Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Atlantic Shores South Project Offshore of New Jersey

Federal RegisterSep 22, 2023

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 230907-0215]

RIN 0648-BL73

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Atlantic Shores South Project Offshore of New Jersey

AGENCY:

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

ACTION:

Proposed rule; proposed letter of authorization; request for comments.

SUMMARY:

NMFS has received a request from Atlantic Shores Offshore Wind LLC (Atlantic Shores), a joint venture between EDF-RE Offshore Development LLC (a wholly owned subsidiary of EDF Renewables, Inc.) and Shell New Energies US LLC, for Incidental Take Regulations (ITR) and associated Letters of Authorization (LOAs) pursuant to the Marine Mammal Protection Act (MMPA). The requested regulations would govern the authorization of take, by Level A harassment and Level B harassment, of small numbers of marine mammals over the course of 5 years (2025-2029) incidental to the construction of Atlantic Shores South located offshore of New Jersey within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0499 (Lease Area) and associated ECCs (ECR Area). Atlantic Shores South would be divided into two projects: Project 1 and Project 2 (the combined hereafter referred to as the “Project Area”) and Atlantic Shores has requested a 5-year LOA for each Project, both issued under these proposed regulations. Atlantic Shores' activities likely to result in incidental take include impact and vibratory pile driving and site assessment surveys using high-resolution geophysical (HRG) equipment within the Lease Area and Export Cable Corridor (ECC). 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 rule documenting our decision.

DATES:

The regulations and LOA, if issued, would be effective January 1, 2025 through December 31, 2029. Comments and information must be received no later than October 23, 2023.

ADDRESSES:

Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to

www.regulations.gov

and enter NOAA-NMFS-2023-0068 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 Atlantic Shores' 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, if promulgated, would provide a framework under the authority of the MMPA (16 U.S.C. 1361

et seq.

) for NMFS to authorize the take of marine mammals incidental to construction of Atlantic Shores South within the Lease Area and along ECCs to two landfall locations in New Jersey. NMFS received a request from Atlantic Shores to incidentally take individuals of 16 species of marine mammals (9 species by Level A harassment and Level B harassment and 7 species by Level B harassment only), comprising 17 stocks, incidental to Atlantic Shores' 5 years of construction activities. No mortality or serious injury is anticipated or proposed for authorization. Please see the

Legal Authority for the Proposed Action

section below for definitions of harassment, serious injury, and incidental take.

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 (when applicable), and public notice and an opportunity for public comment are provided.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). If such findings are made, NMFS must prescribe the permissible methods of taking; “other means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”); and requirements pertaining to the monitoring and reporting of such takings.

As noted above, no serious injury or mortality is anticipated or proposed for authorization in this proposed rule. Relevant definitions of MMPA statutory and regulatory terms are included below:

•

U.S. Citizen

—individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 216.103);

•

Take

—to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13); 50 CFR 216.3);

•

Incidental harassment, incidental taking, and incidental, but not intentional, taking

—an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are

infrequent, unavoidable or accidental (see 50 CFR 216.103);

•

Serious Injury

—any injury that will likely result in mortality (50 CFR 216.3);

•

Level A harassment

—any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and

•

Level B harassment

—any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (16 U.S.C. 1362(18); 50 CFR 216.3).

Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for proposing and, if appropriate, issuing regulations and an associated LOA(s). This proposed rule describes permissible methods of taking and mitigation, monitoring, and reporting requirements for Atlantic Shores' proposed activities.

Summary of Major Provisions Within the Proposed Rule

The major provisions of this proposed rule include:

• The proposed take of marine mammals by Level A harassment and/or Level B harassment;

• No mortality or serious injury of any marine mammal is anticipated or proposed to be authorized;

• The establishment of a seasonal moratorium on wind turbine generator (WTG), meteorological tower (Met Tower), and offshore substation (OSS) foundation impact pile driving during the months of highest North Atlantic right whale (

Eubalaena glacialis

) presence in the Project Area (December 1st-April 30th), unless NMFS allows for pile driving to occur in December;

• A requirement for both visual and passive acoustic monitoring to occur by trained, NOAA Fisheries-approved Protected Species Observers (PSOs) and Passive Acoustic Monitoring (PAM; where required) operators before, during, and after select activities;

• A requirement for training for all Atlantic Shores personnel to ensure marine mammal protocols and procedures are understood;

• The establishment of clearance and shutdown zones for all in-water construction activities to prevent or reduce the risk of Level A harassment and to minimize the risk of Level B harassment;

• A requirement to use sound attenuation device(s) during all foundation impact pile driving installation activities to reduce noise levels to those modeled assuming 10 decibels (dB);

• A delay to the start of foundation installation if a North Atlantic right whale is observed at any distance by PSOs or acoustically detected within certain distances;

• A delay to the start of foundation installation if other marine mammals are observed entering or within their respective clearance zones;

• A requirement to shut down impact pile driving (if feasible) if a North Atlantic right whale is observed or if any other marine mammals are observed entering their respective shutdown zones;

• A requirement to implement sound field verification during impact pile driving of foundation piles to measure

in situ

noise levels for comparison against the modeled results;

• A requirement to implement soft-starts during impact pile driving using the least amount of hammer energy necessary for installation;

• A requirement to implement ramp-up during the use of high-resolution geophysical (HRG) marine site characterization survey equipment;

• A requirement for PSOs to continue to monitor for 30 minutes after any impact pile driving for foundation installation;

• A requirement for the increased 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;

• A requirement to implement various vessel strike avoidance measures;

• A requirement to implement measures during fisheries monitoring surveys, such as removing gear from the water if marine mammals are considered at-risk or are interacting with gear; and

• A requirement for frequently scheduled and situational reporting including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and sound field verification monitoring results.

NMFS must withdraw or suspend any LOA(s), if issued under these regulations, after notice and opportunity for public comment, if it finds the methods of taking or the mitigation, monitoring, or reporting measures are not being substantially complied with (16 U.S.C. 1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with the requirements of the LOA(s) may result in civil monetary penalties and knowing violations may result in criminal penalties (16 U.S.C. 1375).

National Environmental Policy Act (NEPA)

To comply with the National Environmental Policy Act of 1969 (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 alternatives with respect to potential impacts on the human environment.

Accordingly, NMFS proposes to adopt the BOEM Environmental Impact Statement (EIS) for Atlantic Shores South, provided our independent evaluation of the document finds that it includes adequate information analyzing the effects of promulgating the proposed regulations and issuance of the LOA(s) on the human environment. NMFS is a cooperating agency on BOEM's EIS. BOEM's Atlantic Shores South Draft Environmental Impact Statement for Commercial Wind Lease OCS-A 0499 (DEIS), was made available for public comment through a Notice of Availability on May 19, 2023 (88 FR 32242), available at

https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-south

. The DEIS had a 45-day public comment period; the comment period was open from May 19, 2023 to July 3, 2023. Additionally, BOEM held two in-person public meetings, on June 21, 2023 and June 22, 2023, and two virtual public hearings, on June 26, 2023, and June 28, 2023.

Information contained within Atlantic Shores' ITA application and this

Federal Register

document 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 proposed rulemaking prior to concluding our NEPA process or making a final decision on the requested 5-year ITR and associated LOAs.

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)).

Atlantic Shores' proposed project is listed on the Permitting Dashboard, where milestones and schedules related to the environmental review and permitting for the project can be found at

https://www.permits.performance.gov/permitting-project/atlantic-shores-south

Summary of Request

On February 8, 2022, NMFS received a request from Atlantic Shores for the promulgation of regulations and the issuance of associated LOAs to take marine mammals incidental to construction activities associated with the Atlantic Shores South project located offshore of New Jersey in Lease Area OCS-A 0499 and associated ECCs. Atlantic Shores' request is for the incidental, but not intentional, take of a small number of 16 marine mammal species (comprising 17 stocks) by Level A harassment and/or Level B harassment. Neither Atlantic Shores nor NMFS expects serious injury and/or mortality to result from the specified activities, and Atlantic Shores did not request, and NMFS is not proposing, to authorize mortality or serious injury of any marine mammal species or stock.

In response to our questions and comments and following extensive information exchanges with NMFS, Atlantic Shores submitted a final, revised application on August 12, 2022 that NMFS deemed adequate and complete on August 25, 2022. The final version of the application is available on NMFS' website at

https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores

On September 29, 2022, NMFS published a notice of receipt (NOR) of the adequate and complete application in the

Federal Register

(87 FR 59061), requesting public comments and information related to Atlantic Shores' request during a 30-day public comment period. Due to a request, NMFS extended the public comment period for an additional 15 days (87 FR 65193, October 28, 2022) for a total of a 45-day public comment period. During the 45-day NOR public comment period, NMFS received 5 comments and letters from the public, including a citizen, environmental non-governmental organization (eNGO), and local citizen group. NMFS has reviewed all submitted material and has taken these into consideration during the drafting of this proposed rule.

In June 2022, Duke University's Marine Spatial Ecology Laboratory released updated habitat-based marine mammal density models (Roberts

et al.,

2016; Roberts

et al.,

2023). Because Atlantic Shores applied previous marine mammal densities to their analysis in their application, Atlantic Shores submitted a final Updated Density and Take Estimation Memo (herein referred to as Updated Density and Take Estimation Memo) on March 28, 2023 that included marine mammal densities and take estimates based on these new models. This memo can be found on NMFS' website at

https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores

In January and February 2023, Atlantic Shores informed NMFS that the proposed activity had changed from what was presented in the adequate and complete MMPA application. Specifically, Atlantic Shores committed to installing only monopile WTG foundations for Project 1 (and any found in the associated Overlap Area), as opposed to either monopile or jacket foundations. All WTGs built for Project 2 (and any remaining Overlap Area) may still consist of either monopiles or jacket foundations and remain unchanged as presented in the adequate and complete MMPA application. Additionally, all OSS foundations that could be developed across both Projects 1 and 2 continue to maintain build-outs using only jacket foundations. Atlantic Shores provided a memo and supplemental materials outlining these changes to NMFS on March 31, 2023. These supplemental materials can be found on NMFS' website at

https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores

NMFS has previously issued seven Incidental Harassment Authorizations (IHAs), including one renewed IHA and one correction to an issued IHA, to Atlantic Shores authorizing take incidental to high-resolution site characterization surveys offshore New Jersey (see 85 FR 21198, April 16, 2020; 86 FR 21289, April 22, 2021 (renewal); 87 FR 24103, April 22, 2022; and 88 FR 38821, June 14, 2023).

To date, Atlantic Shores has complied with all the requirements (

e.g.,

mitigation, monitoring, and reporting) of the previous IHAs and information regarding Atlantic Shores' take estimates and monitoring results may be found in the Estimated Take section. Final monitoring reports can be found on NMFS' website, along with previously issued IHAs:

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 (87 FR 46921, August 1, 2022) 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 (UME). Should a final vessel speed rule be issued and become effective during the effective period of these regulations (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 vessel speed 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 on the effective date, NMFS would also notify Atlantic Shores if the measures in the speed rule were to supersede any of the measures in the MMPA authorization such that they were no longer required.

Description of the Specified Activities

Overview

Atlantic Shores has proposed to construct and operate two offshore wind projects (Project 1 and Project 2), collectively known as Atlantic Shores South in Lease Area OCS-A 0499. This lease area is located within the New Jersey Wind Energy Area (NJ WEA). Collectively, Atlantic Shores South will consist of up to 200 WTGs, 10 OSSs, and 1 Met Tower divided into two projects: Project 1 and Project 2. These Projects would assist the State of New Jersey to meet its renewable energy goals under the New Jersey Offshore Wind Economic Development Act (OWEDA). Atlantic Shores has been given an allowance by the New Jersey

Board of Public Utilities, through an Offshore Renewable Energy Certificate (OREC), to construct a facility capable of delivering 1,510 megawatts (MW) of renewable energy to the State of New Jersey through Project 1 (owned by an affiliate of Atlantic Shores, called Atlantic Shores Offshore Wind Project 1, LLC). Atlantic Shores also intends to compete for a second OREC award through a competitive solicitation process to develop Project 2, which will be owned by another affiliate company of Atlantic Shores, Atlantic Shores Offshore Wind Project 2, LLC.

