33810 Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XA881] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Construction of 

the Vineyard Wind Offshore Wind 

Project 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of an incidental 

harassment authorization. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA) as 

amended, notification is hereby given 

that NMFS has issued an incidental 

harassment authorization (IHA) to 

Vineyard Wind 1, LLC (Vineyard Wind) 

to take, by Level A harassment and 

Level B harassment, marine mammals 

during construction of a commercial 

wind energy project offshore 

Massachusetts. 

DATES: The IHA is valid from May 1, 

2023 through April 30, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Jaclyn Daly, Office of Protected 

Resources, NMFS, (301) 427–8401. 

Electronic copies of the application and 

supporting documents, as well as a list 

of the references cited in this document, 

may be obtained online at: 

www.fisheries.noaa.gov/permit/ 

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

of problems accessing these documents, 

please call the contact listed above. 

SUPPLEMENTARY INFORMATION: 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

incidental take authorization may be 

provided to the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of such species or stocks for 

taking for certain subsistence uses 

(referred to in shorthand as 

‘‘mitigation’’); and requirements 

pertaining to the mitigation, monitoring 

and reporting of such takings are set 

forth. 

The definitions of all applicable 

MMPA statutory terms cited above are 

included in the relevant sections below. 

Summary of Request 

On September 7, 2018, NMFS 

received a request from Vineyard Wind 

for an IHA to take marine mammals 

incidental to pile driving associated 

with the construction of an offshore 

wind energy project south of 

Massachusetts. Vineyard Wind 

submitted revised versions of the 

application on October 11, 2018 and on 

January 28, 2019. The application was 

deemed adequate and complete on 

February 15, 2019. A notice of proposed 

IHA was published in the Federal 

Register on April 30, 2019 (84 FR 

18346). In response to Vineyard Wind’s 

request and in consideration of public 

comments, NMFS has authorized the 

taking of 15 species of marine mammals 

by harassment. Neither Vineyard Wind 

nor NMFS expects serious injury or 

mortality to result from this activity 

and, therefore, an IHA is appropriate. 

Description of Activity 

Vineyard Wind proposes to construct 

an 800 megawatt (mw) offshore wind 

energy project in the northern portion of 

Lease Area OCS–A 0501, offshore 

Massachusetts (Figure 1). In its request 

for an IHA, Vineyard Wind states that 

the project would consist of up to 100 

offshore wind turbine generators 

(WTGs) and one or more electrical 

service platforms (ESPs), an onshore 

substation, offshore and onshore 

cabling, and onshore operations and 

maintenance facilities. Take of marine 

mammals may occur incidental to the 

construction of the project due to inwater noise exposure resulting from pile 

driving activities associated with 

installation of WTG and ESP 

foundations. 

BILLING CODE 3510–22–P 


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BILLING CODE 3510–22–C 

Vineyard Wind plans to install the 

WTGs and ESPs between May and 

November in the northeast portion of 

the 675 square kilometer (km2) (166,886 

acre) Lease Area, referred to as the Wind 

Development Area (WDA) (See Figure 1 

in the IHA application). At its nearest 

point, the WDA is just over 23 km (14 

mi) from the southeast corner of 

Martha’s Vineyard and a similar 

distance from Nantucket. Water depths 

in the WDA range from approximately 

37–49.5 meters (m) (121–162 feet (ft)). 

Construction of the project is planned to 

commence in May 2023. Up to 102 days 

of pile driving may occur between May 

1 and November 30. Pile driving in 

December would only occur if 

unforeseen circumstances arise such 

that construction is not complete by 

November and the Bureau of Ocean 

Energy Management (BOEM) approves 

pile driving during December. No pile 

driving activities would occur from 

January 1 through April 30 under any 

circumstances. 

Two potential foundation types are 

proposed for the project: Monopiles and 

jackets. A monopile is a single, hollow 

cylinder fabricated from steel that is 

secured in the seabed while the jacket 

design concept consists of three to four 

steel piles, a large lattice jacket 

structure, and a transition piece. Piles 

for monopile foundations would be 

constructed for specific locations with 

maximum diameters ranging from ∼8 m 

(26.2 ft) up to 10.3 m (33.8 ft) and an 

expected median diameter of ∼9 m (29.5 

ft). The piles for the monopile 

foundations are up to 95 m (311.7 ft) in 

length and will be driven to a 

penetration depth of 20–45 m (65.6– 

147.6 ft) (mean penetration depth 30 m 


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-- -- --------- -:12 

... ·.·••~esl'ltiicalloii 

••. ~ WTG:t«a!roris 

Figure 1. Location of the Vineyard Wind WDA within the northern portion of Lease Area 

OCS-A 0501 
33812 Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 

(98.4 ft)). A schematic diagram showing 

potential heights and dimensions of the 

various components of a monopile 

foundation are shown in Figure 2 of the 

IHA application. Jacket foundations 

each require the installation of three to 

four jacket securing piles, known as 

jacket pin piles, of ∼3 m (9.8 ft) 

diameter. The 3 m (9.8 ft) diameter 

jacket piles for the jacket foundations 

are up to ∼65 m (213.3 ft) in length and 

would be driven to a penetration depth 

of 30–75 m (98.4–196.9 ft) (mean 

penetration depth of 45 m (147. ft)). A 

schematic diagram showing potential 

heights and dimensions of the various 

components of a jacket foundation are 

shown in Figure 3 of the IHA 

application. 

WTGs and ESPs may be placed on 

either type of foundation. Vineyard 

Wind has proposed that up to 100 WTG 

foundations may be constructed and 

that, of those 100 foundations, no more 

than 10 may be jackets. In addition, 

either one or two ESPs would be built 

on a jacket foundation (each foundation 

is comprised of four piles). Therefore up 

to 108 piles may be installed in the 

WDA. Vineyard Wind has incorporated 

more than one design scenario in their 

planning of the project. This approach, 

called the ‘‘design envelope’’ concept, 

allows for flexibility on the part of the 

developer, in recognition of the fact that 

offshore wind technology and 

installation techniques are constantly 

evolving and exact specifications of the 

project are not yet certain as of the 

publishing of this document. Variables 

that are not yet certain include the 

number, size, and configuration of 

WTGs and ESPs and their foundations, 

and the number of foundations that may 

be installed per day (a maximum of two 

foundations would be installed per day). 

The flexibility provided in the envelope 

concept is important because it 

precludes the need for numerous 

authorization modifications as 

infrastructure or construction 

techniques evolve after authorizations 

are granted but before construction 

commences. Under the maximum 

design scenario in Vineyard Wind’s IHA 

application, where 100 WTGs are 

installed on monopiles, a total of as 

many as 108 piles may be driven (i.e., 

100 monopiles for WTG foundations 

and 8 pin piles for two ESPs). 

Specifications for both foundation types 

are shown in Table 1. 

TABLE 1—FOUNDATION TYPES AND SPECIFICATIONS FOR THE VINEYARD WIND PROJECT

Foundation type Pile diameter Pile length Penetration depth 

Maximum 

number that 

may be 

installed * 

Monopile ................................. ∼8 to ∼10.3 m (26.2 to 33.8 ft) ∼60 m up to ∼95 m (196.9– 

311.7 ft).

20–45 m (65.6–147.6 ft) ........ 100 

Jacket (4 piles each) .............. 3 m (9.8 ft) ............................. ∼65 m (213.3 ft) ..................... 30–75 m (98.4–196.9 ft) ........ 2 

* The total number of foundations installed would not exceed 102. 

For monopile installation, a typical 

pile driving operation is expected to 

take less than approximately three hours 

to achieve the target penetration depth. 

It is anticipated that a maximum of two 

monopiles could potentially be driven 

into the seabed per day. Concurrent 

driving (i.e., the driving of more than 

one pile at the same time) would not 

occur. 

A detailed description of Vineyard 

Wind’s planned construction activities 

is provided in the notice of proposed 

IHA (84 FR 18346; April 30, 2019). 

Since that time, Vineyard Wind has not 

proposed any changes to its 

construction activities through the IHA 

process. Therefore, a detailed 

description is not provided here. Please 

refer to that notice for the detailed 

description of the specified activity. 

Mitigation, monitoring, and reporting 

measures are described in detail later in 

this document (please see Mitigation 

and Monitoring and Reporting below). 

Modifications and additions to the 

mitigation and monitoring measures 

have occurred since the proposed IHA. 

All changes since the proposed IHA 

have been summarized in the Changes 

From Proposed IHA to Final IHA 

section and described in detail in their 

respective sections and/or the Comment 

Responses below. 

Comments and Responses 

A notice of proposed IHA was 

published in the Federal Register on 

April 30, 2019 (84 FR 18346). During 

the 30-day public comment period, 

NMFS received comment letters from 

the Atlantic Offshore Lobstermen’s 

Association (AOLA), the Marine 

Mammal Commission (Commission), 

Gatzke Dillon & Ballance LLP 

representing ACK Residents Against 

Turbines, and a group of environmental 

non-governmental organizations 

(ENGOs) including Conservation Law 

Foundation, National Wildlife 

Federation, Natural Resources Defense 

Council, Defenders of Wildlife, Humane 

Society of the United States, Humane 

Society Legislative Fund, Whale and 

Dolphin Conservation, International 

Fund for Animal Welfare, Mass 

Audubon, NY4WHALES, and Inland 

Ocean Coalition. NMFS has posted the 

comments online at: 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable. Please see those 

letters for full detail regarding the 

commenters’ recommendations and 

underlying rationale. 

Comment 1: The Commission 

recommended that NMFS (1) authorize 

takes of the various marine mammal 

species that could occur during 

vibratory pile driving and (2) require 

Vineyard Wind conduct and report 

sound source and sound propagation 

measurements during vibratory pile 

driving and adjust the Level A and B 

harassment zones, as needed. 

Response: According to Vineyard 

Wind, vibratory driving is not planned 

and would only be used in 

extraordinary circumstances in the 

event that impact driving is not 

sufficient to ensure pile stability. 

Vineyard Wind is using a pile gripper to 

hold the pile in place during impact 

hammering. If that pile gripper fails 

(which is not anticipated), Vineyard 

Wind would either stand-down and fix 

the pile gripper or be forced to bring in 

a vibratory hammer to install the pile 

deep enough so that it is stable before 

moving to an impact hammer to finish 

installing the pile. This is an extremely 

unlikely scenario. As described in 

Vineyard Wind’s application, if it 

becomes necessary to use a vibratory 

hammer, the average driving time to get 

the pile stabilized is anticipated to be 10 

minutes (with a rare case of up to 30 

minutes). Because use of a vibratory 

hammer would be extremely costly, this 

option would be utilized only if 

absolutely necessary and for the 

minimum amount of time possible (as 


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necessary to repair the pile gripper). For 

those limited number of piles partially 

installed with a vibratory hammer, less 

strikes of the impact hammer would be 

required to fully install the pile. 

Because of stability issues, use of a 

vibratory hammer and impact hammer 

would occur on the same day. 

As vibratory driving is not considered 

likely to occur and, if it did occur, less 

impact driving would be necessary, we 

have determined that additional 

modelling specifically to generate an 

estimate of take for this unlikely, brief 

activity is not warranted. If this 

vibratory driving were to occur, and if 

any small number of marine mammals 

not already disturbed by the impact 

driving in the same day were taken, the 

existing conservative amount of take 

authorized is adequate to account for 

any take that may occur during 

vibratory pile driving. Likewise, we 

have determined that a requirement for 

vibratory driving sound source 

verification is not warranted given that 

it is unlikely that this activity will occur 

and, if it did, would occur only 

temporarily on a limited number of 

piles for a limited duration 

(approximately 10 minutes per pile). We 

anticipate that if Vineyard Wind 

determines that the unexpected use of a 

vibratory hammer is necessary, they will 

consult with NMFS upon making that 

decision. 

Comment 2: The Commission 

recommended that NMFS consult with 

external scientists and acousticians to 

determine the appropriate accumulation 

time that action proponents should use 

to determine the extent of the Level A 

harassment zones based on the 

associated [cumulative sound exposure 

level] SELcum thresholds for the 

various types of sound sources, 

including stationary sound sources and 

that NMFS make the issue a priority. 

Response: NMFS concurs with this 

recommendation and has prioritized the 

issue. As identified in the Commission’s 

letter, NMFS has formed an internal 

committee to identify a more 

sophisticated approach for determining 

the extent of Level A harassment zones 

and is developing a proposal upon 

which additional internal and external 

review will be sought. Specific to this 

IHA, the Commission takes issue that 

the Level A harassment isopleth for 

jacket foundation installation (based on 

the installation of 4 piles in a 24-hour 

period) is greater than the Level B 

harassment isopleth and based on the 

extent of those zones, it is assumed that 

an animal would experience permanent 

threshold shift (PTS) before responding 

behaviorally and leaving or avoiding the 

area. However, the Commission 

simplifies application of the zone with 

such assumption in that they consider if 

an animal enters the Level A harassment 

zone, it would incur PTS upon entering, 

similar to how we consider the potential 

for Level B harassment to occur. This in 

fact is not the case, as the distance to the 

PTS isopleth represents the distance at 

which the animal would have to remain 

during installation of all four piles. 

NMFS recognizes calculating a zone 

based on work occurring over 24 hours 

is highly conservative; however, the 

zone does not represent the area in 

which PTS would occur simply if an 

animal enters the zone, as interpreted by 

the Commission. Further, Vineyard 

Wind conducted modeling using 

sophisticated sound propagation and 

animat modeling. The Commission 

identified in its letter that it supports 

the 24-hour approach if an action 

proponent is able to conduct more 

sophisticated sound propagation and 

animat modeling. Therefore, the 

Commission is contradictory in its 

comment specific to this action. NMFS 

has determined the modeling results 

represent likely zones by which we 

identify the potential for PTS and 

behavioral harassment to occur; 

however, NMFS appropriately considers 

the temporal component associated with 

the Level A harassment zone when 

considering the potential for PTS to 

occur. 

Comment 3: The Commission 

recommended that NMFS reassess the 

numbers of Level A harassment takes for 

low-frequency cetaceans and revise 

authorized take numbers such that the 

Level A harassment takes account for 77 

percent of total takes for installation of 

monopiles and 100 percent of the total 

takes for jacket piles. 

Response: The Commission suggests 

that the ratio of authorized takes by 

Level A harassment to takes by Level B 

harassment for low-frequency cetaceans 

should exactly match the ratio of the 

Level A harassment to Level B 

harassment zone sizes. However, as 

noted in the Commission’s comment, 

takes by Level A harassment and takes 

by Level B harassment are modeled 

differently, with the Level A harassment 

zones calculated with dual metrics (i.e., 

SELcum and peak sound pressure level 

(SPL)). The Level A harassment zone 

cited by the Commission in their 

comment (i.e., 3,191 m for impact 

driving for low-frequency cetaceans) is 

calculated with the SELcum metric and 

thereby incorporates a time component. 

As described in our response to 

comment 2 above, while this zone based 

on the SELcum metric is used as a 

conservative tool for modeling potential 

exposures above the Level A harassment 

threshold, an animal documented 

within that zone does not necessarily 

mean that animal was taken by Level A 

harassment when observed within that 

zone. In contrast, the takes by Level B 

harassment are based on an 

instantaneous step function wherein the 

animal could experience Level B 

harassment as soon as it is exposed to 

sound levels above the 160 dB re 1 

microPascal (mPa) root mean square 

(rms) threshold. Therefore, directly 

comparing zone sizes is not an 

appropriate approach. Moreover, 

suggesting the amount of take allocated 

to Level A harassment and Level B 

harassment should be proportional to 

zone sizes is not reflective of what the 

zones represent and therefore would be 

a misrepresentation of potential effects 

on marine mammals. In addition, as 

noted in the proposed IHA and as 

described below, the authorized number 

of takes by Level A harassment are 

already considered conservative, as 

there were 0 takes by Level A 

harassment modeled for the majority of 

species (including with the SELcum 

metric) and, in some cases, we increased 

the authorized number of takes by Level 

A harassment from 0 to mean group size 

based on a conservative assumption that 

a group of each species may be taken 

despite the modeling results. Further, 

take estimate modeling does not account 

for mitigation and monitoring measures 

included in the IHA. Thus, we reject the 

Commission’s recommendation as the 

authorized numbers of takes by Level A 

harassment are sufficient and do not 

warrant revision. 

Comment 4: The Commission 

recommends that NMFS reassess the 

numbers of Level B harassment takes for 

all species and authorize an appropriate 

number of takes relative to the extent of 

the Level B harassment zones, each 

species’ occurrence in the area, and the 

102 days that activities are proposed to 

occur. 

Response: The current numbers of 

takes by Level B harassment authorized 

are considered conservative for several 

reasons: Takes were modeled separately 

for each species through exposure 

modeling which was run for four 

separate construction scenarios and the 

largest resulting exposure number from 

the four scenarios was carried forward. 

Thus the number that was carried 

forward was from the ‘‘maximum case 

scenario’’ in terms of possible 

construction scenarios. All of the 

construction scenarios used in the 

modeling assumed 102 foundations 

would be installed when ultimately 

fewer foundations, resulting in fewer 

pile driving days, may be installed. For 

comparison, takes by Level B 


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harassment were also calculated for 

each species using Vineyard Wind’s 

observer data from site characterization 

surveys. Vineyard Wind reviewed 

monitoring data recorded during site 

characterization surveys in the WDA 

from 2016–2018 and calculated a daily 

sighting rate (individuals per day) for 

each species in each year, then 

multiplied the maximum sighting rate 

from the three years by the number of 

pile driving days under the Maximum 

Design scenario (i.e., 102 days). This 

method assumes that the largest average 

group size for each species observed 

during the three years of surveys may be 

present during piling on each day. 

Then, the larger of the two take numbers 

calculated for each species (i.e., through 

exposure modeling or calculated based 

on Vineyard Wind’s monitoring data) 

was then carried forward as the 

authorized take number. For these 

reasons, the authorized take numbers by 

Level B harassment are sufficient, and 

we have determined that no revision to 

authorized numbers of takes by Level B 

harassment are warranted (aside from 

the minor revisions described in the 

Estimated Take section below). 

With respect to comparing the 

authorized amount of take here with 

HRG surveys, we find the Commission 

inappropriately compared the amount of 

take associated with HRG surveys to 

pile driving activities. The Commission 

made this recommendation based on the 

number of days without considering the 

daily amount of hours during which the 

activities occur. For example, 40 days of 

HRG surveys occur over a 24-hour 

period daily while pile driving 

associated with the Vineyard Wind 

project is limited to the installation of 

one to two piles per day (approximately 

3 hours of pile driving per pile which 

is significantly less than 24 hours). 

While the number of hours of work per 

day is not part of the take calculation, 

it does play a role in making a direct 

comparison between take allocated for 

the two activities (i.e., site 

characterization versus pile driving). 

Moreover, many delphinid species (e.g., 

bottlenose dolphins) are attracted to 

HRG vessels, resulting in unavoidable 

take during the surveys. Impact pile 

driving; however, is not an activity 

expected to attract marine mammals. To 

compare the amount of take authorized 

from the proposed project to HRG 

surveys is inappropriate. Finally, while 

the Commission identifies the amount 

of take authorized to Bay State Wind for 

HRG surveys for some species (e.g., 

bottlenose dolphins), the subsequent 

monitoring report required under Bay 

State Wind’s IHA showed detections of 

only a small fraction of the number of 

marine mammals authorized for Level B 

harassment take (Bay State Wind, 2019). 

For the reasons stated above, we find 

the authorized amount of take to 

Vineyard Wind, by Level B harassment, 

is sufficient considering the scope of the 

project. 

Comment 5: The Commission 

recommended that NMFS require 

Vineyard Wind to (1) submit the results 

of the sound source measurements taken 

during installation of the first monopile 

for which sound attenuation devices are 

used and adjust the Level A and B 

harassment zones accordingly prior to 

proceeding with installation of any 

additional monopiles and (2) conduct 

sound source measurements at least 

monthly to ensure that the sound 

attenuation device continues to provide 

at least a 6-dB reduction in sound 

levels. 

Response: The IHA includes extensive 

acoustic monitoring requirements. The 

IHA requires that sound field 

measurements must be conducted 

during pile driving of the first monopile 

and first jacket foundation installed over 

the course of the project and that 

Vineyard Wind must provide the initial 

results of the field measurements to 

NMFS as soon as they are available. In 

the event that subsequently driven piles 

are installed that have a larger diameter, 

or, are installed with a larger hammer or 

greater hammer energy than the first 

monopile and jacket pile, sound field 

measurements must be conducted for 

those subsequent piles. If initial 

acoustic field measurements indicate 

distances to the isopleths corresponding 

to Level A and/or Level B harassment 

thresholds are greater than the distances 

predicted by modeling (as presented in 

the IHA application), Vineyard Wind 

must implement additional sound 

attenuation measures prior to 

conducting additional pile driving. 

Additionally, in the event that field 

measurements indicate distances the 

isopleths corresponding to Level A 

harassment and Level B harassment 

thresholds are greater than the distances 

predicted by modeling, Vineyard Wind 

must implement additional attenuation 

devices such that modeled harassment 

threshold distances (or smaller) based 

on a 6 dB reduction are realized in the 

field. If an additional device(s) still does 

not achieve the model results and 

Vineyard Wind has no other means to 

reduce noise levels (e.g., reduced 

hammer energy), Vineyard Wind must 

expand the harassment zones to reflect 

field measurements, in consultation 

with NMFS. 

Regarding the Commission’s 

recommendation to require Vineyard 

Wind to conduct sound source 

measurements at least monthly to 

ensure that the sound attenuation 

device continues to provide at least a 6- 

dB reduction in sound levels, we do not 

agree this is warranted. Vineyard Wind 

is required to conduct acoustic 

monitoring upon commencement of 

installing each foundation type and 

demonstrate that the piles monitored are 

done so under conditions that are 

reflective of conditions for other piles 

installed across the WDA (e.g., similar 

substrate, hammer energy, etc.). If 

Vineyard Wind finds noise levels 

associated with the project are higher 

than modeled (assuming 6 dB 

attenuation), mitigative action is 

required and acoustic monitoring must 

continue. If noise levels are less than 

those predicted, Vineyard Wind must 

conduct monitoring on at least 3 

monopiles and again demonstrate the 

pile monitored are installed under 

conditions representative of future piles 

to ensure any variability is captured. 

These measures are sufficient to ensure 

the sound field produced during pile 

driving is well understood throughout 

construction. 

Comment 6: The Commission 

recommended that NMFS require 

Vineyard Wind to conduct passive 

acoustic monitoring (PAM) at all times 

during which pile-driving activities 

occur and implement shutdowns when 

NARWs are detected within Level A 

harassment zones. 

Response: Vineyard Wind is required 

to conduct passive acoustic monitoring 

before, during and after all pile driving 

events. Pile driving must be delayed 

upon a confirmed PAM detection of a 

NARW, if the detection is confirmed to 

have been located within the relevant 

PAM clearance zones (Table 16a). 

Vineyard Wind is also required, in 

consideration of safety and pile 

integrity, that pile driving for both 

monopile and jacket foundation piles be 

shut down should a NARW be observed 

within 3.2 kms of the pile being driven; 

this distance represents the Level A 

harassment zone for monopiles (Table 

16b). Because the Level A harassment 

zone for a jacket foundation represents 

the energy needed to incur PTS from the 

installation of four piles, implementing 

a shutdown zone based on this amount 

of work over the amount of time it takes 

to install four piles is unreasonable and 

not appropriate. 

Comment 7: The Commission 

recommended that NMFS require 

Vineyard Wind to cease activities if any 

marine mammal comes within 10 m of 

the equipment, particularly during pile 

placement; implement delay and 

shutdown procedures, if a species for 


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which authorization has not been 

granted or if a species for which 

authorization has been granted but the 

authorized takes are met, approaches or 

is observed within the Level A and/or 

B harassment zone; and extrapolate the 

total number of marine mammals taken 

based on the distance to which visual 

observations can be made accurately 

and the extents of the Level A and B 

harassment zones. 

Response: Regarding the 

recommendation that NMFS require 

Vineyard Wind to cease activities if any 

marine mammal comes within 10 m of 

the equipment, we agree and have 

implemented this requirement in the 

IHA. The Commission provided a 

footnote (14) that this distance should 

be increased due to the size of Vineyard 

Wind piles; however, given the large 

clearance and shutdown zones in 

addition to the large bubble curtain 

encompassing the piles at distances 

greater than 10 m, we do not believe this 

recommendation is warranted simply 

because the piles are large. Regarding 

the recommendation that NMFS require 

Vineyard Wind to delay or shutdown 

pile driving if a species for which 

authorization has not been granted or if 

a species for which authorization has 

been granted but the authorized takes 

are met, approaches or is observed 

within the Level A harassment and/or B 

harassment zones, we have included a 

measure that Vineyard Wind must 

shutdown pile driving (as technically 

feasible) if such circumstances arise. 

Regarding the recommendation that 

NMFS require Vineyard Wind to 

extrapolate the total number of marine 

mammals taken based on the distance to 

which visual observations can be made 

accurately and the extents of the Level 

A and B harassment zones, we do not 

concur with the Commission’s 

recommendation and do not adopt it as 

stated. 

The Commission does not explain 

why it believes Vineyard Wind should 

be required to extrapolate the total 

number of marine mammals taken other 

than it is ‘‘standard’’ which it is not. 

While NMFS previously included a 

requirement to report estimated takes 

based on an undefined extrapolation 

method in some inshore, estuarine 

construction project IHAs, we realized 

the assumptions and uncertainty 

surrounding this requirement preclude 

any meaningful analysis. Further, in 

those IHAs, NMFS did not consider 

those estimated takes to count against 

the total take authorized given the high 

degree of uncertainty surrounding the 

simplistic approach of estimating take 

based on the visible area compared to 

the estimated harassment area. The 

Commission does not provide 

recommendations for methods of 

generating such estimates in a manner 

that would lead to credible results. 

NMFS does believe that Vineyard 

Wind should report visibility and has 

included this requirement in the final 

authorization. NMFS is also requiring 

Vineyard Wind to report several details 

related to all observations of marine 

mammals, including if observed animals 

occurred within the Level B harassment 

zone during pile driving. These pieces 

of information—numbers of individuals 

of each species detected within the 

harassment zones and the estimated 

visibility—may be used to glean an 

approximate understanding of whether 

Vineyard Wind may have exceeded the 

amount of take authorized. Although the 

Commission does not explain its 

reasoning for offering these 

recommendations, NMFS recognizes the 

basic need to understand whether an 

IHA-holder may have exceeded its 

authorized take. The need to accomplish 

this basic function of reporting does not 

necessitate that NMFS require 

applicants to use methods we do not 

have confidence in to generate estimates 

of ‘‘total take’’ that cannot be considered 

reliable. To do so would require a 

number of assumptions resulting in a 

high degree of uncertainty regarding 

take and there would be very limited 

circumstances in which one could 

assume take occurred. 

Comment 8: The Commission 

recommended that NMFS refrain from 

using the proposed renewal process for 

Vineyard Wind’s authorization and that 

NMFS provide the Commission and 

other reviewers the full 30-day comment 

opportunity. 

NMFS Response: Regarding renewals, 

NMFS issued a one-year IHA with the 

understanding that Vineyard Wind can 

complete the planned work for which 

the IHA authorizes take within the oneyear period. As necessary, NMFS makes 

the decision of whether or not to issue 

a Renewal after one is requested based 

on current information, the best 

available science, and the renewal 

criteria described in the notice of the 

proposed IHA (84 FR 18346; April 30, 

2019). NMFS may issue a one-time, oneyear Renewal IHA if, upon review of the 

request for Renewal, the status of the 

affected species or stocks, and any other 

pertinent information, NMFS 

determines that there are no more than 

minor changes in the activities, the 

mitigation and monitoring measures 

will remain the same and appropriate, 

and the findings in the initial IHA 

remain valid. If and when Vineyard 

Wind were to request a Renewal, NMFS 

would fully consider the best available 

information available at the time of the 

request (2023 or 2024) and whether the 

Renewal criteria could be met. NMFS 

did not include language in the final 

IHA related to Renewal. While this does 

not necessarily preclude a Renewal, we 

think a Renewal is unlikely in this case, 

given the potential for changes over the 

next three years that could affect our 

analyses. 

The Commission expressed concern 

that a renewal for complex projects 

would hinder the ability for the public 

to comment within the 15-day public 

comment period if a renewal is sought 

by the initial IHA Holder. NMFS 

maintains that the public has at least 30 

days to comment on all proposed IHAs, 

with a cumulative total of 45 days for 

IHA Renewals. The Request for Public 

Comments section in the proposed IHA 

made clear that the agency was seeking 

comment on both the initial proposed 

IHA and the potential issuance of a 

Renewal for this project. Because any 

Renewal (as explained in the Request 

for Public Comments section) is limited 

to another year of identical or nearly 

identical activities in the same location 

(as described in the Description of 

Proposed Activity section) or the same 

activities that were not completed 

within the one-year period of the initial 

IHA, reviewers have the information 

needed to effectively comment on both 

the immediate proposed IHA and a 

possible one-year Renewal, should the 

IHA Holder choose to request one. 

While additional documents would be 

required should any such Renewal 

request be submitted, these would be 

limited to documentation that NMFS 

would make available and use to verify 

that the activities are identical to those 

in the initial IHA, are nearly identical 

such that the changes would have either 

no effect on impacts to marine mammals 

or decrease those impacts, or are a 

subset of activities already analyzed and 

authorized but not completed under the 

initial IHA. NMFS would also confirm, 

among other things, that the activities 

will occur in the same location; involve 

the same species and stocks; provide for 

continuation of the same mitigation, 

monitoring, and reporting requirements; 

and that no new information has been 

received that would alter the prior 

analysis. The Renewal request would 

also need to contain a preliminary 

monitoring report, specifically to verify 

that effects from the activities do not 

indicate impacts of a scale or nature not 

previously analyzed. The additional 15- 

day public comment period provides 

the public an opportunity to review 

these few documents, provide any 

additional pertinent information and 


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comment on whether they think the 

criteria for a Renewal have been met. 

Between the initial 30-day comment 

period on these same activities and the 

additional 15 days, the total comment 

period for a Renewal is 45 days. 

