# Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Ocean Wind 1 Wind Energy Facility Offshore of New Jersey

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-23200

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** October 26, 2022
- **Citation:** 87 FR 64868

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 221020-0223]
RIN 0648-BL36
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Ocean Wind 1 Wind Energy Facility Offshore of New Jersey

AGENCY:

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

ACTION:

Proposed rule; proposed incidental take regulations; proposed Letter of Authorization; request for comments.

SUMMARY:

NMFS has received a request for Incidental Take Regulation (ITR) and associated Letter of Authorization (LOA) from Ocean Wind, LLC (Ocean Wind), a subsidiary of Orsted Wind Power North America, LLC's (Orsted) and a joint venture partner of the Public Service Enterprise Group Renewable Generation, LLC (PSEG), for the incidental take of small numbers of marine mammals during the construction of an offshore wind energy facility (Ocean Wind 1) in a designated lease area on the Outer Continental Shelf (OCS-A-0498) offshore of New Jersey. The requested ITR would govern the authorization of take, by both Level A and Level B harassment, of small numbers of marine mammals over a 5-year period incidental to construction-related pile driving activities (impact and vibratory), potential unexploded ordnances or munitions and explosives of concern (UXOs/MECs) detonation, and high-resolution geophysical (HRG) site characterization surveys conducted by Ocean Wind in Federal and State waters off of New Jersey for the Ocean Wind 1 offshore wind energy facility. A final ITR would allow for the issuance of a LOA to Ocean Wind for a 5-year period. As required by the Marine Mammal Protection Act (MMPA), NMFS requests comments on its proposed rule. NMFS will consider public comments prior to making any final decision on the promulgation of the requested ITR and issuance of the LOA; agency responses to public comments will be summarized in the final notice of our decision.

DATES:

Comments and information must be received no later than November 25, 2022.

ADDRESSES:

Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov
and enter NOAA-NMFS-2022-0109 in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.

Instructions:
Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on
www.regulations.gov
without change. All personal identifying information (
e.g.,
name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Kelsey Potlock, Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Availability

A copy of Ocean Wind's Incidental Take Authorization (ITA) application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
In case of problems accessing these documents, please call the contact listed above (see
FOR FURTHER INFORMATION CONTACT
).

Purpose and Need for Regulatory Action

This proposed rule would establish a framework under the authority of the MMPA (16 U.S.C. 1361
et seq.
) to allow for the authorization of take of marine mammals incidental to the construction activities within the mid-Atlantic (New Jersey) region of the U.S. East Coast, specifically in and around lease area OCS-A-0498. We received a petition from Orsted's subsidiary, Ocean Wind requesting the 5-year regulations to construct the Ocean Wind 1 offshore wind energy facility. During the construction of Ocean Wind 1, some activities may cause the harassment (“take”) of marine mammals. Take would occur by Level A and/or Level B harassment incidental to construction activities. Please see the
Legal Authority for the Proposed Action
section below for definitions of harassment.

Legal Authority for the Proposed Action

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
et seq.
) 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, and notice is provided to the public.

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). Further, NMFS must prescribe the permissible methods of taking and 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, the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”), and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included below.

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. As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements.

Summary of Major Provisions Within the Proposed Rule

The following is a summary of the major provisions found within this proposed rule regarding Ocean Wind's construction activities. These measures include:

• Establishing a seasonal moratorium on impact pile driving during the months of highest North Atlantic right whale (
Eubalaena glacialis
) presence in the project area (January 1-April 30);

• Establishing a seasonal moratorium on any unexploded ordnances or munitions and explosives of concern (UXOs/MECs) detonations, that are determined to be necessary, during the months of highest North Atlantic right whale present in the project area (January 1-April 30);

• Requiring UXO/MEC detonations to only occur during hours of daylight and not during hours of darkness or nighttime;

• Conducting both visual and passive acoustic monitoring by trained, NOAA Fisheries-approved Protected Species Observers (PSOs) and Passive Acoustic Monitoring (PAM) operators before, during, and after the in-water construction activities;

• Establishing harassment zones that correspond to underwater noise levels that could cause injury and behavioral disturbances;

• Establishing clearance and shut down zones for all in-water construction activities to prevent or reduce Level A harassment and minimize Level B harassment;

• Requiring the use of sound attenuation device(s) during all impact pile driving and UXO/MEC detonations to reduce noise levels;

• Delaying the start of pile driving if a North Atlantic right whale is observed at any distance by the PSO on the pile driving or dedicated PSO vessels;

• Delaying the start of pile driving if other marine mammals are observed entering or within their respective clearance zones;

• Shutting down pile driving (if feasible) if a North Atlantic right whale is observed or if other marine mammals enter their respective shut down zones;

• Implementing soft starts for impact pile driving and using the least hammer energy possible;

• Implementing ramp-up for high-resolution geophysical (HRG) site characterization survey equipment;

• Requiring PSOs to continue to monitor for 30 minutes after any impact pile driving occur and for any and all UXO detonations;

• Increasing awareness of North Atlantic right whale presence through monitoring of the appropriate networks and Channel 16, as well as reporting any sightings to the sighting network;

• Implementing numerous vessel strike avoidance measures;

• A requirement to implement noise attenuation system(s) during all impact pile driving and UXO/MEC detonations;

• Sound field verification requirements during impact pile driving and UXO/MEC detonation to measure in situ noise levels for comparison against the model results; and

• Removing gear from the water during fisheries monitoring research surveys if marine mammals are considered at-risk or are interacting with gear.

National Environmental Policy Act (NEPA)

To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
et seq.
) and NOAA Administrative Order (NAO) 216-6A, NMFS must evaluate the proposed action (
i.e.,
promulgation of regulations and subsequent issuance of a 5-year LOA) and alternatives with respect to potential impacts on the human environment.

Accordingly, NMFS proposes to adopt the Bureau of Ocean Energy Management's (BOEM) Environmental Impact Statement (EIS), provided our independent evaluation of the document finds that it includes adequate information analyzing the effects of authoring the proposed take of marine mammals on the human environment. NMFS is a cooperating agency on BOEM's EIS. BOEM's draft EIS (Ocean Wind 1 Draft Environmental Impact Statement (DEIS) for Commercial Wind Lease OCS-A 0498) was made available for public comment on June 24, 2022 at
https://www.boem.gov/renewable-energy/state-activities/ocean-wind-1
. The DEIS had a 45-day public comment period (87 FR 37883, June 24, 2022), plus a 15-day extension (87 FR 48038, August 5, 2022) for a total of 60-days; the comment period was open from June 24, 2022 to August 23, 2022. Additionally, BOEM held three virtual public hearings on July 14, 2022, July 20, 2022, and July 26, 2022.

Information contained within Ocean Wind's ITA application and this
Federal Register
document collectively provide the environmental information related to these proposed regulations and associated 5-year LOA for public review and comment. NMFS will review all comments submitted in response to this document prior to concluding our NEPA process or making a final decision on the requested 5-year LOA.

Fixing America's Surface Transportation Act (FAST-41)

This project is covered under Title 41 of the Fixing America's Surface Transportation Act, or “FAST-41.” FAST-41 includes a suite of provisions designed to expedite the environmental review for covered infrastructure projects, including enhanced interagency coordination as well as milestone tracking on the public-facing Permitting Dashboard. FAST-41 also places a 2-year limitations period on any judicial claim that challenges the validity of a Federal agency decision to issue or deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-6(a)(1)(A)).

Ocean Wind's proposed project is listed on the Permitting Dashboard (
https://www.permits.performance.gov/
). Milestones and schedules related to the environmental review and permitting associated with the Ocean Wind 1 project can be found at
https://www.permits.performance.gov/permitting-projects/ocean-wind-project
.

Summary of Request

On October 1, 2021, NMFS received a request from Ocean Wind for the promulgation of a 5-year ITR and issuance of an associated LOA to take marine mammals incidental to the construction activities associated with the Ocean Wind 1 Offshore Wind Energy Facility off of New Jersey in the BOEM Lease Area Outer Continental Shelf (OCS)-A-0498 Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf.

Ocean Wind's request is for the incidental, but not intentional, take of a small number of 17 marine mammal species (comprising 18 stocks) by Level B harassment (for all 18 marine mammal species and stocks) and by Level A harassment (for 10 marine mammal species or stock). Neither Ocean Wind nor NMFS expects serious injury or mortality to result from the specified activities.

We received subsequent applications and supplementary materials on November 12, 2021, December 3, 2021, December 28, 2021, January 5, 2022, January 20, 2022, and February 8, 2022 in response to questions and comments submitted about various aspects of the previously received iterations. The final version of the application was deemed adequate and complete on February 11, 2022 and is available on NMFS' website at
https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility
.

A Notice of Receipt (NOR) for the application was published on March 7, 2022 in the
Federal Register
(87 FR 12666) for a 30-day public comment period. This public comment period closed on April 6, 2022. During the NOR public comment period, NMFS received two letters from environmental non-governmental organizations (ENGOs): Clean Ocean Action (COA) and the Natural Resource Defense Council (NRDC), on behalf of several other ENGOs. NMFS has reviewed all submitted material and has taken these into consideration during the drafting of this proposed rulemaking.

NMFS has previously issued three Incidental Harassment Authorizations (IHAs), including a renewed IHA, to

Ocean Wind for related work regarding high resolution site characterization surveys (see 82 FR 31562, July 7, 2017; 86 FR 26465, May 14, 2021; and 87 FR 29289, May 13, 2022 (renewal)). To date, Ocean Wind has complied with all the requirements (
e.g.,
mitigation, monitoring, and reporting) of the previous IHAs and information regarding their monitoring results may be found in the Estimated Take section. These monitoring reports can be found on NMFS' website:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable
.

On August 1, 2022, NMFS announced proposed changes to the existing North Atlantic right whale vessel speed regulations to further reduce the likelihood of mortalities and serious injuries to endangered right whales from vessel collisions, which are a leading cause of the species' decline and a primary factor in an ongoing Unusual Mortality Event (87 FR 46921). Should a final vessel speed rule be issued and become effective during the effective period of this ITR (or any other MMPA incidental take authorization), the authorization holder would be required to comply with any and all applicable requirements contained within the final rule. Specifically, where measures in any final vessel speed rule are more protective or restrictive than those in this or any other MMPA authorization, authorization holders would be required to comply with the requirements of the rule. Alternatively, where measures in this or any other MMPA authorization are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA authorization would remain in place. The responsibility to comply with the applicable requirements of any vessel speed rule would become effective immediately upon the effective date of any final vessel speed rule and, when notice is published of the effective date, NMFS would also notify Ocean Wind if the measures in the speed rule were to supersede any of the measures in the MMPA authorization such that they were no longer applicable.

