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Proposed Rule2023-19733

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

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Published

September 22, 2023

Effective

January 1, 2025

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

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.

Full Text

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[Federal Register Volume 88, Number 183 (Friday, September 22, 2023)]
[Proposed Rules]
[Pages 65430-65521]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19733]

[[Page 65429]]

Vol. 88

Friday,

No. 183

September 22, 2023

Part II

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Part 217

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

Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 /
Proposed Rules

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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.

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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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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
<a href="http://www.regulations.gov">www.regulations.gov</a> 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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. 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:
<bullet> 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);
<bullet> 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);
<bullet> 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

[[Page 65431]]

infrequent, unavoidable or accidental (see 50 CFR 216.103);
<bullet> Serious Injury--any injury that will likely result in
mortality (50 CFR 216.3);
<bullet> 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
<bullet> 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:
<bullet> The proposed take of marine mammals by Level A harassment
and/or Level B harassment;
<bullet> No mortality or serious injury of any marine mammal is
anticipated or proposed to be authorized;
<bullet> 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;
<bullet> 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;
<bullet> A requirement for training for all Atlantic Shores
personnel to ensure marine mammal protocols and procedures are
understood;
<bullet> 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;
<bullet> 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);
<bullet> 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;
<bullet> A delay to the start of foundation installation if other
marine mammals are observed entering or within their respective
clearance zones;
<bullet> 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;
<bullet> 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;
<bullet> A requirement to implement soft-starts during impact pile
driving using the least amount of hammer energy necessary for
installation;
<bullet> A requirement to implement ramp-up during the use of high-
resolution geophysical (HRG) marine site characterization survey
equipment;
<bullet> A requirement for PSOs to continue to monitor for 30
minutes after any impact pile driving for foundation installation;
<bullet> 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;
<bullet> A requirement to implement various vessel strike avoidance
measures;
<bullet> 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
<bullet> 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 <a href="https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-south">https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-south</a>. 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

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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 <a href="https://www.permits.performance.gov/permitting-project/atlantic-shores-south">https://www.permits.performance.gov/permitting-project/atlantic-shores-south</a>.

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 <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores</a>.
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 <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores</a>.
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
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores</a>.
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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
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

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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
----------------------------------------------------------------------------------------------------------------
Duration \a\ Expected Project 1 Project 2
Activity (months) schedule \b\ start date start date
----------------------------------------------------------------------------------------------------------------
Onshore Interconnection Cable Installation...... 9-12 2024-2025 Q1-2024 Q1-2024
Onshore Substation and/or Onshore Converter 18-24 2024-2026 Q1-2025 Q1-2025
Station Construction...........................
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 Q2-2026
WTG Foundation and Met Tower Installation \c\... 10 2026-2027 Q1-2026 \c\ Q1-2026
Inter-Array Cable Installation.................. 14 2026-2027 Q2-2026 \d\ Q3-2026
WTG Installation and Commissioning \e\.......... 17 2026-2027 Q2-2026 \d\ Q1-2027
Met Buoy Deployments............................ 36 2025-2027 Q1-2025 Q1-2025
Scour Protection Pre-Installation............... 17 2025-2027 Q2-2025 Q3-2025
Scour Protection Post-Installation.............. 17 2025-2027 Q2-2025 Q3-2025
Site Preparation................................ 60 2025-2029 Q1-2025 Q4-2029

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Fishery Monitoring Surveys...................... 60 2025-2029 Q1-2025 Q4-2029
----------------------------------------------------------------------------------------------------------------
Note: Q1 = January through March; Q2 = April through June; Q3 = July through September; Q4 = October through
December.
\a\ These durations are a total across all years the activity may occur.
\b\ The expected timeframe is indicative of the most probable duration for each activity; the timeframe could
shift and/or extend depending on supply chains.
\c\ Pile driving may occur from May to December, annually.
\d\ 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.
\e\ 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\2\; 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\2\ (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\2\
(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\ (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 ([deg]F; 5 to 23 degrees Celsius ([deg]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\2\ (64,247,399.2 acres) from Cape
Hatteras in the south to the Gulf of Maine in the north. Specifically,
the lease area and cable corridor are located within the Mid-Atlantic
Bight 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 <a href="https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-offshore-wind-construction-and-operations-plan">https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-offshore-wind-construction-and-operations-plan</a>.

