[Federal Register Volume 75, Number 192 (Tuesday, October 5, 2010)]
[Notices]
[Pages 61426-61432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24987]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XW81


Takes of Marine Mammals Incidental to Specified Activities; 
Installation of Meteorological Data Collection Facilities in the Mid-
Atlantic Outer Continental Shelf

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

ACTION:  Notice; issuance of incidental harassment authorization.

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SUMMARY:  In accordance with regulations implementing section the 
Marine Mammal Protection Act (MMPA), as amended, notification is hereby 
given that an Incidental Harassment Authorization (IHA) to take marine 
mammals, by harassment, incidental to pile driving associated with 
installation of two meteorological data collection facilities (MDCFs); 
one each off the coast of Delaware and New Jersey, has been issued to 
Bluewater Wind, LLC (Bluewater).

DATES:  This authorization is effective from October 1- November 15, 
2010.

ADDRESSES:  A copy of the application, IHA, and a list of references 
used in this document may be obtained by writing to P. Michael Payne, 
Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225. A copy of the application may be 
obtained by writing to this address or by telephoning the contact 
listed here and is also available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

FOR FURTHER INFORMATION CONTACT:  Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 151.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce 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 authorization is 
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), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization.
    Except with respect to certain activities not pertinent here, 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].

Summary of Request

    On May 5, 2010, NMFS received two applications from Bluewater for 
the taking, by Level B harassment, of marine mammals incidental to pile 
driving associated with installation of a MDCF in Federal waters 
approximately 16.5 miles off the coast of Delaware and one 
approximately 20 miles off the coast of New Jersey during October 2010. 
Bluewater provided supplemental information to NMFS on June 8, 2010, 
completing the applications. In summary, to build each MDCF, Bluewater 
must drive, via an impact hammer, a single 3-meter pile into the seabed 
which will act as the foundation to elevate and support the data 
collection device. Pile driving has the potential to result in the 
take, by Level B harassment, of eight species marine mammals within the 
action area as it elevates underwater noise levels. Since pile driving 
has the potential to take marine mammals, a marine mammal take 
authorization under the MMPA is required.

Description of the Specified Activity

    In November 2009, the Bureau of Ocean Energy Management (BOEM), 
formerly the Mineral Management Service, issued a lease to Bluewater 
for construction and operation of MDCFs designed to support future 
development of, among other companies, Bluewater's planned Delaware and 
New Jersey Offshore Wind Parks. The purpose of installing the MDCFs is 
to determine the feasibility of a commercial-scale offshore wind energy 
park at the proposed project site. Bluewater will collect and analyze 
at least one full year of meteorological data inclusive of wind speed 
and direction at multiple heights, information on other seasonal 
meteorological conditions (e.g., turbulence, temperature, pressure, and 
atmospheric stability), the marine environment (e.g., ocean currents, 
tides, and waves), and avian and bat activity (e.g., activity within 
the potential rotor swept area, flight altitude). The IHA authorizes 
the take, by Level B harassment only, of marine mammals incidental to 
pile driving the monopole foundation required to support the wind data 
collection devices, not future installation of wind turbines.
    Bluewater will install a single 3-meter diameter pile foundation to 
elevate and stabilize a data collection device at two locations; one 
located in the Outer Continental Shelf (OCS) Official Protraction 
Diagram (OPD) lease block Salisbury, NJ 18-05 Lease Block 6325 
(approximately16 miles off Delaware) and one at OCS OPD lease block 
Wilmington, NJ 18-02 Block 6936 (approximately 20 miles off NJ). The 
mean lower low water depth (MLLW) at the Delaware and New Jersey site 
is approximately 69 feet (21 m) and 82 feet (25 m), respectively. Pile 
driving is scheduled to occur in October 2010; however, given 
unforeseen construction or weather related delays, NMFS has made the 
IHA effective until November 15, 2010.
    To install the monopole foundation, Bluewater will use an IHC-S 900 
Hydraulic Impact Hammer (or equal)

[[Page 61427]]

with a maximum rated impact force of 900 kilojoules (KJ). Bluewater 
anticipates it will take approximately 8 to 12 hours to mobilize and 
demobilize the construction vessels on site; however, only 3-8 of these 
hours will be spent pile driving. The two MDCFs will not be installed 
simultaneously; the Delaware MDCF will be installed first followed by 
the New Jersey MDCF approximately 1-2 weeks later. Because of physical 
parameters associated with this project (e.g., pile size, water depth), 
Bluewater has indicated a vibratory hammer cannot be used. Pile driving 
activities will be restricted to daylight hours between one-half hour 
after sunrise and one-half hour prior to sunset. A complete description 
of installation techniques and associated noise levels can be found in 
the proposed IHA notice for this action (75 FR 42698; July 22, 2010).