In addition to the IHA Renewal 

process being consistent with all 

requirements under section 101(a)(5)(D), 

it is also consistent with Congress’ 

intent for issuance of IHAs to the extent 

reflected in statements in the legislative 

history of the MMPA. Through the 

provision for Renewals in the 

regulations, description of the process 

and express invitation to comment on 

specific potential Renewals in the 

Request for Public Comments section of 

each proposed IHA, the description of 

the process on NMFS’ website, further 

elaboration on the process through 

responses to comments such as these, 

posting of substantive documents on the 

agency’s website, and provision of 30 or 

45 days for public review and comment 

on all proposed initial IHAs and 

Renewals respectively, NMFS has 

ensured that the public is ‘‘invited and 

encouraged to participate fully in the 

agency decision-making process.’’ 

Lastly, in prior responses to 

comments about IHA Renewals (e.g., 84 

FR 52464; October 02, 2019 and 85 FR 

53342, August 28, 2020), NMFS has 

explained how the Renewal process, as 

implemented, is consistent with the 

statutory requirements contained in 

section 101(a)(5)(D) of the MMPA, 

provides additional efficiencies beyond 

the use of abbreviated notices, and, 

further, promotes NMFS’ goals of 

improving conservation of marine 

mammals and increasing efficiency in 

the MMPA compliance process. 

Comment 9: ACK Residents Against 

Turbines (represented by Gatzke Dillon 

& Ballance LLP) stated that NMFS’ 

analysis focused solely on constructionrelated impacts on marine mammals 

(e.g., noise effects from pile-driving) and 

failed to evaluate the extent to which 

the operation of the project could affect 

marine mammals. 

Response: Vineyard Wind’s request 

for authorization to take marine 

mammals was specific to one-year 

during construction of the project. The 

activities considered under this request 

are those associated with pile driving, 

which includes the use of vessels 

necessary to support pile installation. 

As required under 101(a)(5)(D) of the 

MMPA, NMFS assessed the impacts of 

the construction in supporting the 

issuance of an incidental take 

authorization for the construction 

phase. Vineyard Wind has not 

submitted a request for authorization to 

take marine mammals incidental to the 

operational phase of their project. 

Further, the IHA is valid for one-year, 

during which time operations would not 

occur. The MMPA is specific in that 

upon request, NMFS shall authorize, for 

periods of not more than one year, the 

incidental taking of marine mammals 

while engaging in a specified activity (in 

this case construction of the project) 

provided NMFS makes the necessary 

findings. NMFS has made the necessary 

findings (see Negligible Impact Analysis 

and Determination section) and 

therefore, in accordance with the 

MMPA, and upon request by Vineyard 

Wind, NMFS has issued a 1-year IHA 

for the take of marine mammals 

incidental to construction of the 

Vineyard Wind Project. 

In addition to our analysis under the 

MMPA related to the specified activity 

(i.e., construction of the project), NMFS 

Greater Atlantic Regional Fisheries 

Office (GARFO) issued a Biological 

Opinion on September 11, 2020 that 

fully evaluated the effects of the 

construction, operation, maintenance, 

and decommissioning of the Vineyard 

Wind Project on ESA-listed species, 

including marine mammals. The 

Biological Opinion includes an 

assessment of the potential effects from 

WTG operations and concluded that 

noise from turbines operations is 

expected to be at or below ambient 

levels at relatively short distances from 

the foundations and that if ESA-listed 

marine mammals are exposed to 

operational noise, the effects on ESAlisted whales are considered 

insignificant (i.e., so minor that the 

effect cannot be meaningfully evaluated 

or detected). Supporting activities such 

as vessel and aircraft operation would 

also occur during operation. The 2020 

Biological Opinion concluded that ESAlisted marine mammals are either not 

likely to respond to vessel noise or are 

not likely to measurably respond in 

ways that would significantly disrupt 

normal behavior patterns that include, 

but are not limited to, breeding, feeding 

or sheltering. Therefore, the effects of 

vessel noise on ESA-listed marine 

mammals were also deemed to be 

insignificant. A similar finding was 

made for exposure to aircraft noise. 

In addition, NMFS is a cooperating 

agency on BOEM’s EIS for the project 

and a co-signatory to the associated 

Record of Decision (ROD), issued on 

May 10, 2021. Under the National 

Environmental Policy Act (NEPA), 

BOEM, in coordination with NMFS, 

evaluated the direct, indirect, and 

cumulative effects of the proposed 

action which include construction, 

operation and decommissioning. See 

National Environmental Policy Act 

section below. 

Comment 10: ACK Residents Against 

Turbines stated that NMFS’ analysis 

does not assess cumulative impacts on 

marine mammals, when considered in 

conjunction with other threats to marine 

mammals, including those posed by the 

other proposed wind farms adjacent to 

the Vineyard Wind leasehold. 

Response: Neither the MMPA nor 

NMFS’ codified implementing 

regulations specifically call for 

consideration of other unrelated 

activities and their impacts on marine 

mammal populations. 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. Section 

101(a)(5)(D) of the MMPA requires 

NMFS to modify, suspend, or revoke the 

IHA if it finds that the activity is having 

more than a negligible impact on the 

affected species or stocks of marine 

mammals. NMFS will closely monitor 

baseline conditions before and during 

the period when the IHA is effective and 

will exercise this authority if 

appropriate. 

Section 101(a)(5)(D) of the MMPA 

requires NMFS to make a determination 

that the take incidental to a ‘‘specified 

activity,’’ as opposed to other activities 

not specified in the request, will have a 

negligible impact on the affected species 

or stocks of marine mammals. NMFS’ 

implementing regulations require 

applicants to include in their request a 

detailed description of the specified 

activity or class of activities that can be 

expected to result in incidental taking of 

marine mammals. 50 CFR 216.104(a)(1). 

Thus, the ‘‘specified activity’’ for which 

incidental take coverage is being sought 

under section 101(a)(5)(D) is generally 

defined and described by the applicant. 

Here, Vineyard Wind was the applicant 

for the IHA, and we are responding to 

the specified activity as described in 

their application (and making the 

necessary findings on that basis). 

Through the response to public 

comments in the 1989 implementing 

regulations, we also indicated (1) that 

NMFS would consider cumulative 

effects that are reasonably foreseeable 


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when preparing a NEPA analysis, and 

(2) that reasonably foreseeable 

cumulative effects would also be 

considered through the section 7 

consultation for ESA-listed species. In 

this case, cumulative impacts have been 

adequately addressed under NEPA in 

BOEM’s Environmental Impact 

Statement regarding Vineyard Wind’s 

proposed project. NMFS is a 

cooperating agency under NEPA on that 

EIS and has adopted the Final 

Environmental Impact Statement (FEIS) 

for purposes of issuing the IHA to 

Vineyard Wind. In addition, NMFS was 

a signatory to the associated Record of 

Decision issued on May 10, 2021. 

Separately, NMFS engaged in intraagency consultation under section 7 of 

the ESA, which determined that NMFS’ 

action of issuing the IHA is not likely to 

adversely affect listed marine mammals 

or their critical habitat. The resulting 

Biological Opinion considered activities 

both within and outside the scope of 

NMFS’ IHA (e.g., operation and 

decommissioning) and included Terms 

and Conditions aimed at reducing the 

potential impacts of the project on 

marine mammals, including NARWs. 

Comment 11: ACK Residents Against 

Turbines stated that the analysis of 

impacts to marine mammals from vessel 

strikes is inadequate and is based on an 

assumption that mitigation to prevent 

vessel strikes will be 100 percent 

effective. 

Response: Vineyard Wind did not 

request authorization for takes from 

vessel strikes and NMFS has not 

authorized any. NMFS analyzed the 

potential for vessel strikes to occur 

during construction and determined 

that vessel strike is unlikely to occur 

(not that there is no collision threat at 

all, as suggested by AKC), based on a 

combination of the low probability of a 

ship strike generally, and the extensive 

mitigation and monitoring included. 

The IHA also includes a provision that 

NMFS may modify, suspend or revoke 

the IHA if the holder fails to abide by 

the conditions prescribed herein 

(including, but not limited to, failure to 

comply with monitoring or reporting 

requirements), or if NMFS determines: 

(1) The authorized taking is likely to 

have or is having more than a negligible 

impact on the species or stocks of 

affected marine mammals or (2) the 

prescribed measures are likely not or are 

not effecting the least practicable 

adverse impact on the affected species 

or stocks and their habitat. We find that 

the prescribed measures are effecting 

the least practicable adverse impact on 

marine mammals; however, should an 

unanticipated ship strike occur (to any 

marine mammal), the IHA could be 

modified, suspended, or revoked. 

Vineyard Wind is planning on 

running a limited number of crew 

transfer vessels during construction and 

proposed a very conservative suite of 

mitigation measures related to vessel 

strike avoidance, including measures 

specifically designed to avoid impacts 

to right whales. Section 4(l) in the IHA 

contains a suite of non-discretionary 

requirements pertaining to ship strike 

avoidance, including vessel operational 

protocols and monitoring. Construction 

of the project will be based out of New 

Bedford, Massachusetts, which is a 50 to 

60-mile (80 to 97 kilometers (km)) trip 

by vessel to the WDA. Vineyard Wind 

has indicated that during construction, 

the number of crew transfer vessels will 

be limited to two and that each of those 

vessels will make only one round trip 

per day (for a total of two round trips). 

To date, NMFS is not aware of a wind 

industry vessel (e.g., marine site 

characterization survey vessel or wind 

energy vessels used in European wind 

project construction and operation) 

reporting a ship strike. When 

considered in the context of the low 

overall probability of any vessel strike 

given the limited additional vessel 

traffic, the comprehensive visual and 

PAM monitoring required in transit 

lanes, and that construction would 

occur during the time of year when 

NARW density is lowest, NMFS 

believes these measures are adequately 

protective to avoid ship strike; thus, we 

did not authorize take from ship strike. 

These measures are described fully in 

the Mitigation section below, and 

include, but are not limited to training 

for all vessel observers and captains, 

daily monitoring of the NARW Sighting 

Advisory System, WhaleAlert app, and 

USCG Channel 16 for whale presence 

awareness, communications protocols if 

whales are observed by any Vineyard 

Wind personnel, vessel speed 

restrictions at certain times of year or if 

certain monitoring requirements are not 

met, vessel operational protocols should 

any marine mammal be observed, and 

visual and passive acoustic monitoring 

to clear transit routes and WDA of 

NARWs. 

We have determined the mitigation 

measures in the IHA provide the means 

of effecting the least practicable adverse 

impact on marine mammal species or 

stocks and their habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance, and on the availability of 

such species or stock for subsistence 

uses. 

Comment 12: ACK Residents Against 

Turbines stated that the proposed 

mitigation measures are ‘‘inadequate 

and unenforceable’’ and that the 

proposed seasonal moratorium on pile 

driving (i.e., from January through 

April) is ‘‘far too short.’’ 

Response: The mitigation measures 

included in the final IHA, including 

seasonal closures, are adequate and 

appropriate for the protection of 

NARWs and are enforceable. Despite the 

commenters’ suggestion, NMFS does not 

intend to rely on the wind energy 

industry to police itself. If Vineyard 

Wind fails to implement any mitigation 

measure in the IHA and an 

unauthorized take occurs, Vineyard 

Wind will be in violation of the MMPA. 

NOAA’s Office of Law Enforcement is 

responsible for investigating all 

violations of the MMPA, including any 

unauthorized takes that may occur 

during this project. 

In concluding the proposed seasonal 

pile driving moratorium of January 

through April is ‘‘far too short’’ the 

commenters incorrectly state that 

NARW densities are higher in May, 

June, and December than in January. 

However, as shown in Table 9, NARW 

densities during the months of the 

seasonal closure identified in the IHA 

(January: 0.510 per 100 km2; February: 

0.646 per 100 km2; March: 0.666 per 100 

km2; April: 0.599 per 100 km2) are 

higher than in May (0.204 per 100 km2), 

June (0.016 per 100 km2) and December 

(0.274 per 100 km2)) and, in fact, are by 

far the highest in those four months 

compared to any other months of the 

year (December has the next highest 

density at 0.274 per 100 km2). In 

addition, Vineyard Wind has agreed to 

not pile drive in December unless 

extraordinary circumstances arise 

necessitating pile driving in December, 

and this is notified to and approved by 

BOEM. This measure is included in the 

IHA. Thus, the seasonal moratorium in 

the IHA minimizes the exposure of right 

whales to pile driving noise while 

allowing the project to move forward 

(i.e., is practicable). In addition to the 

seasonal moratorium, enhanced 

mitigation measures for right whales 

(which are fully described in the 

Mitigation section below) include, but 

are not limited to, the following for 

times of year when pile driving may 

occur: 

• Pile driving must be delayed upon 

visual observation of a NARW by 

protected species observers (PSOs) on 

the pile driving vessel at any distance 

from the pile; 

• Pile driving must be delayed upon 

a confirmed PAM detection of a NARW, 

if the detection is confirmed to have 

been located within the relevant PAM 

clearance zone; 


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• From May 1 through May 14 and 

November 1 through December 31 an 

extended clearance zone of 10 km is 

established for NARWs, monitored 

using real-time PAM, and an aerial or 

vessel-based survey must also be 

conducted that covers the 10 km 

extended clearance zone; 

• From May 1 through May 14 and 

November 1 through December 31, if a 

NARW is confirmed via visual 

observation or PAM within the 10 km 

extended clearance zone, pile driving 

must be delayed or shut down until the 

following day; and 

• Pile driving must shut down, if 

feasible, if a marine mammal enters a 

designated shut down zone. 

The commenters do not provide any 

recommendations regarding additional 

or different mitigation measures, or 

specifically explain why they believe 

the measures are unenforceable. NMFS 

has determined the mitigation measures 

in the IHA provide the means of 

effecting the least practicable adverse 

impact on marine mammal species or 

stocks and their habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance, and on the availability of 

such species or stock for subsistence 

uses (see Mitigation section below). 

Comment 13: AOLA commented that 

the IHA should consider the entire life 

cycle of the wind turbine generators 

(WTGs) and all potential sources of take 

(i.e., acoustics, vessel strike, habitat 

changes, etc.) applicable to those 

phases. 

Response: As described above 

(Comment 9), we analyzed the potential 

for the take of marine mammals to occur 

during pile driving activities associated 

with the construction phase of the 

project, as identified in Vineyard 

Wind’s application. We have therefore 

authorized the requested take as a result 

of the construction phase of the project, 

specifically pile driving activities. 

However, we note that the potential 

impacts of other phases of the project 

are fully analyzed in BOEM’ Final EIS, 

which NMFS has adopted to satisfy our 

obligations under NEPA (see National 

Environmental Policy Act section, 

above) as well as NMFS 2020 Biological 

Opinion associated with this action for 

ESA-listed species. Vineyard Wind has 

the opportunity to submit an IHA 

application for operation or 

decommissioning activities, if 

appropriate. 

Comment 14: AOLA requested that 

NMFS consider recent survey data and 

any pre-construction data being 

collected in the analysis of risk to 

marine mammals. 

Response: We have relied on the best 

available scientific evidence in our 

analysis of potential impacts of the 

project on marine mammals and the 

development of take estimates, 

including recent survey data. For 

example, where survey data indicated 

take estimates may be higher than those 

modeled, we adjusted to represent the 

higher potential for take. We note that 

after the proposed IHA was published, 

updated NARW density data (Roberts et 

al., 2020) became available that 

incorporated more recent survey data 

(through 2018) and that for the first time 

included data from the 2011–2015 

surveys of the Massachusetts and Rhode 

Island (M/RI) Wind Energy Areas (WEA) 

(Kraus et al. 2016) as well as the 2017– 

2018 continuation of those surveys, 

known as the Marine Mammal Surveys 

of the Wind Energy Areas (MMS–WEA) 

(Quintana et al., 2018). As this data 

represented new information that was 

deemed the best available information 

on NARW density in the project area, 

we based the exposure modeling for 

right whales in the final IHA on this 

new density data, for all possible 

construction scenarios, to confirm 

whether the incorporation of the new 

density data would result in a change to 

modeled exposure numbers. This is 

described in more detail in the 

Estimated Take section below. In 

addition, Pace et al. (2021) describes 

that the stock abundance of NARW is 

lower than that considered when the 

proposed IHA was published and we 

have evaluated that new information. In 

developing the final IHA, NMFS also 

consulted the NARW sighting database, 

WhaleMap, which aggregates both 

visual and acoustic sighting information 

from 2010 to present day. Contributors 

to the database include the Department 

of Fisheries and Oceans Canada, 

Transport Canada, NOAA’s Protected 

Species Branch, Woods Hole 

Oceanographic Institution/ 

robots4whales, New England Aquarium, 

Center for Coastal Studies, Candadian 

Whale Institute, Mingan Island Cetacean 

Study, Ocean Tracking Network, 

Dalhouise University, University of New 

Brunswick, and Nike Hawkins 

Photography, making it an extensive 

database and useful tool in identifying 

spatial and temporal occurrence of 

whales as well as locations and timing 

of management actions such as 

implementation of Dynamic 

Management Areas (DMAs). 

NMFS invests heavily in conserving 

NARWs and, in analyzing the impacts to 

NARWs from project construction, has 

considered and leveraged the wealth of 

data collected by NOAA and partners to 

make conservative management 

decisions in consideration of our 

statutory authority under the MMPA. 

Despite the changes in density and 

population numbers noted above, when 

the proposed IHA was issued, the status 

of NARWs was critically endangered 

and this remains true today. We have 

applied the best available (and most 

recent) science and have made the 

determinations necessary to issue the 

IHA. 

Comment 15: AOLA commented that 

it was concerned that the real-time PAM 

system has not yet been developed and 

will only be ‘‘used to inform visual 

monitoring during construction; no 

mitigation actions would be required on 

PAM detection alone’’ and asked 

whether the IHA would be contingent 

on vetting the design and operation of 

the currently hypothetical system by 

experts in the field. 

Response: As described in the 

Mitigation section, the real-time PAM 

system will not only be used to inform 

visual monitoring, but will also trigger 

required mitigation actions under 

certain circumstances. For instance, as 

described above and as described more 

fully under the Mitigation section 

below, from May 1 through May 14, an 

extended clearance zone of 10 km must 

be established for NARWs using realtime PAM, and any detection of a 

NARW via real-time PAM within that 10 

km clearance zone would trigger 

immediate delay or shutdown of pile 

driving. Regarding the request that the 

design of the real-time PAM system be 

vetted by experts in the field, while the 

commenters do not provide any specific 

recommendations regarding who should 

be consulted on the design and 

operation, we note that the IHA requires 

that a Passive Acoustic Monitoring Plan, 

which must describe all proposed PAM 

equipment, procedures, and protocols 

including those related to real-time 

PAM, must be submitted to NMFS for 

review and approval at least 90 days 

prior to the planned start of pile driving. 

Comment 16: AOLA recommended 

NOAA or BOEM create a third-party 

certification program for PSOs, similar 

to the system used for fishery observers, 

which sets universal standards for all 

wind projects and requires reporting 

after each construction activity/trip. 

Response: At this time, NMFS is not 

creating a third-party certification 

program for PSOs. Each IHA requires all 

PSOs must be approved by NMFS, and 

that Vineyard Wind must submit PSO 

resumes to NMFS for approval at least 

60 days prior to commencing pile 

driving activity. A full list of 

qualifications required of PSOs is 

included in Vineyard Wind’s IHA. For 


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example, PSO must have a degree in 

biological sciences and experience and/ 

or training working as a PSO. The lead 

PSO must have experience as a PSO in 

an offshore environment. All PSO 

qualification requirements can be found 

in the Monitoring and Reporting section 

and the issued IHA. BOEM and NMFS 

are also working on developing 

consistent data reporting requirements 

for the offshore wind industry. 

Comment 17: AOLA recommended 

that all pile driving activity should 

cease when a NARW is observed within 

5 miles (8 km) of a pile being driven, 

and that all shutdowns called for by a 

PSO should be reported to NOAA daily 

with detailed explanation when 

shutdowns were not deemed feasible. 

AOLA also recommended that further 

mitigation should be immediately 

required if NMFS finds continued pile 

driving to cause unauthorized risk to 

marine mammals. 

Response: The commenters’ 

recommendation for a 5 mile (8 km) 

shutdown zone is not supported or 

warranted. First, we have already 

included a requirement in the IHA that 

pile driving be delayed upon a visual 

detection of a NARW by PSOs on the 

pile driving platform at any distance 

from the pile, at any time of year. In 

addition, as noted above and as 

described fully in the Mitigation section 

below, the IHA also requires a 10 km 

clearance zone (larger than the zone 

recommended by the commenters) 

during the seasons when NARW 

abundance is greatest (November– 

December (although VW would avoid 

pile driving in December except in 

unforeseen, extraordinary 

circumstances) and May 1 through May 

14). Further, during these periods, if a 

NARW is detected within the 10 km 

extended clearance zone (via visual 

observation or PAM), pile driving must 

be delayed. Pile driving must not 

resume until the following day, or, until 

a follow-up aerial or vessel-based survey 

is able to confirm all right whale(s) have 

departed the 10 km extended clearance 

zone, as determined by the lead PSO. 

NMFS also added a minimum shutdown 

distance of 3.2 km, which is a 

conservative estimate to the Level A 

harassment isopleth, more than half the 

distance to the Level B harassment 

isopleth for NARWs, and is a practicable 

shutdown zone. 

Regarding the recommendation that 

all shutdowns called for by a PSO 

should be reported to NOAA daily with 

detailed explanation when shutdowns 

were not deemed feasible, we have 

determined that this is not necessary as 

the IHA requires weekly and monthly 

monitoring reports which will include a 

summary of any mitigation-related 

actions (e.g., delay, shutdown, etc.) 

called for by PSOs but not implemented, 

and the reason why the mitigationrelated action was not implemented. 

Regarding the recommendation that 

further mitigation should be 

immediately required if NMFS finds 

continued pile driving to cause 

unauthorized risk to marine mammals, 

we note that the IHA explicitly 

identifies that the taking by serious 

injury or death of any of the species for 

which take is authorized or any taking 

of any other species of marine mammal 

is prohibited and may result in the 

modification, suspension, or revocation 

of the IHA. 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 Level B 

harassment zone, Vineyard Wind is 

required to delay or shutdown pile 

driving activities (when technically 

feasible) to avoid unauthorized take. 

Further, the IHA may be modified, 

suspended, or withdrawn if Vineyard 

Wind fails to abide by the conditions 

prescribed in the IHA, or, if NMFS 

determines that the authorized taking is 

having more than a negligible impact on 

the species or stock of affected marine 

mammals. 

Comment 18: AOLA recommended 

that the IHA require a mandatory 10 

nautical miles per hour (knots; kts) 

(18.52 nautical km per hour) speed 

restriction on all vessels in all leased 

areas of the RI/MA WEA when right 

whales are present. 

Response: As noted above (see 

Comment 11) and as described fully in 

the Mitigation section below, we have 

included a suite of mitigation measures 

related to vessel speed to minimize 

potential impacts to marine mammals 

and to NARWs in particular. The 

mitigation measures in the IHA 

prescribe the 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. 

Comment 19: The ENGOs 

recommended that NMFS: (1) Fund 

analyses of recently collected sighting 

and acoustic data for all data-holders; 

and (2) continue to fund and expand 

surveys and studies to improve our 

understanding of distribution and 

habitat use of marine mammals off 

Rhode Island and Massachusetts, 

including the Project area, as well as the 

broader region, in the very near future. 

Response: We note that this is a 

general comment not specific to 

Vineyard Wind’s IHA. NMFS executes, 

funds, and coordinates several marine 

mammal studies throughout the 

Northeast to improve our understanding 

of marine mammals distribution and 

habitat use. The primary entity charged 

with doing so is the Northeast Fisheries 

Science Center; however, NMFS Office 

of Protected Resources and GARFO also 

contribute to studies on marine 

mammals. These are continuing ongoing 

efforts. For example, through the 

Atlantic Marine Assessment Program for 

Protected Species (AMAPPS), the 

NEFSC is developing models and tools 

to provide seasonal abundance 

estimates that incorporate 

environmental habitat characteristics for 

marine mammals and other protected 

species in the western North Atlantic 

Ocean, including Rhode Island and 

Massachusetts. 

With respect to funding analyses of 

recently collected sighting and acoustic 

data for all data-holders, the ENGOS did 

not identify which data holders or 

which data they are referring to. 

Because data on marine mammals in the 

project area are collected in different 

ways (e.g., from PSOs, systematic aerial 

surveys, anecdotal sightings, stranding 

reports); it is not possible to integrate all 

the data on marine mammals. Therefore, 

it is unclear what type of analyses the 

ENGOs are referring to. However, NMFS 

is committed to improving our 

understanding of distribution and 

habitat use of marine mammals. NMFS 

and its many partners (including the 

government of Canada) already, and 

continue to, submit all survey reports 

(effort and sightings) to the NARW 

Consortium Database maintained by the 

University of Rhode Island for inclusion 

in the sightings database and those with 

photographs are also submitted to the 

New England Aquarium for integration 

into a unified photo-identification 

catalog. Most field research teams match 

their photographs to this catalog during 

their field efforts. In addition, NMFS is 

developing systematic data collection 

methods, where possible, to maximize 

the use of those data in conservation 

and management decisions. For 

example, with funding from the Marine 

Mammal Commission, NMFS is 

currently working with the New 

England Aquarium to analyze offshore 

wind site characterization survey PSO 

data and how those data compare to 

more systematic, line transect surveys. 

The results of this project will include 

recommendations about how PSO data 

can be collected to provide the greatest 

conservation value for protected species 

and recommendations about how PSO 

data can be utilized for regulatory/ 


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management and scientific purposes. 

More information on this project can be 

found at https://www.mmc.gov/grantsand-research-survey/grant-awards/ 

2020-grant-awards/. 

Comment 20: Regarding NMFS’ 

requirement that pile driving be 

postponed until the following day if a 

NARW is detected by real-time PAM or 

a vessel-based or aerial survey within 10 

km of the pile driving location from 

May 1–May 14, the ENGOs 

recommended NMFS remove the 

exception that allows the activity to 

resume the same day if an aerial or 

vessel-based survey could confirm that 

the extended clearance zone is free of 

right whales. They assert that as many 

NARW sightings go unseen, resuming 

the same day is too risky. 

Response: NMFS disagrees that PAM 

and a visual survey (either vessel or 

aerial) would not result in adequate 

protections for NARWs. First, the 

ENGOs do not acknowledge there will 

be additional monitoring efforts. PSOs 

at the pile driving vessel will monitor 

for NARWs, Vineyard Wind is required 

to monitor the NARW sighting network, 

USCG Channel 16, etc., and all Vineyard 

Wind vessels will have observers. The 

project area is a known foraging area but 

it is also a migratory corridor and we 

anticipate NARWs may remain in the 

area or pass through rather quickly. If a 

whale(s) remains, it is likely to be 

detected by PAM, vessel or aerial 

surveys, or the pile driving PSO in 

which case pile driving would not 

commence. If it is migrating, there is no 

reason for pile driving to be delayed an 

additional day as animals may move 

quickly through the area. For example, 

in 2000, one whale was photographed in 

Florida waters on January 12th, then 

again 11 days later (January 23rd) in 

Cape Cod Bay, less than a month later 

off Georgia (February 16th), and back in 

Cape Cod Bay on March 23rd, 

effectively making the round-trip 

migration to the Southeast and back at 

least twice during the winter season 

(Brown and Marx 2000). Further, if any 

animal is missed and pile driving does 

begin while the NARW is within the 

Level B harassment zone, we have 

analyzed the impacts to that individual 

and have concluded any impacts would 

be minor in that no fitness 

consequences are likely (see Negligible 

Impact Analysis and Determination 

section). We have also identified that 

pushing any pile driving to times when 

NARWs are more likely to be present in 

greater numbers would result in 

unnecessary impacts as the potential for 

take is higher and pile driving could 

occur over a longer timeframe. 

Comment 21: The ENGOs 

recommended that PAM be required for 

60 minutes prior to commencement of 

pile driving. 

Response: We agree with the 

recommendation and have incorporated 

this requirement in the IHA. The IHA 

requires that acoustic monitoring begin 

at least 60 minutes prior to initiation of 

pile driving. See the Mitigation section 

below for details. 

Comment 22: The ENGOs 

recommended that the mitigation 

requirements include NARW acoustic 

detections as a shutdown trigger. 

Response: We agree with the 

recommendation and have incorporated 

this requirement in the IHA. The IHA 

requires that pile driving be delayed or 

shut down upon a confirmed acoustic 

detection of a NARW within the 

relevant exclusion zone. See the 

Mitigation section and Table 16 for 

details. 

Comment 23: The ENGOs 

recommended that between November 1 

and May 14, upon a confirmed sighting 

of a NARW, vessels should be required 

to reduce their speed to 10 kts or less 

for the remainder of the day, and to use 

real-time PAM in order to more 

accurately detect the presence of right 

whales. They also recommended PAM 

be used in transit corridors. 

Response: The IHA includes several 

scenarios under which vessels are 

required to travel at 10 kts or less and 

requires use of real-time PAM at all 

times. The IHA requires that from 

November 1 through May 14, all vessels, 

regardless of size, must travel at less 

than 10 kts within the WDA. In the 

transit corridor, crew transfer vessels 

must reduce speed to 10kts if the PAM 

system within the corridor detects a 

NARW or one is sighted from the vessel. 

Further, any vessel traveling over 10 kts 

is required to have a dedicated 

observer(s) on board at all times. Crew 

transfer vessels traveling within any 

designated DMA must travel at 10 kts or 

less, unless NARWs are clear of the 

transit route and WDA for two 

consecutive days, as confirmed by 

vessel based surveys conducted during 

daylight hours and real-time PAM, or, 

by an aerial survey, conducted once the 

lead aerial observer determines 

adequate visibility. If confirmed clear by 

one of the measures above, vessels 

transiting within a DMA must employ at 

least two visual observers to monitor for 

NARWs. Vineyard Wind is required to 

submit a Vessel Strike Avoidance Plan 

to NMFS for approval no later than 90 

days prior to utilizing vessels which 

will include details regarding 

monitoring and the PAM systems in 

both the WDA and transit corridors. We 

note submission of such a plan was not 

included in the proposed IHA. 

