65430 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 230907–0215] 

RIN 0648–BL73 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Atlantic 

Shores South Project Offshore of New 

Jersey 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; proposed letter 

of authorization; request for comments. 

SUMMARY: NMFS has received a request 

from Atlantic Shores Offshore Wind 

LLC (Atlantic Shores), a joint venture 

between EDF–RE Offshore Development 

LLC (a wholly owned subsidiary of EDF 

Renewables, Inc.) and Shell New 

Energies US LLC, for Incidental Take 

Regulations (ITR) and associated Letters 

of Authorization (LOAs) pursuant to the 

Marine Mammal Protection Act 

(MMPA). The requested regulations 

would govern the authorization of take, 

by Level A harassment and Level B 

harassment, of small numbers of marine 

mammals over the course of 5 years 

(2025–2029) incidental to the 

construction of Atlantic Shores South 

located offshore of New Jersey within 

the Bureau of Ocean Energy 

Management (BOEM) Commercial Lease 

of Submerged Lands for Renewable 

Energy Development on the Outer 

Continental Shelf (OCS) Lease Area 

OCS–A 0499 (Lease Area) and 

associated ECCs (ECR Area). Atlantic 

Shores South would be divided into two 

projects: Project 1 and Project 2 (the 

combined hereafter referred to as the 

‘‘Project Area’’) and Atlantic Shores has 

requested a 5-year LOA for each Project, 

both issued under these proposed 

regulations. Atlantic Shores’ activities 

likely to result in incidental take 

include impact and vibratory pile 

driving and site assessment surveys 

using high-resolution geophysical (HRG) 

equipment within the Lease Area and 

Export Cable Corridor (ECC). NMFS 

requests comments on its proposed rule. 

NMFS will consider public comments 

prior to making any final decision on 

the promulgation of the requested ITR 

and issuance of the LOA; agency 

responses to public comments will be 

summarized in the final rule 

documenting our decision. 

DATES: The regulations and LOA, if 

issued, would be effective January 1, 

2025 through December 31, 2029. 

Comments and information must be 

received no later than October 23, 2023. 

ADDRESSES: Submit all electronic public 

comments via the Federal e-Rulemaking 

Portal. Go to www.regulations.gov and 

enter NOAA–NMFS–2023–0068 in the 

Search box. Click on the ‘‘Comment’’ 

icon, complete the required fields, and 

enter or attach your comments. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, or Adobe PDF 

file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Kelsey Potlock, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of Atlantic Shores’ Incidental 

Take Authorization (ITA) application 

and supporting documents, as well as a 

list of the references cited in this 

document, may be obtained online at: 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-take-authorizations-otherenergy-activities-renewable. In case of 

problems accessing these documents, 

please call the contact listed above (see 

FOR FURTHER INFORMATION CONTACT). 

Purpose and Need for Regulatory 

Action 

This proposed rule, if promulgated, 

would provide a framework under the 

authority of the MMPA (16 U.S.C. 1361 

et seq.) for NMFS to authorize the take 

of marine mammals incidental to 

construction of Atlantic Shores South 

within the Lease Area and along ECCs 

to two landfall locations in New Jersey. 

NMFS received a request from Atlantic 

Shores to incidentally take individuals 

of 16 species of marine mammals (9 

species by Level A harassment and 

Level B harassment and 7 species by 

Level B harassment only), comprising 

17 stocks, incidental to Atlantic Shores’ 

5 years of construction activities. No 

mortality or serious injury is anticipated 

or proposed for authorization. Please see 

the Legal Authority for the Proposed 

Action section below for definitions of 

harassment, serious injury, and 

incidental take. 

Legal Authority for the Proposed Action 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made, regulations are promulgated 

(when applicable), and public notice 

and an opportunity for public comment 

are provided. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). If such findings are made, 

NMFS must prescribe the permissible 

methods of taking; ‘‘other means of 

effecting the least practicable adverse 

impact’’ on the affected species or 

stocks and their habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance, and on the availability of 

the species or stocks for taking for 

certain subsistence uses (referred to as 

‘‘mitigation’’); and requirements 

pertaining to the monitoring and 

reporting of such takings. 

As noted above, no serious injury or 

mortality is anticipated or proposed for 

authorization in this proposed rule. 

Relevant definitions of MMPA statutory 

and regulatory terms are included 

below: 

• U.S. Citizen—individual U.S. 

citizens or any corporation or similar 

entity if it is organized under the laws 

of the United States or any 

governmental unit defined in 16 U.S.C. 

1362(13) (50 CFR 216.103); 

• Take—to harass, hunt, capture, or 

kill, or attempt to harass, hunt, capture, 

or kill any marine mammal (16 U.S.C. 

1362(13); 50 CFR 216.3); 

• Incidental harassment, incidental 

taking, and incidental, but not 

intentional, taking—an accidental 

taking. This does not mean that the 

taking is unexpected, but rather it 

includes those takings that are 


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infrequent, unavoidable or accidental 

(see 50 CFR 216.103); 

• Serious Injury—any injury that will 

likely result in mortality (50 CFR 216.3); 

• Level A harassment—any act of 

pursuit, torment, or annoyance which 

has the potential to injure a marine 

mammal or marine mammal stock in the 

wild (16 U.S.C. 1362(18); 50 CFR 216.3); 

and 

• Level B harassment—any act of 

pursuit, torment, or annoyance which 

has the potential to disturb a marine 

mammal or marine mammal stock in the 

wild by causing disruption of behavioral 

patterns, including, but not limited to, 

migration, breathing, nursing, breeding, 

feeding, or sheltering (16 U.S.C. 

1362(18); 50 CFR 216.3). 

Section 101(a)(5)(A) of the MMPA and 

the implementing regulations at 50 CFR 

part 216, subpart I provide the legal 

basis for proposing and, if appropriate, 

issuing regulations and an associated 

LOA(s). This proposed rule describes 

permissible methods of taking and 

mitigation, monitoring, and reporting 

requirements for Atlantic Shores’ 

proposed activities. 

Summary of Major Provisions Within 

the Proposed Rule 

The major provisions of this proposed 

rule include: 

• The proposed take of marine 

mammals by Level A harassment and/or 

Level B harassment; 

• No mortality or serious injury of 

any marine mammal is anticipated or 

proposed to be authorized; 

• The establishment of a seasonal 

moratorium on wind turbine generator 

(WTG), meteorological tower (Met 

Tower), and offshore substation (OSS) 

foundation impact pile driving during 

the months of highest North Atlantic 

right whale (Eubalaena glacialis) 

presence in the Project Area (December 

1st–April 30th), unless NMFS allows for 

pile driving to occur in December; 

• A requirement for both visual and 

passive acoustic monitoring to occur by 

trained, NOAA Fisheries-approved 

Protected Species Observers (PSOs) and 

Passive Acoustic Monitoring (PAM; 

where required) operators before, 

during, and after select activities; 

• A requirement for training for all 

Atlantic Shores personnel to ensure 

marine mammal protocols and 

procedures are understood; 

• The establishment of clearance and 

shutdown zones for all in-water 

construction activities to prevent or 

reduce the risk of Level A harassment 

and to minimize the risk of Level B 

harassment; 

• A requirement to use sound 

attenuation device(s) during all 

foundation impact pile driving 

installation activities to reduce noise 

levels to those modeled assuming 10 

decibels (dB); 

• A delay to the start of foundation 

installation if a North Atlantic right 

whale is observed at any distance by 

PSOs or acoustically detected within 

certain distances; 

• A delay to the start of foundation 

installation if other marine mammals 

are observed entering or within their 

respective clearance zones; 

• A requirement to shut down impact 

pile driving (if feasible) if a North 

Atlantic right whale is observed or if 

any other marine mammals are observed 

entering their respective shutdown 

zones; 

• A requirement to implement sound 

field verification during impact pile 

driving of foundation piles to measure 

in situ noise levels for comparison 

against the modeled results; 

• A requirement to implement softstarts during impact pile driving using 

the least amount of hammer energy 

necessary for installation; 

• A requirement to implement rampup during the use of high-resolution 

geophysical (HRG) marine site 

characterization survey equipment; 

• A requirement for PSOs to continue 

to monitor for 30 minutes after any 

impact pile driving for foundation 

installation; 

• A requirement for the increased 

awareness of North Atlantic right whale 

presence through monitoring of the 

appropriate networks and Channel 16, 

as well as reporting any sightings to the 

sighting network; 

• A requirement to implement 

various vessel strike avoidance 

measures; 

• A requirement to implement 

measures during fisheries monitoring 

surveys, such as removing gear from the 

water if marine mammals are 

considered at-risk or are interacting 

with gear; and 

• A requirement for frequently 

scheduled and situational reporting 

including, but not limited to, 

information regarding activities 

occurring, marine mammal observations 

and acoustic detections, and sound field 

verification monitoring results. 

NMFS must withdraw or suspend any 

LOA(s), if issued under these 

regulations, after notice and opportunity 

for public comment, if it finds the 

methods of taking or the mitigation, 

monitoring, or reporting measures are 

not being substantially complied with 

(16 U.S.C. 1371(a)(5)(B); 50 CFR 

216.206(e)). Additionally, failure to 

comply with the requirements of the 

LOA(s) may result in civil monetary 

penalties and knowing violations may 

result in criminal penalties (16 U.S.C. 

1375). 

National Environmental Policy Act 

(NEPA) 

To comply with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.) and NOAA 

Administrative Order (NAO) 216–6A, 

NMFS must evaluate the proposed 

action (i.e., promulgation of regulations) 

and alternatives with respect to 

potential impacts on the human 

environment. 

Accordingly, NMFS proposes to adopt 

the BOEM Environmental Impact 

Statement (EIS) for Atlantic Shores 

South, provided our independent 

evaluation of the document finds that it 

includes adequate information 

analyzing the effects of promulgating 

the proposed regulations and issuance 

of the LOA(s) on the human 

environment. NMFS is a cooperating 

agency on BOEM’s EIS. BOEM’s 

Atlantic Shores South Draft 

Environmental Impact Statement for 

Commercial Wind Lease OCS–A 0499 

(DEIS), was made available for public 

comment through a Notice of 

Availability on May 19, 2023 (88 FR 

32242), available at https://

www.boem.gov/renewable-energy/stateactivities/atlantic-shores-south. The 

DEIS had a 45-day public comment 

period; the comment period was open 

from May 19, 2023 to July 3, 2023. 

Additionally, BOEM held two in-person 

public meetings, on June 21, 2023 and 

June 22, 2023, and two virtual public 

hearings, on June 26, 2023, and June 28, 

2023. 

Information contained within Atlantic 

Shores’ ITA application and this 

Federal Register document provide the 

environmental information related to 

these proposed regulations and 

associated 5-year LOA for public review 

and comment. NMFS will review all 

comments submitted in response to this 

proposed rulemaking prior to 

concluding our NEPA process or making 

a final decision on the requested 5-year 

ITR and associated LOAs. 

Fixing America’s Surface 

Transportation Act (FAST–41) 

This project is covered under Title 41 

of the Fixing America’s Surface 

Transportation Act or ‘‘FAST–41.’’ 

FAST–41 includes a suite of provisions 

designed to expedite the environmental 

review for covered infrastructure 

projects, including enhanced 

interagency coordination as well as 

milestone tracking on the public-facing 

Permitting Dashboard. FAST–41 also 

places a 2-year limitations period on 


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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 https://

www.permits.performance.gov/ 

permitting-project/atlantic-shores-south. 

Summary of Request 

On February 8, 2022, NMFS received 

a request from Atlantic Shores for the 

promulgation of regulations and the 

issuance of associated LOAs to take 

marine mammals incidental to 

construction activities associated with 

the Atlantic Shores South project 

located offshore of New Jersey in Lease 

Area OCS–A 0499 and associated ECCs. 

Atlantic Shores’ request is for the 

incidental, but not intentional, take of a 

small number of 16 marine mammal 

species (comprising 17 stocks) by Level 

A harassment and/or Level B 

harassment. Neither Atlantic Shores nor 

NMFS expects serious injury and/or 

mortality to result from the specified 

activities, and Atlantic Shores did not 

request, and NMFS is not proposing, to 

authorize mortality or serious injury of 

any marine mammal species or stock. 

In response to our questions and 

comments and following extensive 

information exchanges with NMFS, 

Atlantic Shores submitted a final, 

revised application on August 12, 2022 

that NMFS deemed adequate and 

complete on August 25, 2022. The final 

version of the application is available on 

NMFS’ website at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-atlanticshores-offshore-wind-llc-constructionatlantic-shores. 

On September 29, 2022, NMFS 

published a notice of receipt (NOR) of 

the adequate and complete application 

in the Federal Register (87 FR 59061), 

requesting public comments and 

information related to Atlantic Shores’ 

request during a 30-day public comment 

period. Due to a request, NMFS 

extended the public comment period for 

an additional 15 days (87 FR 65193, 

October 28, 2022) for a total of a 45-day 

public comment period. During the 45- 

day NOR public comment period, 

NMFS received 5 comments and letters 

from the public, including a citizen, 

environmental non-governmental 

organization (eNGO), and local citizen 

group. NMFS has reviewed all 

submitted material and has taken these 

into consideration during the drafting of 

this proposed rule. 

In June 2022, Duke University’s 

Marine Spatial Ecology Laboratory 

released updated habitat-based marine 

mammal density models (Roberts et al., 

2016; Roberts et al., 2023). Because 

Atlantic Shores applied previous marine 

mammal densities to their analysis in 

their application, Atlantic Shores 

submitted a final Updated Density and 

Take Estimation Memo (herein referred 

to as Updated Density and Take 

Estimation Memo) on March 28, 2023 

that included marine mammal densities 

and take estimates based on these new 

models. This memo can be found on 

NMFS’ website at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-atlanticshores-offshore-wind-llc-constructionatlantic-shores. 

In January and February 2023, 

Atlantic Shores informed NMFS that the 

proposed activity had changed from 

what was presented in the adequate and 

complete MMPA application. 

Specifically, Atlantic Shores committed 

to installing only monopile WTG 

foundations for Project 1 (and any found 

in the associated Overlap Area), as 

opposed to either monopile or jacket 

foundations. All WTGs built for Project 

2 (and any remaining Overlap Area) 

may still consist of either monopiles or 

jacket foundations and remain 

unchanged as presented in the adequate 

and complete MMPA application. 