BILLING CODE 3510-22-P

[[Page 65435]]

[GRAPHIC] [TIFF OMITTED] TP22SE23.000

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

[[Page 65436]]

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

[[Page 65437]]

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:
<bullet> 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);
<bullet> 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);
<bullet> Grab sampling to validate seabed classification using
typical sample sizes between 0.1 square meters (m\2\) and 0.2 m\2\;
<bullet> 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);
<bullet> 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
<bullet> 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:
<bullet> 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.
<bullet> 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Operational Typical pulse
HRG survey equipment (sub- Representative Operating frequency source level Beamwidth ranges durations RMS90 Pulse repetition
bottom profiler) equipment type ranges (kHz) ranges (dBRMS) (degrees) (millisecond) rate (Hz)

--------------------------------------------------------------------------------------------------------------------------------------------------------
Sparker........................ Applied Acoustics 0.01 to 1.9 \a\........ 203 \a\.......... 180.............. 3.4 \a\.......... 2.
Dura-Spark 240 *.
Geo Marine Geo- 0.2 to 5............... 195 \b\.......... 180.............. 7.2 \b\.......... 0.41.
Source *.
Compressed High-Intensity Edgetech 2000-DSS 2 to 16................ 195 \c\.......... 24 \d\........... 6.3.............. 10.
Radiated Pulses (CHIRP). *.
Edgetech 216 *.... 2 to 16................ 179 \e\.......... 17, 20, or 24.... 10............... 10.

[[Page 65438]]

Edgetech 424 *.... 4 to 24 \f\............ 180 \f\.......... 71 \f\........... 4................ 2.
Edgetech 512i *... 0.7 to 12 \f\.......... 179 \f\.......... 80 \f\........... 9................ 8.
Pangeosubsea Sub- 4 to 12.5 \d\.......... 190 \d\ \g\...... 120 \d\.......... 4.5.............. 44.
bottom Imager\TM\
*.
INNOMAR........................ INNOMAR SES-2000 85 to 115 \d\.......... 241.............. 2 \d\............ 2................ 40.
Medium-100
Parametric \h\.
INNOMAR deep-36 30 to 42............... 245.............. 1.5.............. 0.15 to 5........ 40.
Parametric \h\.
Gradiometer.................... Geometrics G-882 n/a.................... n/a.............. n/a.............. n/a.............. n/a.
Marine
Magnetometer
Transverse
Gradiometer Array.
Side-scan Sonar................ EdgeTech 4200..... 100 or 400............. 201 at 100 kHz; 0.5[deg] x 1.1 to 7.2 at 100 5 to 11 or 5 to
205 at 400 kHz. 50[deg]-0.26[deg kHz; 1.1 to 1.3 20 dependent on
] x 50[deg]. at 400 kHz. pulse duration.
Edgetech 4205 Tri- 300, 600, or 900....... 220 at 300 kHz; 0.5[deg] x 1.0 to 3.0 at 300 5 to 11 or 10 to
Freq. 2019 at 600 kHz; 50[deg]-0.26[deg kHz; 0.5 to 5.0 25 dependent on
221 at 900 kHz. ] x 50[deg]. at 600 kHz; 0.4- pulse duration.
2.8 at 900 kHz.
Multibeam Echosounder.......... Dual Head 200 to 400............. 204.5............ 0.4 to 1.5....... 0.014 to 12...... 50.
Kongsberg EM2040.
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.
\a\ 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 dBRMS 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 dBRMS 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.
\b\ Information on the source level was obtained from Gene Andella (Edgetech) with JASCO Applied Sciences.
\c\ Manufacturer specifications and/or correspondence with manufacturer.
\d\ 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.
\e\ Values from Crocker and Fratantonio (2016) for 100% power and comparable bandwidth.
\f\ For a frequency of 4 kHz.
\g\ 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.
\h\ The specification sheet indicates a peak source level of 247 dB re 1 [mu]Pa 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 [mu]Pa 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\2\
(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\TM\ 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

[[Page 65439]]

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\TM\ 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\2\)), 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.