Description of the Specified Activities

Overview

Ocean Wind has proposed to construct and operate a 1,100 megawatt (MW) wind energy facility (known as Ocean Wind 1) in State and Federal waters found in the Atlantic Ocean in lease area OCS-A-0498. The Ocean Wind 1 project would allow the State of New Jersey to meet its renewable energy goals under the New Jersey Offshore Wind Economic Development Act (OWEDA). OWEDA was signed into law in August 2010 and required the New Jersey Board of Public Utilities to establish a program to incentivize the development of offshore wind facilities and structures. On January 31, 2018, Governor Phil Murphy signed Executive Order #8 which further directed all New Jersey State Agencies with described responsibilities under OWEDA to work to meet a goal of 3,500 MW of energy from offshore wind by 2030 (
https://nj.gov/infobank/eo/056murphy/pdf/EO-8.pdf
). Then, in November 19, 2019, Executive Order #92 was signed and increased New Jersey's offshore wind goal of 3,500 MW by 2030 to 7,500 MW by 2035 (
https://nj.gov/infobank/eo/056murphy/pdf/EO-92.pdf
). More information on New Jersey's offshore wind goals can be found at:
https://www.nj.gov/dep/offshorewind/about.html
.

Ocean Wind's project would consist of several different types of permanent offshore infrastructure, including wind turbine generators (WTGs;
e.g.,
the GE Haliade-X 12 MW) and associated foundations, offshore substations (OSS), offshore substation array cables, and substation interconnector cables. Overall, Ocean Wind plans to install 98 WTGs and 3 offshore substations (OSS) via impact pile driving; the temporary installation and removal of cofferdams to assist in the installation of the export cable route by vibratory pile driving; several types of fishery and ecological monitoring surveys; the placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable route from OSSs to shore-based converter stations and inter-array cables between turbines; HRG vessel-based site characterization surveys using active acoustic sources with frequencies of less than 180 kHz; and the potential detonation of up to ten UXOs/MECs of different charge weights, as necessary. Vessels would transit within the project area, and between ports and the wind farm to transport crew, supplies, and materials to support pile installation. All offshore cables will connect to onshore export cables, substations, and grid connections, which would be located in Ocean County and Cape May County found in New Jersey.

Marine mammals exposed to elevated noise levels during impact and vibratory pile driving, potential detonations of UXOs, or site characterization surveys, may be taken, by Level A harassment and/or Level B harassment, depending on the specified activity. At the time of writing this proposed notice, Ocean Wind 1 had not finalized design plans; however, they have indicated the project would consist of either all monopile foundations (a total of 101 8/11-m tapered piles to support all WTGs and the 3 OSSs) or monopiles to support the WTGs (n=98) and jacket foundations with pin piles to support the three OSSs using a total of 48 pin piles (16 pin piles per OSS).

Dates and Duration

Ocean Wind anticipates activities resulting in harassment to marine mammals occurring throughout all five years of the proposed rulemaking. Project activities are expected to begin in August 2023 and continue through July 2028. Ocean Wind anticipates the following construction schedule over the five year period (Figure 1). Ocean Wind has noted that these are the best and conservative estimates for activity durations (solid arrows), but that the schedule may shift due to weather, mechanical, or other related delays (dashed arrows). If promulgated, the proposed rule and subsequently issued 5-year LOA would be effective from 2023-2028.

EP26OC22.013

WTG and OSS Pile Installation (Impact Pile Driving)

The installation of monopiles and pin piles related to the construction of up to 98 tapered 8/11-m diameter WTGs (monopile foundations) and 3 OSSs (either consisting of up to 3 monopile or 3 jacket foundations using 48 pin piles total) would occur from May through December and only in Years 1 and 2, depending on local and environmental conditions.

Ocean Wind's present uncertainty with which construction scenario would be employed for OSS installation has resulted in two possible timelines of either 52 or 116 days of installation for all foundation piles related to WTGs and OSSs (monopiles or pin piles). In the 52-day scenario, the schedule assumes a full monopile build-out with the installation of two monopiles per day for WTGs (49 days total) and one monopile per day for each OSS (3 days total). In the 116-day scenario, the schedule assumes a joint monopile-jacket foundation build-out, with the installation of up to one monopile per day for WTGs (98 days total) and up to three pin piles being installed per day over 6 days per OSS (18 days total). Ocean Wind notes in their application that technical problems, such as pile refusal, are not anticipated but could result in additional pile driving days.

Each monopile is expected to require four hours of impact pile driving to install, with a maximum of two monopiles being installed per day. However, in some cases, only one monopile may be installed on some days. Each pin pile is expected to require four hours of impact pile driving, with a maximum of three pin piles being installed per day.

During the installation of monopile foundations, Ocean Wind has requested 24-hour pile driving, which would consist of intermittent impact pile driving that could occur anytime within a 24-hour timeframe and would occur for a total 8 hours of active pile driving plus 1 hour of equipment mobilization (9 hours total). However, only the maximum estimated number of piles per day (two monopiles) would be installed in any 24-hour period. Furthermore, no concurrent impact pile driving (of either monopiles or pin piles) is anticipated to occur during this proposed project.

Ocean Wind anticipates that the first WTG would become operational in 2024 as each turbine would be powered on after installation is completed and all necessary components, such as array cables, OSSs, export cable routes, and onshore substations are installed.

Temporary Cofferdam Installation and Removal (Vibratory Pile Driving)

The installation and removal of up to seven temporary cofferdams at various transition points for the export cable routes, as needed, would primarily occur between October through March, although Ocean Wind does indicate that some removal of cofferdams may occur during the months of April or May.

Installation of each cofferdam would require a maximum of 12 hours via vibratory driving while removal using a vibratory extractor would require 18 hours. All seven cofferdams would necessitate 2 days for installation and 2 days for removal (4 days total) with only 12 hours of vibratory removal occurring per day. This equates to a total of 28 days for all installation and removal. NMFS notes that these 28 days may not be consecutive but would be the total number expected during the entire construction period.

High-Resolution Geophysical Site Characterization Surveys

High-resolution geophysical site characterization surveys would occur annually, with durations dependent on the activities occurring in that year (
i.e.,
construction year versus a non-construction year). Specifically, Ocean Wind estimates a maximum of 88 days of surveys to occur annually in Years 1, 4, and 5 (the pre- and post-construction years); and 180 days annually during Years 2 and 3 (the during-construction years). This estimates approximately 624 days total over the 5-year period. More specifically, in Years 1, 4, and 5, up to 47.5 survey days are expected in the offshore Wind Farm area and 40.5 survey days would occur in the export cable route areas. During Years 2 and 3, up to 180 days are planned with variable survey effort expected, but Ocean Wind anticipates approximately 78 days annually would take place within the export cable route areas and 102 days of survey effort during both of these years would occur in the offshore Wind Farm area. These HRG survey schedules, as proposed by Ocean Wind, do account for periods of down-time

due to inclement weather or technical malfunctions.

Ocean Wind anticipates site characterization surveys occurring in the project area and along the two potential export cable routes to the landfall locations (Oyster Creek, Island Beach State Park in Barnegat Bay, Farm Property, and BL England) specified in the ITA application (see Figure 1-3 in the ITA application; Ocean Wind, 2022b). HRG surveys would utilize up to three vessels working concurrently across the project area over a 24-hour period. Up to three vessels would also perform nearshore surveys; however, these vessels would operate for 12-hours and during daylight only. At any time, all three of the 24-hour vessels may work across different parts of the project area or within the same geographic area. In calculating the HRG vessel effort for the purposes of estimating marine mammal take, it was determined that each day that any given survey vessel is operating would count as a single survey day. For example, if all three vessels are operating in the two export cable routes and Lease Area concurrently, this would count as 3 survey days, regardless of the locations that are being surveyed.

Unexploded Ordnances or Munitions and Explosives of Concern (UXOs/MECs)

Ocean Wind anticipates the potential presence of UXOs/MECs in and around the project area during the 5 years of the proposed rule. These UXOs/MECs are defined as explosive munitions (
e.g.,
shells, mines, bombs, torpedoes,
etc.
) that did not explode or detonate when they were originally deployed or that were intentionally discarded to avoid detonations on land. Typically, these munitions could be left behind following Navy military training, testing, or operations. Ocean Wind primarily plans for avoidance or relocation of any UXOs/MECs found within the project area, when possible. In some cases, it may also be possible that the UXO/MEC could be cut up to extract the explosive components. However, Ocean Wind notes this may not be possible in all cases and in situ disposal may be required. If in situ disposal is required, all disposals will be performed using low-order methods (deflagration), which are considered less impactful to marine mammals, first and then would be elevated up to high-order removal (detonation), if this approach is determined to be necessary. In the event that high-order removal is needed, all detonations would only occur during daylight hours.

Based on preliminary survey data, Ocean Wind conservatively estimates a maximum of 10 days of UXO/MEC detonation may occur, with up to one UXO/MEC being detonated per day and a maximum of 10 UXOs/MECs being detonated over the entire 5-year period. NMFS notes that UXOs/MECs may be detonated at any point in any year as they are found by project developers; however, no UXOs/MECs would be detonated in Federal waters between November 1st and April 30th of any year during the rulemaking.

Specific Geographic Region

Ocean Wind's specified activities would occur in the Northeast U.S. Continental Shelf Large Marine Ecosystem (NES LME), an area of approximately 260,000 km
2
(64,247,399.2 acres) from Cape Hatteras in the south to the Gulf of Maine in the north. Specifically, the lease area and cable corridor are located within the Mid-Atlantic Bight subarea of the NE LME which extends between Cape Hatteras, North Carolina, and Martha's Vineyard, Massachusetts, extending westward into the Atlantic to the 100 m isobath. In the Middle Atlantic Bight, the pattern of sediment distribution is relatively simple. The continental shelf south of New England is broad and flat, dominated by fine grained sediments. Most of the surficial sediments on the continental shelf are sands and gravels. Silts and clays predominate at and beyond the shelf edge, with most of the slope being 70-100 percent mud. Fine sediments are also common in the shelf valleys leading to the submarine canyons. There are some larger materials, left by retreating glaciers, along the coast of Long Island and to the north and east.

Primary productivity is highest in the nearshore and estuarine regions, with coastal phytoplankton blooms initiating in the winter and summer, although the timing and spatial extent of blooms varies from year to year. The relatively productive continental shelf supports a wide variety of fauna and flora.

Ocean Wind 1's proposed activities would occur in the Ocean Wind Lease Area OCS-A 0498 (see Figure 2 in this proposed rule and see Figures 1-1 in the ITA application for more detail; Ocean Wind, 2022b), within the New Jersey WEA of BOEM's Mid-Atlantic Planning Area. Ocean Wind's 277 square kilometer (km
2
; 68,450 acres) Wind Farm Area is found within the larger 306 km
2
(75,525 acre) New Jersey Wind Energy Area (WEA). The Ocean Wind Wind Farm Area (WFA) is located approximately 13 nautical miles (nm; 24.08 km) southeast of Atlantic City, New Jersey. Noise from the specified activities will extend into the surrounding areas and is included in the specified geographic region. For consistency throughout this proposed rulemaking, NMFS will be referring to the Wind Farm Area and export cable corridors where development of the Ocean Wind 1 offshore wind facility would occur as the “project area”. At its nearest point, Ocean Wind 1 would be just over 13 nm (15 miles (mi)) southeast of Atlantic City, New Jersey. The water depths range from 15-36 meters (m; 49-118 feet (ft)) in the Offshore Wind Farm Area and approximately 40 m (131.23 ft) in the export cable route areas. The seabed has a slope of less than 1 degree towards the southeast. The sedimentation in the area is predominantly sandy with some thin clay layers. Ocean Wind has noted that the average temperature of the water column (the upper 10-15 m) is higher in June to September, which increases the sound speeds and creates a downward refracting environment that propagates sounds more directly to the seafloor. However, from December to March, an increase in wind mixing and a reduction in solar energy creates a sound speed profile that is more uniform with depth.