Comment 25: The ENGOs 

recommended that the IHA require 

reporting of NARW sightings to NMFS 

within 2 hours of the sighting. 

Response: We agree with the 

recommendation that NARW sightings 

be reported as soon as possible to 

NMFS. The IHA requires that if a 

NARW is observed at any time by PSOs 

or personnel on any project vessels, 

during any project-related activity or 

during vessel transit, Vineyard Wind 

must report sighting information to the 

NMFS NARW Sighting Advisory 

System, the U.S. Coast Guard via 

channel 16, and WhaleAlert app as soon 

as feasible but no longer than 24 hours 

after the sighting. We anticipate that 

most sightings will be reported within 

the 2 hour timeframe recommended by 

the ENGOs; however, we also recognize 

that communications at sea can 

sometimes be interrupted (e.g., poor 

cellular or satellite service); therefore, 

we are allowing 24 hours maximum 

(with the caveat they report a sighting 

as soon as feasible) in case such. We 

note that given the gravity of a situation 

associated with an unauthorized take 

from a ship strike, the IHA requires 

Vineyard Wind to report any such 

taking to NMFS immediately, dedicating 

all resources to ensure that incident is 

reported. Such dedication, including 

immediately ceasing activities (as 

required if a ship strike occurs) is not 

necessary for a sighting report. 

See the Mitigation section below for 

details. 

Comment 26: The ENGOs 

recommended that the take analysis be 

updated to reflect the best available 

scientific information to account for 

evidence supporting the importance of 

the waters off Massachusetts and Rhode 

Island as NARW foraging habitat, and to 

more accurately reflect times that right 

whales are likely to be present in the 

area. The ENGOs further recommended 

that NMFS consider any initial data 

from state monitoring efforts, passive 

acoustic monitoring data, opportunistic 

marine mammal sightings data, and 

other data sources, and to take steps to 

develop a dataset that more accurately 

reflects marine mammal presence so it 

is in hand for future authorizations. 

Response: As noted above, updated 

NARW density data (Roberts et al., 

2020) that incorporated more recent 

survey data and that for the first time 

included survey data from the MA and 

RI/MA WEAs (Kraus et al. 2016; 

Quintana et al., 2018) became available 

after the proposed IHA was published. 

The exposure modeling for NARWs in 

the final IHA was updated to 


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incorporate this more recent and more 

accurate density data which reflects 

year-round presence in the project area 

(albeit highest densities are when pile 

driving would not occur). Habitat use is 

indirectly considered in density 

estimates as the estimates are based on 

sighting data and those data would 

reflect if animals are remaining (i.e., 

present) within an area for prolonged 

periods; thereby, increasing density. If 

animals are remaining in the area, it can 

be assumed they are engaging in critical 

behaviors such as foraging. We note; 

however, habitat use is directly 

considered in our Negligible Impact 

Analysis and Determination section. We 

have used the best scientific information 

available as the basis for generating take 

numbers for all marine mammal species. 

This is described in more detail in the 

Estimated Take section below. In our 

negligible impact analysis (see 

Negligible Impact Analysis and 

Determinations section), we identify 

how habitat use is factored into our 

determinations given the type and 

amount of take authorized. 

Regarding the recommendation to 

consider initial data from other 

monitoring efforts and to take steps to 

develop a dataset that more accurately 

reflects marine mammal presence so it 

is in hand for future authorizations, we 

considered all data sources and did not 

solely rely upon density data when 

estimating take as the ENGOs suggested 

we did. For example, we increased the 

amount of take authorized for some 

species from the modelling results in 

consideration of HRG survey monitoring 

data previously collected by Vineyard 

Wind. In other cases, when model 

results suggested take was less than 

average group size, take was increased. 

NMFS will continue to rely on the best 

available scientific information in both 

the analysis of potential impacts to 

marine mammals and in the 

development of exposure estimates and 

our findings. 

Comment 27: The ENGOs 

recommended that vessel strikes be 

incorporated into the take analysis. The 

ENGOs also recommended that the 

potential for vessel strike resulting from 

displacement as a result of projectrelated noise be considered. 

Response: NMFS analyzed the 

potential for vessel strikes to occur 

during Vineyard Wind’s construction 

and determined that it is not likely to 

occur. We do not authorize any take of 

marine mammals by vessel strike 

incidental to Vineyard Wind’s planned 

construction activities under this IHA. 

Also as described under Comment 10 

above, we have included a conservative 

suite of mitigation measures related to 

vessel strike avoidance, including 

measures specifically designed to avoid 

impacts to NARWs. These measures 

(e.g., reduced vessel speed) also provide 

protection for other marine mammals. 

All ship strike avoidance measures are 

described fully in the Mitigation section 

below. 

Regarding the commenters’ 

recommendation to consider 

displacement as a result of projectrelated noise to result in vessel strike, 

we have considered this possibility and 

have concluded that while short-term 

displacement from the project area is a 

possibility, there is no evidence to 

suggest that any short-term 

displacement would result in a change 

to the likelihood of vessel strike 

occurring for any marine mammal 

species. The amount of vessels utilized 

by Vineyard Wind during the effective 

period of the IHA results in only a small 

increase in vessel traffic over baseline 

(e.g., two crew transfer vessels making 

one round trip per day). 

Comment 28: The ENGOs 

recommended that NMFS avoid 

describing potential changes resulting 

from offshore wind development as 

‘‘beneficial,’’ as it is unclear what 

implications these changes may have on 

the wider ecosystem, and instead use 

terminology such as ‘‘increase,’’ 

‘‘decrease,’’ and ‘‘change.’’ 

Response: In the proposed IHA notice, 

NMFS identified that impacts from the 

permanent structures (i.e., WTGs) on 

marine mammal habitat may be 

beneficial as a result of increased 

presence of prey due to the WTGs acting 

as artificial reefs (Russell et al., 2014). 

However, we recognize, the long-term 

impact from foundation presence is 

outside the scope of the effective period 

of the IHA and that this analysis is more 

appropriate in the context of the ESA 

consultation and NEPA analysis as it 

relates to marine mammal habitat. 

Regarding the EIS, we agree that the 

long term ecosystem effects from 

offshore wind development in the 

Northwest Atlantic are still being 

evaluated and that those ecosystem 

effects are likely to be complex. 

Accordingly, we acknowledge that 

documentation of a change that may 

appear ‘‘beneficial’’ (i.e., an increased 

number of a particular species 

documented within a wind 

development area) does not necessarily 

equate to overall beneficial impacts to a 

species or ecosystem. BOEM’s FEIS 

describes impacts to coastal and benthic 

habitats as being adversely negligible to 

moderate, as defined in the FEIS. That 

said, just as there are potential negative 

impacts to marine mammals from noise 

associated with offshore wind 

construction, there are also potential 

benefits that may result from the 

presence of wind turbine foundations in 

marine mammal habitat. Thus, BOEM 

also concluded that some impacts from 

the Project can be moderately beneficial 

for those habitats. Thus, while we 

acknowledge that there is currently 

insufficient information to draw a 

conclusion regarding longer term 

impacts to marine mammals, we 

disagree with the commenters that the 

term ‘‘beneficial’’ should be avoided 

altogether when describing potential 

outcomes of offshore wind for marine 

mammals. 

Comment 29: The ENGOs 

recommended that NMFS’ negligible 

impact determination consider potential 

cumulative impacts arising from the 

construction of the proposed project and 

additional offshore wind projects that 

are expected to be installed in the 

future. Specifically, they recommended 

a cumulative effects analysis include 

consideration of repeated disturbance 

from the same activity over time and 

space, interactions between different 

types of potential impacts, multiple 

wind energy development projects, and 

the broader context of other ocean uses 

within the leasing area and that may be 

encountered by transboundary and 

migratory species during their life 

cycles. 

Response: NMFS agrees that 

consideration of repeated disturbance 

from the same activity (as identified in 

the application) over time and space 

should be incorporated into a negligible 

impact determination and we have done 

so as the impact of the specified activity 

on marine mammals must be considered 

in accordance with 101(a)(5)(D) of the 

MMPA. However, neither the MMPA 

nor NMFS’ codified implementing 

regulations require NMFS to consider 

impacts from other unrelated activities 

(such as the construction and operation 

of additional wind farms) and their 

impacts on populations. 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 

current stressors. In addition, we 

consider these factors as relevant 

contextual elements of the analysis. See 


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the Negligible Impact Analysis and 

Determinations section of this notice for 

full detail. 

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, and will not result in 

an unmitigable adverse impact on the 

availability of marine mammals for 

taking for subsistence uses. NMFS’ 

implementing regulations require 

applicants to include in their request a 

detailed description of the specified 

activity that can be expected to result in 

incidental taking of marine mammals 

(50 CFR 216.104(a)(1)). Thus, the 

‘‘specified activity’’ for which incidental 

take coverage is being sought under 

section 101(a)(5)(D) is generally defined 

and described by the applicant. Here, 

Vineyard Wind is the applicant and we 

are responding to the specified activity 

as described in their petition (and 

making the necessary findings on that 

basis). 

Our 1989 final rule for the MMPA 

implementing regulations also 

addressed public comments regarding 

cumulative effects from future, 

unrelated activities. There we stated 

that such effects are not considered in 

making findings under section 101(a)(5) 

concerning negligible impact. We 

indicated (1) that NMFS would consider 

cumulative effects that are reasonably 

foreseeable when preparing a NEPA 

analysis, and (2) that reasonably 

foreseeable cumulative effects would 

also be considered under section 7 of 

the ESA for ESA-listed species. 

In addition to above considerations, 

BOEM’s 2021 FEIS, of which NMFS was 

a cooperating agency, NMFS adopted, 

and was a co-signatory to the joint 

Record of Decision, analyzes cumulative 

impacts from the construction and 

operation of the Vineyard Wind Project 

when combined with other past, present 

and reasonably foreseeable future 

actions, including development of other 

wind energy areas and other stressors 

(e.g., ship strike, entanglement, climate 

change). That analysis included an 

assessment of whether the predicted 

level and amount of take from 

construction would have meaningful 

biological consequences at a species or 

population level. NMFS, therefore, 

assessed and integrated other contextual 

factors (e.g., species’ life history and 

biology, distribution, abundance, and 

status of the stock; mitigation and 

monitoring; characteristics of the 

surveys and sound sources) in 

determining the overall impact of 

issuance of the IHA to Vineyard Wind. 

While exposure to noise during 

construction could temporarily affect 

marine mammals, the extensive 

mitigation (including those measures 

designed to avoid vessel strike) would 

minimize the severity and amount of 

harassment such that no meaningful 

biological consequences would occur. 

Similar findings were made in NMFS’ 

2020 Biological Opinion related to this 

action. The effects of the action 

analyzed in the 2020 Biological Opinion 

reflect all consequences to listed species 

or critical habitat that are caused by the 

proposed action, including the 

consequences of other activities that are 

caused by the proposed action. It 

considered whether the action will 

result in reductions in reproduction, 

numbers or distribution of these species 

and then considered whether any 

reductions in reproduction, numbers or 

distribution resulting from the action 

would reduce appreciably the 

likelihood of both the survival and 

recovery of these species. The Biological 

Opinion concluded the proposed action, 

which included NMFS’ action of issuing 

an IHA to Vineyard Wind, may 

adversely affect ESA-listed marine 

mammals but would not likely 

jeopardize the continued existence of 

those species or adversely modify or 

destroy their critical habitat. We note 

the analysis in BOEM’s FEIS and 

Biological Opinion extends over the 

duration of the project while our IHA is 

limited to one year, and to harassment 

during construction of the project. 

Comment 30: The ENGOs 

recommended NMFS expand its 

analysis to better consider repeated 

exposure to the same stressor over 

multiple days, as well as masking and 

acoustic habitat impacts. 

Response: As described above, the 

potential impacts from repeat exposures 

are incorporated into our negligible 

impact analysis. As described in the 

Negligible Impact Determination and 

Analysis section below, although some 

animals may be disturbed repeatedly 

from pile driving over multiple days, we 

anticipate the impact on marine 

mammals from resulting behavioral 

reactions such as temporary avoidance 

of the ensonified area during pile 

driving would not result in impacts to 

reproductive success of any individual 

marine mammal, much less annual rates 

of recruitment and survival. For large 

whales, including the NARW, we 

authorize only a small number of Level 

B harassment takes. For example, 

Vineyard Wind is authorized for 20 

takes by Level B harassment of NARW. 

Each take represents exposure of one 

NARW above NMFS behavioral 

harassment threshold (and the expected 

associated behavioral disturbance) 

occurring within one day. While 20 

instances of take is the maximum 

anticipated and authorized, we do not 

know whether these 20 takes occur to 20 

different individual NARWs (each taken 

on one day) or if some individuals 

might be taken on more than one day, 

but we do know that the product of 

individual whales times days of 

disturbance cannot exceed 20 (e.g., 20 

different whales disturbed on 1 day 

each, 10 different whales disturbed on 

two days each, etc.), and given the 

number, it is unlikely that any single 

whale would be disturbed on more than 

a few days. Given Vineyard Wind would 

be pile driving primarily June through 

October (with limited pile driving in 

May and November) it is highly unlikely 

that any single whale would be taken 20 

times. Thus any instances of repeated 

disturbance would be minimal. For 

smaller cetaceans, their populations are 

relatively large compared to baleen 

whales and they have large habitat 

ranges; therefore, repeated disturbance 

to a degree that would cause impacts to 

annual rates and survival to those 

populations is also unlikely. 

The impacts of masking and impacts 

to marine mammal acoustic habitat from 

the specified activity were fully 

considered in the Federal Register 

notice announcing the proposed IHA 

(see sections entitled Auditory Masking 

and Potential Effects of the Specified 

Activity for discussions on masking; see 

section entitled Anticipated Effects on 

Marine Mammal Habitat for discussion 

on potential impacts to acoustic 

habitat). That analysis was integrated 

into our negligible impact finding 

decision-making. For example, we 

found that impacts from masking would 

be insignificant and any masking event 

that could possibly rise to Level B 

harassment under the MMPA would 

occur concurrently within the zones of 

behavioral harassment already 

estimated for impact pile driving, and 

which have already been taken into 

account in the exposure analysis. The 

temporary elevated noise levels caused 

by the project would impact acoustic 

habitat; however, similar to masking, 

these elevated noise areas are captured 

in the behavioral harassment zones 

established in our analysis. 

Comment 31: The ENGOs believe that 

NMFS’ use of a Renewal IHA process 

does not allow for adequate public 

comment because NMFS supplies no 

legal rationale for why it is authorized 

to issue an identical IHA for a second 

year while cutting in half the comment 

period the statute requires. They state 

that should the agency wish to establish 

its new IHA renewal process as a 

reasonable interpretation of an 


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ambiguous statutory provision, it should 

do so through notice-and-comment 

rulemaking or comparable process with 

the appropriate indicia of formality. 

NMFS must also explain why applicants 

whose activities may result in the 

incidental harassment of marine 

mammals over more than one year 

should not be required to apply for 

authorization to do so through the 

incidental take regulation procedure 

established by sec. 101(a)(5)(A)(i), and 

justify how its extension process, with 

a curtailed comment period, is 

consistent with both statutorilyestablished processes. 

Response: In prior responses to 

comments about IHA Renewals (e.g., 84 

FR 52464; October 02, 2019 and 85 FR 

53342, August 28, 2020), NMFS has 

explained how the Renewal process, as 

implemented, is consistent with the 

statutory requirements contained in 

section 101(a)(5)(D) of the MMPA and 

promotes NMFS’ goals of improving 

conservation of marine mammals and 

increasing efficiency in the MMPA 

compliance process. Also, please see 

our response to Comment 8 for 

additional information. 

The ENGOs recommended we utilize 

a stand-alone rulemaking process to 

solicit input on the renewal process so 

that it is open to public comment. 

However, using the 30-day public 

comment period for an IHA to provide 

relevant explanations of the Renewal 

process and also announce the option to 

issue a Renewal to an applicant for a 

specific project is an effective and 

efficient way for NMFS to provide 

information to the reader, solicit 

focused input from the public, and 

ultimately affords the same 

opportunities for public comment as a 

stand-alone rulemaking would. The 

ENGOs have the opportunity to 

comment on the potential Renewal, and, 

by default, the process during the 

proposed IHA phase. There is no reason 

to undertake a rulemaking process to 

carry out a process that is afforded 

under the MMPA and for which NMFS 

has discretion to carry out. The eNGOs 

have not provided reason why the 30 

day public comment period during the 

proposed IHA phase plus the additional 

15-day public comment during a 

proposed Renewal IHA phase (which 

generally occurs less than one year after 

the initial 30-day public comment 

period) for a total public comment 

period of 45 days does not meet the 

requirements of the MMPA. 

The Renewal process does not allow 

for an IHA to cover applicants intending 

on conducting activities for more than 

one year, as mistakenly interpreted by 

the eNGOs. Rather, the FR notice for the 

initial 30-day comment period for the 

proposed IHA asks the public to review 

and provide input on both the initial 

proposed IHA, as well as the potential 

for a Renewal should the Renewal 

conditions be met, following an 

additional 15-day comment period. It 

would be unnecessary and inefficient 

for both the applicant and NMFS to 

require them to go through a rulemaking 

process in case their project extended 

beyond the expiration date of their IHA. 

The most common cases of issuing a 

Renewal IHA is when there are 

unforeseen circumstances that prevent 

the applicant from completing the 

analyzed activity from being completed 

before the expiration date of the original 

IHA. As noted in the response to 

Comment 8 above, there are strict 

criteria NMFS has set forth that an 

applicant must meet prior to being 

granted a Renewal IHA. Specific to the 

Vineyard Wind IHA, any request for a 

Renewal by Vineyard Wind, will be 

considered against established and 

transparent Renewal criteria, including 

the careful consideration of any changes 

in the status of the affected species or 

stocks and whether they would change 

our findings. 

Changes From Proposed IHA to Final 

IHA 

Since publication of the Proposed 

IHA (83 FR 18346, April 30, 2019), 

Vineyard Wind has split into separate 

corporate entities, Vineyard Wind, LLC 

(the applicant identified in the IHA 

application), and Vineyard Wind 1, 

which now holds assets associated with 

the project. While the application and 

the proposed IHA identify Vineyard 

Wind, LLC as the potential IHA Holder, 

NMFS has issued, upon request from 

Vineyard Wind, LLC, the IHA to 

Vineyard Wind 1. 

In the final IHA, NMFS Office of 

Protected Resources adopted the Terms 

and Conditions of the November 2020 

Biological Opinion for the Vineyard 

Wind Project and made other 

modifications as a result of public input 

on the proposed IHA, which resulted in 

several changes to mitigation and 

monitoring measures from proposed to 

final. We provide a summary here, and 

the changes are also described in the 

specific applicable sections below (e.g., 

Mitigation). A complete list of final 

measures may be found in the issued 

IHA (available at https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable). 

Vineyard Wind has committed to 

adding December to the seasonal pile 

driving moratorium window. However, 

to be practicable, in the case of 

unanticipated delays due to weather or 

technical problems that require 

extension of pile-driving activities, pile 

driving may occur in December if BOEM 

is notified and approves. 

In consideration of the best available 

science and public input, NMFS has 

increased clearance zone sizes from the 

proposed IHA to ensure Level A take of 

NARWs is avoided and that any Level 

B harassment is minimized to the 

maximum extent practicable. During all 

times of the year, if a PSO on the pile 

driving vessel observes a NARW, at any 

distance, pile driving will be delayed. 

However, we recognize in certain 

circumstances, weather may impede 

visibility. From June 1 through October 

31, we increased the minimum 

clearance zone (i.e., the zone that must 

be visibly clear of NARWs for 30 

minutes prior to commencing pile 

driving) from 1 km (which Vineyard 

Wind had proposed as a result of their 

Agreement with NGOs) to 2 km. In 

addition, we have imposed a 5 km PAM 

clearance zone during the same time of 

year. In addition to modifications to the 

clearance zone, we have extended the 

shutdown zone (i.e., the zone in which 

Vineyard Wind must shut down pile 

driving if a NARW approaches or enters, 

except if not deemed feasible for human 

safety or structural integrity) for NARW 

from 1 km to 3.2 kms. The 3.2 km 

shutdown zone represents the modeled 

Level A harassment zone assuming a 6 

dB of attenuation from the sound 

attenuation systems. That is, this 

distance represents where a NARW 

could incur PTS if it remains at that 

distance for the number of strikes 

considered in the model (i.e., the 

maximum number of strikes for 

installing a pile). To be conservative, we 

have identified this distance as the 

initial shutdown zone; however, should 

sound source verification (SSV) 

monitoring determine the Level A 

harassment isopleth is less than 3.2 km, 

NMFS may modify the shutdown zone 

upon receipt of a SSV report detailing 

measurements from, at minimum, three 

piles representing conditions reflective 

of future piles driving scenarios (e.g., 

similar substrate, hammer energy, etc.). 

The final IHA also incorporates all 

Terms and Conditions of the 2021 

Vineyard Wind Biological Opinion. 

These include not starting to install a 

new pile less than 1.5 hours prior to 

civil sunset and that pile driving may 

only occur at night if pile driving began 

during daylight hours and the relevant 

visual and PAM clearance zone were 

clear of NARWs. We also carried over 

the suite of vessel strike avoidance 

measures considered part of the 


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proposed action in the Biological 

Opinion. These include mandatory ship 

speeds and separation distances, use of 

trained dedicated observers, PAM in the 

transit corridors, and monitoring of the 

NARW Sighting Network. 

From proposed to final IHA, we 

modified take numbers for sperm 

whales. The proposed IHA allocated 

two takes, by Level A harassment (i.e., 

PTS) of sperm whales incidental to pile 

driving, as it was requested by Vineyard 

Wind. However, after further 

examination, we have determined the 

potential for Level A harassment (PTS) 

for this species is de minimis and we 

have not authorized take by Level A 

harassment. The area is not a preferred 

sperm whale habitat as they prefer 

deeper waters and bathymetric features 

such as canyons. The monopile and 

jacket foundation Level A harassment 

distance for sperm whales is very small 

(less than 75 m). It is highly unlikely 

that a sperm whale would remain 

within this area during the entire 

duration of pile driving necessary to 

incur PTS and we have required 

clearance and shut down zones greater 

than 75 m. In addition, in the 2020 

Biological Opinion, NMFS concluded 

take of sperm whales by Level A 

harassment was not reasonably certain 

to occur and determined no take by 

injury (PTS) will be exempted in the 

corresponding Incidental Take 

Statement issued under the ESA. The 

final IHA identifies the amount of take 

authorized for non-listed marine 

mammals should Vineyard Wind install 

100 WTG monopile foundations and 

two jacket foundations for the ESPs (the 

maximum design envelope), though 

fewer WTG foundations will be 

installed. The ESA incidental take 

statement (ITS), which NMFS Office of 

Protected Resources is required to 

implement, will be scaled so that the 

amount of ESA-listed marine mammal 

take authorized will correspond with 

the actual amount of piles planned to be 

installed. Thus, if Vineyard Wind 

installs fewer piles, it will be exempted 

from the ESA section 9 prohibition on 

take for a fewer number of ESA-listed 

marine mammals (see Endangered 

Species Act section below). The amount 

of take authorized for non-listed marine 

mammals is not scaled. 

NMFS did not include language in the 

final IHA related to a Renewal. This 

does not necessarily preclude a 

Renewal, but as described above, we 

think a Renewal is unlikely in this case, 

given the potential for changes over the 

next three years that could affect our 

analyses. 

Description of Marine Mammals in the 

Area of Specified Activities 

Sections 3 and 4 of the IHA 

application summarize available 

information regarding status and trends, 

distribution and habitat preferences, 

and behavior and life history of the 

potentially affected species. Additional 

information regarding population trends 

and threats may be found in NMFS’ 

Stock Assessment Reports (SARs; 

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 (www.fisheries.noaa.gov/findspecies). 

There are 26 marine mammal species 

that could potentially occur in the 

project area and that are included in 

Table 3 of the IHA application. 

However, the temporal and/or spatial 

occurrence of several species listed in 

Table 3 of the IHA application is such 

that take of these species is not expected 

to occur nor authorized, and they are 

therefore not discussed further beyond 

the explanation provided here. Take of 

these species is not anticipated either 

because they have very low densities in 

the project area, or because they are not 

expected to occur in the project area due 

to their more likely occurrence in 

habitat that is outside the WDA, based 

on the best available information. There 

are two pilot whale species (long-finned 

and short-finned (Globicephala 

macrorhynchus)) with distributions that 

overlap in the latitudinal range of the 

WDA (Hayes et al., 2020). Because it is 

difficult to discriminate between the 

two species at sea, sightings, and thus 

the densities calculated from them, are 

generally reported together as 

Globicephala spp. (Hayes et al., 2020; 

Roberts et al., 2016). However, based on 

the best available information, shortfinned pilot whales occur in habitat that 

is both further offshore on the shelf 

break and further south than the project 

area (Hayes et al., 2018). Therefore, we 

assume that any take of pilot whales 

would be of long-finned pilot whales. 

Blue whales (Balaenoptera musculus 

musculus), dwarf and pygmy sperm 

whales (Kogia sima and K. breviceps), 

Cuvier’s beaked whale (Ziphius 

cavirostris), striped dolphins (Stenella 

coeruleoalba) and four species of 

Mesoplodont beaked whale 

(Mesoplodon spp.), also occur in 

deepwater habitat that is further 

offshore than the project area (Hayes et 

al., 2020, Roberts et al., 2016). Likewise, 

Atlantic spotted dolphins (Stenella 

frontalis) primarily occur near the 

continental shelf edge and continental 

slope, in waters that are further offshore 

than the project area (Hayes et al., 2019). 

Between October 2011 and June 2015 

a total of 76 aerial surveys were 

conducted throughout the MA and RI/ 

MA Wind Energy Areas (WEAs) (the 

WDA is contained within the MA WEA 

along with several other offshore 

renewable energy lease areas). Between 

November 2011 and March 2015, 

Marine Autonomous Recording Units 

(MARU; a type of static PAM recorder) 

were deployed at nine sites in the MA 

and RI/MA WEAs. The goal of the study 

was to collect visual and acoustic 

baseline data on distribution, 

abundance, and temporal occurrence 

patterns of marine mammals (Kraus et 

al., 2016). Further, between 2004–2014, 

acoustic detections of four species of 

baleen whales were examined that show 

important distributional changes over 

the range of baleen whales (Davis et al., 

2020). That study showed blue whales 

were more frequently detected in the 

northern latitudes of the study area after 

2010 and no detections occurred in the 

project area in spring, summer, and fall 

when pile driving would occur (Davis et 

al., 2020). In addition, during recent 

Vineyard Wind marine site 

characterization surveys, none of the 

aforementioned species were observed 

during marine mammal monitoring 

(Vineyard Wind, 2021). The lack of 

sightings of any of the species listed 

above reinforces the fact that these 

species are not expected to occur in the 

project area. As these species are not 

expected to occur in the project area 

during the planned activities, they are 

not discussed further in this document. 

We expect that the species listed in 

Table 2 will potentially occur in the 

project area and will potentially be 

taken as a result of the project. Table 2 

summarizes information related to the 

population or stock, including 

regulatory status under the MMPA and 

ESA and potential biological removal 

(PBR), where known. For taxonomy, we 

follow the Committee on Taxonomy 

(2018). PBR is defined by the MMPA 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). While no mortality is anticipated 

or authorized here, PBR is included here 

as a gross indicator of the status of the 

species and other threats. Four marine 

mammal species that are listed under 

the Endangered Species Act (ESA) may 

be present in the project area and may 

be taken incidental to the planned 


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activity: The NARW, fin whale, sei 

whale, and sperm whale. 

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 SARs. All values 

presented in Table 2 are the most recent 

available at the time of publication and, 

except as otherwise noted, are available 

in the 2019 Atlantic SARs (Hayes et al., 

2019), available online at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments. 

TABLE 2—MARINE MAMMALS KNOWN TO OCCUR IN THE PROJECT AREA THAT MAY BE AFFECTED BY VINEYARD WIND’S

ACTIVITY

Common name 

(scientific name) Stock 

MMPA 

and ESA 

status; 

strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

Predicted 

abundance 

(CV) 3

PBR 4 Annual 

M/SI 4

Occurrence and seasonality 

in project area 

Toothed whales (Odontoceti) 

Sperm whale (Physeter 

macrocephalus).

North Atlantic ..... E; Y 4,349 (0.28; 3,451; 2019) .... 5,353 (0.12) 3.9 0 Rare. 

Long-finned pilot whale 

(Globicephala melas).

W North Atlantic -; N 39,219 (0.3; 30,627; n/a) ..... 5 18,977 (0.11) 306 21 Rare. 

Atlantic white-sided dolphin 

(Lagenorhynchus acutus).

W North Atlantic -; N 93,233 (0.71; 54,443; 2019) 37,180 (0.07) 544 26 Common year round. 

Bottlenose dolphin (Tursiops 

truncatus).

W North Atlantic, 

Offshore.

-; N 62,851 (0.23; 51,914; 2019) 5 97,476 (0.06) 519 28 Common year round. 

Common dolphin (Delphinus 

delphis).

W North Atlantic -; N 172,974 (0.21; 145,216; 

2019).

86,098 (0.12) 1,452 399 Common year round. 

Risso’s dolphin (Grampus 

griseus).

W North Atlantic -; N 35,493 (0.19; 30,298; 2019) 7,732 (0.09) 303 54.3 Rare. 

Harbor porpoise (Phocoena 

phocoena).

Gulf of Maine/ 

Bay of Fundy.

-; N 95,543 (0.31; 74,034; 2019) * 45,089 (0.12) 851 217 Common year round. 

Baleen whales (Mysticeti) 

NARW (Eubalaena glacialis) W North Atlantic E; Y 368 (0; 356; 2020) 6 ............. * 535 (0.45) 6 0.8 6 18.6 Year round in continental 

shelf and slope waters, 

seasonally. 

Humpback whale (Megaptera 

novaeangliae).