[[Page 65440]]

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
----------------------------------------------------------------------------------------------------------------
Approximated
Vessel role Vessel type Number of vessels operational speed
(kn) \a\
----------------------------------------------------------------------------------------------------------------
WTG, Met Tower, and OSS Foundation installation
----------------------------------------------------------------------------------------------------------------
Foundation installation.................... Bulk carrier................. 1 10
Medium heavy lift vessel..... 1 10
Jack-up vessel............... 1 10
Bubble curtain support vessel.............. Tugboat...................... 1 10
Transport barge............................ Barge........................ 2-3 3-10
Towing tugboat............................. Tugboat...................... 2-6 3-10
Support vessel............................. Service Operation Vessel..... 1 10
Crew transfer and noise monitoring......... Crew transfer vessel......... 1 29
----------------------------------------------------------------------------------------------------------------
OSS Installation
----------------------------------------------------------------------------------------------------------------
OSS installation........................... Large heavy lift vessel...... 1 10
Medium heavy lift vessel..... 1 10
Bubble curtain support vessel.............. Tugboat...................... 1 10
Transport barge............................ Barge........................ 4 10
Towing tugboat............................. Tugboat...................... 4 10
Assistance tugboat......................... Tugboat...................... 2 10
Crew transfer and noise monitoring......... Crew transfer vessel......... 1 29
----------------------------------------------------------------------------------------------------------------
Scour protection
----------------------------------------------------------------------------------------------------------------
Scour protection installation.............. Fall pipe vessel............. 1 10
Dredging................................... Dredger...................... 1 10
----------------------------------------------------------------------------------------------------------------

[[Page 65441]]

Cofferdam installation and removal
----------------------------------------------------------------------------------------------------------------
Cofferdam installation and removal......... Spread-moored barge.......... 1 10
DP barge..................... 1 10
----------------------------------------------------------------------------------------------------------------
\a\ 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 (<a href="https://www.rosascience.org/offshore-wind-and-fisheries-resources/">https://www.rosascience.org/offshore-wind-and-fisheries-resources/</a>; 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

[[Page 65442]]

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\2\; 24.2 feet square (ft\2\))
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 <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores</a>.
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,

[[Page 65443]]

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), <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>), and more general
information about these species (e.g., physical and behavioral
descriptions) may be found on NMFS's website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
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 <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>.

Table 4--Marine Mammal Species \5\ That May Occur in the Project Area and Be Taken, by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
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; 11 1.8
2016).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, N 1,396 (0; 1,380; 2016) 22 12.15
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Coastal. 2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Family Delphinidae:
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 39,921 (0.27; 32,032; 320 0
2016).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71; 54,433; 544 27
2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic-- -, -, N 62,851 (0.23; 51,914; 519 28
Offshore. 2016).
Northern Migratory -, -, Y 6,639 (0.41; 4,759; 48 12.2-21.5
Coastal. 2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 172,897 (0.21; 1,452 390
145,216; 2016).
Long-finned pilot whale \6\..... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3; 30,627; 306 29
2016).
Short-finned pilot whale \6\.... Globicephala Western North Atlantic. -, -, N 28,924 (0.24, 23,637, 236 136
macrorhynchus. 2016).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 35,215 (0.19; 30,051; 301 34
2016).
Family Phocoenidae (porpoises):

[[Page 65444]]

Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31; 74,034; 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \4\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,300 (0.22; 22,785; 1,458 4,453
2016).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08; 57,637; 1,729 339
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 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.
\2\ NMFS' marine mammal stock assessment reports can be found online at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a> assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ 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).
\4\ 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.
\5\ 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
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>; Committee on Taxonomy (2023)).
\6\ 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 (<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores</a>), the SARs (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>), and NMFS' website (<a href="https://www.fisheries.noaa.gov/species-directory/marine-mammals">https://www.fisheries.noaa.gov/species-directory/marine-mammals</a>), 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 (<a href="https://www.fisheries.noaa.gov/resource/map/national-esa-critical-habitat-mapper">https://www.fisheries.noaa.gov/resource/map/national-esa-critical-habitat-mapper</a>).
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 <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
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 (<a href="https://www.fisheries.noaa.gov/topic/endangered-species-conservation/species-in-the-spotlight">https://www.fisheries.noaa.gov/topic/endangered-species-conservation/species-in-the-spotlight</a>).
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

[[Page 65445]]

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<INF>best</INF>) 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

[[Page 65446]]

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:
<a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event</a>.