Comments and Responses

    A notice of receipt and request for public comment on the Federal 
Register notice of proposed authorization was published on July 22, 
2010 (75 FR 42698). NMFS also made BOEM's EA available for comment 
during this time. During the 30-day public comment period, NMFS 
received comments from the Marine Mammal Commission (Commission) on the 
proposed IHA. No comments were received by any other members of the 
public and none were received on BOEM's EA.
    Comment 1: The Commission recommended that, prior to issuance of 
the IHA, NMFS require that observations be made during all soft-starts 
of pile driving activities to gather data needed to analyze and report 
on its effectiveness as a mitigation measure.
    Response: As described in the proposed IHA Federal Register notice, 
protected species observers (PSOs) will be stationed at the pile 
driving location and on two vessels before, during, and after all pile 
driving. This includes the time before and during soft starts of the 
pile hammer. Bluewater is not authorized to begin pile driving should 
any marine mammal be located within the Level A harassment zone or if 
any marine mammal listed as endangered or threatened under the 
Endangered Species Act (ESA) is located within approximately 7 km of 
the hammer. Therefore, data on reactions of marine mammals to soft 
starts very close to the hammer or any ESA marine mammal is not 
possible. However, if species authorized to be taken are within the 
Level B harassment zone during a soft start, data on behavioral 
reactions of those animals will be recorded and reported to NMFS, as 
described in the proposed IHA notice.

Description of Marine Mammals in the Area of the Specified Activity

    Several species of marine mammals are known to traverse or 
occasionally inhabit the waters within the action area of project 
construction activities, including some species listed as threatened or 
endangered under the ESA. Thirty-four marine mammal species including 
29 cetaceans, four pinnipeds, and one sirenian species have confirmed 
occurrences in the mid-Atlantic OCS. A list of these species may be 
found in the proposed IHA notice for this action.
    Some marine mammals species are likely to occur within the action 
area more so than others; however, marine mammal occurrence within the 
action areas during the 3-8 hours of pile driving per site is expected 
to be minimal. Marine mammal aerial and vessel based surveys were 
conducted from January through December 2008 to better assess species 
present within the action area. In addition, multiple geophysical and 
geotechnical (G&G) surveys were conducted by three wind park developers 
off the coast of New Jersey, all of which had dedicated protected 
species observers onboard the survey vessel. Reports from all surveys 
were prepared and provided to NMFS to determine species abundance 
within the action area (Geo-Marine, 2008; RPS GeoCet, 2009; AIS, 2009; 
Geo-Marine, 2009). In general, sightings of marine mammals included 
large whale and delphinid species; however, sightings were uncommon. 
The proposed IHA notice for this action further describes these survey 
results.
    Although ESA-listed whales may be present in OCS waters during the 
scheduled pile driving timeframe, Bluewater will implement mitigation 
measures such that no ESA-listed marine mammal, including North 
Atlantic right whales, will be exposed to sound levels at or above NMFS 
behavioral harassment threshold for impulsive noise (i.e., 160 dB re: 1 
microPa). Therefore, NMFS has issued authorization to harass eight 
species of marine mammals incidental to MDCF installation off Delaware 
and New Jersey. These include bottlenose dolphins, spotted dolphins, 
common dolphins, Atlantic white-sided dolphins, Risso's dolphins, pilot 
whales, harbor porpoise, and harbor seals; none of these species are 
listed under the ESA. The western north Atlantic coastal stock of 
bottlenose dolphins is the only species listed as depleted under the 
MMPA. The action area does not provide significant reproductive, 
migratory and feeding habitat for any marine mammal. Animals will 
likely be transiting through the area or opportunistically resting or 
foraging. A detailed description on species status, abundance, and 
ecology of the eight species of cetaceans and pinnipeds that may be 
taken from the specified activity are provided in the IHA application 
and proposed IHA notice for this action.