As part of the construction activities, up to seven temporary cofferdams may be constructed where the two potential export cable routes exit the seabed. The onshore landing locations for Ocean Wind 1's export cable routes would be Oyster Creek, Island Beach State Park Barnegat Bay, Farm Property, and BL England, with grid connections being made in BL England and Oyster Creek (Figure 2). Up to 98 wind turbines would be constructed alongside three offshore-substations (OSSs). Inter-array cables would connect all WTGs to OSSs with the export cables connecting the wind facility to the cofferdam locations nearshore (see Figure 3 in this proposed ITA and see Figures 1-2 in the rulemaking application for more detail).

BILLING CODE 3510-22-P

EP26OC22.014

EP26OC22.015

BILLING CODE 3510-22-C
Detailed Description of Specified Activities

Below, we provide detailed descriptions of Ocean Wind's activities, explicitly noting those that are anticipated to result in the take of marine mammals and for which incidental take authorization is requested. Additionally, a brief explanation is provided for those activities that are not expected to result in the take of marine mammals.

Impact Pile Driving—WTGs

Impact pile driving, which is expected to result in the take of marine mammals, is planned for both WTGs (monopiles) and OSS installation (monopiles or pin piles) and will be

used to support the installation of both permanent and temporary structures.

Ocean Wind plans to use a monopile with transition piece (or alternatively a one-piece foundation where the transition piece is part of the monopile) design for all of the WTG locations. This reflects the planned type of foundation based on the preliminary site data obtained for the Project and was selected as it is the most economical solution, the simplest and quickest to install, and requires the least seabed disturbance. Pile driving is only planned to occur from May through December (Years 1 and 2) to reduce North Atlantic right whale interactions, further discussion of this may be found in the Proposed Mitigation section. The monopile will be 11-meters (m; 36-ft) in diameter at the seafloor with a 6-m (20-ft) diameter flange, and will taper to a top diameter of 8 m. Since drafting the Ocean Wind COP (Vol. I, Table 6.1.1-3; Ocean Wind, 2021), project development has continued and for design development of the monopile foundations, a monopile foundation with maximum outer diameter at seabed of 11-m (36-ft) is being carried forward.

The monopile foundations will be installed by one or two heavy lift or jack-up vessels. The main installation vessel(s) will likely remain at the Offshore Wind Farm during the installation phase and transport vessels, tugs, and/or feeder barges will provide a continuous supply of foundations to the Offshore Wind Farm. If appropriate vessels are available, the foundation components could be picked up directly in the marshaling port by the main installation vessel(s).

Each vertical monopile foundation will consist of a single hollow steel cylinder pile, up to 11-m (36-ft) in diameter with a 10.3-centimeter (4-inch) wall thickness. As mentioned above, the monopiles are tapered piles with 8-m top diameter, 11-m bottom diameter, and a tapered section near the water line (referred to as an 8/11 monopile throughout this proposed notice). The installation of all 98 WTGs would only utilize tapered monopile foundations with one monopile being used per WTG.

The monopiles will be installed using an impact hammer, an IHC-4000 or IHC S2500 kilojoule (kJ) hammer, or similar, with a power pack capacity of 6,000 kilowatts (kW), to a maximum expected penetration depth of 50-m (164-ft). Up to two monopiles will be installed per day (estimated at 4 hours of active pile driving per monopile) for an estimated total of 8 hours per day (assuming active pile driving of two monopiles). A total of 98 monopiles will be installed for WTGs. Three additional monopiles may be installed as foundations for the OSSs. Concurrent monopile installation at more than one location is not planned by Ocean Wind and was not analyzed in the ITA application.

Pile installation would occur during daylight hours and could, if Ocean Wind meets NMFS requirements (see Proposed Mitigation section), potentially occur during nighttime hours when, (1) a pile installation is started during daylight and, due to unforeseen circumstances, would need to be finished after dark and (2) for new piles, after dark initiation of pile driving is necessary to meet schedule requirements due to unforeseen delays. To be able to install WTG and OSS monopile foundations, impact pile driving 24-hours per day is deemed necessary when considering the amount of time required to install the foundations in comparison to the time available for installation when factoring in various limitations. Based on similar projects under ideal conditions and consistent with the assumption that up to two foundations could be installed in a single day, installation of a single pile at a minimum would involve a 1-hour pre-clearance period, 4 hours of piling, and 4 hours to move to the next piling location where the process would begin again. This results in an estimated 9 hours of installation time per monopile for the Ocean Wind project, or 909 total hours for 98 WTG foundations and three OSS foundations, assuming ideal conditions for all installations. Once construction begins, Ocean Wind would proceed as rapidly as possible to reduce the total duration of construction, limiting crew transfers and vessel trips by condensing the work as much as possible. Particularly in low North Atlantic right whale abundance months, completing more work in the summer means less overlap with higher density time periods.

Impact Pile Driving—OSSs

A piled jacket foundation, being considered for the OSSs only, is formed of a steel lattice construction (comprising tubular steel members and welded joints) secured to the seabed by hollow steel pin piles attached to the jacket feet. Unlike monopiles, there is no separate transition piece. The transition piece and ancillary components are fabricated as an integrated part of the jacket. Each OSS will have either a single 8/11-m diameter monopile foundation (as used for WTG foundations) or a jacket foundation consisting of 16 2.44-m diameter vertical pin piles installed with an impact hammer, IHC S-2500 kJ hammer, or similar. Each of the piled jacket foundations will consist of four pin piles per leg (16 pin piles total) per OSS. Up to three vertical pin piles will be installed each day during construction of the OSSs, and it is expected to take 4 hours per piling. Six days of installation per OSS foundation is anticipated. The pin piles will be driven to a maximum expected depth of 70 m (230 ft). A total of 48 pin piles (16 pin piles × 3 OSSs) or three monopiles could be installed for the OSSs.

Vibratory Pile Driving—Temporary Cofferdams

The in-water use of vibratory pile driving is expected to result in the take of marine mammals. Unlike impact pile driving, vibratory pile driving is planned to exclusively occur during the potential installation and removal of temporary cofferdams. A temporary cofferdam may need to be installed seaward of the horizontal directional drilling (HDD) landfall locations where the export cable exits from the seabed. The cofferdam, if required, may be installed as either a sheet-piled structure into the seafloor or a gravity cell structure placed on the seafloor using ballast weight. A vibratory hammer will be used to drive sheet pile sidewalls and end walls into the seabed. Installation of a cofferdam is estimated to take up to 18 hours over 2 days, with vibratory driving taking place for no longer than 12 hours each day over the installation period. Removal of the cofferdam will be accomplished using a vibratory extractor and is expected to take up to 18 hours over 2 days, with no more than 12 hours of vibratory removal each day. Cofferdam installation/removal will take place only during daylight hours.

Cofferdams are planned at the following sites: two cofferdams at Oyster Creek (Atlantic Ocean to Island Beach State Parks a sea-to-shore connection point), two cofferdams at Island Beach State Park Barnegat Bay (Barnegat Bay onshore as a bay-to-shore connection point), two cofferdams at Farm Property (bayside of Oyster Creek as a shore-to-bay connection point), and one cofferdam at BL England (as a sea-to-shore connection point). Cofferdams will necessitate minimal water to be temporarily pumped out for construction activities, and then subsequently re-flooded upon the completion of activities. Dewatering activities will be temporary and water drawdown will be minimal to prevent any permanent impacts to groundwater quality.

Ocean Wind considered two scenarios for the cofferdams: a sheet pile installation and removal scenario and a

gravity-cell structure ballasted to the seafloor. In moving forward with the sheet pile scenario, Ocean Wind anticipates that impacts relating to cofferdam installation and removal using sheet piles would exceed any potential impacts for the use of alternative methods (
i.e.,
gravity-cells), and therefore the cofferdam estimates using the sheet pile approach ensures that the most conservative values are carried forward in this proposed action.

In addition to the sound produced in-water from the vibratory driving activities, it is possible that in-air noises from the vibratory hammer could be produced during temporary cofferdam installation and removal. In-air noise is not considered a concern for cetaceans and in-water pinniped species, but could pose a risk to hauled-out seals in the area, specifically harbor seals. However, based on the analysis conducted in Section 1.5.4 of Ocean Wind's ITA application (Figure 1-8), neither Ocean Wind nor NMFS expect the in-air sounds produced to cause take of hauled-out pinnipeds at distances greater than 541 m from the cofferdam installation/removal location (Ocean Wind, 2022b). As all documented pinniped haul-outs are located further than 541 m from each of the seven cofferdam locations, no take of marine mammals is expected from any in-air noise component of vibratory pile driving. Furthermore, any additional discussion relating to vibratory pile driving of temporary cofferdams will refer to in-water noise effects, unless otherwise noted.

High-Resolution Site Characterization Surveys

Ocean Wind plans to conduct HRG surveys operating at frequencies less than 180 kHz in and around the Offshore Wind Farm and along potential export cable routes to landfall locations in New Jersey throughout construction and operation. Survey activities, which include the potential to result in the take of marine mammals, will include multibeam depth sounding, seafloor imaging, and shallow- and medium-penetration sub-bottom profiling within the Offshore Wind Farm and export cable route area, using non-parametric equipment, including boomers, sparkers, and Compressed High-Intensity Radiated Pulse (CHIRPs).

While the final survey plans will not be completed until construction contracting commences, Ocean Wind anticipates that HRG survey operations would be conducted 24 hours per day and up to three vessels may be working concurrently within this 24-hour period at a transit speed of approximately 4 knots. Based on Ocean Wind's past survey experience (
i.e.,
knowledge of typical daily downtime due to weather, system malfunctions,
etc.
), Ocean Wind assumes 70 km average daily distance. On this basis, an annual total of 88 survey days (approximately 47.5 survey days in the Offshore Wind Farm and 40.5 survey days in the export cable route area) is expected during Years 1, 4, and 5. Some inter-year variance in survey locations may be expected, however, 88 survey days annually is anticipated regardless of location. During Years 2 and 3, Ocean wind anticipates up to 78 days annually of survey effort within the export cable route areas and up to 102 days of survey effort during both Years 2 and 3 to occur in the Wind Farm Area.

