lower level. Further, the small 

harassment zone (and 500 m clearance 

and shutdown zones) are likely to be 

effectively monitored via visual means 

and PAM will only detect a portion of 

any animals exposed within these small 

zones. Together these factors support 

the limited value of PAM for use in 

reducing take with smaller zones. 

NMFS also disagrees that the zones 

for North Atlantic right whales and 

other large whales should be expanded. 

As described in the proposed and final 

rules, the required 500-m clearance zone 

for North Atlantic right whales exceeds 

the modeled distance to the largest 160- 

dB Level B harassment isopleth (100 m 

(0.06 mi) during sparker use) by a large 

margin, minimizing the likelihood that 

they will be harassed in any manner by 

this activity. The 500-m distance is five 

times the estimated isopleth for the 

largest 160-dB Level B harassment 

threshold and we do not see a need to 

increase this further. Further, the 

commenters do not provide scientific 

information for NMFS to consider to 

support their recommendation to 

expand the clearance zone. As such, 

NMFS recognizes that requiring zones 

beyond those that meet the least 

practicable adverse impact standard 

could delay the project such that 

construction activities are extended to 


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the point that it is actually less 

beneficial for the species. Given that 

these surveys are relatively low impact, 

and that NMFS has prescribed a 

precautionary North Atlantic right 

whale clearance zone that is larger (500 

m) than the largest estimated 

harassment zone (100 m), NMFS has 

determined that an increase in the size 

of the clearance and shutdown zones for 

North Atlantic right whales to 1,000 m 

is not warranted or practicable and the 

commenter does not provide new 

information supporting this comment. 

Similarly, increasing the size of the 

clearance and shutdown zones for other 

large whales to 500 m during HRG 

surveys is also not warranted or 

practicable and the commenter does not 

provide new information supporting 

this comment. 

Regarding the use of PAM during 

cable landfall construction, although 

distances above the Level B harassment 

threshold are larger than for HRG 

surveys (3,100 m for temporary 

cofferdams and 1,450 m for temporary 

goal posts), the effects are not expected 

to rise to the level that would constitute 

Level A harassment (injurious take). 

Noise generated during cable landfall 

construction is of relatively short 

duration, low level, and in nearshore 

waters (which tend to be calmer than 

offshore) where PSO monitoring will be 

sufficient for detecting marine mammals 

to implement mitigation that effects the 

least practicable adverse impact on 

marine mammals. Similar to HRG 

surveys, given that the effects to marine 

mammals from cable landfall 

construction are expected to be limited 

to low level behavioral harassment 

(Level B harassment) even in the 

absence of mitigation (i.e., no Level A 

harassment is expected or authorized), 

the limited additional benefit 

anticipated by adding this detection 

method for the short term cable landfall 

pile driving is not warranted or 

necessary to ensure the least practicable 

adverse impact on the affected species 

or stocks and their habitat. 

Regarding the use of passive acoustic 

monitoring to implement the clearance 

and shutdown zones during foundation 

installation, 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. In 

this final rule, Tables 25 and 26 clearly 

specify this 10-km PAM monitoring 

zone. Dominion Energy is required to 

submit a PAM Plan to NMFS for 

approval at least 180 days prior to the 

planned foundation 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. 

As described in the Mitigation 

section, NMFS has determined that the 

prescribed mitigation requirements are 

sufficient to effect the least practicable 

adverse impact on all affected species or 

stocks. 

Comment 12: The Commission 

suggested that NMFS’ proposed 

minimum visibility zone (2 km) during 

foundation pile driving is insufficient 

given that the Level A harassment zone 

for impact pile driving ranges from 3.2 

to 5.7 km and that the Level B 

harassment zones range from 5.5 to 6.2 

km for North Atlantic right whales. 

Response: NMFS appreciates the 

suggestion by the Commission but does 

not agree that an increase of the 

minimum visibility zone is warranted. 

When modeling the PTS threshold zone 

sizes, Tetra Tech produced acoustic 

ranges (R95%). Acoustic ranges represent 

the distance to a harassment threshold 

based on sound propagation through the 

environment independent of any 

receiver. That is, the R95% values 

represent the distance at which an 

animal would have to remain from a 

pile for the entire duration of exposure 

within a 24 hours period (in this case up 

to 2 monopiles per day or 2 pin piles 

per day). This assumption is unrealistic 

as we anticipate animals will move 

away from the source upon exposure as 

the area is primarily a North Atlantic 

right whale migration corridor and we 

do not anticipate whales to remain in 

the area for extended periods of time 

throughout the days. Further, the 

acoustic ranges are conservative in that 

they 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 also 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 

are typically excluded from the model 

data. The resulting range, R95%, is then 

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. R95% excludes ends of 

protruding areas or small isolated 

acoustic foci not representative of the 

nominal ensonified zone. Finally, pile 

driving would occur during times when 

North Atlantic right whales are least 

likely to be in the Project Area. Creating 

a large minimum visibility distance 

despite the rarity of whales would 

unnecessarily delay the project such 

that work would be extended; thereby 

increasing the timeframe over which 

marine mammals may be exposed to 

construction activities. 

For these reasons, NMFS does not 

believe it necessary to increase this zone 

size. Furthermore, even with the larger 

acoustic ranges produced from the 

conservative modeling, the minimum 

visibility zone does not differ greatly 

from those presented for other nearby 

projects which calculated distances to 

thresholds in consideration of animal 

movement (off of New Jersey, final 

Ocean Wind 1–1.65 km in the summer 

and 2.5 km in the winter; proposed 

Atlantic Shores South—1.9 km). 

Comment 13: A commenter 

questioned why there was a depth 

restriction in Dominion Energy’s 

Protected Species Mitigation and 

Monitoring Plan (PSMMP) when vessel 

speeds apply and recommended 

additional vessel restrictions regarding 

10 kn or less within specific areas to 

reduce the risk of vessel strike on 

cetaceans. 

Response: NMFS did not restrict any 

of the vessel speed measures to apply at 

specific depths; instead the measures 

are designed to apply to any and all 

vessel usage by Dominion Energy. 

Dominion Energy’s project vessels 

would be restricted to 10 kn or less in 

certain circumstances, which include 

and in cases, go beyond existing vessel 

speed regulations. NMFS has included 

several measures in both the proposed 

and final rules that are sufficient to 

reasonably avoid vessel strike (see 

response to Comment 9 above for 

additional information). NMFS 

disagrees with the commenter that 

additional measures are necessary to 

avoid vessel strike. 

Comment 14: A commenter suggested 

the NMFS should require Dominion to 

deploy additional noise attenuation 

technologies that, together with the 

double bubble curtain, reach a 15- 


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decibel (dB) reduction or greater in 

sound exposure level (‘‘SEL’’). 

Response: NMFS acknowledges that 

underwater noise levels should be 

reduced to the greatest degree 

practicable to reduce impacts on marine 

mammals. As described in both the 

proposed and final rules, NMFS has 

included requirements for sound noise 

attenuation methods that successfully 

reduce foundation installation noise 

levels to, at a minimum, the levels 

modeled assuming 10-dB reduction. 

While NMFS is requiring that Dominion 

Energy reduce sound levels to equal or 

be below the model outputs analyzed 

(assuming a reduction of 10 dB), we are 

not assuming 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. Preliminary 

sound measurements from South Fork 

Wind indicate that with multiple NAS 

systems, measured sound levels during 

impact driving foundation piles using a 

4,000-kJ hammer are at or 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. 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, insitu SFV measurements will be required 

to confirm that sound levels are at or 

below those modeled assuming a 10-dB 

reduction. To further clarify, Dominion 

Energy must achieve an activity’s 

modeled sound reduction during 

foundation installation. If the modeled 

sound reduction is not achieved, 

additional measures are required to 

reduce those noise levels. 

Comment 15: A commenter expresses 

concern that NMFS’ enhanced measures 

for North Atlantic right whales are not 

broadly applied to other ESA-listed 

large whale species. They also 

expressed concern over the Potential 

Biological Removal (PBR) for each stock 

not being assessed cumulatively based 

on the take authorized for CVOW–C and 

other threats to large whales. 

Response: The commenter 

inappropriately conflates Level A 

harassment (e.g., auditory injury, PTS) 

and Level B harassment (i.e., behavioral 

disturbance) with mortality and serious 

injury through their reference to PBR 

levels. A stock’s PBR level is ‘‘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.’’ PBR is not an appropriate 

metric to evaluate the take allowed 

under the CVOW regulations in the 

manner suggested by the commenter, 

which is take by Level A harassment or 

Level B harassment, not mortality or 

serious injury (i.e., removals from the 

population). NMFS has described and 

used an analytical framework that is 

appropriate. We consider levels of 

ongoing anthropogenic mortality from 

other sources, such as commercial 

fisheries, in relation to calculated PBR 

levels as part of the environmental 

baseline in our negligible impact 

analysis. 

Regarding cumulative impacts, NMFS 

refers the commenter to the response 

found in Comment 28 as the same 

information applies here. Furthermore, 

while the commenter is correct that 

enhanced mitigation and monitoring 

measures are required for North Atlantic 

right whales specifically, given their 

unique and precarious position, and 

that some of these measures will have 

beneficial effects on other species as 

well. For example, while PAM 

detections of a North Atlantic right 

whale, at any distance, would 

necessitate a shutdown/delay to any 

specified activity, we expect that other 

low-frequency specialists will benefit 

from the use of PAM (i.e., detections) as 

these will provide additional awareness 

to complement PSOs on visual 

observation. While we do acknowledge 

that the ‘‘at any distance’’ provision is 

not a blanket requirement across all 

species, we believe that the additional 

awareness provided by PAM, in 

addition to the conservative zone sizes 

will also reduce negative impacts to 

these other species. Requiring 

shutdowns/delays ‘‘at any distance’’ for 

all large whale species, regardless of 

status, could potentially extend the 

duration project activities would be 

necessary, as more frequent shutdowns/ 

delays would otherwise be needed. 

There are offsetting benefits to 

completing the project activities 

(specifically foundation installation) in 

a shorter amount of time, as extending 

these construction periods due to more 

frequent shutdowns runs the risk of 

extending activities into months where 

species densities are higher in the 

Project Area. 

Comment 16: A commenter 

recommended that NMFS work more to 

encourage the use of gravity-based and 

suction bucket foundations rather than 

piled foundations, as these foundations 

have demonstrated a potential for 

reduced impacts to marine mammals 

while providing potentially more 

flexibility to developers. They further 

suggested that, if this isn’t possible for 

CVOW–C or other future projects, which 

NMFS works with BOEM to encourage 

measures that could lead to greater 

levels of noise reduction during pile 

driving. 

Response: NMFS agrees that there are 

sound minimization benefits to marine 

mammals when using non-pile driven 

foundations, such as the results shown 

in recent publications (e.g., Potlock et 

al., 2023). However, it is not within 

NMFS’ authority to determine the 

applicant’s specified activities. 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 relevant, 

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 mammals 

from all of the specified activities 

combined will have a negligible impact 

on all affected marine mammal species 

or stocks. 

NMFS continually supports efforts to 

reduce ocean noise across various 

industries, including OSW. For 

example, NOAA’s Ocean Noise Strategy 

(https://oceannoise.noaa.gov/) 

articulates the agency’s vision for 

addressing ocean noise impacts to 

marine species, and NMFS supports 

BOEM’s Recommendations for Offshore 

Wind Project Pile Driving Sound 

Exposure Modeling and Sound Field 

Measurement document and BOEM’s 

Nationwide Recommendations for 

Impact Pile Driving Sound Exposure 

Modeling and Sound Field 

Measurement for Offshore Wind 

Construction and Operations Plans 

(https://www.boem.gov/sites/default/

files/documents/renewable-energy/

state-activities/FINAL%20Nationwide

%20Recommendations%20for

%20Impact%20Pile%20Driving

%20Sound%20Exposure%20Modeling

%20and%20Sound%20Field

%20Measurement%20%28Acoustic

%20Modeling%20Guidance%29.pdf). 

NMFS and BOEM also are jointly 

working on the North Atlantic Right 

Whale and Offshore Wind Strategy 

(https://www.noaa.gov/news-release/

noaa-and-boem-announce-draftoffshore-wind-north-atlantic-rightwhale-strategy). All of these documents 

encourage reducing ocean noise, 


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including BOEM’s establishment of 

quieting performance standards for 

OSW and conducting some level of 

SFVs on every pile installed, which 

NMFS has provided feedback on and 

supports. Finally, NMFS is collaborating 

with BOEM and the Department of 

Energy (DOE) on a recent funding notice 

focused on installation noise reduction 

and reliable moorings for offshore wind 

and marine energy (found here at: 

https://www.energy.gov/eere/wind/

articles/funding-notice-installationnoise-reduction-and-reliable-mooringsoffshore-wind?utm_

medium=email&utm_source=

govdelivery). 

Comment 17: The commenters 

recommend that NMFS prohibit site 

assessment and site characterization 

activities during times of highest risk to 

North Atlantic right whales, using the 

best available science to define high-risk 

timeframes. In addition, the commenters 

suggest that NMFS should develop a 

real-time mitigation and monitoring 

protocol to dynamically manage the 

timing of site assessment and 

characterization activities to ensure 

those activities are undertaken during 

times of lowest risk for all relevant large 

whale species. 

Response: As discussed in Comment 

9, given the required vessel strike 

avoidance mitigation measures and 

small Level A harassment and Level B 

harassment isopleths for HRG surveys 

(54.2 m and 100 m, respectively), no 

Level A harassment, serious injury, or 

mortality is anticipated or authorized 

for this activity for any species, and the 

comparatively limited number of 

authorized takes by Level B harassment 

is expected to result in low-level 

impacts. The largest modeled Level B 

harassment zone size for the GeoMarine 

Dual 400 sparker (100 m) is already 

much smaller than the required 

separation and shutdown distances for 

North Atlantic right whale (500 m) and 

any unidentified large whale that would 

be treated as if it were a North Atlantic 

right whale. Furthermore, the proposed 

rule and this final rule include a 

framework of mitigation and monitoring 

measures designed to effect the least 

practicable adverse impact on marine 

mammals (see 50 CFR 217.294(e), 

217.295). Therefore, NMFS disagrees 

there is a need to prohibit such surveys 

during ‘‘high-risk timeframes’’ and 

develop a dynamic management system. 

Comment 18: One commenter 

recommended that all vessels 

responsible for crew transport (i.e., 

service operating vessels) should use 

automated thermal detection systems to 

assist monitoring efforts while vessels 

are in transit. 

Response: NMFS is requiring that all 

vessels, when transiting, must utilize 

trained, dedicated observers and, in the 

case of reduced visibility, use alternate 

technology to maintain visual 

monitoring, which may include infrared 

technologies (a type of thermal 

detection system). Dominion Energy is 

required to submit a Vessel Strike 

Avoidance Plan which will describe the 

type of technologies they propose to use 

to monitor for marine mammals. NMFS 

will evaluate that plan and determine if 

different or additional technology is 

required. 

Comment 19: The commenter asserted 

that to minimize the impacts of 

underwater noise from HRG surveys to 

the fullest extent feasible, project 

proponents should select and operate 

sub-bottom profiling systems at power 

settings that achieve the lowest 

practicable source level for the 

objective. 

Response: NMFS agrees with the 

suggestion made by the commenters that 

underwater noise levels should be 

reduced to the greatest degree 

practicable to reduce impacts on marine 

mammals. NMFS also agrees with the 

suggestion that Dominion Energy should 

utilize its HRG acoustic sources at the 

lowest practicable source level to meet 

the survey objective and has 

incorporated this requirement into the 

final rule (see § 217.294(e)(4)). 

Comment 20: A commenter suggested 

that NMFS require: (1) at least 15 dB of 

sound attenuation from pile driving, 

with a minimum of 10 dB to be 

required; (2) field measurements be 

conducted on the first pile installed and 

the data must be collected from a 

random sample of piles through the 

construction period, although the 

commenter specifically notes that they 

do not support field testing of 

unmitigated piles; and (3) that all sound 

source validation reports of field 

measurements be evaluated by both 

NMFS and BOEM prior to additional 

piles being installed and that these 

reports be made publicly available. 

Another commenter has suggested that 

NMFS strengthen its requirement to 

maximize the level of noise reduction 

possible for the CVOW–C Project, 

utilizing 10 dB as the minimum only 

but meeting upwards of 20 dB of noise 

reduction. To support their assertion, 

they cited datasets by Bellmann et al. 

(2020 and 2022). They also 

recommended that NMFS require the 

‘‘best commercially available combined 

NAS technology’’ to achieve noise 

reduction and attenuation. 

Response: NMFS acknowledges that 

previous measurements (see Bellmann, 

2019; Bellmann et al., 2020) indicate 

that the deployment of double big 

bubble curtains should result in noise 

reductions beyond the assumed 10 dB. 

However, when sound field 

verifications (SFV) measurements are 

conducted during construction, several 

factors come into play in determining 

how well modeled levels/isopleths 

correspond to those measured in the 

field, such as the level at the source, 

how well the noise travels in the 

environment, and the effectiveness of 

the deployed NAS across a broad range 

of frequencies. For these reasons, NMFS 

conservatively assumes only a 10-dB 

noise reduction. Furthermore, if SFV 

measurements consistently demonstrate 

that distances to harassment thresholds 

are less than those modeled assuming 

10 dB attenuation, adjustments in 

monitoring and mitigation can be made 

by NMFS, upon request by Dominion 

Energy. We reiterate that there is no 

requirement to achieve 10-dB 

attenuation as no unattenuated piles 

would be driven; therefore, it is not 

possible to collect the data necessary to 

enforce this requirement. However, as 

described in Comments 10 and 14, we 

are requiring the developer to meet the 

noise levels modeled, assuming 10-dB 

attenuation. NMFS is also actively 

engaged with other agencies and 

offshore wind developers on furthering 

quieting technologies. 

It is important to note that the 

assumed 10-dB reduction is not a limit, 

it is a conservative estimate of the likely 

achievable noise reduction, which along 

with all other modeling assumptions, 

allows for estimation of marine mammal 

impacts and informs monitoring and 

mitigation. However, we have 

incorporated requirements to add or 

modify NAS in the event that noise 

levels exceed those modeled. 

NMFS notes that Dominion Energy 

must conduct SFV on three monopiles 

and on all OSS foundations (n=12 pin 

piles total) and, at this time, NMFS does 

not support unmitigated field testing for 

pile installation. If SFV 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), Dominion Energy may 

request a modification of the clearance 

and shutdown zones for foundation pile 

driving of monopiles. If requested and 

upon receipt of an interim SFV report, 

NMFS may adjust zones (i.e., Level A 

harassment, Level B harassment, 

clearance, shutdown, and/or minimum 

visibility zone) to reflect SFV 

measurements. As part of the updates to 

the final rule, NMFS also requires 

maintenance checks and testing of NAS 


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systems before each use to ensure the 

NAS is usable and the system is able to 

achieve the modeled reduction, this 

information would be required to be 

reported to NMFS within 72 hours of an 

installation but before the next 

installation occurs. 

Lastly, NMFS agrees that SFV reports 

(sound source validation reports) to 

NMFS should be required and evaluated 

by the agencies prior to further work 

commencing. NMFS agrees that the final 

SFV reports that have undergone quality 

assurance/quality control (QA/QC) by 

the agencies and include all of the 

required information to support full 

understanding of the results will be 

made publicly available; however, 

interim results without full review and 

all of the other supporting information 

are not ripe or appropriate for public 

availability. 

Comment 21: A commenter stated that 

the seasonal restriction put into place 

for foundation pile driving for North 

Atlantic right whales should be assessed 

with regards to other marine mammal 

species, such as humpback whales, 

which may be present in higher 

numbers in the summer. They further 

suggested that additional protective 

approaches are needed for other species 

that may be present, such as the use of 

a real-time monitoring and mitigation 

system. Other commenters suggested 

dynamic management of activity 

temporal restrictions during project 

construction based on near real-time 

monitoring. 

Response: 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 Virginia during summer 

months. For example, humpback 

whales, based on the Duke University 

density models (Roberts et al., 2023), 

have higher occurrences in the late 

winter/early spring period (January 

through April) and reach their highest 

numbers within May and/or June. 

Subsequent declines in densities are 

noted after peak summer. Fin whales 

demonstrate a fairly year-round 

presence off of Virginia, with the 

highest densities occurring from 

November through May. We note that 

the highest densities are located in more 

offshore waters than the CVOW–C 

Project would be located and generally 

more northern in distribution. Harbor 

porpoises are primarily located off of 

Virginia from November through April, 

per Roberts et al. (2023). These 

durations almost all fall within the large 

seasonal restriction required by NMFS 

(November through April), which would 

reduce much of the impact to animals 

transiting through the area. 

Furthermore, Dominion Energy’s 

analysis and take numbers were run 

assuming average seasonal densities, 

which may be slightly higher given 

increased densities when averaged with 

lower ones. Given that we expect 

marine mammals to actively be 

transiting through the area, rather than 

residing, impacts should be further 

lessened. While we acknowledge that 

some whales, such as the North Atlantic 

right whale, are acoustically detected 

year-round off of Virginia (Salisbury et 

al., 2015), no scientific information or 

data supports the offshore Virginia 

waters as a Biologically Important Area 

for any other protected marine mammal 

species (besides the North Atlantic right 

whale migratory corridor). However, 

this is not to say that these species do 

not occur in these waters, but simply 

that the Virginia offshore waters are not 

primary habitat for essential life 

functions, such as foraging or calving, 

for other protected species. Instead, 

marine mammals primarily utilize these 

waters to transit to or from a more 

viable/important habitat. 

Lastly, NMFS agrees that a near realtime monitoring system and protocols 

for North Atlantic right whales and 

other large whale species is a prudent 

and practicable measure and, as such, 

included real-time PSO monitoring and 

near real-time PAM (where practicable 

and effective (i.e., foundation pile 

driving) in the proposed rule and the 

final rule (see Comments 21 and 22). 

Monitoring will inform whether other 

mitigation measures, such as delaying or 

shutting down a source, are triggered. 

Monitoring, Reporting, and Adaptive 

Management 

Comment 22: Commenters 

recommended that NMFS require realtime notifications of project activities 

(e.g., HRG surveys, pile driving, etc.) 

and immediate notifications of any 

strandings or sightings of North Atlantic 

right whales or other protected species. 

Commenters also recommended NMFS 

make reports publicly available. 

Response: The commenter did not 

identify why real-time notification to 

NMFS regarding project activities is 

necessary and NMFS does not agree this 

is necessary or practicable. Dominion 

Energy is required to submit weekly 

reports to NMFS during foundation 

installation, which includes project 

activities. It is not necessary for NMFS 

to track, in real-time, project activities. 

NMFS agrees with the commenter that 

North Atlantic right whale reporting 

should be done in a timely manner. The 

proposed and final rule each contain 

situational reporting requirements for 

every North Atlantic right whale 

sighting or acoustic detection 

immediately but also recognizes the 

potential for immediate communication 

to be challenging. In both of the 

proposed and final rules, NMFS has 

included a requirement that if a North 

Atlantic right whale is observed at any 

time by PSOs or project personnel, 

Dominion Energy 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, the U.S. Coast Guard, and the 

Right Whale Sightings Advisory System 

(RWSAS). This includes stranded 

animals. If the North Atlantic right 

whale is stranded, 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. 

Any acoustic detection of a North 

Atlantic right whale would be reported 

to NMFS as soon as possible, 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-reporting-systemtemplates). 

PSOs and PAM operators are required 

to follow strict reporting requirements 

(i.e., weekly and monthly (during 

foundation installation), and annually 

and situationally (all activities)) to 

document the sighting, behavior, 

species, etc. NMFS does not consider 

real-time reporting necessary, nor have 

we required it. ‘‘Real-time’’ reporting 

constitutes immediate or instantaneous 

notifications at the time of the sighting 

or observation. Instead, NMFS does, in 

the Monitoring and Reporting section, 

require ‘‘near real-time’’, which allows 

the notification to happen in a timely 

manner but after a reasonable delay 

when on the water. Weekly and 

monthly reports would be required for 

the duration of foundation installation. 

The final rule requires annual reports on 

sightings, activities, and take resulting 

from the project, and a 5-year report on 

all visual and acoustic monitoring. 

Situational reporting is required for any 

event that might need more direct 

NMFS-intervention (such as an adaptive 


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management need), due to the sighting 

of a large whale species, or an 

unexpected marine mammal interaction 

occurred or was detected. We also note 

that the commenter does not provide 

justification regarding what actions 

NMFS would be expected to undertake 

for real-time reporting, or why that 

would be necessary. In the event of 

sighting a dead or injured marine 

mammal, NMFS has included specific 

situational reporting requirements that 

would need to be undertaken as soon as 

feasible but within 24 hours. This 

feasibility requirement is necessary as 

there are many different situations that 

could occur on the water that could 

reduce communication potential, so 

NMFS allows the developer some time 

to maintain or recover communication if 

necessary. Because of this, NMFS does 

not see any issues with its requirements 

for situational reporting and feasibility 

and has opted not to change anything 

herein. The only circumstance wherein 

immediate reporting is required is in the 

unforeseen instance that a Project vessel 

strikes a marine mammal. The nonauditory injury or death of a marine 

mammal caused by vessel strike must be 

immediately reported to NMFS, and 

Dominion Energy 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. All final reports submitted to 

NMFS will be included on the website 

for availability to the public. 

Comment 23: The commenter 

expressed concern regarding the PAM 

details and protocol as there is some 

variation on the ‘‘target’’ frequencies 

detectable based on the type of 

equipment chosen. The commenter 

stated that because of this ambiguity, ‘‘it 

is not possible to assess what the 

detection capabilities will be based on 

the information.’’ 

The commenter suggested that the use 

of a PAM system with localization 

capabilities, if available, should provide 

sufficient information regarding 

presence within the clearance/ 

shutdown zone, but also recommended 

the use of other technologies (e.g., semiautomated infrared systems, drones) to 

aid in marine mammal observation. 

Response: As described in the 

proposed rule (88 FR 28656, May 4, 

2023), Dominion Energy is required to 

submit a detailed PAM Plan to NMFS 

for approval that describes the PAM 

system(s) proposed for use. While the 

systems are not yet finalized (hence the 

variability noted by the commenter), 

NMFS has established criteria in the 

proposed and final rules (e.g., the 

system must be capable of detecting 

baleen whales out to 10 km from the 

pile being installed). NMFS will 

evaluate if the bandwidth capabilities of 

the PAM system proposed meet these 

criteria. Furthermore, our Adaptive 

Management provision within the final 

rule allows us to adapt to new 

technology and information, which 

allows us, in discussions with 

Dominion Energy, to modify the PAM 

monitoring, as determined to be 

applicable. 

NMFS disagrees that PAM alone 

should be used to monitor marine 

mammals and is requiring both visual 

and acoustic monitoring for specific 

specified activities. As described in the 

proposed rule, NMFS requires that 

Dominion Energy employ both visual 

and PAM methods as both approaches 

aid and complement each other (Van 

Parijs et al., 2021). NMFS has also 

considered the use of semi-automated 

infrared systems to support visual 

monitoring. While Dominion Energy is 

free to propose using such systems, we 

are not requiring Dominion Energy to 

use such systems at this time (see 

Comment 23). Similar to the PAM Plan, 

NMFS requires Dominion Energy to 

submit, for approval, a Pile Driving 

Monitoring Plan that meets the criteria 

required in this final rule (e.g., visually 

observe for marine mammals to select 

distances). Similar to PAM, the 

Adaptive Management provision in the 

final rule allows for technological 

developments in monitoring or 

mitigation to be implemented, in 

coordination with Dominion Energy. 

Comment 24: Commenter suggested 

that NMFS require tracking and 

monitoring for ‘‘unusual patterns’’ in 

protected species strandings specifically 

related to HRG surveys and other 

construction activities. 

Response: As NMFS has explained in 

the proposed rule and in this final rule, 

strandings (e.g., mortality) are not an 

anticipated outcome of the specified 

activities, including HRG surveys, and 

there is no evidence to suggest 

otherwise. Further, marine mammal 

strandings are fully tracked and 

monitored via NMFS’ Marine Mammal 

Health and Stranding Response Program 

(https://www.fisheries.noaa.gov/ 

national/marine-life-distress/marinemammal-health-and-strandingresponse-program). As such, NMFS 

disagrees that Dominion Energy should 

be required to track strandings. 

Comment 25: A commenter requested 

NMFS define the frequency at which we 

would review any new information for 

modifications to the LOA via the 

Adaptive Management provision. A 

commenter recommended this occur 

once a quarter, while allowing for a 

mechanism to undertake review and 

adaptive management on an ad hoc 

basis if a serious issue is identified (e.g., 

if unauthorized takes by Level A 

harassment are reported or if serious 

injury or mortality occurs). They have 

also recommended that NMFS 

incorporate review by independent 

subject-matter experts to increase 

transparency, to provide an opportunity 

to share information, and to allow for 

the input of additional scientific 

expertise. 

Response: We disagree that the 

frequency at which information is 

reviewed should be defined in the 

Adaptive Management provision. The 

purpose of the Adaptive Management is 

to allow for the incorporation of new 

information as it becomes available, 

which could mean advancements and 

new information becomes available 

quickly (i.e., days or weeks) that would 

necessitate NMFS to consider adapting 

the issued LOA, or over long periods of 

time as robust and conclusive 

information becomes available (i.e., 

months or years). NMFS will be 

reviewing interim reports as they are 

submitted; hence, the quarterly review, 

as suggested by the commenter, is not 

necessary. NMFS retains the ability to 

make decisions as information becomes 

available, and after discussions with 

Dominion Energy about feasibility and 

practicability. 

Regarding the suggestion for ad hoc 

changes in the event that additional take 

by Level A harassment or take via 

serious injury/mortality of a marine 

mammal occurs, we do not agree with 

the suggestion by the commenter. NMFS 

has included two relevant provisions in 

its final rule that state that ‘‘[t]ake by 

mortality or serious injury of any marine 

mammal species is not authorized’’ and 

that ‘‘it is unlawful for any person to 

. . . take any marine mammal specified 

in the LOA in any manner other than as 

specified in the LOA.’’ We refer the 

commenter to the ‘‘Prohibitions’’ 

portion of the regulatory text (see 

§ 217.293). In the event Dominion 

Energy’s project takes any marine 

mammals in a manner that has not been 

authorized in the final rule (see 

§ 217.293) these would be in violation of 

the MMPA and regulations and NMFS 

would undertake appropriate actions, as 

determined to be necessary (see 16 

U.S.C. 1371(a)(5)(B)). 

Lastly, regarding independent review, 

NMFS disagrees that such reviews 

should be incorporated into the 

adaptive management process. The 

MMPA and its implementing 

regulations require that incidental take 


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regulations be established based on the 

best available information and the 

MMPA does not proscribe use of 

independent, subject matter expert 

review of NMFS’ determinations outside 

of the public comment process. 

Comment 26: Commenters stated that 

the regulations must include a 

requirement for all phases of the 

CVOW–C 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 § 217.295(g)(13), (15)(i)–(v) of 

the regulations for more information on 

situational reporting. NMFS requires 

North Atlantic right whale sightings to 

be reported immediately (if not feasible, 

as soon as possible and no longer than 

24 hours after the sighting). Similarly, if 

a North Atlantic right whale is 

acoustically detected at any time by a 

project-related PAM system, Dominion 

Energy must report the detection as 

soon as possible to NMFS, but no longer 

than 24 hours after the detection. 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-acousticcetacean-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 

refer the commenters to § 217.295(g) for 

more information on reporting 

requirements in the regulations. 

Effects Assessment 

Comment 27: Commenters stated that 

NMFS must use the more recent and 

best available science, including 

population estimates, in evaluating 

impacts to North Atlantic right whales, 

given its critically endangered status. 

This includes using updated population 

estimates, recent habitat usage patterns 

for the project area, and a revised 

discussion of the acute, chronic, and 

cumulative stress on North Atlantic 

right whales in the region. 

Response: NMFS has used the best 

available science in its analysis. Since 

issuance of the proposed rule, NMFS 

has finalized the 2022 Stock Assessment 

Report (SAR) indicating the North 

Atlantic right whale population 

abundance is estimated as 338 

individuals (confidence interval: 325– 

350; 88 FR 4162, January 24, 2023). 

NMFS has used this most recent best 

available 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 draft and final 2022 

Stock Assessment Reports (https://www.

fisheries.noaa.gov/national/marinemammal-protection/marine-mammalstock-assessment reports) and provides 

the most recent and best available 

estimate, including improvements to 

NMFS’ right whale abundance model. 

More recently, in October 2023, NMFS 

released a technical report identifying 

that the North Atlantic right whale 

population size based on sighting 

history through 2022 was 356 whales, 

with a 95 percent credible interval 

ranging from 346 to 363 (Linden, 2023). 

NMFS conservatively relies on the 

lower SAR abundance estimate in this 

final rule. The finalization of the draft 

to final 2022 SAR did 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 Dominion 

Energy’s construction activities. 

NMFS cannot require applicants to 

utilize specific models for the purposes 

of estimating take incidental to offshore 

wind construction activities, but we do 

require use of the Roberts et al. (2016, 

2023) density data for all species, which 

represents the best available science 

regarding marine mammal occurrence. 

The proposed rule includes 

discussion of North Atlantic right whale 

habitat use in the Project Area, which is 

located off of Virginia (NMFS notes the 

comments provided incorrectly 

reference southern New England). The 

proposed rule also includes a discussion 

of the effects of stress on marine 

mammals from exposure to noise from 

the project; the discussion is informed 

by the best available science. NMFS has 

carefully reviewed the best available 

scientific information in assessing 

impacts to marine mammals and 

recognizes that Dominion Energy’s 

activities have the potential to impact 

marine mammals through behavioral 

effects, stress responses, and temporary 

auditory masking. However, and 

specifically given the predicted 

exposures and number of authorized 

takes, NMFS does not expect that the 

generally short-term, intermittent, and 

transitory marine site characterization 

survey activities planned by Dominion 

Energy will create conditions of acute or 

chronic acoustic exposure leading to 

long-term physiological stress responses 

in marine mammals. For pile driving 

activities, and also specifically given the 

predicted exposures and amount of 

authorized take, we do not expect that 

the impacts from these activities would 

result in acute or chronic acoustic 

exposure that would lead to long-term 

physiological stress responses as these 

activities will all be localized and 

performed for limited durations. 

Additionally, for all activities, NMFS 

has prescribed a robust suite of 

mitigation and monitoring measures, 

including extended distance shutdowns 

for North Atlantic right whales, seasonal 

restrictions, dual-PSO and PAM usage, 

and NAS use that are expected to 

further reduce the duration and 

intensity of acoustic exposure, while 

limiting the potential severity of any 

possible behavioral disruption. The 

potential for chronic stress was 

evaluated in making the determinations 

presented in NMFS’ negligible impact 

analyses. Furthermore, the area in 

which CVOW–C is located is not a 

known feeding habitat for North 

Atlantic right whales, although it is 

found within the migratory corridor BIA 

for North Atlantic right whales. NMFS 

does not anticipate that North Atlantic 

right whales would be displaced from 

the area where Dominion Energy’s 

activities would occur, and the 

commenter does not provide evidence 

that this effect should be a reasonably 

anticipated outcome of the specified 

activity. 

With respect to cumulative impacts, 

please see response to Comment 28. 

Comment 28: Several commenters 

raised concerns regarding the 

cumulative impacts of the multiple 

offshore wind projects being developed 


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throughout the range of marine 

mammals, including North Atlantic 

right whales, and specifically 

recommended that NMFS carefully 

consider the discrete effects of each 

activity and the cumulative effects of 

the suite of approved, proposed, and 

potential activities on marine mammals 

to ensure that the cumulative effects are 

not ‘‘excessive’’ before the promulgation 

of the final rule. 

Another member of the public 

expressed concerns over the number of 

North Atlantic right whales that have 

‘‘already been killed’’ when combined 

with other offshore wind projects along 

the East Coast. 

A member of the public has asked 

how NOAA is tracking the takes of 

several species, including marine 

mammals, and where this list can be 

found for the public. They have also 

asked how NOAA will determine an 

‘‘acceptable’’ number of possible 

harassment/injuries/deaths for each 

species, annually, could occur. 

Response: Neither the MMPA nor 

NMFS’ codified implementing 

regulations call for consideration of the 

take resulting from other activities in 

the negligible impact analysis. The 

preamble for NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989) states, in response to comments, 

that the impacts from other past and 

ongoing anthropogenic activities are to 

be incorporated into the negligible 

impact analysis via their impacts on the 

baseline. 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 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 (see 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, 

Dominion Energy 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 Environmental Impact 

Statement (EIS) written by BOEM and 

reviewed by NMFS as part of its interagency coordination. This EIS addresses 

cumulative impacts related to Dominion 

Energy 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 

Dominion Energy, 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 Dominion Energy 

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 the ESA Interagency 

Cooperation Division within the Office 

of Protected Resources. The Biological 

Opinion for CVOW–C 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. 