Effects on Marine Mammals

    NMFS has determined that open-water impact pile driving of the 
single monopole at each site, as outlined in the project description, 
has the potential to result in short term-behavioral harassment of 
marine mammals if they are present near the action area. Impacts would 
not exceed the duration of time animals are exposed to pile driving 
sound. At maximum, this would be 3-8 hours. However, the action area is 
located in habitat animals use for traveling; therefore, it is not 
expected that an animal would remain in the area for an extended 
duration of time. In addition, pile driving at the sites will not occur 
concurrently; therefore, no cumulative impacts from multiple pile 
driving activities would occur. Bluewater will implement mitigation and 
monitoring measures designed to eliminate potential for Level A 
(injurious) harassment of all marine mammals and also Level A or B 
harassment of ESA-listed marine mammals (see Proposed Mitigation 
section).
    NMFS is in the process of developing guidelines for determining 
sound pressure level (SPL) thresholds for acoustic harassment based on 
the best available science. In the interim, NMFS generally considers 
180 and 190 dB root mean square (rms) as the level at which cetaceans 
and pinnipeds, respectively, could be subjected to Level A (injurious) 
harassment. Level B (behavioral) harassment has the potential to occur 
if marine mammals are exposed to pulsed sounds (e.g. impact pile 
driving) at or above 160 dB rms, but below injurious thresholds. These 
thresholds are considered conservative.
    Bluewater analyzed pile driving data collected during offshore wind 
farm construction in European waters to estimate the distances to NMFS' 
threshold levels during pile driving off Delaware and New Jersey (see 
sections 2.2 and 2.3 in Bluewater's IHA application). Table 1 below 
summarizes the estimated distances to NMFS' Level A and B harassment 
isopleths at each location based on Bluewater's modeling. Water depth 
is the main contributing

[[Page 61428]]

factor to any discrepancy between the two proposed sites.

                    Table 1. Estimated distances to NMFS' harassment thresholds for impact pile driving off Delaware and New Jersey.
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              Site Location                   190 dB re: 1 microPa (rms)\1\        180 dB re: 1 microPa (rms)\2\        160 dB re: 1 microPa (rms)\3\
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               OCS-Delaware                                             330 m                                760 m                              7,230 m
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              OCS-New Jersey                                            375 m                              1,000 m                             >6,600 m
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\1\ Level A harassment threshold for pinnipeds in water.
\2\ Level A harassment threshold for cetaceans.
\3\ Level B harassment thresholds for pinnipeds and cetaceans from impulsive noise.

Hearing Impairment

    Temporary or permanent hearing impairment is possible when marine 
mammals are exposed to very loud sounds. Hearing impairment is measured 
in two forms: temporary threshold shift (TTS) and permanent threshold 
shift (PTS). There are no empirical data for onset of PTS in any marine 
mammal; therefore, PTS- onset must be estimated from TTS-onset 
measurements and from the rate of TTS growth with increasing exposure 
levels above the level eliciting TTS-onset. PTS is presumed to be 
likely if the hearing threshold is reduced by [gteqt]40 dB (i.e., 40 dB 
of TTS). Due to mitigation measures identified in Bluewater's 
application and the IHA, NMFS does not expect that marine mammals will 
be exposed to levels that could elicit PTS; therefore, it will not be 
discussed further.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). Few data on sound levels and 
durations necessary to elicit mild TTS have been obtained for marine 
mammals. Because it is non-injurious, NMFS considers TTS as Level B 
harassment that is mediated by physiological effects on the auditory 
system; however, NMFS does not consider onset TTS to be the lowest 
level at which Level B harassment may occur.
    Of all marine mammals which could be encountered during the very 
short pile driving period (3-8 hours), bottlenose and spotted dolphins 
are the species most likely to come within the action area as they are 
the most abundant. Bottlenose dolphins have been the subject for most 
TTS studies and can be considered a surrogate for other delphinids 
(e.g., spotted dolphins, common dolphins) that may be exposed to 
Bluewater's pile driving activity. For bottlenose dolphins, eight 
different captive individuals have been exposed to impulsive 
anthropogenic sound, with TTS being induced in five individuals 
(Schlundt et al., 2000; Nachtigall et al., 2004; Finneran et al., 2007; 
Mooney et al., 2009). TTS onset occurred when animals were exposed to 
sound levels ranging from 182 to 203 dB re: 1microPa\2\-s (SEL), with a 
median TTS onset level of 192.5 dB SEL. For pinnipeds, underwater TTS 
experiments involving exposure to pulse noise is limited to a single 
study. Finneran et al. (2003) found no measurable TTS when two 
California sea lions were exposed to sounds up to 183 dB re: 1 microPa 
(peak-to-peak). No TTS studies have been conducted on mysticetes; 
therefore, no data exist. However, if the pattern holds true as that 
for mid frequency cetaceans and pinnipeds, one can assume that TTS 
occurs in mysticetes at levels much higher than NMFS' Level B 
behavioral harassment threshold for impulsive noise (i.e., 160 dB rms) 
and likely above NMFS' Level A (injurious) harassment thresholds.
    Although Bluewater's pile driving will be both loud and continuous 
for 3-8 hours, NMFS anticipates that if TTS does occur, it will be 
short in duration as (1) pile driving will cease if animals come within 
the 190 or 180 dB isopleth for pinnipeds and cetaceans, respectively, 
and (2) marine mammals will likely not linger in areas with sound 
pressure levels high enough to induce long-term TTS.