The Project would consist of several different types of permanent offshore infrastructure, including up to 200 15-MW WTGs and up to 10 OSSs; a single Met Tower; and OSS array cables and interconnector cables. All permanent foundations (WTGs, OSSs, and the single Met Tower) would be installed using impact pile driving only. For the permanent foundations, Atlantic Shores originally considered three construction scenarios for the completion of Projects 1 and 2. All three schedules assume a start year of 2026 for WTG, Met Tower, and OSS foundation installation. Construction Schedules 1 and 3 assume monopile foundations for all WTGs and the Met Tower across both Projects 1 and 2. Construction Schedule 2 originally assumed a full jacket foundation buildout for both Project 1 and Project 2. However, Atlantic Shores has modified Schedule 2 to now assume that all WTGs and the Met Tower in Project 1 would be built using monopiles; the WTGs for Project 2 would still consist of either jacket or monopile foundations. In all Construction Schedules, the OSS foundations would always be built out using jacket foundations. However, these may vary in size between the two Projects (

i.e.,

small, medium, or large OSSs). Under Schedules 1 and 2, foundations would be constructed in 2 years. Under Schedule 3, all permanent foundations would be installed within a single year.

Atlantic Shores would also conduct the following specified activities: temporarily install and remove, by vibratory pile driving, up to eight nearshore cofferdams to connect the offshore export cables to onshore facilities; deploy up to four temporary meteorological and oceanographic (metocean) buoys (three in Project 1 and one in Project 2); several types of fishery and ecological monitoring surveys; the placement of scour protected, trenching, laying, and burial activities associated with the installation of the export cable route from OSSs to shore-based switching and substations and inter-array cables between turbines; HRG vessel-based site characterization and assessment surveys using active acoustic sources with frequencies of less than 180 kilohertz (kHz); transit within the Project Area and between ports and the Lease Area to transport crew, supplies, and materials to support pile installation via vessels; and WTG operation. All offshore cables would be connected to onshore export cables at the sea-to-shore transition points located in Atlantic City, New Jersey (Atlantic Landfall Site) and in Sea Girt, New Jersey (Monmouth Landfall Site). From the sea-to-shore transition point, onshore underground export cables are then connected in series to switching stations/substations, overhead transmission lines, and ultimately to the grid connection. No detonations of unexploded ordnance or munitions and explosives of concern (UXOs/MECs) were planned to occur, nor are they included in this proposed rule. Therefore, these are not discussed further.

Marine mammals exposed to elevated noise levels during impact and vibratory pile driving and site characterization surveys may be taken, by Level A harassment and/or Level B harassment, depending on the specified activity. No serious injury or mortality is anticipated or proposed for authorization.

Dates and Duration

Atlantic Shores anticipates that activities with the potential to result in incidental take of marine mammals would occur throughout all 5 years of the proposed regulations which, if issued, would be effective from January 1, 2025 through December 31, 2029. Based on Atlantic Shores' proposed schedule, the installation of all permanent structures would be completed by the end of November 2026. More specifically, the installation of WTG and OSS foundations is expected to occur between May-December in both 2026 and 2027. The temporary cofferdams used for nearshore cable landfall construction would be installed and subsequently removed anytime within 2025 and 2026. The Met Tower would be installed alongside WTGs in Project 1 (2026). Lastly, Atlantic Shores anticipates HRG survey activities using boomers, sparkers, and Compressed High-Intensity Radiated Pulses (CHIRPs) to occur annually and across the entire 5-year effective period of the proposed rule. These HRG surveys are not planned to occur concurrently to pile driving activities but they may occur across the entire Atlantic Shores South Lease Area and ECCs and may take place at any time of year.

Atlantic Shores has provided a schedule for all of their proposed construction activities (Table 1). This table also presents a breakdown of the timing and durations of the activities proposed to occur during the construction and operation of the Atlantic Shores South project.

Table 1—Estimated Activity Schedule to Construct and Operate Atlantic Shores South, per the Construction and Operations Plan

Activity

Duration

(months)

Expected

schedule

Project 1

start date

Project 2

start date

Onshore Interconnection Cable Installation

9-12

2024-2025

Q1-2024

Onshore Substation and/or Onshore Converter Station Construction

18-24

2024-2026

Q1-2025

HRG Survey Activities

3-6

2025-2029

Q2-2025

Q3-2025

Export Cable Installation

6-9

2025

Q2-2025

Q3-2025

Temporary Cofferdam Installation and Removal

18-24

2025-2026

Q2-2025

Q3-2025

OSS installation and Commissioning

5-7

2025-2026

Q2-2026

WTG Foundation and Met Tower Installation

2026-2027

Q1-2026

Inter-Array Cable Installation

2026-2027

Q2-2026

Q3-2026

WTG Installation and Commissioning

2026-2027

Q2-2026

Q1-2027

Met Buoy Deployments

2025-2027

Q1-2025

Scour Protection Pre-Installation

2025-2027

Q2-2025

Q3-2025

Scour Protection Post-Installation

2025-2027

Q2-2025

Q3-2025

Site Preparation

2025-2029

Q1-2025

Q4-2029

Fishery Monitoring Surveys

2025-2029

Q1-2025

Q4-2029

Note:

Q1 = January through March; Q2 = April through June; Q3 = July through September; Q4 = October through December.

These durations are a total across all years the activity may occur.

The expected timeframe is indicative of the most probable duration for each activity; the timeframe could shift and/or extend depending on supply chains.

Pile driving may occur from May to December, annually.

The expected timeframe is dependent on the completion of the preceding Project 1 activities (

i.e.,

Project 1 inter-array cable installation and WTG installation) and the Project 2 foundation installation schedule.

Atlantic Shores anticipates that WTGs for each Project would be commissioned starting in 2026 and 2027 but turbines would not become operational until 2028 and 2029.

Atlantic Shores anticipates the installation of all offshore components for Atlantic Shores South are expected to take up to 3 years to complete. During the construction period, Atlantic Shores plans for Project 1 WTGs to be commissioned in 2026 and for Project 2 WTGs to be commissioned in 2027. Atlantic Shores anticipates that Projects 1 and 2 would become operational in 2028 and 2029, respectively. However, these schedules are subject to change based on the contracting and permitting needs of the projects.

Specific Geographic Region

Atlantic Shores would construct and operate Atlantic Shores South (both Project 1 and Project 2) in Federal and state waters offshore New Jersey within Lease Area OCS-A-0499 and associated ECCs (Figure 1). The Lease Area covers approximately 413.3 square kilometers (km

; 102,124 acres) and begins approximately 8.7 miles (mi; 14 km) from the New Jersey shoreline. The area for Project 1 measures approximately 219.2 km

(54,175 acres) and is located in the western part of the Project Area; the area for Project 2 consists of approximately 182.2 km

(45,013 acres) and is located along the eastern part of the Project Area. The Overlap Area, which would be split between Projects 1 and 2, consists of an area measuring approximately 11.9 km

(2,936 acres). The water depths in the Lease Area range from 19 to 37 meters (m; 62 to 121 feet (ft)) while water depths along the Atlantic City ECC range from 0 to 22 m (0 to 72 ft) and the Monmouth ECC ranges from 0 to 30 m (0 to 98 ft). Within the Project Area, water depths gradually increase based on distance from shore. Cable landfall construction work (

i.e.,

temporary cofferdams) would be conducted in shallow waters of 4 to 7.5 m (13.1 to 24.6 ft) deep. Sea surface temperatures range from 41 to 73 degrees Fahrenheit (°F; 5 to 23 degrees Celsius (°C)).

Atlantic Shores' specified activities would occur within the Northeast U.S. Continental Shelf Large Marine Ecosystem (NES LME), an area of approximately 260,000 km

(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 sub-area of the NES 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, making it important habitat for various benthic and fish species and marine mammals, including but not limited to, fin whales, humpback whales, North Atlantic right whales, and other large whales as they migrate through the area. The Cold Pool, a bottom-trapped cold, nutrient-rich pool and distinct oceanographic feature of the Mid-Atlantic Bight, creates habitat that provides thermal refuge to cold water species in the area (Atlantic Shores South Construction and Operations Plan (COP), Volume II; Lentz, 2017). Cold Pool waters, when upwelled to the surface, promote primary productivity within this region (Voynova

et al.,

2013).

The seafloor in the Atlantic Shores South Project Area is dynamic and changes over time due to current, tidal flows, and wave conditions. The benthic habitat of the Project Area contains a variety of seafloor substrates, physical features, and associated benthic organisms. The soft bottom sediments in the Project Area are reflective of the rest of the Mid-Atlantic Bight region, and are characterized by fine sand as well as gravel and silt/sand mixes (Milliman, 1972; Steimle and Zetlin, 2000). The offshore Project Area is dominated by fine, medium, and coarse sand. The ECCs consist of medium to coarse sand offshore. The Atlantic City ECC is characterized by fine sand nearshore while the Monmouth ECC largely consists of medium and fine sand in the nearshore portion (Atlantic Shores, 2021). The benthic community within the offshore Project Area is characterized by echinoderms, bivalves, gastropods, polychaetes, oligochaetes, amphipods, crustaceans, and cnidarians (Atlantic Shores, 2021).

Additional information on the underwater environment's physical resources can be found in the COP for the Atlantic Shores South project (Atlantic Shores, 2021) available at

https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-offshore-wind-construction-and-operations-plan.

BILLING CODE 3510-22-P

EP22SE23.000

Figure 1—Project Location

BILLING CODE 3510-22-C

Detailed Description of Specified Activities

Below we provide detailed descriptions of Atlantic Shores' proposed activities, explicitly noting those that are anticipated to result in the take of marine mammals and for which an 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.

WTG, OSS, and Met Tower Foundation Installation

Atlantic Shores South, in total, includes up to 200 WTGs, a single Met Tower, and up to 10 OSS. As described above, Atlantic Shores has proposed to divide Atlantic Shores South into two projects. Project 1 and Project 2 (including any relevant Overlap Area allocated) would be electrically distinct in all ways and energy produced from the Projects' OSSs would transmit energy to shore via 230-275 kilovolts (kV) High Voltage Alternating Current (HVAC) and/or 320-525 kV high voltage direct current (HVDC) export cables (a maximum of eight cables would be used) to two landfall locations located near Atlantic City, New Jersey and at the Monmouth site located near Sea Girt, New Jersey. Project 1 would include 105 to 111 WTGs on monopile foundations while Project 2 would include 89 to 95 WTGs on either monopile or jacket foundations. Monopiles would be either 12 m (39.37 ft) or 15 m (49.21 ft) in diameter. The number of OSSs in each project is dependent upon the foundation size. Project 1 may contain five small, two medium, or two large OSSs while Project 2 may contain up to five small, three medium, or two large OSSs. OSSs would be located on jacket foundations using 5 m (16.4 ft) pin piles and could consist of a four-legged (small OSS), six-legged (medium OSS), or eight-legged (large OSS) design. Atlantic Shores would also construct a Met Tower in Project 1 on a monopile foundation. Atlantic Shores has indicated that monopiles, suction bucket jackets, mono-suction buckets, and gravity-base structures may also be used (particularly for the construction of the Met Tower and depending on the size of OSSs built, per Atlantic Shores' Project Design Envelope (PDE) refinement memo). However, for purposes of this analysis, the use of suction buckets and gravity-bases to secure bottom-frame foundations are not being considered further in this analysis as the installation of bottom-frame foundations using suction buckets or gravity-base foundations are not anticipated to result in noise levels that would cause harassment to marine mammals. Small OSSs built on monopile foundations would produce less Level B harassment than if they were built on jacket foundations, as indicated in the ITA application, as more piles would need to be driven by an impact hammer. Hence, we limit our analysis in this proposed rule to foundations which require the maximum amount of impact pile driving possible.

A monopile foundation typically consists of a single steel tubular section with several sections of rolled steel plate welded together and secured to the seabed. Secondary structures on each WTG monopile foundation could include a boat landing or alternative means of safe access, ladders, a crane, and other ancillary components. A typical monopile installation sequence begins with the monopiles transported directly to the Project Area for installation or to the construction staging port by an installation vessel or a feeding barge. At the foundation location, the main installation vessel upends the monopile in a vertical position in the pile gripper mounted on the side of the vessel. The hammer is then lifted on top of the pile and pile driving commences with a soft-start and proceeds to completion. Piles are driven until the target embedment depth is met, then the pile hammer is removed and the monopile is released from the pile gripper. Once installation of the monopile is complete, the vessel moves to the next installation location.