Given that each project is considered 

its own discrete action, for final marine 

mammal sightings recorded during each 

relevant project, NMFS directs the 

public to the relevant Project web page, 

where annual and final reports will be 

published describing the number of 

marine mammals detected within 

specific harassment zones to date and 

across the entire effective period of the 

Project. 

Regarding the number of North 

Atlantic right whales for which take has 

been authorized—NMFS reiterates that 

only Level B harassment (behavioral) is 

anticipated and has been authorized for 

this species. In looking at the maximum 

annual authorized number, Dominion 

Energy is authorized to harass no more 

than 7 North Atlantic right whales 

(assuming each instance of harassment 

occurs to a different individual), 

representing 2.04 percent of the total 

population. Over the course of 5 years, 

Dominion Energy would be authorized 

to harass up to 17 individual North 

Atlantic right whales. We expect that 

any instance of harassment would result 

in short-term impacts such as avoidance 

of the project area but not abandonment 

of their migratory habitat. Further, as 

described in the Negligible Impact 

Analysis and Determination Section, the 

location of the least area (44 km 

offshore) and seasonal restriction on 

foundation installation pile driving (the 

most impactful activity) provides high 

conservation benefit and greatly 

minimizes impacts on North Atlantic 

right whales (as evidenced by the very 

small amount of take authorized despite 

the size of the project). We reiterate that 

we do not anticipate, nor have we 

proposed or authorized, mortality or 

serious injury for any marine mammal 

species for the CVOW–C Project. This 

includes for North Atlantic right whales, 

where no Level A harassment is 

anticipated or authorized due to the 

mitigation measures required to be 

implemented by Dominion Energy. 

Comment 29: Several commenters 

stated that more time and research is 

needed to understand what the impacts 

of offshore wind may be on the ocean 

and marine life. 

Response: NMFS is required to 

authorize the requested incidental take 

if it finds the total incidental take of 

small numbers of marine mammals by 

U.S. citizens while engaging in a 

specified activity within a specified 

geographic region during a five-year 

period (or less) 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 (16 U.S.C. 

1371(a)(5)(A)). While the incidental take 

authorization must be based on the best 

scientific information available, the 

MMPA does not allow NMFS to delay 

issuance of the requested authorization 

on the presumption that new 

information will become available in the 

future. NMFS has made the required 

findings, based on the best scientific 


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information available and has included 

mitigation measures to effect the least 

practicable adverse impacts on marine 

mammals. 

Other 

Comment 30: Two commenters have 

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, as well as to 

account for the quickly evolving 

situation for the North Atlantic right 

whale. 

Response: NMFS appreciates the 

commenter regarding our ITA process. 

While NMFS acknowledges the 

commenter’s 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 § 217.297(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 31: Several commenters 

have expressed concern regarding the 

recent whale deaths, which they claim 

are the result of offshore wind activities 

and pre-construction survey activities. 

Another commenter has 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. 

Another commenter has stated that 

NMFS cannot determine the cause of 

the recent whale deaths accurately 

without doing necropsies. Because of 

this, the commenter states that NMFS 

cannot determine that recent whale 

mortalities were not related to ‘‘the 

whales’ diminished ability to determine 

its location due to acoustic damage to its 

echolocation systems’’ from offshore 

wind-related surveys (i.e., HRG and site 

assessment surveys). 

Lastly, another commenter stated that 

funding should be made available to: (1) 

train PSOs; (2) stranding network 

organizations to carry out necessary 

carcass recovery, examination, and 

diagnostic tests to exclude acoustic 

injuries as reasons for strandings 

associated with HRG surveys and/or 

construction activities; and (3) 

understand how strandings of protected 

species in unusual patterns during or 

around times where HRG surveys/ 

construction activities occur so that 

costs can be calculated for the relevant 

response (e.g., offshore whale carcass 

towing, heavy equipment rentals, etc.) 

as well as to provide accountability on 

the cause of the stranding. 

Response: There is no evidence that 

noise resulting from offshore wind 

development-related site 

characterization surveys, which are 

conducted prior to construction, could 

potentially cause marine mammal 

strandings, and there is no evidence 

linking recent large whale mortalities 

and currently ongoing surveys. This 

point has been well supported by other 

agencies, including BOEM and the 

Marine Mammal Commission. The 

commenters offer no such evidence or 

other scientific information to 

substantiate their claim. NMFS will 

continue to gather data to help us 

determine the cause of death for these 

stranded whales. 

The Marine Mammal Commission’s 

recent statement supports NMFS’ 

analysis: ‘‘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 Unusual Mortality 

Event (UME) for humpback whales 

along the Atlantic coast from Maine to 

Florida, which includes animals 

stranded since 2016. Partial or full 

necropsy examinations were conducted 

on approximately half of the whales. 

Necropsies were not conducted on other 

carcasses because they were too 

decomposed, not brought to land, or 

stranded on protected lands (e.g., 

national and state parks) with limited or 

no access. Of the whales examined 

(roughly 90), about 40 percent had 

evidence of human interaction, either 

ship strike or entanglement. Vessel 

strikes and entanglement in fishing gear 

are the greatest human threats to large 

whales. The remaining 50 necropsied 

whales either had an undetermined 

cause of death (due to a limited 

examination or decomposition of the 

carcass) or had other causes of death 

including parasite-caused organ damage 

and starvation. The best available 

science indicates that only Level B 

harassment, or disruption of behavioral 

patterns (e.g., avoidance), may occur as 

a result of Dominion Energy’s HRG 

surveys. NMFS emphasizes that there is 

no credible scientific evidence available 

suggesting that mortality and/or serious 

injury is a potential outcome of the 

planned survey activity. 

Additionally, NMFS has not 

authorized mortality or serious injury in 

this final rule, and such taking is 

prohibited under § 217.292(c) of the 

regulations and may result in 

modification, suspension, or revocation 

of an LOA issued under these 

regulations. NMFS notes there has never 

been a report of any serious injuries or 

mortalities of a marine mammal 

associated with site characterization 

surveys. 

Furthermore, while NMFS agrees in 

the value of necropsies in determining 

the cause of death of a stranded marine 

mammal, NMFS stranding partners 

cannot perform necropsies on every 

dead animal as some of the carcasses 

were either too decomposed, not 

brought to land, or stranded on 

protected lands (e.g., national and state 

parks) with limited or no access. 

Furthermore, and as described on our 

website, large whale necropsies are very 

complicated, requiring many people and 

typically heavy equipment (e.g., front 

loaders, etc.). Some whales are found 

dead floating offshore and need to be 

towed to land for an examination. There 

can be limitations for access and using 

heavy equipment depending on the 

location where the whale stranded, 

including protected lands (parks or 

concerns for other endangered species) 

and accessibility (remote areas, tides 

that prevent access at times of day). 

Also, necropsies are the most 

informative when the animal died 

relatively recently. Some whales are not 

found until they are already 

decomposed, which limits the amount 

of information that can be obtained. 

Finally, funding is limited, and varies 

by location and stranding network 

partner. For more information on 

offshore wind and whales, we reference 

the commenter to our website: https:// 

www.fisheries.noaa.gov/new-englandmid-atlantic/marine-life-distress/ 

frequent-questions-offshore-wind-andwhales. 

Additionally, a commenter raised a 

concern regarding potential injury to 

‘‘echolocation systems’’. All large 

whales that have stranded since 

December 2011, with the exception of 

three sperm whales, have been 

mysticete (baleen) whales (e.g., 

humpback whales, minke whales), 


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which do not have the ability to 

echolocate, a process by which toothed 

whales (e.g., sperm whales) and 

dolphins emit high-frequency sounds 

from their melon to obtain information 

about objects (typically prey) in the 

water. Because baleen whales do not 

echolocate like toothed whales and 

dolphins, there is no concern over 

impeding such ability. Additionally, 

several species of delphinids and 

beaked whales have stranded off 

Virginia since 2011; however, there is 

no evidence that the acoustic sources 

used during HRG surveys contributed to 

these events. 

Regarding available funding, as 

suggested by another commenter, 

Dominion Energy is responsible for 

acquiring NMFS-approved PSOs to 

conduct marine mammal monitoring as 

prescribed in its rule. PSOs working on 

the CVOW–C Project would not be 

involved in stranding response beyond 

the required reporting measures (i.e., 

reporting sightings of dead or injured 

marine mammals to the Stranding 

Response Network. The Marine 

Mammal Health and Stranding 

Response Program (MMHSRP) 

coordinates emergency responses to 

sick, injured, distressed, or dead seals, 

sea lions, dolphins, porpoises, and 

whales. The MMHSRP works with 

volunteer stranding and entanglement 

networks as well as local, tribal, State, 

and Federal government agencies to 

coordinate and conduct emergency 

responses to stranded or entangled 

marine mammals. The Prescott Grant 

Program (https://www.fisheries.noaa.

gov/grant/john-h-prescott-marinemammal-rescue-assistance-grantprogram) provides funding for members 

of the national marine mammal 

stranding network through a 

competitive grant process for (1) 

recovery and treatment (i.e., 

rehabilitation) of stranded marine 

mammals; (2) data collection from living 

or dead stranded marine mammals; and 

(3) facility upgrades, operation costs, 

and staffing needs directly related to the 

recovery and treatment of stranded 

marine mammals and the collection of 

data from living or dead stranded 

marine mammals. From 2001 through 

2023, the Program awarded more than 

$75.4 million in funding through 893 

competitive grants to Stranding Network 

members in 26 states, the District of 

Columbia, two territories, and three 

tribes. 

Comment 32: A commenter has stated 

that there is a data need for information 

related to vessel density as it relates to 

changes in vessel routing and traffic 

patterns. The commenter further stated 

that the acquisition of this information 

would be beneficial when compared to 

species distribution and habitat data. 

They also stated that this data would 

provide context to any observed changes 

in rates of vessel strikes, fishing gear, 

entanglements, and impacts on fisheries 

in terms of gear loss and protected 

species interactions. They also 

suggested that NMFS should require 

vessels to maintain a specific transit 

(east and northeast of the Lease Area) to 

avoid nearshore areas. 

Response: NMFS provided 

information related to the amount and 

types of vessels to be used for CVOW– 

C and is requiring that that all of 

Dominion Energy’s vessels must be 

equipped with properly installed and 

operational AIS devices and that 

Dominion Energy must report all 

Maritime Mobile Service Identify 

(MMSI) numbers to NMFS Office of 

Protected Resources. This will allow for 

an evaluation of Dominion Energy 

vessel traffic movement. NMFS is not 

requiring Dominion Energy vessels to 

maintain a specific transit (East and 

Northeast of the Lease Area) to avoid 

nearshore areas as Dominion Energy 

must use ports and some aspects of 

work are located in nearshore waters 

requiring vessel use in that area. 

Therefore, restricting Dominion Energy 

vessels waters outside of the nearshore 

area (which is undefined by the 

commenter) is not practicable. 

Comment 33: A commenter insisted 

that NOAA Marine Mammal Health and 

Stranding Program staff be guaranteed 

site access for response to and rescue of 

stranded animals. The commenter also 

expressed a desire for clarification on 

the photographs that could be taken 

during a sighting of a stranding, and that 

specific parameters should be discussed 

for these photos to allow for the 

appropriate response to be taken. 

Response: NMFS cannot require 

access be given in all cases for stranded 

animals, as sometimes the carcass never 

returns to shore or strands on protected 

lands, such as national or state parks, 

with limited access. Given these 

instances are situational and the 

appropriate actions are determined by 

trained specialists, we defer to their 

knowledge and expertise instead. 

Regarding the comment on the 

photographs in the event of a stranding 

or dead animal, NMFS does not see a 

reason to require very specific 

parameters for these photographs, as all 

observations would be taken in the 

offshore environment where conditions 

are typically difficult. Additionally, we 

expect that few, if any, of the crew 

would be trained in proper necropsy 

technique to know which photographs 

to take or what to look for; instead, we 

ask the developer and their crew 

(alongside the NMFS-approved PSOs 

and PAM operators) to collect any 

evidence, information, and photographs 

they are capable of and have access to, 

instead of providing additional 

restrictions that may complicate the 

acquisition of important data. If a 

decision is made to retrieve or tow a 

carcass to shore, we expect that trained 

stranding specialists would be on hand 

to handle the specifics the commenter is 

referring to. Because of this, we do not 

see the need to require the suggestion by 

the commenter. 

Comment 34: The commenter has 

stated that an oil spill contingency plan 

should be created in the event of an oil 

spill from CVOW–C. 

Response: NMFS agrees with the 

commenter that this is an important 

consideration for the CVOW–C Project. 

We direct the commenter to BOEM, as 

an oil spill response plan was included 

in Appendix Q of the CVOW–C COP 

(https://www.boem.gov/renewableenergy/state-activities/cvowconstruction-and-operations-plan) and 

within the final EIS developed for the 

project (https://www.boem.gov/ 

renewable-energy/state-activities/ 

CVOW-C). Given NMFS is not 

authorizing incidental take from oil 

spills, we do not analyze this directly in 

our MMPA ITA and this is not 

discussed further. 

Comment 35: A commenter 

recommended that Dominion Energy 

test and deploy an all-weather, semi-, or 

fully-automated whale detection system 

in the mouth of the Chesapeake Bay to 

reduce the risk of vessel strike. 


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Response: NMFS does not agree with 

the commenter that Dominion Energy 

must deploy an all-weather, semi-, or 

fully-automated whale detection system 

in the mouth of the Chesapeake Bay to 

reduce the risk of vessel strike. The 

commenter did not provide a 

description of additional benefits this 

type of system would achieve compared 

to the dual-PAM and visual observation 

requirements NMFS proposed and 

requires for vessel transit. Furthermore, 

the Woods Hole Oceanographic 

Institution, in collaboration with the 

CMA CGM Group, have deployed an 

acoustic monitoring buoy approximately 

33 miles (53.12 km) off Norfolk, Virginia 

(see the press release at: https://

www.whoi.edu/press-room/newsrelease/whoi-and-cma-cgm-groupdeploy-acoustic-monitoring-buoy-nearnorfolk-virginia/). While not located in 

the mouth of the Bay, this buoy 

provides near real-time detection for 

North Atlantic right whale calls, that 

will be publicly displayed on a website 

called Roborts4Whales (http://robots4

whales.whoi.edu/) and shared with 

mariners, including vessel captains. 

Based on the parameters suggested by 

the commenter along with the publicly 

available data from existing systems, we 

disagree with the commenter’s 

recommendation. 

Comment 36: The commenter has 

stated that nowhere in Dominion 

Energy’s PSMMP does it describe a need 

for baseline information on species 

presence, distribution, and behavior. 

They further compound that while 

short-term impacts from surveys and 

construction activities are likely, longterm impacts from operation would be 

challenging to assess without baseline 

information. Because of this, the 

commenter has suggested that 

additional investments into gathering 

baseline information should occur, 

which would allow for increased 

monitoring during the construction and 

operation phases and that it should be 

mandated that baseline data is collected 

for all projects before approvals are 

given. 

Response: NMFS notes to the 

commenter that this information would 

not be found in Dominion Energy’s 

PSMMP, but information regarding 

species and baseline/known information 

is found in the ITA application itself 

(see NMFS’ web page at https://www.

fisheries.noaa.gov/action/incidentaltake-authorization-dominion-energyvirginia-construction-coastal-virginia). 

NMFS also included some information 

about species that have established BIAs 

or known UMEs in the proposed rule 

(see 88 FR 28656, 28672), with updates 

included where applicable in the final 

rule. We additionally point the 

commenter to our website (https://www.

fisheries.noaa.gov/find-species) and to 

the SARs (https://www.fisheries.noaa.

gov/national/marine-mammalprotection/marine-mammal-stockassessments) for more information. 

The MMPA requires NMFS to 

evaluate the effects of the specified 

activities based on the best scientific 

evidence available and to issue the 

requested incidental take authorization 

if it makes the necessary findings. The 

MMPA does not allow NMFS to delay 

issuance of the requested authorization 

on the presumption that new 

information will become available in the 

future. If new information becomes 

available in the future, NMFS may 

modify the mitigation and monitoring 

measures in an LOA issued under these 

regulations through the adaptive 

management provisions. Furthermore, 

NMFS is required to withdraw or 

suspend an LOA if it determines that 

the authorized incidental take may be 

having more than a negligible impact on 

a species or stock. This determination is 

made following notice and opportunity 

for public comment, unless and 

emergency exists that poses a significant 

risk to the well-being of the marine 

mammal species or stock. 

NMFS has duly considered the best 

scientific evidence available in its 

effects analysis. The Potential Effects of 

Underwater Sound on Marine Mammals 

section of the proposed rule included a 

broad overview of the potential impacts 

on marine mammals from 

anthropogenic noise and provided 

summaries of several studies regarding 

the impacts of noise from several 

different types of sources (e.g., airguns, 

Navy sonar, vessels) on large whales, 

including North Atlantic right whales. 

Offshore wind farm construction 

generates noise that is similar, or, in the 

case of vessel noise, identical, to noise 

sources included in these studies (e.g., 

impact pile driving and airguns both 

produce impulsive, broadband sounds 

where the majority of energy is 

concentrated in low frequency ranges), 

and the breadth of the data from these 

studies helps us predict the impacts 

from wind activities. In addition, as 

described in the proposed rule, it is 

general scientific consensus that 

behavioral responses to sound are 

highly variable and context-specific and 

are impacted by multiple factors 

including, but not limited to, behavioral 

state, proximity to the source, and the 

nature and novelty of the sound. 

Overall, the ecological assessments from 

offshore wind farm development in 

Europe and peer-reviewed literature on 

the impacts of noise on marine 

mammals both in the U.S. and 

worldwide provides the information 

necessary to conduct an adequate 

analysis of the impacts of offshore wind 

construction and operation on marine 

mammals in the Atlantic Outer 

Continental Shelf. NMFS acknowledges 

that studies in Europe typically focus on 

smaller porpoise and pinniped species, 

as those are more prevalent in the North 

Sea and other areas where offshore wind 

farms have been constructed. The 

commenter did not provide additional 

scientific information for NMFS to 

consider. 

Comment 37: A commenter asserts 

that the ITR and LOA process lacks 

transparency and there are no resources 

easily accessible to the public to 

understand what authorizations are 

required for each of these activities (preconstruction surveys, construction, 

operations, monitoring surveys, etc.). 

They requested NMFS improve the 

transparency of this process and move 

away from a ‘‘segmented phase-byphase and project-by-project approach’’ 

for authorization. In addition, they 

requested NMFS provide a 

comprehensive list/table of all takes by 

Level A harassment and Level B 

harassment under currently approved 

and requested authorizations per 

project. 

Response: The MMPA, and its 

implementing regulations allow, upon 

request, the incidental take of small 

numbers of marine mammals by U.S. 

citizens who engage in a specified 

activity (other than commercial fishing) 

within a specified geographic region. 

NMFS authorizes the requested 

incidental take of marine mammals if it 

finds that the taking would be of small 

numbers, have no more than a 

‘‘negligible impact’ on the marine 

mammal species or stock, and not have 

an ‘‘unmitigable adverse impact’’ on the 

availability of the species or stock for 

subsistence use. NMFS refers the public 

to its website for more information on 

the marine mammal incidental take 

authorization process and timelines 

(https://www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act). 

NMFS emphasizes that an IHA or 

rulemaking/LOA does not authorize the 

activity itself but authorizes the take of 

marine mammals incidental to the 

‘‘specified activity’’ for which incidental 

take coverage is being sought. In this 

case, NMFS is responding to Dominion 

Energy’s request to incidentally take 

marine mammals in the course of 

constructing the CVOW–C Project. The 

authorization of the specified activities 

is not within NMFS’ jurisdiction; 

instead, this falls under BOEM’s 


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purview and NMFS refers the public to 

BOEM’s website: https://

www.boem.gov/renewable-energy. 

Additionally, for the commenter’s 

awareness, NMFS maintains a list of all 

proposed and issued authorizations for 

renewable energy activities, including 

the requested, proposed, and/or 

authorized take is available on the 

agency website at: https://www.fisheries.

noaa.gov/national/marine-mammalprotection/incidental-takeauthorizations-other-energy-activitiesrenewable. 

Lastly, regarding the commenter’s 

concern about assessing all offshore 

wind projects cumulatively, NMFS will 

not repeat the response but instead 

refers the commenter to Comment 28, 

where we explain why each project is 

considered discrete and as its own 

separate action. 

Comment 38: A commenter stated that 

the presence of wind turbines will 

impact NMFS’ ability to conduct lowaltitude (1,000 m) marine mammal 

assessment aerial surveys, thus 

impacting NMFS’ ability to continue 

using current methods to fulfill its 

mission of precisely and accurately 

assessing and managing protected 

species. 

Response: NMFS and BOEM have 

collaborated to establish the Federal 

Survey Mitigation Strategy for the 

Northeast U.S. Region (Hare et al., 

2022). This interagency effort is 

intended to guide the development and 

implementation of a program to mitigate 

impacts of wind energy development on 

fisheries surveys. For more information 

on this effort, please see https://

repository.library.noaa.gov/view/noaa/ 

47925. 

Comment 39: Expressing concerns 

regarding enforcement, commenters 

expressed interest in understanding the 

outcome if the number of actual takes 

exceeds the number authorized during 

construction of an offshore wind project 

(i.e., if the project would be stopped 

mid-construction or operation), and 

how offshore wind developers will be 

held accountable for impacts to 

protected species such that impacts are 

not inadvertently assigned to fishermen, 

should they occur. 

Another member of the public 

recommended that if a marine mammal 

is killed during the specified 

construction activities for CVOW–C, 

then Dominion Energy should ‘‘be fined 

a considerable sum.’’ 

Response: NMFS carefully reviews 

models and take estimate methodology 

to authorize a number of takes, by 

species and manner of take, which is a 

likely outcome of the project. There are 

several conservative assumptions built 

into the models to ensure the number of 

takes authorized is sufficient based on 

the description of the project. Dominion 

Energy would be required to submit 

frequent reports which would identify 

the number of takes applied to the 

project. 

In the unexpected event that 

Dominion Energy exceeds the number of 

takes authorized for a given species, the 

MMPA and its implementing 

regulations state that NMFS shall 

withdraw or suspend the 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, or the taking allowed is 

having, or may have, more than a 

negligible impact on the species or stock 

concerned (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 216.206(g)). 

Moreover, as noted previously, fishing 

impacts (and NMFS’ assessment of 

them) generally center on entanglement 

in fishing gear, which is a very acute, 

visible, and severe impact (mortality or 

serious injury). In contrast, the impacts 

incidental to the specified activities are 

primarily acoustic in nature and limited 

to Level A harassment and Level B 

harassment, there is no anticipated or 

authorized serious injury or mortality 

that the fishing industry could 

theoretically be held accountable for. 

Any take resulting from the specified 

activities would not be associated with 

take authorizations related to 

commercial fish stocks. The impacts of 

commercial fisheries on marine 

mammals and incidental take for said 

fishing activities are managed separately 

from those of non-commercial fishing 

activities such as offshore wind site 

characterization surveys, under MMPA 

section 118. 

Comment 40: A commenter suggested 

that NMFS require Dominion Energy to 

utilize direct-drive turbines instead of 

gearboxes. 

Response: Dominion Energy has 

indicated they intend to use direct drive 

turbines for the CVOW–C Project, based 

on Section 3.3.1.1 of their COP, 

specifically the Siemens Gamesa SG 14– 

222 DD WTG model (see https://

www.boem.gov/renewable-energy/stateactivities/cvow-construction-andoperations-plan). Furthermore, as 

already described above in Comment 37, 

the applicant is the one to determine the 

project (i.e., the Proposed Action), not 

NMFS. 

Comment 41: A commenter suggested 

various mitigation and monitoring 

measures in the event that gravity-based 

and/or suction-bucket foundations are 

used instead of impact/vibratory-driven 

foundations (i.e., clearance and 

shutdown zones at distances that they 

assert would eliminate all take by Level 

A harassment of North Atlantic right 

whales and other large whales; visual 

and acoustic monitoring for large 

whales; shutdown for large whale visual 

observations or acoustic detections; 

restart of construction after shutdown; 

use of near-real time PAM for vessel(s); 

alternative monitoring technologies for 

monitoring (infrared drones, 

hydrophones); mandatory vessel speed 

restrictions; and required reporting). 

Response: NMFS appreciates the 

suggestions by the commenter and refers 

to Comment 16 above where we discuss 

gravity-based and other foundation 

types for the CVOW–C Project. 

However, Dominion Energy did not 

include the potential to use gravitybased and/or suction-bucket 

foundations in their MMPA application; 

therefore, NMFS has not analyzed, 

authorized incidental take, or 

promulgated mitigation, monitoring, or 

reporting measures for gravity-based or 

suction-bucket foundations. 

Comment 42: Commenters expressed 

concern that whales would be displaced 

from the Project Area into shipping 

lanes or areas of higher vessel traffic, 

which could result in higher risks of 

vessel strike and that NMFS has not 

accounted for this impact in its analysis. 

Response: NMFS acknowledges that 

whales may temporarily avoid the area 

where the specified activities occur. 

However, NMFS does not anticipate that 

whales will be displaced in a manner 

that would result in a higher risk of 

vessel strike, and the commenter does 

not provide evidence that either of these 

effects should be a reasonably 

anticipated outcome of the specified 

activity. Vessel traffic is concentrated 

closer to shore as vessels leave and 

return to ports such as the Port of 

Virginia, most notably within 

designated shipping lanes and as they 

enter the Chesapeake Bay. The density 

of vessel traffic dissipates as one moves 

offshore. 

NMFS disagrees with the commenter 

that the risk of vessel strike was not 

considered in the analysis. NMFS takes 

the risk of vessel strike seriously and 

while we acknowledge that vessel 

strikes can result in injury or mortality, 

we have analyzed and determined that 

the potential for vessel strike is so low 

as to be discountable. Dominion Energy 

must abide by a suite of vessel strike 

avoidance measures that include, for 


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example, seasonal and dynamic vessel 

speed restrictions to 10 kn (18.5 km/ 

hour) or less; required use of dedicated 

observers on all transiting vessels; 

maintaining awareness of North Atlantic 

right whale presence through 

monitoring of North Atlantic right 

whale sighting systems. Further, any 

observations of a North Atlantic right 

whale by project-related personnel 

would be reported to sighting networks, 

alerting other mariners to North Atlantic 

right whale presence. Both Dominion 

Energy and other mariners are required 

to abide by all existing approach and 

speed regulations designed to minimize 

the risk of vessel strike. Notably, 

Dominion Energy is restricted from 

installing foundations during the time of 

year when North Atlantic right whales 

are expected to be present in greatest 

abundance (November 1st through April 

30th). Therefore, the potential for this 

activity to result in harassment is very 

small, as indicated by the low amount 

of take authorized. Further, NMFS has 

determined that any harassment from 

any specified activity is anticipated to, 

at most, result in some avoidance that 

would be limited spatially and 

temporally. It is unlikely that any 

impacts from the project would increase 

the risk of vessel strike from nonDominion Energy vessels. The 

commenter has presented no 

information supporting the speculation 

that whales would be displaced from 

the Project Area into shipping lanes or 

areas of higher vessel traffic in a manner 

that would be expected to result in 

higher risks of vessel strike. 

Comment 43: Commenters stated that 

it is ‘‘against the law to knowingly 

interfere with an endangered species 

and depletion of an entire population,’’ 

and they cited the Endangered Species 

Act (ESA) in support of this claim. They 

further state that the CVOW–C Project 

would ‘‘disrupt’’ the migration path of 

the North Atlantic right whale and, 

therefore, result in the extinction of this 

species. 

Response: Under Section 7(a)(2) of the 

ESA, Federal agencies are required to 

consult with NMFS or the U.S. Fish and 

Wildlife Service, as appropriate, to 

ensure that the actions they fund, 

permit, authorize, or otherwise carry out 

will not jeopardize the continued 

existence of any listed species or result 

in the destruction or adverse 

modification of designated critical 

habitats. For the CVOW–C Project, our 

office (i.e., the Office of Protected 

Resources) requested initiation of a 

Section 7 consultation for ESA-listed 

species with the NMFS Greater Atlantic 

Regional Fisheries Office on April 4, 

2023. A Biological Opinion was 

completed on September 19, 2023 

(found here: https:// 

repository.library.noaa.gov/view/noaa/ 

55495), which concluded that the 

promulgation of the rule and issuance of 

LOAs thereunder is not likely to 

jeopardize the continued 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. Because of 

this, NMFS’ action of finalizing the 

rulemaking and issuing LOAs for the 

CVOW–C Project is consistent with the 

ESA. 

Furthermore, NMFS disagrees that the 

CVOW–C Project would ‘‘completely 

disrupt and destroy the North Atlantic 

Right Whale population and migration 

path,’’ as suggested by the commenters. 

NMFS is aware of no evidence to 

support this claim, nor did the 

commenters provide any. In total, the 

CVOW–C Project Area consists of 

approximately 456.5 km2 of the entire 

269,448 km2 migratory BIA. No take by 

injury, serious injury, or mortality is 

authorized for the species. NMFS 

emphasizes that the authorized 

incidental take of North Atlantic right 

whales is limited to Level B harassment 

(i.e., behavioral disturbance). As 

described in the proposed rule and this 

final rule (see Negligible Impact 

Analysis and Determination section), 

NMFS has determined that the Level B 

harassment of North Atlantic right will 

not result in impacts to the population 

through effects on annual rates or 

recruitment or survival. 

Changes From the Proposed to Final 

Rule 

Since the publication of the proposed 

rule in the Federal Register (88 FR 

28656, May 4, 2023), NMFS has made 

changes, where appropriate, that are 

reflected in the final regulatory text and 

preamble text of this final rule. 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 and 

has been incorporated into this final 

rule, as discussed below. 

The following changes are reflected in 

the Description of Marine Mammals in 

the Specified 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 North Atlantic right whale 

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. We have also updated 

the North Atlantic right whale 

abundance estimate based on Linden 

(2023). 

Given the availability of new 

information, we have made updates to 

the UME summaries for multiple 

species (i.e., North Atlantic right whale, 

humpback whale, minke whale). 

The following changes are reflected in 

the Mitigation section of the preamble to 

this final rule: 

We have added a general requirement 

that noise levels must not exceed those 

modeled, assuming 10 dB attenuation. 

Because Dominion Energy has 

informed NMFS that the soft-start 

procedure in the proposed rule raises 

engineering feasibility and practicability 

concerns, we have removed the specific 

soft-start procedure identified in the 

proposed rule (i.e., ‘‘four to six strikes 

per minute at 10 to 20 percent of the 

maximum hammer energy, for a 

minimum of 20 minutes’’). This final 

rule still requires a soft-start for each 

WTG and OSS impact pile driving 

event. 

In Tables 25 and 26, we have added 

the requirement for clearance and 

shutdown of pile driving based on PAM 

detections at 10 km (6.2 mi) that applies 

to all species except North Atlantic right 

whales, which would still require 

shutdown at any distance upon a 

detection. 

We have added a requirement in the 

Reporting section for Dominion Energy 

to report operational sound levels from 

all installed piles, in alignment with a 

requirement from the Biological 

Opinion. 

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 § 217.290 

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 

§ 217.294 Mitigation Requirements and 

the associated Mitigation section of the 

preamble to this final rule: 

For clarity and consistency, we have 

reorganized and revised, as applicable, 


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the paragraphs in § 217.294 Mitigation 

requirements. 

We have clarified the requirement 

that Dominion Energy deploy at least 

two functional noise abatement systems 

requires at least a double bubble curtain. 

As described above, we updated the 

WTG and OSS impact pile driving softstart procedural requirements. 

The following changes are reflected in 

§ 217.295 Monitoring and Reporting 

Requirements and the associated 

Monitoring and Reporting section of the 

preamble of this final rule: 

For clarity and consistency, we have 

reorganized and revised, as applicable, 

the paragraphs in § 217.295 Monitoring 

and reporting requirements. 

We have 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. 

We have added a requirement that the 

Lead PSO must have a minimum of 90 

days of at-sea experience and must have 

obtained this experience within the last 

18 months. 

We have 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. 

We have 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. 

We have removed the requirement to 

include HRG survey activities in the 

weekly report. This requirement is 

inconsistent with previously 

promulgated and issued incidental take 

authorizations for HRG survey activities 

and a rationale was not included in the 

preamble of proposed rule to support 

this change. Consistent with previous 

authorizations, HRG survey activities 

are to be included in the annual report 

(see § 217.295(g)(7)). 

We have 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 

Specified Geographic Region 

As noted in the Changes From the 

Proposed to Final Rule section, updates 

have been made to the UME summaries 

of multiple species. These changes are 

described in detail in the sections 

below. We have also included new data 

on North Atlantic right whale 

abundance information (Linden, 2023) 

and updated the annual M/SI value 

presented in Table 2, based upon 

updates found in the final SARs (see 

Hayes et al., 2023). Otherwise, this 

section has not changed since the 

publication of the proposed rule in the 

Federal Register (88 FR 28656, May 4, 

2023). 

Several marine mammal species occur 

within the specified geographic region. 

Sections 3 and 4 of Dominion Energy’s 

ITA application summarize available 

information regarding status and trends, 

distribution and habitat preferences, 

and behavior and life history of the 

potentially affected species (Dominion 

Energy, 2023). NMFS fully considered 

all of this information, and we refer the 

reader to these descriptions in the 

application, adopted 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’ 

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, 

ESA, and 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. 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/marinemammal-protection/marine-mammalstock-assessment-reports. 

TABLE 2—MARINE MAMMAL SPECIES e THAT MAY OCCUR IN THE PROJECT AREA AND BE TAKEN, BY HARASSMENT

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) a

Stock abundance 

(CV, Nmin, most recent 

abundance survey) b

PBR Annual 

M/SI c

Order Artiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) 

Family Balaenidae: 

North Atlantic right whale ... Eubalaena glacialis ................... Western Atlantic ........................ E, D, Y 338 (0, 332, 2020); 356 

(346–363, 2022)j

.

0.7 i 31.2 

Family Balaenopteridae 

(rorquals): 

Fin whale ............................ Balaenoptera physalus ............. Western North Atlantic .............. E, D, Y 6,802 (0.24; 5,573; 2016) 11 1.8 

Humpback whale ................ Megaptera novaeangliae .......... Gulf of Maine ............................ -, -, Y 1,396 (0; 1,380; 2016) .... 22 12.15 

Minke whale ........................ Balaenoptera acutorostrata ...... Canadian Eastern Coastal ........ -, -, N 21,968 (0.31; 17,002; 

2016).

170 10.6 

Sei whale ............................ Balaenoptera borealis ............... Nova Scotia .............................. E, D, Y 6,292 (1.02; 3,098; 2016) 6.2 0.8 

Family Physeteridae: 

Sperm whale ....................... Physeter macrocephalus .......... North Atlantic ............................ E, D, Y 4,349 (0.28; 3,451; 2016) 3.9 0 

Family Kogiidae: 

Pygmy sperm whale g h ....... Kogia breviceps ........................ Western North Atlantic .............. -, -, N 7,750 (0.38; 5,689; 2016) 46 0 


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TABLE 2—MARINE MAMMAL SPECIES e THAT MAY OCCUR IN THE PROJECT AREA AND BE TAKEN, BY HARASSMENT— 

Continued 

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) a

Stock abundance 

(CV, Nmin, most recent 

abundance survey) b

PBR Annual 

M/SI c

Family Delphinidae: 

Atlantic spotted dolphin ...... Stenella frontalis ....................... Western North Atlantic .............. -, -, N 39,921 (0.27; 32,032; 

2016).

320 0 

Atlantic white-sided dolphin Lagenorhynchus acutus ............ Western North Atlantic .............. -, -, N 93,233 (0.71; 54,433; 

2016).

544 27 

Bottlenose dolphin .............. Tursiops truncatus .................... Western North Atlantic—Offshore.-, -, N 62,851 (0.23; 51,914; 

2016).

519 28 

Southern Migratory Coastal ...... -, -, Y 3,751 (0.6; 185; See 

SAR).

23 0–18.3 

Clymene dolphin g ............... Stenella clymene ...................... Western North Atlantic .............. -, -, N 4,237 (1.03; 2,071; 2016) 21 0 

Common dolphin ................ Delphinus delphis ..................... Western North Atlantic .............. -, -, N 172,974 (0.21; 145,216; 

2016).

1,452 390 

False killer whale g .............. Pseudorca crassidens .............. Western North Atlantic .............. -, -, N 1,791 (0.56; 1,154; 2016) 12 0 

Melon-headed whale g ........ Peponocephala electra ............. Western North Atlantic .............. -, -, N UNK (UNK; UNK; 2016) UNK 0 

Long-finned pilot whale f ..... Globicephala melas .................. Western North Atlantic .............. -, -, N 39,215 (0.3; 30,627; 

2016).

306 29 

Short-finned pilot whale f .... Globicephala macrorhynchus ... Western North Atlantic .............. -, -, Y 28,924 (0.24, 23,637, 

See SAR).

236 136 

Pantropical spotted dolphin Stenella attenuata ..................... Western North Atlantic .............. -, D, N 6,593 (0.52, 4,367, See 

SAR).