Gulf of Maine ..... -; N 1,393 (0.15; 1,375; 2019) .... * 1,637 (0.07) 22 58 Common year round. 

Fin whale (Balaenoptera 

physalus).

W North Atlantic E; Y 6,802 (0.24; 5,573; 2019) .... 4,633 (0.08) 11 2.35 Year round in continental 

shelf and slope waters, 

occur seasonally. 

Sei whale (Balaenoptera borealis).Nova Scotia ....... E; Y 6,292 (1.02; 3,098; 2019) .... * 717 (0.30) 6.2 1.2 Year round in continental 

shelf and slope waters, 

occur seasonally. 

Minke whale (Balaenoptera 

acutorostrata).

Canadian East 

Coast.

-; N 21,968 (0.31; 17,002; n/a) ... * 2,112 (0.05) 170 10.6 Year round in continental 

shelf and slope waters, 

occur seasonally. 

Earless seals (Phocidae) 

Gray seal 7 (Halichoerus 

grypus).

W North Atlantic -; N 27,131 (0.19; 23,158; 2019) n/a 1,389 4,729 Common year round. 

Harbor seal (Phoca vitulina) W North Atlantic -; N 75,834 (0.15; 66,884; 2019) n/a 2,006 350 Common year round. 

Harp seal (Pagophilus 

groenlandicus).

W North Atlantic -; N 7,411,000 8 (unk.; unk; 2019) n/a unk 232,422 Rare. 

1ESA 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 (see footnote 3) 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. 2Stock abundance as reported in NMFS marine mammal stock assessment reports (SAR) except where otherwise noted. SARs available online at: 

www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock 

abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate. All values presented are from the 2019 Atlantic SARs. 3This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016, 2017, 2018, 

2020). These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic Ocean, and we provide the 

corresponding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean density of all pixels in the modeled 

area and multiplying by its area. For those species marked with an asterisk, the available information supported development of either two or four seasonal models; 

each model has an associated abundance prediction. Here, we report the maximum predicted abundance. 4Potential biological removal, defined by the MMPA 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 size (OSP). Annual mortality or serious injury (M/SI), found in NMFS’ 

SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship strike). 

Annual M/SI values often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented in the draft 2019 Atlantic SARs. 5Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly, the habitatbased cetacean density models produced by Roberts et al. (2016) are based in part on available observational data which, in some cases, is limited to genus or guild 

in terms of taxonomic definition. Roberts et al. (2016) produced density models to genus level for Globicephala spp. and produced a density model for bottlenose dolphins that does not differentiate between offshore and coastal stocks. 6Abundance source is Pace et al. (2021). PBR and annual M/SI source is draft 2020 SAR (Hayes et al. 2020). Because PBR is based on the minimum population 

estimate, we anticipate it will be slightly lower than what is presented here given the Pace et al. (2021) abundance; however, the 2020 SARs are not yet finalized. Regardless of final numbers, NMFS recognizes the NARW stock is critically endangered with a low PRB and high annual M/SI rate due primarily to ship strikes and entanglement. 


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33826 Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 

7 NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000. 

8The stock abundance of harp seal is considered unknown in the draft 2020 SAR; however, the abundance reflected here is the most recent available. 

A detailed description of the species 

for which take has been authorized, 

including brief introductions to the 

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 

IHA (84 FR 18346; April 30, 2019). 

Since that time, the status of some 

species and stocks have been updated, 

most notably for large whales. Table 2 

includes the most recent population, 

PBR and annual mortality and serious 

injury (M/SI) rates for all species. We 

refer the reader to the proposed IHA 

Federal Register notice for basic 

descriptions on each species status and 

provide a summary of updates below 

where necessary. Please also refer to 

NMFS’ website (https://

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

generalized species accounts. 

As described in the proposed IHA 

notice, beginning in 2017, elevated 

mortalities in the NARW population 

have been documented, primarily in 

Canada but some in the U.S., and were 

collectively declared an Unusual 

Mortality Event (UME). As of May 2021, 

34 NARWs have been confirmed dead 

and an additional 15 have been 

determined to be seriously injured. 

Entanglement and vessel strikes are the 

primary causes of M/SI. In addition, 

Pace et al. (2021) has identified a 

reduction in NARW abundance since 

the proposed IHA (451 to 368) and 

Oleson et al. (2020) have established the 

project area as year-round foraging 

habitat. 

Since the proposed IHA, the annual 

rate of mortality and serious injury for 

humpback whales belonging to the Gulf 

of Maine stock increased from 12.5 to 

58. This dramatic increase is a result of 

changing how the rate is modeled; 12.5 

was observed M/SI while 58 represents 

a model approach considering the 

observed rate. The draft 2020 SAR 

applies a new hierarchical Bayesian, 

state-space model used to estimate 

mortality (Hayes et al., 2020). The 

estimated rate is based on the observed 

rate of serious injury and mortality and 

an estimated detection rate. The 

estimated annual rate of total mortality 

using this modeling approach is 57.6 

animals for the period 2011–2015. The 

IHA does not authorize serious injury or 

mortality of humpback whales. 

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, 

2019) 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 decibel 

(dB) threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in Table 3. 

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. 

Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .............................................................................................. 60 Hz to 39 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. Fifteen marine 

mammal species (twelve cetacean and 

three pinniped (all phocid species)) 

have the reasonable potential to cooccur with the planned activities. Please 

refer to Table 2. Of the cetacean species 

that may be present, five are classified 

as low-frequency cetaceans (i.e., all 

mysticete species), six are classified as 

mid-frequency cetaceans (i.e., all 

delphinid species and the sperm whale), 

and one is classified as a high-frequency 

cetacean (i.e., harbor porpoise). 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

The effects of underwater noise from 

Vineyard Wind’s construction activities 

have the potential to result in behavioral 

harassment of marine mammals in the 

vicinity of the project area. The notice 

of proposed IHA (84 FR 18346; April 30, 

2019) included a discussion of the 

effects of anthropogenic noise on marine 

mammals and the potential effects of 

underwater noise from Vineyard Wind’s 

construction activities on marine 


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mammals and their habitat. That 

information and analysis is incorporated 

by reference into this final IHA 

determination and is not repeated here; 

please refer to the notice of proposed 

IHA (84 FR 18346; April 30, 2019). 

Estimated Take 

This section provides an estimate of 

the number of incidental takes 

authorized through this IHA, which will 

inform both NMFS’ consideration of 

‘‘small numbers’’ and the negligible 

impact determination. As noted in the 

Summary of Changes from Proposed to 

Final, a small change was made for 

Level A harassment for fin whales and 

sperm whales. 

Harassment is the only type of take 

expected to result from these activities. 

Except with respect to certain activities 

not pertinent here, section 3(18) of the 

MMPA defines ‘‘harassment’’ as any act 

of pursuit, torment, or annoyance, 

which (i) has the potential to injure a 

marine mammal or marine mammal 

stock in the wild (Level A harassment); 

or (ii) has the potential to disturb a 

marine mammal or marine mammal 

stock in the wild by causing disruption 

of behavioral patterns, including, but 

not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

(Level B harassment). 

Authorized takes are primarily by 

Level B harassment, as noise from pile 

driving has the potential to result in 

disruption of behavioral patterns for 

individual marine mammals, either 

directly or as a result of masking or 

temporary hearing impairment (also 

referred to as temporary threshold shift 

(TTS), as described in the notice of 

proposed IHA (83 FR 18346, April 30, 

2019)). There is also some potential for 

auditory injury (Level A harassment) to 

result for select marine mammals. 

Mitigation and monitoring measures are 

expected to minimize the severity of 

such taking to the extent practicable. No 

marine mammal mortality is anticipated 

or authorized for this activity. Below we 

describe how the take is 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 take 

estimates. 

Acoustic Thresholds 

Using the best available science, 

NMFS has developed 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). 

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 (e.g., 

frequency, predictability, duty cycle), 

the environment (e.g., bathymetry), and 

the receiving animals (hearing, 

motivation, experience, demography, 

behavioral context) and can be difficult 

to predict (Southall et al., 2007, Ellison 

et al., 2012). Based on what the 

available science indicates and the 

practical need to use a threshold based 

on a factor that is both predictable and 

measurable for most activities, NMFS 

uses a generalized acoustic threshold 

based on received level to estimate the 

onset of behavioral harassment. NMFS 

predicts that marine mammals are likely 

to be behaviorally harassed in a manner 

we consider Level B harassment when 

exposed to underwater anthropogenic 

noise above received levels of 160 dB re 

1 mPa (rms) for impulsive and/or 

intermittent sources (e.g., impact pile 

driving). Quantifying Level B 

harassment in this manner is also 

expected to capture any qualifying 

changes in behavioral patterns that may 

result from TTS. 

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). The components of 

Vineyard Wind’s planned activity that 

may result in the take of marine 

mammals include the use of impulsive 

sources. 

These thresholds are provided in 

Table 4. The references, analysis, and 

methodology used in the development 

of the thresholds are described in NMFS 

2018 Technical Guidance, which may 

be accessed at: www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-acoustic-technicalguidance. 

TABLE 4—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

Hearing group 

PTS onset acoustic thresholds * 

(received level) 

Impulsive Non-impulsive 

Low-Frequency (LF) Cetaceans ...................................... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ......................... Cell 2: LE,LF,24h: 199 dB. 

Mid-Frequency (MF) Cetaceans ...................................... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ........................ Cell 4: LE,MF,24h: 198 dB. 

High-Frequency (HF) Cetaceans ..................................... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ........................ Cell 6: LE,HF,24h: 173 dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ....................... Cell 8: LE,PW,24h: 201 dB. 

Otariid Pinnipeds (OW) (Underwater) ............................. Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ....................... Cell 10: LE,OW,24h: 219 dB. 

* Dual metric acoustic 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 should also be considered. 

Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, 

thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure 

should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the 

designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 

24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). 

When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. 


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Ensonified Area 

Here, we describe operational and 

environmental parameters of the activity 

that feed into identifying the area 

ensonified above the acoustic 

thresholds, which include source levels 

and transmission loss coefficient. 

As described above, Vineyard Wind 

requested NMFS evaluate project 

construction activity (specifically pile 

driving) involving installation of up to 

100 WTGs and up to two ESPs in the 

WDA (i.e., a maximum of 102 

foundations). Two types of foundations 

may be used in the construction of the 

project and were therefore considered in 

the acoustic modeling study conducted 

to estimate the potential number of 

marine mammal exposures above 

relevant harassment thresholds: 

Monopile foundations varying in size 

with a maximum of 10.3 m (33.8 ft.) 

diameter piles and jacket-style 

foundations using three or four 3 m (9.8 

ft.) diameter piles per foundation. 

As described above, Vineyard Wind 

has incorporated more than one design 

scenario in their planning of the project. 

This approach, called the ‘‘design 

envelope’’ concept, allows for flexibility 

on the part of the developer, in 

recognition of the fact that offshore 

wind technology and installation 

techniques are constantly evolving and 

exact specifications of the project are 

not yet certain as of the publishing of 

this document. Variables that are not yet 

certain include the number, size, and 

configuration of WTGs and ESPs and 

their foundations, and the number of 

foundations that may be installed per 

day (though a maximum of two 

foundations would be installed per day). 

In recognition of the need to ensure 

that the range of potential impacts to 

marine mammals from the various 

potential scenarios within the design 

envelope are accounted for, potential 

design scenarios were modeled 

separately in order to conservatively 

assess the impacts of each scenario. The 

two installation scenarios modeled are 

shown in Table 5 and consist of: 

(1) The ‘‘maximum design’’ scenario 

consisting of 10010.3 m (33.8 ft.) WTG 

monopile foundations, 0 jacket 

foundations, and 2 jacket foundations 

for ESPs (i.e., eight jacket pin piles); and 

(2) The ‘‘most likely design’’ scenario 

consisting of 90 10.3 m (33.8 ft.) WTG 

monopile foundations, 10 WTG jacket 

foundations (i.e., 40 total jacket pin 

piles), and 2 jacket foundations for ESPs 

(i.e., eight jacket pin piles). 

TABLE 5—POTENTIAL CONSTRUCTION DESIGN SCENARIOS MODELED

Design scenario 

WTG 

monopiles 

(pile size: 10.3 

m (33.8 ft)) 

WTG jacket 

foundations 

(pile size: 3 m 

(9.8 ft)) 

ESP jacket 

foundations 1

(pile size: 3 m 

(9.8 ft)) 

Total number 

of piles 

Total number 

of installation 

locations 

Most likely design scenario .................................................. 90 10 2 138 102 

Maximum design scenario 3 ................................................. 100 0 2 108 102 

1Each ESP jacket foundation consists of four pin piles each. 

2To be conservative and in alignment with Vineyard Wind’s request, we considered the maximum design scenario in the IHA; however, the 

amount of take for ESA-listed species will be contingent upon that authorized in the ITS. 

Vineyard Wind’s IHA application 

requested authorization to take marine 

mammals incidentally while driving 

100 monopiles and 2 jacket foundations 

in the WDA, but other information 

suggests that Vineyard Wind may 

actually drive fewer monopiles, which 

would result in fewer impacts to marine 

mammals. In December 2020, Vineyard 

Wind announced it would likely reduce 

the total number of turbines to 62, and 

on May 5, 2021, BOEM signed a Record 

of Decision authorizing the construction 

of no more than 84 turbines (in addition 

to the foundations required to construct 

the two ESPs (for a total of 92 individual 

piles)). As Vineyard Wind has not 

amended its original proposal of 102 

foundations in its IHA application and 

because evaluating the impacts from 

driving those foundations allows for the 

conservative assessment of the relevant 

statutory criteria, NMFS finds it 

appropriate to evaluate the impact of 

102 foundations in this IHA. 

Vineyard Wind may install either one 

or two monopiles per day, both the 

‘‘maximum design’’ and ‘‘most likely 

design’’ scenarios were modeled 

assuming the installation of one 

foundation per day and two foundations 

per day distributed across the same 

calendar period. No more than one 

jacket would be installed per day thus 

one jacket foundation per day (four 

piles) was assumed for both scenarios. 

No concurrent pile driving (i.e., driving 

of more than one pile at a time) would 

occur and therefore concurrent driving 

was not modeled. The pile driving 

schedules for modeling were created 

based on the number of expected 

suitable weather days available per 

month (based on weather criteria 

determined by Vineyard Wind) in 

which pile driving may occur to better 

understand when the majority of pile 

driving is likely to occur throughout the 

year. The number of suitable weather 

days per month was obtained from 

historical weather data. The modeled 

pile-driving schedule for the Maximum 

Design scenario is shown in Table 2 of 

the IHA application. 

Monopile foundation would have 

maximum diameters ranging from ∼8 m 

(26.2 ft) up to ∼10.3 m (33.8 ft) and an 

expected median diameter of ∼9 m (29.5 

ft). The 10.3-m (33.8 ft) monopile 

foundation is the largest potential pile 

diameter that may be used for the 

project and was therefore used in 

acoustic modeling to be conservative. 

Jacket foundations each require the 

installation of three to four piles, known 

as jacket pin piles, of ∼3 m (9.8 ft) 

diameter. All modeling assumed 10.3-m 

piles would be used for monopiles and 

3 m piles would be used for jacket 

foundations (other specifications 

associated with monopiles and jacket 

pin piles are shown in Figures 2 and 3 

in the IHA application). 

Representative hammering schedules 

of increasing hammer energy with 

increasing penetration depth were 

modeled, resulting in, generally, higher 

intensity sound fields as the hammer 

energy and penetration increases. For 

both monopile and jacket structure 

models, the piles were assumed to be 

vertical and driven to a penetration 

depth of 30 m and 45 m, respectively. 

While pile penetrations across the site 

would vary, these values were chosen as 

reasonable penetration depths. The 

estimated number of strikes required to 

drive piles to completion were obtained 

from drivability studies provided by 

Vineyard Wind. All acoustic modeling 

was performed assuming that only one 

pile is driven at a time. 

Additional modeling assumptions for 

the monopiles were as follows: 

• 1,030 cm steel cylindrical piling 

with wall thickness of 10 cm. 

• Impact pile driver: IHC S–4000 

(4000 kilojoules (kJ) rated energy; 1977 

kips (kN) ram weight). 


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• Helmet weight: 3234 kN. 

Additional modeling assumptions for 

the jacket pile are as follows: 

• 300 cm steel cylindrical pilings 

with wall thickness of 5 cm. 

• Impact pile driver: IHC S–2500 

(2500 kJ rated energy; 1227 kN ram 

weight). 

• Helmet weight: 2401 kN. 

• Up to four jacket pin piles installed 

per day. 

Sound fields produced during pile 

driving were modeled by first 

characterizing the sound signal 

produced during pile driving using the 

industry-standard GRLWEAP (wave 

equation analysis of pile driving) model 

and JASCO Applied Sciences’ (JASCO) 

Pile Driving Source Model (PDSM). 

Underwater sound propagation (i.e., 

transmission loss) as a function of range 

from each source was modeled using 

JASCO’s Marine Operations Noise 

Model (MONM) for multiple 

propagation radials centered at the 

source to yield 3D transmission loss 

fields in the surrounding area. The 

MONM computes received per-pulse 

SEL for directional sources at specified 

depths. MONM uses two separate 

models to estimate transmission loss. 

At frequencies less than 2 kHz, 

MONM computes acoustic propagation 

via a wide-angle parabolic equation (PE) 

solution to the acoustic wave equation 

based on a version of the U.S. Naval 

Research Laboratory’s Range-dependent 

Acoustic Model (RAM) modified to 

account for an elastic seabed. MONM– 

RAM incorporates bathymetry, 

underwater sound speed as a function of 

depth, and a geoacoustic profile based 

on seafloor composition, and accounts 

for source horizontal directivity. The PE 

method has been extensively 

benchmarked and is widely employed 

in the underwater acoustics community, 

and MONM–RAM’s predictions have 

been validated against experimental 

data in several underwater acoustic 

measurement programs conducted by 

JASCO. At frequencies greater than 2 

kHz, MONM accounts for increased 

sound attenuation due to volume 

absorption at higher frequencies with 

the widely used BELLHOP Gaussian 

beam ray-trace propagation model. This 

component incorporates bathymetry and 

underwater sound speed as a function of 

depth with a simplified representation 

of the sea bottom, as subbottom layers 

have a negligible influence on the 

propagation of acoustic waves with 

frequencies above 1 kHz. MONM– 

BELLHOP accounts for horizontal 

directivity of the source and vertical 

variation of the source beam pattern. 

Both propagation models account for 

full exposure from a direct acoustic 

wave, as well as exposure from acoustic 

wave reflections and refractions (i.e., 

multi-path arrivals at the receiver). 

The sound field radiating from the 

pile was simulated using a vertical array 

of point sources. Because sound itself is 

an oscillation (vibration) of water 

particles, acoustic modeling of sound in 

the water column is inherently an 

evaluation of vibration. For this study, 

synthetic pressure waveforms were 

computed using FWRAM, which is 

JASCO’s acoustic propagation model 

capable of producing time-domain 

waveforms. 

Models are more efficient at 

estimating SEL than rms SPL. Therefore, 

conversions may be necessary to derive 

the corresponding rms SPL. Propagation 

was modeled for a subset of sites using 

a full-wave RAM PE model (FWRAM), 

from which broadband SEL to SPL 

conversion factors were calculated. The 

FWRAM required intensive calculation 

for each site, thus a representative 

subset of modeling sites were used to 

develop azimuth-, range-, and depthdependent conversion factors. These 

conversion factors were used to 

calculate the broadband rms SPL from 

the broadband SEL prediction. 

Two locations within the WDA were 

selected to provide representative 

propagation and sound fields for the 

project area (see Table 6). The two 

locations were selected to span the 

region from shallow to deep water and 

varying distances to dominant 

bathymetric features (i.e., slope and 

shelf break). Water depth and 

environmental characteristics (e.g., 

bottom-type) are similar throughout the 

WDA (Vineyard Wind, 2018), and 

therefore minimal difference was found 

in sound propagation results for the two 

sites (see Appendix A of the IHA 

application for further detail). 

TABLE 6—LOCATIONS USED IN PROPAGATION MODELING

Site 

Location 

(UTM Zone 19N) Water depth 

(m) Sound sources modeled 

Easting Northing 

P1 ................................................................................................ 382452 4548026 38 Monopile, Jacket pile. 

P2 ................................................................................................ 365240 4542200 46 Monopile, Jacket pile. 

Estimated pile driving schedules were 

used to calculate the SEL sound fields 

at different points in time during pile 

driving. The pile driving schedule for 

monopiles is shown in Tables A–3 and 

A–4 in the IHA application. For each 

hammer energy level, the pile 

penetration is expected to be 20 percent 

of the total depth. 

The sound propagation modeling 

incorporated site-specific environmental 

data that describes the bathymetry, 

sound speed in the water column, and 

seabed geoacoustics in the construction 

area. Sound level estimates are 

calculated from three-dimensional 

sound fields and then collapsed over 

depth to find the ranges to 

predetermined threshold levels (see the 

IHA application; Appendix A.3.2). 

Contour maps (see the IHA application; 

Appendix A.14) show the planar 

distribution of the limits of the areas 

affected by levels that are higher than 

the specific sound level thresholds. 

The modeled source spectra are 

provided in Figures 11 and 12 of the 

IHA application. For both pile 

diameters, the dominant energy is below 

100 Hz. The source spectra of the 10.3 

m (33.8 ft) pile installation contain more 

energy at lower frequencies than for the 

smaller 3 m (9.8 ft) piles. Please see 

Appendix A of the IHA application for 

further details on the modeling 

methodology. 

Noise attenuation systems, such as 

bubble curtains, are used to decrease the 

sound levels radiated from an 

underwater 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, 


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and configuration and operation of the 

curtain (Austin, Denes, MacDonnell, & 

Warner, 2016; Koschinski & 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 & 

Lu ̈demann, 2013; Nehls, Rose, 

Diederichs, Bellmann, & Pehlke, 2016). 

Encapsulated bubble systems (e.g., 

Hydro Sound Dampers (HSDs)), can be 

effective within their targeted frequency 

ranges, e.g., 100–800 Hz, and when used 

in conjunction with a bubble curtain 

appear to create the greatest attenuation. 

The literature presents a wide array of 

observed attenuation results for bubble 

curtains. The variability in attenuation 

levels is the result of variation in design, 

as well as differences in site conditions 

and difficulty in properly installing and 

operating in-water attenuation devices. 

A California Department of 

Transportation (CalTrans) study tested 

several systems and found that the best 

attenuation systems resulted in 10–15 

dB of attenuation (Buehler et al., 2015). 

Similarly, Da ̈hne et al. (2017) found that 

single bubble curtains reduced sound 

levels by 7 to 10 dB and reduced the 

overall sound level by ∼12 dB when 

combined as a double bubble curtain for 

6 m steel monopiles in the North Sea. 

In August 2018, Norther NV started the 

construction of an offshore wind farm at 

about 13 NM from Zeebrugge. The 

diameter of the 45 monopiles installed 

for that project ranged from 7.2 to 7.8 m. 

The pile driving was done using a 3500 

kJ hydraulic hammer. Monitoring 

results demonstrated the big bubble 

curtain achieved 6–7 dB of reduction 

and, in combination with an additional 

sound attenuation device, a 10–12 dB 

reduction was achieved (Degraer et al., 

2019). In modeling the sound fields for 

the planned project, hypothetical 

broadband attenuation levels of 6 dB 

and 12 dB were modeled to gauge the 

effects on the ranges to thresholds given 

these levels of attenuation. 

The acoustic thresholds for impulsive 

sounds (such as pile driving) contained 

in the Technical Guidance (NMFS, 

2018) are presented as dual metric 

acoustic thresholds using both SELcum

and peak sound pressure level metrics. 

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). The 

SELcum metric considers both level and 

duration of exposure, as well as 

auditory weighting functions by marine 

mammal hearing group. 

Table 7 shows the modeled radial 

distances to the dual Level A 

harassment thresholds using NMFS 

(2018) frequency weighting for marine 

mammals, with 0 dB, 6 dB, and 12 dB 

sound attenuation incorporated. For the 

peak level, the greatest distances 

expected are shown, typically occurring 

at the highest hammer energies. The 

distances to SEL thresholds were 

calculated using the hammer energy 

schedules for driving one monopile or 

four jacket pin piles, as shown. The 

radial distances shown in Table 7 are 

the maximum distances from the piles, 

averaged between the two modeled 

locations. 

TABLE 7—RADIAL DISTANCES (m) TO LEVEL A HARASSMENT THRESHOLDS FOR EACH FOUNDATION TYPE WITH 0, 6, AND

12 dB SOUND ATTENUATION INCORPORATED

Foundation type Hearing 

group 

Level A harassment 

(peak) 

Level A harassment 

(SEL) 

No attenuation 6 dB 

attenuation 

12 dB 

attenuation No attenuation 6 dB attenuation 

12 dB 

attenuation 

10.3 m (33.8 ft) monopile ....... LFC ..... 34 17 8.5 5,443 3,191 1,599 

MFC .... 10 5 2.5 56 43 0 

HFC ..... 235 119 49 101 71 71 

PPW .... 38 19 10 450 153 71 

Four, 3 m (9.8 ft) jacket pin 

piles.

LFC .....

MFC ....

7.5 

2.5 

4 

1 

2.5 

0.5 

12,975 

71 

7,253 

71 

3,796 

56 

HFC ..... 51 26 13.5 1,389 564 121 

PPW .... 9 5 2.5 2,423 977 269 

Note:* Radial distances were modeled at two different representative modeling locations as described above. Distances shown represent the 

average of the two modeled locations. 

Table 8 shows the modeled radial 

distances to the Level B harassment 

threshold with no attenuation, 6 dB and 

12 dB sound attenuation incorporated. 

Acoustic propagation was modeled at 

two representative sites in the WDA as 

described above. The radial distances 

shown in Table 8 are the maximum 

distance to the Level B harassment 

threshold from the piles, averaged 

between the two modeled locations, 

using the maximum hammer energy. 

TABLE 8—RADIAL DISTANCES (m) TO THE LEVEL B HARASSMENT THRESHOLD

Foundation type No attenuation 6 dB 

attenuation 

12 dB 

attenuation 

10.3 m (33.8 ft) monopile ............................................................................................................ 6,316 4,121 2,739 

Four, 3 m (9.8 ft) jacket pin piles ................................................................................................ 4,104 3,220 2,177 

Please see Appendix A of the IHA 

application for further detail on the 

acoustic modeling methodology. 

Marine Mammal Occurrence 

In this section we provide the 

information about the presence, density, 

or group dynamics of marine mammals 

that will inform the take calculations. 

We note that NARW density estimates 

used to inform take estimates have been 

updated since the proposed IHA was 

published to include more recent 

surveys (Roberts et al., 2020). 


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The best available information 

regarding marine mammal densities in 

the project area is provided by habitatbased density models produced by the 

Duke University Marine Geospatial 

Ecology Laboratory (Roberts et al., 2016, 

2017, 2018, 2020). Density models were 

originally developed for all cetacean 

taxa in the U.S. Atlantic (Roberts et al., 

2016); more information, including the 

model results and supplementary 

information for each model, is available 

at seamap.env.duke.edu/models/DukeEC-GOM-2015/. In subsequent years, 

certain models have been updated on 

the basis of additional data as well as 

certain methodological improvements. 

Our evaluation of the changes leads to 

a conclusion that these represent the 

best scientific evidence available. 

Marine mammal density estimates in 

the WDA (animals/km2) were obtained 

using these model results (Roberts et al., 

2016, 2017, 2018, 2020). As noted, the 

updated models incorporate additional 

sighting data, including sightings from 

the NOAA Atlantic Marine Assessment 

Program for Protected Species 

(AMAPPS) surveys, which included 

some aerial surveys over the RI/MA & 

MA WEAs (NEFSC & SEFSC, 2011b, 

2012, 2014a, 2014b, 2015, 2016), and 

the 2020 update to the NARW density 

model (Roberts et al., 2020) that for the 

first time includes data from the 2011– 

2015 surveys of the MA and RI/MA 

WEAs (Kraus et al. 2016) as well as the 

2017–2018 continuation of those 

surveys, known as the Marine Mammal 

Surveys of the Wind Energy Areas 

(MMS–WEA) (Quintana et al., 2018). 

Mean monthly densities for all 

animals were calculated using a 13 km 

(8 mi) buffered polygon around the 

WDA perimeter and overlaying it on the 

density maps from Roberts et al. (2016, 

2017, 2018, 2020). Please see Figure 13 

in the IHA application for an example 

of a density map showing Roberts et al. 

(2016, 2017, 2018, 2020) density grid 

cells with a 13 km buffer overlaid on a 

map of the WDA. The 13 km (8 mi) 

buffer is conservative as it encompasses 

and extends beyond the estimated 

distances to the isopleth corresponding 

to the Level B harassment (with no 

attenuation, as well as with 6 dB and 12 

dB sound attenuation) for all hearing 

groups using the unweighted threshold 

of 160 dB re 1 mPa (rms) (Table 8). The 

13 km buffer incorporates the maximum 

area around the WDA with the potential 

to result in behavioral disturbance for 

the 10.3 m (33.8 ft) monopile 

installation using (Wood, Southall, & 

Tollit, 2012) threshold criteria. 

The mean density for each month was 

determined by calculating the 

unweighted mean of all 10 × 10 km (6.2 

× 6.2 mi) grid cells partially or fully 

within the buffer zone polygon. 

Densities were computed for the months 

of May to December to coincide with 

planned pile driving activities (as 

described above, no pile driving would 

occur from January through April). In 

cases where monthly densities were 

unavailable, annual mean densities (e.g., 

pilot whales) and seasonal mean 

densities (e.g., all seals) were used 

instead. Table 9 shows the monthly 

marine mammal density estimates for 

each species incorporated in the 

exposure modeling analysis. 