All monopile foundations (

i.e.,

15-m or 12-m) would be installed using a 4,400 kilojoule (kJ) impact hammer (

i.e.,

Menck MHU 4400S) to obtain a maximum penetration depth of 60 m (197 ft). Atlantic Shores estimates that a 15-m monopile could require up to 15,387 strikes at a rate of up to 30 blows per minute (bpm) to reach the target penetration depth, while a 12-m monopile could require 12,350 total strikes at a rate of 30 bpm. Each monopile is estimated to take between 7 to 9 hours to install using an impact hammer. In most cases, Atlantic Shores anticipates installing one monopile per day. However, they may install up to two monopiles per day if possible. For jacket foundations, pin piles would be installed using a 2,500 kJ hammer (

i.e.,

IHC S-2500) to reach a maximum penetration depth of 70 m (230 ft). Each pin pile would need an estimated 3 hours of impact hammering to reach the target penetration depth, with up to 12 hours needed per day to install four pin piles (one jacket foundation). Impact hammering for pin piles would require up to 6,750 strikes at a rate of up to 30 bpm.

Jackets would be lifted off the transport or installation vessel and lowered to the seabed with the correct orientation. The piles would be driven to the engineered depth, following the same process described above for monopiles. The jacket piles are expected to be pre-piled (

i.e.,

the jacket structure will be set on pre-installed piles) or post-piled (

i.e.,

the jacket is placed on the seafloor and piles are subsequently driven through guides at the base of each leg). Figure 2 in Atlantic Shores' ITA application provides a conceptual design of monopile and jacket foundations that may be used for Atlantic Shores South.

No concurrent pile driving is planned to occur (

i.e.,

only one pile would be installed at any given time). Pile driving would not be initiated at night. Nighttime pile driving is not planned; however, if a pile is started 1.5 hours prior to civil sunset and does not pause for more than 30 minutes once visibility is diminished due to darkness during daylight and would necessitate being finished during nighttime hours, Atlantic Shores may complete impact pile driving during night to avoid stability or safety issues. Pile driving associated with foundation installation could occur within the 8-month period of May through December, annually.

Atlantic Shores presented three schedules in their application to construct Atlantic Shores South which contained various foundation types for both projects. However, since that time, Atlantic Shores has narrowed their scope for Project 1 which effectively eliminates Schedule 1 and Schedule 3 from potential scenarios. Atlantic Shores has determined all WTG and Met Tower foundations in Project 1 would be monopiles (maximum size of 15-m). However, they retained the description for Project 2 such that either monopiles or jacket foundations could be used. For both Project 1 and Project 2, OSSs would still be built out using jacket foundations. The 2-year construction timeline described for Schedule 2 in their application remains valid. Hence, NMFS is considering this modified Schedule 2 for purposes of this proposed rule.

All foundation installation for Project 1 plus the Overlap Area (

i.e.,

112 WTGs, 1 Met Tower, and 2 OSSs) would occur during construction year 1. For Project 2, 6 WTG foundations would be installed in year 1 and 89 WTG foundations and 2 OSS would be installed in construction year 2. All foundations would be installed in 2026 and 2027, the second and third year of the proposed effective period of this rulemaking. Based on the overall pile driving schedule, Atlantic Shores estimates up to 112 pile driving days for WTGs/Met Tower and up to 12 days for OSS pin pile installation would be needed in construction year 1 (2026). Up to 89 days for WTG installation would be needed in construction year 2 (2027) with another 12 days necessary

for the installation of Project 2's OSSs. This estimates a total of 201 days needed to install WTGs (on either a jacket or monopile foundation) and up to 24 days for OSS jacket foundation installation.

Installation of the WTG, Met Tower, and OSS foundations is anticipated to result in the take, by Level A harassment and Level B harassment, of marine mammals due to noise generated during impact pile driving. No vibratory pile driving or drilling of foundations would occur.

Cable Landfall Construction

Atlantic Shores would bring the Atlantic Shores South offshore export cables to shore at the Atlantic landfall site for Project 1, located east of the Project Area and the Monmouth landfall site for Project 2, located north of the Project Area (see Figure 1). The Atlantic Shores South export cable would be connected to the onshore transmission cable at the landfall locations using horizontal directional drilling (HDD) and potentially a backhoe dredge. Atlantic Shores would construct temporary cofferdams using sheet piles to temporarily “dewater” a specified enclosed area using pumps to allow for excavation of the HDD pit. Once excavation and drilling are completed and the HDD conduit and export cable are installed, the seabed would be restored and water would be allowed to flow back in, following the removal of the temporary cofferdam.

Atlantic Shores anticipates installing up to eight temporary cofferdams, with four located at each of two main landfall locations (although fewer may be needed). Each cofferdam is anticipated to measure 30 m x 8 m (98.4 ft x 26.2 ft) in size and would be made up of up to 109 sheet piles which would be both installed and removed by vibratory pile driving methods. This yields a total of 436 sheet piles across all four cofferdams at each landfall location, yielding a total of 872 sheet piles for both landfall locations. Atlantic Shores estimates they can install or remove approximately 13-14 sheet piles per day, assuming 8 hours of vibratory pile driving would occur within any 24-hour period. Given different depths found at the Monmouth and Atlantic landfall sites, the work at Monmouth would take longer (due to deeper waters). The shallower depths found at the Atlantic landfall site would necessitate shorter vibratory pile driving durations. Hence, up to 16 days of work (8 days to install, 8 days to remove) would be required for all cofferdams at the Monmouth landfall site and up to 12 days of work (6 days to install, 6 days to remove) would be necessary for all cofferdams at the Atlantic landfall site. In total, to install and remove all eight cofferdams across both sites, 28 days of vibratory hammering/removal would need to occur. Installation of the temporary cofferdams is anticipated to result in the take, by Level B harassment, of marine mammals due to noise during vibratory driving.

Marine Site Assessment Surveys (e.g., HRG)

Atlantic Shores would conduct site assessment surveys in the Project Area, including the Lease Area and along potential ECCs to landfall locations in New Jersey throughout construction and operation occurring within the 5-year period of the proposed rulemaking. These activities would include:

• Shallow penetration sub-bottom profiler (pingers/CHIRPs) to map the near surface stratigraphy (top 0 ft to 16 ft (0 m to 5 m) soils below seabed);

• Medium penetration sub-bottom profiler (CHIRPs/parametric profilers/sparkers) to map deeper subsurface stratigraphy as needed (soils down to 246 ft (75 m) to 328 ft (100 m) below the seabed);

• Grab sampling to validate seabed classification using typical sample sizes between 0.1 square meters (m

) and 0.2 m

;

• Depth sounding (multibeam depth sounder and single beam echosounder) to determine water depths and general bottom topography (currently estimated to range from approximately 16 ft (5 m) to 131 ft (40 m) in depth);

• Seafloor imaging (side scan sonar survey) for seabed sediment classification purposes, to identify natural and man-made acoustic targets resting on the bottom as well as any anomalous features; and

• Magnetic intensity measurements (gradiometer) for detecting local variations in regional magnetic field from geological strata and potential ferrous objects on and below the bottom.

These site assessment surveys may utilize acoustic equipment such as multibeam echosounders, side scan sonars, shallow penetration sub-bottom profilers (SBPs) (

e.g.,

CHIRP non-parametric SBP), medium penetration sub-bottom profilers (

e.g.,

sparkers), and ultra-short baseline positioning equipment, some of which are expected to result in the take of marine mammals. Surveys would occur annually, with durations dependent on the activities occurring in that year (

i.e.,

construction years versus operational years). Use of gradiometers and grab sampling techniques do not have the potential to result in harassment of marine mammals (

e.g.,

85 FR 7926, February 12, 2020) and will not be discussed further. Of the HRG equipment proposed for use, the following sources have the potential to result in take of marine mammals:

• Shallow penetration SBPs to map the near-surface stratigraphy (top 0 to 5 m (0 to 16 ft) of sediment below seabed). A CHIRP system emits sonar pulses that increase in frequency over time. The pulse length frequency range can be adjusted to meet project variables. These are typically mounted on the hull of the vessel or from a side pole.

• Medium penetration SBPs (sparkers) to map deeper subsurface stratigraphy as needed. A sparker creates acoustic pulses from 50 Hz to 4 kHz omni-directionally from the source that can penetrate several hundred meters into the seafloor. These are typically towed behind the vessel with adjacent hydrophone arrays to receive the return signals.

Table 2 identifies all the representative HRG survey equipment that may be used during construction of Atlantic Shores South.

Table 2—Summary of Representative Site Assessment Equipment

HRG survey

equipment

(sub-bottom profiler)

Representative equipment type

Operating frequency ranges

(kHz)

Operational source level ranges

(dB

RMS

)

Beamwidth ranges

(degrees)

Typical pulse durations RMS

(millisecond)

Pulse repetition rate

(Hz)

Sparker

Applied Acoustics Dura-Spark 240 *

0.01 to 1.9

203

180

3.4

Geo Marine Geo-Source *

0.2 to 5

195

180

7.2

0.41.

Compressed High-Intensity Radiated Pulses (CHIRP)

Edgetech 2000-DSS *

2 to 16

195

6.3

10.

Edgetech 216 *

2 to 16

179

17, 20, or 24

10.

Edgetech 424 *

4 to 24

180

Edgetech 512i *

0.7 to 12

179

Pangeosubsea Sub-bottom Imager

4 to 12.5

190

120

4.5

44.

INNOMAR

INNOMAR SES-2000 Medium-100 Parametric

85 to 115

241

40.

INNOMAR deep-36 Parametric

30 to 42

245

1.5

0.15 to 5

40.

Gradiometer

Geometrics G-882 Marine Magnetometer Transverse Gradiometer Array

n/a

n/a.

Side-scan Sonar

EdgeTech 4200

100 or 400

201 at 100 kHz; 205 at 400 kHz

0.5° × 50°-0.26° × 50°

1.1 to 7.2 at 100 kHz; 1.1 to 1.3 at 400 kHz

5 to 11 or 5 to 20 dependent on pulse duration.

Edgetech 4205 Tri-Freq

300, 600, or 900

220 at 300 kHz; 2019 at 600 kHz; 221 at 900 kHz

0.5° × 50°-0.26° × 50°

1.0 to 3.0 at 300 kHz; 0.5 to 5.0 at 600 kHz; 0.4-2.8 at 900 kHz

5 to 11 or 10 to 25 dependent on pulse duration.

Multibeam Echosounder

Dual Head Kongsberg EM2040

200 to 400

204.5

0.4 to 1.5

0.014 to 12

50.

Norbit iWMBS

200 to 700

220

0.5 to 1.9

0.5

Up to 60.

Note:

RMS stands for root mean square, SPL stands for sound pressure level; * = Sources expected to cause take of marine mammals and that were carried forward into the take estimation analysis.

The operational source level for the Dura-Spark 240 is assigned based on the value closest to the field operational history of the Dura-Spark 240 (operating between 500 to 600 joules (J)) found in Table 10 in Crocker and Fratantonio (2016), which reports a 203 dB

RMS

for 500 J source setting and 400 tips. Because Crocker and Fratantonio (2016) did not provide other source levels for the Dura-Spark 240 near the known operational range, the SIG ELC 820 @750 J at 5 m depth assuming an omnidirectional beam width was considered as a proxy or comparison to the Dura-Spark 240. The corresponding 203 dB

RMS

level is considered a realistic and conservative value that aligns with the history of operations of the Dura-Spark 240 over 3 years of surveys by Atlantic Shores. Operational information was provided by Atlantic Shores and assumes that the Geo Marine Survey System would be operating at 400 J.

Information on the source level was obtained from Gene Andella (Edgetech) with JASCO Applied Sciences.

Manufacturer specifications and/or correspondence with manufacturer.

Considered EdgeTech Chirp as a proxy source for levels as the Chirp512i has similar operation settings as the Chirp 2000-DSS tow vehicle. See Table 18 in Crocker and Fratantonio (2016) for source levels for 100% power and 2-12 kHz.

Values from Crocker and Fratantonio (2016) for 100% power and comparable bandwidth.

For a frequency of 4 kHz.

Parametric sub-bottom profilers do not have the potential to harass marine mammals due to their lower frequencies and extremely narrow beamwidth (see 87 FR 24103, April 22, 2022). Therefore, these sources were not considered in calculating the maximum r value for the ensonified area calculation.