Behavioral Impacts

    NMFS has discussed behavioral impacts resulting from impact pile 
driving for various other projects which are relevant here (e.g., 73 FR 
38180; 74 FR 18492; 74 FR 63724). Additionally, in 2009, the BOEM 
prepared an EA and associated Finding of No Significant Impact (FONSI) 
on the Issuance of Leases for Wind Resource Data Collection on the 
Outer Continental Shelf Offshore Delaware and New Jersey which analyzes 
the impacts of constructing, operating, and decommissioning MDCFs 
similar to ones proposed by Bluewater in their MMPA application. In 
summary, BOEM found that noise from pile driving could disturb normal 
marine mammal behaviors (e.g., feeding, social interactions), mask 
calls from conspecifics, disrupt echolocation capabilities, and mask 
sounds generated by predators. Behavioral effects may be incurred at 
ranges of many miles, and hearing impairment may occur at close range 
(Madsen et al., 2006). Behavioral reactions may include avoidance of, 
or flight from, the sound source and its immediate surroundings, 
disruption of feeding behavior, interruption of vocal activity, and 
modification of vocal patterns (Watkins and Scheville, 1975; Malme et 
al., 1984; Bowles et al., 1994; Mate et al., 1994). These impacts are 
similar to those previous identified by NMFS during analysis of pile 
driving projects, including the specified activity. NMFS characterizes 
the potential effects described here as indicative of Level B 
(behavioral) harassment.
    In addition to noise related impacts to marine mammals, NMFS, and 
BOEM in its EA, has considered the impacts from vessel traffic (i.e., 
ship strikes) and potential operational discharges from MDCF 
construction and operation. The marine mammals most vulnerable to 
vessel strikes are slow-moving and/or spend extended periods of time at 
the surface in order to restore oxygen levels within their tissues 
after deep dives (e.g., right whales, fin whales, sperm whales). 
Smaller marine mammals such as delphinids, are agile and move more 
quickly through the water, making them less susceptible to ship 
strikes. Vessels used for construction include crew boats and slow 
moving support vessels such as tugs and barges. To prevent ship 
strikes, crew aboard all vessels associated with the specified activity 
transiting to and from the construction site will actively watch for 
whales and other marine mammals and vessel operators will abide by 
NMFS' Northeast Marine Mammal Viewing Guidelines. As a result, NMFS 
does not anticipate a ship strike is likely to occur.

[[Page 61429]]

    BOEM's EA also analyzed impacts from operational waste generated 
from vessels includes bilge and ballast waters, trash and debris, and 
sanitary and domestic wastes. These are described in the EA and in 
NMFS' proposed IHA notice related to this action. In summary, NMFS 
agrees with BOEM's analysis that the impacts to marine mammals from the 
discharge of waste materials or the accidental release of fuels are 
expected to be negligible.