Additionally, all OSS foundations that 

could be developed across both Projects 

1 and 2 continue to maintain build-outs 

using only jacket foundations. Atlantic 

Shores provided a memo and 

supplemental materials outlining these 

changes to NMFS on March 31, 2023. 

These supplemental materials can be 

found on NMFS’ website at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-atlanticshores-offshore-wind-llc-constructionatlantic-shores. 

NMFS has previously issued seven 

Incidental Harassment Authorizations 

(IHAs), including one renewed IHA and 

one correction to an issued IHA, to 

Atlantic Shores authorizing take 

incidental to high-resolution site 

characterization surveys offshore New 

Jersey (see 85 FR 21198, April 16, 2020; 

86 FR 21289, April 22, 2021 (renewal); 

87 FR 24103, April 22, 2022; and 88 FR 

38821, June 14, 2023). 

To date, Atlantic Shores has complied 

with all the requirements (e.g., 

mitigation, monitoring, and reporting) of 

the previous IHAs and information 

regarding Atlantic Shores’ take 

estimates and monitoring results may be 

found in the Estimated Take section. 

Final monitoring reports can be found 

on NMFS’ website, along with 

previously issued IHAs: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable. 

On August 1, 2022, NMFS announced 

proposed changes to the existing North 

Atlantic right whale vessel speed 

regulations (87 FR 46921, August 1, 

2022) to further reduce the likelihood of 

mortalities and serious injuries to 

endangered right whales from vessel 

collisions, which are a leading cause of 

the species’ decline and a primary factor 

in an ongoing Unusual Mortality Event 

(UME). Should a final vessel speed rule 

be issued and become effective during 

the effective period of these regulations 

(or any other MMPA incidental take 

authorization), the authorization holder 

would be required to comply with any 

and all applicable requirements 

contained within the final vessel speed 

rule. Specifically, where measures in 

any final vessel speed rule are more 

protective or restrictive than those in 

this or any other MMPA authorization, 

authorization holders would be required 

to comply with the requirements of the 

rule. Alternatively, where measures in 

this or any other MMPA authorization 

are more restrictive or protective than 

those in any final vessel speed rule, the 

measures in the MMPA authorization 

would remain in place. The 

responsibility to comply with the 

applicable requirements of any vessel 

speed rule would become effective 

immediately upon the effective date of 

any final vessel speed rule and, when 

notice is published on the effective date, 

NMFS would also notify Atlantic Shores 

if the measures in the speed rule were 

to supersede any of the measures in the 

MMPA authorization such that they 

were no longer required. 

Description of the Specified Activities 

Overview 

Atlantic Shores has proposed to 

construct and operate two offshore wind 

projects (Project 1 and Project 2), 

collectively known as Atlantic Shores 

South in Lease Area OCS–A 0499. This 

lease area is located within the New 

Jersey Wind Energy Area (NJ WEA). 

Collectively, Atlantic Shores South will 

consist of up to 200 WTGs, 10 OSSs, 

and 1 Met Tower divided into two 

projects: Project 1 and Project 2. These 

Projects would assist the State of New 

Jersey to meet its renewable energy 

goals under the New Jersey Offshore 

Wind Economic Development Act 

(OWEDA). Atlantic Shores has been 

given an allowance by the New Jersey 


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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 interarray 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 HighIntensity Radiated Pulses (CHIRPs) to 

occur annually and across the entire 5- 

year effective period of the proposed 

rule. These HRG surveys are not 

planned to occur concurrently to pile 

driving activities but they may occur 

across the entire Atlantic Shores South 

Lease Area and ECCs and may take 

place at any time of year. 

Atlantic Shores has provided a 

schedule for all of their proposed 

construction activities (Table 1). This 

table also presents a breakdown of the 

timing and durations of the activities 

proposed to occur during the 

construction and operation of the 

Atlantic Shores South project. 

TABLE 1—ESTIMATED ACTIVITY SCHEDULE TO CONSTRUCT AND OPERATE ATLANTIC SHORES SOUTH, PER THE

CONSTRUCTION AND OPERATIONS PLAN

Activity Duration a

(months) 

Expected 

schedule b

Project 1 

start date 

Project 2 

start date 

Onshore Interconnection Cable Installation .................................................... 9–12 2024–2025 Q1–2024 Q1–2024 

Onshore Substation and/or Onshore Converter Station Construction ............ 18–24 2024–2026 Q1–2025 Q1–2025 

HRG Survey Activities ..................................................................................... 3–6 2025–2029 Q2–2025 Q3–2025 

Export Cable Installation .................................................................................. 6–9 2025 Q2–2025 Q3–2025 

Temporary Cofferdam Installation and Removal ............................................. 18–24 2025–2026 Q2–2025 Q3–2025 

OSS installation and Commissioning .............................................................. 5–7 2025–2026 Q2–2026 Q2–2026 

WTG Foundation and Met Tower Installation c ................................................ 10 2026–2027 Q1–2026 cQ1–2026 

Inter-Array Cable Installation ........................................................................... 14 2026–2027 Q2–2026 dQ3–2026 

WTG Installation and Commissioning e ........................................................... 17 2026–2027 Q2–2026 dQ1–2027 

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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TABLE 1—ESTIMATED ACTIVITY SCHEDULE TO CONSTRUCT AND OPERATE ATLANTIC SHORES SOUTH, PER THE

CONSTRUCTION AND OPERATIONS PLAN—Continued 

Activity Duration a

(months) 

Expected 

schedule b

Project 1 

start date 

Project 2 

start date 

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

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

supply chains. cPile driving may occur from May to December, annually. 

dThe 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. eAtlantic 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 

(km2; 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 km2 (54,175 acres) and is located 

in the western part of the Project Area; 

the area for Project 2 consists of 

approximately 182.2 km2 (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 km2 (2,936 acres). 

The water depths in the Lease Area 

range from 19 to 37 meters (m; 62 to 121 

feet (ft)) while water depths along the 

Atlantic City ECC range from 0 to 22 m 

(0 to 72 ft) and the Monmouth ECC 

ranges from 0 to 30 m (0 to 98 ft). 

Within the Project Area, water depths 

gradually increase based on distance 

from shore. Cable landfall construction 

work (i.e., temporary cofferdams) would 

be conducted in shallow waters of 4 to 

7.5 m (13.1 to 24.6 ft) deep. Sea surface 

temperatures range from 41 to 73 

degrees Fahrenheit (°F; 5 to 23 degrees 

Celsius (°C)). 

Atlantic Shores’ specified activities 

would occur within the Northeast U.S. 

Continental Shelf Large Marine 

Ecosystem (NES LME), an area of 

approximately 260,000 km2

(64,247,399.2 acres) from Cape Hatteras 

in the south to the Gulf of Maine in the 

north. Specifically, the lease area and 

cable corridor are located within the 

Mid-Atlantic Bight sub-area of the NES 

LME which extends between Cape 

Hatteras, North Carolina, and Martha’s 

Vineyard, Massachusetts, extending 

westward into the Atlantic to the 100- 

m isobath. In the Middle Atlantic Bight, 

the pattern of sediment distribution is 

relatively simple. The continental shelf 

south of New England is broad and flat, 

dominated by fine grained sediments. 

Most of the surficial sediments on the 

continental shelf are sands and gravels. 

Silts and clays predominate at and 

beyond the shelf edge, with most of the 

slope being 70–100 percent mud. Fine 

sediments are also common in the shelf 

valleys leading to the submarine 

canyons. There are some larger 

materials, left by retreating glaciers, 

along the coast of Long Island and to the 

north and east. 

Primary productivity is highest in the 

nearshore and estuarine regions, with 

coastal phytoplankton blooms initiating 

in the winter and summer, although the 

timing and spatial extent of blooms 

varies from year to year. The relatively 

productive continental shelf supports a 

wide variety of fauna and flora, making 

it important habitat for various benthic 

and fish species and marine mammals, 

including but not limited to, fin whales, 

humpback whales, North Atlantic right 

whales, and other large whales as they 

migrate through the area. The Cold Pool, 

a bottom-trapped cold, nutrient-rich 

pool and distinct oceanographic feature 

of the Mid-Atlantic Bight, creates 

habitat that provides thermal refuge to 

cold water species in the area (Atlantic 

Shores South Construction and 

Operations Plan (COP), Volume II; 

Lentz, 2017). Cold Pool waters, when 

upwelled to the surface, promote 

primary productivity within this region 

(Voynova et al., 2013). 

The seafloor in the Atlantic Shores 

South Project Area is dynamic and 

changes over time due to current, tidal 

flows, and wave conditions. The benthic 

habitat of the Project Area contains a 

variety of seafloor substrates, physical 

features, and associated benthic 

organisms. The soft bottom sediments in 

the Project Area are reflective of the rest 

of the Mid-Atlantic Bight region, and are 

characterized by fine sand as well as 

gravel and silt/sand mixes (Milliman, 

1972; Steimle and Zetlin, 2000). The 

offshore Project Area is dominated by 

fine, medium, and coarse sand. The 

ECCs consist of medium to coarse sand 

offshore. The Atlantic City ECC is 

characterized by fine sand nearshore 

while the Monmouth ECC largely 

consists of medium and fine sand in the 

nearshore portion (Atlantic Shores, 

2021). The benthic community within 

the offshore Project Area is 

characterized by echinoderms, bivalves, 

gastropods, polychaetes, oligochaetes, 

amphipods, crustaceans, and cnidarians 

(Atlantic Shores, 2021). 

Additional information on the 

underwater environment’s physical 

resources can be found in the COP for 

the Atlantic Shores South project 

(Atlantic Shores, 2021) available at 

https://www.boem.gov/renewableenergy/state-activities/atlantic-shoresoffshore-wind-construction-andoperations-plan. 

BILLING CODE 3510–22–P 


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Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 65435 

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 


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65436 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

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 


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for the installation of Project 2’s OSSs. 

This estimates a total of 201 days 

needed to install WTGs (on either a 

jacket or monopile foundation) and up 

to 24 days for OSS jacket foundation 

installation. 

Installation of the WTG, Met Tower, 

and OSS foundations is anticipated to 

result in the take, by Level A 

harassment and Level B harassment, of 

marine mammals due to noise generated 

during impact pile driving. No vibratory 

pile driving or drilling of foundations 

would occur. 

Cable Landfall Construction 

Atlantic Shores would bring the 

Atlantic Shores South offshore export 

cables to shore at the Atlantic landfall 

site for Project 1, located east of the 

Project Area and the Monmouth landfall 

site for Project 2, located north of the 

Project Area (see Figure 1). The Atlantic 

Shores South export cable would be 

connected to the onshore transmission 

cable at the landfall locations using 

horizontal directional drilling (HDD) 

and potentially a backhoe dredge. 

Atlantic Shores would construct 

temporary cofferdams using sheet piles 

to temporarily ‘‘dewater’’ a specified 

enclosed area using pumps to allow for 

excavation of the HDD pit. Once 

excavation and drilling are completed 

and the HDD conduit and export cable 

are installed, the seabed would be 

restored and water would be allowed to 

flow back in, following the removal of 

the temporary cofferdam. 

Atlantic Shores anticipates installing 

up to eight temporary cofferdams, with 

four located at each of two main landfall 

locations (although fewer may be 

needed). Each cofferdam is anticipated 

to measure 30 m x 8 m (98.4 ft x 26.2 

ft) in size and would be made up of up 

to 109 sheet piles which would be both 

installed and removed by vibratory pile 

driving methods. This yields a total of 

436 sheet piles across all four 

cofferdams at each landfall location, 

yielding a total of 872 sheet piles for 

both landfall locations. Atlantic Shores 

estimates they can install or remove 

approximately 13–14 sheet piles per 

day, assuming 8 hours of vibratory pile 

driving would occur within any 24-hour 

period. Given different depths found at 

the Monmouth and Atlantic landfall 

sites, the work at Monmouth would take 

longer (due to deeper waters). The 

shallower depths found at the Atlantic 

landfall site would necessitate shorter 

vibratory pile driving durations. Hence, 

up to 16 days of work (8 days to install, 

8 days to remove) would be required for 

all cofferdams at the Monmouth landfall 

site and up to 12 days of work (6 days 

to install, 6 days to remove) would be 

necessary for all cofferdams at the 

Atlantic landfall site. In total, to install 

and remove all eight cofferdams across 

both sites, 28 days of vibratory 

hammering/removal would need to 

occur. Installation of the temporary 

cofferdams is anticipated to result in the 

take, by Level B harassment, of marine 

mammals due to noise during vibratory 

driving. 

Marine Site Assessment Surveys (e.g., 

HRG) 

Atlantic Shores would conduct site 

assessment surveys in the Project Area, 

including the Lease Area and along 

potential ECCs to landfall locations in 

New Jersey throughout construction and 

operation occurring within the 5-year 

period of the proposed rulemaking. 

These activities would include: 

• Shallow penetration sub-bottom 

profiler (pingers/CHIRPs) to map the 

near surface stratigraphy (top 0 ft to 16 

ft (0 m to 5 m) soils below seabed); 

• Medium penetration sub-bottom 

profiler (CHIRPs/parametric profilers/ 

sparkers) to map deeper subsurface 

stratigraphy as needed (soils down to 

246 ft (75 m) to 328 ft (100 m) below the 

seabed); 

• Grab sampling to validate seabed 

classification using typical sample sizes 

between 0.1 square meters (m2) and 0.2 

m2; 

• Depth sounding (multibeam depth 

sounder and single beam echosounder) 

to determine water depths and general 

bottom topography (currently estimated 

to range from approximately 16 ft (5 m) 

to 131 ft (40 m) in depth); 

• Seafloor imaging (side scan sonar 

survey) for seabed sediment 

classification purposes, to identify 

natural and man-made acoustic targets 

resting on the bottom as well as any 

anomalous features; and 

• Magnetic intensity measurements 

(gradiometer) for detecting local 

variations in regional magnetic field 

from geological strata and potential 

ferrous objects on and below the bottom. 

These site assessment surveys may 

utilize acoustic equipment such as 

multibeam echosounders, side scan 

sonars, shallow penetration sub-bottom 

profilers (SBPs) (e.g., CHIRP nonparametric SBP), medium penetration 

sub-bottom profilers (e.g., sparkers), and 

ultra-short baseline positioning 

equipment, some of which are expected 

to result in the take of marine mammals. 