The specification sheet indicates a peak source level of 247 dB re 1 μPa m (based on personal communications with Atlantic Shores to Jens Wunderlich, Innomar, 7-18-2019). The average difference between the peak SPL source levels for sub-bottom profilers measured by Crocker and Fratantonio (2016) was 6 dB. Atlantic Shores therefore estimates the SPL source level is 241 dB re 1 μPa m.

While the Applied Acoustics Dura-Spark 240 is planned to be used during project activities, the equipment specifications and subsequent analysis are based on the SIG ELC 820 with a power level of 750 J at a 5 meter depth (Crocker and Fratantonio (2016)). However, while 750 J was used as a worst-case scenario to conservatively account for take of marine mammals as these higher electrical outputs would only be used in areas with denser substrates (700 to 800 J), Atlantic Shores expects a more reasonable power level to be 500 to 600 J based on prior experience with HRG surveys.

Of the sources described in Table 2 above, the only sources expected to result in the harassment of marine mammals are CHIRPs and sparkers. Given the combination of characteristics of the non-impulsive sources planned for use, which include operating frequencies mostly above 180 kHz (considered outside of the hearing range of most marine mammals) and/or very narrow beamwidths, harassment is not expected to result from the operation of any of these sources; therefore, they are not considered further in this proposed rule.

Atlantic Shores' HRG surveys would utilize up to three vessels working concurrently in different sections of the Lease Area and ECCs. No HRG surveys would occur concurrently with impact pile driving activities. All vessels would be operating several kilometers apart at any one time. On average, 55 km (34.2 mi) would be surveyed each survey day, per vessel, at a speed of approximately 6.5 km/hour (3.5 knots (kn; 4 miles per hour (mph))) on a 24-hour basis. During the 5 years the proposed rule would be effective, an estimated area of 413.3 km

(102,124 acres) would be surveyed across the Project Area. Atlantic Shores anticipates up to 60 days of survey activities would occur annually, with 300 days total expected throughout the entire 5-year effective period of the proposed rule.

Meteorological Buoy Deployment

Atlantic Shores will also deploy up to four meteorological and oceanographic (called “metocean”) buoys within the Atlantic Shores South Project Area. Three of these would be located in Project 1 and one would be located in Project 2. These buoys would be designed to collect different data than obtained by the Met Tower and would only be anticipated to collect data (

e.g.,

wind resource and metocean data) during 1-2 years of the pre-construction period to support the development of Atlantic Shores' projects. Buoys would be deployed approximately 6 months prior to the start of construction and would remain deployed throughout construction activities. Deployed buoys would be decommissioned after construction was completed.

At the time of drafting this proposed rule, Atlantic Shores had not chosen a buoy supplier, so exact design specifics are not certain. However, the buoys will be similar, though smaller, than those deployed in Atlantic Shores' Site Assessment Plan (SAP). We discuss those here for context and to support our analysis of likely buoy effects. Available information on Atlantic Shores' proposed buoy deployments is also available in their COP (Volume I, Section 4.6.2 Temporary Metocean Buoys).

Under the SAP, four buoys (specifically the Fugro SEAWATCH

Wind light detection and ranging (LiDAR) buoy) would be deployed (numbered IA1-IA4 in the SAP, with one located in the northern portion of the project (IA2) and three located in the

middle and southern portion (IA1, IA3, and IA4) (Figure1-1; Tetra Tech, 2020). The mooring design for the buoys consists of galvanized chains that would connect the buoy to a large link steel chain weight located on the seafloor. A second steel link chain would connect to a water-level acoustic modem via a bottom weight. The chain for the buoy would attach to the base of the SEAWATCH

Wavescan platform via a long keel structure. The diameter of the link in the chafe section of the mooring is 19 millimeters. The maximum area that the anchor chain could sweep is estimated as 3.1 acres (0.0048 square miles (mi

)), assuming the chain's radius is 63 meters (207 feet). The approximate sweep of the acoustic modem's chain is approximately 50 meters (164 ft). Figure 3-2 in the SAP demonstrates the buoy mooring design (Tetra Tech, 2020).

Entanglement can occur if wildlife becomes immobilized in survey lines, cables, nets, or other equipment that is moving through the water column. Atlantic Shores incorporated BOEM's Mid-Atlantic Environmental Assessment (EA), which references a NMFS Biological Opinion on the Cape Wind Energy Project (NMFS, 2010) in Nantucket Sound where metocean buoys were used. The EA, as well as a study by Harnois

et al.

(2015) assessed the potential entanglement risk of metocean buoy mooring systems on marine mammals and determined that there is an extremely low probability that animals would interact with the buoys, which would indicate a low risk of entanglement. Based on the high tension of the chain proposed for use, as well as the material of the chain (galvanized chains versus rope), Harnois

et al.

(2015) determined that the risk of entanglement to marine mammals was low. Furthermore, given that these buoys would not have any active acoustic components and do not pose a risk of take of marine mammals, Atlantic Shores did not request, and NMFS does not propose to authorize, take associated with the metocean buoys and these are not analyzed further in this document.

Cable Laying and Installation

Cable burial operations would occur both in the Lease Area and ECCs from the lease area to shore. The inter-array cables would connect the WTGs to any one of the OSSs. Cables within the ECCs would carry power from the OSSs to shore at the landfall locations in Atlantic City, New Jersey and Sea Girt, New Jersey. The offshore export and inter-array cables would be buried in the seabed at a target depth of up to 1.5 m (5 ft) to 2 m (6.6 ft), although the exact depth will depend on the substrate in the area. All cable burial operations would follow installation of the WTG and OSS foundations, as the foundations must be in place to provide connection points for the export cables and inter-array cables.

Cable laying, cable installation, and cable burial activities planned to occur during the construction of the Atlantic Shores South project would include the following methods: simultaneous lay and burial for export cable installation, post-lay burial for inter-array cables, and pre-lay trenching for cable burial that is necessary to be deeper than target depth and/or cable burial in firmer ground such as clays or dense sands. Atlantic Shores is evaluating the use of the following techniques to achieve the target cable burial depth: jet plowing for simultaneous lay and burial, jet trenching for simultaneous lay and burial or post-lay burial in soft soils, and in a more limited capacity, the use of mechanical trenching for pre-lay trenching, simultaneous lay and buy, and post-lay burial in areas more challenging for cable burial. As the noise levels generated from cable laying and installation work are low, the potential for take of marine mammals to result is discountable. Atlantic Shores is not requesting and NMFS is not proposing to authorize take associated with cable laying activities. Therefore, cable laying activities are not analyzed further in this document.

Site Preparation and Scour Protection

For export cable installation, site preparation typically includes required sand bedform leveling, boulder clearance, pre-lay grapnel runs, and a pre-lay survey. Due to the presence of mobile sand bedforms, some dredging may be required prior to cable laying. Sand bedform leveling may include the removal of tops of sand bedforms and is typically undertaken where cable exposure is predicted over the lifetime of a project due to seabed mobility. This facilitates cable burial below the reference seabed. Alternatively, sand bedform removal may be undertaken where slopes become greater than approximately 10 degrees (17.6 percent), which could cause instability to the burial tool. If necessary to remove sand bedforms, Atlantic Shores will clear the area using subsea excavation methods. The work could be undertaken by traditional dredging methods such as a trailing suction hopper. Controlled flow excavation may be used to induce water currents to force the seabed into suspension, where it would otherwise be directed to eventually settle (Atlantic Shores, 2021). A route clearance plow may be used to push sand aside and clear the way for cable installation. In areas of hard or rocky seabed substrate, cutterhead dredging may be used in place of the trailing suction hopper dredge. This method involves the use of a larger drill and may be necessary along the ECCs. Backhoe dredging may be used in shallow, nearshore areas where only small amounts of material need to be removed. This equipment operates in a similar way to an onshore backhoe excavator yet is mounted on a small barge (Atlantic Shores, 2021).

Boulder clearance may also be required in targeted locations to clear boulders along the ECCs, inter-array cable routes, and/or foundations prior to installation. Boulder removal can be performed using a combination of methods to optimize clearance of boulder debris of varying size and frequency. Boulder clearance trials are normally performed prior to wide-scale seafloor preparation activities to evaluate efficacy of boulder clearing techniques. If boulders are encountered during installation activities, Atlantic Shores would move them from the ECCs using subsea grabs as the presence of boulders is expected to be minimal and this type of technique has minimal impacts on the seafloor. A boulder grab involves a grab most likely deployed from a dynamic positioning offshore support vessel being lowered to the seabed, over the targeted boulder. Once “grabbed,” the boulder is relocated away from the cable route and/or foundation location. A displacement plow may be used if more boulders than expected are encountered. This type of plow has a simple Y-shaped design and clears an approximately 10-m wide corridor. The plow is towed along the seafloor by a vessel and displaces boulders along a clearance path as it passes over the seabed surface (Atlantic Shores, 2021). The size of boulders that can be relocated is dependent on a number of factors including the boulder weight, dimensions, embedment, density and ground conditions. Typically, boulders with dimensions less than 2.5 m (8 ft) can be relocated with standard tools and equipment.

Additionally, pre-lay grapnel runs may be undertaken to remove any seafloor debris along the ECCs. A specialized vessel will tow an approximately 1-m wide grapnel train consisting of a series of hooks designed to snag debris. Tension measurements on the grapnel train towing rope will indicate whether the hooks have caught debris. Atlantic Shores plans to make three passes with the grapnel train along each cable alignment.

Atlantic Shores would conduct pre-lay surveys along the final planned cable alignments prior to cable installation. The purpose of these surveys would be to confirm seabed morphology and bathymetry and to detect any objects that may impact the future infrastructure. Multi-beam echosounders would be used to survey a 20-m (65.6-ft) wide corridor centered on the cable alignments to examine the total width of the seabed area to be disturbed by cable installation activities (Atlantic Shores, 2021).

Atlantic Shores would also deposit rock around each foundation as scour protection. Installation of the rock would be conducted from a fallpipe vessel using a pipe that extends to just above the seafloor to deposit rock contained in the vessel's hopper in a controlled manner. Scour protection placement would occur prior to and/or after foundation installation.

NMFS does not expect scour protection placement or site preparation work, including boulder removal, sand leveling (

i.e.,

dredging) pre-lay grapnel runs, and pre-lay surveys, to generate noise levels that would cause take of marine mammals. Dredging, bedform leveling, and boulder clearance is expected to be extremely localized at any given time, and NMFS expects that any marine mammals would not be exposed at levels or durations likely to disrupt behavioral patterns (

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. Atlantic Shores did not request and NMFS is not proposing to authorize any takes associated with seabed preparation activities; therefore, they are not analyzed further in this document.

Vessel Operation

During construction of the project, Atlantic Shores estimates that approximately 550 to 2,050 vessel round trips to the Lease Area will occur annually during the projects' operations, which is an average of two to six vessel trips per day in support of both Project 1 and 2 (COP Volume 1 section 5.6). Atlantic Shores expects up to 51 vessels to be used during construction, though a maximum of 16 vessels are expected to operate at one time for a given construction activity. Construction vessels would make an estimated 1,745 trips to the Project Area, including trips from the future New Jersey Wind Port, Paulsboro Marine Terminal, and Repauno Port and Rail Terminal in New Jersey; Portsmouth Marine Terminal in Virginia; and the Port of Corpus Christi in Texas. Atlantic Shores generally expects 5 to 16 maintenance vessels to operate at a given time, though up to 22 vessels may be required in some repair scenarios. Maintenance vessels would make an estimated 1,861 trips to the Project Area, the majority of which would originate from the O&M facility in Atlantic City, with a smaller number originating from the New Jersey Wind Port (DEIS Section 3.6.6).

Atlantic Shores plans that their vessel usage will be divided into different campaigns, including: foundation installation, scour protection installation, OSS installation, WTG installation, inter-array cable installation, inter-link cable installation (if needed), and export cable installation. When performing the specific construction task, the vessels would either anchor, jack-up, or maintain their position using dynamic positioning systems, where a continually adjusting propulsion system keeps the vessel in a single location.

Many of these vessels will remain in the Wind Farm Area or ECC 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 3 below shows the number of vessels and the number of vessel trips anticipated during construction activities related to Atlantic Shores South.