Effects on Habitat

    The footprint of the foundation and scour protection (if used) is 
approximately 0.06 acre (30-foot radius around the monopole foundation) 
at the MDCF site. Under the terms of the BOEM lease, within a period of 
one year after cancellation, expiration, relinquishment, or other 
termination of the lease, the lessee shall remove all devices, works 
and structures from the leased area and restore the leased area to its 
original condition before issuance of the lease (BOEM 2008). 
Bluewater's consultation with the NMFS under Section 7 of the ESA for 
the BOEM lease, completed May 14, 2009, concluded that all effects of 
the proposed project, including those to habitat, will be insignificant 
or discountable. Under the MMPA, the same determination on effects to 
marine mammal habitat applies based on the factors in the earlier 
consultation.

Mitigation

    In order to issue an incidental take authorization (ITA) 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 adverse 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.
    Bluewater will implement the following mitigation measures designed 
to eliminate the potential for serious injury/mortality and Level A 
(injurious) harassment and minimize Level B (behavioral) harassment to 
marine mammals:

Establishment of Exclusion Zone

    Bluewater will establish and monitor a preliminary 1,000 m Level A 
harassment exclusion zone (EZ) around the pile driving site in order to 
eliminate the potential for injury (Level A harassment) of marine 
mammals. This zone is designed to include all areas where the 
underwater SPLs are anticipated to equal or exceed 180 dB rms. If the 
acoustic survey (see Acoustic Monitoring section) determines that the 
area ensonified by sounds exceeding 180 dB extends beyond the 
preliminary 1,000-meter EZ, a new safety exclusion zone will be 
established. Otherwise, the 1,000-meter EZ will remain in place. 
Triggers and protocol for pile driving shut down for this zone are 
described below.
    Bluewater will also establish a 7-km EZ at the Delaware site for 
ESA-listed marine mammals (i.e., large whales) to avoid Level B 
(behavioral) harassment to these species. Should acoustic monitoring at 
the Delaware site determine the estimated distance to the 160 dB 
isopleth (the Level B harassment threshold level) is not accurate, the 
large whale exclusion zone will be altered for the New Jersey site 
accordingly, after accounting for depth differences between the two 
sites.

Pile Driving Shut-down and Delay Triggers and Procedures

    At least one protected species observer (PSO) stationed onboard the 
pile-driving vessel will monitor the established 1,000 m EZ for 30 
minutes prior to the soft-start of pile driving. If the PSO observes a 
marine mammal within this zone during this time, the PSO will notify 
the Resident Engineer (or other authorized individual) who will then 
delay pile driving. Pile driving will not commence until the PSO 
confirms that animal has moved out of and on a path away from the EZ or 
a PSO has not sighted the animal within the EZ for 15 minutes. If a 
marine mammal approaches or enters the exclusion zone after pile 
driving has begun, pile driving will cease until the PSO confirms that 
the animal has moved out of and on a path away from the EZ or the PSO 
has not sighted the animal within the EZ for 15 min for species with 
shorter dive durations (small odontocetes) or 30 min for species with 
longer dive durations (mysticetes and large odontocetes, including 
sperm, pygmy sperm, dwarf sperm, killer, and beaked whales). If pile 
driving ceases for 30 minutes or more, the PSO will observe for an 
additional 30-minute period before he/she will notify the Resident 
Engineer (or other authorized individual) that none of the 
aforementioned situations are triggered and pile driving could 
commence.
    On a separate vessel navigating at approximately 4-5 kms around the 
pile hammer, PSOs will monitor for large whales. Protocol for pile shut 
down and delay will follow the procedures described above for the 1,000 
EZ.

Soft-start Procedures

    A soft-start technique will be used at the beginning of pile 
driving in order to provide additional protection to marine mammals 
near the project area by allowing them time to vacate the area prior to 
the commencement of pile-driving activities. The soft-start requires an 
initial set of 3 strikes from the impact hammer at 40 percent energy 
with a one minute waiting period between subsequent 3-strike sets. The 
procedure will be repeated two additional times. If marine mammals are 
sighted within the exclusion zone prior to pile-driving, or during the 
soft start, the Resident Engineer (or other authorized individual) will 
delay pile driving until the animal has moved outside the exclusion 
zone and no marine mammals are sighted for 15 min for species with 
shorter dive durations (small odontocetes) or 30 min for species with 
longer dive durations (mysticetes and large odontocetes, including 
sperm, pygmy sperm, dwarf sperm, killer, and beaked whales).