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\2\).
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 <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>). 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: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>.
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

[[Page 65447]]

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\2\).
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: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast</a>.

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: <a href="https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast">https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast</a>.
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 <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along">https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along</a>.

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 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans (dolphins, 150 Hz to 160 kHz.
toothed whales, beaked whales, bottlenose
whales).

[[Page 65448]]

High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises,Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus cruciger
& L. australis).
Phocid pinnipeds (PW) (underwater) (true 50 Hz to 86 kHz.
seals).
------------------------------------------------------------------------
* 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
(Hemil[auml] 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
<a href="https://dosits.org/">https://dosits.org/</a>. 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

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always be indicated. For underwater sound, this is 1 microPascal
([mu]Pa). For in-air sound, the reference pressure is 20 [mu]Pa. 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 1[mu]Pa.
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 [mu]Pa\2\-
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<INF>ss</INF>), or calculated over periods containing multiple
pulses (SEL<INF>cum</INF>). 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

[[Page 65450]]

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; G[ouml]tz 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

[[Page 65451]]

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 1[micro]Pa)
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 1[micro]Pa) by ceasing normal fluking and
echolocation, swimming rapidly away, and extending both dive duration
and subsequent non-foraging intervals when the sound source was 3.4-9.5
km away. Importantly, this study also showed that whales exposed to a
similar range of received levels (78-106 dB re 1[micro]Pa) 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

[[Page 65452]]

(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; D[auml]hne 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; D[auml]hne 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 S[uuml]d/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; D[auml]hne et
al., 2013; Lucke et al., 2012; Haelters et al., 2015).
While harbor porpoises and seals tend to move several kilometers
away from

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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
responses were greatly reduced. While there was observed deflection
from course, in no case did a whale abandon its migratory behavior.
The signal context of the noise exposure has been shown to play an
important role in avoidance responses. In a 2007-2008 Bahamas study,
playback sounds of a potential predator--a killer whale--resulted in a
similar but more pronounced reaction in beaked whales (an acoustically
sensitive species), which included longer inter-dive intervals and a
sustained straight-line departure of more than 20 km from the area
(Boyd et al., 2008; Southall et al., 2009; Tyack et al., 2011).
Atlantic Shores does not anticipate, and NMFS is not proposing to
authorize take of beaked whales and, moreover, the sounds produced by
Atlantic Shores do not have signal characteristics similar to
predators. Therefore we would not expect such extreme reactions to
occur. 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.
One potential consequence of behavioral avoidance is the altered
energetic expenditure of marine mammals because energy is required to
move and avoid surface vessels or the sound field associated with
active sonar (Frid and Dill, 2002). Most animals can avoid that
energetic cost by swimming away at slow speeds or speeds that minimize
the cost of transport (Miksis-Olds, 2006), as has been demonstrated in
Florida manatees (Miksis-Olds, 2006). Those energetic costs increase,
however, when animals shift from a resting state, which is designed to
conserve an animal's energy, to an active state that consumes energy
the animal would have conserved had it not been disturbed. Marine
mammals that have been disturbed by anthropogenic noise and vessel
approaches are commonly reported to shift from resting to active
behavioral states, which would imply that they incur an energy cost.
Forney et al. (2017) detailed the potential effects of noise on
marine mammal populations with high site fidelity, including
displacement and auditory masking, noting that a lack of observed
response does not imply absence of fitness costs and that apparent
tolerance of disturbance may have population-level impacts that are
less obvious and difficult to document. Avoidance of overlap between
disturbing noise and areas and/or times of particular importance for
sensitive species may be critical to avoiding population-level impacts
because (particularly for animals with high site fidelity) there may be
a strong motivation to remain in the area despite negative impacts.
Forney et al. (2017) stated that, for these animals, remaining in a
disturbed area may reflect a lack of alternatives rather than a lack of
effects.
A flight response is a dramatic change in normal movement to a
directed and rapid movement away from the perceived location of a sound
source. The flight response differs from other