Ocean Wind estimates that a total of 6,110 linear kilometers (km) will be needed within the Offshore Wind Farm and export cable route area. Survey effort will be split between the two areas: 3,000 km for the array cable, 2,300 km for the Oyster Creek export cable, 510 km for the BL England export cable, and 300 km for the OSS interconnector cable. During WTG and OSS construction and operation, it is anticipated that up to 180 survey days per year will be required, which includes up to 11,000 km of export cable surveys, 10,500 km of array cable surveys, 1,065 km of foundation surveys, 250 km of WTG surveys, and up to 2,450 km of monitoring and verification surveys. In certain shallow-water areas, vessels may conduct surveys during daylight hours only, with a corresponding assumption that the daily survey distance would be halved (35 km). Although, for purposes of analysis, a single vessel survey day is assumed to cover the maximum 70 km.

The following acoustic sources planned for use during Ocean Wind's HRG survey activities that have the potential to result in incidental take of marine mammals:

• Shallow-penetration non-impulsive, non-Parametric SBPs (compressed high-intensity radiated pulses (CHIRP SBPs)) are used to map the near-surface stratigraphy (top 0 to 5 m (0 to 16 ft)) of sediment below the seabed. A CHIRP system emits sonar pulses that increase in frequency sweep from approximately 2 to 20 kHz over time. The pulse length frequency range can be adjusted to meet Project variables. These shallow penetration SPBs are typically mounted on a pole, rather than towed, either over the side of the vessel or through a moon pool in the bottom of the hull, reducing the likelihood that an animal would be exposed to the signal.

• Medium-penetration impulsive boomers are used to map deeper subsurface stratigraphy as needed. A boomer is a broad-band sound source operating in the 3.5 Hz to 10 kHz frequency range. This system is commonly mounted on a sled and towed behind the vessel.

• Medium-penetration impulsive sparkers are used to map deeper subsurface stratigraphy as needed. Sparkers create acoustic pulses from 50 Hz to 4 kHz omnidirectionally from the source that can penetrate several hundred meters into the seafloor. Sparkers are typically towed behind the vessel with adjacent hydrophone arrays to receive the return signals.

Table 1 identifies all the representative survey equipment that operate below 180 kilohertz (kHz) (
i.e.,
at frequencies that are audible and have the potential to disturb marine mammals) that may be used in support of planned geophysical survey activities, and are likely to be detected by marine mammals given the source level, frequency, and beamwidth of the equipment. Equipment with operating frequencies above 180 kHz (
e.g.,
SSS, MBES) and equipment that does not have an acoustic output (
e.g.,
magnetometers) will also be used but are not discussed further because they are outside the general hearing range of marine mammals likely to occur in the project area. No harassment exposures can be reasonably expected from the operation of these sources; therefore, they are not considered further in this proposed action.

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Potential UXO/MEC Detonations

There is the potential that Ocean Wind could encounter UXOs/MECs. These include explosive munitions such as bombs, shells, mines, torpedoes,
etc.
that did not explode when they were originally deployed or were intentionally discarded to avoid land-based detonations. There are several varieties of ordnance and net explosive weights can vary according to type. All bombs are inert but simulate the same ballistic properties.

The risk of incidental detonation associated with conducting seabed-altering activities such as cable laying and foundation installation in proximity to UXOs/MECs jeopardizes the health and safety of project participants. Ocean Wind follows an industry standard As Low as Reasonably Practicable (ALARP) process that minimizes the number of potential detonations (Appendix C; Ocean Wind, 2021).

While avoidance is the preferred approach for UXO/MEC mitigation, there may be instances when confirmed UXO/MEC avoidance is not possible due to layout restrictions, presence of archaeological resources, or other factors that preclude micro-siting. In such situations, confirmed UXO/MEC may be removed through physical relocation or in situ disposal, the latter of which may result in the take of marine mammals. Physical relocation will be the preferred method but is not an option in every case. Selection of a removal method will depend on the location, size, and condition of the confirmed UXO/MEC, and will be made in consultation with a UXO/MEC specialist and in coordination with the agencies with regulatory oversight of UXO/MECs. For UXO/MECs that will require in situ disposal, it will be done with low-order methods (deflagration), high-order (detonation) of the UXO/MEC, or by cutting the UXO/MEC up to extract the explosive components.

To better assess the potential UXO/MEC encounter risk, geophysical surveys have been and continue to be conducted to identify potential UXOs/MECs that have not been previously mapped. As these surveys and analysis of data from them are still underway, the exact number and type of UXOs/MECs in the project area are not yet known. As a conservative approach for the purposes of the impact analysis, it is currently assumed that up to 10 UXOs/MECs 454-kg (1000 pounds; lbs) charges, which is the largest charge that is reasonably expected to be present, may have to be detonated in place. Although it is highly unlikely that all ten charges would consist of this 454 kg charge, as the Navy uses many different sizes of smaller charges (even down to a few kilograms), it was determined to be the most conservative during analysis when analyzing the potential effects of the activity. If necessary, these detonations would occur on up to 10 different days (
i.e.,
only one detonation would occur per day) over the 5-year project. In the event that high-order removal (detonation) is determined to be the preferred and safest method of disposal, all detonations would occur during daylight hours. It is expected that impacts from detonation would occur within the current limits defined for the Project Offshore Envelope, but are dependent on the soil conditions, burial depth, and type of UXO/MEC found.

Construction-Related Vessel Activities and Transit

During construction of the project, Ocean Wind anticipates that an average of approximately 18 project-related vessels will operate during a typical workday in the Wind Farm Area and along the export cable routes. As multiple vessels may be operating concurrently, each day that a survey vessel is operating counts as a single survey day. For example, if a total of three vessels are operating with one in each of the two ECRs (two total) and one in the Lease Area (one total) concurrently, this counts as three survey days. Many of these vessels will remain in the Wind Farm Area or export cable route for days or weeks at a time, potentially making only infrequent trips to port for bunkering and provisioning, as needed. The actual number of vessels involved in the project at one time is highly dependent on the project's final schedule, the final design of the project's components, and the logistics needed to ensure compliance with the Jones Act, a Federal law that regulates maritime commerce in the United States. Table 2 below shows the number of vessels and the number of vessel trips anticipated during construction activities related to Ocean Wind 1.

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While marine mammals are known to respond to vessel noise and the presence of vessels in different ways, we do not expect Ocean Wind 1's vessel operations to result in the take of marine mammals. As existing vessel traffic in the vicinity of the project area off of New Jersey is relatively high, we expect that marine mammals in the area are likely somewhat habituated to vessel noise. In addition, any construction vessels would be stationary for significant periods of time when on-site and any large vessels would travel to and from the site at relatively low speeds. Project-related vessels would be required to adhere to several mitigation measures designed to reduce the potential for marine mammals to be struck by vessels associated with the project; these measures are described further below (see the Proposed Mitigation section) and vessel strikes are neither anticipated nor authorized. As part of various construction related activities, including cable laying and construction material delivery, dynamic positioning thrusters may be utilized to hold vessels in position or move slowly. Sound produced through use of dynamic positioning thrusters is similar to that produced by transiting vessels, in that dynamic positioning thrusters are typically operated either in a similarly predictable manner or used for short durations around stationary activities. Sound produced by dynamic positioning thrusters would be preceded by, and associated with, sound from ongoing vessel noise and would be similar in nature; thus, any marine mammals in the vicinity of the activity would be aware of the vessel's presence, further reducing the potential for startle or flight responses on the part of marine mammals. Accordingly, noise from construction-related vessel activity, including the use of dynamic positioning thrusters, is not expected to result in take of marine mammals and Ocean Wind did not request, and NMFS does not propose to authorize any takes associated with construction related vessel activity. However, NMFS acknowledges the aggregate impacts of Ocean Wind 1's vessel operations on the acoustic habitat of marine mammals and has considered it in the analysis.

Fisheries Monitoring Surveys

Ocean Wind plans to undertake various fisheries monitoring surveys in collaboration with several academic partners throughout the period of effectiveness for this rule. As described in Section 1.3.4 of the ITA application, Ocean Wind has developed a Fisheries Monitoring Plan (FMP) in consultation with BOEM's “Guidelines for Providing Information on Fisheries for Renewable Energy Development on the Atlantic Outer Continental Shelf” (BOEM, 2019). Ocean Wind plans to conduct various types of surveys, including surveys using gear similar to that used in commercial fisheries (
e.g.,
trawl nets, hook and line gear, gillnets, pot/trap), acoustic telemetry surveys, environmental DNA (eDNA) sampling, clam surveys, oceanographic glider surveys, and pelagic fish surveys (Ocean

Wind, 2022b). The Plan also includes structured habitat surveys involving use of chevron traps and a pelagic and benthic baited remote underwater video (BRUV) device connected to the surface by vertical lines.

Gear and activities that NMFS does not expect to have the potential to cause impacts to marine mammals include: use of autonomous gliders, clam surveys using a slow moving hydraulic dredge, non-extractive surveys specifically for pelagic fish (through use of baited and towed camera traps and autonomous glider equipment with echosounders), and non-extractive eDNA collection from water samples taken while in the field, and acoustic telemetry surveys of pelagic fish. These activities, or use of these gear types, are unlikely to have any potential to impact marine mammals as the gear types do not involve use of components that marine mammals are likely to interact with (
e.g.,
become entangled in, be hooked by) or the surveys involve passive interaction with the environment.

Planned fishery survey activities including use of gear that could have potential to result in marine mammal interaction (
e.g.,
trawl surveys, hook and line activities, gillnet use, pot/trap deployment, and chevron trap and BRUV use) are required to implement Best Management Practices (BMPs) that would minimize this risk to the point that take is not reasonably anticipated to occur. Because of the BMPs stated in the Proposed Mitigation section, neither NMFS nor Ocean Wind anticipates any incidental take of marine mammals to occur from the fisheries-specific activities described herein and in the ITA application (Ocean Wind, 2022b). Accordingly, Ocean Wind has not requested any take of marine mammals incidental to these fisheries surveys, nor does NMFS propose to authorize any given the nature of the activities and, for certain gear types, the mitigation measures planned for use by Ocean Wind. Therefore, fishery monitoring survey activities are not analyzed further in this document.

Dredging Activities

Dredging typically consists of the removal and sometimes transportation of underwater sediment to deepen a specific area. This is typically performed in navigational channels for vessel traffic. The ITA application notes that dredging may be required prior to cable laying in the event sandwaves are present and that dredging may need to occur across the lifetime of the project (Ocean Wind, 2022b).

NMFS does not expect dredging to generate noise levels that would cause take of marine mammals. Most of the energy falls below 1 kHz, which indicates that it is highly unlikely to cause damage to marine mammal hearing (Todd
et al.,
2015). For example, a study by Reine and Clarke (2014) found that, using a propagation loss coefficient of 15LogR, source levels of dredging operations in the shallow waters (less than 15 m depth) in New York Harbor were measured at and did not exceed 151 dB
re 1
m
Pa,
which is not expected to cause hearing shifts in marine mammals. A more recent analysis by McQueen
et al.
(2020) found that, using a maximum sound level of 192 dB
re 1
m
Pa,
the resulting isopleths for representative marine mammals (
i.e.,
the harbor seal and the harbor porpoise), the resulting isopleths for temporary shifts in hearing would occur less than 20 m and less than 74 m, respectively. Isopleths for permanent shifts were noted as less than 1 m for both marine mammal species.