TABLE 9—MONTHLY MARINE MAMMAL DENSITY ESTIMATES FOR EACH SPECIES INCORPORATED IN EXPOSURE MODELING

ANALYSIS

Species 

Monthly densities 

(animals/100 km2) 1 Annual 

May to 

Dec 

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Mean Mean 

Fin whale ........................... 0.151 0.115 0.122 0.234 0.268 0.276 0.26 0.248 0.197 0.121 0.12 0.131 0.187 0.203 

Humpback whale ............... 0.033 0.018 0.034 0.204 0.138 0.139 0.199 0.109 0.333 0.237 0.078 0.049 0.131 0.16 

Minke whale ...................... 0.052 0.064 0.063 0.136 0.191 0.171 0.064 0.051 0.048 0.045 0.026 0.037 0.079 0.079 

North Atlantic right whale 2 0.510 0.646 0.666 0.599 0.204 0.016 0.002 0.001 0.002 0.007 0.053 0.274 0.248 0.070 

Sei whale ........................... 0.001 0.002 0.001 0.033 0.029 0.012 0.003 0.002 0.003 0.001 0.002 0.001 0.007 0.007 

Atlantic white sided dolphin 1.935 0.972 1.077 2.088 4.059 3.742 2.801 1.892 1.558 1.95 2.208 3.281 2.297 2.686 

Bottlenose dolphin ............. 0.382 0.011 0.007 0.497 0.726 2.199 5.072 3.603 4.417 4.46 2.136 1.216 2.061 2.979 

Pilot whales ....................... 0.555 0.555 0.555 0.555 0.555 0.555 0.555 0.555 0.555 0.555 0.555 0.555 0.555 0.555 

Risso’s dolphin .................. 0.006 0.003 0.001 0.001 0.005 0.005 0.01 0.02 0.016 0.006 0.013 0.018 0.009 0.012 

Short beaked dolphin ........ 7.734 1.26 0.591 1.613 3.093 3.153 3.569 6.958 12.2 12.727 9.321 16.831 6.588 8.482 

Sperm whale * ................... 0.001 0.001 0.001 0.001 0.003 0.006 0.029 0.033 0.012 0.012 0.008 0.001 0.009 0.013 

Harbor porpoise ................ 3.939 6.025 12.302 6.959 3.904 1.332 0.91 0.784 0.717 0.968 2.609 2.686 3.595 1.739 

Gray seal 3 ......................... 6.844 8.291 8.621 15.17 19.123 3.072 0.645 0.372 0.482 0.687 0.778 3.506 5.633 3.583 

Harbor seal 3 ..................... 6.844 8.291 8.621 15.17 19.123 3.072 0.645 0.372 0.482 0.687 0.778 3.506 5.633 3.583 

Harp seal 3 ......................... 6.844 8.291 8.621 15.17 19.123 3.072 0.645 0.372 0.482 0.687 0.778 3.506 5.633 3.583 

1 Density estimates from habitat-based density modeling of the entire Atlantic EEZ from Roberts et al. (2016, 2017, 2018, 2020). 

2 NARW density estimates have been updated from the Notice of Proposed IHA based on data from 2010 through 2018 (Roberts et al, 2020). 3All seal species are grouped together in the density models presented by Roberts et al. (2018). 

JASCO’s Animal Simulation Model 

Including Noise Exposure (JASMINE) 

animal movement model was used to 

predict the probability of marine 

mammal exposure to project-related 

sound. Sound exposure models like 

JASMINE use simulated animals (also 

known as ‘‘animats’’) to forecast 

behaviors of animals in new situations 

and locations based on previously 

documented behaviors of those animals. 

The predicted 3D sound fields (i.e., the 

output of the acoustic modeling process 

described earlier) are sampled by 

animats using movement rules derived 

from animal observations. The output of 

the simulation is the exposure history 

for each animat within the simulation. 

The precise location of animals (and 

their pathways) are not known prior to 

a project, therefore a repeated random 

sampling technique (Monte Carlo) is 

used to estimate exposure probability 

with many animats and randomized 

starting positions. The probability of an 

animat starting out in or transitioning 

into a given behavioral state can be 

defined in terms of the animat’s current 

behavioral state, depth, and the time of 

day. In addition, each travel parameter 

and behavioral state has a termination 

function that governs how long the 

parameter value or overall behavioral 

state persists in the simulation. 

The output of the simulation is the 

exposure history for each animat within 

the simulation, and the combined 

history of all animats gives a probability 

density function of exposure during the 

project. Scaling the probability density 

function by the real-world density of 

animals (Table 9) results in the mean 

number of animals expected to be 

exposed over the duration of the project. 

Due to the probabilistic nature of the 

process, fractions of animals may be 

predicted to exceed threshold. If, for 

example, 0.1 animals are predicted to 


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33832 Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 

exceed threshold in the model, that is 

interpreted as a 10 percent chance that 

one animal will exceed a relevant 

threshold during the project, or 

equivalently, if the simulation were rerun ten times, one of the ten simulations 

would result in an animal exceeding the 

threshold. Similarly, a mean number 

prediction of 33.11 animals can be 

interpreted as re-running the simulation 

where the number of animals exceeding 

the threshold may differ in each 

simulation but the mean number of 

animals over all of the simulations is 

33.11. A portion of an animal cannot be 

taken during a project, so it is common 

practice to round mean number animal 

exposure values to integers using 

standard rounding methods. However, 

for low-probability events it is more 

precise to provide the actual values. For 

this reason, mean number values are not 

rounded. 

Sound fields were input into the 

JASMINE model and animats were 

programmed based on the best available 

information to ‘‘behave’’ in ways that 

reflect the behaviors of the 15 marine 

mammal species expected to occur in 

the project area during the planned 

activity. The various parameters for 

forecasting realistic marine mammal 

behaviors (e.g., diving, foraging, surface 

times, etc.) are determined based on the 

available literature (e.g., tagging 

studies); when literature on these 

behaviors was not available for a 

particular species, it was extrapolated 

from a similar species for which 

behaviors would be expected to be 

similar to the species of interest. See 

Appendix B of the IHA application for 

a description of the species that were 

used as proxies when data on a 

particular species was not available. The 

parameters used in JASMINE describe 

animal movement in both the vertical 

and horizontal planes. The parameters 

relating to travel in these two planes are 

briefly described below: 

Travel sub-models: 

• Direction—determines an animat’s 

choice of direction in the horizontal 

plane. Sub-models are available for 

determining the heading of animats, 

allowing for movement to range from 

strongly biased to undirected. A random 

walk model can be used for behaviors 

with no directional preference, such as 

feeding and playing. A directional bias 

can also be incorporated in the random 

walk for use in situations where animals 

have a preferred absolute direction, 

such as migration. 

• Travel rate—defines an animat’s 

rate of travel in the horizontal plane. 

When combined with vertical speed and 

dive depth, the dive profile of the 

animat is produced. 

Dive sub-models: 

• Ascent rate—defines an animat’s 

rate of travel in the vertical plane during 

the ascent portion of a dive. 

• Descent rate—defines an animat’s 

rate of travel in the vertical plane during 

the descent portion of a dive. 

• Depth—defines an animat’s 

maximum dive depth. 

• Bottom following—determines 

whether an animat returns to the surface 

once reaching the ocean floor, or 

whether it follows the contours of the 

bathymetry. 

• Reversals—determines whether 

multiple vertical excursions occur once 

an animat reaches the maximum dive 

depth. This behavior is used to emulate 

the foraging behavior of some marine 

mammal species at depth. Reversalspecific ascent and descent rates may be 

specified. 

• Surface interval–determines the 

duration an animat spends at, or near, 

the surface before diving again. 

An individual animat’s received 

sound exposure levels are summed over 

a specified duration, such as 24 hours, 

to determine its total received energy, 

and then compared to the threshold 

criteria described above. As JASMINE 

modeling includes the movement of 

animats both within as well as in and 

out of the modeled ensonified area, 

some animats enter and depart the 

modeled ensonified area within a 

modeled 24 hour period; however, it is 

important to note that the model 

accounts for the acoustic energy that an 

animat accumulates even if that animat 

departs the ensonified area prior to the 

full 24 hours (i.e., even if the animat 

departs prior to a full 24 hour modeled 

period, if that animat accumulated 

enough acoustic energy to be taken, it is 

accounted for in the take estimate). Also 

note that animal aversion was not 

incorporated into the Jasmine model 

runs that were the basis for the take 

estimate for any species. See Figure 14 

in the IHA application for a depiction of 

animats in an environment with a 

moving sound field. See Appendix B of 

the IHA application for more details on 

the JASMINE modeling methodology, 

including the literature sources used for 

the parameters that were input in 

JASMINE to describe animal movement 

for each species that is expected to 

occur in the project area. 

Take Calculation and Estimation 

Here we describe how the information 

provided above is brought together to 

produce a quantitative take estimate. We 

note the only change from proposed to 

final IHA was the removal of two Level 

A takes for sperm whales. The following 

steps were performed to estimate the 

potential numbers of marine mammal 

exposures above Level A and Level B 

harassment thresholds as a result of the 

planned activity: 

(1) The characteristics of the sound 

output from the planned pile-driving 

activities were modeled using the 

GRLWEAP (wave equation analysis of 

pile driving) model and JASCO’s PDSM; 

(2) Acoustic propagation modeling 

was performed using JASCO’s MONM 

and FWRAM that combined the outputs 

of the source model with the spatial and 

temporal environmental context (e.g., 

location, oceanographic conditions, 

seabed type) to estimate sound fields; 

(3) Animal movement modeling 

integrated the estimated sound fields 

with species-typical behavioral 

parameters in the JASMINE model to 

estimate received sound levels for the 

animals that may occur in the 

operational area; and 

(4) The number of potential exposures 

above Level A and Level B harassment 

thresholds was calculated for each 

potential scenario within the project 

design envelope. 

As described above, two project 

design scenarios were modeled: The 

‘‘maximum design’’ consisting of 100 

10.3-m (33.8 ft) WTG monopile 

foundationsand two jacket foundations 

for ESPs, and the ‘‘most likely design’’ 

consisting of 90 10.3-m (33.8 ft) WTG 

monopile foundations, 10 WTG jacket 

foundations, and two ESP jacket 

foundations (Table 5). Both of these 

design scenarios were also modeled 

with either one or two monopile 

foundations installed per day. All 

scenarios were modeled with both 6 dB 

sound attenuation and 12 dB sound 

attenuation incorporated. Results of 

marine mammal exposure modeling of 

these scenarios is shown in Tables 10– 

13. Note that while fractions of an 

animal cannot be taken, these tables are 

meant simply to show the modeled 

exposure numbers, versus the actual 

take estimate. Authorized take numbers 

are shown below in Table 15. 


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TABLE 10—MEAN NUMBERS OF MARINE MAMMALS ESTIMATED TO BE EXPOSED ABOVE LEVEL A AND LEVEL B 

HARASSMENT THRESHOLDS USING THE MAXIMUM DESIGN SCENARIO AND ONE FOUNDATION INSTALLED PER DAY

Species 

0 dB attenuation 6 dB attenuation 12 dB attenuation 

Level A 

(SEL) 

Level A 

(peak) Level B Level A (SEL) 

Level A 

(peak) Level B Level A (SEL) 

Level A 

(peak) Level B 

Fin Whale ...................................................................... 0.25 16.78 49.76 0.1 4.13 33.11 0.02 0.29 21.78 

Humpback Whale .......................................................... 0.12 27.25 45.33 0.03 9.01 30.1 0.01 1 19.66 

Minke Whale ................................................................. 0.12 2.72 17.74 0.04 0.22 12.21 0 0.07 7.9 

North Atlantic Right Whale* .......................................... 0.04 2.99 9.03 0.02 0.63 5.97 0 0.04 3.94 

Sei Whale ...................................................................... 0.01 0.57 1.63 0 0.14 1.09 0 0.01 0.74 

Atlantic White-Sided Dolphin ........................................ 0 0 706.25 0 0 449.2 0 0 277.82 

Bottlenose Dolphin ........................................................ 0.33 0 159.14 0 0 96.21 0 0 62.21 

Pilot Whales .................................................................. 0 0 0 0 0 0 0 0 0 

Risso’s Dolphin ............................................................. 0.01 0 2.48 0 0 1.61 0 0 1.04 

Common Dolphin .......................................................... 1.58 0 1603.82 0.1 0 1059.97 0.1 0 703.81 

Sperm Whale ................................................................ 0 0 0 0 0 0 0 0 0 

Harbor Porpoise ............................................................ 8.85 0.27 236.74 4.23 0.17 150.13 1.54 0 91.96 

Gray Seal ...................................................................... 0.61 0.6 314.75 0.11 0.3 196.4 0.04 0.07 118.06 

Harbor Seal ................................................................... 0.82 0.81 340.11 0.36 0.21 214.04 0.33 0.07 136.33 

Harp Seal ...................................................................... 1.53 2.08 349.08 0.73 0.87 217.35 0 0.04 132.91 

Note: * NARW exposure estimates have been revised from the Notice of Proposed IHA based on updated density estimates for the species in the project area 

(Roberts et al., 2020). 

TABLE 11—MEAN NUMBERS OF MARINE MAMMALS ESTIMATED TO BE EXPOSED ABOVE LEVEL A HARASSMENT AND

LEVEL B HARASSMENT THRESHOLDS USING THE MAXIMUM DESIGN SCENARIO AND TWO FOUNDATIONS INSTALLED

PER DAY

Species 

0 dB attenuation 6 dB attenuation 12 dB attenuation 

Level A 

(SEL) 

Level A 

(peak) Level B Level A (SEL) 

Level A 

(peak) Level B Level A (SEL) 

Level A 

(peak) Level B 

Fin Whale ...................................................................... 0.29 18.09 41.57 0.1 4.49 29.71 0 0.41 20.57 

Humpback Whale .......................................................... 0.15 27.65 38.91 0.03 9.59 27.23 0 1.09 18.48 

Minke Whale ................................................................. 0.09 2.87 16.05 0.03 0.23 11.52 0 0.05 7.76 

North Atlantic Right Whale* .......................................... 0.03 3.02 7.42 0.01 1.39 5.32 0 0.05 3.6 

Sei Whale ...................................................................... 0.01 0.57 1.32 0 0.14 0.93 0 0.01 0.65 

Atlantic White-Sided Dolphin ........................................ 0.25 0 632.3 0.13 0 428.23 0 0 272.67 

Bottlenose Dolphin ........................................................ 0.17 0 103.3 0 0 67.71 0 0 43.87 

Pilot Whales .................................................................. 0 0 0 0 0 0 0 0 0 

Risso’s Dolphin ............................................................. 0 0 1.95 0 0 1.38 0 0 0.95 

Common Dolphin .......................................................... 0.89 0 1260.46 0.44 0 897.91 0.1 0 622.78 

Sperm Whale ................................................................ 0 0 0 0 0 0 0 0 0 

Harbor Porpoise ............................................................ 8.24 0.33 183.1 4.23 0.17 125.23 1.85 0.06 82.28 

Gray Seal ...................................................................... 1.32 1.12 209.52 0.29 0.47 145.2 0.04 0.25 96.41

Harbor Seal ................................................................... 2.45 1.62 235.29 1.01 0.86 164.48 0.16 0.39 110.25 

Harp Seal ...................................................................... 1.36 2.6 238.09 0.38 0.53 162.03 0.17 0.04 108.19 

Note: * NARW exposure estimates have been revised from the Notice of Proposed IHA based on updated density estimates for the species in the project area 

(Roberts et al., 2020). 

TABLE 12—MEAN NUMBERS OF MARINE MAMMALS ESTIMATED TO BE EXPOSED ABOVE LEVEL A AND LEVEL B 

HARASSMENT THRESHOLDS USING THE MOST LIKELY SCENARIO AND ONE FOUNDATION INSTALLED PER DAY

Species 

0 dB attenuation 6 dB attenuation 12 dB attenuation 

Level A 

(SEL) 

Level A 

(peak) Level B Level A (SEL) 

Level A 

harassment 

(peak) 

Level B 

harassment 

Level A 

(SEL) 

Level A 

harassment 

(peak) 

Level B 

harassment 

Fin Whale .................................................. 0.26 11.86 46.71 0.11 2.84 29.85 0.02 0.23 19.43 

Humpback Whale ...................................... 0.13 20.26 41.32 0.04 6.54 26.27 0.01 0.83 17.08 

Minke Whale ............................................. 0.12 1.7 15.41 0.04 0.13 10.28 0 0.06 6.77 

North Atlantic Right Whale * ...................... 0.03 1.59 7.38 0.02 0.31 4.6 0 0.02 3.01 

Sei Whale .................................................. 0.01 0.4 1.48 0 0.09 0.95 0 0.01 0.65 

Atlantic White-Sided Dolphin .................... 0 0 630.06 0 0 380.82 0 0 236.77 

Bottlenose Dolphin .................................... 0.37 0 165 0 0 98.56 0 0 64.19 

Pilot Whales .............................................. 0 0 0 0 0 0 0 0 0 

Risso’s Dolphin ......................................... 0.01 0 2.37 0 0 1.48 0 0 0.94 

Common Dolphin ...................................... 1.55 0 1480.84 0.01 0 941.41 0.01 0 617.01 

Sperm Whale ............................................ 0 0 0 0 0 0 0 0 0 

Harbor Porpoise ........................................ 8.12 0.15 221.91 3.86 0.14 134.88 1.38 0 80.89 

Gray Seal .................................................. 0.37 0.02 292.13 0 0.01 176.92 0 0 104.6 

Harbor Seal ............................................... 0.68 0.35 312.37 0.34 0.01 191.06 0.34 0 120.64 

Harp Seal .................................................. 1.43 0.76 320.84 0.72 0.72 193.65 0 0 116.13 

Note: * NARW exposure estimates have been revised from the Notice of Proposed IHA based on updated density estimates for the species in the project area 

(Roberts et al., 2020). 


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33834 Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 

TABLE 13—MEAN NUMBERS OF MARINE MAMMALS ESTIMATED TO BE EXPOSED ABOVE LEVEL A AND LEVEL B 

HARASSMENT THRESHOLDS USING THE MOST LIKELY SCENARIO AND TWO FOUNDATIONS INSTALLED PER DAY

Species 

0 dB attenuation 6 dB attenuation 12 dB attenuation 

Level A harassment 

(SEL) 

Level A harassment 

(peak) 

Level B harassment 

Level A harassment 

(SEL) 

Level A harassment 

(peak) 

Level B harassment 

Level A harassment 

(SEL) 

Level A harassment 

(peak) 

Level B harassment 

Fin Whale .................................. 0.3 13.31 37.62 0.11 3.24 26.07 0 0.36 18.08 

Humpback Whale ...................... 0.16 20.71 34.21 0.04 7.18 23.09 0 0.93 15.77 

Minke Whale ............................. 0.09 1.86 13.57 0.03 0.15 9.53 0 0.04 6.62 

North Atlantic Right Whale * ...... 0.03 1.63 5.7 0.01 0.32 3.91 0 0.03 2.66 

Sei Whale .................................. 0.01 0.4 1.15 0 0.09 0.78 0 0.01 0.55 

Atlantic White-Sided Dolphin .... 0.28 0 548.53 0.14 0 357.71 0 0 231.09 

Bottlenose Dolphin .................... 0.19 0 102.67 0 0 66.75 0 0 43.72 

Pilot Whales .............................. 0 0 0 0 0 0 0 0 0 

Risso’s Dolphin ......................... 0 0 1.78 0 0 1.22 0 0 0.84 

Common Dolphin ...................... 0.79 0 1099.62 0.39 0 761.48 0.01 0 527.04 

Sperm whale ............................. 0 0 0 0 0 0 0 0 0 

Harbor Porpoise ........................ 7.44 0.22 163.17 3.86 0.14 107.61 1.72 0.07 70.29 

Gray Seal .................................. 1.1 0.56 183.32 0.19 0.19 123.97 0 0.18 82.23 

Harbor Seal ............................... 2.37 1.19 203.98 1.01 0.68 139.82 0.17 0.34 93.67 

Harp Seal .................................. 1.26 1.29 206.08 0.36 0.36 136.45 0.18 0 90.56 

Note: * NARW exposure estimates have been revised from the Notice of Proposed IHA based on updated density estimates for the species in the project area 

(Roberts et al., 2020). 

As shown in Tables 10–13, the 

greatest potential number of marine 

mammal exposures above the Level B 

harassment threshold occurs under the 

Maximum Design scenario with one 

monopile foundation installed per day 

(Table 10) while the greatest potential 

number of marine mammal exposures 

above the Level A harassment 

thresholds occurs under the Maximum 

Design scenario with two monopile 

foundations installed per day (Table 11). 

With the inclusion of more jacket 

foundations, which would require more 

piles and more overall pile driving, 

marine mammal exposure estimates for 

the Maximum Design scenario (Tables 

10 and 11) are higher than under the 

Most Likely scenario (Tables 12 and 13). 

In all scenarios, the maximum number 

of jacket foundations modeled per day 

was one (four jacket pin piles). 

Modeling indicates that whether one 

monopile foundation is installed per 

day or two makes little difference with 

respect to estimated Level A harassment 

exposures; total exposures above the 

Level A harassment threshold differed 

by less than one exposure over the 

duration of the project, for each species. 

For exposures above the Level B 

harassment threshold, exposure 

estimates for one monopile foundation 

per day are somewhat higher than for 

two monopile foundations per day. 

With two monopile foundations per 

day, there are half as many days of pile 

driving so there is likewise a reduced 

number of overall predicted Level B 

harassment exposures over the duration 

of the project. 

Exposure modeling indicated that no 

Level A harassment takes are expected 

for several species (i.e., minke whale, sei 

whale, and all small cetaceans and 

pinnipeds). However, Vineyard Wind 

requested Level A harassment takes for 

most species as a precautionary 

measure, based on the fact that 

shutdown of pile driving may not be 

technically feasible once pile driving 

has begun, thus if a marine mammal 

were to enter the Level A harassment 

zone after pile driving has commenced 

Vineyard Wind may not be able to avoid 

that animal(s) being taken by Level A 

harassment. Vineyard Wind requested 

Level A harassment takes for these 

species based on mean group size for 

each respective species, assuming that if 

one group member were to be exposed, 

it is likely that all animals in the same 

group would receive a similar exposure 

level, especially in a scenario with a 

larger area ensonified above the Level A 

harassment threshold. Thus, for the 

species for which exposure modeling 

indicated less than the number of 

individuals in a mean group size would 

be taken (by either Level A or Level B 

harassment), Vineyard Wind increased 

the value from the exposure modeling 

results to equal one mean group size, 

rounded up to the nearest integer, for 

species with predicted exposures of less 

than one mean group size (with the 

exception of NARWs, as described 

below). Mean group sizes for species 

were derived from Kraus et al. (2016), 

where available, as the best 

representation of expected group sizes 

within the RI/MA & MA WEAs. These 

were calculated as the number of 

individuals sighted, divided by the 

number of sightings summed over the 

four seasons (see Tables 5 and 19 in 

Kraus et al., 2016). Sightings for which 

species identification was considered 

either definite or probable were used in 

the Kraus et al. (2016) data. For species 

that were observed very rarely during 

the Kraus et al. (2016) study (i.e., sperm 

whales and Risso’s dolphins) or 

observed but not analyzed (i.e., 

pinnipeds), data derived from AMAPPS 

surveys (Palka et al., 2017) were used to 

evaluate mean group size. For sperm 

whales and Risso’s dolphins, the 

number of individuals divided by the 

number of groups observed during 

2010–2013 AMAPPS NE summer 

shipboard surveys and NE aerial surveys 

during all seasons was used (Appendix 

I of Palka et al., 2017). Though 

pinnipeds congregate in large numbers 

on land, at sea they are generally 

foraging alone or in small groups. For 

harbor and gray seals, Palka et al. (2017) 

report sightings of seals at sea during 

2010–2013 spring, summer, and fall NE 

AMAPPS aerial surveys. Those sightings 

include both harbor seals and gray seals, 

as well as unknown seals, and thus a 

single group size estimate was 

calculated for these two species. Harp 

seals are occasionally recorded south of 

the RI/MA & MA WEAs on Long Island, 

New York, and in the nearshore waters, 

usually in groups of one or two 

individuals. During 2002–2018, the 

Coastal Research and Education Society 

of Long Island (CRESLI) reported seven 

sightings of harp seals (CRESLI, 2018). 

Five of these were of single individuals 

and two were of two animals. 

Calculated group sizes for all species are 

shown in Table 14. 


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Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 33835 

TABLE 14—MEAN GROUP SIZES OF

MARINE MAMMAL SPECIES IN THE

PROJECT AREA

Species 

Mean 

group 

size 

Fin Whale ........................................... 1.8 

Humpback Whale ............................... 2 

Minke Whale ....................................... 1.2 

North Atlantic Right Whale ................. 2.4 

Sei Whale ........................................... 1.6 

Atlantic White-Sided Dolphin .............. 27.9 

Common Bottlenose Dolphin .............. 7.8 

Pilot whale .......................................... 8.4 

Risso’s Dolphin ................................... 5.3 

Short-Beaked Common Dolphin ......... 34.9 

Sperm Whale ...................................... 1.5 

Harbor Porpoise ................................. 2.7 

Gray Seal ............................................ 1.4 

Harbor Seal ........................................ 1.4 

Harp Seal ............................................ 1.3 

Vineyard Wind requested Level B take 

numbers for some species that differ 

from the numbers modeled and were 

instead based on monitoring data from 

site characterization surveys conducted 

at the same location. Vineyard Wind 

reviewed monitoring data recorded 

during site characterization surveys in 

the WDA from 2016–2018 and 

calculated a daily sighting rate 

(individuals per day) for each species in 

each year, then multiplied the 

maximum sighting rate from the three 

years by the number of pile driving days 

under the Maximum Design scenario 

(i.e., 102 days). This method assumes 

that the largest average group size for 

each species observed during the three 

years of surveys may be present during 

piling on each day. Vineyard Wind used 

this method for all species that were 

documented by protected species 

observers (PSOs) during the 2016–2018 

surveys. For sei whales, this approach 

resulted in the same number of 

estimated Level B harassment takes as 

Level A harassment takes (two), so to be 

conservative Vineyard Wind doubled 

the Level A harassment value to arrive 

at their requested number of Level B 

harassment takes. Risso’s dolphins and 

harp seals were not documented by 

PSOs during those surveys, so Vineyard 

Wind requested take based on two 

average group sizes for those species. 

The Level B harassment take calculation 

methodology described here resulted in 

higher take numbers than those 

modeled (Table 10) for 10 out of 15 

species expected to be taken. 

We have authorized take numbers that 

are slightly different than the numbers 

requested by Vineyard Wind for some 

species. Vineyard Wind’s requested take 

numbers for Level A harassment 

authorization are based on an 

expectation that 12 dB sound 

attenuation will be effective during the 

planned activity. NMFS reviewed the 

CalTrans bubble curtain ‘‘on and off’’ 

studies conducted in San Francisco Bay 

in 2003 and 2004. Based on 74 

measurements (37 with the bubble 

curtain on and 37 with the bubble 

curtain off) at both near (<100 m) and 

far (>100 m) distances, the linear 

averaged received level reduction is 6 

dB (CalTrans, 2015). Nehls et al. (2016) 

reported that attenuation from use of a 

bubble curtain during pile driving at the 

Borkum West II offshore wind farm in 

the North Sea was between 10 dB and 

17 dB (mean 14 dB) (peak). 

Based on the best available 

information, we believe it reasonable to 

assume some level of effective 

attenuation due to implementation of 

noise attenuation during impact pile 

driving. Vineyard Wind did not provide 

information regarding the attenuation 

system that will ultimately be used 

during the planned activity (e.g., what 

size bubbles and in what configuration 

a bubble curtain would be used, 

whether a double curtain will be 

employed, whether hydro-sound 

dampers, noise abatement system, or 

some other alternate attenuation device 

will be used, etc.) to support their 

conclusion that 12 dB effective 

attenuation can be expected. In the 

absence of this information regarding 

the attenuation system that will be used, 

and in consideration of the available 

information on attenuation that has 

been achieved during impact pile 

driving, we conservatively assume that 

6 dB of sound attenuation will be 

achieved. We further recognize that the 

pile size and hammer strength 

ultimately chosen by Vineyard Wind 

may be less than that considered under 

the maximum design scenario. 

Regardless, in absence of in situ data, 

NMFS conservatively assumes the 

sound field generated from pile driving 

will resemble that of the model 

assuming 6dB of attenuation and the 

amount of take we have authorized 

reflects that assumption. 

In some cases Vineyard Wind’s site 

characterization survey monitoring 

efforts revealed species presence at 

lower values than the Level B 

harassment exposure numbers modeled 

(assuming 6 dB of attenuation) based on 

marine mammal densities reported by 

Roberts et al. (2016, 2017, 2018, 2020) 

(Table 10). While we agree that 

Vineyard Wind’s use of visual 

observation data as the basis for Level 

B harassment take requests is generally 

sound, we believe that, to be 

conservative, the higher of the two 

calculated take numbers (i.e., take 

numbers based on available visual 

observation data, or, based on modeled 

exposures above threshold) should be 

used to estimate Level B exposures. 

Therefore, for species for which the 

Level B harassment exposure numbers 

modeled based on marine mammal 

densities reported by Roberts et al. 

(2016, 2017, 2018, 2020) with 6 dB 

sound attenuation applied (Table 10) 

were higher than the take numbers 

based on visual observation data (i.e., 

fin whale, bottlenose dolphin, harbor 

porpoise, harbor seal and harp seal) we 

authorize take numbers based on those 

modeled using densities derived from 

Roberts et al. (2016, 2017, 2018, 2020) 

with 6 dB sound attenuation applied. 

As noted above, there were zero takes 

of sperm whales modeled under all 

modeling scenarios (Table 10, 11, 12 

and 13) and sightings of sperm whales 

were extremely rare in the Kraus et al 

(2016) data. However, Vineyard Wind 

requested Level A takes of sperm whales 

based on the potential for there to be 

one group of average size exposed to 

noise above the Level A harassment 

threshold and we proposed to authorize 

2 takes of sperm whales by Level A 

harassment in the notice of proposed 

IHA (84 FR 18346; April 30, 2019). 