[[Page 65454]]

avoidance responses in the intensity of the response (e.g., directed
movement, rate of travel). Relatively little information on flight
responses of marine mammals to anthropogenic signals exist, although
observations of flight responses to the presence of predators have
occurred (Connor and Heithaus, 1996; Frid and Dill, 2002). The result
of a flight response could range from brief, temporary exertion and
displacement from the area where the signal provokes flight to, in
extreme cases, beaked whale strandings (Cox et al., 2006; D'Amico et
al., 2009). However, it should be noted that response to a perceived
predator does not necessarily invoke flight (Ford and Reeves, 2008),
and whether individuals are solitary or in groups may influence the
response. Flight responses of marine mammals have been documented in
response to mobile high intensity active sonar (e.g., Tyack et al.,
2011; DeRuiter et al., 2013; Wensveen et al., 2019), and more severe
responses have been documented when sources are moving towards an
animal or when they are surprised by unpredictable exposures (Watkins,
1986; Falcone et al., 2017). Generally speaking, however, marine
mammals would be expected to be less likely to respond with a flight
response to either stationary pile driving (which they can sense is
stationary and predictable) or significantly lower-level HRG surveys,
unless they are within the area ensonified above behavioral harassment
thresholds at the moment the source is turned on (Watkins, 1986;
Falcone et al., 2017).
Diving and Foraging
Changes in dive behavior in response to noise exposure can vary
widely. They may consist of increased or decreased dive times and
surface intervals as well as changes in the rates of ascent and descent
during a dive (e.g., Frankel and Clark, 2000; Costa et al., 2003; Ng
and Leung, 2003; Nowacek et al., 2004; Goldbogen et al., 2013a;
Goldbogen et al., 2013b). Variations in dive behavior may reflect
interruptions in biologically significant activities (e.g., foraging)
or they may be of little biological significance. Variations in dive
behavior may also expose an animal to potentially harmful conditions
(e.g., increasing the chance of ship-strike) or may serve as an
avoidance response that enhances survivorship. The impact of a
variation in diving resulting from an acoustic exposure depends on what
the animal is doing at the time of the exposure, the type and magnitude
of the response, and the context within which the response occurs
(e.g., the surrounding environmental and anthropogenic circumstances).
Nowacek et al. (2004) reported disruptions of dive behaviors in
foraging North Atlantic right whales when exposed to an alerting
stimulus, an action, they noted, that could lead to an increased
likelihood of vessel strike. The alerting stimulus was in the form of
an 18 minute exposure that included three 2-minute signals played three
times sequentially. This stimulus was designed with the purpose of
providing signals distinct to background noise that serve as
localization cues. However, the whales did not respond to playbacks of
either right whale social sounds or vessel noise, highlighting the
importance of the sound characteristics in producing a behavioral
reaction. Although source levels for the proposed pile driving
activities may exceed the received level of the alerting stimulus
described by Nowacek et al. (2004), proposed mitigation strategies
(further described in the Proposed Mitigation section) will reduce the
severity of response to proposed pile driving activities. Converse to
the behavior of North Atlantic right whales, Indo-Pacific humpback
dolphins have been observed to dive for longer periods of time in areas
where vessels were present and/or approaching (Ng and Leung, 2003). In
