Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the New England Wind Project, Offshore Massachusetts

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 240524-0146]</DEPDOC> <RIN>RIN 0648-BL96</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the New England Wind Project, Offshore Massachusetts</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; notification of issuance of letter of authorization. <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 by Avangrid Renewables, LLC, (Avangrid), the parent company of the original applicant, Park City Wind, LLC (Park City Wind), during the construction of the New England Wind Project (the Project), an offshore wind energy project, developed in two phases, known as Park City Wind (phase 1) and Commonwealth Wind (phase 2), in Federal and State waters off of Massachusetts, 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 Areas (OCS-A 0534 and OCS-A 0561) and the southwest (SW) portion of Lease Area OCS-A 0501 (collectively referred to as the Lease Area), and along an export cable routes to sea-to-shore transition points (collectively, the Project Area), over the course of 5 years (March 27, 2025, through March 26, 2030). The proposed rule for this action concerned only Lease Areas OCS-A 0534 and the SW portion of Lease Area OCS-A 0501. However, after publication of the proposed rule, Lease Area OCS-A 0534 was segregated into two portions: OCS-A 0534 and OCS-A 0561. Phase 1 remained with Park City Wind (OCS-A 0534) while phase 2 (OCS-A 0561) was assigned to a sister company named Commonwealth Wind, LLC (subsidiary of Avangrid). As a result of this, Park City Wind requested that the Letter of Authorization (LOA), if issued, be issued to Avangrid, who would oversee the construction of the both phases of the Project by its two subsidiaries. These regulations, which allow for the issuance of a 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 rule is effective from March 27, 2025, through March 26, 2030. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Karolyn Lock, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Availability</HD> A copy of the application and supporting documents, 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 the applicant to incidentally take a small number of marine mammals from 39 species of marine mammals. After reviewing the request and making the required findings, NMFS could authorize the take, by harassment only, of 38 species, representing 38 stocks (19 species by Level A harassment and all 38 species by Level B harassment) incidental to the applicant's 5 years of construction activities. The applicant did not request and NMFS neither anticipates nor allows take by serious injury or mortality incidental to the specified activities in this final rulemaking. <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, “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, the applicant did not request and NMFS neither anticipates nor would allow take by serious injury or mortality incidental to the specified activities in this final rulemaking. Relevant definitions of MMPA statutory and regulatory terms are included below: • <E T="03">Citizen</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); • <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 (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; 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). 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 this rule containing 5-year regulations and associated LOA. This final rule also establishes required mitigation, monitoring, and reporting requirements for the in-water specified activities. <HD SOURCE="HD2">Summary of Major Provisions Within the Final Rule</HD> The major provisions within this final rule include: • Allowing NMFS to authorize, under a LOA, the take of small numbers of marine mammals by Level A harassment and/or Level B harassment (50 CFR 217.322) incidental to the Project and prohibiting take of such species or stocks in any manner not permitted (50 CFR 217.323) ( <E T="03">e.g.,</E> mortality or serious injury); • Establishing a seasonal moratorium on impact pile driving and drilling during January 1 through April 30, annually, as well as avoiding impact pile driving and drilling in December in order to minimize impacts to North Atlantic right whales ( <E T="03">Eubalaena glacialis</E> ). Impact pile driving and drilling must not be planned in December; however, it may then only occur if necessary to complete the Project within a given year and with prior approval by NMFS ( <E T="03">e.g.,</E> as a result of unforeseen circumstances such as unanticipated weather delays, unexpected technical difficulties). LOA Holder must notify NMFS in writing by September 1 of that year that pile driving or drilling cannot be avoided and circumstances are expected to necessitate pile driving or drilling in December; • Establishing a seasonal moratorium on vibratory pile driving ( <E T="03">i.e.,</E> vibratory setting of piles) during December 1 through May 31, annually, to minimize impacts to North Atlantic right whales ( <E T="03">Eubalaena glacialis</E> ); • Establishing a seasonal moratorium on the detonation of unexploded ordnance or munitions and explosives of concern (UXO/MEC) from December 1 through May 31, annually. UXO/MEC detonation must not be planned for December or May in order to minimize impacts to North Atlantic right whales ( <E T="03">Eubalaena glacialis</E> ); however, UXO/MEC detonation may occur in December or May with NMFS' approval on a case-by-case basis only. • Requirements for UXO/MEC detonations to only occur if all other means of removal are impracticable ( <E T="03">i.e.,</E> As Low As Reasonably Practicable (ALARP) risk mit ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 705k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━