Surveys would occur annually, with 

durations dependent on the activities 

occurring in that year (i.e., construction 

years versus operational years). Use of 

gradiometers and grab sampling 

techniques do not have the potential to 

result in harassment of marine 

mammals (e.g., 85 FR 7926, February 12, 

2020) and will not be discussed further. 

Of the HRG equipment proposed for 

use, the following sources have the 

potential to result in take of marine 

mammals: 

• Shallow penetration SBPs to map 

the near-surface stratigraphy (top 0 to 5 

m (0 to 16 ft) of sediment below seabed). 

A CHIRP system emits sonar pulses that 

increase in frequency over time. The 

pulse length frequency range can be 

adjusted to meet project variables. These 

are typically mounted on the hull of the 

vessel or from a side pole. 

• Medium penetration SBPs 

(sparkers) to map deeper subsurface 

stratigraphy as needed. A sparker 

creates acoustic pulses from 50 Hz to 4 

kHz omni-directionally from the source 

that can penetrate several hundred 

meters into the seafloor. These are 

typically towed behind the vessel with 

adjacent hydrophone arrays to receive 

the return signals. 

Table 2 identifies all the 

representative HRG survey equipment 

that may be used during construction of 

Atlantic Shores South. 

TABLE 2—SUMMARY OF REPRESENTATIVE SITE ASSESSMENT EQUIPMENT

HRG survey 

equipment 

(sub-bottom profiler) 

Representative equipment 

type 

Operating frequency 

ranges 

(kHz) 

Operational source 

level ranges 

(dBRMS) 

Beamwidth 

ranges 

(degrees) 

Typical pulse durations 

RMS90

(millisecond) 

Pulse repetition rate 

(Hz) 

Sparker .................... Applied Acoustics DuraSpark 240 *.0.01 to 1.9 a ............ 203 a ........................ 180 ............. 3.4 a ................................... 2. 

Geo Marine Geo-Source * 0.2 to 5 ................... 195 b ........................ 180 ............. 7.2 b ................................... 0.41. 

Compressed High-Intensity Radiated 

Pulses (CHIRP).

Edgetech 2000–DSS * ....... 2 to 16 .................... 195 c ........................ 24 d ............. 6.3 ...................................... 10. 

Edgetech 216 * .................. 2 to 16 .................... 179 e ........................ 17, 20, or 

24.

10 ....................................... 10. 


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TABLE 2—SUMMARY OF REPRESENTATIVE SITE ASSESSMENT EQUIPMENT—Continued 

HRG survey 

equipment 

(sub-bottom profiler) 

Representative equipment 

type 

Operating frequency 

ranges 

(kHz) 

Operational source 

level ranges 

(dBRMS) 

Beamwidth 

ranges 

(degrees) 

Typical pulse durations 

RMS90

(millisecond) 

Pulse repetition rate 

(Hz) 

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-bottom 

ImagerTM *.

4 to 12.5 d ............... 190 d g ...................... 120 d ........... 4.5 ...................................... 44. 

INNOMAR ................ INNOMAR SES–2000 Medium-100 Parametric h.

85 to 115 d .............. 241 .......................... 2 d ............... 2 ......................................... 40. 

INNOMAR deep-36 Parametric h.

30 to 42 .................. 245 .......................... 1.5 .............. 0.15 to 5 ............................ 40. 

Gradiometer ............. Geometrics G–882 Marine 

Magnetometer Transverse Gradiometer Array.

n/a .......................... n/a ........................... n/a .............. n/a ...................................... n/a. 

Side-scan Sonar ...... EdgeTech 4200 ................. 100 or 400 .............. 201 at 100 kHz; 205 

at 400 kHz.

0.5° × 50°– 

0.26° × 

50°.

1.1 to 7.2 at 100 kHz; 1.1 

to 1.3 at 400 kHz.

5 to 11 or 5 to 20 

dependent on 

pulse duration. 

Edgetech 4205 Tri-Freq .... 300, 600, or 900 ..... 220 at 300 kHz; 

2019 at 600 kHz; 

221 at 900 kHz.

0.5° × 50°– 

0.26° × 

50°.

1.0 to 3.0 at 300 kHz; 0.5 

to 5.0 at 600 kHz; 0.4– 

2.8 at 900 kHz.

5 to 11 or 10 to 25 

dependent on 

pulse duration. 

Multibeam 

Echosounder.

Dual Head Kongsberg 

EM2040.

200 to 400 .............. 204.5 ....................... 0.4 to 1.5 .... 0.014 to 12 ........................ 50. 

Norbit iWMBS .................... 200 to 700 .............. 220 .......................... 0.5 to 1.9 .... 0.5 ...................................... Up to 60. 

Note: RMS stands for root mean square, SPL stands for sound pressure level; * = Sources expected to cause take of marine mammals and that were carried forward into the take estimation analysis. aThe 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. eValues from Crocker and Fratantonio (2016) for 100% power and comparable bandwidth. 

fFor a frequency of 4 kHz. 

gParametric 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. hThe specification sheet indicates a peak source level of 247 dB re 1 μPa m (based on personal communications with Atlantic Shores to Jens Wunderlich, 

Innomar, 7–18–2019). The average difference between the peak SPL source levels for sub-bottom profilers measured by Crocker and Fratantonio (2016) was 6 dB. 

Atlantic Shores therefore estimates the SPL source level is 241 dB re 1 μPa m. 

While the Applied Acoustics DuraSpark 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 km2

(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 SEAWATCHTM

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 


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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 

SEAWATCHTM 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 (mi2)), 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. 


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Atlantic Shores would conduct prelay surveys along the final planned 

cable alignments prior to cable 

installation. The purpose of these 

surveys would be to confirm seabed 

morphology and bathymetry and to 

detect any objects that may impact the 

future infrastructure. Multi-beam 

echosounders would be used to survey 

a 20-m (65.6-ft) wide corridor centered 

on the cable alignments to examine the 

total width of the seabed area to be 

disturbed by cable installation activities 

(Atlantic Shores, 2021). 

Atlantic Shores would also deposit 

rock around each foundation as scour 

protection. Installation of the rock 

would be conducted from a fallpipe 

vessel using a pipe that extends to just 

above the seafloor to deposit rock 

contained in the vessel’s hopper in a 

controlled manner. Scour protection 

placement would occur prior to and/or 

after foundation installation. 

NMFS does not expect scour 

protection placement or site preparation 

work, including boulder removal, sand 

leveling (i.e., dredging) pre-lay grapnel 

runs, and pre-lay surveys, to generate 

noise levels that would cause take of 

marine mammals. Dredging, bedform 

leveling, and boulder clearance is 

expected to be extremely localized at 

any given time, and NMFS expects that 

any marine mammals would not be 

exposed at levels or durations likely to 

disrupt behavioral patterns (i.e., 

migrating, foraging, calving, etc.). 

Therefore, the potential for take of 

marine mammals to result from these 

activities is so low as to be discountable. 

Atlantic Shores did not request and 

NMFS is not proposing to authorize any 

takes associated with seabed 

preparation activities; therefore, they are 

not analyzed further in this document. 

Vessel Operation 

During construction of the project, 

Atlantic Shores estimates that 

approximately 550 to 2,050 vessel round 

trips to the Lease Area will occur 

annually during the projects’ operations, 

which is an average of two to six vessel 

trips per day in support of both Project 

1 and 2 (COP Volume 1 section 5.6). 

Atlantic Shores expects up to 51 vessels 

to be used during construction, though 

a maximum of 16 vessels are expected 

to operate at one time for a given 

construction activity. Construction 

vessels would make an estimated 1,745 

trips to the Project Area, including trips 

from the future New Jersey Wind Port, 

Paulsboro Marine Terminal, and 

Repauno Port and Rail Terminal in New 

Jersey; Portsmouth Marine Terminal in 

Virginia; and the Port of Corpus Christi 

in Texas. Atlantic Shores generally 

expects 5 to 16 maintenance vessels to 

operate at a given time, though up to 22 

vessels may be required in some repair 

scenarios. Maintenance vessels would 

make an estimated 1,861 trips to the 

Project Area, the majority of which 

would originate from the O&M facility 

in Atlantic City, with a smaller number 

originating from the New Jersey Wind 

Port (DEIS Section 3.6.6). 

Atlantic Shores plans that their vessel 

usage will be divided into different 

campaigns, including: foundation 

installation, scour protection 

installation, OSS installation, WTG 

installation, inter-array cable 

installation, inter-link cable installation 

(if needed), and export cable 

installation. When performing the 

specific construction task, the vessels 

would either anchor, jack-up, or 

maintain their position using dynamic 

positioning systems, where a 

continually adjusting propulsion system 

keeps the vessel in a single location. 

Many of these vessels will remain in 

the Wind Farm Area or ECC for days or 

weeks at a time, potentially making only 

infrequent trips to port for bunkering 

and provisioning, as needed. The actual 

number of vessels involved in the 

project at one time is highly dependent 

on the project’s final schedule, the final 

design of the project’s components, and 

the logistics needed to ensure 

compliance with the Jones Act, a 

Federal law that regulates maritime 

commerce in the United States. Table 3 

below shows the number of vessels and 

the number of vessel trips anticipated 

during construction activities related to 

Atlantic Shores South. 

TABLE 3—TYPE AND NUMBER OF VESSELS AND NUMBER OF VESSEL TRIPS ANTICIPATED DURING CONSTRUCTION

ACTIVITIES OVER THE EFFECTIVE PERIOD OF THE REQUESTED RULEMAKING

Vessel role Vessel type Number of 

vessels 

Approximated 

operational speed 

(kn) 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 


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TABLE 3—TYPE AND NUMBER OF VESSELS AND NUMBER OF VESSEL TRIPS ANTICIPATED DURING CONSTRUCTION

ACTIVITIES OVER THE EFFECTIVE PERIOD OF THE REQUESTED RULEMAKING—Continued 

Vessel role Vessel type Number of 

vessels 

Approximated 

operational speed 

(kn) a

Cofferdam installation and removal 

Cofferdam installation and removal ........................ Spread-moored barge ............................................ 1 10 

DP barge ................................................................ 1 10 

aAll 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. Projectrelated vessels would be required to 

adhere to several mitigation measures 

designed to avoid vessel strikes; these 

measures are described further below 

(see the Proposed Mitigation section). 

Vessel strikes are neither anticipated 

nor authorized. Atlantic Shores did not 

request, and NMFS does not propose to 

authorize, take associated with vessel 

activity. However, NMFS acknowledges 

the aggregate impacts of Atlantic Shores 

South’s vessel operations on the 

acoustic habitat of marine mammals and 

has considered it in the analysis and 

preliminary determinations contained 

herein. 

Helicopter Usage 

Atlantic Shores may supplement 

vessel-based transport with helicopters 

to transfer crew to and from the shore 

and the Lease Area. Crew transport via 

helicopter may be utilized during 

offshore construction, commissioning, 

and testing phases as well as during 

maintenance of the WTGs (Atlantic 

Shores, 2021). Helicopters could be 

used when rapid-response operations 

and maintenance (O&M) activities are 

needed or when poor weather limits the 

use of crew transport vessels. 

Helicopters would be based within a 

reasonable distance of the project at a 

general aviation airport (COP Volume 1 

section 5.6). The most intense helicopter 

activity would occur during 

construction phases and mostly likely 

during shift changes. Atlantic Shores 

does not currently anticipate installing 

helicopter pads on the OSSs, though 

this feature may be added depending on 

the O&M strategy employed. If a 

helicopter pad is installed, it would be 

designed to support a U.S. Coast Guard 

helicopter, including appropriate 

lighting and marking as required (COP 

Volume 1 section 5.5; DEIS section 2). 

In addition, fixed wing aircraft may be 

used to support environmental 

monitoring and mitigation efforts 

(Atlantic Shores, 2021). Aircraft usage 

would align with the best practices from 

regulators when determining routes and 

altitudes for travel. Helicopters and 

fixed wing aircraft produce sounds that 

can be audible to marine mammals; 

however, most sound energy from 

aircraft reflects off the air-water 

interface as only sound radiated 

downward within a 26-degree cone 

penetrates below the surface water 

(Urick, 1972). 

Due to the intermittent nature and the 

small area potentially ensonified by this 

sound source for a very limited 

duration, Atlantic Shores did not 

request, and NMFS is not proposing to 

authorize, take of marine mammals 

incidental to helicopter and fixed wing 

aircraft flights; therefore, these activities 

will not be discussed further in this 

proposed action. 

Fisheries and Benthic Monitoring 

Fisheries and benthic monitoring 

surveys have been designed in 

accordance with recommendations set 

forth by the Responsible Offshore 

Science Alliance (ROSA) Offshore Wind 

Project Monitoring Framework and 

Guidelines (https://

www.rosascience.org/offshore-windand-fisheries-resources/; ROSA, 2021). 

The purpose of the surveys are to 

document environmental conditions 

relevant to fisheries in the Project Area 

throughout the construction and 

operation phases of the proposed 

project. Atlantic Shores would conduct 

demersal otter trawl surveys, ventless 

trap surveys, and hydraulic clam dredge 

surveys to enhance existing data for 

specific benthic and pelagic species of 

concern. The demersal otter trawl 

surveys would follow methodology 

based upon the Northeast Monitoring 

and Assessment Program (NEAMAP) 

annual trawl surveys, throughout all 

four seasons to monitor fish and megainvertebrate 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 


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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 (m2; 24.2 feet square (ft2)) area. 

A Netmind digital trawl net monitoring 

system would be incorporated with 

sensors measuring wing spread, vertical 

net opening, bottom contact, and a catch 

sensor in the cod end to trip at 

approximately 5,000 pounds (lbs; 2,268 

kilograms (kg)). Prior to sampling, 

salinity, temperature, and dissolved 

oxygen would be measured during a 

cast to the seafloor with an appropriate 

oceanographic probe. Sampling would 

only occur between 30 minutes after 

sunrise and 30 minutes before sunset. 

Oceanographic conditions would be 

recorded at each station before 

beginning trawl. The tow cable would 

be deployed to a length of at least 3 

times the water column depth. The tow 

duration would be 20 minutes at a 

speed of approximately 3 kn (3.45 mph), 

with the towpath being regularly logged. 