44 0 

Risso’s dolphin ................... Grampus griseus ...................... Western North Atlantic .............. -, -, N 35,215 (0.19; 30,051; 

2016).

301 34 

Family Phocoenidae (porpoises): 

Harbor porpoise .................. Phocoena phocoena ................. Gulf of Maine/Bay of Fundy ...... -, -, N 95,543 (0.31; 74,034; 

2016).

851 16 

Order Carnivora—Superfamily Pinnipedia 

Family Phocidae (earless seals): 

Gray seal d .......................... Halichoerus grypus ................... Western North Atlantic .............. -, -, N 27,300 (0.22; 22,785; 

2016).

1,389 4,453 

Harbor seal ......................... Phoca vitulina ........................... Western North Atlantic .............. -, -, N 61,336 (0.08; 57,637; 

2018).

1,729 339 

aESA 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. b NMFS’ marine mammal stock assessment reports can be found online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammalstock-assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. cThese values, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, 

ship strike). d 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. e 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/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2023)). fAlthough both species are described here, the authorized take for both short-finned and long-finned pilot whales has been summarized into a single group (pilot 

whales spp.). gWhile these species were not originally included in Dominion Energy’s request, given recorded sightings/detections of these species during previous Dominion Energy IHAs in the same general area, NMFS included Level B harassment of these species both in the proposed rule and this final rulemaking. hEstimate is for Kogia spp. only. 

i In the proposed rule (88 FR 28656, May 4, 2023), the best available science (i.e., the NMFS draft 2022 SARs) included a North Atlantic right whale M/SI value of 

8.1 which accounted for detected mortality/serious injury. In the final 2022 SAR, released in June 2023, the total annual average observed North Atlantic right whale 

mortality was updated from 8.1 to 31.2. Numbers presented in this table (31.2 total mortality (22 of which are attributed to fishery-induced mortality) are 2015–2019 

estimated annual means, accounting for both detected and undetected mortality and serious injury (Hayes et al., 2023). jThe current SAR includes an estimated population (Nbest 338) based on sighting history through November 2020 (Hayes et al., 2023). In October 2023, NMFS released a technical report identifying that, based on sighting data through December 2022 (versus the SAR which includes sighting data through November 2020), the 

North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 

2023). 

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 Federal Register 

notice for the proposed rule (88 FR 

28656, May 4, 2023). Since that time, a 

new SAR (Hayes et al., 2023) has 

become available for the North Atlantic 

right whale. 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 M/SI. 

Additionally, NMFS released a 

technical report, which includes a 

recently released population estimate of 

356 (Linden, 2023). 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 Federal Register notice 

for these descriptions (88 FR 28656, 

May 4, 2023). Please also refer to NMFS’ 

website (https:// 

www.fisheries.noaa.gov/find-species) for 

generalized species accounts. 

North Atlantic Right Whale 

In June 2023, NMFS released its final 

2022 SARs, which updated 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 


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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 December 

19, 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=51) 

with sublethal injury or illness (called 

‘‘morbidity’’) bringing the total number 

of whales in the UME to 121. 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-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 

212 known cases (as of December 19, 

2023). Of the whales examined 

(approximately 90), about 40 percent 

had evidence of human interaction, 

either vessel strike or entanglement 

(refer to https://www.fisheries.noaa.gov/ 

national/marine-life-distress/2016-2023- 

humpback-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-lifedistress/2016-2023-humpback-whaleunusual-mortality-event-along-atlanticcoast. 

Since December 1, 2022, the number 

of humpback strandings along the midAtlantic coast, including Virginia, has 

been elevated. In some cases, the cause 

of death is not yet 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 are reportedly close 

to shore in the winter. These prey also 

attract fish that are of interest to 

recreational and commercial fishermen. 

This increases the number of boats and 

fishing gear in these areas. More whales 

in the vicinity of areas traveled by boats 

of all sizes increases the risk of vessel 

strikes. Vessel strikes and entanglement 

in fishing gear are the greatest human 

threats to large whales. 

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 December 19, 2023, a 

total of 160 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-lifedistress/2017-2023-minke-whaleunusual-mortality-event-along-atlanticcoast. 

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 are 

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. However, due to the two states 

being approximately 677.6 km (421 mi) 

apart, by water (from the most northern 

point of Virginia to the most southern 

point of Maine), NMFS does not expect 

that this UME would be further 

conflated by the activities related to the 

Project. Information on this UME is 

available online at: https://www.

fisheries.noaa.gov/2022-2023-pinnipedunusual-mortality-event-along-mainecoast. 

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-englandmid-atlantic/marine-life-distress/2018- 

2020-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 


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associated hearing ranges are provided 

in Table 3. 

TABLE 3—MARINE MAMMAL HEARING GROUPS

(NMFS, 2018) 

Hearing group Generalized 

[hearing range] * 

Low-frequency (LF) cetaceans (baleen whales) ....................................................................................................................... 7 Hz to 35 kHz. 

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ............................................. 150 Hz to 160 kHz. 

High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 

australis).

275 Hz to 160 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals) ..................................................................................................................... 50 Hz to 86 kHz. 

* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ 

hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, 

with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). 

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. 

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 

(88 FR 28656, May 4, 2023) included a 

discussion of the effects of 

anthropogenic noise on marine 

mammals and the potential effects of 

underwater noise from Dominion 

Energy’s project activities on marine 

mammals and their habitat. That 

information and analysis is adopted by 

reference into this final rule and is not 

repeated here; please refer to the notice 

of the proposed rule (88 FR 28656, May 

4, 2023). 

Since publication of the proposed 

rule, new scientific information has 

become available that provides 

additional insight into the sound fields 

produced by turbine operation. 

Recently, Holme et al. (2023) stated that 

Tougaard et al. (2020) and Sto ̈ber and 

Thomsen (2021) extrapolated levels for 

larger turbines and should be 

interpreted with caution since both 

studies relied on data from smaller 

turbines (0.45 to 6.15 MW) collected 

over a variety of environmental 

conditions. They demonstrated that the 

model presented in Tougaard et al. 

(2020) tends to overestimate levels (up 

to approximately 8 dB) measured to 

those in the field, especially with 

measurements closer to the turbine for 

larger turbines. Holme et al. (2023) 

measured operational noise from larger 

turbines (6.3 and 8.3 MW) associated 

with three wind farms in Europe and 

found no relationship between turbine 

activity (power production, which is 

proportional to the blade’s revolutions 

per minute) and noise level, although it 

was noted that this missing relationship 

may have been masked by the area’s 

relatively high ambient noise sound 

levels. Sound levels (root-mean-square 

(RMS)) of a 6.3 MW direct-drive turbine 

were measured to be 117.3 dB at a 

distance of 70 meters. However, 

measurements from 8.3 MW turbines 

were inconclusive as turbine noise was 

deemed to have been largely masked by 

ambient noise. 

Estimated Take 

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 and site 

characterization surveys) 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., WTG and OSS foundation pile 

driving). For this action, this potential 

for PTS is limited to mysticetes, highfrequency cetaceans, and phocids due to 

their hearing sensitivities and the nature 

of the activities. The required mitigation 

and monitoring measures are expected 

to minimize the severity and magnitude 

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 were 

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; 

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). 


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A summary of all NMFS’ thresholds can 

be found at (https://www.fisheries.noaa.

gov/national/marine-mammalprotection/marine-mammal-acoustictechnical-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, ambient noise), and the receiving 

animals (e.g., hearing, motivation, 

experience, demography, behavior at 

time of exposure, 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 the received 

root-mean-square sound pressure levels 

(RMS SPL) of 120 dB (referenced to 1 

micropascal (re 1 mPa)) for continuous 

(e.g., vibratory pile-driving, drilling) and 

above the received RMS SPL 160 dB re: 

1 mPa for non-explosive impulsive (e.g., 

seismic airguns) or intermittent (e.g., 

scientific sonar) sources. 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. 

Dominion Energy’s construction 

activities include the use of continuous 

(i.e., vibratory pile driving) and 

intermittent (i.e., impact pile driving, 

HRG acoustic sources) sources, and 

therefore, the 120 and 160 dB re 1 mPa 

(rms) thresholds are applicable. 

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). Dominion Energy’s 

planned activities include the use of 

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. 

TABLE 4—ONSET OF PERMANENT THRESHOLD SHIFT (PTS) 

[NMFS, 2018] 

Hearing group 

PTS onset thresholds * 

(received level) 

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 4: LE,p, HF,24h: 198 dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7: Lp,0-pk.flat: 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,0-pk) has a reference value of 1 μPa, and weighted cumulative sound exposure level (LE,p) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to be more reflective of International Organization for Standardization (ISO) 

standards (ISO, 2017). The subscript ‘‘flat’’ is 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. 

Dominion Energy would not conduct 

high-order detonation of unexploded 

ordnances or munitions and explosives 

of concern (UXOs/MECs) as part of the 

Project. As Dominion Energy has not 

requested, and NMFS has not 

authorized, any take related to the 

detonation of UXOs/MECs, the acoustic 

(i.e., PTS onset and TTS onset for 

underwater explosives) and the pressure 

thresholds (i.e., lung and 

gastrointestinal tract injuries) are not 

discussed or included in this action. 

Acoustic and Exposure Modeling 

Methods 

As described above, underwater noise 

associated with the construction of 

offshore components of CVOW–C would 

predominantly result from installation 

of the WTG monopile and the OSS 

jacket foundations using a dualvibratory and impact pile driving 

approach while noise from cable 

landfall construction activities (i.e., 

temporary cofferdam and temporary 

goal post installation and removal) will 

primarily result from either impact pile 

driving (for the temporary goal posts) or 

vibratory pile driving (for the temporary 

cofferdams). Acoustic modeling was 

performed for some activities for which 

there was a pile driving component, 

including WTG and OSS foundation 

installation and temporary cofferdam 

installation and removal. The basic 

modeling approach is to characterize the 

sounds produced by the source, 

determine how the sounds propagate 

within the surrounding water column, 


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and then estimate species-specific 

exposure probability by considering the 

range- and depth-dependent sound 

fields in relation to animal movement in 

simulated representative construction 

scenarios. 

Animat exposure modeling was only 

performed for foundation installation. 

For other activities planned by 

Dominion Energy (i.e., temporary 

cofferdam installation and removal, 

temporary goal post installation and 

removal, HRG surveys), take was 

estimated using a ‘‘static’’ approach for 

representing animal distribution and 

density, as detailed later in the Static 

Take Estimate Method section. 

Dominion Energy employed Tetra 

Tech, Inc. (Tetra Tech) to conduct the 

acoustic modeling and Marine 

Acoustics, Inc. (MAI) for the animal 

movement modeling to better 

understand both the sound fields 

produced during foundation and 

cofferdam installation and to estimate 

any potential exposures (see the 

Acoustic Modeling report in Appendix 

A of Dominion Energy’s ITA 

application). Dominion Energy also 

collaborated with the Institute for 

Technical and Applied Physics (iTAP) 

for information related to vibratory pile 

driving of foundation piles. Tetra Tech 

also performed the acoustic analysis 

related to temporary cofferdam 

installation and removal via vibratory 

pile driving. Acoustic source modeling 

of vibratory pile driving related to 

cofferdam installation and removal was 

incorporated into the static method to 

yield estimated and requested take 

values. Tetra Tech applied the source 

modeling methods from the CVOW Pilot 

Project with modifications based on 

newly available data and the additional 

availability of research studies. The 

approach is summarized here; more 

detail can be found in the Acoustic 

Modeling report in Appendix A of 

Dominion Energy’s ITA application. 

Acoustic Source Modeling 

Based on a literature review of pile 

driving measurement reports, 

theoretical modeling reports, and peerreviewed research papers (see the 

references in Attachment Z–2 in 

Appendix A of Dominion Energy’s COP 

(2023)), Tetra Tech developed an 

empirical modeling approach for 

calculating the acoustic source of 

impact pile driving foundation 

installation activities for the CVOW–C 

Project. A collaboration between 

Dominion Energy and iTAP assessed the 

estimated acoustic source levels 

produced from vibratory pile driving of 

foundation piles based on empirical 

data collected and assessed from the 

CVOW Pilot Project and other European 

offshore wind farms. These two 

modeling approaches are discussed 

separately here. 

Foundation Impact Pile Driving Source 

Level Empirical Model 

An empirical model developed by 

Tetra Tech was used to determine the 

peak sound level (Lpk) and sound 

exposure level (SEL) at the source for 

the foundation pile driving scenarios. 

To feed into the model, Tetra Tech 

obtained sound levels from relevant 

scenarios for a variety of pile diameter 

sizes, driven with hammers of varying 

energies, and collected or analyzed at 

different ranges from the impacted pile. 

This empirical model was implemented 

by using the following steps: 

1. Normalizing the received sound 

pressure levels to a common received 

range, assuming a transmission loss of 

15LogR (i.e., practical spreading), where 

R is the distance ratio; 

2. Scaling the source levels to an 

energy of 4,000 kJ, assuming a 

relationship between the hammer 

energy and radiated sound as 10 times 

the base 10 logarithm of the ratio of 

hammer energy to the referenced 

hammer energy (as in the scaling laws 

outlined in von Pein et al., 2022); and 

3. Calculating a linear regression of 

the adjusted source levels (which has 

been normalized for range and hammer 

energy) as a function of the base 10 

logarithm of the pile diameters, which 

is then used to predict the broadband 

SEL and peak sound levels for the 

planned energy and diameter. 

The above empirical model was used 

in determining Lpk and SEL, however, a 

similar technique for sound pressure 

level (SPL) was not possible due to a 

lack of data. For this reason, SPL was 

derived from SEL using the average 

pulse duration of measurements used in 

the empirical model. One-third octave 

band levels from 12.5 Hz to 20 kHz were 

derived from surrogate spectra taken 

from published data for piles of similar 

diameters and adjusted based on the 

empirical model above. For the Lpk

underwater acoustic modeling scenario 

(evaluating a single pile-driving strike), 

the pile driving sound source was 

represented as a point source at a midwater depth. To estimate SEL, the 

monopile and pin pile driving scenarios 

were modeled using a vertical array of 

point sources spaced at 1 m intervals 

and assuming a specific number of 

strikes for each type of pile (see Formula 

2 in Attachment Z–1 of Appendix A in 

the application). The SPL scenario was 

set up in an identical manner to the SEL 

scenario, with the primary difference 

being that the model did not incorporate 

the total number of pile driving strikes 

needed for each of the monopile and pin 

pile scenarios within a 24-hour period. 

Instead, only a single pile driving strike 

was incorporated. 

Information on the impact pile 

driving scenarios and source levels for 

WTGs, OSSs, and goal posts can be 

found in Table Z–7 of Appendix A of 

Dominion Energy’s ITA application. 

These impact modeling scenarios 

assumed no sound attenuation. For all 

WTG monopile modeling (i.e., Scenarios 

1–3 including standard driving and 

hard-to-drive installation approaches), a 

single strike SEL source level of 226 was 

assumed. For OSS modeling using pin 

piles, a single strike SEL source level of 

214 dB was assumed. For goal post 

installation, a single strike SEL source 

level of 183 dB was assumed (California 

Department of Transportation 

(CALTRANS), 2015). 

Foundation Vibratory Pile Driving 

Source Level Empirical Model 

Limited empirical data exists for the 

installation of large foundation piles by 

vibratory driving, with most being 

measured by iTAP (see Remmers and 

Bellmann (2021) in Appendix A of the 

application (Attachment Z–3)). Current 

datasets contain a variety of different 

information, including ranges of water 

depths from several meters to depths of 

40 m, different sediment types, and 

measured receiver distances from 

several meters away from the source up 

to 750 m away. 

To predict the expected underwater 

noise levels during vibratory pile 

driving of 2.4 m pin piles for the OSS 

and 9.5 m monopiles, iTAP used the 

limited empirical data from several 

existing offshore wind farms from 

different pile diameters. All data were 

normalized to a distance from the 

source of 750 m assuming a propagation 

loss of 15LogR. Given this 

normalization, uncertainties of <3 dB 

were expected. The data were plotted as 

a function of the pile diameter and then 

fit with a statistical regression curve (see 

the figure in Remmers and Bellmann 

(2021) Attachment Z–3 in Appendix A 

of Dominion Energy’s application). 

Using the resulting regression, iTAP 

predicted noise levels of 151 dB SPL for 

2.4 m pin piles and 159 dB SPL for 9.5 

m monopiles (the maximum size piles 

Dominion Energy plans to install), at a 

range of 750 m from the driven piles 

(Remmers and Bellmann (2021)). Based 

on possible influences of friction 

between the head of the vibratory 

hammer and the top of the piles, iTAP 

states that these results at 750 m from 

the piles may be overestimating the 

source level for vibratory pile driving. 


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For vibratory installation of 

cofferdams, adjusted one-third-octave 

band source levels (with a broadband 

source level of 195 dB SEL) were 

obtained from similar offshore 

construction projects and then adjusted 

to account for the estimated force 

needed to drive cofferdam sheet piles 

(see Schultz-von Glahn et al., 2006). 

Acoustic Propagation Modeling 

To predict acoustic levels at range 

during foundation installation (impact 

and vibratory pile driving) and 

temporary cofferdam installation and 

removal (vibratory pile driving), Tetra 

Tech used sound propagation models, 

discussed below. For the installation 

and removal of goal posts and HRG 

surveys, Dominion Energy assumed a 

practical spreading loss rate (15logR). 

Below we describe the more 

sophisticated sound propagation 

modeling methodology. 

Tetra Tech utilized a software called 

dBSea, which was developed by 

Marshall Day Acoustics (https://

www.dbsea.co.uk/), to predict the 

underwater noise in similar 

environments to what might be 

encountered in the CVOW–C Project 

Area. Per Attachment Z–1 of the COP, 

Tetra Tech used different ‘‘solvers’’ (i.e., 

algorithms) for the low and highfrequency ranges, including: 

• dBSeaPE (Parabolic Equation 

Method): The dBSeaPE solver makes use 

of the range-dependent acoustic model 

(RAM) parabolic equation method, a 

versatile and robust method of marching 

the sound field out in range from the 

sound source. This method is one of the 

most widely used in the underwater 

acoustics community, offers excellent 

performance in terms of speed and 

accuracy in a range of challenging 

scenarios, and was used for low 

frequencies. 

• dBSeaRay (Ray Tracing Method): 

The dBSeaRay solver forms a solution 

by tracing rays from the source to the 

receiver. Many rays leave the source 

covering a range of angles, and the 

sound level at each point in the 

receiving field is calculated by 

coherently summing the components 

from each ray. This is currently the only 

computationally efficient method at 

high frequencies and was used for 

frequencies of 800 Hz and greater. 

Each model utilizes imported 

environmental data and manually 

placed noise sources in the aquatic 

environment, which could consist of 

either equipment in the standard dBSea 

database or a user-specific database (i.e., 

the empirically determined source 

levels and spectra, discussed above). 

The software then allows the user to 

include properties specific to the project 

site including bathymetry, seabed, and 

water column characteristics (e.g., 

sound speed profiles, temperature, 

salinity, and current). Tetra Tech also 

incorporated variables for each pile to 

account for the soft-start of impact pile 

driving of foundation piles and pile 

penetration progression. 

For the CVOW–C Project’s modeled 

environment using dBSea, bathymetry 

data were obtained by Tetra Tech from 

the National Geophysical Data Center 

and U.S Coastal Relief Model (NOAA 

Satellite and Information Service, 2020) 

and consisted of a horizontal resolution 

of 3 arc seconds (defined as 90 m 

(295.28 ft)). The data covered an area 

consisting of 138 km x 144 km 

(452,755.91 ft x 472,440.94 ft) with a 

maximum depth of 459 m (1,505.91 ft). 

Sound sources were placed near the 

middle of the bathymetry area. The 

bathymetry data were imported into the 

dBSea model and extents were set for 

displaying the received sound levels. 

Relatedly, sediment data were also 

included into the model as bottom 

sedimentation has the potential to 

directly impact the sound propagation. 

Dominion Energy’s site assessment 

surveys revealed the Project Area 

primarily consists of a predominantly 

sandy seabed. While not reiterated here, 

Appendix A of Dominion Energy’s 

application contains the tables that 

include the geoacoustic properties of the 

sub-bottom sediments for modeling 

scenarios involving the more offshore 

WTG and OSS foundations (see Table 

Z–5) and for the nearshore temporary 

cofferdams (see Table Z–6). 

Given that the sound speed profile in 

an aquatic environment varies 

throughout the year, Tetra Tech 

calculated seasonal sound speed 

profiles based on the planned 

installation schedule presented for the 

CVOW–C Project. Dominion Energy 

would only install WTG and OSS 

foundations between May 1st and 

October 31st, annually, hence an 

average sound speed profile was 

calculated for this time period. Sound 

speed profile data were obtained from 

the NOAA Sound Speed Manager 

software incorporating World Ocean 

Atlantic 2009 extension algorithms. A 

sensitivity analysis was performed on 

the monthly sound speed information to 

determine the most conservative sound 

modeling results. The average sound 

speed profile obtained from this dataset 

was directly included into the dBSea 

model (see Figure 3 in Attachment Z– 

1 in Dominion Energy’s application 

(Appendix A)). This same approach was 

undertaken for temporary cofferdam 

installation. 

The scenarios for WTG monopile and 

OSS jacket pin pile installation were 

modeled using a vertical array (based on 

third-octave band sound characteristics 

that was adjusted for site-specific 

parameters, including expected hammer 

energy and the number of hammers 

strikes needed per each scenario) of 

point sources spaced at 1-m intervals. 

Each of the third octave band center 

frequencies from 12.5 Hz up to 20 kHz 

of the source spectra was modeled. In 

order to conservatively account for the 

presence of pile driving sound at highfrequencies, a constant 15 dB/decade 

roll-off is applied to the modeled 

spectra after the second spectral peak. 

The spectra source levels for impact 

driving of monopile and pin piles can 

be found in Figure 10 of the CVOW–C 

ITA application. The vibratory pile 

driving spectra, which is available in 

Figure 11 of the ITA application, used 

reference information from iTAP (Gerke 

and Bellmann, 2012), the California 

Department of Transportation 

(CALTRANS, 2015), and from 

measurements of vibratory driving 

collected by Tetra Tech. Based on the 

description above, Tetra Tech 

determined an appropriate sound speed 

profile to input into dBSea by pulling 

the average sound speed profile for the 

construction period (May 1st to October 

31st), following the schedule provided 

by Dominion Energy. No information 

was pulled for November 1st through 

April 30th, as no pile driving is planned 

due to seasonal restrictions regarding 

the North Atlantic right whale. The 

monthly sound speed profile for the 

planned WTG and OSS foundation 

construction period is found in Figure 

12 in the CVOW–C ITA application. 

The sound level estimates are 

calculated from the generated threedimensional sound fields and then, at 

each sampling range, the maximum 

received level that occurs within the 

water column is used as the received 

level at that range. The dBSea model 

allows for a maximum received levelover-depth approach (i.e., the maximum 

received level that occurs within the 

water column at each calculation point). 

These maximum-over-depth (Rmax) 

values are then compared to 

predetermined threshold levels to 

determine exposure and acoustic ranges 

to Level A harassment and Level B 

harassment threshold isopleths. 

However, the ranges to a threshold 

typically differ among radii from a 

source and also might not be continuous 

along a radii because sound levels may 

drop below threshold at some ranges 

and then exceed threshold at farther 

ranges. Both the Rmax (the maximum 


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range in the model at which the sound 

level was calculated) and R95% (excludes 

ends of protruding areas or small 

isolated acoustic foci not representative 

of the nominal ensonified zone) were 

calculated for each of the relevant 

regulatory thresholds. The difference 

between Rmax and R95% depends on the 

source directivity and the heterogeneity 

of the acoustic environment. 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. 

Here we note that Tetra Tech and MAI 

did not calculate or provide exposure 

ranges to the Level A harassment SELcum

thresholds in the ITA application as 

provided by other offshore wind 

developers in their ITA application. 

Instead, Dominion Energy chose to 

utilize acoustic ranges (R95%) values in 

its analysis, which NMFS concurs is 

also a reasonable and more conservative 

approach and likely results in somewhat 

comparatively larger zones. Dominion 

Energy’s application and this rule 

include the R95% ranges as these are 

representative of the expected 

underwater acoustic footprints during 

foundation and cofferdam installation. 

Temporary cofferdams followed a 

similarly described approach. To 

estimate the distances to the harassment 

isopleths from the vibratory installation 

of sheet piles, it was assumed that the 

vibratory pile driver would use 

approximately 1,800 kilonewtons of 

vibratory force over 60 minutes. Given 

the close proximity of all temporary 

cofferdams in the nearshore 

environment and the relatively same 

installation depth (3.3. m), a single 

representative location (i.e., the 

centermost cofferdam) was used for the 

modeling analysis. As already described 

above for foundation modeling, the 

same dBSea process using unique 

environmental variables and sediment 

data (i.e., predominantly sand) was 

applied for cofferdams. Dominion 

Energy applied a summary sound speed 

profile to estimate propagation from 

cable landfall pile driving given this 

work would most likely occur between 

May 1st and October 31st. To calculate 

the ranges to acoustic thresholds, Tetra 

Tech utilized a maximum received 

level-over-depth approach where the 

maximum received sound level that 

occurs within the water column at each 

sampling point was used. Tetra Tech 

calculated both the Rmax and the R95% for 

each of the marine mammal regulatory 

thresholds. 

Animal Movement Modeling 

To estimate the probability of 

exposure of animals to sound above 

NMFS’ harassment thresholds during 

foundation installation, MAI integrated 

the sound fields generated from the 

source and propagation models 

described above with marine mammal 

species-typical behavioral parameters 

(e.g., dive parameters, swimming speed, 

and course/direction changes). Animal 

movement modeling was performed for 

all marine mammal species determined 

to potentially occur within the CVOW– 

C Project Area to estimate the amount of 

potential acoustic exposures above 

NMFS’ Level A (PTS) harassment and 

Level B (behavioral) harassment 

thresholds. Animat modeling was 

conducted for four scenarios (three for 

WTGs, one for OSS) that were 

determined to be representative of the 

types of construction activities expected 

at three different locations (two for 

WTGs (one shallow (21 m (69 ft)) and 

one deep (37 m (121 ft)) location) and 

one for OSSs (28 m (92 ft))). These 

locations were selected to appropriately 

observe the range of effects of sound 

propagation. The modeled areas are 

shown in Figure Z–4 in Dominion 

Energy’s Underwater Acoustic 

Assessment (Appendix A in the 

application). 

MAI’s animat modeling was 

conducted using the Acoustic 

Integration Model (AIM; Frankel et al., 

2002), which is a Monte Carlo based 

statistical model in which multiple 

iterations of realistic predictions of 

acoustic source use as well as animal 

distribution and movement patterns are 

conducted to provide statistical 

predictions of estimated effects from 

exposure to underwater sound 

transmissions. By using AIM, each 

acoustic source and receiver were 

modeled using the same concept as 

animats. For each species, separate AIM 

simulations were developed and 

iterated for each modeling scenario and 

activity location. During the 

simulations, animats were randomly 

distributed within the model simulation 

area and the predicted received sound 

level was estimated every 30 seconds to 

create a history over a 24-hour period. 

Animats were also pre-programmed to 

move every 30 seconds based upon 

species-specific behaviors. At the end of 

each 30 second interval, the received 

sound level (in dB RMS) for each animat 

was recorded. 

Animats that exceed NMFS’ acoustic 

thresholds were identified and the range 

for the exceedances determined. 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. 

The number of animals expected to 

exceed the regulatory thresholds is 

determined by scaling the probability of 

exposure by the species-specific density 

of animals in the area. By programming 

animats to behave like marine species 

that may be exposed to foundation 

installation noise during pile driving, 

the animats are exposed to the sound 

fields in a manner similar to that 

expected for real animals. 

Static Take Estimate Method 

Take estimates from cable landfall 

construction activities (cofferdam and 

goal post installation and removal) and 

HRG surveys were calculated based on 

a static method (i.e., animal movement 

modeling was not conducted for these 

activities). Take estimates produced 

using the static method are the product 

of density, ensonified area, and number 

of days of pile driving work. 

Specifically, take estimates are 

calculated by multiplying the expected 

densities of marine mammals in the 

activity area(s) by the area of water 

likely to be ensonified above the NMFS 

defined threshold levels in a single day 

(24-hour period). Next that product is 

multiplied by the number of days pile 

driving is likely to occur. A summary of 

this method is illustrated in the 

following formula: 

Estimated Take = D × ZOI × # of days 

Where: 

D = average species density (per 100 km2); 

and 

ZOI = maximum daily ensonified area to 

relevant thresholds. 

This methodology was utilized for 

impact pile driving associated with goal 

posts, vibratory pile driving associated 

with temporary cofferdams, and active 

acoustic source use from HRG surveys 

as no exposure modeling was 

conducted. 

Density and Occurrence 

In this section, we provide 

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 activity type, and as 

described in the Estimated Take section 

for each activity type, the calculated 

number of takes and the number of takes 

that NMFS authorizes is based on the 

highest estimate of take resulting from 


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full consideration of density models, 

average group sizes, or site-specific 

survey data. 

Dominion Energy applied the Duke 

University Marine Geospatial Ecology 

Laboratory marine mammal habitatbased density models (https:// 

seamap.env.duke.edu/models/Duke/ 

EC/) to estimate take from WTG and 

OSS foundation installation, temporary 

goal post installation and removal, 

temporary cofferdam installation and 

removal, and HRG surveys. 

The Duke habitat-based density 

models delineate species’ density into 5 

x 5 km (3.1 x 3.1 mi) grid cells (as 

opposed to the 10 x 10 km (6.2 x 6.2 mi) 

grid cells previously used in past 

Roberts et al. datasets for all species, 

with exception for the North Atlantic 

right whale). Although the density grid 

cells are 25 km2 (9.7 mi2), the values are 

still reported per 100 km2 (38.6 mi2). 

Based on the area across which different 

specified activities are conducted (i.e., 

WTG and OSS foundation installation, 

nearshore cable landfall activities, and 

HRG surveys), appropriate averaged 

density estimates are applied to 

exposure and/or take calculations for 

each area. 

For foundation installation, densities 

were extracted from grid cells within 

the Lease Area and those extending 8.9 

km (5.53 mi) beyond the Lease Area 

boundaries. The grid cells within the 8.9 

km perimeter area were incorporated to 

account for the largest ensonified area to 

the Level B harassment threshold; 

thereby representing the furthest extent 

where potential impacts to marine 

mammals could be expected. The 

density in the grid cells selected were 

averaged for each month to provide a 

mean monthly density for each marine 

mammal species and/or stock. In some 

cases, the density models combine 

multiple species (i.e., long-finned and 

short-finned pilot whales, gray and 

harbor seals) or stocks (i.e., Southern 

migratory coastal and the Western North 

Atlantic offshore bottlenose dolphin 

stocks), or it may not be possible to 

derive monthly/seasonal densities for 

some species so annual densities were 

used instead (i.e., pantropical spotted 

dolphins, pilot whale spp.). 

Group Size and PSO Data 

Considerations 

The exposure estimates from the 

animal movement modeling or static 

methods described above directly 

informed the take estimates. In some 

cases, adjustments to the density-based 

exposure estimates may be necessary to 

fully account for all animals that could 

be taken during the specified activities. 

This could consist of an adjustment 

based on species group size or 

observations or acoustic detections 

provided in monitoring reports. 

For some species, observational data 

from PSOs aboard HRG survey vessels 

indicate that the density-based exposure 

estimates may be insufficient to account 

for the number of individuals or type of 

species that may be encountered during 

the planned activities. As an example, 

pantropical spotted dolphins have been 

included in the requested take request 

based on prior PSO observation data, 

obtained via the 2020–2021 monitoring 

report from under previously issued 

(and subsequently modified) HRG IHAs 

to Dominion Energy occurring in and 

around the Lease Area (see RPS (2018), 

AIS, Inc. (2020), and RPS (2021)). For 

other less-common species, the 

predicted densities from Roberts et al. 

(2023) are very low and the resulting 

density-based exposure estimate was 

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 take 

estimates to account for potential 

impacts on a group during an activity. 

Regardless of methodology used (i.e., 

density-based, group size, PSO data), 

Dominion Energy requested, and NMFS 

has conservatively authorized, take 

based on the highest amount of 

exposures estimated from any given 

method. Below we present the results of 

the methodologies described above, 

including distances to NMFS 

thresholds, and take estimates 

associated with each activity. 

WTG and OSS Foundation Installation 

Here, we present the construction 

scenarios Dominion Energy applied to 

its analysis, which NMFS is carrying 

forward in this rule, and the resulting 

acoustic ranges to Level A harassment 

and Level B harassment thresholds, 

exposure estimates, and take estimates 

from WTG and OSS foundation 

installation following the 

aforementioned modeling 

methodologies. 

To complete the project, Dominion 

Energy has prepared four foundation 

installation construction schedules 

(three for WTG installation and one for 

OSS installation), as construction 

schedules cannot be fully predicted due 

to uncontrollable environmental factors 

(e.g., weather) and installation 

schedules include variability (e.g., due 

to drivability). Since three locations had 

been identified where OSSs would be 

constructed, the modeling relied on a 

single site that would result in further 

propagation distance. This site was 

determined to be representative of all 

three OSS locations. 

For the monopile scenarios, two types 

of pile driving conditions are expected 

for each monopile installed: a standard 

pile driving situation (Scenario 1) and a 

hard-to-drive (Scenario 2) situation. 

During the installation of one monopile 

for WTG foundations per day, either a 

standard or hard-to-drive scenario may 

be necessary, which would determine 

the duration of vibratory driving and the 

number of impact hammer strikes 

needed. In situations where two 

monopile WTGs would be installed per 

day (i.e., Scenario 3), Dominion Energy 

assumed that only one monopile would 

consist of a hard-to-drive scenario and 

the other would always be standard. 

Dominion Energy has committed to not 

installing two hard-to-drive foundations 

in a single day. For OSS jacket 

foundations, a single installation 

approach (i.e., Scenario 4; impact pile 

driving only) is expected for the 

installation of up to two pin piles per 

day. 

Dominion Energy has assumed that a 

maximum of two monopiles may be 

installed per day or that a maximum of 

two pin piles would be installed per 

day. No concurrent pile driving would 

occur. Due to the risk of pile run, 

Dominion Energy expects to utilize a 

joint vibratory-impact pile driving 

installation approach on all WTG and 

OSS foundation piles. All scenarios, 

including associated pile driving 

details, expected to occur can be found 

in Table 5 below. 

TABLE 5—WTG AND OSS FOUNDATION INSTALLATION SCENARIOS

Installation scenario Foundation installed c Installation details Duration of installation activity a

Scenario 1: Standard Driving ............................... 9.5 m diameter monopile 

foundation (1 pile per 

day).

Vibratory pile driving ............................................ 60 minutes. 

Impact pile driving ............................................... 3,240 hammer strikes (4,000 kJ). 


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TABLE 5—WTG AND OSS FOUNDATION INSTALLATION SCENARIOS—Continued 

Installation scenario Foundation installed c Installation details Duration of installation activity a

Scenario 2: Hard-to-drive ..................................... 9.5 m diameter monopile 

foundation (1 pile per 

day).

Vibratory pile driving ............................................ 30 minutes. 

Impact pile driving ............................................... 3,720 hammer strikes (4,000 kJ). 

Scenario 3: One standard and one hard-todrive b.

9.5 m diameter monopile 

foundations (2 piles per 

day).

Vibratory pile driving ............................................ 90 minutes. 

Impact pile driving ............................................... 6,960 hammer strikes (4,000 kJ). 

Scenario 4: OSS Jacket Foundation .................... 2.8 m diameter pin piles (2 

piles per day).

Vibratory pile driving ............................................ 120 minutes. 

Impact pile driving ............................................... 15,120 hammer strikes (3,000 kJ). 

a The hammer energy of 4,000 kJ represents the maximum hammer energy; however, Dominion Energy anticipates the energy will be less than this. b Two hard-to-drive piles would never be installed on the same day. c Dominion Energy may build up to two foundations per day, consisting of either WTG monopiles or pin piles per jacket foundations. However, on some days, only 

one monopile may be built per day and would consist of a single standard driven pile or a hard-to-drive pile. 

As described above, underwater noise 

associated with the construction of 

offshore components of CVOW–C would 

predominantly result from vibratory and 

impact pile driving monopile and jacket 

foundations. As previously described, 

Dominion Energy employed Tetra Tech 

to conduct acoustic modeling and MAI 

to conduct animal movement exposure 

modeling to better understand sound 

fields produced during these activities 

and to estimate exposures. For 

installation of foundation piles, animal 

movement modeling was used to 

estimate exposures. 

Presented below are the acoustic 

ranges to the Level A harassment and 

Level B harassment thresholds for WTG 

installation in the deeper environment 

(Table 6), WTG installation in the 

shallower water (Table 7), and OSS 

installation in the single representative 

location (Table 8). All ranges shown are 

assuming 10 dB of sound attenuation as 

Dominion Energy would employ a noise 

attenuation system (NAS; consisting of 

at least a double bubble curtain) during 

all vibratory and impact pile driving of 

monopile and jacket foundations. 