Table 3—Type and Number of Vessels and Number of Vessel Trips Anticipated During Construction Activities Over the Effective Period of the Requested Rulemaking

Vessel role

Vessel type

Number of

vessels

Approximated

operational speed

(kn)

WTG, Met Tower, and OSS Foundation installation

Foundation installation

Bulk carrier

Medium heavy lift vessel

Jack-up vessel

Bubble curtain support vessel

Tugboat

Transport barge

Barge

2-3

3-10

Towing tugboat

Tugboat

2-6

3-10

Support vessel

Service Operation Vessel

Crew transfer and noise monitoring

Crew transfer vessel

OSS Installation

OSS installation

Large heavy lift vessel

Medium heavy lift vessel

Bubble curtain support vessel

Tugboat

Transport barge

Barge

Towing tugboat

Tugboat

Assistance tugboat

Tugboat

Crew transfer and noise monitoring

Crew transfer vessel

Scour protection

Scour protection installation

Fall pipe vessel

Dredging

Dredger

Cofferdam installation and removal

Spread-moored barge

DP barge

All vessels will follow required proposed vessel strike mitigation measures and any vessel speed restrictions required by this proposed rule (

i.e.,

all vessels will travel at 10 kn (11.5 mph) or less in Dynamic Management Areas (DMAs) and Seasonal Management Areas (SMAs)).

Atlantic Shores estimates that up to 37 round trips, monthly, from various ports would be necessary associated with the installation of the WTG and OSS foundations, topside construction associated with WTGs and OSSs, and the necessary scour protection. They further estimate that about 19 monthly round trips would be needed from the port in Atlantic City, up to 17 would be needed from the New Jersey Wind port, and a single monthly round trip would occur from European ports. Where a tug and barge combination would be used, a single vessel trip is assumed from the joint approach as these two vessels would be used conjointly.

While marine mammals are known to respond to vessel noise and the presence of vessels in different ways, we do not expect Atlantic Shores' 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. 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. 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 avoid vessel strikes; these measures are described further below (see the Proposed Mitigation section). Vessel strikes are neither anticipated nor authorized. Atlantic Shores did not request, and NMFS does not propose to authorize, take associated with vessel activity. However, NMFS acknowledges the aggregate impacts of Atlantic Shores South's vessel operations on the acoustic habitat of marine mammals and has considered it in the analysis and preliminary determinations contained herein.

Helicopter Usage

Atlantic Shores may supplement vessel-based transport with helicopters to transfer crew to and from the shore and the Lease Area. Crew transport via helicopter may be utilized during offshore construction, commissioning, and testing phases as well as during maintenance of the WTGs (Atlantic Shores, 2021). Helicopters could be used when rapid-response operations and maintenance (O&M) activities are needed or when poor weather limits the use of crew transport vessels. Helicopters would be based within a reasonable distance of the project at a general aviation airport (COP Volume 1 section 5.6). The most intense helicopter activity would occur during construction phases and mostly likely during shift changes. Atlantic Shores does not currently anticipate installing helicopter pads on the OSSs, though this feature may be added depending on the O&M strategy employed. If a helicopter pad is installed, it would be designed to support a U.S. Coast Guard helicopter, including appropriate lighting and marking as required (COP Volume 1 section 5.5; DEIS section 2).

In addition, fixed wing aircraft may be used to support environmental monitoring and mitigation efforts (Atlantic Shores, 2021). Aircraft usage would align with the best practices from regulators when determining routes and altitudes for travel. Helicopters and fixed wing aircraft produce sounds that can be audible to marine mammals; however, most sound energy from aircraft reflects off the air-water interface as only sound radiated downward within a 26-degree cone penetrates below the surface water (Urick, 1972).

Due to the intermittent nature and the small area potentially ensonified by this sound source for a very limited duration, Atlantic Shores did not request, and NMFS is not proposing to authorize, take of marine mammals incidental to helicopter and fixed wing aircraft flights; therefore, these activities will not be discussed further in this proposed action.

Fisheries and Benthic Monitoring

Fisheries and benthic monitoring surveys have been designed in accordance with recommendations set forth by the Responsible Offshore Science Alliance (ROSA) Offshore Wind Project Monitoring Framework and Guidelines (

https://www.rosascience.org/offshore-wind-and-fisheries-resources/;

ROSA, 2021). The purpose of the surveys are to document environmental conditions relevant to fisheries in the Project Area throughout the construction and operation phases of the proposed project. Atlantic Shores would conduct demersal otter trawl surveys, ventless trap surveys, and hydraulic clam dredge surveys to enhance existing data for specific benthic and pelagic species of concern. The demersal otter trawl surveys would follow methodology based upon the Northeast Monitoring and Assessment Program (NEAMAP) annual trawl surveys, throughout all four seasons to monitor fish and mega-invertebrate communities. The trawl net would be a four-seam, three bridle, 400 centimeter (cm; 157.48 inch (in)) x 12 cm (4.7 in) net with a cookie sweep and 1 in (2.54 cm) knotless liner in the cod

end. The fishing circle would be 400 meshes of 12 cm (4.72 in), 4 millimeter (mm; 0.157 in) braided polyethylene twine (4,800 cm (1889.76 in) fishing circle). The total headrope length, including extension chains, hammerlocks, shackles, and combination cable would be 24.6 m (80.7 ft) long, with extension cables fully slacked out while fishing. Sixty 20.3 cm (8 in) orange center-hole floats would run the length of the headrope. The upper and lower wing ends would be made of stainless-steel combination cable and measure 552 cm (217.3 in) and 459 cm (180.7 in) respectively. The total footrope length including hammerlocks, shackles, and extension wires would be approximately 27 m (88.6 ft) long. The doors would be Thyboron type IV, 167.64 cm (425.8 in) otter trawl doors with 2.25 meters squared (m

; 24.2 feet square (ft

)) area. A Netmind digital trawl net monitoring system would be incorporated with sensors measuring wing spread, vertical net opening, bottom contact, and a catch sensor in the cod end to trip at approximately 5,000 pounds (lbs; 2,268 kilograms (kg)). Prior to sampling, salinity, temperature, and dissolved oxygen would be measured during a cast to the seafloor with an appropriate oceanographic probe. Sampling would only occur between 30 minutes after sunrise and 30 minutes before sunset. Oceanographic conditions would be recorded at each station before beginning trawl. The tow cable would be deployed to a length of at least 3 times the water column depth. The tow duration would be 20 minutes at a speed of approximately 3 kn (3.45 mph), with the towpath being regularly logged. Once onboard, the catch would be dumped and sorted by species into buckets and baskets unless the tow is deemed a failure. Demersal otter trawl surveys would be conducted during preconstruction and construction years as well as for 3 years post construction.

The ventless trap surveys, or fish pot surveys, would follow survey design adapted from a Rutgers University and New Jersey Department of Environmental Protection (NJDEP) trap survey of artificial reefs offshore of New Jersey (Jensen

et al.,

2018). The purpose of the trap surveys would be to monitor the presence and size of dominant structure-associated species. Unbaited ventless traps (110.5 cm x 56 cm x 38 cm (43.5 in x 22 in x 15 in)) would be deployed in a trawl attached to a groundline. Each trap would be affixed with a temperature logger and a camera facing outward above the entrance. The groundline on each trap would serve to prevent gear loss and protected species entanglement. Trap surveys would be conducted during all four seasons during preconstruction and construction phases as well as for 3 years post construction. Once traps are set, they would soak for two periods of 5-7 days, depending upon weather. All gear would be removed from the water in between surveys.

Hydraulic clam dredge surveys would use a dredge similar to the NJDEP surf clam survey gear and follow a NMFS Northeast Fisheries Science Center (NEFSC) clam dredge survey methodology (Atlantic Shores, 2023). The purpose of the clam dredge survey would be to detect significant changes in the presence and size of ocean quahogs and Atlantic surf clams from cumulative project effects. Dredge surveys would take place during the summer during preconstruction and construction phases as well as for 3 years post construction. More information about Atlantic Shores' fishery and benthic monitoring surveys can be found in the Atlantic Shores Fisheries Monitoring Plan, Appendix II-K found on our website

https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores.

In addition to the above mentioned fishery monitoring surveys, Atlantic Shores would also partner with Rutgers University to conduct a multi-phase modeling study to gain a better understanding of how Mid-Atlantic wind farms and climate change may influence the distribution and abundance of surf clams (Atlantic Shores, 2023). This study builds off an existing simulation of the surf clam fishery in the Mid-Atlantic Bight. The simulation, Spatially-explicit Ecological agent-based Fisheries and Economic Simulator (SEFES), currently models the interactions between surf stock biology, fishery captain and fleet behavior, Federal management decisions, fishery economics, port structure, and wind farm development. Atlantic Shores will partner with Rutgers University to expand the capabilities of SEFES to assess fisheries and wind development activities from present day to 30 years into the future and run scenarios that factor in the presence of the proposed project. Atlantic Shores would also partner with Stockton University to study the ecological succession of newly submerged artificial reefs off New Jersey through the use of acoustic and video observation. Surveys would be conducted using side scan sonar, multibeam echosounder, and direct observation via a remotely operated vehicle (ROV) to collect data for 3-D mapping of artificial reef structures. Maps would provide base layers to overlay biological assessments to better understand ecological succession of newly submerged reef structures. Atlantic Shores does not anticipate, and NMFS is not proposing to authorize, take of marine mammals incidental to these activities and they are not discussed further in this document.

In general, trap and trawl surveys have the potential to result in the take of marine mammals given there is a risk of entanglement. However, Atlantic Shores would implement mitigation and monitoring measures to avoid taking marine mammals, including, but not limited to, use of bycatch reduction gear such as ropeless gear for trap surveys, monitoring for marine mammals before and during trawling activities, not deploying or pulling trawl gear in certain circumstances, limiting tow times, fully repairing nets, and reporting protected species interactions to the NMFS Greater Atlantic Region Field Office (GARFO). All trap and trawl surveys would also comply with take reduction team regulations for Atlantic large whales, harbor porpoises, and bottlenose dolphins, and Atlantic Trawl Take Reduction Strategy measures to reduce the potential for interactions between small cetaceans and trawl (bottom and mid-water) gear (Atlantic Shores, 2023). A full description of mitigation measures can be found in the Proposed Mitigation section.

With the implementation of these measures, Atlantic Shores does not anticipate, and NMFS is not proposing to authorize, take of marine mammals incidental to research trap and trawl surveys. Given no take is anticipated from these surveys, impacts from fishery surveys will not be discussed further in this document (with the exception of the description of measures in the Proposed Mitigation section).

Description of Marine Mammals in the Geographic Area of Specified Activities

Thirty-eight marine mammal species under NMFS' jurisdiction have geographic ranges within the western North Atlantic OCS (Hayes

et al.,

2022). However, for reasons described below, Atlantic Shores has requested, and NMFS proposes to authorize, take of only 16 species (comprising 17 stocks) of marine mammals. Sections 3 and 4 of Atlantic Shores' ITA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species (JASCO, 2022). NMFS fully considered all of this information,

and we refer the reader to these descriptions in the application instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS's 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's website (

https://www.fisheries.noaa.gov/find-species

Of the 38 marine mammal species and/or stocks with geographic ranges that include the Project Area (

i.e.,

found in the coastal and offshore waters of New Jersey), 22 are not expected to be present or are considered rare or unexpected in the Project Area based on sighting and distribution data (see Table 11 in Atlantic Shores' ITA application); they are, therefore, not discussed further beyond the explanation provided here. Specifically, the following cetacean species are known to occur off of New Jersey but are not expected to occur in the Project Area due to the location of preferred habitat outside the Lease Area and ECCs, based on the best available information: Blue whale (

Balaenoptera musculus

), Cuvier's beaked whale (

Ziphius cavirostris

), four species of Mesoplodont beaked whales (

Mesoplodon densitostris, M. europaeus,

M. mirus,

and

M. bidens

), clymene dolphin (

Stenella clymene

), false killer whale (

Pseudorca crassidens

), Fraser's dolphin (

Lagenodelphis hosei

), killer whale (

Orcinus orca

), melon-headed whale (

Peponocephala electra

), pantropical spotted dolphin (

Stenella attenuata

), pygmy killer whale (

Feresa attenuata

), rough-toothed dolphin (

Steno bredanensis

), spinner dolphin (

Stenella longirostris

), striped dolphin (

Stenella coeruleoalba

), white-beaked dolphin (

Lagenorhynchus albirostris

), Northern bottlenose whale (

Hyperoodon ampullatus

), dwarf sperm whale (

Kogia sima

), and the pygmy sperm whale (

Kogia breviceps

). Two species of phocid pinnipeds are also uncommon in the Project Area, including: harp seals (

Pagophilus groenlandica

) and hooded seals (

Cystophora cristata

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 Mid-Atlantic region during summer months (Morgan

et al.,

2002; Cummings

et al.,

2014). However, as manatees are managed solely under the jurisdiction of the U.S. Fish and Wildlife Service (USFWS), they are not considered or discussed further in this document.