both of these studies, the influence of the sound exposure cannot be
decoupled from the physical presence of a surface vessel, thus
complicating interpretations of the relative contribution of each
stimulus to the response. Indeed, the presence of surface vessels,
their approach, and speed of approach, seemed to be significant factors
in the response of the Indo-Pacific humpback dolphins (Ng and Leung,
2003). Low frequency signals of the Acoustic Thermometry of Ocean
Climate (ATOC) sound source were not found to affect dive times of
humpback whales in Hawaiian waters (Frankel and Clark, 2000) or to
overtly affect elephant seal dives (Costa et al., 2003). They did,
however, produce subtle effects that varied in direction and degree
among the individual seals, illustrating the equivocal nature of
behavioral effects and consequent difficulty in defining and predicting
them.
Disruption of feeding behavior can be difficult to correlate with
anthropogenic sound exposure, so it is usually inferred by observed
displacement from known foraging areas, the cessation of secondary
indicators of foraging (e.g., bubble nets or sediment plumes), or
changes in dive behavior. As for other types of behavioral response,
the frequency, duration, and temporal pattern of signal presentation,
as well as differences in species sensitivity, are likely contributing
factors to differences in response in any given circumstance (e.g.,
Croll et al., 2001; Nowacek et al., 2004; Madsen et al., 2006a;
Yazvenko et al., 2007; Southall et al., 2019b). An understanding of the
energetic requirements of the affected individuals and the relationship
between prey availability, foraging effort and success, and the life
history stage of the animal can facilitate the assessment of whether
foraging disruptions are likely to incur fitness consequences
(Goldbogen et al., 2013b; Farmer et al., 2018; Pirotta et al., 2018;
Southall et al., 2019a; Pirotta et al., 2021).
Impacts on marine mammal foraging rates from noise exposure have
been documented, though there is little data regarding the impacts of
offshore turbine construction specifically. Several broader examples
follow, and it is reasonable to expect that exposure to noise produced
during the 5 years the proposed rule would be effective could have
similar impacts.
Visual tracking, passive acoustic monitoring, and movement
recording tags were used to quantify sperm whale behavior prior to,
during, and following exposure to airgun arrays at received levels in
the range 140-160 dB at distances of 7-13 km, following a phase-in of
sound intensity and full array exposures at 1-13 km (Madsen et al.,
2006a; Miller et al., 2009). Sperm whales did not exhibit horizontal
avoidance behavior at the surface. However, foraging behavior may have
been affected. The sperm whales exhibited 19 percent less vocal (buzz)
rate during full exposure relative to post exposure, and the whale that
was approached most closely had an extended resting period and did not
resume foraging until the airguns had ceased firing. The remaining
whales continued to execute foraging dives throughout exposure;
however, swimming movements during foraging dives were 6 percent lower
during exposure than control periods (Miller et al., 2009). Miller et
al. (2009) noted that more data are required to understand whether the
differences were due to exposure or natural variation in sperm whale
behavior.
Balaenopterid whales exposed to moderate low-frequency signals
similar to the ATOC sound source demonstrated no variation in foraging
activity (Croll et al., 2001), whereas five out of six North Atlantic
right whales exposed to an acoustic alarm interrupted their foraging
dives (Nowacek et al., 2004). Although the received sound pressure
levels (SPLs)