Once onboard, the catch would be 

dumped and sorted by species into 

buckets and baskets unless the tow is 

deemed a failure. Demersal otter trawl 

surveys would be conducted during 

preconstruction and construction years 

as well as for 3 years post construction. 

The ventless trap surveys, or fish pot 

surveys, would follow survey design 

adapted from a Rutgers University and 

New Jersey Department of 

Environmental Protection (NJDEP) trap 

survey of artificial reefs offshore of New 

Jersey (Jensen et al., 2018). The purpose 

of the trap surveys would be to monitor 

the presence and size of dominant 

structure-associated species. Unbaited 

ventless traps (110.5 cm x 56 cm x 38 

cm (43.5 in x 22 in x 15 in)) would be 

deployed in a trawl attached to a 

groundline. Each trap would be affixed 

with a temperature logger and a camera 

facing outward above the entrance. The 

groundline on each trap would serve to 

prevent gear loss and protected species 

entanglement. Trap surveys would be 

conducted during all four seasons 

during preconstruction and construction 

phases as well as for 3 years post 

construction. Once traps are set, they 

would soak for two periods of 5–7 days, 

depending upon weather. All gear 

would be removed from the water in 

between surveys. 

Hydraulic clam dredge surveys would 

use a dredge similar to the NJDEP surf 

clam survey gear and follow a NMFS 

Northeast Fisheries Science Center 

(NEFSC) clam dredge survey 

methodology (Atlantic Shores, 2023). 

The purpose of the clam dredge survey 

would be to detect significant changes 

in the presence and size of ocean 

quahogs and Atlantic surf clams from 

cumulative project effects. Dredge 

surveys would take place during the 

summer during preconstruction and 

construction phases as well as for 3 

years post construction. More 

information about Atlantic Shores’ 

fishery and benthic monitoring surveys 

can be found in the Atlantic Shores 

Fisheries Monitoring Plan, Appendix II– 

K found on our website https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-atlanticshores-offshore-wind-llc-constructionatlantic-shores. 

In addition to the above mentioned 

fishery monitoring surveys, Atlantic 

Shores would also partner with Rutgers 

University to conduct a multi-phase 

modeling study to gain a better 

understanding of how Mid-Atlantic 

wind farms and climate change may 

influence the distribution and 

abundance of surf clams (Atlantic 

Shores, 2023). This study builds off an 

existing simulation of the surf clam 

fishery in the Mid-Atlantic Bight. The 

simulation, Spatially-explicit Ecological 

agent-based Fisheries and Economic 

Simulator (SEFES), currently models the 

interactions between surf stock biology, 

fishery captain and fleet behavior, 

Federal management decisions, fishery 

economics, port structure, and wind 

farm development. Atlantic Shores will 

partner with Rutgers University to 

expand the capabilities of SEFES to 

assess fisheries and wind development 

activities from present day to 30 years 

into the future and run scenarios that 

factor in the presence of the proposed 

project. Atlantic Shores would also 

partner with Stockton University to 

study the ecological succession of newly 

submerged artificial reefs off New Jersey 

through the use of acoustic and video 

observation. Surveys would be 

conducted using side scan sonar, 

multibeam echosounder, and direct 

observation via a remotely operated 

vehicle (ROV) to collect data for 3–D 

mapping of artificial reef structures. 

Maps would provide base layers to 

overlay biological assessments to better 

understand ecological succession of 

newly submerged reef structures. 

Atlantic Shores does not anticipate, and 

NMFS is not proposing to authorize, 

take of marine mammals incidental to 

these activities and they are not 

discussed further in this document. 

In general, trap and trawl surveys 

have the potential to result in the take 

of marine mammals given there is a risk 

of entanglement. However, Atlantic 

Shores would implement mitigation and 

monitoring measures to avoid taking 

marine mammals, including, but not 

limited to, use of bycatch reduction gear 

such as ropeless gear for trap surveys, 

monitoring for marine mammals before 

and during trawling activities, not 

deploying or pulling trawl gear in 

certain circumstances, limiting tow 

times, fully repairing nets, and reporting 

protected species interactions to the 

NMFS Greater Atlantic Region Field 

Office (GARFO). All trap and trawl 

surveys would also comply with take 

reduction team regulations for Atlantic 

large whales, harbor porpoises, and 

bottlenose dolphins, and Atlantic Trawl 

Take Reduction Strategy measures to 

reduce the potential for interactions 

between small cetaceans and trawl 

(bottom and mid-water) gear (Atlantic 

Shores, 2023). A full description of 

mitigation measures can be found in the 

Proposed Mitigation section. 

With the implementation of these 

measures, Atlantic Shores does not 

anticipate, and NMFS is not proposing 

to authorize, take of marine mammals 

incidental to research trap and trawl 

surveys. Given no take is anticipated 

from these surveys, impacts from fishery 

surveys will not be discussed further in 

this document (with the exception of 

the description of measures in the 

Proposed Mitigation section). 

Description of Marine Mammals in the 

Geographic Area of Specified Activities 

Thirty-eight marine mammal species 

under NMFS’ jurisdiction have 

geographic ranges within the western 

North Atlantic OCS (Hayes et al., 2022). 

However, for reasons described below, 

Atlantic Shores has requested, and 

NMFS proposes to authorize, take of 

only 16 species (comprising 17 stocks) 

of marine mammals. Sections 3 and 4 of 

Atlantic Shores’ ITA application 

summarize available information 

regarding status and trends, distribution 

and habitat preferences, and behavior 

and life history of the potentially 

affected species (JASCO, 2022). NMFS 

fully considered all of this information, 


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and we refer the reader to these 

descriptions in the application instead 

of reprinting the information. 

Additional information regarding 

population trends and threats may be 

found in NMFS’s Stock Assessment 

Reports (SARs), https://www.fisheries.

noaa.gov/national/marine-mammalprotection/marine-mammal-stockassessments), and more general 

information about these species (e.g., 

physical and behavioral descriptions) 

may be found on NMFS’s website 

(https://www.fisheries.noaa.gov/findspecies). 

Of the 38 marine mammal species 

and/or stocks with geographic ranges 

that include the Project Area (i.e., found 

in the coastal and offshore waters of 

New Jersey), 22 are not expected to be 

present or are considered rare or 

unexpected in the Project Area based on 

sighting and distribution data (see Table 

11 in Atlantic Shores’ ITA application); 

they are, therefore, not discussed further 

beyond the explanation provided here. 

Specifically, the following cetacean 

species are known to occur off of New 

Jersey but are not expected to occur in 

the Project Area due to the location of 

preferred habitat outside the Lease Area 

and ECCs, based on the best available 

information: Blue whale (Balaenoptera 

musculus), Cuvier’s beaked whale 

(Ziphius cavirostris), four species of 

Mesoplodont beaked whales 

(Mesoplodon densitostris, M. europaeus, 

M. mirus, and M. bidens), clymene 

dolphin (Stenella clymene), false killer 

whale (Pseudorca crassidens), Fraser’s 

dolphin (Lagenodelphis hosei), killer 

whale (Orcinus orca), melon-headed 

whale (Peponocephala electra), 

pantropical spotted dolphin (Stenella 

attenuata), pygmy killer whale (Feresa 

attenuata), rough-toothed dolphin 

(Steno bredanensis), spinner dolphin 

(Stenella longirostris), striped dolphin 

(Stenella coeruleoalba), white-beaked 

dolphin (Lagenorhynchus albirostris), 

Northern bottlenose whale (Hyperoodon 

ampullatus), dwarf sperm whale (Kogia 

sima), and the pygmy sperm whale 

(Kogia breviceps). Two species of 

phocid pinnipeds are also uncommon in 

the Project Area, including: harp seals 

(Pagophilus groenlandica) and hooded 

seals (Cystophora cristata). 

In addition, the Florida manatees 

(Trichechus manatus; a sub-species of 

the West Indian manatee) has been 

previously documented as an occasional 

visitor to the Mid-Atlantic region during 

summer months (Morgan et al., 2002; 

Cummings et al., 2014). However, as 

manatees are managed solely under the 

jurisdiction of the U.S. Fish and 

Wildlife Service (USFWS), they are not 

considered or discussed further in this 

document. 

Table 4 lists all species and stocks for 

which take is expected and proposed to 

be authorized for this action and 

summarizes information related to the 

population or stock, including 

regulatory status under the MMPA and 

Endangered Species Act (ESA) and 

potential biological removal (PBR), 

where known. PBR is defined as ‘‘the 

maximum number of animals, not 

including natural mortalities, that may 

be removed from a marine mammal 

stock while allowing that stock to reach 

or maintain its optimum sustainable 

population’’ (16 U.S.C. 1362(20)). While 

no mortality is anticipated or proposed 

to be authorized, PBR and annual 

serious injury and mortality from 

anthropogenic sources are included here 

as gross indicators of the status of the 

species and other threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’ stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All managed 

stocks in this region are assessed in 

NMFS’s U.S. Atlantic and Gulf of 

Mexico SARs. All values presented in 

Table 4 are the most recent available 

data at the time of publication, which 

can be found in NMFS’ final2022 SARs 

(Hayes et al., 2023) available online at 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

draft-marine-mammal-stockassessment-reports. 

TABLE 4—MARINE MAMMAL SPECIES 5 THAT MAY OCCUR IN THE PROJECT AREA AND BE TAKEN, BY HARASSMENT

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/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; 2016) ...... 11 1.8 

Humpback whale .............. Megaptera novaeangliae ........ Gulf of Maine .......................... -, -, N 1,396 (0; 1,380; 2016) ........... 22 12.15 

Minke whale ..................... Balaenoptera acutorostrata .... Canadian Eastern Coastal ..... -, -, N 21,968 (0.31; 17,002; 2016) .. 170 10.6 

Sei whale ......................... Balaenoptera borealis ............ Nova Scotia ............................ E, D, Y 6,292 (1.02; 3,098; 2016) ...... 6.2 0.8 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae: 

Sperm whale .................... Physeter macrocephalus ........ North Atlantic .......................... E, D, Y 4,349 (0.28; 3,451; 2016) ...... 3.9 0 

Family Delphinidae: 

Atlantic spotted dolphin .... Stenella frontalis ..................... Western North Atlantic ........... -, -, N 39,921 (0.27; 32,032; 2016) .. 320 0 

Atlantic white-sided dolphin.Lagenorhynchus acutus ......... Western North Atlantic ........... -, -, N 93,233 (0.71; 54,433; 2016) .. 544 27 

Bottlenose dolphin ........... Tursiops truncatus .................. Western North Atlantic—Offshore.-, -, N 62,851 (0.23; 51,914; 2016) .. 519 28 

Northern Migratory Coastal .... -, -, Y 6,639 (0.41; 4,759; 2016) ...... 48 12.2–21.5 

Common dolphin .............. Delphinus delphis ................... Western North Atlantic ........... -, -, N 172,897 (0.21; 145,216; 2016) 1,452 390 

Long-finned pilot whale 6 .. Globicephala melas ................ Western North Atlantic ........... -, -, N 39,215 (0.3; 30,627; 2016) .... 306 29 

Short-finned pilot whale 6 Globicephala macrorhynchus Western North Atlantic ........... -, -, N 28,924 (0.24, 23,637, 2016) .. 236 136 

Risso’s dolphin ................. Grampus griseus .................... Western North Atlantic ........... -, -, N 35,215 (0.19; 30,051; 2016) .. 301 34 

Family Phocoenidae (porpoises): 


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TABLE 4—MARINE MAMMAL SPECIES 5 THAT MAY OCCUR IN THE PROJECT AREA AND BE TAKEN, BY HARASSMENT— 

Continued 

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Harbor porpoise ............... Phocoena phocoena .............. Gulf of Maine/Bay of Fundy ... -, -, N 95,543 (0.31; 74,034; 2016) .. 851 164 

Order Carnivora—Superfamily Pinnipedia 

Family Phocidae (earless 

seals): 

Gray seal 4 ........................ Halichoerus grypus ................ Western North Atlantic ........... -, -, N 27,300 (0.22; 22,785; 2016) .. 1,458 4,453 

Harbor seal ....................... Phoca vitulina ......................... Western North Atlantic ........... -, -, N 61,336 (0.08; 57,637; 2018) .. 1,729 339 

1ESA 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: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. 3These 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 

(https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2023)). 6Although both species are described here, the requested take for both short-finned and long-finned pilot whales has been summarized into a single group (pilot 

whales spp.). 

As indicated above, all 16 species and 

17 stocks in Table 4 temporally and 

spatially co-occur with the activity to 

the degree that take is reasonably likely 

to occur. Four of the marine mammal 

species for which take is requested are 

listed as threatened or endangered 

under the ESA, including North Atlantic 

right, fin, sei, and sperm whales. 

In addition to what is included in 

Sections 3 and 4 of Atlantic Shores’ ITA 

application (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-atlanticshores-offshore-wind-llc-constructionatlantic-shores), the SARs (https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments), and 

NMFS’ website (https://

www.fisheries.noaa.gov/speciesdirectory/marine-mammals), we 

provide further detail below informing 

the baseline for select species (e.g., 

information regarding current UMEs 

and known important habitat areas, 

such as Biologically Important Areas 

(BIAs) (Van Parijs, 2015). There are no 

ESA-designated critical habitats for any 

species within the Project Area (https:// 

www.fisheries.noaa.gov/resource/map/ 

national-esa-critical-habitat-mapper). 

Under the MMPA, a UME is defined 

as ‘‘a stranding that is unexpected; 

involves a significant die-off of any 

marine mammal population; and 

demands immediate response’’ (16 

U.S.C. 1421h(6)). As of May 2023, five 

UMEs are active. Four of these UMEs 

are occurring along the U.S. Atlantic 

coast for various marine mammal 

species. Of these, the most relevant to 

the Project Area are the North Atlantic 

right whale, humpback whale, and 

harbor and gray seal UMEs given the 

prevalence of these species in the 

Project Area. More information on 

UMEs, including all active, closed, or 

pending, can be found on NMFS’ 

website at https://

www.fisheries.noaa.gov/national/ 

marine-life-distress/active-and-closedunusual-mortality-events. 