Although three attenuation levels were 

evaluated, and Dominion Energy has not 

yet finalized its mitigation strategy, 

Dominion Energy and NMFS both 

anticipate that the noise attenuation 

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 for WTG 

and OSS foundation installation. See 

the Mitigation section for more 

information regarding the justification 

for the 10 dB assumption. 

BILLING CODE 3510–22–P 


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ER23JA24.001</GPH>khammond on DSKJM1Z7X2PROD with RULES2

Table 6 - Acoustic Ranges (R9s%), In Meters, To Level A Harassment (PTS) and Level B Harassment T

Deep WTG Location For Marine Mammal Function Hearing Groups, Assuming An Average Sound Sp

of Sound Attenuation 

Distance to Marine Mammal Thresholds (m) 

Foundation Installation Parameters Level A Harassment (PTS) 

LFC MFC HFC p

Maxi lnstal 

Instal Pile Instal mum lation 183 199 185 198 155 173 1

lation Instal lation Ham durati 219 LE, LE, 230 LE, LE, 202 LE, LE, 218 L

Scena led Appr mer on 1⁄2J,pk Lp,pk Lp,pk Lp,pk 

rio oach Energ (minu 24hr 24hr 24hr 24hr 24hr 24hr 2

y tes) 

9.5m lmpa 4,000 85 132 4,396 _a 29 170 _a 663 2,139 _a 141 1,2

Scena diam ct kJ 

rio 1: eter 

Stand mono 

ard pile 

drivin (1 Vibra n/a 60 _a _a 141 _a _a 0 _a _a 103 _a _

g pile tory per 

day) 

9.5m Impa 4,000 99 132 4,980 _a 29 187 _a 663 2,304 _a 141 1,3

diam ct kJ 

Scena eter 

rio 2: mono 

Hard- pile 

to- (1 Vibra n/a 30 _a _a 113 _a _a 0 _a _a 87 _a _

drive pile tory 

per 

day) 

Scena 9.5m lmpa 4,000 184 132 5,663 _a 29 226 _a 663 2,884 _a 141 1,7

rio 3: diam ct kJ 

One eter 

stand mono Vibra ard pile n/a 90 _a _a 158 _a _a 0 _a _a 125 _a _

and (2 tory 

ER23JA24.002</GPH>khammond on DSKJM1Z7X2PROD with RULES2

Distance to Marine Mammal Thresholds (m) 

Foundation Installation Parameters Level A Harassment (PTS) 

LFC MFC HFC p

one piles 

hard- per 

to- day) 

drive 

Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinniped

sound pressure (dB re 1 μPa); LE= sound exposure level (dB re 1 μPa2 ·s); Lp,pk = peak sound pressure (dB re 1 μPa) 

a - Dashes (-) indicate a value that was not calculated by Tetra Tech during the acoustic modeling analysis given the thresholds do 

the peak impulsive threshold was not calculated for vibratory driving). 

ER23JA24.003</GPH>khammond on DSKJM1Z7X2PROD with RULES2

Table 7 - Acoustic Ranges (R9s%), In Meters, To Level A Harassment (PTS) and Level B Harassment T

Shallow WTG Location For Marine Mammal Function Hearing Groups, Assuming An Average Sound 

dB of Sound Attenuation 

Distance to Marine Mammal Threshold (m) 

Foundation Installation Parameters Level A Harassment (PTS) 

LFC MFC HFC p

Maxi lnstal 

Instal Pile Instal mum lation 183 199 185 198 155 173 1

lation Instal lation Ham durati 219 LE, LE, 230 LE, LE, 202 LE, LE, 218 L

Scena led Appr mer on 1⁄2J,pk Lp,pk Lp,pk Lp,pk 

rio oach Energ (minu 24hr 24hr 24hr 24hr 24hr 24hr 2

y tes) 

9.5m lmpa 4,000 85 128 3,138 _a 26 99 _a 607 1,659 _a 138 1,0

Scena diam ct kJ 

rio 1: eter 

Stand mono 

ard pile 

drivin (1 Vibra n/a 60 _a _a 107 _a _a 0 _a _a 93 _a _

g pile tory per 

day) 

9.5m Impa 4,000 99 128 3,363 _a 26 108 _a 607 1,888 _a 138 1,

diam ct kJ 

Scena eter 

rio 2: mono 

Hard- pile 

to- (1 Vibra n/a 30 _a _a 88 _a _a 0 _a _a 67 _a _

drive pile tory 

per 

day) 

Scena 9.5m lmpa 4,000 184 128 4,152 _a 26 134 _a 607 2,314 _a 138 1,4

rio 3: diam ct kJ 

One eter 

stand mono Vibra ard pile n/a 90 _a _a 135 _a _a 0 _a _a 110 _a _

and (2 tory 

ER23JA24.004</GPH>khammond on DSKJM1Z7X2PROD with RULES2

Distance to Marine Mammal Threshold (m) 

Foundation Installation Parameters Level A Harassment (PTS) 

LFC MFC HFC p

one piles 

hard- per 

to- day) 

drive 

Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinniped

sound pressure (dB re 1 μPa); LE= sound exposure level (dB re 1 μPa2 ·s); Lp,pk = peak sound pressure (dB re 1 μPa) 

a - Dashes (-) indicate a value that was not calculated by Tetra Tech during the acoustic modeling analysis given the thresholds do 

the peak impulsive threshold was not calculated for vibratory driving). 
BILLING CODE 3510–22–C 


ER23JA24.005</GPH>khammond on DSKJM1Z7X2PROD with RULES2

Table 8 - Acoustic Ranges (R9s%), In Meters, To Level A Harassment (PTS) and Level B Harassment T

Shallow OSS Location For Marine Mammal Function Hearing Groups, Assuming An Average Sound S

of Sound Attenuation 

Distance to Marine Mammal Thresholds (m) 

Foundation Installation Parameters Level A Harassment (PTS) 

LFC MFC HFC p

Maxi Instal 

Instal Pile Instal mum lation 183 199 185 198 155 173 1

lation Instal lation Ham durati 219 LE, LE, 230 LE, LE, 202 LE, LE, 218 L

Scena led Appr mer on 1⁄2J,pk Lp,pk Lp,pk Lp,pk 

rio oach Energ (minu 24hr 24hr 24hr 24hr 24hr 24hr 2

y tes) 

Scena 2.8m lmpa 3,000 410 0 2,680 _a 0 48 _a 197 1,435 _a 0 1,2

rio 4: diam ct kJ oss eter jacket pin Vibra found n/a 120 _a _a 75 _a _a 0 _a _a 68 _a _

ation pile tory 

Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinniped

sound pressure (dB re I μPa); LE= sound exposure level (dB re I μPa2 ·s); Lp,pk = peak sound pressure (dB re I μPa) 

a - Dashes (-) indicate a value that was not calculated by Tetra Tech during the acoustic modeling analysis given the thresholds do 

the peak impulsive threshold was not calculated for vibratory driving). 
4406 Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 

Dominion Energy provided seasonal 

density estimates during the time of 

year when WTG and OSS foundations 

would be installed following the 

methodology provided in the Density 

and Occurrence section above. The 

resulting densities used in the exposure 

estimate calculations for foundation 

installation are provided in Table 9. 

TABLE 9—MEAN SEASONAL DENSITY ESTIMATES FOR WTG AND OSS FOUNDATION INSTALLATION

[Inclusive of the 8.9 Km perimeter applied for the largest Level B harassment zone from vibratory pile driving] 

Marine mammal species Stock 

Mean density 

(individual/km2) 

Spring 

(May) 

Summer 

(June to August) 

Fall 

(September to October) c

Annual 

density 

North Atlantic right whale * ........................ Western North Atlantic .............................. 0.00015 0.00004 0.00005 ................

Fin whale * ................................................. Western North Atlantic .............................. 0.00069 0.00036 0.00019 ................

Humpback whale ....................................... Gulf of Maine ............................................. 0.00136 0.00023 0.00040 ................

Minke whale .............................................. Canadian East Coast ................................ 0.00519 0.00028 0.00011 ................

Sei whale * ................................................. Nova Scotia ............................................... 0.00021 0.00001 0.00004 ................

Sperm whale * ........................................... North Atlantic ............................................. 0.00003 0.00000 0.00000 ................

Pygmy sperm whale .................................. Western North Atlantic .............................. a n/a a n/a a n/a ................

Atlantic spotted dolphin ............................. Western North Atlantic .............................. 0.00507 0.05873 0.03822 ................

Atlantic white-sided dolphin ....................... Western North Atlantic .............................. a n/a a n/a a n/a ................

Bottlenose dolphin d ................................... Southern Migratory Coastal ......................

Western North Atlantic, Offshore ..............

0.13098 

0.07352 

0.13509 

0.07415 

0.13852 

0.06439 

................

................

Clymene dolphin ........................................ Western North Atlantic .............................. a n/a a n/a a n/a ................

Common dolphin ....................................... Western North Atlantic .............................. 0.05355 0.00559 0.00103 ................

False killer whale ....................................... Western North Atlantic .............................. a n/a a n/a a n/a ................

Melon-headed whale ................................. Western North Atlantic .............................. a n/a a n/a a n/a ................

Long-finned pilot whale e ........................... Western North Atlantic .............................. (b) (b) (b) 0.00098 

Short-finned pilot whale e .......................... Western North Atlantic .............................. (b) (b) (b) 0.00098 

Pantropical spotted dolphin ....................... Western North Atlantic .............................. (b) (b) (b) 0.00008 

Risso’s dolphin .......................................... Western North Atlantic .............................. 0.00084 0.00042 0.00021 ................

Harbor porpoise ......................................... Western North Atlantic .............................. 0.00315 0.00000 0.00000 ................

Gray seal ................................................... Western North Atlantic .............................. 0.01828 0.00001 0.00047 ................

Harbor seal ................................................ Western North Atlantic .............................. 0.01828 0.00001 0.00047 ................

Note: * denotes species listed under the Endangered Species Act. aThese species were added to the list of marine mammal species that could potentially be harassed by project activities after the animat analysis was completed 

so no exposure estimates were calculated. Instead, a standard group size of animals was used instead for any analysis pertaining to this species. bFor these species, monthly densities were not available. Instead, annual densities were used. 

cAs no foundation installation is planned to occur in November or December, the relevant values were not included. 

dWithin the Roberts et al. (2023) data, bottlenose dolphin densities are reported as a single ‘‘bottlenose dolphin’’ group and are not identified by stock. Given that 

the WTG and OSS foundation installation would be occurring beyond the 20-m isobath, where the stocks are split, estimated take was assumed to come from the offshore stock. ePilot whale spp. are reported as a single group (Globicephala spp.) and are not species-specific. Because of this, Dominion Energy assumed that the density was 

a collective pilot whale group and could be attributed to either the short-finned or long-finned species. 

MAI set the modeled marine mammal 

animats to populate each of the model 

areas with the representative nominal 

densities provided. During the 

modeling, some of the obtained 

densities were higher than the realworld density, as to ensure that the 

results of the animat model simulations 

were not unduly influenced by the 

spontaneous placement of some of the 

simulated marine mammals and to 

provide additional statistical robustness 

within the modeling exercise. To obtain 

the final exposure estimates, the 

modeled results were normalized by the 

ratio of the modeled animat density to 

the real-world seasonal densities. The 

exposure estimates were derived based 

on the history of exposure within the 

modeling exercise for each marine 

mammal species or species group. The 

modeled SEL received by each animat 

over the duration of the construction 

activity period (e.g., estimated 3 hours 

of driving on a single monopile) and the 

peak sound pressure level were used to 

calculate the potential for an individual 

animat to have experienced PTS, in 

accordance with the NOAA Fisheries 

(2018) physiological acoustic thresholds 

for marine mammals. If an animat was 

not predicted to have experienced PTS, 

then the sound energy received by each 

individual animat over the 24-hour 

modeled period was used to assess the 

potential risk of biologically significant 

behavioral reactions. The modeled RMS 

sound pressure levels were used to 

estimate the potential for behavioral 

responses, in accordance with the 

NOAA Fisheries (2005b) behavioral 

criteria. 

For the monopile WTG installation, 

the exposure calculations assumed 176 

WTG monopiles would be installed over 

2 years, but also took into account the 

need for Dominion Energy to possibly 

re-pile for up to 7 WTG foundations 

(equating to a total of 183 modeled 

piling events for WTGs). For the jacket 

foundations using pin piles for the 

OSSs, the modeling assumed that up to 

12 pin piles (4 per OSS for up to 3 total 

OSSs) would be installed over 2 years. 

Both of these were modeled in 

accordance with the schedule provided 

by Dominion Energy. 

Overall, for Year 1 (2024), it was 

assumed that up to a maximum of 95 

monopiles and all 12 pin piles would be 

installed. For Year 2, it was assumed 

that a maximum of 88 monopiles (which 

does account for the 7 possible re-piling 

events that may be necessary) would be 

installed. As construction of the WTGs 

and OSSs are only anticipated to occur 

in the first 2 years of the project (2024 

and 2025), animats were only calculated 

for these. Although schedule delays due 

to weather or other unforeseen activities 

may require Dominion Energy to not 

complete all piling in Year 2, but 

instead push a limited number of piles 

to Year 3 (2026) and/or Year 4 (2027), 

no modeling was completed for 2026 or 

2027. This is because any piles not 

completed in 2025 (Year 2) would be 

pushed to 2026 (Year 3) and/or 2027 

(Year 4), which means that the current 

analysis has accounted for the total 

scenario for foundation installation 

activities in Year 2 would be less than 

estimated here and instead would shift 

some to Years 3 or 4. Please see Table 

10 for the derived exposure estimates 

during WTG and OSS foundation 

installation over 2 years (2024 and 

2025). 

The exposure estimates for both the 

installation of WTGs and OSSs over 2 


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Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 4407 

years (2024 and 2025) were then 

adjusted, for some species, based on 

group size characteristics known 

through the scientific literature and 

received sighting reports from previous 

projects and/or surveys. As indicated 

below, when density-based exposure 

estimates were lower than numbers that 

were found in the scientific literature or 

via real-world sighting reports, these 

estimates were adjusted by either a 

standard group size for the species/stock 

or by PSO observational data. The 

species-specific requested and 

authorized take estimates are listed 

below, in accounting for these 

adjustments, where applicable: 

• North Atlantic right whale: Take by 

Level B harassment for foundation 

installation adjusted for group size of 

one individual for months with monthly 

density <0.01 per 100 km2 (Roberts et 

al., 2023) when construction may occur 

(May–October) and two individuals for 

months with monthly density >0.01 

when construction may occur (May– 

October); 

• Fin whale: Adjusted based on PSO 

data (max daily number × days of 

activity); 

• Humpback whale: Adjusted based 

on PSO data (max daily number × days 

of activity); 

• Sperm whale: Adjusted based on 

one group size per year (three per 

Barkaszi et al., 2019); 

• Atlantic white-sided dolphin: 

Adjusted based on 1 group size per year 

(15 per Reeves et al., 2002); 

• Pantropical spotted dolphin: 

Adjusted based on 1 group size per year 

(20 per Reeves et al., 2002); 

• Short-beaked common dolphin: 

Adjusted based on 1 group size (20 

individuals per group) per day 

(Dominion Energy, 2021); 

• Clymene dolphin: Adjusted based 

on one group size (five per AIS, Inc. 

(2020)); 

• False killer whale: Adjusted based 

on one group size per year (four per RPS 

(2021)); 

• Melon-headed whale: Adjusted 

based on one group size per year (five 

per RPS (2018)); and 

• Pygmy sperm whale: Adjusted 

based on one group size per year (one 

per RPS (2021)). 

In Table 10, we present the calculated 

exposure estimates and the maximum 

amount of take authorized during 

foundation installation of WTGs and 

OSSs during the 5-year effective period 

for the CVOW–C Project. As 

demonstrated by the exposure modeling 

results, which do not consider 

mitigation other than the use of a sound 

attenuation device(s), the potential for 

Level A harassment is very low. 

However, there may be some situations 

where pile driving cannot be stopped 

due to safety concerns related to pile 

instability. 

As previously discussed, only 176 

WTG and 3 OSS (using a maximum of 

12 pin piles) foundations would be 

permanently installed for the CVOW–C 

Project; however, Dominion Energy has 

considered the possibility that some 

piles may be started but not fully 

installed at some locations due to 

installation feasibility issues. 

Conservatively, Dominion Energy has 

estimated up to seven additional pile 

driving events may be needed in the 

event this occurs. Per Dominion 

Energy’s estimated construction 

schedule, it is anticipated that all of 

these foundation installation activities 

would occur in Year 1 (2024) and Year 

2 (2025); therefore, the take estimates 

below reflect the foundation pile driving 

activities associated with 183 WTG 

foundations and 3 OSSs, to account for 

the 7 additional re-piling events that 

may occur if monopiles were started in 

one location but then needed to be redriven at another WTG position. 

TABLE 10—EXPOSURES ESTIMATES AND MAXIMUM AMOUNT OF TAKE AUTHORIZED BY LEVEL A HARASSMENT AND LEVEL

B HARASSMENT FROM VIBRATORY AND IMPACT PILE DRIVING ASSOCIATED WITH 183 WTG f AND 3 OSS TOTAL INSTALLATION EVENTS, ASSUMING 10 dB OF NOISE ATTENUATION

Marine mammal species Stock 

Estimated exposures Takes authorized 

2024 2025 2024 2025 e

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

North Atlantic right whale * c ...... Western North Atlantic .............. c 1 3 c 1 2 0 6 0 6 

Fin whale * ................................. Western North Atlantic .............. 4 21 3 19 4 112 3 90 

Humpback whale ....................... Gulf of Maine ............................. 4 18 4 14 4 29 4 104 

Minke whale .............................. Canadian East Coast ................ 8 53 7 48 8 53 7 48 

Sei whale * ................................. Nova Scotia ............................... 1 3 1 2 1 3 1 2 

Sperm whale * ........................... North Atlantic ............................. 0 1 0 1 0 3 0 3 

Pygmy sperm whale g ................ Western North Atlantic .............. a n/a a n/a a n/a a n/a 0 1 0 1 

Atlantic spotted dolphin ............. Western North Atlantic .............. 0 2,108 0 1,896 0 2,108 0 1,896 

Atlantic white-sided dolphin d .... Western North Atlantic .............. h n/a h n/a h n/a h n/a 0 15 0 15 

Bottlenose dolphin a ................... Southern Migratory Coastal ...... 0 0 0 0 0 0 0 0 

Western North Atlantic, Offshore.0 4,290 0 3,602 0 4,290 0 3,602 

Clymene dolphin g ..................... Western North Atlantic .............. h n/a h n/a h n/a h n/a 0 5 0 5 

Common dolphin ....................... Western North Atlantic .............. 0 594 0 559 0 1,720 0 1,380 

False killer whale g .................... Western North Atlantic .............. h n/a h n/a h n/a h n/a 0 4 0 4 

Melon-headed whale g ............... Western North Atlantic .............. h n/a h n/a h n/a h n/a 0 5 0 5 

Pilot whale spp. ......................... Western North Atlantic .............. 0 61 0 50 0 61 0 50 

Pantropical spotted dolphin ....... Western North Atlantic .............. 0 4 0 4 0 20 0 20 

Risso’s dolphin .......................... Western North Atlantic .............. 0 25 0 23 0 25 0 23 

Harbor porpoise ........................ Western North Atlantic .............. 1 23 1 20 1 23 1 20 

Gray seal b ................................. Western North Atlantic .............. 1 62 1 53 1 62 1 53 

Harbor seal b .............................. Western North Atlantic .............. 1 62 1 53 1 62 1 53 

Note: * denotes species listed under the Endangered Species Act. aGiven foundation installation would be confined to an area beyond the 20-m isobath, all of the estimated take has been allocated to the offshore stock. 

bThe take request for pinnipeds was allocated to an even 50 percent split to each harbor seal and gray seal. 

cAlthough Level A harassment exposure estimates were calculated for North Atlantic right whales, Dominion Energy has not requested, nor does NMFS propose to 

authorize, any take by Level A harassment for this species as the enhanced mitigation measures would reduce these to zero. dAtlantic white-sided dolphins are not expected, but due to shifts in habitat use, have been included in the take request based on a standard group size annually. 

We note that animat/exposure modeling was not done for this species. e In the event that the construction schedule is delayed in 2025, some WTGs may need to be constructed in 2026 and/or 2027 instead, which would reduce the 

number of WTGs constructed in 2025 but it would not change the maximum number of takes of marine mammals authorized in this rule. Instead, the values shown 

here for 2025 would be reduced with the remaining take carried over into 2026 and/or 2027. 


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4408 Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 

fThis analysis conservatively assumes 183 independent piling events for WTG monopile foundations would occur, although only 176 permanent WTGs would be installed. gWhile these species were not originally included in Dominion Energy’s request, given recorded sightings/detections of these species during previous Dominion Energy IHAs in the same general area, NMFS has included these as species that may be harassed (by Level B harassment only) during the 5-year effective period of 

this rulemaking. hThis species was incorporated after the animat analysis was completed so no take was estimated. Instead, a standard group size of animals was used instead for 

any analysis pertaining to this species. 

Additionally, as previously discussed 

above in the Description of the 

Specified Activities section, Dominion 

Energy’s construction schedule may 

shift during the project due to bad 

weather or other uncontrollable and 

unforeseen events, which may require 

foundation installation to shift and 

occur in 2026 and/or 2027 instead. 

However, in this situation, the 

maximum amount of take authorized 

would not change; instead, some of the 

take that would have occurred in 2025 

would instead occur in 2026 and/or 

2027, which means that the take of 

marine mammals during 2025 would be 

less than predicted here, as those takes 

would be shifted into 2026 and/or 2027. 

Cable Landfall Construction 

Dominion Energy plans to install and 

remove both temporary goal posts 

comprised of steel pipe piles (to guide 

the placement of casing pipes installed 

using a trenchless installation method 

that does not produce noise levels with 

the potential to result in marine 

mammal harassment) and temporary 

cofferdams comprised of steel sheet 

piles at cable landfall locations. 

Temporary Cofferdams 

Dominion Energy would install and 

remove up to nine temporary 

cofferdams adjacent to the firing range 

at the State Military Reservation in 

Virginia Beach using a vibratory 

hammer. Dominion Energy assumed 

that a maximum of 6 days would be 

needed to install and remove a single 

cofferdam (3 days to install and 3 days 

to remove). Vibratory pile driving would 

occur for up to 60 minutes per day (1 

hour) and up to 20 sheet piles could be 

installed per day (each cofferdam would 

necessitate 30 to 40 sheet piles, 

depending on the final chosen 

configuration). Table 11 includes details 

for the cofferdam scenario. 

TABLE 11—TEMPORARY COFFERDAM SCENARIO

Installation scenario Foundation installed Installation details Sound source level 

(dB re: 1 μPa at 1 m) 

Duration of 

installation 

activity for a 

single pile 

Cofferdam Installation .................... Sheet piles ................ Vibratory pile driving ...................... 195 SEL RMS .................. 60 minutes. 

Underwater noise associated with the 

construction of temporary cofferdams 

would only result from vibratory pile 

driving of steel sheet piles. As already 

described previously, Dominion Energy 

employed Tetra Tech to conduct the 

acoustic modeling to better understand 

the sound fields produced during these 

activities. These results also utilized 

information provided by iTAP (see 

Remmers and Bellmann (2021) 

Attachment Z–3 in Appendix A of 

Dominion Energy’s application). 

Following a similar approach to the 

one described for foundation 

installation, Tetra Tech calculated the 

ranges to the defined acoustic 

thresholds using a maximum received 

level-over-depth approach where the 

maximum received sound level that 

occurs within the water column at each 

sampling point was used. Tetra Tech 

calculated both the Rmax and the R95≠ for 

each of the marine mammal regulatory 

thresholds. The results of this analysis 

are presented below in Table 12 and are 

presented in terms of the R95≠ range, 

based on the cofferdam modeling 

scenario found in Table 11 above. Given 

the nature of vibratory pile driving and 

the very small distances to Level A 

harassment thresholds (0–108 m (0–354 

ft); assuming 10 dB of sound 

attenuation), which accounts for 1 hour 

of vibratory pile driving per day, 

vibratory driving is not expected to 

result in Level A harassment. As 

Dominion Energy did not request any 

Level A harassment incidental to the 

installation and/or removal of sheet 

piles for temporary cofferdams, and 

based on these small distances, NMFS is 

not authorizing any in this action. 

TABLE 12—ACOUSTIC RANGES (R95%), IN METERS, TO LEVEL A HARASSMENT (PTS) AND LEVEL B HARASSMENT

THRESHOLDS FROM VIBRATORY PILE DRIVING DURING SHEET PILE INSTALLATION FOR MARINE MAMMAL FUNCTION

HEARING GROUPS, ASSUMING AN AVERAGE SOUND SPEED PROFILE

Activity Pile parameters Approach used 

Distance to marine mammal thresholds 

Level A harassment 

(PTS) 

Level B 

harassment 

(behavior) 

LFC 

(199 SEL) 

MFC 

(198 SEL) 

HFC 

(173 SEL) 

PP 

(201 SEL) 

All species 

(120 SPL RMS) 

Temporary 

Cofferdams.

2.8 m diameter Pin 

pile.

Vibratory Pile Driving.108 0 0 0 3,097 

Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds. 


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Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 4409 

dBSea was used to derive the acoustic 

ranges to the Level B harassment 

threshold, assuming no sound 

attenuation, around the cable landfall 

site. This included the ensonified area 

that was truncated by any land, which 

yielded an area (approximately 1 km2) 

smaller than the radius of a circle 

(assuming 3,097 m). For the vibratory 

pile driving for temporary cofferdams 

associated with the sheet pile 

installation and removal, the daily 

ensonified area was 29.04 km2 (11.21 

mi2), based on the acoustic range to the 

Level B harassment threshold (3,097 m), 

with a total ensonified area of 4,980 km2

(1,922.8 mi2) over 54 days of 

installation. 

Density data from Roberts et al. (2023) 

were mapped within the boundary of 

the CVOW–C Project Area using 

geographic information system (GIS) 

software (ESRI, 2017). To estimate 

marine mammal density around the 

temporary cofferdams, the greatest 

ensonified area was intersected with the 

density grid cells for each individual 

species to select all of those grid cells 

that the ensonified area intersects, 

representing the furthest extent where 

potential impacts to marine mammals 

could be expected. Maximum monthly 

densities (i.e., the maximum density 

found in each grid cell) were averaged 

by season (spring (May), summer (June 

through August), and fall (September 

through October). Since the timing of 

landfall construction activities may vary 

somewhat from the prepared schedule, 

the highest average seasonal density 

from May through October (Dominion 

Energy’s planned construction period 

for temporary cofferdams) for each 

species was selected and used to 

estimate exposures from temporary 

cofferdam installation and removal 

(Table 13). 

TABLE 13—HIGHEST AVERAGE SEASONAL MARINE MAMMAL DENSITIES FOR NEARSHORE TRENCHLESS INSTALLATION

(TEMPORARY COFFERDAM AND TEMPORARY GOAL POST INSTALLATION) ACTIVITIES

Marine mammal species Stock 

Highest average 

seasonal density 

(individual/100 km2) 

North Atlantic right whale * ................................................. Western North Atlantic ....................................................... 0.024 

Fin whale * .......................................................................... Western North Atlantic ....................................................... 0.041 

Humpback whale ................................................................ Gulf of Maine ...................................................................... 0.054 

Minke whale ........................................................................ Canadian East Coast ......................................................... 0.124 

Sei whale * .......................................................................... Nova Scotia ........................................................................ 0.015 

Sperm whale * ..................................................................... North Atlantic ...................................................................... 0.001 

Pygmy sperm whale ........................................................... Western North Atlantic ....................................................... a n/a 

Atlantic spotted dolphin ...................................................... Western North Atlantic ....................................................... 2.370 

Atlantic white-sided dolphin ................................................ Western North Atlantic ....................................................... 0.325 

Bottlenose dolphin .............................................................. Southern Migratory Coastal ............................................... 17.054 

Clymene dolphin ................................................................. Western North Atlantic ....................................................... a n/a 

Common dolphin ................................................................ Western North Atlantic ....................................................... 1.808 

False killer whale ................................................................ Western North Atlantic ....................................................... a n/a 

Melon-headed whale .......................................................... Western North Atlantic ....................................................... a n/a 

Pilot whale spp. .................................................................. Western North Atlantic ....................................................... 0.065 

Pantropical spotted dolphin ................................................ Western North Atlantic ....................................................... 0.007 

Risso’s dolphin ................................................................... Western North Atlantic ....................................................... 0.030 

Harbor porpoise .................................................................. Western North Atlantic ....................................................... 0.438 

Gray seal ............................................................................ Western North Atlantic ....................................................... 1.775 

Harbor seal ......................................................................... Western North Atlantic ....................................................... 1.775 

Note: * denotes species listed under the Endangered Species Act. aThese species were added to the list of species that could be potentially impacted by the project after the adequate and complete date. However, given the rare occurrence of these species in the Project Area, authorized take was included only for foundation installation, and not for 

nearshore cable landfall activities. 

For some species where little density 

information is available (i.e., pilot 

whales), the annual density was used 

instead. Given overlap with the 

pinniped density models as the Roberts 

et al. (2023) dataset does not distinguish 

between some species, a collective 

‘‘pinniped’’ density was used for both 

harbor and gray seal species and later 

split for the take estimates and request 

(Roberts et al., 2016). This approach was 

the same as described in the WTG and 

OSS Foundation Installation section. 

Refer back to Table 13 for the densities 

used for temporary cofferdam 

installation and removal. 

Given that use of the vibratory 

hammer during cofferdam installation 

and removal may occur on up to 6 days 

per cofferdam (3 days for installation 

and 3 days for removal), a max total of 

54 days was assumed necessary for all 

9 cofferdams. To calculate exposures, 

the highest average seasonal marine 

mammal densities were multiplied by 

the daily ensonified area (29.04 km2) for 

installation and removal of sheet piles 

for temporary cofferdams. To yield the 

total estimated take for the activity, the 

per day take was multiplied by the 

ensonified area by the total number of 

days for the activity. To do this, the 

ensonified area was overlaid over the 

Roberts et al. (2023) densities to come 

up with a per day take which was then 

multiplied by 54 to account for the total 

number of days. This produced the 

results shown in Table 14. The product 

is then rounded, to generate an estimate 

of the total number of instances of 

harassment expected for each species 

over the duration of the work. 

Given the small distances to the Level 

A harassment isopleths, Level A 

harassment incidental to this activity is 

not anticipated, even absent mitigation. 

Therefore, Dominion Energy did not 

request, and NMFS is not authorizing, 

Level A harassment related to cofferdam 

installation and removal. 

Calculated take estimates for 

temporary cofferdams were then 

adjusted, for some species, based on 

group size characteristics known 

through the scientific literature and 

received sighting reports from previous 

projects and/or surveys. These group 

size estimates for cofferdam installation 

and removal are described below and 

were incorporated into the estimated 

take to yield the requested and 

authorized take estimate: 


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• Atlantic spotted dolphin: Adjusted 

based on 1 group size per day (20 per 

Dominion Energy, 2020, Jefferson et al., 

2015); 

• Bottlenose dolphin (Combined 

Southern Migratory Coastal, Western 

North Atlantic Offshore): Adjusted 

based on 1 group size per day (15 per 

Jefferson et al., 2015); and 

• Common dolphin (short-beaked): 

Adjusted based on 1 group size per day 

(20 per Dominion Energy, 2021). 

Given that take by Level B harassment 

is precautionarily authorized, assuming 

2 years of foundation installation, for 

Clymene dolphins, false killer whales, 

melon-headed whales, and pygmy 

sperm whales, and given the nearshore 

nature of cable landfall activities, no 

additional takes (and therefore, no 

group size adjustments) have been 

authorized for temporary cofferdam 

installation and removal activities. 

Additionally, beyond group size 

adjustments, some slight modifications 

were performed for some species, 

including for harbor seals, gray seals, 

short- and long-finned pilot whales, and 

bottlenose dolphins. More specifically, 

the takes requested were accrued based 

on a 50/50 split for both pinniped 

species, as the Roberts et al. (2023) data 

does not differentiate the density by 

specific pinniped species. The density 

for pilot whales represents a single 

group (Globicephala spp.) and is not 

species-specific. Due to the minimal 

occurrence of both short-finned and 

long-finned pilot whales to occur in this 

area due to the shallow water, the 

requested take was allocated to a 

collective group, although short-finned 

pilot whales are more commonly seen in 

southern waters. Bottlenose dolphin 

stocks were split by the 20-m isobath 

cutoff, and then allocated specifically to 

the coastal stock of bottlenose dolphins 

(migratory southern coastal) due to the 

nearshore nature of these activities. 

Below we present the estimated take 

and maximum amount of take 

authorized during temporary cofferdam 

installation and removal during the 5- 

year effective period for the CVOW–C 

Project (Table 14). Take by Level A 

harassment was not requested by 

Dominion Energy, and it is neither 

expected nor authorized by NMFS. The 

take authorized accounts for three days 

for installation and 3 days for removal, 

for a total of 6 days for each of 9 

cofferdams (54 days total). To be 

conservative, Dominion Energy has 

requested take, by Level B harassment, 

based on the highest exposures 

predicted by the density-based take 

estimates, with some slight 

modifications to account for group sizes 

for some species. 

Although North Atlantic right whales 

do migrate in coastal waters and have 

been seen off Virginia Beach, Virginia, 

they are not expected to occur in the 

nearshore waters where work will be 

occurring. The amount of work 

considered here is limited and would be 

conducted during a time when North 

Atlantic right whales are less likely to 

be migrating in this area. The distance 

to the Level B harassment isopleth (3.1 

km) for installation and removal of the 

sheet piles associated with the 

cofferdams and the maximum distance 

to the Level A isopleth (0.11 km) remain 

in shallow waters in the nearshore 

environment and for a very short period 

of time (approximately 1 hour daily); 

thus, it is unlikely that right whales (or 

most species of marine mammals 

considered here) would be exposed to 

vibratory pile driving during cofferdam 

installation and removal at levels close 

to the 120 dB Level B harassment 

threshold or to the Level A harassment 

thresholds. Hence, Dominion Energy 

did not request take of North Atlantic 

right whales incidental to this activity 

and NMFS is not authorizing it. 

We note that these would be the 

maximum number of animals that may 

be harassed during vibratory pile 

driving for nearshore temporary 

cofferdams as the analysis 

conservatively assumes each exposure is 

a different animal. This is unlikely to be 

the case for all species shown here but 

is the most comprehensive assessment 

of the level of impact from this activity. 

TABLE 14—DENSITY-BASED EXPOSURES AND AUTHORIZED TAKE BY LEVEL B HARASSMENT FROM VIBRATORY PILE

DRIVING ASSOCIATED WITH TEMPORARY COFFERDAM INSTALLATION AND REMOVAL

Marine mammal species Stock Density-based 

exposures 

Authorized takes of 

marine mammals 

Level B harassment 

North Atlantic right whale * ............................................ Western North Atlantic ................................ 0.376 0 

Fin whale * ..................................................................... Western North Atlantic ................................ 0.643 1 

Humpback whale ........................................................... Gulf of Maine ............................................... 0.847 1 

Minke whale ................................................................... Canadian East Coast .................................. 1.945 2 

Sei whale * ..................................................................... Nova Scotia ................................................. 0.235 0 

Sperm whale * ................................................................ North Atlantic ............................................... 0.016 0 

Pygmy sperm whale ...................................................... Western North Atlantic ................................ d n/a d n/a 

Atlantic spotted dolphin ................................................. Western North Atlantic ................................ 37.169 240 

Atlantic white-sided dolphin c ......................................... Western North Atlantic ................................ 5.097 5 

Bottlenose dolphin ......................................................... Southern Migratory Coastal ........................ 267.462 180 

Western North Atlantic, Offshore ................ a n/a a n/a 

Clymene dolphin ............................................................ Western North Atlantic ................................ d n/a d n/a 

Common dolphin ........................................................... Western North Atlantic ................................ 28.355 240 

False killer whale ........................................................... Western North Atlantic ................................ d n/a d n/a 

Melon-headed whale ..................................................... Western North Atlantic ................................ d n/a d n/a 

Pilot whale spp .............................................................. Western North Atlantic ................................ 1.019 1 

Pantropical spotted dolphin ........................................... Western North Atlantic ................................ 0.110 0 

Risso’s dolphin .............................................................. Western North Atlantic ................................ 0.470 0 

Harbor porpoise ............................................................. Western North Atlantic ................................ 6.869 7 

Gray seal b ..................................................................... Western North Atlantic ................................ 13.919 14 

Harbor seal b .................................................................. Western North Atlantic ................................ 13.919 14 

Note: * denotes species listed under the Endangered Species Act. aGiven cofferdam installation and removal would be confined to an area below the 20-m isobath, all of the estimated take has been allocated 

to the coastal stock. 