[[Page 65455]]

were similar in the latter two studies, the frequency, duration, and
temporal pattern of signal presentation were different. These factors,
as well as differences in species sensitivity, are likely contributing
factors to the differential response. The source levels of both the
proposed construction and HRG activities exceed the source levels of
the signals described by Nowacek et al. (2004) and Croll et al. (2001),
and noise generated by Atlantic Shores' activities at least partially
overlap in frequency with the described signals. Blue whales exposed to
mid-frequency sonar in the Southern California Bight were less likely
to produce low frequency calls usually associated with feeding behavior
(Melc[oacute]n et al., 2012). However, Melc[oacute]n et al. (2012) were
unable to determine if suppression of low frequency calls reflected a
change in their feeding performance or abandonment of foraging behavior
and indicated that implications of the documented responses are
unknown. Further, it is not known whether the lower rates of calling
actually indicated a reduction in feeding behavior or social contact
since the study used data from remotely deployed, passive acoustic
monitoring buoys. Results from the 2010-2011 field season of a
behavioral response study in Southern California waters indicated that,
in some cases and at low received levels, tagged blue whales responded
to mid-frequency sonar but that those responses were mild and there was
a quick return to their baseline activity (Southall et al., 2011;
Southall et al., 2012b, Southall et al., 2019).
Information on or estimates of the energetic requirements of the
individuals and the relationship between prey availability, foraging
effort and success, and the life history stage of the animal will help
better inform a determination of whether foraging disruptions incur
fitness consequences. Foraging strategies may impact foraging
efficiency, such as by reducing foraging effort and increasing success
in prey detection and capture, in turn promoting fitness and allowing
individuals to better compensate for foraging disruptions. Surface
feeding blue whales did not show a change in behavior in response to
mid-frequency simulated and real sonar sources with received levels
between 90 and 179 dB re 1 [micro]Pa, but deep feeding and non-feeding
whales showed temporary reactions including cessation of feeding,
reduced initiation of deep foraging dives, generalized avoidance
responses, and changes to dive behavior (DeRuiter et al., 2017;
Goldbogen et al., 2013b; Sivle et al., 2015). Goldbogen et al. (2013b)
indicate that disruption of feeding and displacement could impact
individual fitness and health. However, for this to be true, we would
have to assume that an individual whale could not compensate for this
lost feeding opportunity by either immediately feeding at another
location, by feeding shortly after cessation of acoustic exposure, or
by feeding at a later time. There is no indication that individual
fitness and health would be impacted, particularly since unconsumed
prey would likely still be available in the environment in most cases
following the cessation of acoustic exposure.
Similarly, while the rates of foraging lunges decrease in humpback
whales due to sonar exposure, there was variability in the response
across individuals, with one animal ceasing to forage completely and
another animal starting to forage during the exposure (Sivle et al.,
2016). In addition, almost half of the animals that demonstrated
avoidance were foraging before the exposure but the others were not;
the animals that avoided while not feeding responded at a slightly
lower received level and greater distance than those that were feeding
(Wensveen et al., 2017). These findings indicate the behavioral state
of the animal and foraging strategies play a role in the type and
severity of a behavioral response. For example, when the prey field was
mapped and used as a covariate in examining how behavioral state of
blue whales is influenced by mid-frequency sound, the response in blue
whale deep-feeding behavior was even more apparent, reinforcing the
need for contextual variables to be included when assessing behavioral
responses (Friedlaender et al., 2016).
Vocalizations and Auditory Masking
Marine mammals vocalize for different purposes and across multiple
modes, such as whistling, production of echolocation clicks, calling,
and singing. Changes in vocalization behavior in response to
anthropogenic noise can occur for any of these modes and may result
directly from increased vigilance or a startle response, or from a need
to compete with an increase in background noise (see Erbe et al., 2016
review on communication masking), the latter of which is described more
below.
For example, in the presence of potentially masking signals,
humpback whales and killer whales have been observed to increase the
length of their songs (Miller et al., 2000; Fristrup et al., 2003;
Foote et al., 2004) and blue whales increased song production (Di Iorio
and Clark, 2009), while North Atlantic right whales have been observed
to shift the frequency content of their calls upward while reducing the
rate of calling in areas of increased anthropogenic noise (Parks et
al., 2007). In some cases, animals may cease or reduce sound production
during production of aversive signals (Bowles et al., 1994; Thode et
al., 2020; Cerchio et al., 2014; McDonald et al., 1995). Blackwell et
al. (2015) showed that whales increased calling rates as soon as airgun
signals were detectable before ultimately decreasing calling rates at
higher received levels.
Sound can disrupt behavior through masking, or interfering with, an
animal's ability to detect, recognize, or discriminate between acoustic
signals of interest (e.g., those used for intraspecific communication
and social interactions, prey detection, predator avoidance, or
navigation) (Richardson et al., 1995; Erbe and Farmer, 2000; Tyack,
2000; Erbe et al., 2016). Masking occurs when the receipt of a sound is
interfered with by another coincident sound at similar frequencies and
at similar or higher intensity, and may occur whether the sound is
natural (e.g., snapping shrimp, wind, waves, precipitation) or
anthropogenic (e.g., shipping, sonar, seismic exploration) in origin.
The ability of a noise source to mask biologically important sounds
depends on the characteristics of both the noise source and the signal
of interest (e.g., signal-to-noise ratio, temporal variability,
direction), in relation to each other and to an animal's hearing
abilities (e.g., sensitivity, frequency range, critical ratios,
frequency discrimination, directional discrimination, age, or TTS
hearing loss), and existing ambient noise and propagation conditions.
Masking these acoustic signals can disturb the behavior of
individual animals, groups of animals, or entire populations. Masking
can lead to behavioral changes including vocal changes (e.g., Lombard
effect, increasing amplitude, or changing frequency), cessation of
foraging or lost foraging opportunities, and leaving an area, to both
signalers and receivers, in an attempt to compensate for noise levels
(Erbe et al., 2016) or because sounds that would typically have
triggered a behavior were not detected. In humans, significant masking
of tonal signals occurs as a result of exposure to noise in a narrow
band of similar frequencies. As the sound level increases, though, the
detection of frequencies above those of the masking stimulus decreases
also. This principle is expected to apply to marine mammals as well
because of