Below, we include information for a 

subset of the species that presently have 

an active or recently closed UME 

occurring along the Atlantic coast or for 

which there is information available 

related to areas of biological 

significance. For the majority of species 

potentially present in the specific 

geographic region, NMFS has 

designated only a single generic stock 

(e.g., ‘‘western North Atlantic’’) for 

management purposes. This includes 

the ‘‘Canadian east coast’’ stock of 

minke whales, which includes all minke 

whales found in U.S. waters and is also 

a generic stock for management 

purposes. For humpback and sei 

whales, NMFS defines stocks on the 

basis of feeding locations (i.e., Gulf of 

Maine and Nova Scotia, respectively). 

However, references to humpback 

whales and sei whales in this document 

refer to any individuals of the species 

that are found in the project area. Any 

areas of known biological importance 

(including the BIAs identified in 

LaBrecque et al., 2015) that overlap 

spatially (or are adjacent) with the 

project area are addressed in the species 

sections below. 

North Atlantic Right Whale 

The North Atlantic right whale has 

been listed as Endangered since the 

ESA’s enactment in 1973. The species 

was recently uplisted from Endangered 

to Critically Endangered on the 

International Union for Conservation of 

Nature (IUCN) Red List of Threatened 

Species (Cooke, 2020). The uplisting 

was due to a decrease in population size 

(Pace et al., 2017), an increase in vessel 

strikes and entanglements in fixed 

fishing gear (Daoust et al., 2017; Davis 

& Brillant, 2019; Knowlton et al., 2012; 

Knowlton et al., 2022; Moore et al., 

2021; Sharp et al., 2019), and a decrease 

in birth rate (Pettis et al., 2022; Reed et 

al., 2022). The Western Atlantic stock is 

considered depleted under the MMPA 

(Hayes et al., 2022). There is a recovery 

plan (NMFS, 2005) for the North 

Atlantic right whale, and NMFS 

completed 5-year reviews of the species 

in 2012, 2017, and 2022 which 

concluded no change to the listing 

status is warranted. 

Designated by NMFS as a Species in 

the Spotlight, the North Atlantic right 

whale is considered among the species 

with the greatest risk of extinction in the 

near future (https://

www.fisheries.noaa.gov/topic/ 

endangered-species-conservation/ 

species-in-the-spotlight). 

The North Atlantic right whale 

population had only a 2.8 percent 

recovery rate between 1990 and 2011 

and an overall abundance decline of 

23.5 percent from 2011–2019 (Hayes et 

al., 2022). Since 2010, the North 

Atlantic right whale population has 

been in decline (Pace et al., 2017; Pace 


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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-todate 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; MeyerGutbrod 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 (Nbest) 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 


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serious injury, as described above, 

which had not been previously included 

in the SAR. The population estimate is 

slightly lower than the North Atlantic 

Right Whale Consortium’s 2022 Report 

Card, which identifies the population 

estimate as 340 individuals (Pettis et al., 

2023). Elevated North Atlantic right 

whale mortalities have occurred since 

June 7, 2017, along the U.S. and 

Canadian coast, with the leading 

category for the cause of death for this 

UME determined to be ‘‘human 

interaction,’’ specifically from 

entanglements or vessel strikes. Since 

publication of the proposed rule, the 

number of animals considered part of 

the UME has increased. As of August 

16, 2023, there have been 36 confirmed 

mortalities (dead, stranded, or floaters), 

0 pending mortalities, and 34 seriously 

injured free-swimming whales for a total 

of 70 whales. As of October 14, 2022, 

the UME also considers animals (n=45) 

with sub-lethal injury or illness (called 

‘‘morbidity’’) bringing the total number 

of whales in the UME to 115. More 

information about the North Atlantic 

right whale UME is available online at: 

https://www.fisheries.noaa.gov/ 

national/marine-life-distress/2017-2023- 

north-atlantic-right-whale-unusualmortality-event. 

Humpback Whale 

Humpback whales were listed as 

endangered under the Endangered 

Species Conservation Act (ESCA) in 

June 1970. In 1973, the ESA replaced 

the ESCA, and humpbacks continued to 

be listed as endangered. On September 

8, 2016, NMFS divided the species into 

14 distinct population segments (DPS), 

removed the species-level listing, and, 

in its place, listed four DPSs as 

endangered and one DPS as threatened 

(81 FR 62259, September 8, 2016). The 

remaining nine DPSs were not listed. 

The West Indies DPS, which is not 

listed under the ESA, is the only DPS of 

humpback whales that is expected to 

occur in the project area. Bettridge et al. 

(2015) estimated the size of the West 

Indies DPS population at 12,312 (95 

percent confidence interval (CI) 8,688– 

15,954) whales in 2004–05, which is 

consistent with previous population 

estimates of approximately 10,000– 

11,000 whales (Stevick et al., 2003; 

Smith et al., 1999) and the increasing 

trend for the West Indies DPS (Bettridge 

et al., 2015). 

Humpback whales are migratory off 

coastal New Jersey, moving seasonally 

between northern feeding grounds in 

New England and southern calving 

grounds in the West Indies (Hayes et al., 

2022). Although sightings of humpback 

whales used to occur infrequently off 

New Jersey, they are now common along 

the Mid-Atlantic States during the 

winter when most humpback whales are 

at the breeding grounds (Swingle et al., 

1993; Barco et al., 2002; Brown et al., 

2022). This shift is also supported by 

passive acoustic monitoring data (e.g., 

Davis et al., 2020). Recently, Brown et 

al. (2022) investigated site fidelity, 

population composition and 

demographics of individual whales in 

the New York Bight apex (which 

includes New Jersey waters and found 

that although mean occurrence was low 

(2.5 days), mean occupancy was 37.6 

days, and 31.3 percent of whales 

returned from 1 year to the next. The 

majority of whales were seen during 

summer (July to September, 62.5 

percent), followed by autumn (October 

to December, 23.5 percent) and spring 

(April to June, 13.9 percent). When data 

were available to evaluate age, most 

individuals were either confirmed or 

suspected juveniles, including 4 whales 

known to be 2 to 4 years old based on 

known birth year, and 13 whales with 

sighting histories of 2 years or less on 

primary feeding grounds. Three 

individuals were considered adults 

based on North Atlantic sighting 

records. The young age structure in the 

nearshore waters of the New York Bight 

apex is consistent with other literature 

(Stepanuk et al., 2021; Swingle et al., 

1993; Barco et al., 2002). It remains to 

be determined whether humpback 

whales in the New York Bight apex 

represent a northern expansion of 

individuals that had wintered off 

Virginia, a southern expansion of 

individuals from the adjacent Gulf of 

Maine, or is the result of another 

phenomenon. 

In addition to a migratory pathway, 

the mid-Atlantic region also represents 

a supplemental winter feeding ground 

for juveniles and mature whales (Barco 

et al., 2002). Records of humpback 

whales off the U.S. mid-Atlantic coast 

(New Jersey south to North Carolina) 

suggest that these waters are used as a 

winter feeding ground from December 

through March (Mallette et al., 2017; 

Barco et al., 2002; LaBrecque et al., 

2015) and represent important habitat 

for juveniles, in particular (Swingle et 

al., 1993; Wiley et al., 1995). Humpback 

whales have been observed feeding off 

the coast of New Jersey (Swingle et al., 

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

al., 2015). A sighting of a cow-calf pair 

seen north of the study area boundary 

supports the theory that the nearshore 

waters off of New Jersey may provide 

important feeding and nursery habitats 

for humpback whales (Geo-Marine, 

2010). In addition, recent research by 

King et al. (2021) has demonstrated a 

higher occurrence and foraging use of 

the New York Bight area by humpback 

whales than previously known. 

According to Roberts et al. (2023) 

density models, the highest density of 

humpback whales in the vicinity of the 

proposed Project Area is expected to 

occur during the month of April (0.25– 

0.40 individuals/100 km2). 

The Project Area does not overlap any 

ESA-designated critical habitat, BIAs, or 

other important areas for the humpback 

whales. A humpback whale feeding BIA 

extends throughout the Gulf of Maine, 

Stellwagen Bank, and Great South 

Channel from May through December, 

annually (LaBrecque et al., 2015). 

However, this BIA is located further 

north of, and thus does not overlap, the 

Project Area. 

Since January 2016, elevated 

humpback whale mortalities have 

occurred along the Atlantic coast from 

Maine to Florida. This event was 

declared a UME in April 2017. Partial or 

full necropsy examinations have been 

conducted on approximately half of the 

204 known cases (as of August 16, 

2023). Of the whales examined 

(approximately 90), about 40 percent 

had evidence of human interaction, 

either vessel strike or entanglement 

(refer to https://www.fisheries.noaa.gov/ 

national/marine-life-distress/2016-2023- 

humpback-whale-unusual-mortalityevent-along-atlantic-coast). While a 

portion of the whales have shown 

evidence of pre-mortem vessel strike, 

this finding is not consistent across all 

whales examined and more research is 

needed. NOAA is consulting with 

researchers that are conducting studies 

on the humpback whale populations, 

and these efforts may provide 

information on changes in whale 

distribution and habitat use that could 

provide additional insight into how 

these vessel interactions occurred. More 

information is available at: https://

www.fisheries.noaa.gov/national/ 

marine-life-distress/2016-2023- 

humpback-whale-unusual-mortalityevent-along-atlantic-coast. 

Since December 1, 2022, the number 

of humpback strandings along the midAtlantic 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 


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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 km2). 

Construction is planned for May 

through December. 

There are two minke whale feeding 

BIAs identified in the southern and 

southwestern section of the Gulf of 

Maine, including Georges Bank, the 

Great South Channel, Cape Cod Bay and 

Massachusetts Bay, Stellwagen Bank, 

Cape Anne, and Jeffreys Ledge from 

March through November, annually 

(LeBrecque et al., 2015). However, these 

BIAs do not overlap the Project Area as 

they are located approximately 378.7 

km (235.3 mi) away. No mating or 

calving grounds have been identified 

along the U.S. Atlantic coast (LaBrecque 

et al., 2015). 

Since January 2017, a UME has been 

declared based on elevated minke whale 

mortalities detected along the Atlantic 

coast from Maine through South 

Carolina. As of August 16, 2023, a total 

of 156 minke whales have stranded 

during this UME. Full or partial 

necropsy examinations were conducted 

on more than 60 percent of the whales. 

Preliminary findings have shown 

evidence of human interactions or 

infectious disease in several of the 

whales, but these findings are not 

consistent across all of the whales 

examined, so more research is needed. 

This UME has been declared non-active 

and is pending closure. More 

information is available at: https://

www.fisheries.noaa.gov/national/ 

marine-life-distress/2017-2023-minkewhale-unusual-mortality-event-alongatlantic-coast. 

Phocid Seals 

Since June 2022, elevated numbers of 

harbor seal and gray seal mortalities 

have occurred across the southern and 

central coast of Maine. This event was 

declared a UME in July 2022. 

Preliminary testing of samples has 

found some harbor and gray seals are 

positive for highly pathogenic avian 

influenza. While the UME is not 

occurring in the Project Area, the 

populations affected by the UME are the 

same as those potentially affected by the 

Project. However, due to the two states 

being approximately 352 km (219 mi) 

apart, by water (from the most northern 

point of New Jersey to the most 

southern point of Maine), NMFS does 

not expect that this UME would be 

further conflated by the activities 

related to the Project. Information on 

this UME is available online at: https:// 

www.fisheries.noaa.gov/2022-2023- 

pinniped-unusual-mortality-eventalong-maine-coast. 

The above event was preceded by a 

different UME, occurring from 2018– 

2020 (closure of the 2018–2020 UME is 

pending). Beginning in July 2018, 

elevated numbers of harbor seal and 

gray seal mortalities occurred across 

Maine, New Hampshire, and 

Massachusetts. Additionally, stranded 

seals have shown clinical signs as far 

south as Virginia, although not in 

elevated numbers, therefore the UME 

investigation encompassed all seal 

strandings from Maine to Virginia. A 

total of 3,152 reported strandings (of all 

species) occurred from July 1, 2018, 

through March 13, 2020. Full or partial 

necropsy examinations have been 

conducted on some of the seals and 

samples have been collected for testing. 

Based on tests conducted thus far, the 

main pathogen found in the seals is 

phocine distemper virus. NMFS is 

performing additional testing to identify 

any other factors that may be involved 

in this UME. Information on this UME 

is available online at https://

www.fisheries.noaa.gov/new-englandmid-atlantic/marine-life-distress/2018- 

2020-pinniped-unusual-mortality-eventalong. 

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 lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in Table 5. 

TABLE 5—MARINE MAMMAL HEARING GROUPS

[NMFS, 2018] 

Hearing group Generalized hearing 

range * 

Low-frequency (LF) cetaceans (baleen whales) ..................................................................................................................... 7 Hz to 35 kHz. 

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


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TABLE 5—MARINE MAMMAL HEARING GROUPS—Continued 

[NMFS, 2018] 

Hearing group Generalized hearing 

range * 

High-frequency (HF) cetaceans (true porpoises,Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 

australis).

275 Hz to 160 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals) ................................................................................................................... 50 Hz to 86 kHz. 

* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ 

hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, 

with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). 

The pinniped functional hearing 

group was modified from Southall et al. 

(2007) on the basis of data indicating 

that phocid species have consistently 

demonstrated an extended frequency 

range of hearing compared to otariids, 

especially in the higher frequency range 

(Hemila ̈ et al., 2006; Kastelein et al., 

2009; Reichmuth and Holt, 2013). For 

more detail concerning these groups and 

associated frequency ranges, please see 

NMFS (2018) for a review of available 

information. 

NMFS notes that in 2019a, Southall et 

al. recommended new names for 

hearing groups that are widely 

recognized. However, this new hearing 

group classification does not change the 

weighting functions or acoustic 

thresholds (i.e., the weighting functions 

and thresholds in Southall et al. (2019a) 

are identical to NMFS 2018 Revised 

Technical Guidance). When NMFS 

updates our Technical Guidance, we 

will be adopting the updated Southall et 

al. (2019a) hearing group classification. 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

This section includes a summary and 

discussion of the ways that components 

of the specified activity may impact 

marine mammals and their habitat. The 

Estimated Take section later in this 

document includes a quantitative 

analysis of the number of individuals 

that are expected to be taken by this 

activity. The Negligible Impact Analysis 

and Determination section considers the 

content of this section, the Estimated 

Take section, and the Proposed 

Mitigation section, to draw conclusions 

regarding the likely impacts of these 

activities on the reproductive success or 

survivorship of individuals and how 

those impacts on individuals are likely 

to impact marine mammal species or 

stocks. General background information 

on marine mammal hearing was 

provided previously (see the 

Description of Marine Mammals in the 

Area of the Specified Activities section). 