Use of Sound Attenuation Devices

    Bluewater has conducted a sound attenuation device feasibility 
study and has concluded that traditional devices (e.g., bubble curtain, 
wood cap, and sleeve) are not practical or feasible for the proposed 
activity for various reasons (see Bluewater's application). However, 
Bluewater will continue to explore other options and, if found, will 
implement a sound attenuation device during pile driving.

Reduced Hammer Force

    Bluewater will not ramp-up to full power if, at decreased power, 
the pile can be driven to the desired depth. Recall that source levels 
are directly related to hammer force. The estimates to the Level A and 
Level B harassment thresholds are based on maximum hammer force (900 
kJ); hence if less energy is used, noise levels will be less than 
anticipated.

Time-of-Day and Weather Restrictions

    Pile-driving will be limited to day light hours between one-half 
hour after sunrise and one-half hour prior to sunset. If detection 
capability of a marine mammal within the EZ is obscured by foul weather 
(e.g., rough seas, fog), Bluewater will delay or suspend pile driving 
operations until the EZ is clear.

Vessel Transiting and Operation Watch

    Crew aboard all vessels associated with the specified activity 
transiting to and from the construction site will actively watch for 
whales and other

[[Page 61430]]

marine mammals. Vessel operators will abide by NMFS' Northeast Marine 
Mammal Viewing Guidelines (http://www.nero.noaa.gov/prot_res/mmv/) 
should a marine mammal be observed close to or on a path towards the 
vessel.
    NMFS has carefully evaluated the aforementioned mitigation measures 
in the context of ensuring that NMFS prescribes the means of effecting 
the least practicable adverse impact on the affected marine mammal 
species and stocks and their habitat. Our evaluation of potential 
measures included consideration of the following factors in relation to 
one another: the manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals; the proven or likely efficacy of the 
specific measure to minimize adverse impacts as planned; and the 
practicability of the measure for applicant implementation, including 
consideration of personnel safety, and practicality of implementation. 
In conclusion, NMFS has determined that the mitigation measures 
proposed by Bluewater and incorporated into the IHA provide the means 
of effecting the least practicable adverse impacts on marine mammals 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an ITA 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 IHAs 
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.

Visual Monitoring

    Bluewater will conduct both visual and acoustic monitoring to 
better understand impacts to marine mammals from pile driving and 
estimate take. At least one PSO will be stationed at the pile hammer to 
monitor, and implement mitigation if necessary, the preliminary 1,000 m 
EZ and notify the Resident Engineer (or other authorized person) if 
shut down is necessary. In addition, at least one PSO, in a dedicated 
visual monitoring vessel circumnavigating the pile hammer at a distance 
of 4-5 kms, will monitor the Level B harassment zone (i.e., those 
waters estimated to carry sound levels at or above 160 dB) to determine 
take numbers for non-listed marine mammals located at a distance to the 
pile hammer and call for pile driving shut down should a large whale 
enter this zone. PSOs will be stationed at the highest vantage point 
possible aboard support vessels (the higher the platform, the greater 
distance seen). In addition, a visual monitor will be aboard the 
acoustic monitoring vessel to observe for marine mammals. All PSOs will 
be in contact with each other and the hammer operator at all times.

Acoustic Monitoring

    Bluewater will carry out an acoustic study as described in the 
application (Attachment 1- Underwater Noise Survey Protocol). The plan 
includes the use of hydrophone array deployed by vessel within the near 
field (i.e., within 1,000m) which provides data in real time and two 
autonomous recorders in the far field (2km and 5km from the hammer) 
which will archive sound data until they are retrieved and downloaded. 
The plan is designed to (1) empirically verify the marine mammal 
exclusion and harassment zones; (2) estimate site specific underwater 
sound transmission loss decay rates in the action area; (3) provide a 
digital sound recording of acoustic measurements completed during pile 
driving; and (4) investigate background noise levels in absence of pile 
driving. As stated previously, the acoustic models contained within the 
application are likely an overestimate of sound levels; however, by how 
much cannot be determined at this time. Empirical data collection will 
help refine these numbers. Based on the data collected at the each 
site, the EZ will be adjusted accordingly (but not less than 1,000 m) 
and from the autonomous recorders at the Delaware site, estimates to 
the Level B isopleths may be refined for the New Jersey site after 
adjustment for water depth differences.

