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Final Biological Opinion on the U.S

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Final Biological Opinion on the U.S NOAA's National Marine Fisheries Service Endangered Species Act Section 7 Consultation Biological Opinion Agencies: The Bureau ofOcean Energy Management The Bureau of Safety and Environmental Enforcement Activities Considered: Programmatic Geological and Geophysical Activities in the Mid­ and South Atlantic Planning Areas from 2013 to 2020 Consultation Conducted hy: Endangered Species Act Interagency Cooperation Division of the Office of Protected Resources, NOAA's National Marine Fisheries Service Approved by: ~~~ 6<- -;y>c>. ~,~ Date: JUl 19 2013 Section 7(a)(2) ofthe Endangered Species Act (ESA) (16 U.S.C. ] 531 et seq.) requires that each federal agency shall ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification ofcritical habitat of such species. When the action ofa federal agency "may affect" a listed species or critical habitat that has been designated for such species, that agency is required to consult with NOAA's National Marine Fisheries Service (NMFS) and/or the U.S. Fish and Wildlife Service (USFWS), depending upon the listed resources that may be affected. This ESA section 7 consultation considers BOEM's proposed geological and geophysical (O&G) activities in support of its oil and gas, renewable energy, and marine minerals programs in the Mid-and South Atlantic Planning Areas from 2013 through 2020, as described in BOEM's Draft Programmatic Environmental Impact Statement (DPEIS) for Atlantic OCS Proposed Geological and Geophysical Activities in the Mid-Atlantic and South Atlantic Planning Areas (BOEM 2012a). These geological and geophysical (G&G) activities include various types of surveys (seismic and high resolution geophysical) and subsurface sampling activities in support of oil and gas exploration; detection of geohazards, archaeological resources and benthic communities; and the assessment of the suitability of seafloor sediments or evaluation of sand quantity and quality for beach nourishmentas well as bathymetric surveys used for monitoring sand resources before and after dredging. This consultation also considers monitoring and mitigation measures proposed to avoid or minimize adverse effects to listed species. BOEM’s sister agency, the Bureau of Safety and Environmental Enforcement (BSEE), insures regulatory oversight and enforces compliance with monitoring and mitigation measures for oil and gas operations. Consequently, the action agencies for this consultation are BOEM and BSEE. As BOEM manages the exploration and development of the nation's offshore resources and has jurisdiction to authorize the G&G activities as described within this biological opinion (Opinion), BOEM is the lead agency for this consultation. The consulting agency is NMFS’ Office of Protected Resources, Endangered Species Act Interagency Cooperation Division (Interagency Cooperation Division). This document represents NMFS’ biological opinion (Opinion) on the effects of the proposed action on endangered and threatened species and designated critical habitat, in accordance with section 7 of the ESA. This Opinion is based on information provided in BOEM’s March 2012 Biological Assessment (BA; BOEM 2012b), DPEIS, published and unpublished scientific information on endangered and threatened species, scientific and commercial information such as reports from government agencies and peer-reviewed literature, regional experts in marine mammal biology, biological opinions on similar activities, and other sources of information. Consultation History On May 29, 2012, BOEM on behalf of itself and BSEE submitted a request for initiation of consultation on the proposed authorization of G&G activities under its oil and gas, renewable energy and marine minerals programs. Attached to the request was a BA dated May 22, 2012. On August 6, 2012, the Interagency Cooperation Division transmitted a letter informing BOEM that NMFS had initiated consultation on the proposed authorization of G&G activities under its oil and gas, renewable energy and marine minerals programs. Attached to the initiation letter was a draft analysis plan for BOEM’s review describing how NMFS intended to conduct its exposure analysis for the 2 consultation. Throughout August and September, BOEM and the Interagency Cooperation Division exchanged emails regarding the draft analysis plan and information needs for the consultation. On October 5, 2012, the Interagency Cooperation Division forwarded a draft description of the proposed action to BOEM for review. Also on October 5, 2012, NMFS asked for an extension to the consultation period due to the nature and complexity of the proposed action. On November 1, 2012, BOEM submitted its comments on the draft description of the proposed action. In its comments BOEM included changes to the proposed action by increasing surveys and subsurface sampling within its renewable energy program. Subsequently, NMFS requested an extension to the consultation period to fully analyze the additional survey and sampling effort. BOEM and NMFS exchanged information throughout November and into December. 