Here, the potential effects of sound on 

marine mammals are discussed. 

Atlantic Shores has requested, and 

NMFS proposes to authorize, the take of 

marine mammals incidental to the 

construction activities associated with 

the Project Area. In their application 

and Application Update Report, 

Atlantic Shores presented their analyses 

of potential impacts to marine mammals 

from the acoustic sources. NMFS both 

carefully reviewed the information 

provided by Atlantic Shores, as well as 

independently reviewed applicable 

scientific research and literature and 

other information to evaluate the 

potential effects of the project’s 

activities on marine mammals. 

The proposed activities would result 

in the construction and placement of up 

to 205 permanent foundations to 

support 200 WTGs, 4 large OSSs, and a 

single Met Tower. There are a variety of 

types and degrees of effects to marine 

mammals, prey species, and habitat that 

could occur as a result of the project. 

Below we provide a brief description of 

the types of sound sources that would 

be generated by the project, the general 

impacts from these types of activities, 

and an analysis of the anticipated 

impacts on marine mammals from the 

project, with consideration of the 

proposed mitigation measures. 

Description of Sound Sources 

This section contains a brief technical 

background on sound, on the 

characteristics of certain sound types, 

and on metrics used in this proposal 

inasmuch as the information is relevant 

to the specified activity and to a 

discussion of the potential effects of the 

specified activity on marine mammals 

found later in this document. For 

general information on sound and its 

interaction with the marine 

environment, please see Au and 

Hastings (2008); Richardson et al. 

(1995); Urick (1983) as well as the 

Discovery of Sound in the Sea (DOSITS) 

website at https://dosits.org/. Sound is a 

vibration that travels as an acoustic 

wave through a medium such as a gas, 

liquid or solid. Sound waves alternately 

compress and decompress the medium 

as the wave travels. These compressions 

and decompressions are detected as 

changes in pressure by aquatic life and 

man-made sound receptors such as 

hydrophones (underwater 

microphones). In water, sound waves 

radiate in a manner similar to ripples on 

the surface of a pond and may be either 

directed in a beam (narrow beam or 

directional sources) or sound beams 

may radiate in all directions 

(omnidirectional sources). 

Sound travels in water more 

efficiently than almost any other form of 

energy, making the use of acoustics 

ideal for the aquatic environment and 

its inhabitants. In seawater, sound 

travels at roughly 1,500 meters per 

second (m/s). In-air, sound waves travel 

much more slowly, at about 340 m/s. 

However, the speed of sound can vary 

by a small amount based on 

characteristics of the transmission 

medium, such as water temperature and 

salinity. The basic components of a 

sound wave are frequency, wavelength, 

velocity, and amplitude. Frequency is 

the number of pressure waves that pass 

by a reference point per unit of time and 

is measured in Hz or cycles per second. 

Wavelength is the distance between two 

peaks or corresponding points of a 

sound wave (length of one cycle). 

Higher frequency sounds have shorter 

wavelengths than lower frequency 

sounds, and typically attenuate 

(decrease) more rapidly, except in 

certain cases in shallower water. 

The intensity (or amplitude) of 

sounds are measured in dB, which are 

a relative unit of measurement that is 

used to express the ratio of one value of 

a power or field to another. Decibels are 

measured on a logarithmic scale, so a 

small change in dB corresponds to large 

changes in sound pressure. For 

example, a 10-dB increase is a 10-fold 

increase in acoustic power. A 20-dB 

increase is then a 100-fold increase in 

power and a 30-dB increase is a 1,000- 

fold increase in power. However, a tenfold 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 (mPa). For 

in-air sound, the reference pressure is 

20 mPa. 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 1mPa. 

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 mPa2-s). SEL is 

a cumulative metric; it can be 

accumulated over a single pulse (for pile 

driving this is often referred to as singlestrike SEL; SELss), or calculated over 

periods containing multiple pulses 

(SELcum). 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 nonimpulsive 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 


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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; Go ̈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 highintensity 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 


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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 1mPa) 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 midfrequency sonar and found that whales 

responded strongly at low received 

levels (89–127 dB re 1mPa) by ceasing 

normal fluking and echolocation, 

swimming rapidly away, and extending 

both dive duration and subsequent nonforaging 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 1mPa) 

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 


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(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; 

Da ̈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; Da ̈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 Su ̈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; Da ̈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 interdive intervals and a sustained straightline 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 (MiksisOlds, 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 


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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, IndoPacific 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 phasein 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) 


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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 (Melco ́n et al., 2012). 

However, Melco ́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 mPa, but deep feeding and nonfeeding 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 deepfeeding 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 


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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 highfrequency 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 highfrequency sound. Human data indicate 

low-frequency sound can mask highfrequency 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 highfrequencies these cetaceans use to 

echolocate, but not at the low-tomoderate 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; Cure ́

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 (Cure ́ et al., 2016; 

Isojunno et al., 2016), long-finned pilot 

whales (Visser et al., 2016), and 

humpback whales (Cure ́ 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 industrial site. Directional 

hearing may significantly reduce the 

masking effects of these sounds by 

improving the effective signal-to-noise 

ratio. 

Masking affects both senders and 

receivers of acoustic signals and, at 

higher levels and longer duration, can 

potentially have long-term chronic 

effects on marine mammals at the 

population level as well as at the 

individual level. Low-frequency 

ambient sound levels have increased by 

as much as 20 dB (more than three times 

in terms of SPL) in the world’s ocean 

from pre-industrial periods, with most 

of the increase from distant commercial 

shipping (Hildebrand, 2009; Cholewiak 

et al., 2018). All anthropogenic sound 

sources, but especially chronic and 

lower-frequency signals (e.g., from 

commercial vessel traffic), contribute to 

elevated ambient sound levels, thus 

intensifying masking. 

In addition to making it more difficult 

for animals to perceive and recognize 

acoustic cues in their environment, 

anthropogenic sound presents separate 

challenges for animals that are 

vocalizing. When they vocalize, animals 

are aware of environmental conditions 

that affect the ‘‘active space’’ (or 

communication space) of their 

vocalizations, which is the maximum 

area within which their vocalizations 

can be detected before it drops to the 

level of ambient noise (Brenowitz, 2004; 

Brumm et al., 2004; Lohr et al., 2003). 

Animals are also aware of 

environmental conditions that affect 

whether listeners can discriminate and 

recognize their vocalizations from other 

sounds, which is more important than 

simply detecting that a vocalization is 

occurring (Brenowitz, 1982; Brumm et 

al., 2004; Dooling, 2004; Marten and 

Marler, 1977; Patricelli and Blickley, 

2006). Most species that vocalize have 

evolved with an ability to make 

adjustments to their vocalizations to 

increase the signal-to-noise ratio, active 

space, and recognizability/ 

distinguishability of their vocalizations 

in the face of temporary changes in 

background noise (Brumm et al., 2004; 

Patricelli and Blickley, 2006). 


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Vocalizing animals can make 

adjustments to vocalization 

characteristics such as the frequency 

structure, amplitude, temporal 

structure, and temporal delivery 

(repetition rate), or ceasing to vocalize. 

Many animals will combine several of 

these strategies to compensate for high 

levels of background noise. 

Anthropogenic sounds that reduce the 

signal-to-noise ratio of animal 

vocalizations, increase the masked 

auditory thresholds of animals listening 

for such vocalizations, or reduce the 

active space of an animal’s vocalizations 

impair communication between 

animals. Most animals that vocalize 

have evolved strategies to compensate 

for the effects of short-term or temporary 

increases in background or ambient 

noise on their songs or calls. Although 

the fitness consequences of these vocal 

adjustments are not directly known in 

all instances, like most other trade-offs 

animals must make, some of these 

strategies likely come at a cost (Patricelli 

and Blickley, 2006; Noren et al., 2017; 

Noren et al., 2020). Shifting songs and 

calls to higher frequencies may also 

impose energetic costs (Lambrechts, 

1996). 

Marine mammals are also known to 

make vocal changes in response to 

anthropogenic noise. In cetaceans, 

vocalization changes have been reported 

from exposure to anthropogenic noise 

sources such as sonar, vessel noise, and 

seismic surveying (see the following for 

examples: Gordon et al., 2003; Di Iorio 

and Clark, 2009; Hatch et al., 2012; Holt 

et al., 2009; Holt et al., 2011; Lesage et 

al., 1999; McDonald et al., 2009; Parks 

et al., 2007; Risch et al., 2012; Rolland 

et al., 2012; Sorenson et al., 2023), as 

well as changes in the natural acoustic 

environment (Dunlop et al., 2014). 

Vocal changes can be temporary, or can 

be persistent. For example, model 

simulation suggests that the increase in 

starting frequency for the North Atlantic 

right whale upcall over the last 50 years 

resulted in increased detection ranges 

between right whales. The frequency 

shift, coupled with an increase in call 

intensity by 20 dB, led to a call 

detectability range of less than 3 km to 

over 9 km (Tennessen and Parks, 2016). 

Holt et al. (2009) measured killer whale 

call source levels and background noise 

levels in the 1 to 40 kHz band and 

reported that the whales increased their 

call source levels by 1 dB SPL for every 

1 dB SPL increase in background noise 

level. Similarly, another study on St. 

Lawrence River belugas reported a 

similar rate of increase in vocalization 

activity in response to passing vessels 

(Scheifele et al., 2005). Di Iorio and 

Clark (2009) showed that blue whale 

calling rates vary in association with 

seismic sparker survey activity, with 

whales calling more on days with 

surveys than on days without surveys. 

They suggested that the whales called 

more during seismic survey periods as 

a way to compensate for the elevated 

noise conditions. 

In some cases, these vocal changes 

may have fitness consequences, such as 

an increase in metabolic rates and 

oxygen consumption, as observed in 

bottlenose dolphins when increasing 

their call amplitude (Holt et al., 2015). 

A switch from vocal communication to 

physical, surface-generated sounds such 

as pectoral fin slapping or breaching 

was observed for humpback whales in 

the presence of increasing natural 

background noise levels, indicating that 

adaptations to masking may also move 

beyond vocal modifications (Dunlop et 

al., 2010). 

While these changes all represent 

possible tactics by the sound-producing 

animal to reduce the impact of masking, 

the receiving animal can also reduce 

masking by using active listening 

strategies such as orienting to the sound 

source, moving to a quieter location, or 

reducing self-noise from hydrodynamic 

flow by remaining still. The temporal 

structure of noise (e.g., amplitude 

modulation) may also provide a 

considerable release from masking 

through comodulation masking release 

(a reduction of masking that occurs 

when broadband noise, with a 

frequency spectrum wider than an 

animal’s auditory filter bandwidth at the 

frequency of interest, is amplitude 

modulated) (Branstetter and Finneran, 

2008; Branstetter et al., 2013). Signal 

type (e.g., whistles, burst-pulse, sonar 

clicks) and spectral characteristics (e.g., 

frequency modulated with harmonics) 

may further influence masked detection 

thresholds (Branstetter et al., 2016; 

Cunningham et al., 2014). 

Masking is more likely to occur in the 

presence of broadband, relatively 

continuous noise sources, such as 

vessels. Several studies have shown 

decreases in marine mammal 

communication space and changes in 

behavior as a result of the presence of 

vessel noise. For example, right whales 

were 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) as well as increasing the 

amplitude (intensity) of their calls 

(Parks, 2009; Parks et al., 2011). Clark et 

al. (2009) observed that right whales’ 

communication space decreased by up 

to 84 percent in the presence of vessels. 

Cholewiak et al. (2018) also observed 

loss in communication space in 

Stellwagen National Marine Sanctuary 

for North Atlantic right whales, fin 

whales, and humpback whales with 

increased ambient noise and shipping 

noise. Although humpback whales off 

Australia did not change the frequency 

or duration of their vocalizations in the 

presence of ship noise, their source 

levels were lower than expected based 

on source level changes to wind noise, 

potentially indicating some signal 

masking (Dunlop, 2016). Multiple 

delphinid species have also been shown 

to increase the minimum or maximum 

frequencies of their whistles in the 

presence of anthropogenic noise and 

reduced communication space (for 

examples see: Holt et al., 2009; Holt et 

al., 2011; Gervaise et al., 2012; Williams 

et al., 2013; Hermannsen et al., 2014; 

Papale et al., 2015; Liu et al., 2017). 

While masking impacts are not a 

concern from lower intensity, higher 

frequency HRG surveys, some degree of 

masking would be expected in the 

vicinity of turbine pile driving and 

concentrated support vessel operation. 

However, pile driving is an intermittent 

sound and would not be continuous 

throughout a day. 

Habituation and Sensitization 

Habituation can occur when an 

animal’s response to a stimulus wanes 

with repeated exposure, usually in the 

absence of unpleasant associated events 

(Wartzok et al., 2003). Animals are most 

likely to habituate to sounds that are 

predictable and unvarying. It is 

important to note that habituation is 

appropriately considered as a 

‘‘progressive reduction in response to 

stimuli that are perceived as neither 

aversive nor beneficial,’’ rather than as, 

more generally, moderation in response 

to human disturbance having a neutral 

or positive outcome (Bejder et al., 2009). 

The opposite process is sensitization, 

when an unpleasant experience leads to 

subsequent responses, often in the form 

of avoidance, at a lower level of 

exposure. 

Both habituation and sensitization 

require an ongoing learning process. As 

noted, behavioral state may affect the 

type of response. For example, animals 

that are resting may show greater 

behavioral change in response to 

disturbing sound levels than animals 

that are highly motivated to remain in 

an area for feeding (Richardson et al., 

1995; National Research Council (NRC), 

2003; Wartzok et al., 2003; Southall et 

al., 2019b). Controlled experiments with 

captive marine mammals have shown 

pronounced behavioral reactions, 

including avoidance of loud sound 

sources (e.g., Ridgway et al., 1997; 

Finneran et al., 2003; Houser et al., 


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2013a; Houser et al., 2013b; Kastelein et 

al., 2018). Observed responses of wild 

marine mammals to loud impulsive 

sound sources (typically airguns or 

acoustic harassment devices) have been 

varied but often consist of avoidance 

behavior or other behavioral changes 

suggesting discomfort (Morton and 

Symonds, 2002; see also Richardson et 

al., 1995; Nowacek et al., 2007; 

Tougaard et al., 2009; Brandt et al., 

2011; Brandt et al., 2012; Da ̈hne et al., 

2013; Brandt et al., 2014; Russell et al., 

2016; Brandt et al., 2018). 