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bThe take request for pinnipeds was allocated to an even 50 percent split to each harbor seal and gray seal. 

cAtlantic white-sided dolphins are not expected, but due to shifts in habitat use, have been included in the take request based on a standard 

group size annually. We note that animat/exposure modeling was not done for this species. dGiven take by Level B harassment was precautionarily authorized during 2 years of foundation installation for these species, no take has 

been calculated for cable landfall construction activities. 

Temporary Goal Posts 

To facilitate nearshore, trenchless 

installation for the export cables to 

shore, Direct Steerable Pipe Tunneling 

equipment utilizing a steerable tunnel 

boring machine would excavate ground 

while goal posts are used to guide steel 

casing pipes behind the tunnel boring 

machine using a pipe thruster. For 

tunneling and boring activities, only the 

impact hammer is expected to cause 

harassment to marine mammals; all 

other equipment (i.e., pipe thrusting 

machine, pumps, motors, powerpacks, 

and drill mud processing system) 

produces lower source levels. The pipe 

thrusting machine does not vibrate or 

produce any noise as it only pushes the 

casing pipes so no harassment to marine 

mammals is expected to occur from the 

use of this equipment. Each temporary 

goal post, which would be installed via 

impact pile driving, would consist of 

1.07 m (42 in) diameter steel pipe piles. 

Up to two steel pipes could be installed 

per day for a total duration of 130 

minutes per goal post. The strike rate 

would require approximately 260 strikes 

per pile with a strike duration between 

0.5 and 2 seconds. Up to 12 goal posts 

would be needed for each of the 9 Direct 

Pipe (temporary cofferdam) locations, 

equating to a total of 108 piles necessary 

for the goal posts. Removal of the pipe 

piles would occur at a rate of 2 per day 

over 54 days to remove all 108 piles. 

Unlike installation, removal of pipe 

piles is not expected to cause take of 

marine mammals as mechanical and/or 

hydraulic equipment is used that does 

not produce noise. Because of this, the 

analysis described below only pertains 

to the installation of goal posts. 

Tetra Tech applied the Level A 

harassment cumulative PTS criteria to a 

specific tab (for impact pile driving) 

spreadsheet (User Spreadsheet) that 

reflects NOAA Fisheries’ 2018 Revisions 

to Technical Guidance (NOAA 

Fisheries, 2018a). The User Spreadsheet 

relies on overriding default values, 

calculating individual adjustment 

factors, and using the difference 

between levels with and without 

weighting functions for each of the five 

categories of hearing groups. The new 

adjustment factors in the spreadsheets 

allow for the calculation of SELcum

distances and peak sound exposure (PK) 

distances and account for the 

accumulation (Safe Distance 

Methodology) using the source 

characteristics (duty cycle and speed) 

after Silve et al. (2014). 

To calculate the distance to the 

acoustic threshold for Level B 

harassment of marine mammals, Tetra 

Tech utilizing a spread calculation to 

estimate the horizontal distance to the 

160 dB re 1 mPa isopleth: 

SPL(r) = SL¥PL(r) 

Where: 

SPL = sound pressure level (dB re 1 mPa); 

r = range (m), SL = source level (dB re 1 mPa 

m); and 

PL = propagation loss as a function of 

distance (calculated as 20Log10(r)). 

We note that while these 

methodologies provided by NOAA 

Fisheries are able to calculate the 

maximum distances to the Level A 

harassment and Level B harassment 

thresholds, these calculations do not 

allow for the inclusion of site-specific 

environmental parameters, as was 

described for activities analyzed 

through dBSea. 

The results of this analysis are 

presented below in Table 15 and are 

presented in terms of the R95% range. 

Table 15 demonstrates the maximum 

distances to both the regulatory 

thresholds for Level A harassment and 

Level B harassment for each marine 

mammal hearing group. Given the very 

small distances to the Level A 

harassment thresholds (4.5–152 m; 

assuming 10 dB of sound attenuation), 

which accounts for 130 minutes 

(approximately 2.2 hours) of impact pile 

driving per day, impact driving is not 

expected to result in Level A 

harassment. As Dominion Energy did 

not request any Level A harassment 

incidental to the installation and/or 

removal of steel pipe piles for temporary 

goal posts, and based on these small 

distances, NMFS is not authorizing any 

in this action. 

TABLE 15—RANGES, IN METERS, TO LEVEL A HARASSMENT (PTS) AND LEVEL B HARASSMENT THRESHOLDS FROM IMPACT PILE DRIVING DURING STEEL PIPE PILE INSTALLATION OF GOAL POSTS FOR MARINE MAMMAL FUNCTION HEARING GROUPS

Activity Pile parameters Approach used 

Distance to marine mammal thresholds (in meters) 

Level A harassment 

(PTS onset) 

Level B 

harassment 

(behavioral) 

LFC 

(183 dB SELcum) 

MFC 

(185 dB SELcum) 

HFC 

(155 dB SELcum) 

PP 

(185 dB SELcum) 

All 

(160 dB RMS) 

Temporary Goal 

Posts.

1.07 m diameter Steel 

Pipe Piles.

Impact Pile 

Driving.

590.9 21.0 703.8 316.2 1,450 

Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds. 

Given the small distances to Level A 

harassment isopleths, Level A 

harassment incidental to this activity is 

not anticipated, even absent mitigation. 

Therefore, Dominion Energy is not 

requesting, and NMFS is no authorizing 

Level A harassment related to goal post 

installation. The acoustic ranges to the 

Level B harassment threshold, assuming 

no sound attenuation, were used to 

calculate the ensonified area around the 

cable landfall site. The Ensonified Area 

is calculated as the following: 

Ensonified Area = pi χ r2, 

Where: 

r is the linear acoustic range distance from 

the source to the isopleth to the Level B 

harassment thresholds. 

To accurately account for the greatest 

level of impact (via behavioral 

harassment) to marine mammals, Tetra 

Tech applied the evaluated maximum 

Level B harassment distance (1,450 m) 

as the basis for determining potential 

takes. To get an accurate value of the 

total ensonified area within the aquatic 

environment, the isopleth was overlaid 


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on a map to determine if any truncation 

by land would occur due to the 

nearshore proximity of the goal posts. 

For the vibratory pile driving for 

temporary cofferdams associated with 

the sheet pile installation and removal, 

it was assumed that the daily ensonified 

area was 4.98 km2 (1.92 mi2), or a total 

ensonified area of 268.92 km2 (103.83 

mi2) over 54 days of installation and 

removal. The daily ensonified area that 

resulted from this analysis (4.98 km2) 

was carried forward into the take 

estimates as the daily ensonified area. 

In the same approach as was 

undertaken by the temporary 

cofferdams, the greatest ensonified area 

was intersected with the density grid 

cells for each individual species to 

select all of those grid cells that the 

ensonified area intersects to estimate the 

marine mammal density relevant to the 

temporary goal posts. Maximum 

monthly densities (i.e., the maximum 

density found in each grid cell) were 

averaged by season. Since the timing of 

landfall construction activities may vary 

somewhat from the prepared schedule, 

the highest average seasonal density 

from May through October (Dominion 

Energy’s planned construction period 

for temporary goal posts) for each 

species was selected and used to 

estimate exposures from temporary goal 

post installation. For some species 

where little density information is 

available (i.e., pilot whale spp, 

pantropical spotted dolphins), the 

annual density was used instead. Given 

overlap with the pinniped density 

models as the Roberts et al. (2023) 

dataset does not distinguish between 

some species, a collective ‘‘pinniped’’ 

density was used for both harbor and 

gray seal species and later split for the 

take estimates and request (Roberts et 

al., 2016). This approach was the same 

as described in the temporary 

cofferdams. Furthermore, given the 

densities are the same as what was 

calculated for temporary cofferdams, we 

refer the reader back to Table 13 above. 

To calculate exposures, the highest 

average seasonal marine mammal 

densities from Table 16 were multiplied 

by the daily ensonified area (4.98 km2) 

for installation and removal of steel pipe 

piles for temporary goal posts. Given 

that use of the impact hammer during 

goal post installation may occur at a rate 

of 2 pipe piles per day for a total of 54 

days (based on 108 total steel pipe 

piles), the daily estimated take was 

multiplied by 54 to produce the results 

shown in Table 16. The product is then 

rounded, to generate an estimate of the 

total number of instances of harassment 

expected for each species over the 

duration of the work. Again, as 

previously noted, no take was 

calculated for the removal of goal posts 

due to the equipment planned for use. 

The take estimates for Level B 

harassment related to temporary goal 

post installation were then adjusted, for 

some species, based on group size 

characteristics known through the 

scientific literature and received 

sighting reports from previous projects 

and/or surveys. These group size 

estimates for temporary goal post 

installation are described below and 

were incorporated into the estimated 

take to yield the requested and 

authorized take estimate: 

• Atlantic spotted dolphin: Adjusted 

based on 1 group size per day (20 per 

Dominion Energy, 2020; Jefferson et al., 

2015); 

• Bottlenose dolphin (Southern 

Migratory Coastal Stock): Adjusted 

based on 1 group size per day (15 per 

Jefferson et al., 2015); and 

• Short-beaked common dolphin: 

Adjusted based on 1 group size per day 

(20 per Dominion Energy, 2021). 

Take by Level B harassment is 

authorized as a precaution assuming 2 

years of foundation installation, for 

Clymene dolphins, false killer whales, 

melon-headed whales, and pygmy 

sperm whales. Given the nearshore 

nature of cable landfall activities, no 

additional take (and therefore, no group 

size adjustments) has been authorized 

for temporary goal post installation and 

removal activities. 

Additionally, beyond group size 

adjustments, some slight modifications 

were performed for some species, 

including harbor seals, gray seals, shortand long-finned pilot whales, and 

bottlenose dolphins. More specifically, 

the takes requested were accrued based 

on a 50/50 split for both pinniped 

species, as the Roberts et al. (2023) data 

does not differentiate the density by 

specific pinniped species. The density 

for pilot whales represents a single 

group (Globicephala spp.) and is not 

species-specific. Due to the occurrence 

of both short-finned and long-finned 

pilot whales in this area, the requested 

take was allocated to a collective group, 

although short-finned pilot whales are 

commonly seen in southern waters. 

Bottlenose dolphin stocks were split by 

the 20-m isobath cutoff, and then 

allocated specifically to the coastal 

stock of bottlenose dolphins (migratory 

southern coastal) due to the nearshore 

nature of these activities. Lastly, due to 

the size of the Level B harassment 

isopleth (1,450 m), Dominion Energy 

has planned a 1,500 m (1,640.4 ft) 

shutdown zone to exceed this distance. 

However, given the proximity to land, 

large whales are not anticipated to occur 

this close to nearshore activities. 

Because of the required mitigation zone 

and the nearshore location of the 

temporary goal posts, as well as the 

calculated exposures, which were less 

than 0.5, Dominion Energy has not 

requested, and NMFS has not 

authorized, takes for large whales (i.e., 

mysticetes and sperm whales). 

Below we present the estimated take 

and maximum amount of take 

authorized during temporary goal post 

installation during the 5-year effective 

period for the CVOW–C Project (Table 

16). Take by Level A harassment was 

not requested by Dominion Energy, and 

it is not expected or authorized by 

NMFS. These authorized take estimates 

take into account 54 days total for 

temporary goal post activities, including 

installation and removal, at a rate of 2 

steel pipe piles installed per day over 

130 minutes. 

TABLE 16—DENSITY-BASED EXPOSURES AND AUTHORIZED TAKE BY LEVEL B HARASSMENT FROM IMPACT PILE DRIVING

ASSOCIATED WITH TEMPORARY GOAL POST INSTALLATION

Marine mammal species Stock Density-based 

exposures 

Authorized 

take 

Level B harassment 

North Atlantic right whale * ........................................... Western North Atlantic ................................................ 0.065 0 

Fin whale * .................................................................... Western North Atlantic ................................................ 0.110 0 

Humpback whale ......................................................... Gulf of Maine ............................................................... 0.145 0 

Minke whale ................................................................. Canadian East Coast .................................................. 0.333 0 

Sei whale * ................................................................... Nova Scotia ................................................................. 0.040 0 

Sperm whale * .............................................................. North Atlantic ............................................................... 0.003 0 


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TABLE 16—DENSITY-BASED EXPOSURES AND AUTHORIZED TAKE BY LEVEL B HARASSMENT FROM IMPACT PILE DRIVING

ASSOCIATED WITH TEMPORARY GOAL POST INSTALLATION—Continued 

Marine mammal species Stock Density-based 

exposures 

Authorized 

take 

Level B harassment 

Pygmy sperm whale .................................................... Western North Atlantic ................................................ d n/a d n/a 

Atlantic spotted dolphin ................................................ Western North Atlantic ................................................ 6.373 360 

Atlantic white-sided dolphin c ....................................... Western North Atlantic ................................................ 0.874 1 

Bottlenose dolphin ....................................................... Southern Migratory Coastal ........................................ 45.862 270 

Western North Atlantic, Offshore ................................ a n/a a n/a 

Clymene dolphin .......................................................... Western North Atlantic ................................................ d n/a d n/a 

Common dolphin .......................................................... Western North Atlantic ................................................ 4.862 360 

False killer whale ......................................................... Western North Atlantic ................................................ d n/a d n/a 

Melon-headed whale .................................................... Western North Atlantic ................................................ d n/a d n/a 

Pilot whale spp ............................................................. Western North Atlantic ................................................ 0.175 0 

Pantropical spotted dolphin ......................................... Western North Atlantic ................................................ 0.019 0 

Risso’s dolphin ............................................................. Western North Atlantic ................................................ 0.081 0 

Harbor porpoise ........................................................... Western North Atlantic ................................................ 1.178 1 

Gray seal b ................................................................... Western North Atlantic ................................................ 2.387 2 

Harbor seal b ................................................................ Western North Atlantic ................................................ 2.387 2 

Note: * denotes species listed under the Endangered Species Act. aGiven temporary goal post installation would be confined to an area below the 20-m isobath, all of the estimated take has been allocated to 

the coastal stock. bThe take request for pinnipeds was allocated to an even 50 percent split to each harbor seal and gray seal. 

cAtlantic white-sided dolphins are not expected, but due to shifts in habitat use, have been included in the take request based on a standard 

group size annually. We note that animat/exposure modeling was not done for this species. dGiven take by Level B harassment was precautionarily authorized during two years of foundation installation for these species, no take has 

been calculated for cable landfall construction activities. 

We note that these would be the 

maximum number of animals that may 

be harassed during impact pile driving 

for nearshore temporary goal posts as 

the analysis conservatively assumes 

each exposure is a different animal. This 

is unlikely to be the case for all species 

shown here but is the most 

comprehensive assessment of the level 

of impact from this activity. 

HRG Surveys 

Dominion Energy’s HRG survey 

activities include the use of impulsive 

(i.e., boomers and sparkers) and nonimpulsive (i.e., Compressed High 

Intensity Radiated Pulse (CHIRP) Subbottom Profilers (SBP)) sources (see 

Table 4 in the proposed rule (88 FR 

28656, May 4, 2023) for a representative 

list of the acoustic sources and their 

operational parameters). Authorized 

takes are by Level B harassment only, 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. 

Therefore, the potential for Level A 

harassment is not evaluated further in 

this document. Dominion Energy did 

not request, and NMFS is not 

authorizing, take by Level A harassment 

incidental to HRG surveys. Please see 

Dominion Energy’s application for the 

CVOW–C Project for details of a 

quantitative exposure analysis (i.e., 

calculated distances to Level A 

harassment isopleths and Level A 

harassment exposures). No serious 

injury or mortality is anticipated to 

result from HRG survey activities. 

Specific to HRG surveys, in order to 

better consider the narrower and 

directional beams of the sources, NMFS 

has developed a 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. Tetra Tech used 

NMFS’ methodology with additional 

modifications to incorporate a seawater 

absorption formula and account for 

energy emitted outside of the primary 

beam of the source. For sources that 

operate with different beamwidths, the 

maximum beam width was used, and 

the lowest frequency of the source was 

used when calculating the frequencydependent absorption coefficient (see 

Table 4 in the proposed rule (88 FR 

28656, May 4, 2023)). 

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 above 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. 

Tetra Tech 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 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 


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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 Geo Marine sparker 

measurements and specifications were 

provided by the manufacturer. 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 17 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. This table also provides all 

operating parameters used to calculate 

the distances to threshold for marine 

mammals. 

TABLE 17—SUMMARY OF REPRESENTATIVE HRG SURVEY EQUIPMENT WITH OPERATING PARAMETERS TO CALCULATE

HARASSMENT DISTANCES FOR MARINE MAMMALS

Equipment classification Survey equipment 

Operating 

frequency 

(kHz) 

Source level 

(SLRMS) 

(dB re 1μPa) 

Multibeam Echosounder ............................................... R2Sonics 2026 ............................................................. 170–450 191 

Synthetic Aperture Sonar, combined bathymetric/ 

sidescan.

Kraken Aquapix a .......................................................... 337 N/A 

Sidescan Sonar ............................................................ Edgetech 4200 dual frequency a .................................. 300 and 600 N/A 

Parametric SBP ............................................................ Innomar SES–2000 Medium 100 ................................. 2–22 241 

Non-Parametric SBP .................................................... Edgetech 216 CHIRP ................................................... 2–16 193 

Edgetech 512 CHIRP ................................................... 0.5–12 177 

Medium Penetration SBP ............................................. Geo Marine Dual 400 Sparker 800 J b ......................... 0.25–4 200 

Applied Acoustics S-Boom (Triple Plate Boomer 1000 

J).

0.5–3.5 203 

Note: dB re 1 μPa m—decibels referenced to 1 MicroPascal at 1 meter; kHz—kilohertz. aOperating frequencies are above marine mammal hearing thresholds. 

bSource levels for the GeoMarine Dual 400 Sparker (800 J) were provided by the manufacturer for the stacked 400 tip configuration. 

Results of modeling using the 

methodology described above indicated 

that, of the HRG equipment planned for 

use by Dominion Energy that has the 

potential to result in Level B harassment 

of marine mammals, sound produced by 

the GeoMarine Dual 400 sparker would 

propagate furthest to the Level B 

harassment isopleth (100 m (328 ft); 

Table 17). For the purposes of take 

estimation, it was conservatively 

assumed that sparker would be the 

dominant acoustic source for all survey 

days (although, again, this may not 

always be the case). Thus, the range to 

the isopleth corresponding to the 

threshold for Level B harassment and 

the boomer and sparkers (100 m) were 

used as the basis of take calculations for 

all marine mammals. This is a 

conservative approach, as the actual 

sources used on individual survey days, 

or during a portion of a survey day, may 

produce smaller distances to the Level 

B harassment isopleth. 

TABLE 18—SUMMARY OF REPRESENTATIVE HRG SURVEY EQUIPMENT DISTANCES TO THE LEVEL B HARASSMENT

THRESHOLD

Equipment classification Survey equipment Distance (m) to Level B 

harassment threshold 

Multibeam Echosounder .................................................. R2Sonics 2026 ................................................................ 0.3 

Synthetic Aperture Sonar, combined bathymetric/ 

sidescan.

Kraken Aquapix a ............................................................. N/A 

Sidescan Sonar ............................................................... Edgetech 4200 dual frequency a ..................................... N/A 

Parametric SBP ............................................................... Innomar SES–2000 Medium 100 .................................... 0.7 

Non-Parametric SBP ....................................................... Edgetech 216 CHIRP ...................................................... 10.2 

Edgetech 512 CHIRP ...................................................... 2.4 

Medium Penetration SBP ................................................ Geo Marine Dual 400 Sparker 800 J .............................. 100.0 

Applied Acoustics S-Boom (Triple Plate Boomer 1000 

J).

21.9 

Note: dB re 1 μPa m—decibels referenced to 1 MicroPascal at 1 meter; kHz—kilohertz. aOperating frequencies are above marine mammal hearing thresholds. 

To estimate densities for the HRG 

surveys occurring both within the Lease 

Area and within the Export Cable 

Routes for the CVOW–C Project based 

on the Roberts et al. (2023) dataset the 

relevant density models using GIS 

(ESRI, 2017) were overlaid to the 

CVOW–C Project Area. The boundary of 

the CVOW–C HRG Project Area 

corresponds to the Lease Area and 

Export Cable Routes, for which the area 

was not increased due to an additional 


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perimeter, as was done for foundation 

installation. For each survey segment, 

the average densities (i.e., the average 

density of each grid cell) were averaged 

by season over the survey duration 

(spring, summer, fall, and winter) for 

the entire HRG survey area. The average 

seasonal density within the HRG survey 

area was then selected for inclusion into 

the take calculations. Refer to Table 20 

for the densities used for HRG surveys. 

As previously stated, of the HRG 

equipment planned for use by Dominion 

Energy that has the potential to result in 

Level B harassment of marine mammals, 

sound produced by the GeoMarine Dual 

400 sparker would propagate furthest to 

the Level B harassment isopleth (100 

m). This maximum range to the Level B 

harassment threshold and the estimated 

trackline distance traveled per day by a 

given survey vessel (i.e., 58 km (36 mi); 

Table 19), assuming a travel speed of 1.3 

kn (1.49 miles per hour), were then used 

to calculate the daily ensonified area, or 

zone of influence (ZOI) around the 

survey vessel. 

TABLE 19—SURVEY DURATIONS AND DAILY/ANNUAL TRACKLINE DISTANCES PLANNED TO OCCUR DURING THE CVOW–C 

PROJECT

Survey year Survey segment 

Number of 

active survey 

vessel days 

Estimated 

distances 

per day 

(km) 

Annual line 

kilometers 

2024 ....................................... Pre-lay surveys ...................................................................... 65 58 3,770 

2025 ....................................... As-built surveys and pre-lay surveys .................................... 249 14,442 

2026 ....................................... As-built surveys ..................................................................... 58 3,364 

2027 ....................................... Post-construction surveys ..................................................... 368 21,344 

2028 ....................................... Post-construction surveys ..................................................... 368 21,344 

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: 

Mobile Source ZOI = (Distance/day × 2r) 

+ pi × r2

Where: 

Distance/day is the maximum distance a 

survey vessel could travel in a 24-hour 

period; and 

r is the linear distance from the source to the 

harassment threshold. 

The largest daily ZOI (111.6 km2 (4.48 

mi2)), associated with the use of the 

sparker, was applied to all planned 

survey days. 

As previously described, this assumes 

a total length of surveys that will occur 

within the CVOW–C Project Area as 

64,264 km2 (24,812.5 mi2). As Dominion 

Energy is not sure of the exact 

geographic locations of the survey effort, 

these values cannot discreetly be broken 

up between the Lease Area and the 

Export Cable Routes. However, the 

values presented in Table 19 provide a 

comprehensive accounting of the total 

annual survey effort anticipated to 

occur. 

For HRG surveys, density data from 

Roberts et al. (2023) were mapped 

within the boundary of the CVOW–C 

Project Area using GIS software (ESRI, 

2017). The boundary of the CVOW–C 

HRG Project Area corresponds to the 

Lease Area and Export Cable Routes, for 

which the area was not increased due to 

an additional perimeter, as was done for 

foundation installation. For each survey 

segment, the average densities (i.e., the 

average density of each grid cell) were 

averaged by season over the survey 

duration (spring, summer, fall, and 

winter) for the entire HRG survey area. 

The average seasonal density within the 

HRG survey area was then selected for 

inclusion into the take calculations. The 

potential Level B density-based 

harassment exposures are estimated by 

multiplying the average seasonal 

density of each species within the 

survey area by the daily ZOI. That 

product was then multiplied by the 

number of planned survey days in each 

sector during the approximately 5-year 

construction timeframe (refer back to 

Table 19) and the product was rounded 

to the nearest whole number. As 

described above, this is a reasonable, 

but conservative estimate as it assumes 

the HRG source that results in the 

greatest isopleth distance to the Level B 

harassment threshold would be 

operated at all times during the entire 

survey, which may not ultimately occur. 

These density values are found in Table 

20. 

TABLE 20—HIGHEST AVERAGE SEASONAL MARINE MAMMAL DENSITIES FOR HRG SURVEY ACTIVITIES

Marine mammal species Stock 

Highest average 

seasonal density 

(individual/100 km2) 

North Atlantic right whale * .................. Western North Atlantic ...................................................................................... 0.095 

Fin whale * ........................................... Western North Atlantic ...................................................................................... 0.080 

Humpback whale ................................. Gulf of Maine ..................................................................................................... 0.103 

Minke whale ......................................... Canadian East Coast ........................................................................................ 0.344 

Sei whale * ........................................... Nova Scotia ....................................................................................................... 0.038 

Sperm whale * ...................................... North Atlantic ..................................................................................................... 0.002 

Pygmy sperm whale ............................ Western North Atlantic ...................................................................................... a n/a 

Atlantic spotted dolphin ....................... Western North Atlantic ...................................................................................... 4.649 

Atlantic white-sided dolphin ................. Western North Atlantic ...................................................................................... 0.678 

Bottlenose dolphin ............................... Combined Southern Migratory Coastal, Western North Atlantic Offshore ....... 24.157 

Clymene dolphin .................................. Western North Atlantic ...................................................................................... a n/a 

Common dolphin ................................. Western North Atlantic ...................................................................................... 6.599 

False killer whale ................................. Western North Atlantic ...................................................................................... a n/a 

Melon-headed whale ........................... Western North Atlantic ...................................................................................... a n/a 

Pilot whale spp .................................... Western North Atlantic ...................................................................................... 0.065 

Pantropical spotted dolphin ................. Western North Atlantic ...................................................................................... 0.007 


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TABLE 20—HIGHEST AVERAGE SEASONAL MARINE MAMMAL DENSITIES FOR HRG SURVEY ACTIVITIES—Continued 

Marine mammal species Stock 

Highest average 

seasonal density 

(individual/100 km2) 

Risso’s dolphin .................................... Western North Atlantic ...................................................................................... 0.057 

Harbor porpoise ................................... Western North Atlantic ...................................................................................... 1.477 

Gray seal ............................................. Western North Atlantic ...................................................................................... 5.402 

Harbor seal .......................................... Western North Atlantic ...................................................................................... 5.402 

Note: * denotes species listed under the Endangered Species Act. aThis species was incorporated after the animat analysis was completed so no take was estimated. Instead, a standard group size of animals 

was used instead for any analysis pertaining to this species. 

For most species or species groups, 

monthly densities are available, though 

in some cases insufficient data are 

available or we are unable to 

differentiate species groups by 

individual genus (e.g., gray and harbor 

seals). In these situations, additional 

adjustments are necessary and are 

described here. For pinnipeds, the 

density values derived from the Roberts 

et al. (2023) data were considered 

unrealistic given a reduced occurrence 

near the CVOW–C Project Area in the 

summer (Hayes et al., 2021). Based on 

information found in Hayes et al. 

(2021), a conservative density estimate 

of 0.00001 animals/km2 was used to 

represent the summer density of both 

pinniped species within the modeled 

CVOW–C Project Area and Lease Area 

plus the 8.9 km perimeter. Any take by 

Level B harassment derived from these 

densities would be further split by an 

even percentage (50/50) for each 

species. For bottlenose dolphins, due to 

specific environmental characteristics 

that were used to partition the Southern 

Migratory Coastal and Western North 

Atlantic Offshore stocks, both the 

coastal and the offshore stocks were 

divided based on the location of the 20- 

m isobath. Information by Hayes et al. 

(2021) indicates a boundary between the 

two stocks at the 20-m isobath located 

north of Cape Hatteras, North Carolina. 

Therefore, all bottlenose dolphins 

whose grid cells were less than the 20- 

m isobath in the CVOW–C modeling 

area or within the 8.9 km of the Lease 

Area were allocated to the Southern 

Migratory Coastal stock. All density grid 

cells greater than the 20-m isobath from 

the CVOW–C modeling area or within 

the 8.9 km of the Lease Area were 

allocated to the offshore stock. The 

number of marine mammals expected to 

be incidentally taken per day is then 

calculated by estimating the number of 

each species predicted to occur within 

the daily ensonified area (animals/km2), 

incorporating the maximum seasonal 

estimated marine mammal densities as 

described above. Estimated numbers of 

each species taken per day across all 

survey sites are then multiplied by the 

total number of survey days annually. 

The product is then rounded, to 

generate an estimate of the total number 

of instances of harassment expected for 

each species over the duration of the 

survey. A summary of this method is 

illustrated in the following formula: 

Estimated Take = D × ZOI × # of days 

Where: 

D is the average seasonal density for each 

species; and 

ZOI is the maximum daily ensonified area to 

the harassment threshold. 

The take estimates were then 

adjusted, for some species, based on 

group size and sighting reports from 

previous projects and/or surveys. These 

group size estimates for HRG surveys 

are described below and were 

incorporated into the estimated take to 

yield the requested and authorized take 

estimate: 

• Atlantic white-sided dolphin: 

Adjusted based on 1 group size per year 

(15 per Reeves et al., 2002); 

• Risso’s dolphin: Adjusted based on 

1 group size per year (25 per Dominion 

Energy, 2021; Jefferson et al., 2015); 

• Bottlenose dolphin (Combined 

Southern Migratory Coastal, Western 

North Atlantic Offshore): Adjusted 

based on 1 group size per day (15 per 

Jefferson et al., 2015); 

• Pantropical spotted dolphins: 

Adjusted based on 1 group size per day 

(20 individuals); 

• Common dolphins: Adjusted based 

on 1 group size per day (20 individuals); 

• Common dolphins: Adjusted based 

on 1 group size per year (20 

individuals); and 

• Pilot whale spp.: Adjusted based on 

1 group size per year (20 individuals). 

Given the very small zone sizes 

associated with HRG surveys and the 

lower density/occurrence of these 

species, no take in addition to that 

already authorized for foundation 

installation (which has much larger 

acoustic ranges) has been authorized for 

the following species: false killer 

whales, melon-headed whales, Clymene 

dolphins, and pygmy sperm whales. 

Similar to other activities, the densitybased exposure estimates were adjusted 

due to the manner in which density data 

is presented in the Duke models for 

harbor seals, gray seals, short- and longfinned pilot whales, and bottlenose 

dolphins. More specifically, the takes 

requested were split 50/50 for both 

pinniped species, as the Roberts et al. 

(2023) data does not differentiate the 

density by specific pinniped species. 

The density for pilot whales represents 

a single group (Globicephala spp.) and 

is not species-specific. Due to the 

occurrence of both short-finned and 

long-finned pilot whales in this area, the 

requested take was allocated to a 

collective group, although short-finned 

pilot whales are commonly seen in 

southern waters. Due to a reduced 

spatial resolution at the current state of 

the survey planning, bottlenose dolphin 

stocks were combined into a single 

group for both the coastal stock of 

bottlenose dolphins (Migratory 

Southern Coastal) and the offshore stock 

(Western North Atlantic Offshore). 

Below we present the maximum 

amount of take authorized during HRG 

surveys occurring during the 5-year 

effective period for the CVOW–C Project 

(Table 21). Take by Level A harassment 

was not requested by Dominion Energy, 

and it is neither expected nor 

authorized by NMFS. We note that these 

would be the maximum number of 

animals that may be harassed during 

HRG surveys as the analysis 

conservatively assumes each exposure is 

a different animal. This is unlikely to be 

the case for all species shown here but 

is the most comprehensive assessment 

of the level of impact from this activity. 

BILLING CODE 3510–22–P 


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Table 21 - Density-based Estimated and Take Authorized, By Level B Harassment, From 

years 

Marine Annual Density-based Exposures From HRG Surveys Annual Take Authorized Fr

Mammal Stock 

Species 2024 2025 2026 2027 2028 2029 2024 2025 2026 2

North Western Atlantic North 0.318 1.217 0.283 1.798 1.798 0 0 1 0 

right Atlantic whale* 

Fin Western 

whale* North 0.378 1.448 0.337 2.140 2.140 0 0 1 0 

Atlantic 

Humpba Gulf of 0.454 1.738 0.405 2.569 2.569 0 0 2 0 

ck whale Maine 

Minke Canadia 

whale nEast 0.786 3.012 0.702 4.452 4.452 0 1 3 1 

Coast 

Sei Nova 0.144 0.550 0.128 0.813 0.813 0 0 1 0 

whale* Scotia 

Sperm North 0.008 0.029 0.007 0.043 0.043 0 0 0 0 

whale* Atlantic 

Pygmy Western 

sperm North nJab nJab nJab nJab nJab nJab nJab nJab nJab n

whale Atlantic 

Atlantic Western 

spotted North 13.618 52.168 12.152 77.100 77.100 0 1,300 4,980 1,160 7

dolphin Atlantic 

Atlantic Western white- North 2.397 9.182 2.139 13.571 13.571 0 15 15 15 

sided Atlantic dolphin 

Bottleno Southern 

se Migrator 109.021 417.634 97.280 617.227 617.227 0 975 3,735 870 5

dolphin y 

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Marine Annual Density-based Exposures From HRG Surveys Annual Take Authorized F

Mammal Stock 

Species 2024 2025 2026 2027 2028 2029 2024 2025 2026 2

Coastal 

and 

Western 

North 

Atlantic 

-

Offshore 

Clymene Western North nJab nJab nJab nJab nJab nJab nJab nJab nJab n

dolphin Atlantic 

Commo Western 

n North 22.730 87.072 20.282 128.685 128.685 0 1,300 4,980 1,160 7

dolphin Atlantic 

False Western 

killer North nJab nJab nJab nJab nJab nJab nJab nJab nJab n

whale Atlantic 

Melon- Western 

headed North nJab nJab nJab nJab nJab nJab nJab nJab nJab n

whale Atlantic 

Pilot Western 

whale North 0.491 1.883 0.439 2.783 2.783 0 20 20 20 

spp. Atlantic 

Pantropi Western cal North 0.053 0.203 0.047 0.300 0.300 0 20 20 20 

spotted Atlantic dolphin 

Risso's Western North 0.280 1.072 0.250 1.584 1.584 0 25 25 25 

dolphin Atlantic 

Harbor Western 

porpoise North 5.278 20.218 4.710 29.881 29.881 0 5 20 5 

Atlantic 

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Marine Annual Density-based Exposures From HRG Surveys Annual Take Authorized F

Mammal Stock 

Species 2024 2025 2026 2027 2028 2029 2024 2025 2026 2

Gray Western North 5.070 19.422 4.524 28.704 28.704 0 5 19 5 

seal Atlantic 

Harbor Western North 5.070 19.422 4.524 28.704 28.704 0 5 19 5 

seal Atlantic 

Note: * denotes species listed under the Endangered Species Act. 

a -Although the final rule is effective for 5 full years (from early 2024 to early 2029), no work is anticipated to occur in 2029 whic

requested or authorized for 2029. 

b - Given take by Level B harassment was precautionarily authorized during two years of foundation installation for these species, 

for HRG survey activities. 
4420 Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 

BILLING CODE 3510–22–C 

Total Authorized Takes Across All 

Specified Activities 

The number of Level A harassment 

and Level B harassment takes 

authorized during WTG and OSS 

foundation installation, cable landfall 

construction, and HRG surveys are 

presented in Table 22. The mitigation 

and monitoring measures provided in 

the Mitigation and Monitoring and 

Reporting sections are activity-specific 

and are designed to minimize, to the 

extent practicable, acoustic exposures to 

marine mammal species. 

The take numbers NMFS is 

authorizing (Tables 22 and 23) are 

considered the maximum number that 

could occur for the following key 

reasons: 

• The authorized take accounts for 

183 pile driving events when only 176 

foundations may be installed. It could 

be that no piles will require the need to 

be re-driven. 

• The amount of Level A harassment 

authorized considered the maximum of 

up to two monopiles per day being 

installed and used acoustic ranges that 

do not account for animal movement. 

• The number of authorized takes by 

Level A harassment does not 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. 

• All take estimates assumed all piles 

are installed in the month with the 

highest average seasonal and/or annual 

densities for each marine mammal 

species and/or stock based on the 

construction schedule. 

• Dominion Energy assumed the 

maximum number of temporary 

cofferdams (up to 9) and goal posts (up 

to 108) would be installed when, during 

construction, fewer piles may be 

installed and, in the case of cofferdams, 

may not be installed at all (Dominion 

Energy may use a gravity-cell structure 

in lieu of cofferdams which would not 

generate noise levels that would result 

in marine mammal harassment). 

• The number of authorized takes by 

Level B harassment does not account for 

the effectiveness of the required 

mitigation and monitoring measures for 

any species, with the exception of 

spatio-temporal restrictions on pile 

driving (i.e., no foundation pile driving 

from November 1st through April 30th, 

annually and no foundation pile driving 

may start during nighttime), and the 

required use of a noise attenuation 

device (at least a double bubble curtain; 

10 dB of sound attenuation). 

The Year 1 authorized take includes 

HRG surveys, vibratory and impact 

installation of WTG and OSS 

foundations, the impact installation and 

removal of temporary goal posts, and 

the vibratory installation and removal of 

temporary cofferdams. Year 2 includes 

HRG surveys and the vibratory and 

impact installation of WTG and OSS 

foundations. Years 3, 4, and 5 each 

include HRG surveys only. Dominion 

Energy has noted that Year 3 and Year 

4 may include some installation of 

foundation piles for WTGs if they fall 

behind their construction schedule. 