In Section 3.15 (Marine Mammals) of the Ocean Wind 1 draft EIS (
https://www.boem.gov/renewable-energy/state-activities/ocean-wind-1
), BOEM states that “Based on the available source level information presented in Section 3.15.5, dredging by mechanical or hydraulic dredges is unlikely to exceed marine mammal permanent threshold shifts (PTS; injury) thresholds, but if dredging occurs in one area for relatively long periods temporary threshold shifts (TTS) and behavioral thresholds could be exceed as well as masking of marine mammal communications (Todd
et al.,
2015; NMFS, 2018).” While NMFS acknowledges the potential of short-duration masking or slight behavioral changes (Todd
et al.,
2015) to occur during dredging activities, any effects on marine mammals are expected to be short-term, low intensity, and unlikely to qualify as take. Given the size of the area that dredging operations would be occurring in, as well as the coastal nature of some of these activities for the nearshore sea-to-shore connection points related to temporary cofferdam installation/removal, NMFS expects that any marine mammals would not be exposed at levels or durations likely to disrupt normal life activities (
i.e.,
migrating, foraging, calving, etc.). Therefore, the potential for take of marine mammals to result from these activities is so low as to be discountable and Ocean Wind did not request, and NMFS does not propose to authorize, any takes associated with dredging and dredging activities are not analyzed further in this document.

Cable Laying and Installation

Cable burial operations will occur both in Ocean Wind 1 Wind Farm Area for the inter-array cables connecting the WTGs to the OSS and in the Ocean Wind 1 export cable route for the cables carrying power from the OSS to land. Inter-array cables will connect the 98 WTGs to the OSS. A single offshore export cable will connect the OSSs to the New Jersey sea-to-shore transition point. The offshore export and inter-array cables will be buried in the seabed at a target depth of 1.2 to 2.8 m (4 to 6 ft). All cable burial operations will follow installation of the monopile foundations, as the foundations must be in place to provide connection points for the export cable and inter-array cables.

All cables will be buried below the seabed, when possible, and buried onshore up to the transition joint bays. The targeted burial depths will be determined later by Ocean Wind, following a detailed design and Cable Burial Risk Assessment. This Assessment will note where burial cannot occur, where sufficient depths cannot be achieved, and/or where additional protection is required due to the export cable crossing other cables or pipelines (either related to the Ocean Wind 1 project or not). Burial of cables will be performed by specific vessels, which are described in Tables 6.1.2-5, 6.1.2-6, 6.1.2-7, 6.1.2-8, and 6.1.2-9 in the Ocean Wind 1 COP (
https://www.boem.gov/ocean-wind-1-construction-and-operations-plan
).

Cable laying, cable installation, and cable burial activities planned to occur during the construction of Ocean Wind 1 may include the following:

• Jetting;

• Vertical injection;

• Leveling;

• Mechanical cutting;

• Plowing (with or without jet-assistance);

• Pre-trenching; and,

• Controlled flow excavation.

Ocean Wind notes that installation days are not continuous and do not include equipment preparation or downtime that may result from weather or maintenance.

Some dredging may be required prior to cable laying due to the presence of sandwaves. Sandwave clearance may be undertaken where cable exposure is predicted over the lifetime of the Project due to seabed mobility. Alternatively, sandwave clearance may be undertaken where slopes become greater than approximately 10 degrees (17.6 percent), which could cause instability to the burial tool. The work could be

undertaken by traditional dredging methods such as a trailing suction hopper. Alternatively, controlled flow excavation or a sandwave removal plough could be used. In some cases, multiple passes may be required. The method of sandwave clearance Ocean Wind chooses will be based on the results from the site investigation surveys and cable design. More information on cable laying associated with the proposed project is provided in Ocean Wind's COP (Ocean Wind, 2022a) and NMFS further references the reader to the Ocean Wind 1 COP found on BOEM's website (
https://www.boem.gov/ocean-wind-1-construction-and-operations-plan
). As the noise levels generated from this activity are low, the potential for take of marine mammals to result is discountable (86 FR 8490, February 5, 2021) and Ocean Wind does not request marine mammal take associated with cable laying. Therefore, cable laying activities are not analyzed further in this document.

Offshore Wind Farm Operational Noise

Although this proposed rulemaking primarily covers the noise produced from construction activities relevant to the Ocean Wind 1 offshore wind facility, operational noise was a consideration in NMFS' analysis of the project, as all 98 turbines would become operational within the effective dates of the rule, beginning no sooner than 2024. It is expected that a minimum of 68 turbines would be operational in 2024 with the rest installed and operational in either late 2024 or 2025. Once operational, offshore wind turbines are known to produce continuous, non-impulsive underwater noise, primarily in the lower-frequency bands (below 8 kHz).

In both newer, quieter, direct-drive systems (such as what has been proposed for Ocean Wind 1) and older generation, geared turbine designs, recent scientific studies indicate that operational noise from turbines is on the order of 110 to 125 dB
re 1
m
Pa,
root-mean-square sound pressure level (SPL
rms
) at an approximate distance of 50 m (Tougaard
et al.,
2020). Tougaard
et al.
(2020) further noted that sound levels could reach as high as 128 dB
re 1
m
Pa,
SPL
rms
in the 10 Hz to 8 kHz range. However, BOEM notes that the Tougaard
et al.
(2020) study assumed that the largest monopile-specific WTG was 3.6 MW, which is much smaller than those being considered for the Ocean Wind 1 project (Ocean Wind 1 DEIS, Section 3.13 Finfish, Invertebrates, and Essential Fish Habitat; BOEM, 2022). Tougaard further stated that the operational noise produced from WTGs is static in nature and is lower than noise produced from passing ships. This is a level that marine mammals in this region are likely already habituated to. Furthermore, operational noise levels are likely lower than those ambient levels already present in active shipping lanes, meaning that any operational noise levels would likely only be detected at a very close proximity to the WTG (Thomsen
et al.,
2006; Tougaard
et al.,
2020). Furthermore, the noise from operational wind turbines has been previously found to be much lower in intensity than the noises present during construction, although this was based on a single turbine with a maximum power of 2 MW (Madsen
et al.,
2006). Other studies by Jansen and de Jong (2016) and Tougaard
et al.
(2009b) determined that while marine mammals would be able to detect operational noise from offshore wind farms (older 2 MW models) for several thousand kilometers, the effects produced from this should have no significant impacts on the individual survival, population viability, marine mammal distribution, or the behavior of the animals. However, these studies are, again, based on older models and not newer generation turbines with more modernized and quieter technology.

More recently, a study by Stöber and Thomsen (2021) was published where the authors were looking to estimate the operational noise from the larger, more recent generation of direct-drive WTGs. Their findings demonstrated that more modern turbine designs could generate higher operational noise levels (170 to 177 dB
re 1

m
Pa
SPL
rms
for a 10 MW WTG) than those previously reported for older models. These results are similar to the results presented by Tougaard
et al.
(2020). However, the results of this study haven't been validated yet as they were based on a small sample size (Ocean Wind 1 DEIS, section 3.15 Marine Mammals; BOEM, 2022).

Specifically related to the proposed Ocean Wind 1 project, BOEM included operational noise throughout the DEIS. As described in Ocean Wind 1's DEIS (in COP Volume II, Appendix R-2; BOEM, 2022), BOEM states that the operational noises would primarily consist of low-frequency sounds (60 to 300 Hz) and consist of relatively low SPLs. It further concludes that, “It is unlikely that WTG operations will cause injury or behavioral responses to marine fauna [including marine mammals], so the risk of impact is expected to be low.” While exceptions have been previously noted in the scientific literature where some lower-frequency sounds produced by some marine mammal species (
i.e.,
odontocete burst-pulsed sounds (Richardson
et al.,
1995) and bottlenose dolphin bray-calls (Janik, 2000)), may fall within similar ranges of operational wind turbine noise, these assumptions were previously attributed based upon the older generation turbines not using the more recent and modern drive shafts. Furthermore, based on the modern type of turbine planned for use in Ocean Wind 1, BOEM has preliminarily determined that no physiological effects on fish would result from WTG operation, which would indicate that no marine mammal prey impacts are likely to occur (Ocean Wind 1 DEIS, Section 3.13 Finfish, Invertebrates, and Essential Fish Habitat; BOEM, 2022). Furthermore, as many offshore permanent structures, including offshore wind farms, are known to attract fish species and other invertebrates after construction in an artificial reef effect (Wilson and Elliott, 2009; Lindeboom
et al.,
2011; Langhamer, 2012; Glarou
et al.,
2020), BOEM and Ocean Wind consider adverse impacts to marine mammal prey are unlikely. Neither BOEM nor Ocean Wind currently expect take of marine mammals to result from WTG operation, and Ocean Wind did not request take authorization from this activity. NMFS acknowledges that more research on the impacts of operational noise on marine mammals and their prey is needed, as currently available information on modern turbine models is limited. However, based on the information above, including the small numbers of turbines and short duration of operation that would be covered under this rule, NMFS is preliminarily not proposing to authorize take of marine mammals from operational noise from WTGs and it is not discussed or analyzed further in this proposed
Federal Register
notice.

In consideration of all activities in which the proposed harassment and subsequent take of marine mammals is considered a possibility, NMFS further addresses conservative approaches for the proposed mitigation, monitoring, and reporting measures, which are described in detail later in this document (see Proposed Mitigation and Proposed Monitoring and Reporting sections).

Description of Marine Mammals in the Area of Specified Activities

Several marine mammal species occur within the project area. Sections 3 and 4 of Ocean Wind's ITA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially

affected species (Ocean Wind, 2022b). Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs;
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments
) and more general information about these species (
e.g.,
physical and behavioral descriptions) may be found on NMFS' website (
https://www.fisheries.noaa.gov/find-species
).

Table 3 lists all species or stocks for which take is expected and proposed to be authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in Table 3 are the most recent available data at the time of publication which can be found in NMFS' SARs (Hayes
et al.,
2022), available online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports
.

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EP26OC22.021

BILLING CODE 3510-22-C

All 38 species that could potentially occur in the proposed survey areas are included in Table 3-1 of the Ocean Wind 1 ITA application and discussed therein (Ocean Wind, 2022b). While the majority of these species have been documented or sighted off the New Jersey coast in the past, for the species and stocks not listed in Table 3, NMFS considers it unlikely that their occurrence would overlap the activity in a manner that would result in harassment, either because of their spatial occurrence (
i.e.,
more northern or southern ranges) and/or with the geomorphological characteristics of the underwater environment (
i.e.,
water

depth in the development area). Because of this, these species are not discussed further.