Stone (2015) reported data from at-sea 

observations during 1,196 airgun 

surveys from 1994 to 2010. When large 

arrays of airguns (considered to be 500 

in 3 or more) were firing, lateral 

displacement, more localized 

avoidance, or other changes in behavior 

were evident for most odontocetes. 

However, significant responses to large 

arrays were found only for the minke 

whale and fin whale. Behavioral 

responses observed included changes in 

swimming or surfacing behavior with 

indications that cetaceans remained 

near the water surface at these times. 

Behavioral observations of gray whales 

during an airgun survey monitored 

whale movements and respirations 

pre-, during-, and post-seismic survey 

(Gailey et al., 2016). Behavioral state 

and water depth were the best ’natural’ 

predictors of whale movements and 

respiration and after considering natural 

variation, none of the response variables 

were significantly associated with 

survey or vessel sounds. Many 

delphinids approach low-frequency 

airgun source vessels with no apparent 

discomfort or obvious behavioral change 

(e.g., Barkaszi et al., 2012), indicating 

the importance of frequency output in 

relation to the species’ hearing 

sensitivity. 

Physiological Responses 

An animal’s perception of a threat 

may be sufficient to trigger stress 

responses consisting of some 

combination of behavioral responses, 

autonomic nervous system responses, 

neuroendocrine responses, or immune 

responses (e.g., Seyle, 1950; Moberg, 

2000). In many cases, an animal’s first 

and sometimes most economical (in 

terms of energetic costs) response is 

behavioral avoidance of the potential 

stressor. Autonomic nervous system 

responses to stress typically involve 

changes in heart rate, blood pressure, 

and gastrointestinal activity. These 

responses have a relatively short 

duration and may or may not have a 

significant long-term effect on an 

animal’s fitness. 

Neuroendocrine stress responses often 

involve the hypothalamus-pituitaryadrenal system. Virtually all 

neuroendocrine functions that are 

affected by stress—including immune 

competence, reproduction, metabolism, 

and behavior—are regulated by pituitary 

hormones. Stress-induced changes in 

the secretion of pituitary hormones have 

been implicated in failed reproduction, 

altered metabolism, reduced immune 

competence, and behavioral disturbance 

(e.g., Moberg, 1987; Blecha, 2000). 

Increases in the circulation of 

glucocorticoids are also equated with 

stress (Romano et al., 2004). 

The primary distinction between 

stress (which is adaptive and does not 

normally place an animal at risk) and 

‘‘distress’’ is the cost of the response. 

During a stress response, an animal uses 

glycogen stores that can be quickly 

replenished once the stress is alleviated. 

In such circumstances, the cost of the 

stress response would not pose serious 

fitness consequences. However, when 

an animal does not have sufficient 

energy reserves to satisfy the energetic 

costs of a stress response, energy 

resources must be diverted from other 

functions. This state of distress will last 

until the animal replenishes its 

energetic reserves sufficiently to restore 

normal function. 

Relationships between these 

physiological mechanisms, animal 

behavior, and the costs of stress 

responses are well studied through 

controlled experiments and for both 

laboratory and free-ranging animals 

(e.g., Holberton et al., 1996; Hood et al., 

1998; Jessop et al., 2003; Krausman et 

al., 2004; Lankford et al., 2005). Stress 

responses due to exposure to 

anthropogenic sounds or other stressors 

and their effects on marine mammals 

have also been reviewed (Fair and 

Becker, 2000; Romano et al., 2002b) 

and, more rarely, studied in wild 

populations (e.g., Lusseau and Bejder, 

2007; Romano et al., 2002a; Rolland et 

al., 2012). For example, Rolland et al. 

(2012) found that noise reduction from 

reduced ship traffic in the Bay of Fundy 

was associated with decreased stress in 

North Atlantic right whales. 

These and other studies lead to a 

reasonable expectation that some 

marine mammals will experience 

physiological stress responses upon 

exposure to acoustic stressors and that 

it is possible that some of these would 

be classified as ‘‘distress.’’ In addition, 

any animal experiencing TTS would 

likely also experience stress responses 

(NRC, 2003, 2017). 

Respiration naturally varies with 

different behaviors and variations in 

respiration rate as a function of acoustic 

exposure can be expected to co-occur 

with other behavioral reactions, such as 

a flight response or an alteration in 

diving. However, respiration rates in 

and of themselves may be representative 

of annoyance or an acute stress 

response. Mean exhalation rates of gray 

whales at rest and while diving were 

found to be unaffected by seismic 

surveys conducted adjacent to the whale 

feeding grounds (Gailey et al., 2007). 

Studies with captive harbor porpoises 

show increased respiration rates upon 

introduction of acoustic alarms 

(Kastelein et al., 2001; Kastelein et al., 

2006a) and emissions for underwater 

data transmission (Kastelein et al., 

2005). However, exposure of the same 

acoustic alarm to a striped dolphin 

under the same conditions did not elicit 

a response (Kastelein et al., 2006a), 

again highlighting the importance in 

understanding species differences in the 

tolerance of underwater noise when 

determining the potential for impacts 

resulting from anthropogenic sound 

exposure. 

Stranding 

The definition for a stranding under 

title IV of the MMPA is that (A) a marine 

mammal is dead and is (i) on a beach 

or shore of the United States; or (ii) in 

waters under the jurisdiction of the 

United States (including any navigable 

waters); or (B) a marine mammal is alive 

and is (i) on a beach or shore of the 

United States and is unable to return to 

the water; (ii) on a beach or shore of the 

United States and, although able to 

return to the water, is in need of 

apparent medical attention; or (iii) in 

the waters under the jurisdiction of the 

United States (including any navigable 

waters), but is unable to return to its 

natural habitat under its own power or 

without assistance (16 U.S.C. 1421h). 

Marine mammal strandings have been 

linked to a variety of causes, such as 

illness from exposure to infectious 

agents, biotoxins, or parasites; 

starvation; unusual oceanographic or 

weather events; or anthropogenic causes 

including fishery interaction, vessel 

strike, entrainment, entrapment, sound 

exposure, or combinations of these 

stressors sustained concurrently or in 

series. There have been multiple events 

worldwide in which marine mammals 

(primarily beaked whales, or other deep 

divers) have stranded coincident with 

relatively nearby activities utilizing 

loud sound sources (primarily military 

training events), and five in which midfrequency active sonar has been more 

definitively determined to have been a 

contributing factor. 

There are multiple theories regarding 

the specific mechanisms responsible for 


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marine mammal strandings caused by 

exposure to loud sounds. One primary 

theme is the behaviorally mediated 

responses of deep-diving species 

(odontocetes), in which their startled 

response to an acoustic disturbance (1) 

affects ascent or descent rates, the time 

they stay at depth or the surface, or 

other regular dive patterns that are used 

to physiologically manage gas formation 

and absorption within their bodies, such 

that the formation or growth of gas 

bubbles damages tissues or causes other 

injury, or (2) results in their flight to 

shallow areas, enclosed bays, or other 

areas considered ‘‘out of habitat,’’ in 

which they become disoriented and 

physiologically compromised. For more 

information on marine mammal 

stranding events and potential causes, 

please see the Mortality and Stranding 

section of NMFS Proposed Incidental 

Take Regulations for the Navy’s 

Training and Testing Activities in the 

Hawaii-Southern California Training 

and Testing Study Area (50 CFR part 

218, Volume 83, No. 123, June 26, 

2018). 

The construction activities proposed 

by Atlantic Shores (i.e., pile driving) do 

not inherently have the potential to 

result in marine mammal strandings. 

While vessel strikes could kill or injure 

a marine mammals (which may 

eventually strand), the required 

mitigation measures would reduce the 

potential for take from these activities to 

de minimis levels (see Proposed 

Mitigation section for more details). As 

described above, no mortality or serious 

injury is anticipated or proposed to be 

authorized from any project activities. 

Of the strandings documented to date 

worldwide, NMFS is not aware of any 

being attributed to pile driving or the 

types of HRG equipment proposed for 

use during the project. Recently, there 

has been heightened interest in HRG 

surveys and their potential role in 

recent marine mammals strandings 

along the U.S. east coast. HRG surveys 

involve the use of certain sources to 

image the ocean bottom, which are very 

different from seismic airguns used in 

oil and gas surveys or tactical military 

sonar, in that they produce much 

smaller impact zones. Marine mammals 

may respond to exposure to these 

sources by, for example, avoiding the 

immediate area, which is why offshore 

wind developers have authorization to 

allow for Level B (behavioral) 

harassment, including Atlantic Shores. 

However, because of the combination of 

lower source levels, higher frequency, 

narrower beam-width (for some 

sources), and other factors, the area 

within which a marine mammal might 

be expected to be behaviorally disturbed 

by HRG sources is much smaller (by 

orders of magnitude) than the impact 

areas for seismic airguns or the military 

sonar with which a small number of 

marine mammal have been causally 

associated. Specifically, estimated 

harassment zones for HRG surveys are 

typically less than 200 m (656.2 ft; such 

as those associated with the project), 

while zones for military mid-frequency 

active sonar or seismic airgun surveys 

typically extend for several kms ranging 

up to 10s of km. Further, because of this 

much smaller ensonified area, any 

marine mammal exposure to HRG 

sources is reasonably expected to be at 

significantly lower levels and shorter 

duration (associated with less severe 

responses), and there is no evidence 

suggesting, or reason to speculate, that 

marine mammals exposed to HRG 

survey noise are likely to be injured, 

much less strand, as a result. Last, all 

but one of the small number of marine 

mammal stranding events that have 

been causally associated with exposure 

to loud sound sources have been deepdiving toothed whale species (not 

mysticetes), which are known to 

respond differently to loud sounds. 

Potential Effects of Disturbance on 

Marine Mammal Fitness 

The different ways that marine 

mammals respond to sound are 

sometimes indicators of the ultimate 

effect that exposure to a given stimulus 

will have on the well-being (survival, 

reproduction, etc.) of an animal. There 

is numerous data relating the exposure 

of terrestrial mammals from sound to 

effects on reproduction or survival, and 

data for marine mammals continues to 

grow. Several authors have reported that 

disturbance stimuli may cause animals 

to abandon nesting and foraging sites 

(Sutherland and Crockford, 1993); may 

cause animals to increase their activity 

levels and suffer premature deaths or 

reduced reproductive success when 

their energy expenditures exceed their 

energy budgets (Daan et al., 1996; Feare, 

1976; Mullner et al., 2004); or may cause 

animals to experience higher predation 

rates when they adopt risk-prone 

foraging or migratory strategies (Frid 

and Dill, 2002). Each of these studies 

addressed the consequences of animals 

shifting from one behavioral state (e.g., 

resting or foraging) to another 

behavioral state (e.g., avoidance or 

escape behavior) because of human 

disturbance or disturbance stimuli. 

Attention is the cognitive process of 

selectively concentrating on one aspect 

of an animal’s environment while 

ignoring other things (Posner, 1994). 

Because animals (including humans) 

have limited cognitive resources, there 

is a limit to how much sensory 

information they can process at any 

time. The phenomenon called 

‘‘attentional capture’’ occurs when a 

stimulus (usually a stimulus that an 

animal is not concentrating on or 

attending to) ‘‘captures’’ an animal’s 

attention. This shift in attention can 

occur consciously or subconsciously 

(for example, when an animal hears 

sounds that it associates with the 

approach of a predator) and the shift in 

attention can be sudden (Dukas, 2002; 

van Rij, 2007). Once a stimulus has 

captured an animal’s attention, the 

animal can respond by ignoring the 

stimulus, assuming a ‘‘watch and wait’’ 

posture, or treat the stimulus as a 

disturbance and respond accordingly, 

which includes scanning for the source 

of the stimulus or ‘‘vigilance’’ 

(Cowlishaw et al., 2004). 

Vigilance is an adaptive behavior that 

helps animals determine the presence or 

absence of predators, assess their 

distance from conspecifics, or to attend 

cues from prey (Bednekoff and Lima, 

1998; Treves, 2000). Despite those 

benefits, however, vigilance has a cost 

of time; when animals focus their 

attention on specific environmental 

cues, they are not attending to other 

activities such as foraging or resting. 

These effects have generally not been 

demonstrated for marine mammals, but 

studies involving fish and terrestrial 

animals have shown that increased 

vigilance may substantially reduce 

feeding rates (Saino, 1994; Beauchamp 

and Livoreil, 1997; Fritz et al., 2002; 

Purser and Radford, 2011). Animals will 

spend more time being vigilant, which 

may translate to less time foraging or 

resting, when disturbance stimuli 

approach them more directly, remain at 

closer distances, have a greater group 

size (e.g., multiple surface vessels), or 

when they co-occur with times that an 

animal perceives increased risk (e.g., 

when they are giving birth or 

accompanied by a calf). 

The primary mechanism by which 

increased vigilance and disturbance 

appear to affect the fitness of individual 

animals is by disrupting an animal’s 

time budget and, as a result, reducing 

the time they might spend foraging and 

resting (which increases an animal’s 

activity rate and energy demand while 

decreasing their caloric intake/energy). 

In a study of northern resident killer 

whales off Vancouver Island, exposure 

to boat traffic was shown to reduce 

foraging opportunities and increase 

traveling time (Holt et al., 2021). A 

simple bioenergetics model was applied 

to show that the reduced foraging 

opportunities equated to a decreased 

energy intake of 18 percent while the 


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increased traveling incurred an 

increased energy output of 3–4 percent, 

which suggests that a management 

action based on avoiding interference 

with foraging might be particularly 

effective. 