Table 4 lists all species and 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 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” (16 U.S.C. 1362(20)). While no mortality is anticipated or proposed to be authorized, 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's U.S. Atlantic and Gulf of Mexico SARs. All values presented in Table 4 are the most recent available data at the time of publication, which can be found in NMFS' final2022 SARs (Hayes

et al.,

2023) available online at

https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.

Table 4—Marine Mammal Species

That May Occur in the Project Area and Be Taken, by Harassment

Common name

Scientific name

Stock

ESA/

MMPA

status;

strategic

(Y/N)

Stock abundance

(CV, N

min

, most recent

abundance survey)

PBR

Annual

M/SI

Order Artiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Balaenidae:

North Atlantic right whale

Eubalaena glacialis

Western Atlantic

E, D, Y

338 (0; 332; 2020)

0.7

8.1

Family Balaenopteridae (rorquals):

Fin whale

Balaenoptera physalus

Western North Atlantic

E, D, Y

6,802 (0.24; 5,573; 2016)

1.8

Humpback whale

Megaptera novaeangliae

Gulf of Maine

-, -, N

1,396 (0; 1,380; 2016)

12.15

Minke whale

Balaenoptera acutorostrata

Canadian Eastern Coastal

-, -, N

21,968 (0.31; 17,002; 2016)

170

10.6

Sei whale

Balaenoptera borealis

Nova Scotia

E, D, Y

6,292 (1.02; 3,098; 2016)

6.2

0.8

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Physeteridae:

Sperm whale

Physeter macrocephalus

North Atlantic

E, D, Y

4,349 (0.28; 3,451; 2016)

3.9

Family Delphinidae:

Atlantic spotted dolphin

Stenella frontalis

Western North Atlantic

-, -, N

39,921 (0.27; 32,032; 2016)

320

Atlantic white-sided dolphin

Lagenorhynchus acutus

Western North Atlantic

-, -, N

93,233 (0.71; 54,433; 2016)

544

Bottlenose dolphin

Tursiops truncatus

Western North Atlantic—Offshore

-, -, N

62,851 (0.23; 51,914; 2016)

519

Northern Migratory Coastal

-, -, Y

6,639 (0.41; 4,759; 2016)

12.2-21.5

Common dolphin

Delphinus delphis

Western North Atlantic

-, -, N

172,897 (0.21; 145,216; 2016)

1,452

390

Long-finned pilot whale

Globicephala melas

Western North Atlantic

-, -, N

39,215 (0.3; 30,627; 2016)

306

Short-finned pilot whale

Globicephala macrorhynchus

Western North Atlantic

-, -, N

28,924 (0.24, 23,637, 2016)

236

136

Risso's dolphin

Grampus griseus

Western North Atlantic

-, -, N

35,215 (0.19; 30,051; 2016)

301

Family Phocoenidae (porpoises):

Harbor porpoise

Phocoena phocoena

Gulf of Maine/Bay of Fundy

-, -, N

95,543 (0.31; 74,034; 2016)

851

164

Order Carnivora—Superfamily Pinnipedia

Family Phocidae (earless seals):

Gray seal

Halichoerus grypus

Western North Atlantic

-, -, N

27,300 (0.22; 22,785; 2016)

1,458

4,453

Harbor seal

Phoca vitulina

Western North Atlantic

-, -, N

61,336 (0.08; 57,637; 2018)

1,729

339

ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.

NMFS' marine mammal stock assessment reports can be found online at:

www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance.

These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (

e.g.,

commercial fisheries, vessel strike).

NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is for the total stock.

Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy (

https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/;

Committee on Taxonomy (2023)).

Although both species are described here, the requested take for both short-finned and long-finned pilot whales has been summarized into a single group (pilot whales spp.).

As indicated above, all 16 species and 17 stocks in Table 4 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. Four of the marine mammal species for which take is requested are listed as threatened or endangered under the ESA, including North Atlantic right, fin, sei, and sperm whales.

In addition to what is included in Sections 3 and 4 of Atlantic Shores' ITA application (

https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores

), 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

), we provide further detail below informing the baseline for select species (

e.g.,

information regarding current UMEs and known important habitat areas, such as Biologically Important Areas (BIAs) (Van Parijs, 2015). There are no ESA-designated critical habitats for any species within the Project Area (

https://www.fisheries.noaa.gov/resource/map/national-esa-critical-habitat-mapper

Under the MMPA, a 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 May 2023, five UMEs are active. Four of these UMEs are occurring along the U.S. Atlantic coast for various marine mammal species. Of these, the most relevant to the Project Area are the North Atlantic right whale, humpback whale, and harbor and gray seal UMEs given the prevalence of these species in the Project Area. 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 information for a subset of the 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 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 project area. Any areas of known biological importance (including the BIAs identified in LaBrecque

et al.,

2015) that overlap spatially (or are adjacent) with the project area are addressed in the species sections below.

North Atlantic Right Whale

The North Atlantic right whale has been listed as Endangered since the ESA's enactment in 1973. The species was recently uplisted from Endangered to Critically Endangered on the International Union for Conservation of Nature (IUCN) Red List of Threatened Species (Cooke, 2020). The uplisting was due to a decrease in population size (Pace

et al.,

2017), an increase in vessel strikes and entanglements in fixed fishing gear (Daoust

et al.,

2017; Davis & Brillant, 2019; Knowlton

et al.,

2012; Knowlton

et al.,

2022; Moore

et al.,

2021; Sharp

et al.,

2019), and a decrease in birth rate (Pettis

et al.,

2022; Reed

et al.,

2022). The Western Atlantic stock is considered depleted under the MMPA (Hayes

et al.,

2022). There is a recovery plan (NMFS, 2005) for the North Atlantic right whale, and NMFS completed 5-year reviews of the species in 2012, 2017, and 2022 which concluded no change to the listing status is warranted.

Designated by NMFS as a Species in the Spotlight, the North Atlantic right whale is considered among the species with the greatest risk of extinction in the near future (

https://www.fisheries.noaa.gov/topic/endangered-species-conservation/species-in-the-spotlight

The North Atlantic right whale population had only a 2.8 percent recovery rate between 1990 and 2011 and an overall abundance decline of 23.5 percent from 2011-2019 (Hayes

et al.,

2022). Since 2010, the North Atlantic right whale population has been in decline (Pace

et al.,

2017; Pace

et al.,

2021), with a 40 percent decrease in calving rate (Kraus

et al.,

2016; Moore

et al.,

2021). North Atlantic right whale calving rates dropped from 2017 to 2020 with zero births recorded during the 2017-2018 season. The 2020-2021 calving season had the first substantial calving increase in 5 years with 20 calves born followed by 15 calves during the 2021-2022 calving season. However, mortalities continue to outpace births, and best estimates indicate fewer than 70 reproductively active females remain in the population.

Critical habitat for North Atlantic right whales is not present in the project area. However, the project area both spatially and temporally overlaps a portion of the migratory corridor BIA within which North Atlantic right whales migrate south to calving grounds generally in November and December, followed by a northward migration into feeding areas north of the Project Area in March and April (LaBrecque

et al.,

2015; Van Parijs

et al.,

2015). The Project Area does not overlap any North Atlantic right whale feeding BIAs.

NMFS' regulations at 50 CFR 224.105 designated 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. There is an SMA for the Ports of New York/New Jersey near the proposed Project Area; this SMA is currently active from November 1 through April 30 of each year and may be used by North Atlantic right whales for feeding (although to a lesser extent than the area to the north near Nantucket Shoals) and/or migrating. As noted above, independent of the action considered here, NMFS is proposing changes to the North Atlantic right whale speed rule (87 FR 46921, August 1, 2022). Due to the current status of North Atlantic right whales and the spatial proximity overlap of the proposed project with areas of biological significance, (

i.e.,

a migratory corridor, SMA), the potential impacts of the proposed project on North Atlantic right whales warrant particular attention.

North Atlantic right whale presence in the Project Area is predominately seasonal. However, year-round occurrence is documented (Davis

et al.,

2017). Abundance is highest in winter with irregular occurrence during summer months and similar occurrence rates in spring and fall (O'Brien

et al.,

2022; Quintana-Rizzo

et al.,

2021; Estabrook

et al.,

2022). North Atlantic right whale distribution can also be derived from acoustic data. A review of passive acoustic monitoring data from 2004 to 2014 collected throughout the western North Atlantic demonstrated nearly continuous year-round North Atlantic right whale presence across their entire habitat range with a decrease in summer months, including in locations previously thought of as migratory corridors, suggesting that not all of the population undergoes a consistent annual migration (Davis

et al.,

2017). Observations of these transitions in North Atlantic right whale habitat use, variability in seasonal presence in identified core habitats, and utilization of habitat outside of previously focused survey effort prompted the formation of a NMFS' Expert Working Group, which identified current data collection efforts, data gaps, and provided recommendations for future survey and research efforts (Oleson

et al.,

2020). Recent research indicates understanding of their movement patterns remains incomplete and not all of the population undergoes a consistent annual migration (Davis

et al.,

2017; Gowan

et al.,

2019; Krzystan

et al.,

2018). Non-calving females may remain in the feeding grounds, during the winter in the years preceding and following the birth of a calf to increase their energy stores (Gowen

et al.,

2019).

To describe seasonal trends in North Atlantic right whale presence, Estabrook

et al.

(2022) analyzed North Atlantic right whale acoustic detections collected between 2011-2015 during winter (January through March), spring (April through June), summer (July through September), and autumn (October-December) off Rhode Island and Massachusetts. Winter had the highest presence (75 percent array-days, n=193), and summer had the lowest presence (10 percent array-days, n=27). Spring and autumn were similar, where 45 percent (n=117) and 51 percent (n=121) of the array-days had detections, respectively. Across all years, detections were consistently lowest in August and September. In Massachusetts Bay and Cape Cod Bay, located further north from the Atlantic Shores South Project Area, acoustic detections of North Atlantic right whales increased in more recent years in both the peak season of late winter through early spring and in summer and fall, likely reflecting broad-scale regional habitat changes (Charif

et al.,

2020). NMFS' Passive Acoustic Cetacean Map (PACM) contains up-to-date acoustic data that contributes to our understanding of when and where specific whales (including North Atlantic right whales), dolphin, and other cetacean species are acoustically detected in the North Atlantic. These data augment the findings of the aforementioned literature.

In late fall (

i.e.,

November), a portion of the North Atlantic right whale population (including pregnant females) typically departs the feeding grounds in the North Atlantic, moves south along the migratory corridor BIA, including through the Project Area, to North Atlantic right whale calving grounds off Georgia and Florida. However, recent research indicates understanding of their movement patterns remains incomplete and not all of the population undergoes a consistent annual migration (Davis

et al.,

2017; Gowan

et al.,

2019; Krzystan

et al.,

2018). The results of multistate temporary emigration capture-recapture modeling, based on sighting data collected over the past 22 years, indicate that non-calving females may remain in the feeding grounds, during the winter in the years preceding and following the birth of a calf to increase their energy stores (Gowan

et al.,

2019).

New Jersey waters are a migratory corridor in the spring and early winter for North Atlantic right whales; these waters are not known foraging or calving habitat. North Atlantic right whales feed primarily on the copepod,

Calanus finmarchicus,

a species whose availability and distribution has changed both spatially and temporally over the last decade due to an oceanographic regime shift that has been ultimately linked to climate change (Meyer-Gutbrod

et al.,

2021; Record

et al.,

2019; Sorochan

et al.,

2019). This distribution change in prey availability has led to shifts in North Atlantic right whale habitat-use patterns within the region over the same time period (Davis

et al.,

2020; Meyer-Gutbrod

et al.,

2022; Quintana-Rizzo

et al.,

2021; O'Brien

et al.,

2022). Since 2010, North Atlantic right whales have reduced their use of foraging habitats in the Great South Channel and Bay of Fundy while increasing their use of habitat within Cape Cod Bay as well as a region south of Martha's Vineyard and Nantucket Islands (Stone

et al.,

2017; Mayo

et al.,

2018; Ganley

et al.,

2019; Record

et al.,

2019; Meyer-Gutbrod

et al.,

2021). While the Project Area is south of Martha's Vineyard and Nantucket Island, these foraging habitats are all located several hundred kilometers north of the Project Area.