However, if this occurs, this would just 

reduce the number of WTGs installed in 

Year 2. Exact durations for HRG surveys 

in each construction are not given 

although estimates are provided above 

and are repeated here: 65 days in 2024, 

249 days in 2025, 58 days in 2026, and 

368 days in each of 2027 and 2028. 

These estimates are based on the effort 

of two concurrently operating survey 

vessels. 

Table 22 shows the authorized take of 

each species for each year based on the 

planned activities. Tables 23 and 24 

show the total authorized take over 5 

years and the maximum take authorized 

in any one year, respectively. 

BILLING CODE 3510–22–P 


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Table 22 - Authorized Level A Harassment and Level B Harassment Takes For All Activities Over 5 Y

;2024-2029) ' 

Total Authorized Annual Take 

Marine 2024c 2025c 2026 2027 2028 

Mammal Stock 

Species Level A Level B Level A Level B Level A LevelB Level A LevelB Level A Le

harassm harassm harassm harassm harassm harassm harassm harassm harassm har

ent ent ent ent ent ent ent ent ent 

North Western Atlantic North 0 6 0 7 0 0 0 2 0 

right Atlantic whale* 

Fin Western 

whale* North 4 113 3 91 0 0 0 2 0 

Atlantic 

Humpba Gulf of 4 130 4 106 0 0 0 3 0 

ck whale Maine 

Minke Canadia 

whale nEast 8 56 7 51 0 1 0 4 0 

Coast 

Sei Nova 1 3 1 3 0 0 0 1 0 

whale* Scotia 

Sperm North 0 3 0 3 0 0 0 0 0 

whale* Atlantic 

Pygmy Western 

sperm North 0 1 0 1 0 0 0 0 0 

whaleh Atlantic 

Atlantic Western 

spotted North 0 4,008 0 6,876 0 1,160 0 7,360 0 7

dolphin Atlantic 

Atlantic Western whitesided North 0 36 0 30 0 15 0 15 0 

dolphin Atlantic 

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Total Authorized Annual Take 

Marine 2024c 2025c 2026 2027 2028 

Mammal Stock 

Species Level A Level B Level A Level B Level A LevelB Level A LevelB Level A Le

harassm harassm harassm harassm harassm harassm harassm harassm harassm har

ent ent ent ent ent ent ent ent ent 

Western 

North 

Atlantic 0 4,290 0 3,602 0 0 0 0 0 

-

Offshore 

Southern 

Migrator 0 450 0 0 0 0 0 0 0 

y 

Bottleno Coastal 

se 

dolphin Southern 

Migrator 

y 

Coastal 

and 0 975 0 3,735 0 870 0 5,520 0 5

Western 

North 

Atlantic 

-

Offshore 

Clymene Western North 0 5 0 5 0 0 0 0 0 

dolphinb Atlantic 

Commo Western 

n North 0 3,620 0 6,360 0 1,160 0 7,360 0 7

Dolphin Atlantic 

False Western 

killer North 0 4 0 4 0 0 0 0 0 

whaleb Atlantic 

Melon- Western 

headed North 0 5 0 5 0 0 0 0 0 

whaleb Atlantic 

ER23JA24.011</GPH>khammond on DSKJM1Z7X2PROD with RULES2

Total Authorized Annual Take 

Marine 2024c 2025c 2026 2027 2028 

Mammal Stock 

Species Level A Level B Level A Level B Level A LevelB Level A LevelB Level A Le

harassm harassm harassm harassm harassm harassm harassm harassm harassm har

ent ent ent ent ent ent ent ent ent 

Pilot Western 

whale North 0 82 0 70 0 20 0 20 0 

spp. Atlantic 

Pantropi Western cal North 0 40 0 40 0 20 0 20 0 

spotted Atlantic dolphin 

Risso's Western 

dolphin North 0 50 0 48 0 25 0 25 0 

Atlantic 

Gulf of 

Harbor Maine/B 1 36 1 40 0 5 0 30 0 

porpoise ayof 

Fundy 

Gray Western North 1 83 1 72 0 5 0 29 0 

seal Atlantic 

Harbor Western North 1 83 1 72 0 5 0 29 0 

seal Atlantic 

Note: * denotes species listed under the Endangered Species Act. 

a -Although the final rule will be effective for 5 full years (from early 2024 to early 2029), no work is anticipated to occur in 2029 

been requested or authorized for 2029. 

b - While these species were not originally included in Dominion Energy's request, given recorded sightings/detections of these spe

Dominion Energy IHAs in the same general area, NMFS has included these as species that may be harassed (by Level B harassmen

effective period of this final rulemaking. 

c - Either 2024 or 2025 represent the maximum amount of take that is authorized annually, specific to each species and/or stock 

ER23JA24.012</GPH>khammond on DSKJM1Z7X2PROD with RULES2

Table 23-Total 5-Year Takes Of Marine Mammals (By Level A Harassment And Level B Harassment

Activities (2024-2029 

5-Year Totals 

Marine Mammal Stock NMFS Stock Species Abundance Authorized Level A Authorized Level B 

Harassment Harassment 

North Atlantic right Western North Atlantic 338· 0 17 

whale* 

Fin whale* Western North Atlantic 6,802 7 208 

Humpback whale Gulf of Maine 1,396 8 242 

Minke whale Canadian East Coast 21,968 15 116 

Sei whale* Nova Scotia 6,292 2 8 

Sperm whale* North Atlantic 4,349 0 6 

Pygmy sperm whaleh Western North Atlantic 7,750 0 2 

Atlantic spotted dolphin Western North Atlantic 39,921 0 26,764 

Atlantic white-sided Western North Atlantic 93,233 0 111 

dolphin 

Western North Atlantic 62,851 0 7,892 

- Offshore 

Southern Migratory 6,639 0 450 

Bottlenose dolphin Coastal 

Southern Migratory 

Coastal and Western 69,490 0 16,620 

North Atlantic -

Offshore 

Clymene dolphinb Western North Atlantic 4,237 0 10 

Common dolphin Western North Atlantic 172,974 0 25,860 

False killer whaleh Western North Atlantic 1,791 0 8 

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5-Year Totals 

Marine Mammal Stock NMFS Stock Species Abundance Authorized Level A Authorized Level B 

Harassment Harassment 

Melon-headed whaleh Western North Atlantic n/a 0 10 

Pilot whale spp. Western North Atlantic 39,215 0 212 

Pantropical spotted Western North Atlantic 6,593 0 140 

dolphin 

Risso's dolphin Western North Atlantic 35,215 0 173 

Harbor porpoise Gulf of Maine/Bay of 95,543 2 141 

Fundy 

Gray seal Western North Atlantic 27,300 2 218 

Harbor seal Western North Atlantic 61,336 2 218 

Note: * denotes species listed under the Endangered Species Act. 

a - NMFS notes that, even using the maximum estimate presented in the 2021 North Atlantic Right whale Report Card (Pettis et al., 

with 95 percent corifidence interval +/- 14 ), the total percentage of this species that would be taken by Level B harassment only ov

final rule would be two percent of the overall population of North Atlantic right whales. While NMFS acknowledges the estimate fo

Right Whale Consortium's website (https://www.narwc.org/report-cards.html), we have used the value presented in the final 2022 S

11, 2023, https://www.jisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports; nbest=33

science for this final action. 

b - While these species were not originally included in Dominion Energy's request, given recorded sightings/detections of these spe

Dominion Energy IHAs in the same general area, NMFS has included these as species that may be harassed (by Level B harassmen

effective period of this final rulemaking. 
4426 Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 

In making the negligible impact 

determination, NMFS assesses both the 

greatest number of authorized takes of 

each marine mammal species or stocks 

that could occur within any one year, 

which in the case of this rule is based 

on the predicted take in either Year 1 

(2024) or Year 2 (2025), and the total 

taking of each marine mammal species 

or stock during the five-year effective 

period of the rule. In this calculation, 

the maximum estimated number of 

Level A harassment 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 number of estimated 

takes that could occur in any year. We 

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 24 in any one year. 


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Table 24-Maximum Number Of Takes (Level A Harassment and Level B Harassment) Authorized Fo

Relative To Stock Population Size 

Maximum Annual Take Authorize

Maximum An

Marine Mammal NMFS Stock Maximum Level A Maximum Level B Take (Maxim

Hearing Group and Stock Abundance Harassment Harassment Level A Haras

Species Authorized In Any Authorized In Any + Maximum L

One Year One Year B Harassme

Authorized In 

One Year 

North Atlantic Western North 338b 0 7 7 

Right Whale* Atlantic 

Fin Whale* Western North 6,802 4 113 117 

Atlantic 

Humpback Whale Gulf of Maine 1,396 4 130 134 

Minke Whale Canadian East 21,968 8 56 64 

Coast 

Sei Whale* Nova Scotia 6,292 1 3 4 

Sperm Whale* North Atlantic 4,349 0 3 3 

Pygmy Sperm Western North 7,750 0 1 1 

Whalec Atlantic 

Atlantic Spotted Western North 39,921 0 7,360 7,360 

Dolphin Atlantic 

Atlantic White- Western North 93,233 0 36 36 

sided Dolphin Atlantic 

Western North 62,851 0 4,290 4,290 

Atlantic - Offshore 

Bottlenose Dolphin Southern Migratory 6,639 0 450 450 

Coastal 

Southern Migratory 69,490 0 5,520 5,520 

Coastal and 

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Maximum Annual Take Authorize

Maximum An

Marine Mammal NMFS Stock Maximum Level A Maximum Level B Take (Maxim

Hearing Group and Stock Abundance Harassment Harassment Level A Haras

Species Authorized In Any Authorized In Any + Maximum L

One Year One Year B Harassme

Authorized In 

One Year 

Western North 

Atlantic - Offshore 

Clymene Dolphin° Western North 4,237 0 5 5 

Atlantic 

Common Dolphin Western North 172,974 0 7,360 7,360 

Atlantic 

False killer Whale0 Western North 1,791 0 4 4 

Atlantic 

Melon-headed Western North n/a 0 5 5 

Whale0 Atlantic 

Pilot Whale spp. Western North 39,215 0 82 82 

Atlantic 

Pantropical Spotted Western North 6,593 0 40 40 

Dolphin Atlantic 

Risso's Dolphin Western North 35,215 0 50 50 

Atlantic 

Harbor Porpoise Gulf of Maine/Bay 95,543 1 40 41 

ofFundy 

Gray Seal Western North 27,300 1 83 84 

Atlantic 

Harbor Seal Western North 61,336 1 83 84 

Atlantic 

Note: * denotes species listed under the Endangered Species Act. 

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a - Calculations of percentage of stock taken are based on the maximum authorized Level A harassment take in any one year + th

harassment take in any one year and then compared against the best available abundance estimate, as shown in Table 2 and 24. F

available abundance estimates are derived from the NMFS'final 2022 SARs (88 FR 54592, August 11, 2023, https://www.fisherie

mammal-protectionlmarine-mammal-stock-assessment-reports). 

b-NMFS notes that, even using the maximum estimate presented in the 2021 North Atlantic Right whale Report Card (Pettis et al

with 95 percent confidence interval +/- 14), the total percentage of this species that would be taken by Level B harassment only ov

final rule will be two percent of the overall population of North Atlantic right whales. While NMFS acknowledges the estimate fou

Whale Consortium's website (https:/lwww.narwc.org/report-cards.html), we have used the value presented in the final 2022 SARs 

2023, https://www.jisheries.noaa.gov/national/marine-mammal-protectionlmarine-mammal-stock-assessment-reports; nbest=338) 

for this final action. 

c - While these species were not originally included in Dominion Energy's request, given recorded sightings/ detections of these sp

Dominion Energy IHAs in the same general area, NMFS has included these as species that may be harassed (by Level B harassme

effective period of this final rulemaking. 

d - This value assumes that each instance of take is a different individual, which is not likely the case for all species, as described 

Analysis and Determination section. 
4430 Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 

BILLING CODE 3510–22–C 

Mitigation 

As described in the Changes From the 

Proposed to Final Rule section, we have 

made changes to some mitigation 

measures since the proposed rule. These 

changes are described in detail in the 

sections below and, otherwise, the 

mitigation requirements have not 

changed since the proposed rule. 

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, personnel safety, 

practicality of implementation, and, in 

the case of a military readiness activity, 

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 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 

harassment might occur. 

Generally speaking, the mitigation 

measures considered and required here 

fall into three categories: spatiotemporal (seasonal and daily) work 

restrictions, real-time measures 

(shutdown, clearance, and vessel strike 

avoidance), and noise attenuation/ 

reduction measures. Spatio-temporal 

restrictions, such as 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. Such restrictions 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 

we describe the measures that apply to 

specific specified activities (i.e., 

foundation installation, nearshore 

installation and removal activities for 

cable laying, and HRG surveys). Specific 

requirements can be found in Section 

217.294 (Mitigation requirements) as 

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 Dominion Energy 

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 

Dominion Energy’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, Dominion Energy is 

required to instruct all project personnel 

regarding the authority of the marine 

mammal monitoring team(s). For 

example, the HRG acoustic equipment 

operator, pile driving personnel, etc., is 

required to immediately comply with 

any call for a delay or shut down by the 

Lead PSO. 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. 

Dominion Energy will provide 

documentation of training to NMFS. 

North Atlantic Right Whale Awareness 

Monitoring 

Dominion Energy 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 

right whale presence in the area through 

ongoing visual and passive acoustic 

monitoring efforts and opportunities 

(outside of Dominion Energy’s efforts), 


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Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 4431 

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 

217.294(b)). Dominion Energy will be 

required to comply with these measures 

except under circumstances when doing 

so would create an imminent and 

serious threat to a person or vessel or to 

the extent that a vessel is unable to 

maneuver and because of the inability to 

maneuver, the vessel cannot comply. 

While underway, Dominion Energy 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 

and slow down, stop their vessel, or 

alter course (as appropriate) to avoid 

striking any marine mammal. The 

dedicated visual observer, equipped 

with 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) has been 

observed to be outside of the vessel’s 

path and beyond the respective 

minimum separation zone. If a North 

Atlantic right whale is observed at any 

distance by any project personnel or 

acoustically detected, project vessels 

must reduce speeds to 10 kn (11.5078 

miles per hour (mph)). Additionally, in 

the event that any project-related vessel, 

regardless of size, observes any large 

whale (other than a North Atlantic right 

whale) within 500 m of an underway 

vessel, the vessel is required to shift 

engines into neutral. The vessel shall 

remain in neutral until the North 

Atlantic right whale has moved beyond 

500 m and the 10 kn speed restriction 

will remain in effect as outlined in 50 

CFR 217.294(b). 

All of the 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 NMFS vessel speed restrictions 

are not in effect and a vessel is traveling 

at greater than 10 kn, in addition to the 

required dedicated visual observer, 

Dominion Energy is required to monitor 

the crew transfer vessel transit corridor 

(the path crew transfer vessels take from 

port to any work area) in real-time with 

PAM prior to and during transits. 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 onduty 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 Dominion Energy must 

report all MMSI numbers to NMFS 

Office of Protected Resources prior to 

initiating in-water activities. Dominion 

Energy would submit a NMFS-approved 

North Atlantic Right Whale Vessel 

Strike Avoidance Plan at least 180 days 

prior to commencement of vessel use. 

Dominion Energy’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., 

2014; Martin et al., 2015; Crum et al., 

2019). 

Seasonal and Daily Restrictions 

Spatio-temporal work 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. 

Seasonal work restrictions provide 

additional benefit for marine mammals 

during periods where there could be 

higher occurrence or presence in the 

Project Area and specified geographic 

area. Dominion Energy proposed, and 

NMFS is requiring, seasonal work 

restrictions to minimize the risk of noise 

exposure to North Atlantic right whales 

incidental to certain specified activities 

to the extent practicable. These seasonal 

work restrictions are expected to greatly 

reduce the number of takes of North 

Atlantic right whales. These seasonal 

restrictions also afford protection to 

other marine mammals that are known 

to use the Project Area with greater 

frequency from November 1st through 

April 30th, including other baleen 

whales. 

As described previously, Dominion 

Energy proposed, and NMFS is 

requiring, that no foundation pile 

driving activities occur November 1st 

through April 30th. Dominion Energy 

has planned to construct the cofferdams 

and goal posts from May 1st through 

October 31st within the first year of the 

effective period of the regulations and 

LOA. However, NMFS is not requiring 

any seasonal restrictions due to the 

relatively short duration of work and 

low associated impacts to marine 

mammals. Although North Atlantic 

right whales do migrate in coastal 

waters, they do not typically migrate 

very close to shore off of Virginia and/ 

or within Virginia nearshore 

environments where work would be 


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4432 Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 

occurring. Given the distance to the 

Level B harassment isopleth is 

conservatively modeled at 

approximately 3.1 km (vibratory pile 

driving for cofferdams) and 1.5 km 

(impact pile driving of goal posts), any 

exposure to pile driving during 

cofferdams and goal posts installation 

would be at levels closer to the 120-dB 

Level B harassment threshold and not at 

louder source levels. NMFS is not 

adding seasonal restrictions to HRG 

surveys given the limited duration in 

which survey effort would occur (i.e., 65 

days in 2024; 249 days in 2025; 58 days 

in 2026; and 368 days in each of 2027 

and 2028 (assuming each day an 

individual vessel is operating 

constitutes a day of vessel effort)) and 

the limited impacts expected from HRG 

surveys on marine mammals. 

North Atlantic right whales may be 

present in and around the Project Area 

throughout the year (e.g., Davis et al., 

2017; Roberts et al., 2023; Salisbury et 

al., 2015). However, it would not be 

practicable to restrict foundation pile 

driving year-round. Based upon the best 

scientific information available (Roberts 

et al., 2023), the highest densities of 

North Atlantic right whales in the 

specified geographic region are expected 

during the months of January through 

April, with densities starting to increase 

in November and taper off in May. To 

further ensure impacts to North Atlantic 

right whales are minimized, Dominion 

Energy proposed, and NMFS is carrying 

forward in this final rule, a requirement 

to not install foundations in November. 

Specifically, during Dominion Energy’s 

planned foundation pile driving 

window, May represents the highest 

density period of North Atlantic right 

whales, even though it is relatively low 

when compared to other high-density 

months. 

As described previously, no 

foundation pile driving activities may 

occur November 1st through April 30th. 

Dominion Energy has planned to 

construct the cofferdams and goal posts 

from May 1st through October 31st 

within the first year of the effective 

period of the regulations and LOA. 

However, NMFS is not requiring any 

seasonal restrictions due to the 

relatively short duration of work and 

low associated impacts to marine 

mammals. Although North Atlantic 

right whales do migrate in coastal 

waters, they do not typically migrate 

very close to shore off of Virginia and/ 

or within Virginia nearshore 

environments where work would be 

occurring. Given the distance to the 

Level B harassment isopleth is 

conservatively modeled at 

approximately 3.1 km (vibratory pile 

driving for cofferdams) and 1.5 km 

(impact pile driving of goal posts), any 

exposure to pile driving during 

cofferdams and goal posts installation 

would be at levels closer to the 120-dB 

Level B harassment threshold and not at 

louder source levels. NMFS is not 

adding seasonal restrictions to HRG 

surveys; however, Dominion Energy 

would only perform a predetermined 

amount of 24-hour survey effort for a 

specific number of days within specific 

years (i.e., 65 days in 2024; 249 days in 

2025; 58 days in 2026; and 368 days in 

each of 2027 and 2028 (assuming each 

day an individual vessel is operating 

constitutes a day of vessel effort)). 

NMFS is also requiring spatiotemporal restrictions for some activities. 

Within any 24-hour period, Dominion 

Energy would be limited to installing a 

maximum of two monopile WTG 

foundations (one standard and one 

hard-to-drive) or two pin piles for OSS 

jacket foundations, although some days 

Dominion Energy would only install 

one monopile foundation for WTGs. 

NMFS notes that Dominion Energy did 

not request to initiate foundation pile 

driving during nighttime hours. Because 

of this, Dominion Energy would only 

initiate foundation pile driving 

(inclusive of both vibratory and impact) 

during daylight hours within their 

specific pile driving window (i.e., May 

1st through October 31st), defined as no 

earlier than 1 hour after civil sunrise 

and no later than 1.5 hours before civil 

sunset. Because of this, no nighttime 

pile driving (defined as pile driving 

beginning after defined nighttime hours) 

is expected to occur during the effective 

period of the rule. However, Dominion 

Energy may continue pile driving after 

dark if installation of the same pile 

began during daylight hours (i.e., 1.5 

hours before civil sunset). In either 

situation, Dominion Energy would still 

need to adequately monitor all relevant 

zones to ensure the most effective 

mitigative actions are being undertaken, 

in alignment with an Alternative 

Monitoring Plan that would be 

submitted to NMFS for approval prior to 

foundation pile driving beginning. This 

Plan would be made public on NMFS’ 

website upon approval. Subsequent 

monitoring reports submitted by 

Dominion Energy will allow NMFS to 

continue to evaluate the efficacy of the 

technologies and methodologies and to 

initiate adaptive management 

approaches, if necessary. We also 

continue to encourage Dominion Energy 

to further investigate and test advanced 

technology detection systems. 

Any and all vibratory pile driving 

associated with cofferdams and goal 

posts installation and removal would 

only be able to occur during daylight 

hours. 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 

Dominion Energy is required to 

employ NAS, also known as noise 

attenuation systems, during all 

foundation installation (inclusive of 

vibratory and impact pile driving) 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. 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 (i.e., 

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 


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Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 4433 

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 big bubble curtains for 

noise attenuation. As a double bubble 

curtain is required to be used (noting a 

single bubble curtain is not allowed), 

Dominion Energy 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 Dominion Energy 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. In addition, a full 

maintenance check (e.g., manually 

clearing holes) must occur prior to each 

pile being installed. If Dominion Energy 

uses a noise mitigation device in 

addition to a double bubble curtain, 

similar quality control measures are 

required. 

Dominion Energy is required to use at 

least a double bubble curtain. Should 

the research and development phase of 

newer systems demonstrate 

effectiveness, as part of adaptive 

management, Dominion Energy may 

submit data on the effectiveness of these 

systems and request approval from 

NMFS to use them during foundation 

installation activities. 

Dominion Energy is required to 

submit an SFV plan to NMFS for 

approval at least 180 days prior to 

installing foundations. 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 devices are not 

required during HRG surveys, cofferdam 

(sheet pile) installation and removal, 

and goal post (pipe pile) installation and 

removal. Regarding cofferdam sheet pile 

and goal post pipe pile installation and 

removal, NAS is not practicable to 

implement due to the physical nature of 

linear sheet piles and angled pipe piles 

and here 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 Dominion 

Energy 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, CHIRPs, 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 required (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 any foundation installation and 

must actively monitor hydrophones for 

60 minutes prior to commencement of 

these activities. Any sighting or acoustic 

detection of a North Atlantic right whale 

triggers a delay to commencing pile 

driving and shutdown. 

Prior to the start of certain specified 

activities (foundation installation, 

cofferdam install and removal, HRG 

surveys), Dominion Energy must ensure 

designated areas (i.e., clearance zones; 

see Tables 25, 26, 27, 28, and 29) are 

clear of marine mammals prior to 

commencing activities to minimize the 

potential for and degree of harassment. 

For foundation installation, PSOs must 

visually 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. Clearance 

and shutdown zones have been 

developed in consideration of modeled 

distances to relevant PTS thresholds 

with respect to minimizing the potential 

for take by Level A harassment. All 

required clearance and shutdown zones 

for large whales are larger than the 

largest modeled acoustic range (R95%) 

distances to thresholds corresponding to 

Level A harassment (SEL and peak). For 

foundation installation, the minimum 

visibility zone would extend 2,000 m 

from the WTG monopile or OSS pin 

piles. This is larger than the distance 

1,750 m shutdown zone used during the 

construction of the two CVOW Pilot 

Project turbines (then called the 

‘‘exclusion zone’’), given larger piles 

and higher hammer energy planned for 

use, which creates a larger distance to 

the Level A harassment threshold (see 

proposed rule for more information). 

Even with the larger acoustic ranges 

produced from Tetra Tech’s 

conservative modeling for the CVOW–C 

project, the minimum visibility zone 

does not differ greatly from those 

presented for other nearby projects 

which calculated distances to 

thresholds in consideration of animal 

movement (i.e., off of New Jersey for 

both the Ocean Wind 1 final rule—1.65 

km (1.03 mi) in the summer and 2.5 km 

(1.56 mi) in the winter (see 88 FR 62898, 

September 13, 2023) and the Atlantic 

Shores South proposed rule—1.9 km 

(1.2 mi; see 88 FR 65430, September 22, 

2023)). 

For cofferdam and goal post pile 

driving and HRG surveys, monitoring 

must be conducted for 30 minutes prior 

to initiating activities and the clearance 

zones 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, 

Dominion Energy 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 the 


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4434 Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 

activity to cease. In the case of 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 if the lead 

engineer determines there is pile refusal 

or pile instability. In situations when 

shutdown is called for during 

foundation pile driving but Dominion 

Energy determines shutdown is not 

practicable due to aforementioned 

emergency reasons, reduced hammer 

energy must be implemented when the 

lead engineer determines it is 

practicable. Specifically, pile refusal or 

pile instability could result in not being 

able to shut down pile driving 

immediately. Pile refusal occurs when 

the pile driving sensors indicate the pile 

is approaching refusal, and a shut-down 

would lead to a stuck pile which then 

poses an imminent risk of injury or loss 

of life to an individual, or risk of 

damage to a vessel that creates risk for 

individuals. Pile instability occurs when 

the pile is unstable and unable to stay 

standing if the piling vessel were to ‘‘let 

go.’’ During these periods of instability, 

the lead engineer may determine a shutdown is not feasible because the shutdown combined with impending 

weather conditions may require the 

piling vessel to ‘‘let go’’ which then 

poses an imminent risk of injury or loss 

of life to an individual, or risk of 

damage to a vessel that creates risk for 

individuals. Dominion Energy must 

document and report to NMFS all cases 

where the emergency exemption is 

taken. 

After shutdown, foundation pile 

driving may be reinitiated once all 

clearance zones are clear of marine 

mammals for the minimum speciesspecific 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 nor 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 25 and 26, 27, 28, and 29 for 

each planned activity. Dominion Energy 

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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Table 25 - Mitigation Zone Distances During Vibratory And Impact Pile Driving Of WTG Mono pile Fo

The Maximum Daily Build-Out (Two Piles Installed Per Day) And Deep Water Conditions (Inclusive O

Attenuation) 

WTG Monopile Foundations•, b 

Impact Pile Driving Installation Vibratory Pile Driving 

Marine 

Mammals Clearance Zone (m)d Shutdown Zone (m)d Clearance Zone (m)d 

One Pile Per Two Piles Per One Pile Per Two Piles Per One Pile Per Two Piles Per On

Day Day Day Day Day Day 

North Atlantic 

right whale -

PAM detection 

North Atlantic Any distance 

right whale -

visual 

detection 

All species 

(other than 

North Atlantic 10,000° 

right whale) -

PAM detection 

All other 

Mysticetes and 

sperm whales - 5,100 6,500 1,750 1,750 1,000 1,000 

visual 

detection 

Dolphins and 

pilot whales - 500 500 500 500 250 250 

visual 

detection 

Harbor 750 750 750 750 500 500 

porpoises 

Seals - visual 500 500 500 500 250 250 

detection 

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a - The minimum visibility zone, an area in which marine mammals must be able to be vis

b - Dominion Energy may request modification of these zones based on the results of soun

c - To align with the regulatory text, NMFS has added a IO km PAM monitoring zone for 

d - This zone applies to both visual and PAM 

ER23JA24.019</GPH>khammond on DSKJM1Z7X2PROD with RULES2

Table 26 - Mitigation Zone Distances During Vibratory And Impact Pile Driving Of OSS Jacket Found

Maximum Daily Build-Out (Two Pin Piles Installed Per Day;_ Inclusive Of 10 dB Of Sound Attenuation

OSS Jacket Foundations•, b 

Impact Pile Driving Installation Vibratory Pile Driving 

Marine 

Mammals Clearance Zone (m)d Shutdown Zone (m)d Clearance Zone (m)d 

One Pile Per Two Piles Per One Pile Per Two Piles Per One Pile Per Two Piles Per On

Day Day Day Day Day Day 

North Atlantic 

right whale -

PAM detection 

North Atlantic Any distance 

right whale -

visual 

detection 

All species 

(other than 

North Atlantic 10,000° 

right whale) -

PAM detection 

All other 

Mysticetes and 

sperm whales - 5,100 6,500 1,750 1,750 1,000 1,000 

visual 

detection 

Dolphins and 

pilot whales - 500 500 500 500 250 250 

visual 

detection 

Harbor 

porpoises - 750 750 750 750 500 500 

visual 

detection 

Seals - visual 500 500 500 500 250 250 

detection 
BILLING CODE 3510–22–C 


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a - The minimum visibility zone, an area in which marine mammals must be able to be vis

b - Dominion Energy may request modification of these zones based on the results of soun

c - To align with the regulatory text, NMFS has added a 10 km PAM monitoring zone for 

d - This zone applies to both visual and PAM 
Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 4439 

TABLE 27—DISTANCES TO MITIGATION ZONES DURING NEARSHORE CABLE LANDFALL ACTIVITIES

[Temporary Cofferdams] 

Marine mammals 

Installation and removal of 

temporary cofferdams 

Clearance zone 

(m) 

Shutdown zone 

(m) 

North Atlantic right whale—visual detection .................................................................................................... Any distance 

All other Mysticetes and sperm whales ........................................................................................................... 1,000 1,000 

Delphinids ........................................................................................................................................................ 250 100 

Pilot whales ...................................................................................................................................................... 1,000 1,000 

Harbor porpoises ............................................................................................................................................. 250 100 

Seals ................................................................................................................................................................ 250 100 

TABLE 28—DISTANCES TO MITIGATION ZONES DURING NEARSHORE CABLE LANDFALL ACTIVITIES

[Temporary goal posts] 

Marine mammals 

Installation and removal of 

temporary goal posts 

Clearance zone 

(m) 

Shutdown zone 

(m) 

North Atlantic right whale—visual detection .................................................................................................... Any distance 

All other Mysticetes and sperm whales ........................................................................................................... 1,000 1,000 

Delphinids ........................................................................................................................................................ 250 100 

Pilot whales ...................................................................................................................................................... 1,000 1,000 

Harbor porpoises ............................................................................................................................................. 750 100 

Seals ................................................................................................................................................................ 500 100 

TABLE 29—DISTANCES TO THE MITIGATION ZONES DURING HRG SURVEYS

Marine mammals 

HRG surveys 

Clearance zone 

(m) 

Shutdown zone 

(m) 

North Atlantic right whale—visual detection .................................................................................................... 500 500 

Endangered species (excluding North Atlantic right whales) .......................................................................... 500 500 

All other marine mammals a ............................................................................................................................ 100 100 

aExceptions are noted for delphinids from genera Delphinus, Lagenorhynchus, Stenella, Tursiops, and both seal species. 

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. Dominion 

Energy must utilize a soft-start protocol 

for impact pile driving of foundation 

piles (monopiles and pin piles). 

Typically, NMFS requires a soft-start 

procedure of the applicant 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. 

However, Dominion Energy’s engineers 

have expressed concern with this 

approach as it could potentially damage 

the impact pile driving hammer. As 

such, specific soft start protocols 

considering final design details, 

including site-specific soil properties 

and other considerations, will be 

incorporated into the LOA, if issued. 

Dominion Energy, with approval from 

NMFS, may also modify the soft start 

procedures through adaptive 

management. 

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. No soft-start or ramp-up is 

required for nearshore cable landfall 

activities given the type of activity (i.e., 

vibratory pile driving for cofferdams) 

and the short duration of the activity 

(i.e., impact pile driving of goal posts). 

Where required, soft-start and rampup will be required at the beginning of 

each day’s activity 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 Dominion 

Energy’s fishery monitoring surveys 

impacting marine mammals is minimal, 

NMFS requires Dominion Energy 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 


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4440 Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 

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 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, and HRG surveys. PAM 

would also be conducted during 

foundation pile driving. Visual 

observations and acoustic detections 

would be used to support the activityspecific 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 

foundation piling locations and near the 

HRG acoustic sources. 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 (PSO) and 

Passive Acoustic Monitoring (PAM) 

Operator Requirements 

Dominion Energy is required to 

employ NMFS-approved PSOs and PAM 

operators. PSOs are trained 

professionals who are tasked with visual 

monitoring for marine mammals during 

pile driving and HRG surveys. 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 

Dominion Energy to conduct PAM by 

PAM operators during foundation pile 

driving 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 (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 

with 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’’ singleoptimal-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 trainer 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 that PSOs and PAM 

operators have the necessary training 

and/or experience to carry out their 

duties competently. In order for PSOs 


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Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 4441 

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 

unconditionally-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’’) 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. Dominion Energy 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 

Dominion Energy at least 30 days prior 

to the start of the project. Should 

Dominion Energy require additional 

PSOs or PAM operators throughout the 

project, Dominion Energy 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. 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 onduty and actively monitoring per 

platform during foundation installation; 

at least two PSOs must be on duty 

during cable landfall construction 

impact vibratory pile installation and 

removal (temporary cofferdams and 

temporary goal posts); 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. 

Dominion Energy is required to 

submit a Pile Driving 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 

and PAM monitoring protocols and 

equipment proposed for use. More 

specifically, 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 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 commencing. 

Specific details on NMFS’ PSO or PAM 

operator qualifications and 

requirements can be found in Part 217— 

Regulations Governing The Taking And 

Importing Of Marine Mammals at the 

end of this rulemaking. Additional 

information can be found in Dominion 

Energy’s PSMMP found with their ITA 

application on NMFS’ website at 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-take-authorizations-otherenergy-activities-renewable. 

Sound Field Verification (SFV) 

Dominion Energy must conduct SFV 

measurements for all foundation piledriving activities associated with the 

installation of, at minimum, the first 3 

monopile foundations, and for all 3 

jacket foundations used for OSS, 

assuming all 12 pin piles are installed 

(n=4 pin piles per OSS). SFV 

measurements must continue until at 

least three consecutive monopiles 

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, etc.). 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 

Dominion Energy 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 

experiencing noise levels above those 

considered in this analysis. For 

recommended SFV protocols for impact 

pile driving, please consult the ISO 

18406 Underwater acoustics— 

Measurement of radiated underwater 

sound from percussive pile driving 

(International Organization for 

Standardization, 2017). 

Reporting 

Prior to any construction activities 

occurring, Dominion Energy would 

provide a report to NMFS Office of 

Protected Resources that demonstrates 

that all Dominion Energy personnel, 

including the vessel crews, vessel 

captains, PSOs, and PAM operators, 

have completed all required trainings. 


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NMFS would require standardized 

and frequent reporting from Dominion 

Energy 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. 

Dominion Energy 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, Dominion Energy 

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 to 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—Dominion Energy 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—Dominion Energy 

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—Dominion 

Energy 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 require 

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-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, 

Dominion Energy 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. Dominion Energy 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, Dominion 

Energy must immediately report the 

strike incident. If the strike occurs in the 

Greater Atlantic Region (Maine to 

Virginia), Dominion Energy must call 

the NMFS Greater Atlantic Stranding 

Hotline. Separately, Dominion Energy 

must also and immediately report the 

incident to NMFS Office of Protected 

Resources and NMFS Greater Atlantic 

Regional Fisheries Office (GARFO). 

Dominion Energy 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. Dominion Energy may not 

resume their activities until notified by 

NMFS. 

In the event of any lost gear associated 

with the fishery surveys, Dominion 

Energy 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—Dominion 

Energy is required to submit interim 

SFV reports after each foundation 

installation as soon as possible but 

within 48 hours. A final SFV report for 

all monopile foundation installation 

would be required within 90 days 

following completion of acoustic 

monitoring. 

Adaptive Management 

The regulations governing the take of 

marine mammals incidental to 

Dominion Energy’s construction 

activities contain an adaptive 

management component. Our 

understanding of the effects of offshore 

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, 


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monitoring, or reporting requirements, 

as appropriate, with input from 

Dominion Energy 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, Dominion Energy (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 

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, we 

discuss the estimated maximum number 

of takes by Level A harassment and 

Level B harassment that could occur 

incidental to Dominion Energy’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 Dominion Energy’s specified 

activities that may result in take of 

marine mammals and an estimated 

schedule for conducting those activities. 

Dominion Energy has provided a 

realistic construction schedule (e.g., 

Dominion Energy’s schedule reflects the 

maximum number of piles they 

anticipate to be able to drive each 

month in which pile driving is 

authorized to occur), although we 

recognize schedules may shift for a 

variety of reasons (e.g., weather or 

supply delays). However, the total 

number of takes would not exceed the 

5-year totals and maximum annual total 

in any given year indicated in Tables 23 

and 24, 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 Dominion Energy’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 Dominion Energy’s activities, 

and then providing species- or stockspecific 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 is 

scheduled to occur largely within the 

first 2 years (2024 through 2025) of the 

effective period of these regulations. 