1 On February 12, 2013, NMFS transmitted its draft biological opinion for BOEM and BSEE review. On March 13, 2013, BOEM submitted comments on the draft opinion to NMFS. The comments included language to further clarify BOEM’s proposed action which includes authorizing certain surveys under the renewable energy and marine minerals programs within right whale critical habitat during right whale calving and nursing season. Because of BOEM’s submission of its clarification, BOEM and NMFS agreed on March 26, 2013, to keep the consultation open while the agencies discussed the clarification. On March 29, 2013, NMFS and BOEM discussed BOEM’s comments on the draft opinion and BOEM’s clarification and NMFS requested additional information on the clarification. On April 12, 2013, NMFS received the additional information requested along with revisions to the comments BOEM submitted to NMFS on March 13, 2012, on the draft opinion. On April 17, 2013, BOEM submitted additional comments on the draft Opinion for NMFS’ consideration. On May 3, 2013, NMFS transmitted its revised draft biological opinion for BOEM/BSEE review. On May 9, 2013, BOEM submitted additional comments on the revised draft opinion. Additional discussions occurred between BOEM and NMFS from to May 9 to May 20, 2013, on terms and conditions for the incidental take statement. Informal Consultation on Mid Atlantic Wind Energy Areas On September 20, 2011, NMFS’ Northeast Region issued a concurrence letter concluding informal consultation for BOEM’s proposed issuance of leases and associated site characterization and site assessment activities as required for identifying suitable locations for wind energy facilities under its Renewable Energy Program. Activities under the proposed action include geophysical and geotechnical 3 activities, wind resources assessments, biological resource surveys, cultural resources surveys, onshore activities (fabrication and staging of wind energy structures) and decommissioning of wind energy structures. Geophysical surveys employ single and multibeam depth sounders, side-scan sonar, chirp subbottom profilers and boomers while geotechnical surveys include cone penetrometer tests, vibracores and the installation of meteorological towers and buoys. All activities would occur within the Wind Energy Areas off New Jersey, Delaware, Maryland and Virginia. As of the writing of this Opinion, none of the activities contained in the September 20, 2011, concurrence letter have taken place. During development of the proposed action for this G&G consultation BOEM re- examined the G&G acoustic propogation results for Delaware, Maryland and Virginia that were initially described and included as part of the proposed action under the 2011 informal consultation and compared those results with the results of the Acoustic Impact Model (AIM) modeling included in this G&G consultation. Due to the differences in the estimated exposure of marine mammals to some of the sound sources proposed for use, BOEM chose to update the assessment which formed the basis of the the 2011 informal consultation with the new information used for BOEM’s assessment for this consultation. Given the updated assessment, this Opinion will only address the geophysical surveys using single and multibeam depth sounders, side-scan sonar, CHIRP subbottom profilers and boomers, geotechnical surveys using cone penetrometer tests and vibracores and the installation of buoys were analyzed during this consultation. As such, this Opinion supersedes the concurrence letter for those activities within Delaware, Maryland and Virginia. The September 20, 2011, concurrence letter remains in effect for the remaining activities (lease issuance, SAP approval, installation of met towers and biological surveys within New Jersey, Delaware, Maryland and Virginia Wind Energy Areas) contained therein, unless and until BOEM withdraws the proposed action or reinitiates consultation. Scope of this Consultation The Outer Continental Shelf Lands Act (OCSLA), as amended, mandates the Secretary of the Interior (Secretary), through BOEM, to manage the exploration and development of OCS oil, gas, and marine minerals (e.g., sand and gravel) and the siting of renewable energy facilities. The Energy Policy Act (EPAct) of 2005, Public Law (P.L.). 109-58, added Section 8(p)(1)(C) to the OCSLA,
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