However, through the analysis 

conducted during ESA section 7 

consultation, we determined the 

likelihood of a sperm whale to incur 

PTS (Level A harassment) is de minimis 

because the area is not a preferred 

sperm whale habitat as they prefer 

deeper waters and bathymetric features 

such as canyons and the monopile and 

jacket foundation Level A harassment 

distances for sperm whales is very small 

(less than 75 m). It is highly unlikely 

that a sperm whale would remain 

within this area during the entire 

duration of pile driving necessary to 

incur PTS and we have required 

clearance and shut down zones greater 

than 75 m. Accordingly, the Biological 

Opinion’s ITS does not include an 

exemption for any takes by Level A 

harassment of sperm whales. For these 

reasons, we did not authorize take by 

Level A harassment of sperm whales. 

For NARWs, exposure modeling 

presented in the IHA application was 

based on the best available density data 

available at the time (i.e., Roberts et al. 

2016, 2017, 2018). Because takes by 

Level B harassment calculated based on 

Vineyard Wind’s PSO data were higher 

than those modeled using the best 

available density data, in the proposed 

IHA (84 FR 18346; April 30, 2019) we 

proposed to authorize Level B 

harassment based on the numbers 

calculated from Vineyard Wind’s PSO 

data (i.e., 20 takes by Level B 

harassment). After the proposed IHA 


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33836 Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 

was published, NARW density data 

(Roberts et al., 2020) was updated to 

incorporate more recent survey data 

(through 2018) including those data 

from the 2011–2015 surveys of the MA 

and RI/MA WEAs (Kraus et al. 2016) as 

well as the 2017–2018 continuation of 

those surveys, known as the Marine 

Mammal Surveys of the Wind Energy 

Areas (MMS–WEA) (Quintana et al., 

2018) (Table 9). As this data represented 

new information that was deemed the 

best available information on NARW 

density in the project area, we requested 

that Vineyard Wind re-run the exposure 

modeling for NARWs using this new 

density data, for all possible 

construction scenarios, to confirm 

whether the incorporation of the new 

density data would result in a change to 

modeled exposure numbers. The 

resulting modeled number of takes by 

Level B harassment of right whales were 

lower under all four potential 

construction scenarios than the numbers 

that had been previously modeled and 

presented in the IHA application and 

the proposed IHA, and, remained lower 

under all four potential construction 

scenarios than the number calculated 

using Vineyard Wind’s PSO data. To be 

conservative in our impact assessment 

and given the year-round presence of 

NARWs in the project area (albeit still 

very low in the summer months as 

indicated in the density estimates), the 

number of authorized takes by Level B 

harassment of right whales in the IHA 

remains at 20 (the same number of 

authorized takes proposed in the 

proposed IHA (84 FR 18346; April 30, 

2019)) based on calculations using 

Vineyard Wind’s PSO data. Modeled 

NARW exposure numbers (based on the 

newer density data (Roberts et al., 

2020)) for all construction scenarios are 

shown in Tables 10–13. The updated 

NARW density data incorporated in the 

revised exposure modeling (Roberts et 

al., 2020) is shown in Table 9. 

For NARWs, one exposure above the 

Level A harassment threshold was 

modeled over the duration of the 

planned project based on the Maximum 

Design scenario and 6 dB effective 

attenuation (Tables 10 and 11). 

However, exposure modeling does not 

consider mitigation and Vineyard Wind 

requested no authorization for Level A 

harassment takes of NARWs based on an 

expectation that any potential exposures 

above the Level A harassment threshold 

will be avoided through enhanced 

mitigation and monitoring measures 

implemented specifically to minimize 

potential NARW exposures. As 

described in the notice of proposed IHA, 

based on the enhanced mitigation and 

monitoring measures implemented 

specifically for NARWs (described 

below, see ‘‘Mitigation’’), including, but 

not limited to, the seasonal moratorium 

on construction from January through 

April, delay of pile driving upon any 

sighting of a NARW at any distance by 

observers on the pile driving platform, 

extended PAM clearance and 

monitoring zones beyond the Level B 

harassment zone, and pile driving 

shutdown called for at the Level A 

harassment distance, any potential take 

of right whales by Level A harassment 

will be avoided. Therefore, we do not 

authorize any takes of NARWs by Level 

A harassment. 

Estimates of take by Level A 

harassment are based on exposure 

modeling with 6 dB sound attenuation 

applied rather than Vineyard Wind’s 

PSO data. However, for all species for 

which the modeled number of takes by 

Level A harassment was lower than the 

estimated mean group size (Table 9), we 

proposed to authorize takes by Level A 

harassment based on mean group size to 

be conservative (except for NARWs, for 

which no takes by Level A harassment 

were proposed because of the enhanced 

mitigation protocols). There were three 

species for which estimated takes by 

Level A harassment based on exposure 

modeling were higher than the 

estimated mean group size, and 

therefore the proposed number of takes 

by Level A harassment were based on 

exposure modeling rather than mean 

group size: Fin whale, humpback whale 

and harbor porpoise. Thus for these 

three species, we recalculated takes by 

Level A harassment based on exposure 

modeling assuming a scenario of 100 

piles driven with 6 dB attenuation and 

two piles driven with no attenuation. 

This resulted in the following change to 

takes by Level A harassment from the 

proposed IHA (84 FR 18346; April 30, 

2019): Fin whale takes by Level A 

harassment increased from 4 to 5 

(recalculation of Level A harassment 

takes for humpback whale and harbor 

porpoise did not result in a change to 

the estimated Level A harassment take 

number). Although no unattenuated pile 

driving will occur, we have issued the 

amount of take of fin whales in Table 15 

to be conservative. This take also aligns 

with the amount of take exempted in the 

Biological Opinion and associated ITS. 

Authorized take numbers are shown in 

Table 15. 

TABLE 15—TOTAL AMOUNT OF TAKE AUTHORIZED, BY SPECIES

Species 

Takes by 

Level A 

harassment 

Takes by 

Level B 

harassment 

Total takes 

authorized 

Total takes as a 

percentage 

of stock 

taken 2

Fin whale 1 ....................................................................................................... 5 33 38 0.5 

Humpback Whale ............................................................................................ 10 56 66 4.7 

Minke Whale .................................................................................................... 2 98 100 0.4 

North Atlantic Right Whale 1 ............................................................................ 0 20 20 5.4 

Sei Whale 1 ...................................................................................................... 2 4 6 0.1 

Sperm whale 1 .................................................................................................. 0 5 5 0.1 

Atlantic White-Sided Dolphin ........................................................................... 28 1,107 1,135 1.2 

Bottlenose Dolphin ........................................................................................... 8 96 104 0.2 

Long-finned Pilot Whale .................................................................................. 9 91 100 0.3 

Risso’s Dolphin ................................................................................................ 6 12 18 0.1 

Common Dolphin ............................................................................................. 35 4,646 4,681 2.7 

Harbor porpoise ............................................................................................... 4 150 155 0.2 

Gray seal ......................................................................................................... 2 414 416 1.5

Harbor seal ...................................................................................................... 2 214 216 0.3 

Harp seal ......................................................................................................... 2 217 219 0.0

1 Here we present take numbers of ESA-listed marine mammals provided Vineyard Wind installs 102 foundations. Ultimately this take is contingent upon the amount of take authorized in the associated Incidental Take Statement which is scaled based on final design. 


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2 Calculations of percentage of stock taken are based on the Nbest abundance estimate as shown in Table 2. For all other species the best 

available abundance estimates are derived from the most recent NMFS Stock Assessment Reports (Hayes et al., 2020). 

The take numbers authorized (Table 

15) are considered conservative for the 

following reasons: 

• Authorized take numbers are based 

on an assumption that all installed 

monopiles would be 10.3 m in diameter, 

when some or all monopiles ultimately 

installed may be smaller; 

• Authorized take numbers are based 

on an assumption that 102 foundations 

would be installed, when ultimately the 

total number installed may be lower; 

• Authorized take numbers are based 

on a scenario that includes up to 10 

jacket foundations, when it is possible 

that fewer than 10 jacket foundations 

may be installed; 

• Authorized Level A take numbers 

do not account for the likelihood that 

marine mammals will avoid a stimulus 

when possible before that stimulus 

reaches a level that would have the 

potential to result in injury; 

• Authorized take numbers do not 

account for the effectiveness of 

mitigation and monitoring measures in 

reducing the number of takes (with the 

exception of NARWs, for which 

mitigation and monitoring measures are 

factored into the Level A harassment 

take number); 

• For 9 of 15 species, no Level A 

takes were predicted based on 

modeling, however Level A take 

numbers have been conservatively 

increased from zero to mean group size 

for these species. 

Mitigation 

In order to issue an IHA under 

Section 101(a)(5)(D) of the MMPA, 

NMFS must set forth the permissible 

methods of taking pursuant to such 

activity, and other means of effecting 

the least practicable impact on such 

species or stock and its habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance, and on the availability of 

such species or stock for taking for 

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 such 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 and 

impact on operations. 

The mitigation strategies described 

below are consistent with those required 

and successfully implemented under 

previous incidental take authorizations 

issued in association with in-water piledriving activities (e.g., ramp-up, 

establishing harassment zone, 

implementing shutdown zones, etc.). 

Additional measures have also been 

incorporated to account for the fact that 

the planned activities would occur 

offshore. Modeling was performed to 

estimate zones of influence (ZOI; see 

‘‘Estimated Take’’); these ZOI values 

were used to inform mitigation 

measures for pile driving activities to 

minimize Level A harassment and Level 

B harassment to the extent possible, 

while providing estimates of the areas 

within which Level B harassment might 

occur. Several measures have been 

added or modified since the proposed 

IHA was published, and are identified 

and described in detail below. 

In addition to the specific measures 

described later in this section, Vineyard 

Wind would conduct briefings for 

construction supervisors and crews, the 

marine mammal and acoustic 

monitoring teams, and Vineyard Wind 

staff prior to the start of all pile driving 

activity, and when new personnel join 

the work, in order to explain 

responsibilities, communication 

procedures, the marine mammal 

monitoring protocol, and operational 

procedures. Vineyard Wind must use 

available sources of information on right 

whale presence, including, at least, 

daily monitoring of the Right Whale 

Sightings Advisory System, monitoring 

of Coast Guard VHF Channel 16 

throughout the day to receive 

notifications of any sightings, and 

information associated with any 

Dynamic Management Areas and Slow 

Zones to plan pile driving to minimize 

the potential for exposure of any right 

whales to pile driving noise. This 

measure was not included in the 

proposed IHA and affords increased 

protection of NARWs by raising 

awareness of NARW presence in the 

area by both visual and passive acoustic 

monitoring efforts outside of Vineyard 

Wind’s efforts and allows for planning 

of pile driving to minimize potential 

impacts. 

Seasonal Restriction 

As described in the proposed IHA, no 

pile driving activities may occur 

between January 1 and April 30. More 

recently, as identified in the final IHA, 

Vineyard Wind has also committed to 

avoiding pile driving in December 

except under unforeseen, extraordinary 

circumstances that require them to do so 

to complete the project and they may 

only do so upon approval from BOEM. 

This seasonal restriction is established 

to minimize the potential for NARWs to 

be exposed to pile driving noise. Based 

on the best available information (Kraus 

et al., 2016; Roberts et al., 2017, 2020), 

the highest densities of right whales in 

the project area are expected during the 

months of December through April. This 

restriction is expected to greatly reduce 

the potential for NARW exposure to pile 

driving noise associated with the 

planned project. 

Clearance Zones 

Vineyard Wind must use PSOs to 

establish clearance zones around the 

pile driving equipment to ensure these 

zones are clear of marine mammals 

prior to the start of pile driving. The 

purpose of ‘‘clearance’’ of a particular 

zone is to prevent potential instances of 

auditory injury and potential instances 

of more severe behavioral disturbance as 

a result of exposure to pile driving noise 

(serious injury or death are unlikely 

outcomes even in the absence of 

mitigation measures) by delaying the 

activity before it begins if marine 

mammals are detected within certain 

pre-defined distances of the pile driving 

equipment. The primary goal in this 

case is to prevent auditory injury (Level 

A harassment) of NARWs and reduce 

the risk of PTS to other marine 

mammals where there is potential it 

may occur. The clearance zones are 


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larger than the modeled distances to the 

isopleths corresponding to Level A 

harassment (based on peak SPL) for all 

marine mammal functional hearing 

groups, assuming an effective 6 dB 

attenuation of pile driving noise. For 

NARWs, a detection at any distance by 

a PSO on the pile driving vessel will 

trigger a delay. The clearance zone 

identified in Table 16a is the minimum 

zone that must be visible and clear prior 

to commence pile driving; however, 

PSO will be able to detect a whale at 

farther distances on clear days. Further, 

at all times of year, any large whale 

sighted by a PSO within 1,000 m of the 

pile that cannot be identified to species 

must be treated as if it were a NARW, 

triggering a delay in pile driving. 

The proposed IHA identified a pile 

driving clearance zone of 1,000 m (1 

km) for NARWs from May 15 through 

October 31. In the final IHA, the 

clearance zone for NARWs during this 

time period was greatly expanded to 5 

km and a minimum visibility zone was 

established. The clearance zones for 

non-NARWs species remained as 

proposed in the final IHA. Clearance 

zones apply to both monopile and jacket 

installation. These zones vary 

depending on species and are shown in 

Table 16 for all piles. All distances to 

clearance zones are the radius from the 

center of the pile. 

TABLE 16a AND b—REQUIRED NARW CLEARANCE ZONES (16a) AND SHUTDOWN ZONES (16b) 

Clearance and PAM Monitoring Zones 

Time of year Pile type Minimum visual clearance 

zone 1 2 PAM clearance zone 5

PAM 

monitoring 

zone 

(km) 

May 1–May 14 ....................... All ........................................... 10 km ..................................... 10 km 6 ................................... 10 

May 15–May 31 ..................... monopile/jacket ...................... 2 km/1.6 km 3 4 ....................... 5 km/3.2 km 3 ......................... 10 

June 1–Oct 31 ........................ monopile/jacket ...................... 2 km/1.6 km 3 4 ....................... 5 km/3.2 km 3 6 ....................... 7 5 

Nov 1–Dec 31 ........................ monopile/jacket ...................... 2 km/1.6 km 3 ......................... 10 km 6 ................................... 10 

1At any time of year, a visual detection of a NARW by a PSO at the pile driving platform triggers a delay in pile driving. 

2At all times of year, any large whale sighted by a PSO within 1,000 m of the pile that cannot be identified to species must be treated as if it 

were a NARW. 3 Upon receipt of an interim SSV report, NMFS may adjust the clearance zones to reflect SSV measurements such that the minimum visual 

clearance zones represent the Level A (SELcum) zones and the PAM clearance zones represent the Level B harassment zones. However, zone 

sizes will not be decreased less than 1 km from June 1–Oct 31 and not less than 2 km during May 15–May 31 or if a DMA or Slow Zone is established that overlaps with the Level B harassment zone. 4 If a DMA or Slow Zone overlaps the Level B harassment zone, Vineyard Wind will employ a third PSO at the pile driving platform such that 3 

PSOs will be on duty. The primary duty of the 3rd PSO is to observe for NARWs. 5At any time of year, a PAM detection (75 percent confidence) within the clearance zone must be treated as a visual detection, triggering a 

delay in pile driving. 6From May 1–14 and Nov 1–Dec 31, the PAM system must be operated 24/7 if pile driving will occur and must not be less than 10 km. 7 If a DMA or Slow Zone overlaps the Level B zone, the PAM system must be extended to the largest practicable detection zone to increase 

situational awareness but must not be smaller than the Level B zone. 

NARW shutdown zone 

(visual and PAM) 

Pile type 

Shutdown 

zone 1 2

(km) 

Monopile/Jacket ........................ 3.2 

1 If a marine mammal is observed entering 

or within the respective clearance zone after 

pile driving has commenced, a shutdown of 

pile driving must be implemented when technically feasible. 2 Upon receipt of an interim SSV report, 

NMFS may adjust the shutdown zone. 

TABLE 17—REQUIRED NON-NARW 

CLEARANCE AND SHUTDOWN ZONES

Species group 

Clearance 

and 

shutdown 

zones 

(m) 

Non-NARW mysticete whales 

(including humpback, sei, fin 

and minke) and sperm whale 500 

Harbor porpoise .......................... 120 

All other marine mammals (including dolphins and 

pinnipeds) ................................ 50 

If a marine mammal is observed 

within or entering the relevant clearance 

zones prior to the start of pile driving 

operations, pile driving activity must be 

delayed until either the marine mammal 

has voluntarily left the respective 

clearance zone and been visually 

confirmed beyond that clearance zone, 

or, 30 minutes have elapsed without redetection of the animal in the case of 

mysticetes, sperm whales, Risso’s 

dolphins and pilot whales, or 15 

minutes have elapsed without redetection of the animal in the case of all 

other marine mammals. 

Prior to the start of pile driving 

activity, the clearance zones will be 

monitored for 60 minutes to ensure that 

they are clear of the relevant species of 

marine mammals. Pile driving may only 

commence once PSOs and PAM 

operators have declared the respective 

clearance zones clear of marine 

mammals. Marine mammals observed 

within a clearance zone must be 

allowed to remain in the clearance zone 

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

and their behavior will be monitored 

and documented. The clearance zones 

may only be declared clear, and pile 

driving started, when the entire 

clearance zones are visible (i.e., when 

not obscured by dark, rain, fog, etc.) for 

a full 30 minutes prior to pile driving. 

From May 1 through May 14 an 

extended clearance zone of 10 km 

(radial distance from the pile being 

driven) must be established for NARWs. 

This zone must be monitored using realtime PAM. An aerial or vessel-based 

survey must also be conducted that 

covers the 10 km extended clearance 

zone during this period. Vessel-based 

surveys must not begin until the lead 

PSO on duty determines there is 

adequate visibility. Aerial surveys must 

not begin until the lead PSO on duty 

determines adequate visibility and at 

least one hour after sunrise (on days 

with sun glare). From November 1 

through December 31 an extended 

clearance zone of 10 km (radial distance 

from the pile being driven) must be 

established for NARWs. This zone must 

be monitored using real-time PAM (no 

survey is required prior to pile driving 

during this period). 

From May 1 through May 14 and 

November 1 through December 31, if a 

NARW is confirmed via visual 

observation or PAM within the 10 km 

extended clearance zone, pile driving 

must be delayed (if it has not yet 


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commenced) or shut down (if it has 

already begun, and if technically 

feasible) and must not resume until the 

following day or until a survey confirms 

NARWs are no longer in the zone. From 

May 15 through May 31 an extended 

PAM monitoring zone of 10 km must be 

established for NARWs. While the 

clearance zone is 5 km, a confirmed 

PAM detection of a NARW from 5 to 10 

km does not trigger delay or shutdown 

of pile driving but must be immediately 

relayed to visual PSOs to increase 

situational awareness. From June 1 

through October 31, the PAM clearance 

and monitoring zone is 5 km. 

NMFS did consider a 5 km minimum 

visibility clearance zone; however, to do 

so during a time of year when NARW 

density is very low, and in 

consideration of all the enhanced 

mitigation and monitoring measures, we 

determined a zone of that size would 

only delay the project such that pile 

driving would be pushed to the 

shoulder seasons when NARWs are 

present in higher densities. Further, a 5 

km minimum visibility clearance zone 

is impracticable as it would likely result 

in a delay in construction. According to 

Vineyard Wind, the project must be 

constructed in one construction season 

to meet the commercial operations date 

under its contractual obligations and 

maintain the commercial viability of the 

project. Vineyard Wind is planning for 

a 6-month construction season. Of the 

hours available for pile driving during 

the 6-month construction season, almost 

60 percent are lost due to prohibitions 

on pile driving at night and pile driving 

not being allowed to begin until at least 

one hour after sunrise and not before 1.5 

hours of civil sunset. Further restricting 

the available hours for pile driving are 

wind and wave conditions that preclude 

the ability to work safely offshore. 

Overall, Vineyard Wind estimates that 

of the total available hours for pile 

driving, an average of 75 percent are lost 

due to regulatory restrictions and sea/ 

weather conditions. This does not 

account for lost time due to technical 

difficulties or stoppages for protected 

species. If we were to increase the 

minimum visual clearance zone to 5 km, 

the project would likely not be 

completed within the time necessary 

and therefore the measure is 

impracticable. Further, pushing pile 

driving to times when NARWs are more 

abundant (but still within the pile 

driving window), could result in 

adverse and unnecessary impacts to 

NARWs. Finally, we have included a 

minimum 5 km PAM clearance zone 

which is not impacted by weather/ 

visibility. 

Additional Measures for North Atlantic 

Right Whales 

Enhanced measures for right whales, 

including extended clearance zones 

during certain times of year, are 

included in the IHA and are designed to 

further minimize the potential for right 

whales to be exposed to pile driving 

noise. Extended clearance zones are 

required during times of year that are 

considered to be ‘‘shoulder seasons’’ in 

terms of NARW presence in the project 

area (November, December and May). 

While NARW presence during these 

times of year is considered less likely 

than during the required seasonal 

closure (January through April), based 

on the best available information right 

whales may occur in the project area 

during these times of year (Roberts et al, 

2017, 2020; Kraus et al. 2016). Extended 

clearance zones must be maintained 

through PAM, as well as by visual 

observation conducted on aerial or 

vessel-based surveys during certain 

seasons, as described below. 

Pile driving must be delayed upon 

visual observation of a NARW by PSOs 

on the pile driving vessel at any 

distance from the pile. We note that in 

the proposed IHA, the delay in pile 

driving was triggered from May 15– 

October 31 by a detection within 1km of 

the pile; therefore, the measure in the 

final IHA is more protective of NARWs. 

Pile driving must be delayed upon a 

confirmed PAM detection of a NARW, 

if the detection is confirmed to have 

been located within the relevant 

clearance zone (Table 16). Any large 

whale visually observed by a PSO 

within 1,000 m of the pile that cannot 

be identified to species must be treated 

as if it were a NARW for clearance 

purposes (we note this measure was not 

included in the IHA). Any sighting of a 

NARW by Vineyard Wind personnel or 

by personnel contracted by Vineyard 

Wind (including vessel crews and 

construction personnel) must be 

immediately reported to the lead PSO 

on duty. 

Real-time acoustic monitoring must 

begin at least 60 minutes prior to pile 

driving. The real-time PAM system must 

be designed and established such that 

detection capability extends to 10 km 

from the pile driving location. The realtime PAM system must ensure that 

acoustic detections can be classified 

(i.e., potentially originating from a 

NARW) within 30 minutes of the 

original detection. The PAM operator 

must be trained in identification of 

mysticete vocalizations. The PAM 

operator responsible for determining if 

the acoustic detection originated from a 

NARW within the 10 km PAM 

monitoring zone would be required to 

make such a determination if they have 

at least 75 percent confidence that the 

vocalization within 10 km of the pile 

driving location originated from a North 

Atlantic right whale. A record of the 

PAM operator’s review of any acoustic 

detections must be reported to NMFS. 

If a NARW is observed at any time by 

PSOs or personnel on any project 

vessels, during any project-related 

activity or during vessel transit, 

Vineyard Wind must report sighting 

information to the NMFS NARW 

Sighting Advisory System, to the U.S. 

Coast Guard via channel 16, and 

through the WhaleAlert app (http://

www.whalealert.org/) as soon as feasible 

but no longer than 24 hours after the 

sighting. If a NARW is detected via 

PAM, a report of the detection must be 

submitted to NMFS as soon as feasible 

but no longer than 24 hours after the 

detection. In addition, within 48 hours, 

metadata associated with the detection 

must be submitted to the NMFS NARW 

Passive Acoustic Reporting System 

website. None of these reporting 

requirements were included in the 

proposed IHA and offer additional 

protection to marine mammals via 

increased awareness for all mariners. 

Soft Start 

The use of a soft start procedure is 

believed to provide additional 

protection to marine mammals by 

warning marine mammals or providing 

them with a chance to leave the area 

prior to the hammer operating at full 

capacity, and typically involves a 

requirement to initiate sound from the 

hammer at reduced energy followed by 

a waiting period. Vineyard Wind must 

utilize soft start techniques for impact 

pile driving by performing an initial set 

of three strikes from the impact hammer 

at a reduced energy level followed by a 

1 minute waiting period. We note that 

it is difficult to specify the reduction in 

energy for any given hammer because of 

variation across drivers and, for impact 

hammers, the actual number of strikes at 

reduced energy will vary because 

operating the hammer at less than full 

power results in ‘‘bouncing’’ of the 

hammer as it strikes the pile, resulting 

in multiple ‘‘strikes’’; however, 

Vineyard Wind has proposed that they 

will target less than 40 percent of total 

hammer energy for the initial hammer 

strikes during soft start. The soft start 

process would be conducted a total of 

three times prior to driving each pile 

(e.g., three single strikes followed by a 

one minute delay, then three additional 

single strikes followed by a one minute 

delay, then a final set of three single 

strikes followed by an additional one 


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minute delay). Soft start would be 

required at the beginning of each day’s 

impact pile driving work and at any 

time following a cessation of impact pile 

driving of thirty minutes or longer. 

Shutdown 

The purpose of a shutdown is to 

prevent some undesirable outcome, 

such as auditory injury or behavioral 

disturbance of sensitive species, by 

halting the activity. The proposed IHA 

included a shutdown zone equal to the 

proposed clearance zones (i.e., 1 km for 

NARWs, 500 m for all other mysticetes, 

120 m for harbor porpoise, and 50 m for 

all other marine mammals). However, 

after further consideration, we 

determined that a shutdown zone equal 

to the Level A harassment zone for 

monopiles was warranted for NARWs 

year-round. This expansion of the 

shutdown zone affords additional 

protection to NARWs from both Level A 

harassment (e.g., PTS) and reduces the 

severity of Level B harassment as a 

received level at 3.2 km will be much 

less than that at 1km. The shutdown 

zones for all other marine mammals 

remain as proposed. If a marine 

mammal is observed entering or within 

the respective clearance zones (Table 

16) after pile driving has begun, the PSO 

will request a temporary cessation of 

pile driving. Vineyard Wind has 

proposed that, when called for by a 

PSO, shutdown of pile driving would be 

implemented when feasible but that 

shutdown would not always be 

technically practicable once driving of a 

pile has commenced as it has the 

potential to result in pile instability. We 

therefore require that shutdown would 

be implemented when technically 

feasible, with a focus on other 

mitigation measures as the primary 

means of minimizing potential impacts 

on marine mammals from noise related 

to pile driving. If shutdown is called for 

by a PSO, and Vineyard Wind 

determines a shutdown to be technically 

feasible, pile driving would be halted 

immediately. 

In situations when shutdown is called 

for but Vineyard Wind determines 

shutdown is not practicable due to 

human safety or operational concerns, 

reduced hammer energy would be 

implemented when practicable. In cases 

where pile driving is already started and 

a PSO calls for shutdown, the lead 

engineer on duty will evaluate the 

following to determine whether 

shutdown is technically feasible: (1) Use 

the site-specific soil data and the realtime hammer log information to judge 

whether a stoppage would risk causing 

piling refusal at re-start of piling; and (2) 

Check that the pile penetration is deep 

enough to secure pile stability in the 

interim situation, taking into account 

weather statistics for the relevant season 

and the current weather forecast. 

Determinations by the lead engineer on 

duty will be made for each pile as the 

installation progresses and not for the 

site as a whole. 

If a shutdown is called for by PSOs 

but Vineyard Wind determines 

shutdown is not technically feasible due 

to human safety concerns or to maintain 

installation feasibility then reduced 

hammer energy must be implemented, 

when the lead engineer determines it is 

technically feasible. 

Following a shutdown, pile driving 

may not commence until either the 

animal has voluntarily left and been 

visually confirmed beyond the relevant 

clearance zone or when 30 minutes have 

elapsed without re-detection (for 

mysticetes, sperm whales, Risso’s 

dolphins and pilot whales) or 15 

minutes have elapsed without redetection (for all other marine 

mammals), or if required to maintain 

installation feasibility. 

Visibility Requirements 

The proposed IHA included a 

measure that pile driving must not be 

initiated after sunset or at nighttime. 

The final IHA affords additional 

protection to marine mammals in that 

no pile driving may begin until at least 

one hour after (civil) sunrise and no pile 

driving may begin within 1.5 hours of 

(civil) sunset, after sunset or at 

nighttime. Pile driving may continue 

after dark only when the installation of 

the same pile began during daylight 

(within 1.5 hours of (civil) sunset) when 

clearance zones were fully visible for at 

least 30 minutes immediately prior to 

pile driving. Pile driving must not be 

initiated at night, or, when the full 

extent of all relevant clearance zones 

cannot be confirmed to be clear of 

marine mammals, as determined by the 

lead PSO on duty. The clearance zones 

may only be declared clear, and pile 

driving started, when the full extent of 

all clearance zones are visible (i.e., 

when not obscured by dark, rain, fog, 

etc.) for a full 30 minutes prior to pile 

driving. During periods of obscured 

visibility, alternative detection devices 

(e.g., night vision, thermal, infrared) 

must be used. 

Sound Attenuation 

The proposed IHA indicated Vineyard 

Wind may drive unattenuated piles to 

identify the effectiveness of the bubble 

curtain and confirm that at least a 6dB 

attenuation was being achieved using 

such devices. After further 

consideration, we determined that 

driving such large piles to meet the 6dB 

attenuation requirement was not 

warranted. Instead, Vineyard Wind is 

prohibited from driving unattenuated 

piles and instead must ensure such 

devices are achieving the anticipated 

harassment isopleths based on modeling 

assuming 6 dB reduction. This measure 

results in reduced noise levels, 

benefiting all marine mammals. The 

final IHA states that Vineyard Wind 

must implement a noise attenuation 

device(s) during all impact pile driving. 

The attenuation system may include one 

of the following or some combination of 

the following: A Noise Mitigation 

System, Hydro-sound Damper, Noise 

Abatement System, and/or bubble 

curtain. Vineyard Wind would also have 

a second back-up attenuation device 

(e.g., bubble curtain or similar) 

available, if needed, to ensure the 

harassment zones do not exceed those 

modeled (assuming at least a 6dB 

reduction), pending results of sound 

field verification testing. A Pile Driving 

Plan including a complete description 

of the sound attenuation systems 

planned for use must be submitted to 

NMFS for approval no less than 90 days 

prior to commencement of pile driving. 