[[Page 65456]]

common biomechanical cochlear properties across taxa.
Therefore, when the coincident (masking) sound is man-made, it may
be considered harassment when disrupting behavioral patterns. It is
important to distinguish TTS and PTS, which persist after the sound
exposure, from masking, which only occurs during the sound exposure.
Because masking (without resulting in threshold shift) is not
associated with abnormal physiological function, it is not considered a
physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important
in determining any potential behavioral impacts. For example, low-
frequency signals may have less effect on high-frequency echolocation
sounds produced by odontocetes but are more likely to affect detection
of mysticete communication calls and other potentially important
natural sounds such as those produced by surf and some prey species.
The masking of communication signals by anthropogenic noise may be
considered as a reduction in the communication space of animals (e.g.,
Clark et al., 2009; Matthews et al., 2017) and may result in energetic
or other costs as animals change their vocalization behavior (e.g.,
Miller et al., 2000; Foote et al., 2004; Parks et al., 2007; Di Iorio
and Clark, 2009; Holt et al., 2009). Masking can be reduced in
situations where the signal and noise come from different directions
(Richardson et al., 1995), through amplitude modulation of the signal,
or through other compensatory behaviors (Houser and Moore, 2014).
Masking can be tested directly in captive species (e.g., Erbe, 2008),
but in wild populations it must be either modeled or inferred from
evidence of masking compensation. There are few studies addressing
real-world masking sounds likely to be experienced by marine mammals in
the wild (e.g., Branstetter et al., 2013; Cholewiak et al., 2018).
The echolocation calls of toothed whales are subject to masking by
high-frequency sound. Human data indicate low-frequency sound can mask
high-frequency sounds (i.e., upward masking). Studies on captive
odontocetes by Au et al. (1974, 1985, 1993) indicate that some species
may use various processes to reduce masking effects (e.g., adjustments
in echolocation call intensity or frequency as a function of background
noise conditions). There is also evidence that the directional hearing
abilities of odontocetes are useful in reducing masking at the high-
frequencies these cetaceans use to echolocate, but not at the low-to-
moderate frequencies they use to communicate (Zaitseva et al., 1980). A
study by Nachtigall and Supin (2008) showed that false killer whales
adjust their hearing to compensate for ambient sounds and the intensity
of returning echolocation signals.
Impacts on signal detection, measured by masked detection
thresholds, are not the only important factors to address when
considering the potential effects of masking. As marine mammals use
sound to recognize conspecifics, prey, predators, or other biologically
significant sources (Branstetter et al., 2016), it is also important to
understand the impacts of masked recognition thresholds (often called
``informational masking''). Branstetter et al. (2016) measured masked
recognition thresholds for whistle-like sounds of bottlenose dolphins
and observed that they are approximately 4 dB above detection
thresholds (energetic masking) for the same signals. Reduced ability to
recognize a conspecific call or the acoustic signature of a predator
could have severe negative impacts. Branstetter et al. (2016) observed
that if ``quality communication'' is set at 90 percent recognition the
output of communication space models (which are based on 50 percent
detection) would likely result in a significant decrease in
communication range.
As marine mammals use sound to recognize predators (Allen et al.,
2014; Cummings and Thompson, 1971; Cur[eacute] et al., 2015; Fish and
Vania, 1971), the presence of masking noise may also prevent marine
mammals from responding to acoustic cues produced by their predators,
particularly if it occurs in the same frequency band. For example,
harbor seals that reside in the coastal waters off British Columbia are
frequently targeted by mammal-eating killer whales. The seals
acoustically discriminate between the calls of mammal-eating and fish-
eating killer whales (Deecke et al., 2002), a capability that should
increase survivorship while reducing the energy required to attend to
all killer whale calls. Similarly, sperm whales (Cur[eacute] et al.,
2016; Isojunno et al., 2016), long-finned pilot whales (Visser et al.,
2016), and humpback whales (Cur[eacute] et al., 2015) changed their
behavior in response to killer whale vocalization playbacks; these
findings indicate that some recognition of predator cues could be
missed if the killer whale vocalizations were masked. The potential
effects of masked predator acoustic cues depends on the duration of the
masking noise and the likelihood of a marine mammal encountering a
predator during the time that detection and recognition of predator
cues are impeded.
Redundancy and context can also facilitate detection of weak
signals. These phenomena may help marine mammals detect weak sounds in
the presence of natural or manmade noise. Most masking studies in
marine mammals present the test signal and the masking noise from the
same direction. The dominant background noise may be highly directional
if it comes from a particular anthropogenic source such as a ship or

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