In addition, the Florida manatees (
Trichechus manatus;
a sub-species of the West Indian manatee) has been previously documented as an occasional visitor to the Northeast region during summer months (U.S. Fish and Wildlife Service (USFWS), 2019). However, manatees are managed by the USFWS and are not considered further in this document.

As indicated above, all 17 species (with 18 managed stocks) in Table 3 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. Five of the marine mammal species for which take is requested have been designated as ESA-listed, including North Atlantic right, blue, fin, sei, and sperm whales. In addition to what is included in Sections 3 and 4 of Ocean Wind's ITA application (
https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility
), the SARs (
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments
), and NMFS' website (
https://www.fisheries.noaa.gov/species-directory/marine-mammals
) provide further general information regarding life history, threats, and status of the impacted species and stocks. Below, we provide additional information, where available and applicable, to inform our impact analyses including designated Unusual Mortality Events, or ESA Critical Habitat, or information regarding other known areas of known biological importance.

Two specific areas have been designated as Critical Habitat for North Atlantic right whales. The calving ground is located in the southern Atlantic coast and extends from Georgia to Florida. The foraging ground extends from Maine to Massachusetts and includes the Gulf of Maine and Georges Bank region. With regards to Ocean Wind 1, both of these specific Critical Habitat locations are found several hundreds of miles from the project area and should not be impacted by this proposed project. Furthermore, no Critical Habitat for other species is close enough to be impacted by Ocean Wind's activities.

Under the MMPA, an unusual mortality event (UME) is defined as “a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response” (16 U.S.C. 1421h(6)). As of September 2022, seven UMEs are considered active, with five of these occurring along the Atlantic coast for several marine mammal species. Currently the most relevant to this proposed action are the UMEs related to the minke whale, the North Atlantic right whale, and the humpback whale. The Florida manatee UME is not discussed further as manatees are not one of NMFS' trust species. This species is managed by the USFWS and more information can be found on their website (
https://myfwc.com/research/manatee/rescue-mortality-response/ume/
). The recent 2022 Northeast Pinniped UME is not discussed further as impacts of this UME have only been recorded along the southern and central coast of Maine (
https://www.fisheries.noaa.gov/2022-pinniped-unusual-mortality-event-along-maine-coast
). Given that these areas are found several hundreds of miles away from the Ocean Wind 1 project area, and are only presently known to these areas off of Maine, the pinniped UME is not discussed further in this proposed notice. More information on UMEs, including all active, closed, or pending, can be found on NMFS' website at
https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events
.

Below, we include additional information for the subset of species that presently have an active or recently closed UME occurring along the Atlantic coast, or for which there is information available related to areas of specific biological significance. For the majority of species potentially present in the specific geographic region, NMFS has designated only a single generic stock (
e.g.,
“western North Atlantic”) for management purposes. This includes the “Canadian east coast” stock of minke whales, which includes all minke whales found in U.S. waters and is also a generic stock for management purposes. For humpback and sei whales, NMFS defines stocks on the basis of feeding locations,
i.e.,
Gulf of Maine and Nova Scotia, respectively. However, references to humpback whales and sei whales in this document refer to any individuals of the species that are found in the specific geographic region. Any areas of known biological importance (including the Biologically Important Areas (BIAs) identified in Van Parijs
et al.,
2015) that overlap spatially with the project area are addressed in the species sections below.

North Atlantic Right Whale

The North Atlantic right whale is considered one of the most critically endangered populations of large whales in the world and has been listed as a federally endangered species since 1970. The Western Atlantic stock is considered depleted under the MMPA (Hayes
et al.,
2022). North Atlantic right whales are currently threatened by low population abundance, higher than normal mortality rates and lower than normal reproductive rates. In 2021, Pace
et al.
released an update of a North Atlantic right whale abundance model. From 1990-2014, the female apparent survival rate fluctuated around 0.96. In 2014, survival decreased to approximately 0.93 and hit an all-time low of 0.89 in 2017. However, in 2018, survival increased dramatically back to around 0.95. The average survival rate, based on the Pace
et al.
(2021) regime model from 2014-2018, is approximately 0.93, slightly lower than the average long-term rate from 1990-2014 (0.96). Since 1990, the estimated number of new entrants (which can be used as a proxy for recruitment rates) has widely fluctuated between 0 and 39 (Pace
et al.,
2021, NMFS 2021). In the last 12 years (2010-2022), the average number of calves born into the population is approximately 13 (as of September 14, 2022).

However, the most recent information on the status of North Atlantic right whales can be found in NMFS' 2022 SAR (Hayes
et al.,
2022). Although NMFS relies on the most up-to-date SARs, we also acknowledge that the population estimate has been updated to below 350 animals, as reflected on our website (
https://www.fisheries.noaa.gov/species/north-atlantic-right-whale
). We noted that this change in abundance estimate would not change the estimated take or the take NMFS has proposed for authorization of North Atlantic right whales. As a result, this information does not change our ability to make the preliminary required findings under the MMPA for Ocean Wind's proposed construction activities.

The North Atlantic right whale calving season begins around mid-November and ends after mid-April. Female North Atlantic right whales give birth to a single calf after a gestation period of 12 months, and typically repeat this in 3-year intervals. However, per NMFS' website (
https://www.fisheries.noaa.gov/national/endangered-species-conservation/north-atlantic-right-whale-calving-season-2022
) and likely due to stress (
e.g.,
entanglements in fishing gear and vessel collisions), North Atlantic right whale mothers have begun having calves every 7 to 10 years, on average (van der Hoop
et al.,
2017; Pettis
et al.,
2022) with mean annual calving intervals increasing significantly over the last

three decades (Kraus
et al.,
2020). Further compounding this issue is that not all calves born into the population survive to adulthood or to a viable age for reproduction. For example, on December 22, 2020, a newborn calf was sighted off El Hierro, an island in the Canary Islands, but has not been subsequently detected with its mother, suggesting it did not survive. More recently, a dead North Atlantic right whale calf was reported stranded on February 13, 2021, along the Florida coast. These impacts all further challenge any potential of recovery for the North Atlantic right whale. As previously stated by Greene and Pershing (2004) and Meyer-Gutbrod
et al.
(2021), the effects on changes in calving rates and further effects from climate variability, may continue to make this a vulnerable species and hinder recovery if present trends continue.

As described above, the project area is present in part of an important migratory corridor for North Atlantic right whales, which make annual migrations up and down the Atlantic coast. There is a recovery plan (NOAA Fisheries, 2017) for the North Atlantic right whale, and relatively recently there was a five-year review of the species (NOAA Fisheries, 2017). The North Atlantic right whale only had a 2.8 percent recovery rate between 1990 and 2011 (Hayes
et al.,
2022). NMFS' website (
https://www.fisheries.noaa.gov/species/north-atlantic-right-whale
) notes fewer than 350 North Atlantic right whales are remaining.

As described above, North Atlantic right whale presence in the project area is seasonal. As a result of several years of aerial surveys and PAM deployments in the area we have confidence that right whales are expected in the project area during certain times of year, while at other times of year right whales are not expected to occur in the project area. LeBreque
et al.
(2015) identify a seasonally active migratory corridor BIA for North Atlantic right whales that overlaps the project area in March-April (northbound route) and November-December southbound. Due to the current status of North Atlantic right whales, and the spatial overlap of the proposed project with an area they are known to seasonally occur in, the potential impacts of the proposed project on right whales warrant particular attention.

Elevated right whale mortalities have occurred since June 7, 2017, along the U.S. and Canadian coast, with the leading category for the cause of death for this UME determined to be “human interaction,” specifically from entanglements or vessel strikes. As of early October 2022, there have been 34 confirmed mortalities (dead stranded or floaters; 21 in Canada; 13 in the United States) and 21 seriously injured free-swimming whales for a total of 55 whales. As of October 14, 2022, the UME also considers animals with sublethal injury or illness bringing the total number of whales in the UME to 91. Approximately 42 percent of the population is known to be in reduced health (Hamilton
et al.,
2021), likely contributing to the smaller body sizes at maturation (Stewart
et al.,
2022) and making them more susceptible to threats. More information about the North Atlantic right whale UME is available online at:
www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event
.

NMFS' regulations at 50 CFR 224.105 designated nearshore waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal Management Areas (SMAs) for North Atlantic right whales in 2008 (73 FR 60173, October 10, 2008). SMAs were developed to reduce the threat of collisions between ships and North Atlantic right whales around their migratory route and calving grounds. While the project area does not overlap with any SMAs, transiting vessels in the Mid-Atlantic Migratory region, specifically out of Delaware Bay (38°52′27.4″ N-075°01′32.1″ W; active between November 1 and April 30) or the New York/New Jersey ports (40°29′42.2″ N-073°55′57.6″ W; active between November 1 and April 30), could travel through these SMAs. NMFS notes that Dynamic Management Areas (DMAs), triggered based on visual sightings documented during the presence of three or more right whales within a specific area, may be established at any time. More information on SMAs and DMAs can be found on NMFS' website at
https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales
.

There are no areas where North Atlantic right whales are specifically known to aggregate for foraging activities that overlap the project area.

Humpback Whale

On September 8, 2016, NMFS divided the once single humpback whale species into 14 distinct population segments (DPS)
1

removed the species-level listing, and in its place listed four DPSs as endangered and one DPS as threatened (81 FR 62260, September 8, 2016). The remaining nine DPSs were not listed. The West Indies DPS, which is not listed under the ESA, is the only DPS of humpback whales that are expected to occur in the Survey Area. Bettridge
et al.
(2015) estimated the size of this population at 12,312 (95 percent Confidence Interval (CI) 8,688-15,954) whales in 2004-05, which is consistent with previous population estimates of approximately 10,000-11,000 whales (Smith
et al.,
1999; Stevick
et al.,
2003) and the increasing trend for the West Indies DPS (Bettridge
et al.,
2015). Whales occurring in the project area are considered to be from the West Indies DPS but are not necessarily from the Gulf of Maine feeding population managed as a stock by NMFS. Given the current data, we expect humpback whales migrating or foraging off the United States East Coast in the North Atlantic Ocean are non-ESA-listed animals (West Indies DPS) that originate from the western North Atlantic Ocean feeding areas (
i.e.,
Gulf of Maine, Gulf of Saint Lawrence, Newfoundland/Labrador, Western Greenland, Iceland, Norwegian Sea, and Northern Norway). Barco
et al.,
2002 estimated that, based on photo-identification, only 39 percent of individual humpback whales observed along the mid- and south Atlantic U.S. coast are from the Gulf of Maine stock. Bettridge
et al.
(2015) estimated the size of the West Indies DPS is 12,312 (95 percent CI 8,688-15,954) whales in 2004-05, which is consistent with previous population estimates of approximately 10,000-11,000 whales (Stevick
et al.,
2003; Smith
et al.,
1999) and the increasing trend for the West Indies DPS (Bettridge
et al.,
2015). Humpback whales utilize the mid-Atlantic as a migration pathway between calving/mating grounds to the south and feeding grounds in the north (Waring
et al.,
2007a; Waring
et al.,
2007b).

