[Federal Register Volume 89, Number 28 (Friday, February 9, 2024)]
[Notices]
[Pages 9127-9129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02689]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD633]


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: Notice; issuance of Letter of Authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) as 
amended, and implementing regulations, notification is hereby given 
that a Letter of Authorization (LOA) has been issued to the Virginia 
Electric and Power Company, doing business as Dominion Energy Virginia 
(Dominion Energy), for the taking of marine mammals incidental to the 
construction of the Coastal Virginia Offshore Wind Commercial (CVOW-C) 
Project (hereafter known as the ``CVOW-C Project'' or the ``Project'').

DATES: The LOA is effective from February 5, 2024 through February 4, 
2029.

ADDRESSES: The LOA and supporting documentation are available online 
at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems 
accessing these documents, please call the contact listed below (see 
FOR FURTHER INFORMATION CONTACT).

[[Page 9128]]


FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
promulgated (when applicable), and public notice and an opportunity for 
public comment are provided.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). If such findings are made, NMFS must prescribe the 
permissible methods of taking; ``other means of effecting the least 
practicable adverse impact'' on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
the species or stocks for taking for certain subsistence uses (referred 
to as ``mitigation''); and requirements pertaining to the monitoring 
and reporting of such takings. The MMPA defines ``take'' to mean 
harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or 
kill any marine mammal (16 U.S.C. 1362(13); 50 CFR 216.103). Level A 
harassment is defined as 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). Level B 
harassment is defined as 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 authorize NMFS to propose and, if appropriate, 
promulgate regulations and issue associated LOA(s). NMFS promulgated 
regulations on January 23, 2024 (89 FR 4370) for the taking of marine 
mammals incidental to the construction of the CVOW-C Project offshore 
of Virginia. The LOA authorizes Dominion Energy and those persons it 
authorizes or funds to conduct activities on its behalf to take marine 
mammals incidental to specified activities during the construction of 
the Project and requires them to implement mitigation, monitoring, and 
reporting requirements.

Summary of Request

    On January 23, 2024, NMFS promulgated a final rule (89 FR 4370) 
responding to a request from Dominion Energy for authorization to take 
marine mammals (21 species comprising 22 stocks) by Level B harassment 
(all 22 stocks) and by Level A harassment (7 stocks) incidental to 
construction activities occurring in Federal and State waters off of 
Virginia, specifically within and around 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 an export cable route 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). 
The final rule included the following specified activities: the 
installation of 176 wind turbine generators (WTGs) on monopile 
foundations (through a maximum of 183 separate piling events) and 3 
offshore substations (OSSs) on jacket foundations using pin piles by 
vibratory and impact pile driving; nearshore cable landfall work 
comprising of the installation and subsequent removal of nearshore 
temporary cofferdams by vibratory pile driving and the installation and 
subsequent removal of temporary goal posts by impact pile driving at 
the sea-to-shore transition point located at the State Military 
Reservation in Virginia Beach, Virginia; high-resolution geophysical 
(HRG) marine site characterization surveys using active acoustic 
sources; fishery and ecological monitoring surveys; the placement of 
scour protection; the installation of the export cable route from OSSs 
to shore-based converter stations and inter-array cables between 
turbines by trenching, laying, and burial activities; vessel transit 
within the specified geographical region to transport crew, supplies, 
and materials; and WTG operation.
    Marine mammals exposed to elevated noise levels during foundation 
impact pile driving may be taken by Level A harassment, and marine 
mammals exposed to elevated noise levels during impact and vibratory 
pile driving and HRG site characterization surveys may be taken by 
Level B harassment. No mortality or serious injury of any marine mammal 
is anticipated or authorized. The number of takes, by species, 
authorized may be found in table 1 in the LOA, which is available at 
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Authorization

    In accordance with the final rule (89 FR 4370, January 23, 2024; 
see 50 CFR 217.296), NMFS has issued a LOA to Dominion Energy 
authorizing the take, by harassment, of marine mammals incidental to 
specified activities within the specified geographical region. As 
previously stated, no mortality or serious injury of any marine mammal 
species is anticipated or authorized. The incidental takes authorized 
herein are the same as those analyzed and authorized in the final rule 
(89 FR 4370, January 23, 2024). Takes of marine mammals will be 
minimized through the following planned mitigation and monitoring 
measures, as applicable for each specified activity: (1) implementation 
of spatio-temporal seasonal/time of day work restrictions; (2) use of 
multiple NMFS-approved Protected Species Observers (PSOs) to visually 
observe for marine mammals (with any detection within specifically 
designated zones triggering a delay or shutdown, as applicable); (3) 
use of NMFS-approved passive acoustic monitoring (PAM) operators to 
acoustically detect marine mammals, with a focus on detecting baleen 
whales (with any detection within designated zones triggering a delay 
or shutdown, as applicable); (4) implementation of clearance and 
shutdown zones; (5) use of soft-start upon commencement of impact pile 
driving and ramp-up of acoustic sources during HRG surveys; (6) use of 
noise attenuation technology during foundation pile driving; (7) use of 
situational awareness monitoring for marine mammal presence; (8) use of 
sound field verification monitoring; (9) use of PAM within the vessel 
transit corridor for Project vessels to travel over 10 knots (11.5 
miles per hour); and (10) implementation of several vessel strike 
avoidance measures to avoid vessel strikes, including but not limited 
to, vessel separation zones between marine mammals and project vessels. 
Additionally, NMFS may modify the LOA's mitigation, monitoring, or 
reporting measures, based on new information. Dominion Energy is also

[[Page 9129]]

required to submit reports, as specified in the final rule.
    Based on the findings discussed in the preamble of the final rule, 
NMFS has determined that the take authorized in the LOA is of small 
numbers, will have a negligible impact on marine mammal stocks, will 
not have an unmitigable adverse impact on the availability of the 
affected marine mammal stock for subsistence uses, and the mitigation 
measures provide a means of affecting the least practicable adverse 
impact on the affected stocks and their habitat.

    Dated: February 6, 2024.
Shannon Bettridge,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2024-02689 Filed 2-8-24; 8:45 am]
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