In August 2023, NMFS released its final 2022 SARs, which updated the population estimate (N

best

) of North Atlantic right whales from 368 to 338 individuals and the annual M/SI value from 8.1 to 31.2 due to the addition of estimated undetected mortality and

serious injury, as described above, which had not been previously included in the SAR. The population estimate is slightly lower than the North Atlantic Right Whale Consortium's 2022 Report Card, which identifies the population estimate as 340 individuals (Pettis

et al.,

2023). Elevated North Atlantic 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. Since publication of the proposed rule, the number of animals considered part of the UME has increased. As of August 16, 2023, there have been 36 confirmed mortalities (dead, stranded, or floaters), 0 pending mortalities, and 34 seriously injured free-swimming whales for a total of 70 whales. As of October 14, 2022, the UME also considers animals (n=45) with sub-lethal injury or illness (called “morbidity”) bringing the total number of whales in the UME to 115. More information about the North Atlantic right whale UME is available online at:

https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event.

Humpback Whale

Humpback whales were listed as endangered under the Endangered Species Conservation Act (ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and humpbacks continued to be listed as endangered. On September 8, 2016, NMFS divided the species into 14 distinct population segments (DPS), removed the species-level listing, and, in its place, listed four DPSs as endangered and one DPS as threatened (81 FR 62259, 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 is expected to occur in the project area. Bettridge

et al.

(2015) estimated the size of the West Indies DPS 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 (Stevick

et al.,

2003; Smith

et al.,

1999) and the increasing trend for the West Indies DPS (Bettridge

et al.,

2015).

Humpback whales are migratory off coastal New Jersey, moving seasonally between northern feeding grounds in New England and southern calving grounds in the West Indies (Hayes

et al.,

2022). Although sightings of humpback whales used to occur infrequently off New Jersey, they are now common along the Mid-Atlantic States during the winter when most humpback whales are at the breeding grounds (Swingle

et al.,

1993; Barco

et al.,

2002; Brown

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 1 year to the next. The majority of whales were seen during summer (July to September, 62.5 percent), followed by autumn (October to December, 23.5 percent) and spring (April to June, 13.9 percent). When data were available to evaluate age, most individuals were either confirmed or suspected juveniles, including 4 whales known to be 2 to 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.,

2002). 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.

In addition to a migratory pathway, the mid-Atlantic region also represents a supplemental winter feeding ground for juveniles and mature whales (Barco

et al.,

2002). Records of humpback whales off the U.S. mid-Atlantic coast (New Jersey south to North Carolina) suggest that these waters are used as a winter feeding ground from December through March (Mallette

et al.,

2017; Barco

et al.,

2002; LaBrecque

et al.,

2015) and represent important habitat for juveniles, in particular (Swingle

et al.,

1993; Wiley

et al.,

1995). Humpback whales have been observed feeding off the coast of New Jersey (Swingle

et al.,

1993; Geo-Marine, Inc., 2010; Whitt

et al.,

2015). A sighting of a cow-calf pair seen north of the study area boundary supports the theory that the nearshore waters off of New Jersey may provide important feeding and nursery habitats for humpback whales (Geo-Marine, 2010). In addition, recent research by King

et al.

(2021) has demonstrated a higher occurrence and foraging use of the New York Bight area by humpback whales than previously known. According to Roberts

et al.

(2023) density models, the highest density of humpback whales in the vicinity of the proposed Project Area is expected to occur during the month of April (0.25-0.40 individuals/100 km

The Project Area does not overlap any ESA-designated critical habitat, BIAs, or other important areas for the humpback whales. A humpback whale feeding BIA extends throughout the Gulf of Maine, Stellwagen Bank, and Great South Channel from May through December, annually (LaBrecque

et al.,

2015). However, this BIA is located further north of, and thus does not overlap, the Project Area.

Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine to Florida. This event was declared a UME in April 2017. Partial or full necropsy examinations have been conducted on approximately half of the 204 known cases (as of August 16, 2023). Of the whales examined (approximately 90), about 40 percent had evidence of human interaction, either vessel strike or entanglement (refer to

https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast

). 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 is available at:

https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Since December 1, 2022, the number of humpback strandings along the mid-Atlantic coast, including New Jersey, has been elevated. In some cases, the cause of death is not yet known. In others, vessel strike has been deemed the cause of death. As the humpback whale population has grown, they are seen more often in the Mid-Atlantic. These whales may be following their prey (small fish) which are reportedly close to shore in the winter. These prey also attract fish that are of interest to recreational and commercial fishermen. This increases the number of boats and

fishing gear in these areas. More whales in the water in areas traveled by boats of all sizes increases the risk of vessel strikes. Vessel strikes and entanglement in fishing gear are the greatest human threats to large whales.

Minke Whale

Minke whales are common and widely distributed throughout the U.S. Atlantic Exclusive Economic Zone (EEZ) (CETAP, 1982; Hayes

et al.,

2022), although their distribution has a strong seasonal component. Individuals have often been detected acoustically in shelf waters from spring to fall and more often detected in deeper offshore waters from winter to spring (Risch

et al.,

2013). Minke whales are abundant in New England waters from May through September (Pittman

et al.,

2006; Waring

et al.,

2014), yet largely absent from these areas during the winter, suggesting the possible existence of a migratory corridor (LaBrecque

et al.,

2015). A migratory route for minke whales transiting between northern feeding grounds and southern breeding areas may exist to the north and east of the proposed Project Area as minke whales may track warmer waters along the continental shelf while migrating (Risch

et al.,

2014). Overall, minke whale use of the Project Area is likely highest during winter and spring months when foundation installation would not be occurring. Density data from Roberts

et al.

(2023) confirm that the highest average density of minke whales in the vicinity of the Project Area occurs in April (0.63-1.00 individuals/100 km

). Construction is planned for May through December.

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 do not overlap the Project Area as they are located approximately 378.7 km (235.3 mi) away. No mating or calving grounds have been identified along the U.S. Atlantic coast (LaBrecque

et al.,

2015).

Since January 2017, a UME has been declared based on elevated minke whale mortalities detected along the Atlantic coast from Maine through South Carolina. As of August 16, 2023, a total of 156 minke whales have stranded during this UME. Full or partial necropsy examinations were conducted on more than 60 percent of the whales. Preliminary findings have shown evidence of human interactions or infectious disease in several of the whales, but these findings are not consistent across all of the whales examined, so more research is needed. This UME has been declared non-active and is pending closure. More information is available at:

https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast.

Phocid Seals

Since June 2022, elevated numbers of harbor seal and gray seal mortalities have occurred across the southern and central coast of Maine. This event was declared a UME in July 2022. Preliminary testing of samples has found some harbor and gray seals are positive for highly pathogenic avian influenza. While the UME is not occurring in the Project Area, the populations affected by the UME are the same as those potentially affected by the Project. However, due to the two states being approximately 352 km (219 mi) apart, by water (from the most northern point of New Jersey to the most southern point of Maine), NMFS does not expect that this UME would be further conflated by the activities related to the Project. Information on this UME is available online at:

https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast.

The above event was preceded by a different UME, occurring from 2018-2020 (closure of the 2018-2020 UME is pending). Beginning in July 2018, elevated numbers of harbor seal and gray seal mortalities occurred across Maine, New Hampshire, and Massachusetts. Additionally, stranded seals have shown clinical signs as far south as Virginia, although not in elevated numbers, therefore the UME investigation encompassed all seal strandings from Maine to Virginia. A total of 3,152 reported strandings (of all species) occurred from July 1, 2018, through March 13, 2020. Full or partial necropsy examinations have been conducted on some of the seals and samples have been collected for testing. Based on tests conducted thus far, the main pathogen found in the seals is phocine distemper virus. NMFS is performing additional testing to identify any other factors that may be involved in this UME. Information on this UME is available online at

https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

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 decibel (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 5.

Table 5—Marine Mammal Hearing Groups

[NMFS, 2018]

Hearing group

Generalized hearing range *

Low-frequency (LF) cetaceans (baleen whales)

7 Hz to 35 kHz.

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales)

150 Hz to 160 kHz.

High-frequency (HF) cetaceans (true porpoises,

Kogia,

river dolphins, cephalorhynchid,

Lagenorhynchus cruciger

L. australis

)

275 Hz to 160 kHz.

Phocid pinnipeds (PW) (underwater) (true seals)

50 Hz to 86 kHz.

* Represents the generalized hearing range for the entire group as a composite (

i.e.,

all species within the group), where individual species' hearing ranges are typically not as broad. Generalized hearing range chosen based on ~65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall

et al.,

2007) and PW pinniped (approximation).

The pinniped functional hearing group was modified from Southall

et al.

(2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä

et al.,

2006; Kastelein

et al.,

2009; Reichmuth and Holt, 2013). For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information.

NMFS notes that in 2019a, 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.

(2019a) are identical to NMFS 2018 Revised Technical Guidance). When NMFS updates our Technical Guidance, we will be adopting the updated Southall

et al.

(2019a) hearing group classification.

Potential Effects of Specified Activities on 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 the Specified Activities section). Here, the potential effects of sound on marine mammals are discussed.

Atlantic Shores has requested, and NMFS proposes to authorize, the take of marine mammals incidental to the construction activities associated with the Project Area. In their application and Application Update Report, Atlantic Shores presented their analyses of potential impacts to marine mammals from the acoustic sources. NMFS both carefully reviewed the information provided by Atlantic Shores, as well as independently reviewed applicable scientific research and literature and other information to evaluate the potential effects of the project's activities on marine mammals.

The proposed activities would result in the construction and placement of up to 205 permanent foundations to support 200 WTGs, 4 large OSSs, and a single Met Tower. There are a variety of types and degrees of effects to marine mammals, prey species, and habitat that could occur as a result of the project. Below we provide a brief description of the types of sound sources that would be generated by the project, the general impacts from these types of activities, and an analysis of the anticipated impacts on marine mammals from the project, with consideration of the proposed mitigation measures.

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 Au and Hastings (2008); Richardson

et al.

(1995); Urick (1983) as well as the Discovery of Sound in the Sea (DOSITS) website at

https://dosits.org/.

Sound is a vibration that travels as an acoustic wave through a medium such as a gas, liquid or solid. Sound waves alternately compress and decompress the medium as the wave travels. These compressions and decompressions are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones (underwater microphones). In water, sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam (narrow beam or directional sources) or sound beams may radiate in all directions (omnidirectional sources).

Sound travels in water more efficiently than almost any other form of energy, making the use of acoustics ideal for the aquatic environment and its inhabitants. In seawater, sound travels at roughly 1,500 meters per second (m/s). In-air, sound waves travel much more slowly, at about 340 m/s. However, the speed of sound can vary by a small amount based on characteristics of the transmission medium, such as water temperature and salinity. The basic components of a sound wave 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.

The intensity (or amplitude) of sounds are measured in dB, which are a relative unit of measurement that is used to express the ratio of one value of a power or field to another. Decibels are measured on a logarithmic scale, so a small change in dB corresponds to large changes in sound pressure. For example, a 10-dB increase is a 10-fold increase in acoustic power. A 20-dB increase is then a 100-fold increase in power and a 30-dB increase is a 1,000-fold increase in power. However, a ten-fold increase in acoustic power does not mean that the sound is perceived as being 10 times louder. Decibels are a relative unit comparing two pressures, therefore, a reference pressure must

always be indicated. For underwater sound, this is 1 microPascal (μPa). For in-air sound, the reference pressure is 20 μPa. The amplitude of a sound can be presented in various ways. However, NMFS typically considers three metrics. In this proposed rule, all decibel levels referenced to 1μPa.

Sound exposure level (SEL) represents the total energy in a stated frequency band over a stated time interval or event, and considers both amplitude and duration of exposure (represented as dB re 1 μPa

-s). SEL is a cumulative metric; it can be accumulated over a single pulse (for pile driving this is often referred to as single-strike SEL; SEL

), or calculated over periods containing multiple pulses (SEL

cum

). Cumulative SEL represents the total energy accumulated by a receiver over a defined time window or during an event. The SEL metric is useful because it allows sound exposures of different durations to be related to one another in terms of total acoustic energy. The duration of a sound event and the number of pulses, however, should be specified as there is no accepted standard duration over which the summation of energy is measured.