1
Under the Endangered Species Act, in 16 U.S.C. 1532(16), a distinct population segment (or DPS) is a vertebrate population or group of populations that is discrete from other populations of the species and significant in relation to the entire species. NOAA Fisheries and the US Fish and Wildlife Service released a joint statement on February 7, 1996 (61 FR 4722) that defines the criteria for identifying a population as a DPS.

Sighting of humpback whales used to be uncommon off of New Jersey; however, four decades ago, humpback whales were infrequently sighted off the US mid-Atlantic states (USMA, New York, New Jersey, Delaware, Maryland, Virginia and North Carolina; CeTAP, 1982), but they are now common to coastal Virginia in winter when most humpback whales are on their breeding

grounds (Swingle
et al.,
1993, Barco
et al.,
2002, Aschettino
et al.,
2022). This shift is also supported by passive acoustic monitoring data (
e.g.,
Davis
et al.,
2020). Recently, Brown
et al.
(2022) investigated site fidelity, population composition and demographics of individual whales in the New York Bight apex (which includes New Jersey waters and found that although mean occurrence was low (2.5 days), mean occupancy was 37.6 days, and 31.3 percent of whales returned from one year to the next. The majority of whales were seen during summer (July-September, 62.5 percent), followed by autumn (October-December, 23.5 percent) and spring (April-June, 13.9 percent). They also found sightings of mother-calf pairs were rare. When data were available to evaluate age, most individuals were either confirmed or suspected juveniles, including four whales known to be 2-4 years old based on known birth year, and 13 whales with sighting histories of 2 years or less on primary feeding grounds. Three individuals were considered adults based on North Atlantic sighting records. The young age structure in the nearshore waters of the New York Bight apex is consistent with other literature (Stepanuk
et al.,
2021; Swingle
et al.,
1993; Barco
et al.,
2022). It remains to be determined whether humpback whales in the New York Bight apex represent a northern expansion of individuals that had wintered off Virginia, a southern expansion of individuals from the adjacent Gulf of Maine, or is the result of another phenomenon.

Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine to Florida. Partial or full necropsy examinations have been conducted on approximately half of the 161 known cases (as of October 2022). Of the whales examined, about 50 percent had evidence of human interaction, either ship strike or entanglement. While a portion of the whales have shown evidence of pre-mortem vessel strike, this finding is not consistent across all whales examined and more research is needed. NOAA is consulting with researchers that are conducting studies on the humpback whale populations, and these efforts may provide information on changes in whale distribution and habitat use that could provide additional insight into how these vessel interactions occurred. More information regarding this declared UME is available at:
www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast
.

A humpback whale feeding BIA extends throughout the Gulf of Maine, Stellwagen Bank, and Great South Channel from May through December, annually (LeBrecque
et al.,
2015). However, this BIA is located further north and does not overlap with any part of the project area.

Minke Whale

Since January 2017, a UME has been declared based on elevated minke whale mortalities that have occurred along the Atlantic coast from Maine through South Carolina, with a total of 123 strandings (as of October 2022). Full or partial necropsy examinations were conducted on more than 60 percent of the whales. Preliminary necropsy findings show evidence of human interactions or infectious disease, but these findings are not consistent across all of the whales examined, so more research is needed. More information is available at:
www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast
.

There are two minke whale feeding BIAs identified in the southern and southwestern section of the Gulf of Maine, including Georges Bank, the Great South Channel, Cape Cod Bay and Massachusetts Bay, Stellwagen Bank, Cape Anne, and Jeffreys Ledge from March through November, annually (LeBrecque
et al.,
2015). However, these BIAs are located further north and do not overlap with any part of the project area.

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
e.g.,
Richardson
et al.,
1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall
et al.
(2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (
i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall
et al.
(2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in Table 4.

BILLING CODE 3510-22-P

EP26OC22.022

BILLING CODE 3510-22-C

For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Seventeen marine mammal species (15 cetacean species (6 mysticetes and 9 odontocetes) and 2 pinniped species (both phocid)) have the reasonable potential to co-occur with the proposed survey activities. Please refer back to Table 3. NMFS notes that in 2019, Southall
et al.
recommended new names for hearing groups that are widely recognized. However, this new hearing group classification does not change the weighting functions or acoustic thresholds (
i.e.,
the weighting functions and thresholds in Southall
et al.
(2019) are identical to NMFS 2018 Revised Technical Guidance). When NMFS updates our Technical Guidance, we will be adopting the updated Southall
et al.
(2019) hearing group classification.

Potential Effects to Marine Mammals and Their Habitat

This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks. General background information on marine mammal hearing was provided previously (see the Description of Marine Mammals in the Area of Specified Activities section). Here, the potential effects of sound on marine mammals are discussed.

Ocean Wind has requested authorization for the take of marine mammals that may occur incidental to construction activities in the Ocean Wind 1 project area. Ocean Wind 1 analyzed potential impacts to marine mammals from acoustic and explosive sources in its ITA application. NMFS carefully reviewed the information provided by Ocean Wind, along with independently reviewing applicable scientific research and literature and

other information to evaluate the potential effects of Ocean Wind's activities on marine mammals, which are presented in this section.

The proposed activities would result in the placement of up to 101 permanent structures (
i.e.,
the monopiles and associated scour protection supporting the WTGs and OSS, depending on the foundation scenario carried forward for the OSSs) and seven temporary cofferdams in the marine environment. Up to ten UXO/MEC detonations may occur intermittently, and only as necessary. A variety of effects on marine mammals, habitat, and prey species could occur.

Description of Sound Sources

This section contains a brief technical background on sound, on the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document. For general information on sound and its interaction with the marine environment, please see,
e.g.,
Au and Hastings (2008); Richardson
et al.
(1995); Urick (1983).

Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in Hz or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the dB. A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal (
m
Pa
)), and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to
1

m
Pa
), while the received level is the SPL at the listener's position (referenced to
1

m
Pa
).

Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.

Sound exposure level (SEL; represented as dB re 1 micropascal-squared second (
m
Pa2
-s)) represents the total energy in a stated frequency band over a stated time interval or event, and considers both intensity and duration of exposure. The per-pulse SEL is calculated over the time window containing the entire pulse (
i.e.,
100 percent of the acoustic energy). SEL is a cumulative metric; it can be accumulated over a single pulse, or calculated over periods containing multiple pulses. Cumulative SEL represents the total energy accumulated by a receiver over a defined time window or during an event. Peak sound pressure (also referred to as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous sound pressure measurable in the water at a specified distance from the source, and is represented in the same units as the rms sound pressure.

When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams or may radiate in all directions (omnidirectional sources), as is the case for sound produced by the pile driving activity considered here. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.

Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound, which is defined as environmental background sound levels lacking a single source or point (Richardson
et al.,
1995). The sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (
e.g.,
wind and waves, earthquakes, ice, atmospheric sound), biological (
e.g.,
sounds produced by marine mammals, fish, and invertebrates), and anthropogenic (
e.g.,
vessels, dredging, construction) sound. A number of sources contribute to ambient sound, including wind and waves, which are a main source of naturally occurring ambient sound for frequencies between 200 Hz and 50 kHz (ICES, 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Precipitation can become an important component of total sound at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times. Marine mammals can contribute significantly to ambient sound levels, as can some fish and snapping shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz. Sources of ambient sound related to human activity include transportation (surface vessels), dredging and construction, oil and gas drilling and production, geophysical surveys, sonar, and explosions. Vessel noise typically dominates the total ambient sound for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 2 kHz and, if higher frequency sound levels are created, they attenuate rapidly.

The sum of the various natural and anthropogenic sound sources that comprise ambient sound at any given location and time depends not only on the source levels (as determined by current weather conditions and levels of biological and human activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
et al.,
1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals. Underwater ambient sound in the Atlantic Ocean southeast of Rhode Island is composed of sounds produced by a number of natural and anthropogenic sources. Human-generated sound is a significant contributor to the ambient acoustic environment in the project location.

Details of source types are described in the following text.

Sounds are often considered to fall into one of two general types: Impulsive and non-impulsive (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing. Please see Southall
et al.
(2019) and NMFS (2018) for an in-depth discussion of these concepts. The distinction between these two sound types is not always obvious, as certain signals share properties of both impulsive and non-impulsive sounds. A signal near a source could be categorized as impulsive, but due to propagation effects as it moves farther from the source, the signal duration becomes longer (
e.g.,
Greene and Richardson, 1988).

Impulsive sound sources (
e.g.,
airguns, explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998; ISO, 2003) and occur either as isolated events or repeated in some succession. Impulsive sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features. Non-impulsive sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or intermittent (ANSI, 1995; NIOSH, 1998). Some of these non-impulsive sounds can be transient signals of short duration but without the essential properties of pulses (
e.g.,
rapid rise time). Examples of non-impulsive sounds include those produced by vessels, aircraft, machinery operations such as drilling or dredging, vibratory pile driving, and active sonar systems. The duration of such sounds can be greatly extended in a highly reverberant environment.

Potential Effects of Underwater Sound on Marine Mammals

Anthropogenic sounds cover a broad range of frequencies and sound levels and can have a range of highly variable impacts on marine life, from none or minor to potentially severe responses, depending on received levels, duration of exposure, behavioral context, and various other factors. Broadly, underwater sound from active acoustic sources can potentially result in one or more of the following: Temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, stress, and masking (Richardson
et al.,
1995; Gordon
et al.,
2003; Nowacek
et al.,
2007; Southall
et al.,
2007; Götz
et al.,
2009). The degree of effect is intrinsically related to the signal characteristics, received level, distance from the source, and duration of the sound exposure in addition to the contextual factors of the receiver (
e.g.,
behavioral state at time of exposure, age class,
etc.
) (Southall
et al.,
2017; Southall
et al.,
2019). In general, sudden, high level sounds can cause hearing loss, as can longer exposures to lower level sounds. Temporary or permanent loss of hearing will occur almost exclusively for noise within an animal's hearing range. We describe below the specific manifestations of acoustic effects that may occur based on the activities proposed by Ocean Wind.

Richardson
et al.
(1995) described zones of increasing intensity of effect that might be expected to occur, in relation to distance from a source and assuming that the signal is within an animal's hearing range. First (at the greatest distance) is the area within which the acoustic signal would be audible (potentially perceived) to the animal but not strong enough to elicit any overt behavioral or physiological response. The next zone (closer to the receiving animal) corresponds with the area where the signal is audible to the animal and of sufficient intensity to elicit behavioral or physiological responsiveness. The third is a smaller zone around the receiving animals within which, for signals of high intensity, the received level is sufficient to potentially cause discomfort or tissue damage to auditory or other systems. Overlaying these zones to a certain extent is the area within which masking (
i.e.,
when a sound interferes with or masks the ability of an animal to detect a signal of interest that is above the absolute hearing threshold) may occur; the masking zone may be highly variable in size.