Reporting

    Bluewater will submit a Final Technical Report, which will 
incorporate PSO sightings and acoustic survey results, to NMFS within 
120 days after the expiration of the IHA. After re-establishment of an 
exclusion zone, if it occurs, a report detailing the field verification 
measurements will be submitted to NMFS within 7 days of construction. 
PSOs will report on operation and sighting data collected during the 
period of pile driving at each site location. Data will include, but is 
not limited to: date, time and weather condition during sighting; 
number of marine mammals observed, by species and age class (if 
possible); behavior of marine mammal at time of sighting, including 
direction with respect to hammer location; any observable changes in 
behavior, including overt reactions (e.g. tail slapping, breaching, 
distinct change in direction) during sighting; initial and closest 
distance of marine mammal to hammer; and construction activities 
occurring at time of sighting, specifically noting if pile driving was 
ramping up or at full power and, if hammering, how long hammering was 
occurring before sighting. The acoustic survey results will be 
presented in the final report and should include, but is not limited 
to, the following: a detailed account of the methodology employed to 
collect data (e.g., equipment used, location of vessel in relation to 
pile during data collection, if the vessel was stationary or drifting, 
etc.); hammer operation details (i.e., was data collected during ramp-
up, upon onset of pile driving, etc.); the levels, durations, and 
spectral characteristics of the impact pile driving sounds; and the 
peak, rms, and energy levels of the sound pulses and their durations as 
a function of distance, water depth, and tidal cycle.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 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].
    As discussed in the Effects on Marine Mammals section above, marine 
mammals exposed to certain levels of pile driving noise may be taken by 
Level B harassment. Monitoring and mitigation measures will prevent 
animals from being exposed to levels which could induce Level A 
(injury) harassment. Responses to the specified activity may include 
avoidance, altered patterns in foraging, traveling, and resting 
patterns, masking, and stress hormone production. Many of these effects 
are difficult to quantify; therefore, NMFS has established threshold 
criteria which indicate the levels at which any of these effects may 
occur and a take is possible. Hence these levels are conservative and 
currently are being refined to better reflect the best scientific data 
available.

[[Page 61431]]

    Consistent with Bluewater's application, NMFS has determined that 
eight species of marine mammals have the potential to be taken, by 
Level B harassment only, incidental to pile driving. The number of 
animals authorized to be taken for the Delaware and New Jersey site, 
respectively, are provided in Table 2 below. These numbers are based on 
density estimates for potentially encountered non-ESA listed marine 
mammals which are described in the proposed IHA notice prepared for 
this action. No ESA-listed species are authorized to be taken by 
harassment under the IHA. For all species, the requested take is less 
than 1% of the population; therefore, take numbers can be considered 
small relative to the population size.

     Table 2: The number of marine mammals, by species and location,
              authorized to be taken by Level B harassment.
------------------------------------------------------------------------
                                      No. of Animals     No. of Animals
              Species                    Delaware          New Jersey
------------------------------------------------------------------------
        Bottlenose dolphin                        15                 15
------------------------------------------------------------------------
          Spotted dolphin                         35                 35
------------------------------------------------------------------------
          Common dolphin                          20                 20
------------------------------------------------------------------------
   Atlantic White-sided dolphin                   15                 15
------------------------------------------------------------------------
          Risso's dolphin                         15                 15
------------------------------------------------------------------------
            Pilot whale                           10                 10
------------------------------------------------------------------------
          Harbor porpoise                         15                 10
------------------------------------------------------------------------
            Harbor seal                           35                 30
------------------------------------------------------------------------

    Bluewater will operate support vessels (e.g., small vessels, 
barges, tugs) to deliver and install equipment at the MDCF site; 
however, operation of these vessels is not anticipated to result in 
takes of marine mammals. Vessels will transit to the site slowly and 
operators will follow NMFS' Northeast Regional marine mammal viewing 
guidelines. Vessel transit speed is similar to that in NMFS' final rule 
concerning right whale vessel collision reduction strategy which 
established operational measures for the shipping industry to reduce 
the potential for large vessel collisions with North Atlantic right 
whales while transiting to and from mid-Atlantic ports during right 
whale migratory periods (73 FR 60173; October 10, 2008). For these 
reasons (slow transit, viewing guideline adherence) NMFS does not 
anticipate take of marine mammals incidental to support vessel 
operation.