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.

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. Along with SEL, this metric is used in evaluating the potential for PTS (permanent threshold shift) and TTS (temporary threshold shift).

Sounds can be either impulsive or non-impulsive. The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing

(e.g.,

Ward, 1997 in Southall

et al.,

2007). Please see NMFS

et al.

(2018) and Southall

et al.

(2007, 2019a) for an in-depth discussion of these concepts. Impulsive sound sources (

e.g.,

airguns, explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than 1 second), broadband, atonal transients (American National Standards Institute (ANSI), 1986, 2005; Harris, 1998; National Institute for Occupational Safety and Health (NIOSH), 1998; International Organization for Standardization (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. Impulsive sounds are typically intermittent in nature.

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. Sounds are also characterized by their temporal component. Continuous sounds are those whose sound pressure level remains above that of the ambient sound with negligibly small fluctuations in level (NIOSH, 1998; ANSI, 2005) while intermittent sounds are defined as sounds with interrupted levels of low or no sound (NIOSH, 1998). NMFS identifies Level B harassment thresholds based on whether a sound is continuous or intermittent.

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 (International Council for the Exploration of the Sea (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 1 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. Human-generated sound is a significant contributor to the acoustic environment in the project location.

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, such as those in the project, 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). 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).

In general, the degree of effect of an acoustic exposure 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.

). In general, sudden, high level sounds can cause hearing loss as can longer exposures to lower level sounds. Moreover, any 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 Atlantic Shores.

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 zone 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.

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

Hearing 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.,

2019a). 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.,

2019a). 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. However, such relationships are assumed to be similar to those in humans and other terrestrial mammals. Noise exposure can result in either a permanent shift in hearing thresholds from baseline (PTS; a 40 dB threshold shift approximates a PTS onset;

e.g.,

Kryter

et al.,

1966; Miller, 1974; Henderson

et al.,

2008) or a temporary, recoverable shift in hearing that returns to baseline (a 6 dB threshold shift approximates a TTS onset;

e.g.,

Southall

et al.,

2019a). 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 sounds) to 20 (non-impulsive sounds) dB higher than TTS cumulative sound exposure level thresholds (Southall

et al.,

2019a). 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 is 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 depending on the degree of interference with marine mammals' hearing. 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 (

e.g.,

for successful mother/calf interactions, consistent detection of prey) 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 (

Neophocaena 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 numbers of exposure to impulsive sources such as seismic airguns or impact pile driving) in laboratory settings (Southall

et al.,

2019a). 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.

(2019a) 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, 2016b, 2016c; 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 Effects

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 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 (Nowacek

et al.,

2007; DeRuiter

et al.,

2012 and 2013; Ellison

et al.,

2012; Gomez

et al.,

2016). 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.

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.,

2019a). 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.

Overall, the variability of responses to acoustic stimuli depends on the species receiving the sound, the sound source, and the social, behavioral, or environmental contexts of exposure (

e.g.,

DeRuiter

et al.,

2012). For example, Goldbogen

et al.

(2013a) 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.

(2013a) 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 1µPa) for exposures to 3-4 kHz sonar signals, while deep feeding and non-feeding whales showed a clear response at exposures at lower received levels of sonar and pseudorandom noise. Southall

et al.

(2011) found that blue whales had a different response to sonar exposure depending on behavioral state, more pronounced when deep feeding/travel modes than when engaged in surface feeding.

With respect to distance influencing disturbance, DeRuiter

et al.

(2013) examined behavioral responses of Cuvier's beaked whales to mid-frequency sonar and found that whales responded strongly at low received levels (89-127 dB re 1µPa) 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 1µPa) from distant sonar exercises (118 km away) did not elicit such responses, suggesting that context may moderate reactions. Thus, distance from the source is an important variable in influencing the type and degree of behavioral response and this variable is independent of the effect of received levels (

e.g.,

DeRuiter

et al.,

2013; Dunlop

et al.,

2017a, 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.

Behavioral change, such as disturbance manifesting in lost foraging time, in response to anthropogenic activities is often assumed to indicate a biologically significant effect on a population of concern. However, individuals may be able to compensate for some types and degrees of shifts in behavior, preserving their health and thus their vital rates and population dynamics. For example, New

et al.

(2013) developed a model simulating the complex social, spatial, behavioral and motivational interactions of coastal bottlenose dolphins in the Moray Firth, Scotland, to assess the biological significance of increased rate of behavioral disruptions caused by vessel traffic. Despite a modeled scenario in which vessel traffic increased from 70 to 470 vessels a year (a 6-fold increase in vessel traffic) in response to the construction of a proposed offshore renewables' facility, the dolphins' behavioral time budget, spatial distribution, motivations and social structure remained unchanged. Similarly, two bottlenose dolphin populations in Australia were also modeled over 5 years against a number of disturbances (Reed

et al.,

2020) and results indicate that habitat/noise disturbance had little overall impact on population abundances in either location, even in the most extreme impact scenarios modeled.

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 fivefold 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.

The following subsections provide examples of behavioral responses that give an idea of the variability in behavioral responses that would be expected given the differential sensitivities of marine mammal species to sound, contextual factors, and the wide range of potential acoustic sources to which a marine mammal may be exposed. Behavioral responses that could occur for a given sound exposure should be determined from the literature that is available for each species, or extrapolated from closely related species when no information exists, along with contextual factors.

Avoidance and Displacement

Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors and is one of the most obvious manifestations of disturbance in marine mammals (Richardson

et al.,

1995). For example, gray whales (

Eschrichtius robustus

) and humpback whales are known to change direction—deflecting from customary migratory paths—in order to avoid noise from airgun surveys (Malme

et al.,

1984; Dunlop

et al.,

2018). Avoidance is qualitatively different from the flight response but also differs in the magnitude of the response (

i.e.,

directed movement, rate of travel,

etc.

). Avoidance may be short-term with animals returning to the area once the noise has ceased (

e.g.,

Malme

et al.,

1984; Bowles

et al.,

1994; Goold, 1996; Stone

et al.,

2000; Morton and Symonds, 2002; Gailey

et al.,

2007; Dähne

et al.,

2013; Russel

et al.,

2016). Longer-term displacement is possible, however, which may lead to changes in abundance or distribution patterns of the affected species in the affected region if habituation to the presence of the sound does not occur (

e.g.,

Blackwell

et al.,

2004; Bejder

et al.,

2006; Teilmann

et al.,

2006; Forney

et al.,

2017). Avoidance of marine mammals during the construction of offshore wind facilities (specifically, impact pile driving) has been documented in the literature with some significant variation in the temporal and spatial degree of avoidance and with most studies focused on harbor porpoises as one of the most common marine mammals in European waters (

e.g.,

Tougaard

et al.,

2009; Dähne

et al.,

2013; Thompson

et al.,

2013; Russell

et al.,

2016; Brandt

et al.,

2018).

Available information on impacts to marine mammals from pile driving associated with offshore wind is limited to information on harbor porpoises and seals, as the vast majority of this research has occurred at European offshore wind projects where large whales and other odontocete species are uncommon. Harbor porpoises and harbor seals are considered to be behaviorally sensitive species (

e.g.,

Southall

et al.,

2007) and the effects of wind farm construction in Europe on these species has been well documented. These species have received particular attention in European waters due to their abundance in the North Sea (Hammond

et al.,

2002; Nachtsheim

et al.,

2021). A summary of the literature on documented effects of wind farm construction on harbor porpoise and harbor seals is described below.

Brandt

et al.

(2016) summarized the effects of the construction of eight offshore wind projects within the German North Sea (

i.e.,

Alpha Ventus, BARD Offshore I, Borkum West II, DanTysk, Global Tech I, Meerwind Süd/Ost, Nordsee Ost, and Riffgat) between 2009 and 2013 on harbor porpoises, combining PAM data from 2010-2013 and aerial surveys from 2009-2013 with data on noise levels associated with pile driving. Results of the analysis revealed significant declines in porpoise detections during pile driving when compared to 25-48 hours before pile driving began, with the magnitude of decline during pile driving clearly decreasing with increasing distances to the construction site. During the majority of projects, significant declines in detections (by at least 20 percent) were found within at least 5-10 km of the pile driving site, with declines at up to 20-30 km of the pile driving site documented in some cases. Similar results demonstrating the long-distance displacement of harbor porpoises (18—25 km) and harbor seals (up to 40 km) during impact pile driving have also been observed during the construction at multiple other European wind farms (Tougaard

et al.,

2009; Bailey

et al.,

2010; Dähne

et al.,

2013; Lucke

et al.,

2012; Haelters

et al.,

2015).

While harbor porpoises and seals tend to move several kilometers away from

wind farm construction activities, the duration of displacement has been documented to be relatively temporary. In two studies at Horns Rev II using impact pile driving, harbor porpoise returned within 1-2 days following cessation of pile driving (Tougaard

et al.,

2009; Brandt

et al.,

2011). Similar recovery periods have been noted for harbor seals off England during the construction of four wind farms (Brasseur

et al.,

2012; Carroll

et al.,

2010; Hamre

et al.,

2011; Hastie

et al.,

2015; Russell

et al.,

2016). In some cases, an increase in harbor porpoise activity has been documented inside wind farm areas following construction (

e.g.,

Lindeboom

et al.,

2011). Other studies have noted longer term impacts after impact pile driving. Near Dogger Bank in Germany, harbor porpoises continued to avoid the area for over 2 years after construction began (Gilles

et al.,

2009). Approximately 10 years after construction of the Nysted wind farm, harbor porpoise abundance had not recovered to the original levels previously seen, although the echolocation activity was noted to have been increasing when compared to the previous monitoring period (Teilmann and Carstensen, 2012). However, overall, there are no indications for a population decline of harbor porpoises in European waters (

e.g.,

Brandt

et al.,

2016). Notably, where significant differences in displacement and return rates have been identified for these species, the occurrence of secondary project-specific influences such as use of mitigation measures (

e.g.,

bubble curtains, acoustic deterrent devices (ADDs)) or the manner in which species use the habitat in the Project Area are likely the driving factors of this variation.

NMFS notes the aforementioned studies from Europe involve installing much smaller piles than Atlantic Shores proposes to install and, therefore, we anticipate noise levels from impact pile driving to be louder. For this reason, we anticipate that greater distances of displacement than those observed in harbor porpoise and harbor seals in Europe are likely to occur off New Jersey. However, we do not anticipate any greater severity of response due to harbor porpoise and harbor seal habitat use off New Jersey or population-level consequences similar to European findings. In many cases, harbor porpoises and harbor seals are resident to the areas where European wind farms have been constructed. However, off New Jersey, harbor porpoises are primarily transient (with higher abundances in winter when foundation installation would not occur) and a very small percentage of the large harbor seal population are only seasonally present with no rookeries established. In summary, we anticipate that harbor porpoise and harbor seals will likely respond to pile driving by moving several kilometers away from the source but return to typical habitat use patterns when pile driving ceases.

Some avoidance behavior of other marine mammal species has been documented to be dependent on distance from the source. As described above, DeRuiter

et al.

(2013) noted that distance from a sound source may moderate marine mammal reactions in their study of Cuvier's beaked whales (an acoustically sensitive species), which showed the whales swimming rapidly and silently away when a sonar signal was 3.4-9.5 km away while showing no such reaction to the same signal when the signal was 118 km away even though the received levels were similar. Tyack

et al.

(1983) conducted playback studies of Surveillance Towed Array Sensor System (SURTASS) low frequency active (LFA) sonar in a gray whale migratory corridor off California. Similar to North Atlantic right whales, gray whales migrate close to shore (approximately +2 kms) and are low frequency hearing specialists. The LFA sonar source was placed within the gray whale migratory corridor (approximately 2 km offshore) and offshore of most, but not all, migrating whales (approximately 4 km offshore). These locations influenced received levels and distance to the source. For the inshore playbacks, not unexpectedly, the louder the source level of the playback (

i.e.,

the louder the received level), the more whales avoided the source at greater distances. Specifically, when the source level was 170 dB rms and 178 dB rms, whales avoided the inshore source at ranges of several hundred meters, similar to avoidance responses reported by Malme

et al.

(1983, 1984). Whales exposed to source levels of 185 dB rms demonstrated avoidance levels at ranges of +1 km. Where the offshore source broadcast at source levels of 185 and 200 dB, avoidance

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