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 22, 

23, and 24). 

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). The 

number of takes by harassment 

Dominion Energy has requested and 

NMFS is authorizing is based on 

exposure models that consider the 

outputs of acoustic source and 

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 the broad application of an average 

seasonal sound speed profile (i.e., 

between May 1st and October 31st) to 

all months within a given season based 

on the foundation pile driving period. 

The exposure model results do not 

reflect any mitigation measures (other 


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than 10 dB sound attenuation for 

foundation pile driving and spatiotemporal restrictions (i.e., seasonal pile 

driving window; pile driving cannot 

start at night)) 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 

potential of some large whales, the 

consideration of mitigation measures. 

For all species, the number of takes 

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 Dominion 

Energy’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 stressrelated physiological component as 

well; however, we would not expect 

Dominion Energy’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 1 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 (up to 40 m) 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 Dominion Energy 

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 for HRG surveys, or, in some 

cases, longer durations of exposure 

within a day (e.g., pile driving). Some 

members of a species or stock may 

experience one exposure as they move 

through an area while other individuals 

of a species may experience recurring 

instances of take over multiple days 

throughout the year while, in which 

case 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 Dominion Energy, 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, 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 and associated exposure. 

While impact pile driving for 

foundation installation is anticipated to 

be most impactful for 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 piledriving 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 will increase 

the overall capability to detect marine 

mammals compared to one method 

alone. 


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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 is 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 Dominion 

Energy’s activities and, as described 

earlier, the authorized 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 (88 FR 28656, May 4, 

2023), 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 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 lowfrequency cetaceans (i.e., mysticetes) 

than other marine mammal hearing 

groups and is more likely to occur in 

frequency bands in which they 

communicate. 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 Dominion Energy’s pile 

driving 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 

required mitigation measures further 

reduce the potential for TTS for all 

species. 

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 the Estimated Take 

section of this preamble). However, 

source level is not the sole 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 (88 

FR 28656, May 4, 2023)), 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. 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 very limited 

number (i.e., single digits annually) of 

takes 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 23). The only 

activities incidental to which we 

anticipate PTS may occur is from 

exposure to impact pile driving, 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 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. 

Any PTS incurred from these 

activities 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 (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 impact pile driving, 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. 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. For 

these reasons, any PTS incurred as a 

result of exposure to these activities is 

not expected to impact the reproduction 

or survival of any individuals. 

Auditory Masking or Communication 

Implications 

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 


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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 for this project has 

indicated, 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 piledriving 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 

Dominion Energy’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 

Construction activities may result in 

fish and invertebrate mortality or injury 

very close to the source, and all of 

Dominion Energy’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 (i.e., a double bubble 

curtain) during impact pile driving 

would further limit the degree of 

impact. 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 (88 FR 28656, May 4, 

2023), the project would consist of no 

more than 179 foundations (176 WTGs 

and 3 OSSs) in the Lease Area, which 

will gradually become operational 

following construction completion. 

While there are likely to be 

oceanographic impacts from the 

presence of the CVOW–C 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 the regulations, the 

impact on marine mammal habitat and 

their prey is likely to be comparatively 

minor. 

The CVOW–C Biological Opinion 

provided an evaluation of the presence 

and operation of the Project on, among 

other species, marine mammals and 

their prey (see https://repository.library.

noaa.gov/view/noaa/55495). While the 

consultation considered the life of the 

project (approximately 33 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 within the 

wind farm, but 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 

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 are not anticipated. 

Mitigation To Reduce Impacts on All 

Species 

This rulemaking includes a variety of 

mitigation measures designed to 

minimize to the extent practicable 

impacts on all marine mammals, with a 

focus on North Atlantic right whales 

(the latter is described in more detail 

below). For the dual approach of 

vibratory and impact pile driving of 

foundation piles, ten overarching 

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 a 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; (7) use of noise 

attenuation technology (i.e., double 

bubble curtain); (8) maintaining 

situational awareness of marine 

mammal presence through the 

requirement that any marine mammal 

sighting(s) by Dominion Energy 

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 

temporary cofferdam and goal post 

installation and removal, we are 

requiring five overarching measures: (1) 

seasonal/time of day work restrictions; 

(2) use of multiple PSOs to visually 


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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 Dominion Energy 

personnel must be reported to PSOs. 

Lastly, for HRG surveys, we are 

requiring six measures: (1) measures 

specifically for Vessel Strike Avoidance; 

(2) specific requirements during 

daytime and nighttime 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 Dominion Energy 

personnel must be reported to PSOs. 

NMFS prescribes mitigation measures 

based on the following rationale. For 

activities with large harassment 

isopleths, Dominion Energy 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 (Dominion 

Energy will not use a hammer energy 

greater than necessary to install piles). 

Similarly, ramp-up during HRG surveys 

would allow animals to move away and 

avoid the acoustic sources before they 

reach their maximum energy level. For 

all activities, 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 and goal post 

installation and removal, HRG surveys), 

PAM operators (for foundation 

installation), and maintaining awareness 

of marine mammal sightings reported in 

the region (WTG and OSS foundation 

installation, temporary cofferdam and 

goal post installation and removal, 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 and foundation operation,), 

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 

Five mysticete species (comprising 

five stocks) of cetaceans (North Atlantic 

right whale, fin whale, humpback 

whale, minke whale, and sei 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 primarily be 

migrating and may be engaged in 

opportunistic foraging behaviors. The 

extent to which an animal engages in 

these behaviors in the area is speciesspecific and varies seasonally. Many 

mysticetes are expected to 

predominantly be migrating through the 

Project Area towards or from feeding 

ground located further north (e.g., 

southern New England region, Gulf of 

Maine, Canada). While we 

acknowledged above that mortality, 

hearing impairment, or displacement of 

mysticete prey species may result 

locally from impact pile driving, 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 that choose to opportunistically 

forage and are temporarily displaced 

from the Project Area are expected to 

have sufficient remaining similar 

feeding habitat available to them in the 

area and, further, would not be 

prevented from feeding in other areas 

within the biologically important 

feeding habitats found further north. In 

addition, any displacement of whales or 

interruption of opportunistic 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, such as is 

indicated in Table 23) 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—an amount that 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, for this project, 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 Dominion Energy 

has identified. Species-specific analysis 

regarding potential for repeated 

exposures and impacts is provided 

below. 

Fin, humpback, minke, and sei 

whales are the only mysticete species 

for which PTS is anticipated and 

authorized (refer back to Table 23). As 

described previously, PTS for 

mysticetes from impact pile driving 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 the 

western Atlantic stock is considered 

depleted and strategic under the MMPA. 


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As described in the Potential Effects to 

Marine Mammals and Their Habitat 

section of the proposed rule (88 FR 

28656, May 4, 2023), 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 17 takes, by Level 

B harassment only, over the 5-year 

period, with a maximum annual 

allowable take of 7 (equating to 

approximately 2.07 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). The Project Area is 

known as a migratory corridor for North 

Atlantic right whales and given the 

nature of migratory behavior (e.g., 

continuous path), as well as the low 

number of total takes, we anticipate that 

few, if any, of the instances of take 

would represent repeat takes of any 

individual, though it could occur if 

whales are engaged in opportunistic 

foraging behavior. While opportunistic 

foraging may occur in the Project area, 

the habitat does not support prime 

foraging habitat. 

The Mid-Atlantic, including the 

Project Area, may be a stopover site for 

migrating North Atlantic right whales 

moving to or from southeastern calving 

grounds. Northward migration occurs 

mainly during the months of March and 

April while southern transit typically 

takes place during the months of 

November and December (LaBrecque et 

al., 2015; Van Parijs et al., 2015). 

Overall, the Project Area contains 

habitat less frequently utilized by North 

Atlantic right whales than the foraging 

and calving grounds. Salisbury et al. 

(2015) detected North Atlantic right 

whales year-round off the coast of 

Virginia, yet they were only detected on 

10 percent of the days from May 

through October. The greatest detections 

occurred from October through 

December through March, outside of the 

months of Dominion Energy’s planned 

foundation installation. Therefore, we 

anticipate that any individual whales 

would typically be migrating through 

the Project Area and would not be 

lingering for extended periods of time 

and, further, fewer would be present in 

the months when foundation 

installation would be occurring. Other 

activities planned by Dominion Energy 

involve either much smaller harassment 

zones (i.e., HRG surveys) or are limited 

in amount and nearshore in location 

(i.e., cable landfall construction) but 

may occur during periods when North 

Atlantic right whales are more likely to 

be migrating through the Project Area. 

As any North Atlantic right whales 

within the Project Area would likely be 

engaged in migratory behavior 

(LaBrecque et al., 2015), it is likely that 

the authorized instances of take would 

occur to separate individual whales; 

however, some may be repeat takes of 

the same animal across multiple days 

for some short period of time. The only 

activity occurring from December 

through May that may impact North 

Atlantic right whale would be HRG 

surveys; no take from cable landfall 

construction is anticipated or 

authorized. Across all years, while it is 

possible an animal could have been 

exposed during a previous year, the low 

number of takes authorized during the 

5-year effective period of the final 

rulemaking makes this scenario possible 

but unlikely (n=17). However, 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. 

North Atlantic right whales utilize 

areas outside of the Project Area for 

their main feeding, breeding, and 

calving activities. In general, North 

Atlantic right whales in the Project Area 

are expected to be engaging in migratory 

behavior. Given the species’ migratory 

behavior in the Project Area, we 

anticipate individual whales would be 

typically migrating through the area 

during most months when foundation 

installation would occur (given the 

seasonal restrictions on foundation 

installation, rather than lingering for 

extended periods of time). Other work 

that involves either much smaller 

harassment zones (e.g., HRG surveys) or 

is limited in amount (e.g., cable landfall 

construction) may also occur during 

periods when North Atlantic right 

whales are using the habitat for 

migration. It is important to note the 

activities occurring from November 

through May that may impact North 

Atlantic right whale would be primarily 

HRG surveys, which would not result in 

very high received levels. 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 Specified 

Geographic Region section, 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 Dominion Energy’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 number of 

annual takes and is of greatest concern 

given loud source levels. This activity is 

expected to consist of approximately 

213 days over a maximum of 2 years, 

assuming up to 30 days necessary for all 

3 OSS foundations to be installed and 

assuming that a single WTG monopile 

(n=176 WTG foundations) is installed 

per day (i.e., 24-hour period), which we 

do acknowledge is not the case as 

Dominion Energy would, on some days, 

install up to 2 WTG monopile 

foundations, which would reduce this 

overall estimate. We also acknowledge 

that this estimate represents 183 pile 

driving events, not WTGs planned to be 

installed, which slightly overestimates 

the total number of pile driving days 

likely necessary. In all cases, these 

activities would only occur during times 

when, based on the best available 

scientific data, North Atlantic right 

whales are less frequently encountered 

due to their migratory behavior. The 

potential types, severity, and magnitude 

of impacts are also anticipated to mirror 

that described in the general Mysticetes 


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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). 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 migratory behavior of 

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 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 1 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 migrating through 

the Project Area are not expected to 

remain in this habitat for extensive 

durations, and any temporarily 

displaced animals would be able to 

return to or continue to travel through 

and opportunistically forage in these 

areas 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) 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 would be 

rare, given pile driving is intermittent 

within a day and confined to the 

months in which North Atlantic right 

whales are at lower densities and 

primarily moving through the area, the 

anticipated mitigation effectiveness, and 

the likely avoidance behaviors. 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 (88 FR 

28656, May 4, 2023), 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, as 

described in the Potential Effects to 

Marine Mammals and Their Habitat 

section of the proposed rule (88 FR 

28656, May 4, 2023), we anticipate that 

course diversion would be of small 

magnitude. Hence, while some 

avoidance of the pile-driving 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. 

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 

spatio-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, Dominion Energy 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 Specified 

Geographic Region section, Dominion 

Energy 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 

456.5 km2 for OCS–A 0483 versus the 

size of the full North Atlantic right 

whale migratory BIA, 269,448 km2). 

Further, the BIA is approximately 177 

km (110 mi) in width (west to east), 

when measured at the widest point 

beginning just off the Virginia coastline. 

The Lease Area begins approximately 44 

km (27.3 mi) east of Virginia Beach, 

Virginia, and is approximately 25 km 

(15.5 mi) in width from east to west 

(when measured horizontally). While 

construction activities would be 

occurring within the migratory path, its 

placement in deeper waters no closer 

than 44 km offshore and the fact the 

foundation installation (the most 

impactful activity) would not be 

occurring during the migration period 

(i.e., no foundation installation would 

occur November 1st through April 30th) 

provide high conservation benefits. 

Overall North Atlantic right whale 

migration is not expected to be 

impacted by the planned activities. 

There are no known North Atlantic right 

whale feeding, 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 

(noting again that North Atlantic right 

whale prey is not particularly 

concentrated in the Project Area relative 


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to nearby habitats). 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 November 

1st through April 30th 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 mothercalf 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 

primary foraging grounds (e.g., Cape 

Cod Bay). 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 shortterm effects to individuals exposed. 

Foundation pile driving may only 

begin in the absence of North Atlantic 

right whales (based on visual and 

passive acoustic monitoring). If 

foundation pile driving has 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 and acoustically detected at any 

distance, 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 

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 efficacy is maximized, as the 

measures are triggered by a sighting or 

acoustic detection. To maximize 

detection efficacy, 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 

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. 

Further, Dominion Energy has 

committed to not installing two WTG or 

OSS foundations simultaneously. North 

Atlantic right whales would, therefore, 

not be exposed to concurrent impact 

pile driving on any given day and the 

area ensonified at any given time would 

be limited. We further note that 

Dominion Energy will not be starting 

the installation of foundation piles at 

night. 

Additionally, Dominion Energy 

anticipates a need to undertake a dual 

vibratory and impact pile driving 

approach for foundation piles to avoid 

risks associated with pile run due to 

softer sedimentation in the Project Area. 

While Dominion Energy expects that up 

to 70 percent of their piles may 

necessitate this joint approach 

(approximately 123 foundation piles), 

realistically not all piles would be at 

risk of pile run and would be installed, 

instead, by impact pile driving alone. 

However, as a conservative approach 

given uncertainty with the seabed 

conditions for the location of each pile, 

Dominion Energy assumed all 

foundation piles would undertake this 

approach. Furthermore, Dominion 

Energy has already stated that no 

concurrent installation of foundation 

piles is planned to occur, no concurrent 

vibratory and impact driving is expected 

to occur either as a 1.2-hour gap 

between the end vibratory driving to the 

start of impact pile driving (to allow for 

the moving and set-up of equipment) 

would treat each installation approach 

as a separate event and would not 

overlap. 

Finally, for HRG surveys, the 

maximum distance to the Level B 

harassment threshold is 100 m. The 

estimated take, by Level B harassment 

only, associated with HRG surveys 

conservatively accounts for the 

maximum number of North Atlantic 

right whale exposures that may occur 

when HRG acoustic sources are active. 

However, because of the short 

maximum distance to the Level B 

harassment threshold isopleth (100 m 

via the GeoMarine Dual 400 Sparker 800 

J), the requirement that vessels maintain 

a distance of 500 m from any North 

Atlantic right whales, the fact that 

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 boomers, sparkers, and CHIRPs (if 

applicable) must be delayed during the 

clearance period if PSOs detect a North 

Atlantic right whale (or any other ESAlisted 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 whale 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 number and severity of 

takes by Level B harassment. Given the 

documented habitat use within the area, 

the majority of the individuals predicted 

taken (including no more than 17 

instances of take, by Level B harassment 

only, over the course of the 5-year rule, 

with an annual maximum of no more 

than 7) would be impacted on a 

maximum of 2 days in a year as North 

Atlantic right whales utilize this area for 

migration and would be transiting rather 

than residing in the area for extended 

periods of time; and, further, any 

impacts to North Atlantic right whales 

are expected to be in the form of lowerlevel behavioral disturbance. Given the 

magnitude and severity of the impacts 

discussed above, and in consideration of 

the required mitigation and other 

information presented, Dominion 


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Energy’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 stock. 

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 215 takes, 

by harassment only, over the 5-year 

effective period of the rule. The 

maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be 4 and 113, 

respectively (combined, this annual take 

(n=117) equates to approximately 1.72 

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). 

The Project Area does not overlap with 

any known areas of specific biological 

importance to fin whales. It is likely that 

some subset of the individual whales 

exposed could be taken several times 

annually. 

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 Virginia year-round and are one of 

the most frequently observed large 

whales and cetaceans in continental 

shelf waters, principally from Cape 

Hatteras 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). Fin whales have 

high relative abundance in the MidAtlantic and Project Area, most 

observations occur in the winter and 

summer months (Geo-Marine, 2010; 

Hayes et al., 2022) though detections do 

occur in spring and fall (Watkins et al., 

1987; Clark and Gagnon 2002; GeoMarine, 2010; Morano et al., 2012). 

However, fin whales typically feed in 

waters off of New England and within 

the Gulf of Maine, areas north of the 

Project Area, as New England and Gulf 

of St. Lawrence waters represent major 

feeding ground for fin whales (Hayes et 

al., 2022). Hain et al. (1992), based on 

an analysis of neonate stranding data, 

suggested that calving takes place 

during October to January in latitudes of 

the U.S. mid-Atlantic region; however, 

it is unknown where calving, mating, 

and wintering occur for most of the 

population (Hayes et al., 2022). 

Given the documented habitat use 

within the area, some of the individuals 

taken would likely be exposed on 

multiple days. However, as described 

the Project Area does not include areas 

where fin whales are known to 

concentrate for feeding or reproductive 

behaviors and the predicted takes are 

expected to be in the form of lower-level 

impacts. Given the magnitude and 

severity of the impacts discussed above 

(including no more than 215 takes by 

harassment only over the course of the 

5-year rule, and a maximum annual 

allowable take by Level A harassment 

and Level B harassment, of 4 and 113, 

respectively), and in consideration of 

the required mitigation and other 

information presented, Dominion 

Energy’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 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 

Specified Geographic Region section of 

this preamble, 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 in this rulemaking. 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 250 takes by 

harassment only over the 5-year period. 

The maximum annual allowable take by 

Level A harassment and Level B 

harassment, is four and 130, 

respectively (combined, this maximum 

annual take (n=134) equates to 

approximately 9.6 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 

humpback whales are known to forage 

off of Virginia, it is likely that some 

subset of the individual whales exposed 

could be taken several times annually. 

Among the activities analyzed, pile 

driving is likely to result in the highest 

number of Level A harassment annual 

takes (four) of humpback whales. The 

maximum number of annual take 

authorized, by Level B harassment, is 

highest for pile driving (n=104; WTGs 

plus OSS pin piles). 

As described in the Description of 

Marine Mammals in the Specified 

Geographic Region section, Humpback 

whales are known to occur regularly 

throughout the Mid-Atlantic Bight, 

including Virginia waters, with strong 

seasonality where peak occurrences 

occur April to June (Barco et al., 2002; 

Geo-Marine, 2010; Curtice et al., 2019; 

Hayes et al., 2022). 

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 a feeding BIA in 

the Gulf of Maine/Stellwagen Bank/ 

Great South Channel but has been 

documented farther south and off the 

coast of Virginia. When foraging, 

humpback whales 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 be comprised 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 


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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 250 takes over the course 

of the 5-year rule, and a maximum 

annual allowable take by Level A 

harassment and Level B harassment, of 

four and 130, respectively), and in 

consideration of the required mitigation 

measures and other information 

presented, Dominion Energy’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 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 Specified 

Geographic Region section, 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 131 takes, 

by harassment only, over the 5-year 

period. The maximum annual allowable 

take by Level A harassment and Level 

B harassment, would be eight and 56, 

respectively (combined, this annual take 

(n=64) equates to approximately 0.29 

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 Specified 

Geographic Region section of the 

proposed rule, 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). In the Project 

area, minke whales are predominantly 

migratory and their known feeding areas 

are north, including a feeding BIA in the 

southwestern Gulf of Maine and 

George’s Bank. Therefore, they would be 

more likely to be moving 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 described in the Description of 

Marine Mammals in the Specified 

Geographic Region section, there is a 

UME for Minke whales, along the 

Atlantic coast from Maine through 

South Carolina, with highest number of 

deaths in Massachusetts, Maine, and 

New York, and preliminary findings in 

several of the whales have shown 

evidence of human interactions or 

infectious diseases. However, we note 

that the population abundance is greater 

than 21,000 and the take authorized 

through this action is not expected to 

exacerbate the UME in any way. 

Furthermore, this UME has been 

declared non-active and is pending 

closure. 

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 131 takes of the course of 

the 5-year rule, and a maximum annual 

allowable take by Level A harassment 

and Level B harassment, of 8 and 56, 

respectively), and in consideration of 

the required mitigation and other 

information presented, Dominion 

Energy’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 10 takes, by 

harassment only, over the 5-year period. 

The maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be one and three, 

respectively (combined, this annual take 

(n=4) equates to approximately 0.06 

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 

Area of Specified Activities section of 

the proposed rule, most of the sei whale 

distribution is concentrated in Canadian 

waters and seasonally in northerly U.S. 

waters, though they are uncommonly 

observed in the waters off of Virginia. 

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 behavioral 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 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 ten takes of the course of 

the 5-year rule, and a maximum annual 

allowable take by Level A harassment 

and Level B harassment, of one and 

three, respectively), and in 

consideration of the required mitigation 

and other information presented, 

Dominion Energy’s activities are not 

expected to result in impacts on the 

reproduction or survival of any 


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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, dolphins 

and small whales, and harbor porpoises. 

These sub-sections include more 

specific information, as well as 

conclusions for each stock represented. 

All of the takes of odontocetes 

authorized incidental to Dominion 

Energy’s specified activities are by pile 

driving and HRG surveys. 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 nonmigratory nature of some odontocetes in 

general (especially as 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 HRG surveys. While we 

expect animals to avoid the area during 

foundation installation, their habitat 

range is extensive compared to the area 

ensonified during these activities. 

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 activity to be conducted 

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 selfmitigate (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 

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. 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 Virginia 

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 far-reaching along the 

Atlantic coast of the U.S. and the waters 

off of Virginia, including the Project 

Area, do not contain any particularly 

unique odontocete habitat features. 

Sperm Whale 

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. exclusive 

economic zone. 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 six takes, by 

Level B harassment only over the 5-year 

period. The maximum annual allowable 

take by Level B harassment, is three, 

which equates to approximately 0.07 

percent of the stock abundance, if each 

take were considered to be of a different 

individual, with no take 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 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 six takes, by Level B 

harassment only, over the course of the 

5-year rule, and a maximum annual 

allowable take of three), and in 

consideration of the required mitigation 

and other information presented, 

Dominion Energy’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. 


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Dolphins and Small Whales (Inclusive 

of Delphinid Species, False Killer 

Whale, Melon-headed Whale, Pygmy 

Sperm Whale, and Pilot Whales) 

The 12 species and 13 stocks included 

in this group (which are indicated in 

Table 2 in the Kogiidae and Delphinidae 

families) are not listed under the ESA; 

however, the Southern Migratory 

Coastal stock of bottlenose dolphins and 

short-finned pilot whales are listed as 

Strategic under the MMPA, and 

pantropical spotted dolphins are listed 

as Depleted under the MMPA. There are 

no known areas of specific biological 

importance in or around the Project 

Area. As described above 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 11 delphinid species 

(constituting 12 stocks) with takes 

authorized for the Project are Atlantic 

spotted dolphin, Atlantic white-sided 

dolphin, bottlenose dolphin, Clymene 

dolphin, common dolphin, false killer 

whale, melon-headed whale, longfinned pilot whale, short-finned pilot 

whale, pantropical spotted dolphin, and 

Risso’s dolphin. The rule would allow 

for the total authorization of 8 to 26,764 

takes (depending on species) by Level B 

harassment only, over the 5-year period. 

The maximum annual allowable take for 

these species by Level B harassment, 

would range from 4 (false killer whale) 

to 7,360 (both Atlantic spotted dolphin 

and common dolphin). Overall, this 

annual take equates to approximately 

0.04 (Atlantic white-sided dolphin) to 

18.44 (Atlantic spotted dolphin) percent 

of the stock abundance (if each take 

were considered to be of a different 

individual, which is not likely the case) 

depending on the species, with far 

lower numbers than that expected in the 

years without foundation installation 

(e.g., years when only HRG surveys 

would be occurring). 

Take has also been authorized for a 

single species (of a single stock) of 

Family Kogiidae, the pygmy sperm 

whale. This rule allows for the total 

authorization of two takes by Level B 

harassment only, over the entire 5-year 

period. The maximum annual allowable 

take for this species, by Level B 

harassment only, is one per year. 

Relative to the total population estimate 

for this small whale species, this 

equates to approximately 0.01 percent of 

the stock abundance, if each of the takes 

were considered to be of a different 

individual. 

The number of takes, likely movement 

patterns of the affected species, and the 

intensity of any 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. Some TTS can 

occur, but it would be limited to the 

frequency ranges of the activity 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. 

Across these species, the maximum 

number of incidental takes, by Level B 

harassment only, authorized in any one 

year ranges between 1 (pygmy sperm 

whale) and 7,360 (for both Atlantic 

spotted dolphins and common 

dolphins). The number of takes 

authorized in the last 3 years of the rule 

is notably less and the 5-year total 

number of take (by Level B harassment 

only) authorized ranges between 2 

(pygmy sperm whale) and 26,764 

(Atlantic spotted dolphin). Further, 

though the estimated numbers of take 

are comparatively higher than the 

numbers for mysticetes, we note that for 

all species they are relatively low 

relative to the population abundance. 

For the Atlantic spotted dolphin, 

given both the comparatively higher 

number of takes and the higher number 

of takes relative to the stock abundance, 

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. For all 

three stocks of bottlenose dolphin (i.e., 

offshore, coastal, and joint-offshore and 

coastal), given the number of takes and 

residential tendencies of the species, 

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. 

As described above for odontocetes 

broadly, given the comparatively higher 

number of estimated takes for some 

species and the behavioral patterns of 

odontocetes, we anticipate that a fair 

number of these instances of take in a 

day represent multiple exposures of a 

smaller number of individuals, meaning 

the actual number of individuals taken 

is lower. Although some amount of 

repeated exposure to some individuals 

is likely given the duration of activity 

planned by Dominion Energy, the 

intensity of any 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. 

Overall, most of the populations of all 

delphinid and small whale species and 

stocks for which we authorize take are 

stable (no declining population trends). 

For others, two stocks are labeled as 

strategic (i.e., Southern Migratory 

Coastal stock of bottlenose dolphins and 

Western North Atlantic stock of shortfinned pilot whale) and one is labeled 

as depleted (i.e., pantropical spotted 

dolphin). None of these stocks are 

experiencing existing UMEs. No 

mortality, serious injury or Level A 

harassment is anticipated or authorized 

for any of these species. Given the 

magnitude and severity of the impacts 

discussed above and in consideration of 

the required mitigation and other 

information presented, as well as the 

status of these stocks, Dominion 

Energy’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 following 

species and stocks: pygmy sperm 

whales, Atlantic spotted dolphins, 

Atlantic white-sided dolphins, 

bottlenose dolphins, Clymene dolphins, 

common dolphins, false killer whales, 

melon-headed whales, pilot whale spp. 

(consisting of long-fined pilot whales 

and short-finned pilot whales), 

pantropical spotted dolphins, and 

Risso’s dolphins. 

Harbor Porpoises 

Harbor porpoises are not listed 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 

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 143 takes, 

by harassment only, over the 5-year 

period. The maximum annual allowable 

take by Level A harassment and Level 

B harassment, would be 1 and 40, 

respectively (combined, this annual take 

(n=41) equates to approximately 0.04 

percent of the stock abundance if each 

take were considered to be of a different 

individual). 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 


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individuals exposed could be taken up 

to a few times annually. 

Regarding the severity of takes by 

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. 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 Virginia (based on 

the density values (0.00000) presented 

for both summer (June to August) and 

fall (September to October); Table 1) 

and, given alternative foraging areas, 

any avoidance of the area by individuals 

is not likely to impact the reproduction 

or survival of any individuals. 

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, 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 

December) 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 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 Virginia. 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the required mitigation 

and other information presented, 

Dominion Energy’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 Specified 

Geographic Region section, a UME has 

been designated for harbor seals and 

gray seals and is 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 220 takes for each 

species 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 be one and 83, respectively 

(combined, this annual take (n=84) 

equates to approximately 0.14 percent of 

the stock abundance for harbor seals 

and 0.31 percent of the stock abundance 

for gray seals, if each take were 

considered to be of a different 

individual). Though harbor seals and 

gray 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 

Virginia waters most often during the 

fall and winter, sometimes until early 

spring, with harbor seal occurrences 

more common than gray seals (Hayes et 

al., 2022; Jones and Rees, 2022; Ampela 

et al., 2023). 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. There are 

no known haul-out sites or other areas 

of importance for either harbor or gray 

seals near the coastal cofferdam and 

goal post location (offshore of the State 

Military Reservation in Virginia Beach, 

Virginia) or in the Project Area. 

However, pinnipeds have been recorded 

at different sites in the Chesapeake Bay 

and along Eastern Shore, Virginia (Jones 

and Rees, 2022; Ampela et al., 2023). 

Given the distance for which we expect 

Dominion Energy’s activities to occur, 

away from the mouth and in-water 

regions of the Chesapeake Bay, NMFS 

does not expect that in-air sounds 

produced would cause the take of 

hauled-out pinnipeds. Therefore, NMFS 

does not expect any harassment to occur 

and has not authorized any take from inair impacts on hauled-out seals. 

As described in the Potential Effects 

to Marine Mammals and Their Habitat 

section in the proposed rule (88 FR 

28656, May 4, 2023), 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 would simply move 

away from the sound source and be 

temporarily displaced from those areas 

(see 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 50 CFR part 217— 

Regulations Governing the Taking and 

Importing of Marine Mammals 

Incidental to Specified Activities. 

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 


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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) provides 

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, 

Dominion Energy’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 harbor and gray seals. 

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 marine mammal 

take from all of Dominion Energy’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 maximum number of individuals 

estimated to be taken in a year 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 one-third 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 21 species of marine 

mammals (with 22 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 13 stocks, less than 1 percent of 

the stock abundance is authorized to be 

annually taken by harassment; for 7 

stocks, less than 10 percent of the stock 

abundance is authorized to be taken 

annually by harassment; and for 1 stock, 

less than 20 percent of the stock 

abundance is authorized to be annually 

take by harassment. Specific to the 

North Atlantic right whale, the 

maximum amount of take, which is by 

Level B harassment only, is 7, or 2.07 

percent of the stock abundance, 

assuming that each instance of take 

represents a different individual. While 

no population estimate is available for 

melon-headed whales, it can be 

assumed that the low amount of 

maximum annual take authorized (n=5; 

by Level B harassment only) would 

constitute small numbers. For all 

species, please see Table 24 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 ESA 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 the NOAA GARFO. 

There are four marine mammal 

species under NMFS jurisdiction that 

are listed as endangered or threatened 

under the ESA that may be taken, by 

harassment, incidental to construction 

of the CVOW–C Project: the North 

Atlantic right, sei, fin, and sperm whale. 

The Permit and Conservation Division 

requested initiation of section 7 

consultation on April 4, 2023 with 

GARFO on the issuance of the CVOW– 

C regulations and the associated 5-year 

LOA under section 101(a)(5)(A) of the 

MMPA. 

NMFS issued a Biological Opinion on 

September 19, 2023 concluding that the 

promulgation of the rule and issuance of 

LOAs thereunder is not likely to 

jeopardize the continued 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/ 

55495. 

Dominion Energy is required to abide 

by the promulgated regulations, as well 

as the reasonable and prudent measures 

and terms and conditions of the 


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Federal Register / Vol. 89, No. 15 / Tuesday, January 23, 2024 / Rules and Regulations 4457 

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 216–6A, NMFS 

must evaluate our proposed action (i.e., 

promulgation of regulation) and 

alternatives with respect to potential 

impacts on the human environment. 

NMFS participated as a cooperating 

agency on the BOEM final 

Environmental Impact Statement (FEIS) 

for the CVOW–C Project offshore 

Virginia (2023 CVOW–C FEIS), which 

was finalized on September 29, 2023, 

and is available at https://

www.boem.gov/renewable-energy/stateactivities/coastal-virginia-offshore-windcommercial-project-final. In accordance 

with 40 CFR 1506.3, NMFS 

independently reviewed and evaluated 

the 2023 CVOW–C 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 CVOW–C FEIS 

through a joint Record of Decision 

(ROD) with BOEM. The joint ROD for 

adoption of the 2023 CVOW–C FEIS and 

promulgation of this final rule and 

subsequent issuance of a LOA can be 

found at https://www.fisheries.noaa.

gov/permit/incidental-takeauthorizations-under-marine-mammalprotection-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. 

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. 

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 Dominion Energy’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 Dominion Energy’s 

application in the Federal Register on 

September 15, 2022 (87 FR 56634) and 

published notice of the proposed rule 

on May 4, 2023 (88 FR 28656). The 

Commonwealth of Virginia did not 

request approval from the Director of 

NOAA’s Office for Coastal Management 

to review Dominion Energy’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. 

Waiver of Delay in Effective Date 

The Assistant Administrator for 

Fisheries has determined that there is a 

sufficient basis under the 

Administrative Procedure Act (APA) to 

waive the 30-day delay in the effective 

date of the measures contained in the 

final rule. Section 553 of the APA 

provides that the required publication 

or service of a substantive rule shall be 

made not less than 30 days before its 

effective date with certain exceptions, 

including (1) for a substantive rule that 

relieves a restriction or (2) when the 

agency finds and provides good cause 

for foregoing delayed effectiveness (5 

U.S.C 553(d)(1), (d)(3)). Here, the 

issuance of regulations under section 

101(a)(5)(A) of the MMPA is a 

substantive action that relieves the 

statutory prohibition on the taking of 

marine mammals, specifically, the 

incidental taking of marine mammals 

associated with Dominion Energy’s 

specified activities during the 

construction of the CVOW–C Project 

offshore of Virginia. Until the effective 

date of these regulations, Dominion 

Energy is prohibited from taking marine 

mammals incidental to the Project. 

In addition, good cause exists for 

waiving the delay in effective date. 

Dominion Energy plans to conduct HRG 

surveys in early February 2024. Delays 

in this activity will impact construction 

activity sequencing and potentially 

vessel and other service procurement 

and availability. Moreover, offshore 

wind projects, such as the CVOW–C 

Project, that are developed to generate 

renewable energy have great societal 

and economic importance, and delays in 

completing the project are contrary to 

the public interest. 

Finally, Dominion Energy has 

informed NMFS that it does not require 

30 days to prepare for implementation 

of the regulations and requests that this 

final rule take effect on or before 

February 5, 2024. For these reasons, the 

subject regulations will be made 

immediately effective upon publication. 

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: January 4, 2024. 

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 DD, consisting of 

§§ 217.290 through 217.299, to read as 

follows: 


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Subpart DD—Taking Marine Mammals 

Incidental to the Coastal Virginia Offshore 

Wind Commercial Project Offshore of 

Virginia 

Sec. 

217.290 Specified activity and specified 

geographical region. 

217.291 Effective dates. 

217.292 Permissible methods of taking. 

217.293 Prohibitions. 

217.294 Mitigation requirements. 

217.295 Monitoring and reporting 

requirements. 

217.296 Letter of Authorization. 

217.297 Modifications of Letter of 

Authorization. 

217.298–217.299 [Reserved] 

Subpart DD—Taking Marine Mammals 

Incidental to the Coastal Virginia 

Offshore Wind Commercial Project 

Offshore of Virginia 

§ 217.290 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

to activities associated with the Coastal 

Virginia Offshore Wind Commercial 

Project (hereafter referred to as the 

‘‘Project’’) by the Virginia Electric and 

Power Company, doing business as 

Dominion Energy Virginia (hereafter 

referred to as ‘‘LOA Holder’’), and those 

persons it authorizes or funds to 

conduct activities on its behalf in the 

area outlined in paragraph (b) of this 

section. Requirements imposed on the 

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 0483 Commercial Lease 

of Submerged Lands for Renewable 

Energy Development, one export cable 

route, and one sea-to-shore transition 

point located at the State Military 

Reservation in Virginia Beach, Virginia. 

(c) The specified activities are 

vibratory and impact pile driving of 

wind turbine generator (WTGs) and 

offshore substation (OSSs) foundations; 

vibratory pile driving (install and 

subsequently removal) of cofferdams; 

impact pile driving (install and 

subsequently removal) of goal posts; 

fishery and ecological monitoring 

surveys; placement of scour protection; 

trenching, laying, and burial activities 

associated with the installation of the 

export cable from OSSs to shore-based 

converter stations and inter-array cables 

between turbines; high-resolution 

geophysical (HRG) site characterization 

surveys; vessel transit within the 

specified geographical region to 

transport crew, supplies, and materials; 

and WTG operation. 

§ 217.291 Effective dates. 

The regulations in this subpart are 

effective from February 5, 2024, through 

February 4, 2029. 

§ 217.292 Permissible methods of taking. 