We note that submission of such a plan 

was not included in the proposed IHA. 

We have also included additional 

requirements related to field 

measurements (see Monitoring and 

Reporting section below). 

Marine Mammal Monitoring Protocols 

Monitoring would be conducted 

before, during, and after pile driving 

activities. In addition, observers will 

record all incidents of marine mammal 

occurrence, regardless of distance from 

the construction activity, and monitors 

will document any behavioral reactions 

in concert with distance from piles 

being driven. Observations made 

outside the clearance zones will not 

result in delay of pile driving; that pile 

segment may be completed without 

cessation, unless the marine mammal 

approaches or enters the clearance zone, 

at which point pile driving activities 

would be halted when practicable, as 

described above. Pile driving activities 

include the time to install a single pile 

or series of piles, as long as the time 

elapsed between uses of the pile driving 

equipment is no more than 30 minutes. 

Vessel Strike Avoidance 

The IHA contains numerous vessel 

strike avoidance measures. Vineyard 

Wind is 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 


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is restricted in its ability to maneuver 

and, because of the restriction, cannot 

comply. 

Vineyard Wind must submit a NARW 

strike avoidance plan 90 days prior to 

commencement of vessel use. The plan 

will, at minimum, describe how the 

required vessel, PAM, or aerial based 

monitoring will be conducted to ensure 

the transit corridor is clear of NARWs. 

The plan will also provide details on the 

vessel-based observer protocol on 

transiting vessels and PAM required 

between November 1 and May 14. 

Submission of this plan was not 

included in the proposed IHA. 

Additional measure included in the 

final IHA that was not included in the 

proposed IHA includes one that states, 

year-round, vessel operators will use all 

available sources of information on right 

whale presence, including at least daily 

monitoring of the Right Whale Sightings 

Advisory System, WhaleAlert app, and 

monitoring of Coast Guard VHF Channel 

16 throughout the day to receive 

notifications of any sightings and/or 

consideration of information associated 

with any Dynamic Management Areas to 

plan vessel routes to minimize the 

potential for co-occurrence with any 

right whales. 

Vessel operators and crews must 

maintain a vigilant watch for all marine 

mammals and slow down, stop their 

vessel, or alter course, as appropriate 

and regardless of vessel size, to avoid 

striking any marine mammal. A visual 

observer aboard the vessel must monitor 

a vessel strike avoidance zone around 

the vessel (distances stated below). 

Visual observers monitoring the vessel 

strike avoidance zone may be thirdparty observers (i.e., PSOs) or crew 

members, but crew members 

responsible for these duties must be 

provided sufficient training to 

distinguish marine mammals from other 

phenomena and broadly to identify a 

marine mammal as a right whale, other 

whale (defined in this context as sperm 

whales or baleen whales other than right 

whales), or other marine mammal. 

Vineyard Wind must adhere to the 

following measures: 

Whenever multiple vessels are 

operating, any visual observations of 

ESA-listed marine mammals must be 

communicated to a PSO and/or vessel 

captains associated with other vessels. 

Under any condition, vessel speeds will 

immediately be reduced to 10 kts or less 

if a NARW is sighted by the observer or 

anyone on the vessel. 

From November 1 through May 14, all 

vessels, regardless of size, must travel at 

less than 10 kts within the WDA. From 

November 1 through May 14, when 

transiting to or from the WDA, vessels 

must either travel at less than 10 kts, or, 

must implement visual surveys with at 

least one visual observer to monitor for 

NARWs (with the exception of vessel 

transit within Nantucket Sound unless a 

DMA is in place). 

In the event that any DMA is 

established that overlaps with an area 

where a vessel would operate, that 

vessel, regardless of size, will transit 

that area at 10 kts or less unless it is a 

crew transfer vessel and certain 

monitoring conditions are met. 

Crew transfer vessels traveling within 

any designated DMA must travel at 10 

kts (18.5 km/hr.) or less, unless NARWs 

are clear of the transit route and WDA 

for two consecutive days, as confirmed 

by vessel-based surveys conducted 

during daylight hours and real-time 

PAM, or, by an aerial survey, conducted 

once the lead aerial observer determines 

adequate visibility. If confirmed clear by 

one of the measures above, vessels 

transiting within a DMA over 10 kts 

must employ at least two visual 

observers to monitor for NARWs. If a 

NARW is observed within or 

approaching the transit route, vessels 

must operate at less than 10 kts until 

clearance of the transit route for 2 

consecutive days. 

Since the proposed IHA was released, 

NMFS has developed the NARW ‘‘Slow 

Zone’’ Program. This program notifies 

vessel operators of areas where 

maintaining speeds of 10 kts or less can 

help protect right whales from vessel 

collisions. Maintaining speeds of 10 kts 

or less in a Slow Zone is voluntary (i.e., 

there is no requirement any mariner 

reduce speeds). All DMAs (triggered by 

the visual detection of three or more 

NARWs) fall under the Slow Zone 

program. Slow Zones may also be 

triggered by acoustic detections on PAM 

systems meeting certain criteria. 

Acoustically-triggered Slow Zones are 

in place for 15 days (similar to a DMA) 

and extend 20 miles from the recorder 

on which the NARW was detected. 

NMFS determined that measures 

associated with Slow Zones that are 

acoustically triggered should be 

included in the final IHA. Therefore, 

crew transfer vessels travelling over 10 

kts within an acoustically-triggered 

Right Whale Slow Zone must employ an 

additional observer (for a total of two 

similar to a DMA) or other enhanced 

detection methods (e.g., thermal 

cameras) to monitor for NARWs in 

addition to PAM monitoring in the 

transit corridor. 

All vessels greater than or equal to 65 

ft (19.8 m) in overall length must 

comply with the 10 kt speed restriction 

in any Seasonal Management Area 

(SMA). 

Crew transfer vessels may travel at 

over 10 kts if, in addition to the required 

dedicated observer, real-time PAM of 

transit corridors is conducted prior to 

and during transits. If a NARW is 

detected via visual observation or PAM 

within or approaching the transit route, 

all crew transfer vessels must travel at 

10 kts or less for the remainder of that 

day. All vessels will reduce vessel speed 

to 10 kts or less when any large whale, 

any mother/calf pairs, pods, or large 

assemblages of non-delphinoid 

cetaceans are observed near (within 100 

m (330 ft.)) an underway vessel. 

NMFS did consider whether all 

vessels associated with Vineyard Wind’s 

specified activity should travel at 10 kts 

or less at all times of the year under all 

conditions (except when there is risk to 

human and vessel safety). NMFS finds 

this measure both impracticable and 

unnecessary. First and foremost, to limit 

vessel speeds during a time when 

NARW presence is extremely low could 

result in delays to the project that push 

work into times of year when NARW 

presence is higher. In addition, given 

the 50–60 mile distance from port to the 

WDA, traveling at 10kts or less would 

take approximately 4.5 to 5 hours each 

way (9–10 hours total). Vineyard Wind 

has indicated that workers are limited to 

a 12-hour workday, including transit 

time. Therefore, 10 hours of their 12 

hour workday would be taken up by 

transit, which is not feasible when 

workers are limited to a 12 hour work 

day. 

All vessels must maintain a minimum 

separation distance of 500 m (1,640 ft) 

from a NARW. If a whale is observed 

but cannot be confirmed as a species 

other than a right whale, the vessel 

operator must assume that it is a right 

whale and take appropriate action. If 

underway, vessels must steer a course 

away from any sighted NARW at 10 kts 

or less such that the 500 m (1,640 ft.) 

minimum separation distance is not 

violated. If a NARW is sighted within 

500 m (1,640 ft.) of an underway vessel, 

the underway vessel must shift the 

engine to neutral. Engines will not be 

engaged until the right whale has moved 

outside of the vessel’s path and beyond 

500 m. 

All vessels must maintain a minimum 

separation distance of 100 m from 

sperm whales and non-NARW baleen 

whales. If one of these species is sighted 

within 100 m (330 ft.) of an underway 

vessel, the underway vessel must shift 

the engine to neutral. Engines will not 

be engaged until the whale has moved 

outside of the vessel’s path and beyond 

100 m. 

All vessels must, to the maximum 

extent practicable, attempt to maintain a 


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minimum separation distance of 50 m 

(164 ft) from all delphinoid cetaceans 

and pinnipeds, with an exception made 

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

bowriding dolphins). If a delphinoid 

cetacean or pinniped is sighted within 

50 m (164 ft.) of an underway vessel, the 

underway vessel must shift the engine 

to neutral, with an exception made for 

those that approach the vessel (e.g., 

bowriding dolphins). Engines will not 

be engaged until the animal(s) has 

moved outside of the vessel’s path and 

beyond 50 m. 

When marine mammals are sighted 

while a vessel is underway, 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, avoid 

excessive speed or abrupt changes in 

direction until the animal has left the 

area. If marine mammals are sighted 

within the relevant separation distance, 

the vessel must reduce speed and shift 

the engine to neutral, not engaging the 

engines until animals are clear of the 

area. This does not apply to any vessel 

towing gear or any vessel that is 

navigationally constrained. 

All vessels underway will not divert 

or alter course in order to approach any 

marine mammal. Any vessel underway 

will avoid excessive speed or abrupt 

changes in direction. 

Project-specific training must be 

conducted for all vessel crew prior to 

the start of in-water construction 

activities. Confirmation of the training 

and understanding of the requirements 

must be documented on a training 

course log sheet. Vineyard Wind must 

ensure that vessel operators and crew 

maintain a vigilant watch for marine 

mammals by slowing down or stopping 

the vessel to avoid striking marine 

mammals. When not on active watch 

duty, members of the monitoring team 

must consult NMFS’ NARW advisory 

systems for the presence of NARWs in 

the project area at least once a day. 

With the measure described herein, 

we have prescribed the means of 

effecting the least practicable adverse 

impact on the affected marine mammal 

species and stocks and their habitat, 

paying particular attention to rookeries, 

mating grounds, and areas of similar 

significance. 

Monitoring and Reporting 

In order to issue an IHA for an 

activity, Section 101(a)(5)(D) 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 project 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). 

• Mitigation and monitoring 

effectiveness. 

Visual Marine Mammal Observation 

Vineyard Wind will collect sighting 

data and behavioral responses to pile 

driving activity for marine mammal 

species observed in the region of 

activity during the period of activity. All 

observers will be trained in marine 

mammal identification and behaviors 

and are required to have no other 

construction-related tasks while 

conducting monitoring. PSOs will 

monitor all clearance zones at all times. 

PSOs will also monitor Level B 

harassment zones (i.e., 4,121 m for 

monopiles and 3,220 m for jacket pin 

piles) and will document any marine 

mammals observed within these zones, 

to the extent practicable (noting that 

some distances to these zones are too 

large to fully observe). Vineyard Wind 

will conduct monitoring 60 minutes 

before, during, and 30 minutes after pile 

driving, with observers located at the 

best practicable vantage points on the 

pile driving vessel. Full details 

regarding marine mammal monitoring 

must be included in a Marine Mammal 

Monitoring Plan that, under the IHA, 

Vineyard Wind is required to submit to 

NMFS for approval at least 90 days in 

advance of commencement of pile 

driving. We note submission of this plan 

was not included in the proposed IHA. 

Monitoring will be conducted by 

qualified, trained PSOs, who will be 

placed on the installation vessel, which 

represents the best vantage point to 

monitor for marine mammals and 

implement shutdown procedures when 

applicable. The proposed IHA included 

a measure that a minimum of two PSOs 

will be on-watch from 60 minutes prior 

to commencement of pile driving, 

throughout the time required to drive a 

pile, and for 30 minutes following the 

conclusion of pile driving. The final 

IHA carries this measure over but 

includes an enhanced measure in that, 

if a DMA or Slow Zone is in place that 

overlaps the Level B harassment zone, 

an additional PSO will be required (for 

a total of three PSOs on active duty on 

the pile driving vessel). PSOs may not 

exceed four consecutive watch hours; 

must have a minimum two hour break 

between watches; and may not exceed a 

combined watch schedule of more than 

12 hours in a 24- hour period. 

Monitoring will be conducted. PSOs 

will have no other construction-related 

tasks while conducting monitoring. 

All PSOs must be approved by NMFS. 

Vineyard Wind must submit resumes of 

the initial set of PSO resumes necessary 

to commence the project to NMFS for 

approval at least 60 days prior to the 

first day of pile driving activity. 

PSOs must have the following 

minimum qualifications: 

(1) Visual acuity in both eyes 

(correction is permissible) sufficient for 

discernment of moving targets at the 

water’s surface with ability to estimate 

target size and distance; use of 

binoculars may be necessary to correctly 

identify the target; 

(2) Ability to conduct field 

observations and collect data according 

to assigned protocols; 

(3) Experience or training in the field 

identification of marine mammals, 

including the identification of 

behaviors; 

(4) Sufficient training, orientation, or 

experience with the construction 


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operation to provide for personal safety 

during observations; 

(5) Writing skills sufficient to 

document observations including, but 

not limited to: The number and species 

of marine mammals observed; dates and 

times when in-water construction 

activities were conducted; dates and 

times when in-water construction 

activities were suspended to avoid 

potential incidental injury of marine 

mammals from construction noise 

within a defined shutdown zone; and 

marine mammal behavior; and 

(6) Ability to communicate orally, by 

radio or in person, with project 

personnel to provide real-time 

information on marine mammals 

observed in the area as necessary. 

Observer teams employed by 

Vineyard Wind in satisfaction of the 

mitigation and monitoring requirements 

described herein must meet the 

following additional requirements: 

• Be independent observers (i.e., not 

construction personnel) are required; 

• At least one observer must have 

prior experience working as an observer 

in an offshore environment; 

• Other observers may substitute 

education (degree in biological science 

or related field) or training for 

experience; 

• One observer will be designated as 

lead observer or monitoring coordinator. 

The lead observer must have prior 

experience working as an observer; and 

• NMFS will require submission and 

approval of observer resumes. 

Vineyard Wind must conduct 

briefings between construction 

supervisors and crews and the PSO 

team prior to the start of all pile driving 

activities, and when new personnel join 

the work, in order to explain 

responsibilities, communication 

procedures, marine mammal monitoring 

protocol, and operational procedures. 

An informal guide must be included 

with the Marine Mammal Monitoring 

Plan to aid in identifying species if they 

are observed in the vicinity of the 

project area. PSOs must be located at 

best vantage point(s) in order to observe 

the entire clearance zones and must 

record all incidents of marine mammal 

occurrence, regardless of distance from 

the construction activity. PSOs must 

document any behavioral reactions of 

marine mammals in concert with 

distance from the pile being driven. 

During all pile driving, PSOs must use 

high-magnification (25X), as well as 

standard handheld (7X) binoculars, and 

the naked eye to search continuously for 

marine mammals. During periods of 

poor visibility, PSOs must use 

alternative monitoring technologies to 

monitor clearance zones (e.g., night 

vision devices, IR/Thermal camera). A 

full description of this technology will 

be included in Vineyard Wind’s 

Alternative Monitoring Plan which will 

be submitted to NMFS no later than 90 

days prior to the commencement of pile 

driving. We note submission of this plan 

was not included in the proposed IHA. 

Monitoring distances must be measured 

with range finders or reticule 

binoculars. Distances to marine 

mammals observed must be based on 

the best estimate of the PSO, relative to 

known distances to objects in the 

vicinity of the PSO. Bearings to animals 

shall be determined using a compass. 

When monitoring is required during 

vessel transit (as described above), the 

PSO(s) will be stationed on vessels at 

the best vantage points to ensure 

maintenance of standoff distances 

between marine mammals and vessels 

(as described above). Vineyard Wind 

would implement the following 

measures during vessel transit when 

there is an observation of a marine 

mammal: 

• PSOs will record the vessel’s 

position and speed, water depth, sea 

state, and visibility will be recorded at 

the start and end of each observation 

period, and whenever there is a change 

in any of those variables that materially 

affects sighting conditions. 

• PSOs will record the time, location, 

speed, and activity of the vessel, sea 

state, and visibility. 

Individuals implementing the 

monitoring protocol will assess its 

effectiveness using an adaptive 

approach. PSOs will use their best 

professional judgment throughout 

implementation and seek improvements 

to these methods when deemed 

appropriate. Any modifications to the 

protocol will be coordinated between 

NMFS and Vineyard Wind. 

Data Collection 

We require that observers use 

standardized data forms. Among other 

pieces of information, Vineyard Wind 

will record detailed information about 

any implementation of delays or 

shutdowns, including the distance of 

animals to the pile and a description of 

specific actions that ensued and 

resulting behavior of the animal, if any. 

The following information will be 

collected by PSOs during pile driving: 

• Date and time that monitored 

activity begins or ends; 

• Construction activities occurring 

during each observation period; 

• Weather parameters (e.g., wind 

speed, percent cloud cover, visibility); 

• Water conditions (e.g., sea state, 

tide state); 

• Species, numbers, and, if possible, 

sex and age class of marine mammals; 

• Description of any observable 

marine mammal behavior patterns, 

including bearing and direction of travel 

and distance from pile driving activity; 

• Distance and bearing of each marine 

mammal observed relative to the pile 

being driven for each sighting and time 

spent within harassment zone (if pile 

driving was occurring at time of 

sighting); 

• Description of any marine mammal 

behavioral observations (e.g., observed 

behaviors such as feeding or traveling), 

including an assessment of behavioral 

responses thought to have resulted from 

the activity; 

• Type of construction activity (e.g., 

monopile or jacket pile installation) 

when marine mammals are observed; 

• Description of implementation of 

mitigation measures (e.g., delay or 

shutdown) or why mitigation was not 

implemented; 

• Locations of all marine mammal 

observations; and 

• Other human activity in the area. 

Marine Mammal Passive Acoustic 

Monitoring 

Vineyard Wind would utilize a PAM 

system to supplement visual 

monitoring. The PAM system would be 

monitored by a minimum of one 

acoustic PSO beginning at least 60 

minutes prior to ramp-up of pile driving 

and at all times during pile driving. 

Acoustic PSOs must immediately 

communicate all detections of marine 

mammals to visual PSOs, including any 

determination regarding species 

identification, distance, and bearing and 

the degree of confidence in the 

determination. The PAM system would 

not be located on the pile installation 

vessel. 

Acoustic PSOs may be on watch for 

a maximum of four consecutive hours 

followed by a break of at least two hours 

between watches. Acoustic PSOs would 

be required to demonstrate that they 

have completed specialized training for 

operating PAM systems. PSOs can act as 

acoustic or visual observers (but not 

simultaneously) as long as they 

demonstrate that their training and 

experience are sufficient to perform 

each task. Acoustic PSO(s) must 

immediately communicate all 

detections of marine mammals to visual 

PSOs, including any determination 

regarding species identification, 

distance, and bearing and the degree of 

confidence in the determination. 

A Passive Acoustic Monitoring Plan 

must be submitted to NMFS and BOEM 

for review and approval at least 90 days 

prior to the planned start of pile driving. 


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The Plan must describe all proposed 

PAM equipment, procedures, and 

protocols. We note submission of this 

plan was not included in the proposed 

IHA. 

Sound Field Verification Acoustic 

Monitoring 

Vineyard Wind will also conduct 

hydroacoustic monitoring during pile 

driving of the first monopile and first 

jacket foundation installed over the 

course of the project, with noise 

attenuation activated. We note the 

proposed IHA did not specify that the 

first of these piles were to be monitored. 

In the event that subsequently driven 

piles are installed that have a larger 

diameter, or, are installed with a larger 

hammer or greater hammer energy than 

the first monopile and jacket pile, sound 

field measurements must be conducted 

for those subsequent piles. A Sound 

Field Verification Plan must be 

submitted to NMFS for review and 

approval at least 90 days prior to 

planned start of pile driving (this 

measure was not included in the 

proposed IHA). This plan must describe 

how Vineyard Wind will ensure that the 

location selected is representative of the 

rest of the piles of that type to be 

installed and, in the case that it is not, 

how additional sites will be selected for 

sound field verification, or, how the 

results from the first pile can be used to 

predict actual installation noise 

propagation for subsequent piles. The 

plan must describe how the 

effectiveness of the sound attenuation 

methodology will be evaluated based on 

the results. Vineyard Wind must 

provide the initial results of the field 

measurements to NMFS as soon as they 

are available. 

Vineyard Wind would be required to 

empirically determine the distances to 

the isopleths corresponding to the Level 

A and Level B harassment thresholds 

either by extrapolating from in situ 

measurements conducted at several 

points from the pile being driven, or by 

direct measurements to locate the 

distance where the received levels reach 

the relevant thresholds or below. 

Isopleths corresponding to the Level A 

and Level B harassment thresholds 

would be empirically verified for impact 

driving of the largest diameter monopile 

used over the duration of the IHA, and 

impact driving of the largest diameter 

jacket pile used over the duration of the 

IHA. For verification of the extent of the 

Level B harassment zone, Vineyard 

Wind would be required to report the 

measured or extrapolated distances 

where the received levels SPLrms decay 

to 160-dB, as well as integration time for 

such SPLrms. If initial acoustic field 

measurements indicate distances to the 

isopleths corresponding to Level A and/ 

or Level B harassment thresholds are 

greater than the distances predicted by 

modeling (Tables 5 and 6), Vineyard 

Wind must implement additional sound 

attenuation measures prior to 

conducting additional pile driving. 

Additionally, in the event that field 

measurements indicate distances the 

isopleths corresponding to Level A and 

Level B harassment thresholds are 

greater than the distances predicted by 

modeling, NMFS may expand the 

relevant clearance and shutdown zones. 

We note that none of these measures 

regarding specific action based on 

results of the acoustic monitoring were 

included in the proposed IHA. The 

acoustic monitoring report would 

include: Peak sound pressure level 

(SPLpk), root-mean-square sound 

pressure level that contains 90 percent 

of the acoustic energy (SPLrms), single 

strike sound exposure level, integration 

time for SPLrms, SELss spectrum, and 

24-hour cumulative SEL extrapolated 

from measurements. All these levels 

would be reported in the form of 

median, mean, max, and minimum. The 

sound levels reported would be in 

median and linear average (i.e., taking 

averages of sound intensity before 

converting to dB). The acoustic 

monitoring report would also include a 

description of depth and sediment type 

at the recording location. 

Recording would also occur when no 

construction activities are occurring in 

order to establish ambient sound levels. 

Vineyard Wind would also conduct 

real-time PAM during certain times of 

year to facilitate mitigation (as described 

above). 

Reporting 

The proposed IHA included a 

measure that, similar to other coastal 

pile driving projects, Vineyard Wind 

would submit a final report to NMFS 

within 90 days after expiration of the 

IHA that contained both marine 

mammal and pile driving acoustic 

monitoring data. Since that time, NMFS 

determined more frequent review of 

Vineyard Wind’s pile driving activities 

and monitoring data was warranted. In 

the final IHA, Vineyard Wind is 

required to submit weekly and monthly 

marine mammal monitoring reports in 

addition to submitting a draft final 

marine mammal monitoring report to 

NMFS within 90 days of the completion 

of monitoring activities (not 90 days 

upon expiration of the IHA). The reports 

would include marine mammal 

observations pre-activity, duringactivity, and post-activity during pile 

driving days, and would also provide 

descriptions of any behavioral responses 

to construction activities by marine 

mammals. The reports would detail the 

monitoring protocol, summarize the 

data recorded during monitoring 

including an estimate of the number of 

marine mammals that may have been 

harassed during the period of the report, 

and describe any mitigation actions 

taken (i.e., delays or shutdowns due to 

detections of marine mammals, and 

documentation of when shutdowns 

were called for but not implemented 

and why). The reports would also 

include results from marine mammal 

passive acoustic monitoring including 

dates and times of all detections, types 

and nature of sounds heard, whether 

detections were linked with visual 

sightings, water depth of the 

hydrophone array, bearing of the animal 

to the vessel (if determinable), species 

or taxonomic group (if determinable), 

spectrogram screenshot, a record of the 

PAM operator’s review of any acoustic 

detections, and any other notable 

information. The weekly reports would 

contain a summary of this information 

while the final report would contain 

more detailed information. After receipt 

of the 90-day draft final report, NMFS 

will provide comments on the report, if 

necessary, to Vineyard Wind. Vineyard 

Wind must submit a final report within 

30 days following resolution of 

comments on the draft report. 

The final IHA also requires Vineyard 

Wind to submit results of pile driving 

sound field verification to NMFS as 

soon as possible but no later than within 

30 days following completion of 

acoustic monitoring. 

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’’ 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any responses (e.g., intensity, 

duration), the context of any responses 

(e.g., critical reproductive time or 

location, migration), as well as effects 

on habitat, and the likely effectiveness 


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of the 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’s 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). 

Pile driving activities associated with 

the project, as described previously, 

have the potential to disturb or 

temporarily displace marine mammals. 

Specifically, the specified activities may 

result in take, in the form of Level A 

harassment (potential injury) or Level B 

harassment (potential behavioral 

disturbance) from underwater sounds 

generated from pile driving. Potential 

takes could occur if individual marine 

mammals are present in the ensonified 

zone when pile driving is occurring. 

To avoid repetition, the majority of 

our analyses apply to all the species 

listed in Table 2, given that many of the 

anticipated effects of the planned 

project on different marine mammal 

stocks are expected to be relatively 

similar in nature. Where there are 

meaningful differences between species 

or stocks—as is the case of the NARW— 

they are included as separate subsections below. As noted above, some 

new data and literature have become 

available since the Proposed IHA was 

published (e.g., NARW abundance and 

distribution information), and this 

information has been considered fully 

in the analysis below. 

North Atlantic Right Whales 

NARWs are currently threatened by 

low population abundance, higher than 

average mortality rates and lower than 

average reproductive rates. Pace et al. 

(2021) recently released an update of his 

NARW abundance model. From 1990– 

2014, the female apparent survival rate 

fluctuated around 0.96. In 2014, 

survival decreased to approximately 

0.93 and hit an all-time low of 0.89 in 

2017. However, in 2018, survival 

increased dramatically back to around 

0.95. The average survival rate, based on 

the Pace et al. (2021) regime model from 

2014–2018 is approximately 0.93, 

slightly lower than the average long 

term rate from 1990–2014 (0.96). Since 

1990, the estimated number of new 

entrants (which can be used as a proxy 

for recruitment rates) has widely 

fluctuated between 0 and 39 (Pace et al., 

2021, NMFS 2021). In the last 10 years 

(2011–2020), the average number of 

calves born into the population is 

approximately 11. Unfortunately, not all 

calves born into the population survive. 

Most recently, a dead NARW calf was 

reported stranded on February 13, 2021, 

along the Florida coast. On December 

22, 2020, a newborn calf was sighted off 

El Hierro, an island in the Canary 

Islands, but has not been subsequently 

detected with its mother suggesting it 

did not survive. 

As described above, the project area 

represents part of an important 

migratory area for NARWs. Core yearround foraging habitats have also been 

identified south of Martha’s Vineyard 

and Nantucket within and around the 

project area (Oleson et al., 2020); 

however, abundance in this area in 

summer months remains low compared 

to winter. It also appears the majority of 

sightings between the June–October 

timeframe (when Vineyard Wind would 

be conducting most if not all of its pile 

driving work) are concentrated 

approximately 20–30 kms west of the 

WDA boundary line on Nantucket 

Shoals (which triggered DMAs in 2019 

and 2020) with occasional, random 

sightings east of the project area. In 

general, due to the current status of 

NARWs, and the spatial overlap of the 

planned project with an area of 

biological significance for right whales, 

the potential impacts of the planned 

project on right whales warrant 

particular attention. 

The IHA includes nine overarching 

mitigation measures related to pile 

driving. The following measures are 

related to pile driving: (1) Time of year 

restrictions; (2) time of day restrictions; 

(3) implementation of pre-pile driving 

clearance zones; (4) implementation of 

shutdown zones; (5) use of soft-start; (6) 

use of sound attenuation systems; (7) 

use of PSOs to visually observe for 

NARWs (with any detection triggering 

delay or shutdown); (8) use of PAM to 

acoustically detect NARWs (with any 

detection within designated zones 

triggering delay or shutdown); and (9) 

requirement to monitor NARW sighting 

network platforms to be aware of NARW 

presence within or near the project area 

and transit corridors. The specifics 

regarding these measures are dependent 

upon the time of year. 

As described in Oleson et al. (2020), 

NARWs respond to environmental 

changes and may use habitat 

intermittently over time. They have 

been known to nearly abandon a 

frequently used foraging habitat only to 

come back in future years in large 

numbers. In recent years, the whales 

have demonstrated actual shifts in 

distribution, frequenting previously 

unrecognized foraging habitats. Sighting 

data also indicate that NARWs may 

investigate a previously preferred 

habitat, but not stay if the prey resource 

is insufficient, so some habitats 

previously used no longer have high 

densities of NARWs (Davies et al. 2019; 

Davis et al. 2017). As described above, 

NARW presence in the project area is 

year-round; however, abundance during 

summer months is low compared to 

winter months with spring and fall 

serving as ‘‘shoulder seasons’’ wherein 

abundance waxes (fall) or wanes 

(spring). During aerial surveys 

conducted from 2011–2015 in the 

project area, NARW sightings occurred 

only December through April, with no 

sightings from May through November 

(Kraus et al., 2016). There was not 

significant variability in sighting rate 

among years, indicating consistent 

annual seasonal use of the area by right 

whales during those years (Kraus et al., 

2016). More recently, seasonal 

distribution patterns of right whales 

have been less consistent, with right 

whales observed near the project area in 

late summer and fall. For example, in 

2019 and 2020, NARWs were observed 

in August and September around 

Nantucket Shoals, triggering NMFS to 

establish a DMA that last several weeks 

each year; however, these sightings 

around Nantucket Shoals are 

approximately 20–30 kms east of the 

most eastern edge of the project area and 

outside the Level B harassment zones 

created by the activities. Figure 2 

provides a map of all sightings from 

June 1 through November 31, annually, 

for the years 2010 through 2020 as well 

as 2021 to date (Johnson, 2018). The 

2019 and 2020 cluster of sightings 

around Nantucket Shoals is prominent. 