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.'' In making a negligible impact determination, NMFS considers 
the following: number of anticipated mortalities; number and nature of 
anticipated injuries; number, nature, intensity, and duration of Level 
B harassment; is the nature of the anticipated takes such that we will 
expect it to actually impact rates of recruitment or survival; and 
context in which the takes occur- that is will the takes occur in areas 
(and/or times) of significance for marine mammals (e.g., feeding or 
resting areas, reproductive areas, rookeries, critical habitat, etc.).
    Due to the implementation of mitigation measures, no ESA-listed 
species will be exposed to sound levels exceeding those established by 
NMFS as indicative of harassment. Therefore, no take of ESA-listed 
marine mammals are anticipated not authorized in the IHA. Non-ESA 
listed marine mammals may be exposed temporarily to pile driving noise; 
however, at each location, pile driving will occur for only 3-8 hours 
in total. The waters in the mid-Atlantic OCS are not designated as 
critical habitat for ESA-listed marine mammals, nor do they provide 
significant habitat for any marine mammal species (i.e., no significant 
foraging or reproductive areas are known to be in this area). Animals 
within the action area are likely to be traveling, resting, socializing 
or opportunistically foraging. Noise from pile driving may temporarily 
disturb animals in these behavioral states and induce mild TTS; 
however, no significant or long-term impacts are anticipated given the 
implementation of mitigation measures, short duration of pile driving 
and the anticipation that individuals are not expected to linger within 
the action area. While pile driving noise may affect more than one 
individual, population level effects are not anticipated as impacts are 
anticipated to be limited to short term behavioral changes in 
individuals (e.g., avoidance, cessation of activity at time of noise 
exposure, change in vocalization patterns) and potential masking 
effects. These effects will not alter fitness or reproductive success. 
Bluewater will not conduct pile driving at both sites simultaneously; 
therefore, no cumulative impacts which could arise from exposure to 
noise from multiple pile hammers are expected. Finally, the project 
footprint is extremely small, and each MDCF will be removed after 1-2 
years. Therefore, no long term impacts to marine mammal habitat are 
anticipated.
    Bluewater has conducted a conservative analysis of estimated sound 
levels and used these estimates to determine take. Hence, the number of 
animals potentially taken is likely an overestimate as it is not 
anticipated that all species listed in Table 2 will be encountered 
during the short duration of pile driving. The number of animals 
requested to be taken is considered small (less than 1 percent) when 
compared to the estimated stock size for each species. Again, no ESA-
listed species will be taken based on implementation of the proposed 
mitigation and monitoring measures and no Level A (injurious) 
harassment, serious injury, or mortality is

[[Page 61432]]

anticipated nor will any be authorized in the proposed IHA.
    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 mitigation and monitoring 
measures, NMFS found that pile driving conducted by Bluewater during 
MDCF installation will result in the incidental take of small numbers 
of marine mammals, by Level B harassment only, and that the total 
taking from will have a negligible impact on the affected species or 
stocks. Therefore, issuance of an IHA to Bluewater was warranted.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    NMFS Protected Resources determined that, based on the 
implementation of the monitoring and mitigation plan developed by 
Bluewater, in consultation with NMFS, is not likely to adversely affect 
listed marine mammal species. NMFS Northeast Region provided 
concurrence with this determination on September 14, 2010.

National Environmental Policy Act (NEPA)

    On June 2, 2009, the BOEM issued an EA and associated Finding of No 
Significant Impact (FONSI) on the Issuance of Leases for Wind Resource 
Data Collection on the Outer Continental Shelf Offshore Delaware and 
New Jersey. The EA evaluates the impacts to the human environment, 
including those to marine mammals, from issuing seven leases in the 
Atlantic OCS for purposes of constructing, operating, and 
decommissioning a MDCF in each lease block. The MDCFs proposed by 
Bluewater are included in that analysis. BOEM concluded that the 
proposed action would not have a significant adverse impact on the 
human environment. Therefore, preparation of an EIS was not necessary. 
After independently reviewing BOEM's EA, NMFS determined the EA 
adequately evaluated impacts to marine mammals anticipated from 
issuance of the IHA. Accordingly, NMFS adopted BOEM's EA and issued a 
FONSI. Therefore, the preparation of another EA by NMFS for issuance of 
an IHA to Bluewater for the specified activity was not warranted.

    Dated: September 29, 2010.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2010-24987 Filed 10-4-10; 8:45 am]
BILLING CODE 3510-22-S