Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Coastal Virginia Offshore Wind Commercial Project Offshore of Virginia

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 240104-0001]</DEPDOC> <RIN>RIN 0648-BL74</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Coastal Virginia Offshore Wind Commercial Project Offshore of Virginia</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates regulations to govern the incidental taking of marine mammals incidental to the Virginia Electric and Power Company, doing business as Dominion Energy Virginia (Dominion Energy), construction of the Coastal Virginia Offshore Wind Commercial (CVOW-C) Project (hereafter, the CVOW-C Project or the Project) in Federal and State waters offshore of Virginia, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0483 (Lease Area) and along export cable routes to sea-to-shore transition points (collectively referred to as the “Project Area”), over the course of 5 years (February 5, 2024 through February 4, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during construction-related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rulemaking is effective from February 5, 2024, through February 4, 2029. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Kelsey Potlock, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Availability</HD> A copy of Dominion Energy's Incidental Take Authorization (ITA) application, supporting documents, received public comments, and the proposed rulemaking, as well as a list of the references cited in this document, may be obtained online at: <E T="03">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.</E> In case of problems accessing these documents, please call the contact listed above (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> ). <HD SOURCE="HD1">Purpose and Need for Regulatory Action</HD> This final rule, as promulgated, provides a framework under the authority of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ) for NMFS to authorize the take of marine mammals incidental to construction of the Project within the Project Area. NMFS received a request from Dominion Energy to incidentally take 21 species of marine mammals, comprising 22 stocks (7 stocks by Level A harassment and Level B harassment and 15 stocks by Level B harassment only), incidental to Dominion Energy's 5 years of construction activities. No mortality or serious injury is anticipated or authorized in this final rulemaking. Please see the <E T="03">Legal Authority for the Final Action</E> section below for definitions of harassment, serious injury, and incidental take. <HD SOURCE="HD2">Legal Authority for the Final Action</HD> 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 <E T="03">et seq.</E> ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made, regulations are promulgated (when applicable), and public notice and an opportunity for public comment are provided. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). If such findings are made, NMFS must prescribe the permissible methods of taking ( <E T="03">e.g.,</E> “other means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”)) and requirements pertaining to the monitoring and reporting of such takings. As noted above, no serious injury or mortality is anticipated or authorized in this final rule. Relevant definitions of MMPA statutory and regulatory terms are included below: • <E T="03">U.S. Citizens</E> —individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 216.103); • <E T="03">Take</E> —to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13); 50 CFR 216.3); • <E T="03">Incidental harassment, incidental taking, and incidental, but not intentional, taking</E> —an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable, or accidental (see 50 CFR 216.103); • <E T="03">Serious Injury</E> —any injury that will likely result in mortality (50 CFR 216.3); • <E T="03">Level A harassment</E> —any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and • <E T="03">Level B harassment</E> —any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (16 U.S.C. 1362(18); 50 CFR 216.3). Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for proposing and, if appropriate, issuing regulations and an associated LOA(s). This final rule establishes permissible methods of taking and mitigation, monitoring, and reporting requirements for Dominion Energy's construction activities. <HD SOURCE="HD2">Summary of Major Provisions Within the Final Rule</HD> The major provisions of this final rule are: • The authorized take of marine mammals by Level A harassment and/or Level B harassment; • No authorized take of marine mammals by mortality or serious injury; • The establishment of a seasonal moratorium on pile driving of foundation piles during the months of the highest presence of North Atlantic right whales ( <E T="03">Eubalaena glacialis</E> ) in the Lease Area (November 1st through April 30th, annually); • A requirement for both visual and passive acoustic monitoring to occur by NOAA Fisheries-approved Protected Species Observers (PSOs) and Passive Acoustic Monitoring (PAM) operators (where required) before, during, and after select activities; • A requirement of training for all Dominion Energy personnel to ensure marine mammal protocols and procedures are understood; • The establishment of clearance and shutdown zones for all in-water construction activities to prevent or reduce the risk of Level A harassment and to minimize the risk of Level B harassment; • A requirement to use sound attenuation devices during all foundation pile driving installation activities to reduce noise levels to those modeled assuming 10 decibels (dB); • A delay to the start of foundation installation if a North Atlantic right whale is observed at any distance by PSOs or acoustically detected within the PAM Monitoring Zone (10 kilometer (km)); • A delay to the start of foundation installation if other marine mammals are observed entering or within their respective clearance zones; • A requirement to shut down pile driving (if feasible) if a North Atlantic right whale is observed at any distance or if any other marine mammals are observed entering their respective shutdown zones; • A requirement to conduct sound field verification (SFV) during foundation pile driving to measure <E T="03">in-situ</E> noise levels for comparison against the modeled results; • A requirement to implement soft-starts during impact pile driving using the least amount of hammer energy necessary for installation; • A requirement to implement ramp-up during the use of high-resolution geophysical (HRG) marine site characterization survey equipment; • A requirement to monitor relevant Right Whale Sightings Advisory System and Channel 16, as well as reporting any sightings to the sighting network; • A requirement to implement various vessel strike avoidance measures; • A requirement to implement measures during fisheries monitoring surveys, such as removing gear from the water if marine mammals are considered at-risk or are interacting with gear; and • A requirement to submit frequently scheduled and situational reports including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 575k characters. 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