The Marine Mammal Protection Act (MMPA) prohibits the incidental taking of marine mammals. The incidental take of a marine mammal falls under three categories: mortality, serious injury, or harassment, which includes injury and behavioral effects. The MMPA defines harassment as any act of pursuit, torment, or annoyance which: (1) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (2) 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). There are exceptions to the MMPA’s prohibition on take such as the authority at issue here for us to authorize the incidental taking of small numbers of marine mammals by harassment upon the request of a U.S. citizen provided we follow certain statutory and regulatory procedures and make determinations. We describe this exception set forth in the MMPA at Section 101(a)(5)(D) in more detail in Section 1.2.
The National Marine Fisheries Service (NMFS) proposes to issue separate Incidental Harassment Authorizations (Authorizations) to Deepwater Wind Block Island, LLC (DWBI) and Deepwater Wind Transmission System, LLC (DWBIT) — subsidiaries of Deepwater Wind Holdings, LLC and collectively termed “Deepwater Wind” — under the MMPA for the incidental taking of small numbers of marine mammals incidental to the construction of the Block Island Wind Farm (BIW F) and its associated Block Island Transmission System (BITS), respectively. We do not have the authority to permit, authorize, or prohibit Deepwater Wind’s activities (i.e., the underlying action) under Section 101(a)(5)(D) of the MMPA, as that authority lies with a different Federal agency.
Our proposed action is a direct outcome of Deepwater Wind requesting authorizations under Section 101(a)(5)(D) of the MMPA to take marine mammals, by harassment, incidental to construction of the BIWF and BITS because the associated activities have the potential to take marine mammals during impact and vibratory pile driving and the use of dynamically positioned (DP) vessel thrusters. We anticipate that the disturbance associated with these activities would result in take otherwise prohibited by the MMPA. Deepwater Wind therefore requires authorizations for incidental take and has requested that we provide it through the issuance of Incidental Harassment Authorizations under Section 101(a)(5)(D) of the MMPA.
Our issuance of Authorizations to Deepwater Wind is a major federal action under the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ) regulations in 40 CFR §§ 1500-1508, and NOAA Administrative Order (NAO) 216-6. Thus, we are required to analyze the effects on the human environment and determine whether they are significant such that preparation of an Environmental Impact Statement (EIS) is necessary.
This Environmental Assessment (EA), titled “Issuance of Incidental Harassment Authorizations to Deepwater Wind for the Take of Marine Mammals Incidental to Construction of the Block Island Wind Farm and Block Island Transmission System” (hereinafter, EA) addresses the potential environmental impacts of two alternatives available to us under Section 101(a)(5)(D) of the MMPA, namely:
- Issue the Authorizations to Deepwater Wind for Level B harassment take of marine mammals under the MMPA during their construction projects, taking into account the prescribed means of take, mitigation measures, and monitoring requirements required in the proposed Authorizations; or
- Not issue the Authorizations to Deepwater Wind in which case, for the purposes of NEPA analysis, we assume that the activities would proceed without the mitigation and monitoring measures prescribed in the proposed Authorizations.