Under a LOA, issued pursuant to 

§§ 216.106 and 217.296, LOA Holder 

and those persons it authorizes or funds 

to conduct activities on its behalf may 

incidentally, but not intentionally, take 

marine mammals within BOEM Lease 

Area OCS–A 0483 Commercial Lease of 

Submerged Lands for Renewable Energy 

Development, along export cable routes, 

and at the sea-to-shore transition point 

located at the State Military Reservation 

in Virginia Beach, Virginia in the 

following ways, provided LOA Holder is 

in complete compliance with all terms, 

conditions, and requirements of the 

regulations in this subpart and the 

appropriate LOA: 

(a) By Level B harassment associated 

with the acoustic disturbance of marine 

mammals by impact and vibratory pile 

driving (WTG and OSS foundation 

installation), impact pile driving of goal 

posts, vibratory pile driving of 

temporary cofferdams, and HRG site 

characterization surveys; and 

(b) By Level A harassment associated 

with the acoustic disturbance of marine 

mammals by impact pile driving WTG 

and OSS foundations. 

(c) Take by mortality or serious injury 

of any marine mammal species is not 

authorized. 

(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 Stock 

North Atlantic right whale ................................... Eubalaena glacialis .......................................... Western North Atlantic. 

Fin whale ............................................................ Balaenoptera physalus ..................................... Western North Atlantic. 

Humpback whale ............................................... Megaptera novaeangliae .................................. Gulf of Maine. 

Minke whale ....................................................... Balaenoptera acutorostrata .............................. Canadian Eastern Coastal. 

Sei whale ........................................................... Balaenoptera borealis ...................................... Nova Scotia. 

Sperm whale ...................................................... Physeter macrocephalus .................................. North Atlantic. 

Pygmy sperm whale .......................................... Kogia breviceps ................................................ Western North Atlantic. 

Atlantic spotted dolphin ...................................... Stenella frontalis ............................................... Western North Atlantic. 

Atlantic white-sided dolphin ............................... Lagenorhynchus acutus ................................... Western North Atlantic. 

Bottlenose dolphin ............................................. Tursiops truncatus ............................................ Western North Atlantic—Offshore. 

Southern Migratory Coastal. 

Clymene dolphin ................................................ Stenella clymene .............................................. Western North Atlantic. 

Common dolphin ................................................ Delphinus delphis ............................................. Western North Atlantic. 

False killer whale ............................................... Pseudorca crassidens ...................................... Western North Atlantic. 

Melon-headed whale .......................................... Peponocephala electra .................................... Western North Atlantic. 

Long-finned pilot whale ...................................... Globicephala melas .......................................... Western North Atlantic. 

Short-finned pilot whale ..................................... Globicephala macrorhynchus ........................... Western North Atlantic. 

Pantropical spotted dolphin ............................... Stenella attenuata ............................................ Western North Atlantic. 

Risso’s dolphin ................................................... Grampus griseus .............................................. Western North Atlantic. 

Harbor porpoise ................................................. Phocoena phocoena ........................................ Gulf of Maine/Bay of Fundy. 

Gray seal ............................................................ Halichoerus grypus .......................................... Western North Atlantic. 

Harbor seal ........................................................ Phoca vitulina ................................................... Western North Atlantic. 

§ 217.293 Prohibitions. 

Except for the takings described in 

§ 217.292 and authorized by an LOA 

issued under §§ 217.296 or 217.297, 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 

§§ 217.296 or 217.297; 


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(b) Take any marine mammal not 

specified in § 217.292(d); 

(c) Take any marine mammal 

specified in the LOA in any manner 

other than as specified in the LOA; or 

(d) Take any marine mammal 

specified in § 217.292(d), after NMFS 

determines such taking results in more 

than a negligible impact on the species 

or stocks of such marine mammals. 

§ 217.294 Mitigation requirements. 

When conducting the activities 

identified in § 217.290(c) within the 

area described in § 217.290(b), LOA 

Holder must implement the mitigation 

measures contained in this section and 

any LOA issued under §§ 217.296 or 

217.297. 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 

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 construction 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 

U.S. Coast Guard VHF Channel 16 

throughout the day to receive 

notification of any sightings and/or 

information associated with any Slow 

Zones (i.e., 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 

must monitor these systems no less than 

every 4 hours; 

(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 detection by a PSO or 

acoustic detection by PAM operators at 

any distance (where applicable for the 

specified activities) must trigger a delay 

to the commencement of pile driving 

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) Any PSO has the authority to call 

for a delay or shutdown of project 

activities. If a delay to commencing an 

activity is called for by a PSO, LOA 

Holder must take the required mitigative 

action. If a shutdown of an activity is 

called for by a PSO, 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 and the activity operator 

or between the Lead PSO and another 

PSO regarding delays or shutdowns 

must only be discussed after the 

mitigative action has occurred; 

(8) Any marine mammals observed 

within a clearance or shutdown zone 

must be allowed to remain in the area 

(i.e., must leave of their own volition) 

prior to commencing pile driving 

activities or HRG surveys; 

(9) 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 

clearance zone prior to beginning a 

specified activity, the activity must be 

delayed. If an activity is ongoing and 

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 

shutdown zone, the activity must be 

shut down (i.e., cease) 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 the 

clearance or shutdown zones and is on 

a path away from the applicable zone or 

after 15 minutes with no further 

sightings for small odontocetes and 

pinnipeds or 30 minutes with no further 

sightings for all other species; 

(10) For in-water construction heavy 

machinery activities listed in 

§ 217.290(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 

than 10 m on a path away from the 

activity to avoid direct interaction with 

equipment; 

(11) 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; 

(12) By accepting the 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 

(13) 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 while in the specified 

geographic region, unless an emergency 

situation presents a threat to the health, 

safety, or life of a person, or when a 

vessel is actively engaged in emergency 

rescue or response duties, including 

vessel-in-distress or environmental 

crisis response, and requires speeds in 

excess of 10 kn (11.5 miles per hour 

(mph)) to fulfill those responsibilities. 

An emergency is defined as a serious 

event that occurs without warning and 

requires immediate action to avert, 

control, or remedy harm. Speed over 


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ground will be used to measure all 

vessel speeds: 

(1) Prior to the start of the Project’s 

activities involving vessels, all vessel 

personnel 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 and 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. 

Confirmation of the vessel personnel’s 

training and understanding of the 

Incidental Take Authorization (ITA) 

requirements must be documented on a 

training course log sheet and reported to 

NMFS within 30 days of completion of 

training; 

(2) All vessel operators, operating at 

any speed and regardless of their 

vessel’s size, must slow down, stop their 

vessel, or alter course to avoid striking 

any marine mammal; 

(3) All vessels, regardless of their size, 

operating at any speed must have a 

dedicated visual observer aboard and on 

duty at all times whose sole 

responsibility (i.e., must not have duties 

other than observing) is to monitor for 

marine mammals 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, and reporting requirements in 

this subpart. These visual observers may 

be third-party observers (i.e., NMFSapproved PSOs; see § 217.295(a)) or 

trained crew members (see (b)(1) of this 

section); 

(4) At the onset of transiting and 

continuously thereafter, vessel operators 

must monitor the U.S. Coast Guard VHF 

Channel 16, over which North Atlantic 

right whale sightings 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 project’s Situational 

Awareness System (if applicable), 

WhaleAlert, and relevant NOAA 

information systems such as the Right 

Whale Sighting Advisory System 

(RWSAS) for the presence of North 

Atlantic right whales; 

(5) Any large whale sighting by any 

project-personnel, including any LOA 

Holder staff, contractors, or vessel crew, 

must be immediately communicated to 

all project-associated vessel operators, 

PSOs, and PAM operators for situational 

awareness. Conversely, any large whale 

observation or detection via a sighting 

network (e.g., Mysticetus or similar 

software) by PSOs or PAM operators 

must be conveyed to vessel operators 

and crew. An ongoing large whale 

sighting log sheet must be maintained 

on each vessel and retained for vessel 

operator(s) review each day prior to first 

day’s transit for awareness of recent 

sightings; 

(6) All vessel operators must abide by 

existing applicable vessel speed 

regulations (see 50 CFR 224.105). 

Nothing in this subpart exempts vessels 

from any other applicable marine 

mammal speed or approach regulations. 

Vessels must not travel over 10 kn from 

November 1st through April 30th, 

annually, in the specified geographic 

region, and must transit at 10 kn or less 

within any active North Atlantic right 

whale Slow Zone (i.e., Dynamic 

Management Areas (DMAs) or 

acoustically-triggered slow zone); 

(7) All vessel operators, regardless of 

their vessel’s size, must immediately 

reduce vessel speed to 10 kn 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 projectrelated PAM system. Each subsequent 

observation or acoustic detection in the 

Project area shall trigger an additional 

24-hour period. If a North Atlantic right 

whale is reported by project personnel 

or via any of the monitoring systems 

(refer back to paragraph (b)(4) of this 

section) that vessel must operate at 10 

kn (11.5 mph) or less for 24 hours 

following the reported detection; 

(8) All vessels, regardless of size, must 

immediately reduce speed to 10 kn or 

less when any large whale, mother/calf 

pairs, or large assemblages of cetaceans 

are observed within 500 m (0.31 mi) of 

an underway vessel; 

(9) If vessel(s) are traveling at speeds 

greater than 10 kn (i.e., no speed 

restrictions are enacted) in the transit 

corridor (defined as from a port to the 

Lease Area or return), in addition to the 

required dedicated visual observer, LOA 

Holder must monitor the transit corridor 

in real-time with PAM prior to and 

during transits. If a North Atlantic right 

whale is detected via visual observation 

or PAM detection within or approaching 

the transit corridor, all vessels in the 

transit corridor must travel at 10 kn or 

less for 24 hours following the 

detection. Each subsequent detection 

shall trigger a 24-hour reset. A 

slowdown in the transit corridor expires 

when there has been no further visual 

or acoustic detection in the transit 

corridor in the past 24 hours; 

(10) All vessels must maintain a 

minimum separation distance of 500 m 

from North Atlantic right whales. If 

underway, all vessels must steer a 

course away from any sighted North 

Atlantic right whale at 10 kn 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 operator 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 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 

(b)(7) of this section; 

(11) All vessels must maintain a 

minimum separation distance of 100 m 

(328 ft) from sperm whales and nonNorth Atlantic right whale baleen 

whales. If one of these species is sighted 

within 100 m of a transiting vessel, the 

vessel must shift the engine(s) to 

neutral. Engines must not be engaged 

until the whale has moved outside of 

the vessel’s path and beyond 100 m; 

(12) All vessels must maintain a 

minimum separation distance of 50 m 

(164 ft) from all delphinoid cetaceans 

and pinnipeds with an exception made 

for those that approach the vessel (i.e., 

bow-riding dolphins). If a delphinid 

cetacean or pinniped is sighted within 

50 m of a transiting vessel, the vessel 

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 the vessel(s) is transiting, 

the vessel 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 abrupt changes in 

direction until the animal has left the 


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area). 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) All vessels underway must not 

divert or alter course to approach any 

marine mammal; 

(15) Vessel operators must check, 

daily, for information regarding the 

establishment of mandatory or 

voluntary vessel strike avoidance areas 

(i.e., DMAs, Seasonal Management 

Areas, Slow Zones) and any information 

regarding North Atlantic right whale 

sighting locations; and 

(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 180 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 in the vessel transit 

corridor. If a plan is not submitted and 

approved by NMFS prior to vessel 

operations, all project vessels 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. 

(c) WTG and OSS foundation 

installation. The following requirements 

apply to pile driving activities 

associated with the installation of WTG 

and OSS foundations: 

(1) Vibratory and impact pile driving 

of foundation piles must not occur 

November 1st through April 30th, 

annually; 

(2) Monopiles must be no larger than 

9.5-m in diameter, representing the 

larger end of the tapered 9.5/7.5-m 

monopile design. Pin piles must be no 

larger than 2.8-m in diameter. During all 

monopile and pin pile 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 (kJ) for 

monopile installations and 3,000 kJ for 

pin pile installation. No more than two 

monopile foundation or two pin piles 

for jacket foundations may be installed 

per day; 

(3) LOA Holder may initiate 

foundation pile driving (i.e., vibratory 

and impact) only from May 1st through 

October 31st, annually, in accordance 

with the NMFS-approved Pile Driving 

Plan; 

(4) LOA Holder must only perform 

foundation pile driving during daylight 

hours, defined as no later than 1.5 hours 

prior to civil sunset and no earlier than 

1 hour after civil sunrise, and may only 

continue into darkness if stopping 

operations represents a risk to human 

health, safety, and/or pile stability and 

an Alternative Monitoring Plan has been 

approved by NMFS. No new pile 

driving may begin when pile driving 

continues into darkness; 

(5) LOA Holder must utilize a softstart protocol at the beginning of 

foundation installation for each impact 

pile driving event. No soft-start for 

vibratory pile driving is necessary; 

(6) 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; 

(7) LOA Holder must establish 

clearance and shutdown zones, which 

must be measured using the radial 

distance around the pile being driven. 

Clearance monitoring must begin 60 

minutes immediately prior to initiation 

of pile driving. If a marine mammal is 

detected within or about to enter the 

applicable clearance zones 30 minutes 

prior to the beginning of pile driving 

(including soft start if impact pile 

driving) or during pile driving, pile 

driving must be delayed or shutdown 

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 small 

odontocetes and pinnipeds, and 30 

minutes for all other species; 

(8) For North Atlantic right whales, 

any visual observation or acoustic 

detection must trigger a delay to the 

commencement of pile driving. The 

clearance zone may only be declared 

clear if no North Atlantic right whale 

acoustic or visual detections have 

occurred within the clearance zone 

during the 60-minute monitoring 

period; 

(9) LOA Holder must deploy at least 

two functional noise abatement systems 

that reduce noise levels to the modeled 

harassment isopleths, assuming 10-dB 

attenuation, during all foundation pile 

driving: 

(i) At least a double bubble curtain 

must 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; 

(vi) Corrections to the bubble ring(s) 

to meet the performance standards in 

this paragraph (c)(9) must occur prior to 

pile driving of foundation piles. 

(vii) For any noise mitigation device 

in addition to the bubble curtain, LOA 

Holder must inspect and carry out 

appropriate maintenance on the system 

and ensure the system is functioning 

properly prior to every pile driving 

event. 

(10) LOA Holder must utilize NMFSapproved PAM systems, as described in 

paragraph (c)(17) of this section. The 

PAM system components (i.e., acoustic 

buoys) must not be placed closer than 

1 km (0.6 mi) to the pile being driven 

so that the activities do not mask the 

PAM system. LOA Holder must 

demonstrate and prove the detection 

range of the system they plan to deploy 

while considering potential masking 

from concurrent pile-driving and vessel 

noise. The PAM system must be able to 

detect a vocalization of North Atlantic 

right whales up to 10 km (6.2 mi); 

(11) LOA Holder must utilize PSO(s) 

and PAM operator(s), as described in 

§ 217.295(c). At least three on-duty 

PSOs must be 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. LOA Holder may request NMFS 

approval to use alternative technology 

in lieu of one or two of the dedicated 

PSO vessels that provide similar marine 

mammal detection capabilities. 

(12) If a marine mammal is detected 

(visually or acoustically) entering or 

within the respective shutdown zone 

after pile driving has begun, the PSO 

must call for a shutdown of pile driving 

and LOA Holder must stop pile driving 

immediately, unless shutdown is not 


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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 risk of pile refusal 

or pile instability. If pile driving is not 

shut down due to 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) (see 217.295(g)); 

(13) A visual observation at any 

distance from a PSO or acoustic 

detection of a North Atlantic right whale 

triggers shutdown requirements under 

paragraph (c)(12) of this section. If pile 

driving has been 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; 

(14) 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 small odontocetes and 

pinnipeds, and 30 minutes for all other 

marine mammal species. 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; 

(15) 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 and 

for all three OSS foundations (for all 12 

pin piles installed). 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 

monopiles are driven that may produce 

louder sound fields than those 

previously measured (e.g., higher 

hammer energy, greater number of 

strikes, etc.). 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, including, at 

least, the modeled Level B harassment 

isopleth assuming 10 dB attenuation. 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 midwater column hydrophone; 

(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 

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 

(hydrophones, recording devices, 

hydrophone calibrators, cables, 

batteries, etc.), 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 interim 

reports within 48 hours after each 

foundation is measured (see § 217.295(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 10- 

dB attenuation, for foundation 

installation. If any of the interim SFV 

measurement reports submitted indicate 

the modeled distances to NMFS marine 

mammal Level A harassment and Level 

B harassment thresholds assuming 10- 

dB attenuation, then LOA Holder must 

implement additional, modified, and/or 

alternative noise attenuation measures 

or operational changes that present a 

reasonable likelihood of reducing sound 

levels to the modeled distances on all 

subsequent foundations. LOA Holder 

must also increase clearance and 

shutdown zone sizes to those identified 

by NMFS until SFV measurements on at 

least three additional foundations 

demonstrate acoustic distances to 

harassment thresholds meet or are less 

than those modeled assuming 10-dB of 

attenuation. In this situation, LOA 

Holder would be required to provide a 

proposed monitoring plan for expanded 

zones (per the Biological Opinion) that 

would detail the proposed expanded 

zones and any additional monitoring 

and mitigation that would be 

implemented. If the harassment zones 

are expanded beyond an additional 

1,500 m (0.93 mi), additional PSOs must 

be deployed on additional platforms, 

with each observer responsible for 

maintaining watch in no more than 180 

degrees and of an area with a radius no 

greater than 1,500 m. 

(viii) LOA Holder must optimize the 

sound attenuation systems (e.g., ensure 

hose maintenance, pressure testing, etc.) 

to, at least, meet noise levels modeled, 

assuming 10-dB attenuation, within 

three piles or else foundation 

installation activities must cease until 

NMFS and LOA Holder can evaluate the 

situation and ensure future piles must 

not exceed noise levels modeled 

assuming 10-dB attenuation; 

(ix) If, after additional measurements 

conducted pursuant to requirements of 

paragraph (15)(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 


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an additional three WTG monopile 

foundations and ensure that subsequent 

foundations would be installed under 

conditions that are predicted to produce 

smaller harassment zones than those 

modeled assuming 10-dB of attenuation; 

(x) LOA Holder must conduct SFV 

measurements upon commencement of 

turbine operations to estimate turbine 

operational source levels and 

transmission loss rates, in accordance 

with a NMFS-approved Foundation 

Installation Pile Driving SFV Plan. SFV 

must be conducted in the same manner 

as previously described in paragraph 

(c)(15) of this section, with appropriate 

adjustments to measurement distances, 

number of hydrophones, and 

hydrophone sensitivities being made, as 

necessary; and 

(xi) 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 

would be selected for SFV 

measurements. This SFV Plan must also 

describe approaches that LOA Holder 

could take to adjust noise attenuation 

systems or add systems in the case that 

any SFV measurements obtained 

demonstrate that noise levels are above 

those modeled (assuming 10 dB of 

attenuation). Furthermore, the SFV Plan 

must also include how operational noise 

would be monitored. Operational 

parameters (e.g., direct drive 

information, turbine rotation rate) as 

well as sea state conditions and 

information on nearby anthropogenic 

activities (e.g., vessels transiting or 

operating in the area) must be reported. 

Additionally, 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. 

(16) 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 foundation 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, at a minimum: the 

final pile driving project design (e.g., 

number and type of piles, hammer type, 

noise abatement systems, anticipated 

start date, etc.) and a description of all 

monitoring equipment and PAM 

operator and PSO protocols (including 

number and location of PSOs and PAM 

operators) for all foundation pile 

driving. No foundation pile installation 

can occur without NMFS’ approval of 

the Plan; and 

(17) 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 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 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 goal post 

installation and removal. The following 

requirements apply to the installation 

and removal of cofferdams and goal 

posts at the cable landfall construction 

sites: 

(1) Installation and removal of 

cofferdams and goal posts must not 

occur during nighttime hours (defined 

as the hours between 1.5 hours prior to 

civil sunset and 1 hour after civil 

sunrise); 

(2) LOA Holder must establish and 

implement clearance zones for the 

installation and removal of cofferdams 

and goal posts using visual monitoring. 

These zones must be measured using 

the radial distance from the cofferdam 

and goal post being installed and/or 

removed; 

(3) LOA Holder must utilize PSO(s), 

as described in § 217.295(d). At least 

two on-duty PSOs must monitor for 

marine mammals at least 30 minutes 

before, during, and 30 minutes after 

vibratory and impact pile driving 

associated with cofferdam and casing 

pipe installation, respectively; 

(4) If a marine mammal(s) is observed 

entering or is observed within the 

clearance zones, before vibratory or 

impact pile driving has begun, the 

activity must not commence until the 

animal(s) has exited the zone or a 

specific amount of time has elapsed 

since the last sighting. The specific time 

periods are 15 minutes for small 

odontocetes and pinnipeds and 30 

minutes for all other marine mammal 

species; 

(5) If a marine mammal is observed 

entering or within the respective 

shutdown zone after vibratory or impact 

pile driving has begun, the PSO must 

call for a shutdown of pile driving. 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 

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 annual 

report (as described in § 217.295(g)). In 

cases where shutdown is not feasible, 

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; 

(6) 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 small odontocetes and 

pinnipeds and 30 minutes for all other 

marine mammal species; and 

(7) LOA Holder must employ a softstart for all impact pile driving of goal 

posts. Soft start requires contractors to 

provide an initial set of three strikes at 

reduced energy, followed by a 30- 

second waiting period, then two 

subsequent reduced-energy strike sets. 

(e) HRG surveys. The following 

requirements apply to HRG surveys 

operating sub- bottom profilers (SBPs) 


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(i.e., boomers, sparkers, and 

Compressed High Intensity Radiated 

Pulse (CHIRPs)): 

(1) LOA Holder must establish and 

implement clearance and shutdown 

zones for HRG surveys using visual 

monitoring, as described in paragraph 

(c) of this section; 

(2) LOA Holder must utilize PSO(s), 

as described in § 217.295(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 practicable source level to 

meet the survey objective, when in use, 

and must be turned off when they are 

not necessary for the survey; 

(5) Prior to starting the survey and 

after receiving confirmation from the 

PSOs that the clearance zone is clear of 

any marine mammals, LOA Holder is 

required to ramp-up acoustic sources to 

half power for 5 minutes prior to 

commencing full power, unless the 

equipment operates on a binary on/off 

switch (in which case ramp-up is not 

required). LOA Holder must also ensure 

visual clearance zones are fully visible 

(e.g., not obscured by darkness, rain, 

fog, etc.) 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. 

(6) Ramp-up and activation must be 

delayed if a marine mammal(s) enters its 

respective shutdown zone. Ramp-up 

and activation may only be reinitiated if 

the animal(s) has been observed exiting 

its respective shutdown zone or until 15 

minutes for small odontocetes and 

pinnipeds, and 30 minutes for all other 

species, has elapsed with no further 

sightings; 

(7) 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 should 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 prior to the initiation of 

ramp-up or activation (pre-start 

clearance). During this 30-minute prestart clearance period, the entire 

applicable clearance zones must be 

visible, except as indicated in paragraph 

(f)(12) of this section; 

(8) Ramp-ups must be scheduled so as 

to minimize the time spent with the 

source activated; 

(9) 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; 

(10) 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; 

(11) If a marine mammal is observed 

within a clearance zone during the 

clearance period, ramp-up or acoustic 

surveys 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 small 

odontocetes and pinnipeds, and 30 

minutes for all other species; 

(12) 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 may 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; 

(13) Once the survey has commenced, 

LOA Holder must shut down acoustic 

sources if a marine mammal enters a 

respective shutdown zone, except in 

cases when the shutdown zones become 

obscured for brief periods due to 

inclement weather, survey operations 

may 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)(13) of this section is detected in the 

shutdown zone; 

(14) 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 

to have left the Level B harassment zone 

or until a full 15 minutes (for small 

odontocetes and seals) or 30 minutes 

(for all other marine mammals) have 

elapsed with no further sighting; 

(15) 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)(13) of this 

section is detected in the shutdown 

zone; and 

(16) 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. 

(f) Fisheries monitoring surveys. The 

following measures apply to fishery 

monitoring surveys: using trap/pot gear: 

(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 and/or its cooperating 

institutions, contracted vessels, or 

commercially hired captains must 

implement the following ‘‘move-on’’ 

rule: If marine mammals are sighted 

within 1 nautical mile (nmi (1.2 mi)) of 

the planned location and 15 minutes 

before gear deployment, then LOA 


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Holder and/or its cooperating 

institutions, contracted vessels, or 

commercially hired captains, as 

appropriate, 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 and 

its cooperating institutions, contracted 

vessels, or commercially hired captains 

must move again or skip the station; 

(3) If a marine mammal is at risk of 

interacting with deployed gear, 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 minimize potential 

interactions with the observed animal; 

(4) Unless using ropeless gear, LOA 

Holder must maintain visual marine 

mammal monitoring effort 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) All fishery survey-related lines 

must include the breaking strength of all 

lines being less than 1,700 pounds (lbs; 

771 kilograms (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; 

(10) 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; 

(11) 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 labels and 

markings on the gear, buoys, and buoy 

lines must also be compliant with the 

applicable regulations, and all buoy 

markings must comply with instructions 

received by the NOAA Greater Atlantic 

Regional Fisheries Office Protected 

Resources Division; 

(12) All survey gear must be removed 

from the water whenever not in active 

survey use (i.e., no wet storage); and 

(13) All reasonable efforts, that do not 

compromise human safety, must be 

undertaken to recover gear. 

§ 217.295 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, 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. All PSOs and 

PAM operators should demonstrate 

good standing and consistently good 

performance of all assigned duties; 

(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 

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 paragraphs 

(b)(5) and (b)(6) 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). A conditionally 

approved PSO or PAM operator must be 

paired with an unconditionally 

approved PSO or PAM operator; 

(7) At least one on-duty PSO for each 

activity (e.g., foundation installation, 

cable landfall construction, and HRG 

surveys) must be designated as the Lead 

PSO. The Lead PSO must meet the 

minimum requirements described in 

217.295(a)(2) through (5) and have a 

minimum of ninety days of at-sea 

experience working in the Northwest 

Atlantic Ocean and would be required 

to have no more than eighteen months 

elapsed since the conclusion of their 

last at-sea experience; 


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(8) PSOs for cable landfall 

construction (i.e., vibratory pile 

installation and removal) and HRG 

surveys may be unconditionally or 

conditionally approved. PSOs and PAM 

operators for foundation installation 

must be unconditionally approved; 

(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 in 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 

software using the PAM Atlantic baleen 

whale annotated data set available at 

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, pending 

NMFS-approval; 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 survey, foundation 

installation, cable landfall activities 

etc.). 

(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 all impact pile driving, 

vibratory pile driving, 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) 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, but 

must have the appropriate equipment 

(i.e., computer station equipped with a 

data collection software system and 

acoustic data analysis software) 

available wherever they are stationed, 

and data or data products must be 

streamed in real-time or in near realtime to allow PAM operators to provide 

assistance to on-duty visual PSOs. 

During foundation installation 

activities, the PAM operator(s) must 

monitor to and past the clearance zone 

for large whales and would assist PSOs 

in ensuring full coverage of the 

clearance and shutdown zones; 

(3) 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) 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; 

(4) 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); 

(5) PSOs must use high magnification 

(25x) binoculars, standard handheld 

(7x) binoculars, and the naked eye to 

search continuously for marine 

mammals. During foundation 

installation, at least two PSOs on the 

pile driving-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 

§ 217.294(c)(17); 

(6) 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; 

(7) 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 

must not exceed a combined watch 


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schedule of more than 12 hours in a 24- 

hour period. If the schedule includes 

PSOs and PAM operators on-duty for 2- 

hour shifts, a minimum 1-hour break 

between watches must be allowed; and 

(8) During daylight hours when 

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. 

(c) PSO and PAM operator 

requirements during WTG and OSS 

foundation installation. The following 

measures apply to PSOs and PAM 

operators during WTG and OSS 

foundation installation 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. If 

PSOs cannot visually monitor the 

minimum visibility zone prior to pile 

driving at all times using the equipment 

described in paragraphs (b)(5) and (6) of 

this section, pile-driving operations 

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 pile driving and 

at least three on-duty PSOs must be 

stationed on each dedicated PSO vessel. 

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 foundation pile 

driving in accordance with a NMFSapproved PAM Plan; 

(3) LOA Holder must conduct PAM 

for at least 24 hours immediately prior 

to pile driving activities. The PAM 

operator must review all detections from 

the previous 24-hour period 

immediately prior to pile driving. 

(d) PSO requirements during cable 

landfall construction. The following 

measures apply to PSOs during 

cofferdam 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 and goal posts; and 

(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 and for 30 minutes 

after all pile driving 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, etc.) and clear of marine mammals, 

as determined by the Lead PSO, for at 

least 30 minutes immediately prior to 

initiation of pile driving. 

(e) PSO requirements during HRG 

surveys. The following measures apply 

to PSOs during HRG surveys using 

Compressed High Intensity Radiated 

Pulse (CHIRPs), boomers, and sparkers 

and must be implemented by LOA 

Holder: 

(1) Between four and six 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 active 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 

deployment and use (unless using 

ropeless gear), and for 15 minutes after 

haul back. 

(g) Reporting. LOA Holder must 

comply with the following reporting 

measures: 

(1) Prior to initiation of any specified 

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 

entered or spent within the Level A 

harassment and/or Level B harassment 

zone(s); the activity at time of sighting 

(e.g., pile driving, construction surveys), 

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 


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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 § 217.296; 

(4) If a marine mammal is acoustically 

detected during PAM monitoring, the 

following information must be recorded 

and reported to NMFS: location of 

hydrophone (latitude and longitude; in 

Decimal Degrees) and site name; bottom 

depth and depth of recording unit (in 

meters); recorder (model & 

manufacturer) and platform type (i.e., 

bottom-mounted, electric glider, etc.), 

and instrument ID of the hydrophone 

and recording platform (if applicable); 

time zone for sound files and recorded 

date/times in data and metadata (in 

relation to Universal Coordinated Time 

(UTC); i.e., Eastern Standard Time (EST) 

time zone is UTC–5); duration of 

recordings (start/end dates and times; in 

International Organization for 

Standardization (ISO) 8601 format, 

yyyy-mm-ddTHH:MM:SS.sssZ); 

deployment/retrieval dates and times 

(in ISO 8601 format); recording 

schedule (must be continuous); 

hydrophone and recorder sensitivity (in 

dB re. 1 microPascal (mPa)); calibration 

curve for each recorder; bandwidth/ 

sampling rate (in Hz); sample bit-rate of 

recordings; and detection range of 

equipment for relevant frequency bands 

(in meters); 

(i) For each detection, the following 

information the following information 

must be noted: species identification (if 

possible); call type and number of calls 

(if known); temporal aspects of 

vocalization (date, time, duration, etc.; 

date times in ISO 8601 format); 

confidence of detection (detected, or 

possibly detected); comparison with any 

concurrent visual sightings; location 

and/or directionality of call (if 

determined) relative to acoustic recorder 

or construction activities; location of 

recorder and construction activities at 

time of call; name and version of 

detection or sound analysis software 

used, with protocol reference; minimum 

and maximum frequencies viewed/ 

monitored/used in detection (in Hz); 

and name of PAM operator(s) on duty; 

(5) 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 to 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; 

(6) 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, MMIS 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 

System website at https://www.fisheries.

noaa.gov/resource/document/passiveacoustic-reporting-system-templates; 

(7) 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 

type; 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 

(i.e., days and duration of impact and 

vibratory pile driving, days, days and 

amount of HRG survey effort, etc.); any 

PAM systems used; the results, 

effectiveness, and which noise 

attenuation systems were used during 

relevant activities (i.e., foundation pile 

driving); 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. The final annual report must be 

prepared and submitted within 30 

calendar days following the receipt of 

any comments from NMFS on the draft 

report. If no comments are received 

from NMFS within 60 calendar days of 

NMFS’ receipt of the draft report, the 

report must be considered final; 

(8) 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 5- 

year 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; 

(9) LOA Holder must provide the 

initial results of the complete SFV 

measurements to NMFS Office of 

Protected Resources in an interim report 

after each foundation installation event 

as soon as they are available and prior 

to any subsequent foundation 

installation, but no later than 48 hours 

after each completed foundation 

installation event. 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 

model-estimated acoustic ranges (R95%) 

to compare with the real-world sound 

field measurements; peak sound 

pressure level (SPLpk), root-mean-square 

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 


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measured marine mammal Level A 

harassment and Level B harassment 

acoustic isopleths; estimated 

transmission loss coefficients; pile 

identifier name, location of the pile 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 

procedure, results, and any associated 

issues in the 48-hour interim reports; 

(10) LOA Holder must conduct 

abbreviated SFV for all foundation 

installations for which the complete 

SFV monitoring is not carried out, 

whereas a single acoustic recorder must 

be placed at an appropriate distance 

from the pile, in alignment with the 

completed Biological Opinion. All 

results must be included in the weekly 

reports. Any indications that distances 

to the identified Level A harassment 

and Level B harassment thresholds for 

marine mammals were exceeded must 

be addressed by LOA Holder, including 

an explanation of factors that 

contributed to the exceedance and 

corrective actions that were taken to 

avoid exceedance on subsequent piles; 

(11) The final results of all SFV 

measurements from each foundation 

installation must be submitted as soon 

as possible, but no later than 90 days 

following completion of all annual SFV 

measurements. The final reports must 

include all details included in the 

interim report and descriptions of any 

notable occurrences, explanations for 

results that were not anticipated, or 

actions taken during foundation 

installation. 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 

should be reported; range of 

transmission loss 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 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 hydrophone 

equipment and methods (i.e., recording 

device, bandwidth/sampling rate; 

distance from the pile 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; a 

description of the noise abatement 

system and operational parameters (e.g., 

bubble flow rate, distance deployed 

from the pile, 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; 

(12) 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, whichever comes 

first; 

(13) If a North Atlantic right whale is 

acoustically 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; 

(14) 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 following 

completion of activities requiring PAM 

for mitigation via the International 

Organization for Standardization (ISO) 

standard metadata forms available on 

the NMFS Passive Acoustic Reporting 

System website (https://www.fisheries.

noaa.gov/resource/document/passiveacoustic-reporting-system-templates). 

Submit the completed data templates to 

nmfs.nec.pacmdata@noaa.gov. The full 

acoustic recordings from real-time 

systems must also be sent to the 

National Centers for Environmental 

Information (NCEI) for archiving within 

90 days following completion of 

activities requiring PAM for mitigation. 

Submission details can be found at: 

https://www.ncei.noaa.gov/products/ 

passive-acoustic-data; 

(15) 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, 

in specific circumstances, including but 

not limited to the following: 

(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, the U.S. Coast Guard, 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 circumstances arise 

where calling NMFS is not possible, 

reports must be made to the U.S. Coast 

Guard via channel 16 or through the 

WhaleAlert app (http://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 to NMFS Greater 

Atlantic Regional Fisheries (GARFO; 

nmfs.gar.incidental-take@noaa.gov), 

NMFS Office of Protected Resources, 


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and NMFS Northeast Fisheries Science 

Center (NEFSC; 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 a large whale other than a North 

Atlantic right whale is observed at any 

time by PSOs or project personnel, LOA 

Holder must report the sighting to the 

WhaleAlert app (http://www.whalealert. 

org/); 

(iv) 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); 

if in the Greater Atlantic region (Maine 

to Virginia), to NMFS Greater Atlantic 

Regional Fisheries Office (GARFO; 

nmfs.gar.incidental-take@noaa.gov, 

nmfs.gar.stranding@noaa.gov); if in the 

Southeast region (North Carolina to 

Florida), to NMFS Southeast Regional 

Office (SERO; secmammalreports@

noaa.gov); and to the U.S. Coast Guard, 

as soon as feasible but within 24-hours. 

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 

(v) In the event of a vessel strike of a 

marine mammal by any vessel 

associated with the Project or if 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 

(16) Any lost gear associated with the 

fishery surveys will be reported to the 

NOAA Greater Atlantic Regional 

Fisheries Office 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. All 

reasonable efforts, that do not 

compromise human safety, must be 

undertaken to recover gear. 

§ 217.296 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 February 4, 2029, 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 § 217.297. 

(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 must be 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. 

§ 217.297 Modifications of Letter of 

Authorization. 

(a) An LOA issued under §§ 217.292 

and 217.296 or this section for the 

activities identified in § 217.290(a) 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 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: 


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(1) NMFS 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 may 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 §§ 217.292 

and 217.296 or this section for the 

activities identified in § 217.290(a) may 

be modified by NMFS under the 

following circumstances: 

(1) Through adaptive management, 

NMFS may modify (including delete, 

modify, or add to) the existing 

mitigation, 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 shall publish a notice 

of proposed LOA in the Federal 

Register and solicit public comment. 

(2) If NMFS 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 §§ 217.292 

and 217.296 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. 

§§ 217.298–217.299 [Reserved] 

[FR Doc. 2024–00297 Filed 1–22–24; 8:45 am] 

BILLING CODE 3510–22–P 


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