Potential effects from explosive sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton
et al.,
1973). Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to high level underwater sound or as a secondary effect of extreme behavioral reactions (
e.g.,
change in dive profile as a result of an avoidance reaction) caused by exposure to sound include neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox
et al.,
2006; Southall
et al.,
2007; Zimmer and Tyack, 2007; Tal
et al.,
2015).

Below, we provide additional detail regarding potential impacts on marine mammals and their habitat from noise in general, as well as from the specific activities Ocean Wind plans to conduct, to the degree it is available (noting that there is limited information regarding the impacts of offshore wind construction on cetaceans).

Threshold Shift

Marine mammals exposed to high-intensity sound, or to lower-intensity sound for prolonged periods, can experience hearing threshold shift (TS), which NMFS defines as a change, usually an increase, in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level, expressed in decibels (NMFS, 2018). Threshold shifts can be permanent, in which case there is an irreversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range, or temporary, in which there is reversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range and the animal's hearing threshold would fully recover over time (Southall
et al.,
2019). Repeated sound exposure that leads to TTS could cause PTS.

When PTS occurs, there can be physical damage to the sound receptors in the ear (
i.e.,
tissue damage), whereas TTS represents primarily tissue fatigue and is reversible (Henderson
et al.,
2008). In addition, other investigators have suggested that TTS is within the normal bounds of physiological variability and tolerance and does not represent physical injury (
e.g.,
Ward, 1997; Southall
et al.,
2019). Therefore, NMFS does not consider TTS to constitute auditory injury.

Relationships between TTS and PTS thresholds have not been studied in marine mammals, and there is no PTS data for cetaceans, but such relationships are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several decibels above (a 40 dB threshold shift approximates a PTS onset;
e.g.,
Kryter
et al.,
1966; Miller, 1974; Henderson
et al.,
2008). This can also induce mild TTS (a 6 dB threshold shift approximates a TTS onset;
e.g.,
Southall
et al.,
2019). Based on data from terrestrial mammals, a precautionary assumption is that the

PTS thresholds, expressed in the unweighted peak sound pressure level metric (PK), for impulsive sounds (such as impact pile driving pulses) are at least 6 dB higher than the TTS thresholds and the weighted PTS cumulative sound exposure level thresholds are 15 (impulsive sound) to 20 (non-impulsive sounds) dB higher than TTS cumulative sound exposure level thresholds (Southall
et al.,
20019). Given the higher level of sound or longer exposure duration necessary to cause PTS as compared with TTS, PTS is less likely to occur as a result of these activities, but it is possible and a small amount has been proposed for authorization for several species.

TTS is the mildest form of hearing impairment that can occur during exposure to sound, with a TTS of 6 dB considered the minimum threshold shift clearly larger than any day-to-day or session-to-session variation in a subject's normal hearing ability (Schlundt
et al.,
2000; Finneran
et al.,
2000; Finneran
et al.,
2002).

While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. There are data on sound levels and durations necessary to elicit mild TTS for marine mammals but recovery is complicated to predict and dependent on multiple factors.

Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
i.e.,
recovery time), and frequency range of TTS, and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious. For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that occurs during a time where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during time when communication is critical for successful mother/calf interactions could have more serious impacts.

Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale (
Delphinapterus leucas
), harbor porpoise, and Yangtze finless porpoise (
Neophocoena asiaeorientalis
)) and six species of pinnipeds (northern elephant seal (
Mirounga angustirostris
), harbor seal, ring seal, spotted seal, bearded seal, and California sea lion (
Zalophus californianus
)) that were exposed to a limited number of sound sources (
i.e.,
mostly tones and octave-band noise with limited number of exposure to impulsive sources such as seismic airguns or impact pile driving) in laboratory settings (Southall
et al.,
2019). There is currently no data available on noise-induced hearing loss for mysticetes. For summaries of data on TTS or PTS in marine mammals or for further discussion of TTS or PTS onset thresholds, please see Southall
et al.
(2019), and NMFS (2018).

Recent studies with captive odontocete species (bottlenose dolphin, harbor porpoise, beluga, and false killer whale) have observed increases in hearing threshold levels when individuals received a warning sound prior to exposure to a relatively loud sound (Nachtigall and Supin, 2013, 2015, Nachtigall
et al.,
2016a,b,c, Finneran, 2018, Nachtigall
et al.,
2018). These studies suggest that captive animals have a mechanism to reduce hearing sensitivity prior to impending loud sounds. Hearing change was observed to be frequency dependent and Finneran (2018) suggests hearing attenuation occurs within the cochlea or auditory nerve. Based on these observations on captive odontocetes, the authors suggest that wild animals may have a mechanism to self-mitigate the impacts of noise exposure by dampening their hearing during prolonged exposures of loud sound, or if conditioned to anticipate intense sounds (Finneran, 2018, Nachtigall
et al.,
2018).

Behavioral Disturbance

Behavioral responses to sound are highly variable and context-specific. Many different variables can influence an animal's perception of and response to (nature and magnitude) an acoustic event. An animal's prior experience with a sound or sound source affects whether it is less likely (habituation) or more likely (sensitization) to respond to certain sounds in the future (animals can also be innately predisposed to respond to certain sounds in certain ways) (Southall
et al.,
2019). Related to the sound itself, the perceived nearness of the sound, bearing of the sound (approaching vs. retreating), the similarity of a sound to biologically relevant sounds in the animal's environment (
i.e.,
calls of predators, prey, or conspecifics), and familiarity of the sound may affect the way an animal responds to the sound (Southall
et al.,
2007, DeRuiter
et al.,
2013). Individuals (of different age, gender, reproductive status,
etc.
) among most populations will have variable hearing capabilities, and differing behavioral sensitivities to sounds that will be affected by prior conditioning, experience, and current activities of those individuals. Often, specific acoustic features of the sound and contextual variables (
i.e.,
proximity, duration, or recurrence of the sound or the current behavior that the marine mammal is engaged in or its prior experience), as well as entirely separate factors such as the physical presence of a nearby vessel, may be more relevant to the animal's response than the received level alone. For example, Goldbogen
et al.
(2013) demonstrated that individual behavioral state was critically important in determining response of blue whales to sonar, noting that some individuals engaged in deep (greater than 50 m) feeding behavior had greater dive responses than those in shallow feeding or non-feeding conditions. Some blue whales in the Goldbogen
et al.
(2013) study that were engaged in shallow feeding behavior demonstrated no clear changes in diving or movement even when received levels were high (~160 dB
re 1
m
Pa
) for exposures to 3-4 kHz sonar signals, while others showed a clear response at exposures at lower received levels of sonar and pseudorandom noise.

Studies by DeRuiter
et al.
(2012) indicate that variability of responses to acoustic stimuli depends not only on the species receiving the sound and the sound source, but also on the social, behavioral, or environmental contexts of exposure. Another study by DeRuiter
et al.
(2013) examined behavioral responses of Cuvier's beaked whales to MF sonar and found that whales responded strongly at low received levels (89-127 dB
re 1
m
Pa
) by ceasing normal fluking and echolocation, swimming rapidly away, and extending both dive duration and subsequent non-foraging intervals when the sound source was 3.4-9.5 km away. Importantly, this study also showed that whales exposed to a similar range of received levels (78-106 dB
re 1
m
Pa
) from distant sonar exercises (118 km away) did not elicit such responses, suggesting that context may moderate reactions. Thus, it is known that distance from the source can have an effect on behavioral response that is independent of the effect of received levels (
e.g.,
DeRuiter
et al.,
2013; Dunlop
et al.,
2017a; Dunlop
et al.,
2017b; Falcone
et al.,
2017; Dunlop
et al.,
2018; Southall
et al.,
2019a).

Ellison
et al.
(2012) outlined an approach to assessing the effects of

sound on marine mammals that incorporates contextual-based factors. The authors recommend considering not just the received level of sound, but also the activity the animal is engaged in at the time the sound is received, the nature and novelty of the sound (
i.e.,
is this a new sound from the animal's perspective), and the distance between the sound source and the animal. They submit that this “exposure context,” as described, greatly influences the type of behavioral response exhibited by the animal. Forney
et al.
(2017) also point out that an apparent lack of response (
e.g.,
no displacement or avoidance of a sound source) may not necessarily mean there is no cost to the individual or population, as some resources or habitats may be of such high value that animals may choose to stay, even when experiencing stress or hearing loss. Forney
et al.
(2017) recommend considering both the costs of remaining in an area of noise exposure such as TTS, PTS, or masking, which could lead to an increased risk of predation or other threats or a decreased capability to forage, and the costs of displacement, including potential increased risk of vessel strike, increased risks of predation or competition for resources, or decreased habitat suitable for foraging, resting, or socializing. This sort of contextual information is challenging to predict with accuracy for ongoing activities that occur over large spatial and temporal expanses. However, distance is one contextual factor for which data exist to quantitatively inform a take estimate, and the method for predicting Level B harassment in this rule does consider distance to the source. Other factors are often considered qualitatively in the analysis of the likely consequences of sound exposure, where supporting information is available.

Friedlaender
et al.
(2016) provided the first integration of direct measures of prey distribution and density variables incorporated into across-individual analyses of behavior responses of blue whales to sonar, and demonstrated a five-fold increase in the ability to quantify variability in blue whale diving behavior. These results illustrate that responses evaluated without such measurements for foraging animals may be misleading, which again illustrates the context-dependent nature of the probability of response. Exposure of marine mammals to sound sources can result in, but is not limited to, no response or any of the following observable responses: Increased alertness; orientation or attraction to a sound source; vocal modifications; cessation of feeding; cessation of social interaction; alteration of movement or diving behavior; habitat abandonment (temporary or permanent); and, in severe cases, panic, flight, stampede, or stranding, potentially resulting in death (Southall
et al.,
2007). A review of marine mammal responses to anthropogenic sound was first conducted by Richardson (1995). More recent reviews (Nowacek
et al.,
2007; DeRuiter
et al.,
2012 and 2013; Ellison
et al.,
2012; Gomez
et al.,
2016) address studies conducted since 1995 and focused on observations where the received sound level of the exposed marine mammal(s) was known or could be estimated. Gomez
et al.
(2016) conducted a review of the literature considering the contextual information of exposure in addition to received level and found that higher received levels were not always associated with more severe behavioral responses and vice versa. Southall
et al.
(2021) states that results demonstrate that some individuals of different species display clear yet varied responses, some of which have negative implications, while others appear to tolerate high levels, and that responses may not be fully predictable with simple acoustic exposure metrics (
e.g.,
received sound level). Rather, the authors state that differences among species and individuals along with contextual aspects of exposure (
e.g.,
behavioral state) appear to affect response probability. The following subsections provide examples of behavioral responses that provide an idea of the variability in behavioral responses that would be expected given the differential sensitivities of marine mammal species to sound and th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-23200. Public record. Not legal advice.