Given this year-round habitat usage and 

in recognition where whales may 

actually occur during pile driving is 

largely influenced by unpredictable, 

patchy prey availability, NMFS has 

included a suite of mitigation measures 

designed to reduce impacts to NARWs 

to the maximum extent practicable. 

However, even in consideration of these 

recent habitat-use and distribution 

shifts, Vineyard Wind would be 

conducting pile driving when presence 

of NARWs is lower than in winter 

months, as reflected in the density data 

(Roberts et al., 2020; Table 9). 


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33846 Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 

The most significant measure in 

minimizing impacts to right whales is 

the seasonal pile driving moratorium 

that would occur from January through 

April, when NARW abundance in the 

project area is expected to be greatest. 

NMFS has also included a measure that 

no pile will occur in December (a time 

when NARW density is lower than 

January–April; however, is greater than 

summer and fall through November) 

unless unforeseen circumstances arise 

that require Vineyard Wind to complete 

the project. We also expect these 

measures to greatly reduce the potential 

for mother-calf pairs to be exposed to 

project-related noise above the Level B 

harassment threshold during their 

annual migration through the project 

area. In addition, mitigation and 

monitoring measures outside of those 

months will greatly minimize any takes 

that may otherwise occur. 

When pile driving does occur, 

Vineyard Wind is committed to 

reducing the noise levels generated by 

pile driving to the lowest levels 

practicable such that they do not exceed 

a noise footprint above that which was 

modeled assuming a 6 dB attenuation. 

Use of a soft start will allow animals to 

move away from (i.e., avoid) the sound 

source prior to reaching the hammer 

energy needed to install the pile 

(Vineyard Wind will not use a hammer 

energy greater than necessary to install 

piles). To reduce the amount of time the 

area may be ensonified (and thereby 

decrease exposure risk), Vineyard Wind 

will drive no more than two monopiles 

or four jacket pin piles per day. 

We expect that any avoidance of the 

project area by NARWs would be 

temporary in nature and that any NARW 

that avoids the project area during 

construction would not be permanently 

displaced. The IHA authorizes 20 takes 

of NARWs based on the maximum 

design scenario. This may be comprised 

of 20 individuals taken once or less than 

20 individuals taken on multiple days. 

The most likely scenario is some 

combination wherein a few individuals 

are taken only once and a few 

individuals are taken on more than one 

day. For those individuals where take is 

limited to one day, behavioral 

disturbance and other Level B 

harassment impacts that may occur 

during exposure to elevated noise levels 

(e.g., masking, stress) is likely 

insignificant. As described in the notice 

of proposed IHA, nearly all Population 

Consequences of Disturbance (PCOD) 

studies and experts agree that infrequent 

exposures from a single day or less are 

unlikely to impact individual fitness, let 

alone lead to population-level effects. 

There is potential for the same 

individual NARW to be exposed on 

multiple days; however, the risk is low. 

Pile driving is limited per day and 

would only begin in the absence of 

NARWs detected from PSOs on the pile 

driving vessel (at any distance) or 

within the designated PAM clearance 

zone. If pile driving has commenced, we 

anticipate NARWs would avoid the 

area, utilizing nearby habitats not 

impacted by the project. Further, during 

times of the year NARWs are most likely 

to be in the area, the clearance zones are 

much greater than the Level B 

harassment zone. However, should a 

NARW be exposed to pile driving noise 

above the Level B harassment threshold, 

pile driving would be shut down (if 

safe) thereby minimizing the duration 

and intensity of exposure. We anticipate 

if NARWs go undetected and they are 

exposed to pile driving noise, it would 

be to noise levels only slightly above the 

Level B harassment threshold as it is 

likely a NARW would not approach pile 

driving locations to the degree they 

would purposely expose themselves to 

very high noise levels. The 

implementation of a soft start would 

provide an opportunity for whales to 

move away from the source. Given any 

given exposure would likely involve 

noise levels on the low end of the Level 

B harassment spectrum and that animals 

would likely be at some great distance 

to the source, the magnitude of any 

Level B harassment is expected to be 

low. 


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Figure 2. All NARW detections (both visual and acoustic) from June 1 through November 

31, annually, 2010 through 2021. (Source: WhaleMap Accessed May 2021) 
Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 33847 

There are no known NARW mating or 

calving areas within the project area; 

however, as described above, it is as 

part of a larger core foraging area 

(Oleson et al., 2020). If a NARW does 

avoid foraging within the project area, 

there is ample foraging habitat for it 

adjacent to the project area that is not 

ensonified by the project’s pile driving 

noise. For example, in the fall of 2019 

and 2020, NARWs were particularly 

attracted to Nantucket Shoals, a known 

foraging hot spot. The nearest NARWs 

detections were approximately 30 kms 

away from the most western edge of the 

project area where pile driving would 

occur. Therefore, any noise from the 

project would not have impacted NARW 

foraging in this habitat should it have 

been occurring at the time. 

Prey for NARWs are mobile and 

broadly distributed throughout the 

project area; therefore, right whales that 

may be temporarily displaced during 

Vineyard Wind’s pile driving activities 

are expected to be able to resume 

foraging once they have moved away 

from areas with disturbing levels of 

underwater noise. Because of the 

temporary nature of the disturbance and 

the availability of similar habitat and 

resources in the surrounding area, the 

impacts to right whales and the food 

sources that they utilize are not 

expected to cause significant or longterm consequences for individual right 

whales or their population. Even 

repeated Level B harassment of some 

smaller number (<20) of individuals as 

a subset of the overall stock over several 

days is unlikely to result in any 

significant realized decrease in viability 

for the affected individuals, and thus 

would not result in any adverse impact 

to the stock as a whole. 

With respect to potential vessel strike, 

the IHA includes an extensive suite of 

mitigation measures designed to avoid 

ship strike and close approaches, 

including, but not limited it, separation 

distances, limiting vessel speed to 10 kts 

(18.5 km/hr) (except in the case of 

transiting crew transfer vessels in the 

transit route under specific conditions), 

use of observers and PAM for crew 

transfer vessels travelling in excess of 10 

kts (18.5 km/hr), training and 

communication protocols, and NARW 

observation system monitoring. As 

described above, given anticipated 

effectiveness of these measures on top of 

the already very low probability of a 

vessel strike, take from vessel strike is 

not anticipated or authorized. 

As described above, NARWs are 

experiencing an ongoing UME. The loss 

of even one individual could 

significantly impact the population. 

However, no mortality, serious injury or 

injury of right whales as a result of the 

project is expected or authorized. Any 

disturbance to NARWs due to exposure 

to pile driving noise (Level B 

harassment) is expected to result in 

temporary avoidance of the immediate 

area of construction. As no injury or 

mortality is expected or authorized, and 

Level B harassment of NARWs will be 

reduced to the level of least practicable 

adverse impact through use of 

mitigation measures, the authorized 

takes of right whales would not 

exacerbate or compound the ongoing 

UME in any way. 

NMFS concludes that exposures to 

NARWs would be greatly reduced due 

to the seasonal restrictions, and 

additional mitigation measures that 

would ensure that any exposures above 

the Level B harassment threshold would 

result in only short-term effects to 

individuals exposed. With 

implementation of the mitigation 

requirements, take by Level A 

harassment is unlikely and is 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 or 

potential alteration of vocalizations. 

Although unlikely given the NARWspecific mitigation, temporary threshold 

shift is another potential form of Level 

B harassment and could result in brief 

periods of slightly reduced hearing 

sensitivity that could affect behavioral 

patterns by making it more difficult to 

hear or interpret acoustic cues in the 

frequency range of pile driving (and 

slightly above)—however, it is unlikely 

that any individuals would be exposed 

to piling noise at a distance or duration 

that would have more than brief and 

minor impacts, which would not be 

expected to affect the fitness of any 

individuals. 

In order to evaluate whether or not 

individual behavioral responses, in 

combination with other stressors, 

impact animal populations, scientists 

have developed theoretical frameworks 

which can then be applied to particular 

case studies when the supporting data 

are available. One such framework is the 

Population Consequences of 

Disturbance Model (PCoD), which 

attempts to assess the combined effects 

of individual animal exposures to 

stressors at the population level (NAS 

2017). Nearly all PCoD studies and 

experts agree that infrequent exposures 

of a single day or less are unlikely to 

impact individual fitness, let alone lead 

to population level effects (Booth et al. 

2016; Booth et al. 2017; Christiansen 

and Lusseau 2015; Farmer et al. 2018; 

Harris et al. 2017; Harwood and Booth 

2016; King et al. 2015; McHuron et al. 

2018; NAS 2017; New et al. 2014; 

Pirotta et al. 2018; Southall et al. 2007; 

Villegas-Amtmann et al. 2015). Since 

NMFS expects that any exposures 

would be brief, and the likelihood or 

repeat exposures to the same 

individuals is low (but possible), any 

behavioral responses that would occur 

due to animals being exposed to pile 

driving noise are expected to be 

temporary, with behavior returning to a 

baseline state shortly after the acoustic 

stimuli ceases. Given this, and NMFS’ 

evaluation of the available PCoD 

studies, any such behavioral responses 

are not expected to impact individual 

animals’ health or have effects on 

individual animals’ survival or 

reproduction, thus no detrimental 

impacts at the population or stock level 

are anticipated. NARWs may 

temporarily avoid the immediate area 

but are not expected to permanently 

abandon the area. Further, while the 

project area may be used as foraging 

habitat, the surrounding area, including 

Nantucket Shoals where NARWs are 

most likely to congregate, is 

approximately 20–30 kms west of the 

project area. Therefore, noise from the 

project in this area will be minimal to 

none and well below the 160 dB rms 

Level B harassment threshold. In 

addition, the amount of Level B take 

authorized in the IHA is limited to 20. 

Under the ITS, less take is authorized if 

fewer piles are ultimately installed, 

meaning the authorized level of take 

may be lower for NARW. 

In our IHA, up to 20 NARW 

individuals could be behaviorally 

disturbed or some fewer number of 

individual right whales could be 

behaviorally disturbed on more than 

one day, but no more than 20 instances 

of take would occur. Given most pile 

driving would occur during a time when 

NARW is much lower than January 

through May (when pile driving is, 

under no circumstances, allowed to 

proceed) and given the required 

mitigation and monitoring, it is highly 

unlikely a single NARW would absorb 

all the authorized take (i.e., the same 

whale taken on 20 different days). 

Because the project area is both a 

migratory corridor and foraging area, it 

is likely a subset of whales will be 

exposed only once and some subset 

would be exposed on more than one 

day. 

While there may be temporary 

impacts to behaviors such as foraging 

near pile driving activities, meaningful 

shifts in habitat use, distribution, or 

foraging success are not anticipated. 

Given the suite of mitigation measures 

in the IHA, if a NARW is exposed to 


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noise levels that may result in Level B 

harassment, this exposure would occur 

at distance. Because sound loses energy 

as it moves away from the source, 

received levels at distance would be low 

and any resulting behavioral changes 

are anticipated to be low in severity. We 

also expect NARWs to avoid areas with 

high noise levels. NMFS does not 

anticipate NARW harassment that may 

result from Vineyard Wind’s planned 

pile driving would impact the 

reproduction or survival of any 

individual NARWs, much less annual 

rates of recruitment or survival. 

All Other Marine Mammal Species 

Impact pile driving has source 

characteristics (short, sharp pulses with 

higher peak levels and sharper rise time 

to reach those peaks) that are potentially 

injurious or more likely to produce 

severe behavioral reactions. However, 

modeling indicates there is limited 

potential for injury even in the absence 

of the mitigation measures, with several 

species predicted to experience no Level 

A harassment based on modeling results 

(Tables 10–13). In addition, the 

potential for injury is expected to be 

greatly minimized through 

implementation of mitigation measures 

including soft start, use of a sound 

attenuation system, and the 

implementation of clearance zones that 

would facilitate a delay of pile driving 

if marine mammals were observed 

approaching or within areas that could 

be ensonified above sound levels that 

could result in auditory injury. Given 

sufficient notice through use of soft 

start, marine mammals are expected to 

move away from a sound source that is 

annoying prior to it becoming 

potentially injurious (i.e., PTS) or 

resulting in more severe behavioral 

reactions. The requirement that pile 

driving can only commence when the 

full extent of all clearance zones are 

fully visible to PSOs will ensure a high 

marine mammal detection capability, 

enabling a high rate of success in 

implementation of clearance zones to 

avoid injury. 

We expect that any take resulting 

from exposures above the Level A 

harassment threshold would be in the 

form of slight PTS, i.e., minor 

degradation of hearing capabilities 

within regions of hearing that align most 

completely with the energy produced by 

pile driving (i.e., the low-frequency 

region below 2 kHz), not severe hearing 

impairment. If hearing impairment 

occurs, 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. However, given sufficient 

notice through use of soft start, marine 

mammals are expected to move away 

from a sound source that is annoying 

prior to it becoming potentially 

injurious or resulting in more severe 

behavioral reactions. 

Additionally, the numbers of 

exposures above the Level A harassment 

authorized are relatively low for all 

marine mammal stocks and species: For 

13 of 15 stocks, we authorize no more 

than 10 takes by Level A harassment 

over the duration of Vineyard Wind’s 

planned pile driving activities; for the 

other two stocks we propose to 

authorize no more than 35 takes by 

Level A harassment. As described 

above, we expect that marine mammals 

would be likely to move away from a 

sound source that represents an aversive 

stimulus, especially at levels that would 

be expected to result in PTS, given 

sufficient notice through use of soft 

start, thereby minimizing the degree of 

PTS that would be incurred. Any PTS 

incurred would likely be a slight shift in 

hearing threshold and be limited to 

lower frequencies produced by pile 

driving. 

NMFS has authorized an amount of 

Level B harassment take for all marine 

mammal species based on either 

sophisticated modeling or information 

reflected in field data (e.g., monitoring 

reports, group sizes). To be 

conservative, NMFS authorized 

whichever method resulted in a greater 

amount of take). This take reflects 

behavioral disturbance directly in 

response to noise exposure (e.g., 

avoidance) or indirectly from associated 

impacts such as TTS or masking. Both 

the amount and intensity of Level B 

harassment will be reduced to the level 

of least practicable adverse impact 

through use of mitigation measures and, 

if sound produced by pile driving is 

sufficiently disturbing, marine 

mammals are likely to simply avoid the 

area while the activity is occurring. 

Effects on individuals that are taken by 

Level B harassment, on the basis of 

reports in the literature as well as 

monitoring from other similar activities, 

will likely be limited to reactions such 

as increased swimming speeds, 

increased surfacing time, or decreased 

foraging (if such activity were occurring) 

(e.g., Thorson and Reyff, 2006; HDR, 

Inc., 2012; Lerma, 2014). Most likely, 

individuals will simply move away 

from the sound source and temporarily 

avoid the area where pile driving is 

occurring. Therefore, we expect that 

animals annoyed by project sound 

would simply avoid the area during pile 

driving in favor of other, similar 

habitats. We expect that any avoidance 

of the project area by marine mammals 

would be temporary in nature and that 

any marine mammals that avoid the 

project area during construction would 

not be permanently displaced. 

Feeding behavior is not likely to be 

significantly impacted, as prey species 

are mobile and are broadly distributed 

throughout the project area and likely 

only respond temporarily to exposure to 

pile driving noise; therefore, marine 

mammals that may be temporarily 

displaced during construction activities 

are expected to be able to resume 

foraging once they have moved away 

from areas with disturbing levels of 

underwater noise. Soft starts would 

allow prey to move away from the 

source prior to any noise levels that may 

physically injure prey and the use of the 

noise attenuation devices would reduce 

noise levels to the degree any mortality 

or injury of prey is also minimized. Use 

of bubble curtains, for example, is a key 

mitigation measure in reducing injury 

and mortality of ESA-listed salmon on 

the west coast. However, we recognize 

some mortality, physical injury and 

hearing impairment in marine mammal 

prey may occur but we anticipate the 

amount of prey impacted in this manner 

is minimal compared to overall 

availability. Any behavioral responses 

by marine mammal prey are expected to 

be brief. For example, Jones et al. (2020) 

found that when squid (Doryteuthis 

pealeii) were exposed to impulse pile 

driving noise, body pattern changes, 

inking, jetting, and startle responses 

were observed and nearly all squid 

exhibited at least one response. 

However, these responses occurred 

primarily during the first eight impulses 

and diminished quickly, indicating 

potential rapid, short-term habituation. 

We expect that other impacts such as 

stress or masking would occur in fish 

that serve as marine mammals prey 

(Thomas et al. 2006); however, those 

impacts would be limited to the 

duration of pile driving and, if prey 

were to move out the area in response 

to noise, these impacts would be 

minimized. 

Because of the temporary nature of 

the disturbance and the availability of 

similar habitat and resources in the 

surrounding area, the impacts to marine 

mammals and the food sources that they 

utilize are not expected to cause 

significant or long-term consequences 

for individual marine mammals or their 

populations. There are no notable areas 

of biological significance for non-NARW 

marine mammal feeding activity known 

to exist within the WDA. A fin whale 

BIA (foraging; March–October) is 

delineated to the east of the WDA and 

a minke whale BIA (foraging, March– 


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November) is delineated west of the 

WDA. While marine mammals may be 

able to detect pile driving noise within 

the edges of the BIAs closest to pile 

driving activities, it is unlikely noise 

levels would rise to the level where any 

foraging behavior is anticipated to be 

impacted from pile driving activities. In 

addition, there are no rookeries or 

mating or calving areas known to be 

biologically important to marine 

mammals within the project area. 

Repeated exposures of individuals to 

relatively low levels of sound outside of 

preferred habitat areas are unlikely to 

significantly disrupt critical behaviors. 

Thus, even repeated Level B harassment 

of some small subset of an overall stock 

is unlikely to result in any significant 

realized decrease in viability for the 

affected individuals, and thus would 

not result in any adverse impact to the 

stock as a whole. 

NMFS concludes that exposures to 

marine mammals due to Vineyard 

Wind’s activity would result in only 

short-term effects to individuals 

exposed to pile driving. Marine 

mammals may temporarily avoid the 

immediate area but are not expected to 

permanently abandon the area. Impacts 

to breeding, feeding, sheltering, resting, 

or migration are not expected, nor are 

shifts in habitat use, distribution, or 

foraging success. NMFS does not 

anticipate the marine mammal takes 

that would result from the planned 

activity would impact annual rates of 

recruitment or survival. 

As described in the notice of 

proposed IHA (84 FR 18346; April 30, 

2019), humpback whales, minke whales, 

and gray, harbor and harp seals are 

experiencing ongoing UMEs. For minke 

whales and seals, although the ongoing 

UME is under investigation (as occurs 

for all UMEs), this event does not 

provide cause for concern regarding 

population level impacts. The minke 

whale population abundance is greater 

than 20,000 whales. Even though the 

PBR value is based on an abundance for 

U.S. waters that is negatively biased and 

a small fraction of the true population 

abundance, annual M/SI does not 

exceed the calculated PBR value for 

minke whales. For harbor seals, the 

population abundance is over 75,000 

and annual M/SI (345) is well below 

PBR (2,006) (Hayes et al., 2018). For 

gray seals, the population abundance is 

over 27,000, and abundance is likely 

increasing in the U.S. Atlantic EEZ and 

in Canada (Hayes et al., 2018). For harp 

seals, the current population trend in 

U.S. waters is unknown, as is PBR 

(Hayes et al., 2018), however the 

population abundance is over 7 million 

seals, suggesting that the UME is 

unlikely to result in population-level 

impacts (Hayes et al., 2018). With regard 

to humpback whales, the population is 

facing a UME wherein elevated 

strandings have occurred since 2016 

and are ongoing. A portion of the 

whales have shown evidence of premortem vessel strike; however, this 

finding is not consistent across all 

whales examined and investigations are 

ongoing. Animals involved in this UME 

primarily belong to the West Indies 

Distinct Population Segment (DPS) of 

which the Gulf of Maine stock is a part. 

While the MMPA designated Gulf of 

Maine stock is relatively small (n = 

1,393), the most recent population 

estimate for the ESA-designated West 

Indies DPS (of which animals belonging 

to the Gulf of Maine stock also belong) 

is approximately 10,400 animals (Smith 

et al, 2009). The UME is a cause for 

concern to the Gulf of Maine stock; 

however, the taking associated with the 

issuance of the IHA is not anticipated to 

contribute to the UME or impact the 

stock such that it would affect annual 

rates or recruitment or survival. 

Authorized takes by Level A harassment 

for all species are very low (i.e., no more 

than 10 takes by Level A harassment 

authorized for any of these species) and 

as described above, any Level A 

harassment would be expected to be in 

the form of slight PTS, i.e., minor 

degradation of hearing capabilities 

which is not likely to meaningfully 

affect the ability to forage or 

communicate with conspecifics. Even 

absent mitigation, no serious injury or 

mortality from pile driving is 

anticipated. The suite of measures for 

vessel operation and monitoring ensure 

risk of serious injury or mortality from 

ship strikes is minimized such that the 

probability of a strike is de minimus. 

Mortality and serious injury is neither 

expected nor authorized, and Level B 

harassment of humpback whales and 

minke whales and gray, harbor and harp 

seals will be reduced to the level of least 

practicable adverse impact through 

implementation of mitigation measures. 

As such, the authorized takes of these 

species would not exacerbate or 

compound the ongoing UMEs in any 

way. 

In summary and as described above, 

the following factors primarily support 

our determination that the impacts 

resulting from this activity are not 

expected to adversely affect any marine 

mammal species or stock through effects 

on annual rates of recruitment or 

survival: 

• No mortality or serious injury is 

anticipated or authorized and no Level 

A take of ESA-listed marine mammals is 

authorized; 

• Instances of Level A harassment are 

limited for all impacted species and 

would be in the form of a slight PTS; 

• Level B harassment would be in the 

form of behavioral disturbance, 

primarily resulting in avoidance of the 

project area around where pile driving 

is occurring, and some low-level TTS 

and masking that may limit the 

detection of acoustic cues for relatively 

brief amounts of time. 

• Repeated disturbance to some 

individuals, including a very limited 

number of NARWs, may occur; 

however, any resulting behavioral 

reactions from exposure to pile driving 

noise (e.g., avoidance, short-term 

cessation of foraging) are not expected 

to result in impacts to any stock’s 

reproduction or survival. 

• Total authorized takes as a 

percentage of population are very low 

for all species and stocks impacted (i.e., 

less than 5.5 percent for all stocks, and 

less than 1 percent for 10 of 15 stocks); 

• Areas of similar habitat value are 

available for marine mammals that may 

temporarily vacate the project area 

during construction; 

• Effects on species that serve as prey 

for marine mammals from the activity 

are expected to be short-term and are 

not expected to result in significant or 

long-term consequences for individual 

marine mammals, or to contribute to 

adverse impacts on their populations; 

• A biologically important migratory 

area exists for NARWs, however the 

required seasonal moratorium on 

construction is expected to largely avoid 

impacts to the NARW migration, as 

described above. The project area 

encompasses a subset of a core yearround foraging habitat; however, there 

are areas within this core foraging 

habitat that would not be impacted by 

project noise. Further, any noise within 

the project area would be temporary 

given the limitation to the amount of 

pile driving and time of day pile driving 

could occur. Moreover, potential for 

exposure from noise causing behavioral 

disruptions such as a cessation of 

foraging is also more reduced through 

implementation of the required 

mitigation measures (e.g., requiring a 

delay in pile driving should a NARW be 

observed at any distance by PSOs on the 

pile driving vessel would limit any 

disruption of foraging). 

• There are no known important 

feeding, breeding or calving areas in the 

project area for all other marine 

mammals within the project area. A 

foraging BIA exists for fin and minke 

whales in the general region of southern 

New England; however, any received 

levels within these areas would be low 

given their distance from the WDA and 


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therefore exposure to these low levels 

(while possibly audible) are not 

expected to result in disruption of 

foraging within the BIAs. 

• The required mitigation measures, 

including visual and acoustic 

monitoring, clearance zones, and soft 

start, are expected to minimize potential 

impacts to marine mammals and effect 

the least practicable adverse impact on 

all marine mammals. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

monitoring and mitigation measures, 

NMFS finds that the total marine 

mammal take from Vineyard Wind’s 

planned activity will have a negligible 

impact on all affected marine mammal 

species or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under sections 101(a)(5)(A) and (D) of 

the MMPA for specified activities other 

than military readiness activities. The 

MMPA does not define small numbers 

and so, in practice, where estimated 

numbers are available, NMFS compares 

the number of individuals 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. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

We authorize incidental take of 15 

marine mammal stocks. The total 

amount of taking authorized is less than 

5.5 percent for five of these stocks, and 

less than 1 percent for the remaining 10 

stocks (Table 15), which we consider to 

be relatively small percentages and we 

find are small numbers of marine 

mammals relative to the estimated 

overall population abundances for those 

stocks. 

Based on the analysis contained 

herein of the planned activity (including 

the mitigation and monitoring 

measures) and the anticipated take of 

marine mammals, NMFS finds that 

small numbers of marine mammals will 

be taken relative to the population size 

of all 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. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and 

NOAA Administrative Order (NAO) 

216–6A, NMFS must review our 

proposed action (i.e., the issuance of an 

incidental harassment authorization) 

with respect to potential impacts on the 

human environment. In compliance 

with NEPA, as implemented by the 

regulations published by the Council on 

Environmental Quality (40 CFR parts 

1500–1508 (1978)), the Bureau of Ocean 

Energy Management (BOEM) prepared 

an Environmental Impact Statement 

(EIS) to consider the direct, indirect and 

cumulative effects to the human 

environment resulting from the 

Vineyard Wind project. NMFS has 

participated as a cooperating agency on 

BOEM’s EIS and provided technical 

expertise to BOEM in development of 

the document as it pertains to NMFS 

trust resources, including marine 

mammals. BOEM’s Draft EIS was made 

available for public comment from 

December 7, 2018 to February 22, 2019. 

A Supplement to the Draft EIS was 

subsequently made available for public 

comment from June 12, 2020 to July 27, 

2020; both the Draft EIS and 

Supplement to the Draft EIS were made 

available online at: www.boem.gov/ 

Vineyard-Wind. BOEM published a 

Notice of Availability of the Final EIS 

on March 8, 2021. As a cooperating 

agency, NMFS reviewed and provided 

comments related to NMFS trust 

resources, including marine mammals, 

on the Draft EIS, Supplement to the 

Draft EIS and cooperating agency review 

draft of the Final EIS. In compliance 

with NEPA and the CEQ regulations (40 

CFR 1506.3), as well as NOAA 

Administrative Order 216–6 and its 

Companion Manual, NMFS has 

reviewed BOEM’s Final EIS, determined 

it to be sufficient, and adopted that 

Final EIS which adequately evaluates 

the direct, indirect and cumulative 

impacts of NMFS’s proposed action to 

issue an IHA under the MMPA to 

Vineyard Wind for its offshore 

commercial wind project. NMFS has 

further determined that its comments 

and suggestions as a cooperating agency 

have been satisfied and recirculation of 

BOEM’s EIS is therefore unnecessary (40 

CFR 1506.3(c)). NMFS signed a joint 

Record of Decision (ROD) on May 10, 

2021. 

Endangered Species Act 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (ESA: 16 U.S.C. 

1531 et seq.) requires that each Federal 

agency insure 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 issuance of 

IHAs, NMFS consults internally, in this 

case with the NMFS Greater Atlantic 

Regional Fisheries Office (GARFO), 

whenever we propose to authorize take 

for endangered or threatened species. 

The NMFS Office of Protected 

Resources Permits and Conservation 

Division is authorizing the incidental 

take of four species of marine mammals 

which are listed under the ESA: The 

North Atlantic right, fin, sei and sperm 

whale. We requested initiation of 

consultation under Section 7 of the ESA 

with NMFS GARFO on April 26, 2019, 

for the issuance of this IHA. On 

September 11, 2020, NMFS GARFO 

issued a Biological Opinion concluding 

that these activities may adversely affect 

but are not likely to jeopardize the 

continued existence of North Atlantic 

right, fin, sei and sperm whales. 

The ITS issued with the Biological 

Opinion authorizes take of ESA-listed 

species based on the number of turbines 

that will actually be constructed. This 

means that if fewer turbines are 

constructed, fewer takes of ESA-listed 

species are authorized by the ITS. This 

scaled approach reflects how NMFS 

GARFO chose to satisfy requirements 

under ESA. Under Section 7 of the ESA, 

a biological opinion reviews a proposed 

action, as reasonably defined by the 

action agency, and assesses the ‘‘effects 

of the action.’’ BOEM sought 

consultation on its proposed action, 

which it defined using a reasonable 

‘‘maximum design envelope.’’ The 

maximum design envelope, however, 

was not necessarily what would actually 

be constructed. Under regulations 

implementing Section 7 of the ESA, 

‘‘effects of the action’’ include all 

consequences to listed species caused 

by the proposed action. A consequence 

is caused by the proposed action if it 

would not occur but for the proposed 

action and it is reasonably certain to 

occur. In the Biological Opinion, NMFS 

GARFO evaluated effects from driving a 

range of piles up to the design 

envelope’s maximum number of pile 

foundations (57 to 102) and then scaled 

the take numbers in the ITS based on 

the number of turbines that will be 

constructed so that the amount of 


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incidental take that is reasonably certain 

to occur and, therefore, commensurate 

with the actual construction. Without 

scaling, the ITS would have exempted 

more incidental take of ESA-listed 

species than is reasonably certain to 

occur. Since the scaled approach is a 

function of the ITS for this project, it 

only applies to ESA-listed marine 

mammals in the IHA. 

Consultation has been reinitiated on 

the September 11, 2020 Biological 

Opinion and ITS. However, they remain 

valid and effective until reinitiated 

consultation is completed. 

Authorization 

NMFS has issued an IHA to Vineyard 

Wind authorizing take of marine 

mammals incidental to pile driving 

associated with the construction of the 

proposed wind project offshore of 

Massachusetts, for a period of one year, 

from May 1, 2023 through April 30, 

2024. Vineyard Wind is required to 

abide by all mitigation, monitoring, and 

reporting requirements in the IHA. 

Dated: June 15, 2021. 

Catherine Marzin, 

Acting Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2021–13501 Filed 6–24–21; 8:45 am] 

BILLING CODE 3510–22–P 


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