On a related note, many animals 

perform vital functions, such as feeding, 

resting, traveling, and socializing, on a 

diel cycle (24-hour cycle). Behavioral 

reactions to noise exposure (such as 

disruption of critical life functions, 

displacement, or avoidance of important 

habitat) are more likely to be significant 

for fitness if they last more than one diel 

cycle or recur on subsequent days 

(Southall et al., 2007). Consequently, a 

behavioral response lasting less than 1 

day and not recurring on subsequent 

days is not considered particularly 

severe unless it could directly affect 

reproduction or survival (Southall et al., 

2007). It is important to note the 

difference between behavioral reactions 

lasting or recurring over multiple days 

and anthropogenic activities lasting or 

recurring over multiple days. For 

example, just because certain activities 

last for multiple days does not 

necessarily mean that individual 

animals will be either exposed to those 

activity-related stressors (i.e., sonar) for 

multiple days or further exposed in a 

manner that would result in sustained 

multi-day substantive behavioral 

responses. However, special attention is 

warranted where longer-duration 

activities overlay areas in which 

animals are known to congregate for 

longer durations for biologically 

important behaviors. 

There are few studies that directly 

illustrate the impacts of disturbance on 

marine mammal populations. Lusseau 

and Bejder (2007) present data from 

three long-term studies illustrating the 

connections between disturbance from 

whale-watching boats and populationlevel effects in cetaceans. In Shark Bay, 

Australia, the abundance of bottlenose 

dolphins was compared within adjacent 

control and tourism sites over three 

consecutive 4.5-year periods of 

increasing tourism levels. Between the 

second and third time periods, in which 

tourism doubled, dolphin abundance 

decreased by 15 percent in the tourism 

area and did not change significantly in 

the control area. In Fiordland, New 

Zealand, two populations (Milford and 

Doubtful Sounds) of bottlenose dolphins 

with tourism levels that differed by a 

factor of seven were observed and 

significant increases in traveling time 

and decreases in resting time were 

documented for both. Consistent shortterm avoidance strategies were observed 

in response to tour boats until a 

threshold of disturbance was reached 

(average 68 minutes between 

interactions), after which the response 

switched to a longer-term habitat 

displacement strategy. For one 

population, tourism only occurred in a 

part of the home range. However, 

tourism occurred throughout the home 

range of the Doubtful Sound population 

and once boat traffic increased beyond 

the 68-minute threshold (resulting in 

abandonment of their home range/ 

preferred habitat), reproductive success 

drastically decreased (increased 

stillbirths) and abundance decreased 

significantly (from 67 to 56 individuals 

in a short period). 

In order to understand how the effects 

of activities may or may not impact 

species and stocks of marine mammals, 

it is necessary to understand not only 

what the likely disturbances are going to 

be but how those disturbances may 

affect the reproductive success and 

survivorship of individuals and then 

how those impacts to individuals 

translate to population-level effects. 

Following on the earlier work of a 

committee of the U.S. National Research 

Council (NRC, 2005), New et al. (2014), 

in an effort termed the Potential 

Consequences of Disturbance (PCoD), 

outline an updated conceptual model of 

the relationships linking disturbance to 

changes in behavior and physiology, 

health, vital rates, and population 

dynamics. This framework is a four-step 

process progressing from changes in 

individual behavior and/or physiology, 

to changes in individual health, then 

vital rates, and finally to populationlevel effects. In this framework, 

behavioral and physiological changes 

can have direct (acute) effects on vital 

rates, such as when changes in habitat 

use or increased stress levels raise the 

probability of mother-calf separation or 

predation; indirect and long-term 

(chronic) effects on vital rates, such as 

when changes in time/energy budgets or 

increased disease susceptibility affect 

health, which then affects vital rates; or 

no effect to vital rates (New et al., 2014). 

Since the PCoD general framework 

was outlined and the relevant 

supporting literature compiled, multiple 

studies developing state-space energetic 

models for species with extensive longterm monitoring (e.g., southern elephant 

seals, North Atlantic right whales, 

Ziphiidae beaked whales, and 

bottlenose dolphins) have been 

conducted and can be used to 

effectively forecast longer-term, 

population-level impacts from 

behavioral changes. While these are 

very specific models with very specific 

data requirements that cannot yet be 

applied broadly to project-specific risk 

assessments for the majority of species, 

they are a critical first step towards 

being able to quantify the likelihood of 

a population level effect. Since New et 

al. (2014), several publications have 

described models developed to examine 

the long-term effects of environmental 

or anthropogenic disturbance of foraging 

on various life stages of selected species 

(e.g., sperm whale, Farmer et al. (2018); 

California sea lion, McHuron et al. 

(2018); blue whale, Pirotta et al. (2018a); 

humpback whale, Dunlop et al. (2021)). 

These models continue to add to 

refinement of the approaches to the 

PCoD framework. Such models also 

help identify what data inputs require 

further investigation. Pirotta et al. 

(2018b) provides a review of the PCoD 

framework with details on each step of 

the process and approaches to applying 

real data or simulations to achieve each 

step. 

Despite its simplicity, there are few 

complete PCoD models available for any 

marine mammal species due to a lack of 

data available to parameterize many of 

the steps. To date, no PCoD model has 

been fully parameterized with empirical 

data (Pirotta et al., 2018a) due to the fact 

they are data intensive and logistically 

challenging to complete. Therefore, 

most complete PCoD models include 

simulations, theoretical modeling, and 

expert opinion to move through the 

steps. For example, PCoD models have 

been developed to evaluate the effect of 

wind farm construction on the North 

Sea harbor porpoise populations (e.g., 

King et al., 2015; Nabe-Nielsen et al., 

2018). These models include a mix of 

empirical data, expert elicitation (King 

et al., 2015) and simulations of animals’ 

movements, energetics, and/or survival 

(New et al., 2014; Nabe-Nielsen et al., 

2018). 

PCoD models may also be approached 

in different manners. Dunlop et al. 

(2021) modeled migrating humpback 

whale mother-calf pairs in response to 

seismic surveys using both a forwards 

and backwards approach. While a 

typical forwards approach can 

determine if a stressor would have 

population-level consequences, Dunlop 

et al. demonstrated that working 

backwards through a PCoD model can 

be used to assess the ‘‘worst case’’ 

scenario for an interaction of a target 

species and stressor. This method may 

be useful for future management goals 

when appropriate data becomes 

available to fully support the model. In 

another example, harbor porpoise PCoD 

model investigating the impact of 

seismic surveys on harbor porpoise 

included an investigation on underlying 

drivers of vulnerability. Harbor porpoise 

movement and foraging were modeled 

for baseline periods and then for periods 


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with seismic surveys as well; the 

models demonstrated that temporal (i.e., 

seasonal) variation in individual 

energetics and their link to costs 

associated with disturbances was key in 

predicting population impacts 

(Gallagher et al., 2021). 

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, as 

described above, 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 remain 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 indicated that habitat/noise 

disturbance had little overall impact on 

population abundances in either 

location, even in the most extreme 

impact scenarios modeled. 

By integrating different sources of 

data (e.g., controlled exposure data, 

activity monitoring, telemetry tracking, 

and prey sampling) into a theoretical 

model to predict effects from sonar on 

a blue whale’s daily energy intake, 

Pirotta et al. (2021) found that tagged 

blue whales’ activity budgets, lunging 

rates, and ranging patterns caused 

variability in their predicted cost of 

disturbance. This method may be useful 

for future management goals when 

appropriate data becomes available to 

fully support the model. Harbor 

porpoise movement and foraging were 

modeled for baseline periods and then 

for periods with seismic surveys as well; 

the models demonstrated that the 

seasonality of the seismic activity was 

an important predictor of impact 

(Gallagher et al., 2021). 

In Table 1 of Keen et al. (2021), the 

authors summarize the emerging themes 

in PCoD models that should be 

considered when assessing the 

likelihood and duration of exposure and 

the sensitivity of a population to 

disturbance (see Table 1 from Keen et 

al., 2021, below). The themes are 

categorized by life history traits 

(movement ecology, life history strategy, 

body size, and pace of life), disturbance 

source characteristics (overlap with 

biologically important areas, duration 

and frequency, and nature and context), 

and environmental conditions (natural 

variability in prey availability and 

climate change). Keen et al. (2021) then 

summarize how each of these features 

influence an assessment, noting, for 

example, that individual animals with 

small home ranges have a higher 

likelihood of prolonged or year-round 

exposure, that the effect of disturbance 

is strongly influenced by whether it 

overlaps with biologically important 

habitats when individuals are present, 

and that continuous disruption will 

have a greater impact than intermittent 

disruption. 

Nearly all PCoD studies and experts 

agree that infrequent exposures of a 

single day or less are unlikely to impact 

individual fitness, let alone lead to 

population level effects (Booth et al., 

2016; Booth et al., 2017; Christiansen 

and Lusseau 2015; Farmer et al., 2018; 

Wilson et al., 2020; Harwood and Booth 

2016; King et al., 2015; McHuron et al., 

2018; National Academies of Sciences, 

Engineering, and Medicine (NAS), 2017; 

New et al., 2014; Pirotta et al., 2018a; 

Southall et al., 2007; Villegas-Amtmann 

et al., 2015). As described through this 

proposed rule, NMFS expects that any 

behavioral disturbance that would occur 

due to animals being exposed to 

construction activity would be of a 

relatively short duration, with behavior 

returning to a baseline state shortly after 

the acoustic stimuli ceases or the animal 

moves far enough away from the source. 

Given this, and NMFS’ evaluation of the 

available PCoD studies, and the required 

mitigation discussed later, any such 

behavioral disturbance resulting from 

Atlantic Shores’ activities is not 

expected to impact individual animals’ 

health or have effects on individual 

animals’ survival or reproduction, thus 

no detrimental impacts at the 

population level are anticipated. Marine 

mammals may temporarily avoid the 

immediate area but are not expected to 

permanently abandon the area or their 

migratory or foraging behavior. Impacts 

to breeding, feeding, sheltering, resting, 

or migration are not expected nor are 

shifts in habitat use, distribution, or 

foraging success. 

Potential Effects From Vessel Strike 

Vessel collisions with marine 

mammals, also referred to as vessel 

strikes or ship strikes, can result in 

death or serious injury of the animal. 

Wounds resulting from vessel strike 

may include massive trauma, 

hemorrhaging, broken bones, or 

propeller lacerations (Knowlton and 

Kraus, 2001). An animal at the surface 

could be struck directly by a vessel, a 

surfacing animal could hit the bottom of 

a vessel, or an animal just below the 

surface could be cut by a vessel’s 

propeller. Superficial strikes may not 

kill or result in the death of the animal. 

Lethal interactions are typically 

associated with large whales, which are 

occasionally found draped across the 

bulbous bow of large commercial ships 

upon arrival in port. Although smaller 

cetaceans are more maneuverable in 

relation to large vessels than are large 

whales, they may also be susceptible to 

strike. The severity of injuries typically 

depends on the size and speed of the 

vessel (Knowlton and Kraus, 2001; Laist 

et al., 2001; Vanderlaan and Taggart, 

2007; Conn and Silber, 2013). Impact 

forces increase with speed, as does the 

probability of a strike at a given distance 

(Silber et al., 2010; Gende et al., 2011). 

The most vulnerable marine mammals 

are those that spend extended periods of 

time at the surface in order to restore 

oxygen levels within their tissues after 

deep dives (e.g., the sperm whale). In 

addition, some baleen whales seem 

generally unresponsive to vessel sound, 

making them more susceptible to vessel 

collisions (Nowacek et al., 2004). These 

species are primarily large, slow moving 

whales. Marine mammal responses to 

vessels may include avoidance and 

changes in dive pattern (NRC, 2003). 

An examination of all known vessel 

strikes from all shipping sources 

(civilian and military) indicates vessel 

speed is a principal factor in whether a 

vessel strike occurs and, if so, whether 

it results in injury, serious injury, or 

mortality (Knowlton and Kraus, 2001; 

Laist et al., 2001; Jensen and Silber, 

2003; Pace and Silber, 2005; Vanderlaan 

and Taggart, 2007; Conn and Silber, 

2013). In assessing records in which 

vessel speed was known, Laist et al. 

(2001) found a direct relationship 

between the occurrence of a whale 

strike and the speed of the vessel 

involved in the collision. The authors 

concluded that most deaths occurred 

when a vessel was traveling in excess of 

13 kn (34.52 mph). 

Jensen and Silber (2003) detailed 292 

records of known or probable vessel 

strikes of all large whale species from 

1975 to 2002. Of these, vessel speed at 

the time of collision was reported for 58 

cases. Of these 58 cases, 39 (or 67 

percent) resulted in serious injury or 

death (19 of those resulted in serious 

injury as determined by blood in the 


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water, propeller gashes or severed 

tailstock, and fractured skull, jaw, 

vertebrae, hemorrhaging, massive 

bruising or other injuries noted during 

necropsy and 20 resulted in death). 

Operating speeds of vessels that struck 

various species of large whales ranged 

from 2 to 51 kn (2.3 to 58.68 mph). The 

majority (79 percent) of these strikes 

occurred at speeds of 13 kn (34.52 mph) 

or greater. The average speed that 

resulted in serious injury or death was 

18.6 kn (21.4 mph). Pace and Silber 

(2005) found that the probability of 

death or serious injury increased rapidly 

with increasing vessel speed. 

Specifically, the predicted probability of 

serious injury or death increased from 

45 to 75 percent as vessel speed 

increased from 10 to 14 kn (11.51 to 

16.11 mph) and exceeded 90 percent at 

17 kn (19.56 mph). Higher speeds 

during collisions result in greater force 

of impact and also appear to increase 

the chance of severe injuries or death. 

While modeling studies have suggested 

that hydrodynamic forces pulling 

whales toward the vessel hull increase 

with increasing speed (Clyne, 1999; 

Knowlton et al., 1995), this is 

inconsistent with Silber et al. (2010), 

which demonstrated that there is no 

such relationship (i.e., hydrodynamic 

forces are independent of speed). 

In a separate study, Vanderlaan and 

Taggart (2007) analyzed the probability 

of lethal mortality of large whales at a 

given speed, showing that the greatest 

rate of change in the probability of a 

lethal injury to a large whale as a 

function of vessel speed occurs between 

8.6 and 15 kn (17.26 mph). The chances 

of a lethal injury decline from 

approximately 80 percent at 15 kn to 

approximately 20 percent at 8.6 kn (9.9 

mph). At speeds below 11.8 kn (13.58 

mph), the chances of lethal injury drop 

below 50 percent, while the probability 

asymptotically increases toward 100 

percent above 15 kn (17.26 mph). 

The Jensen and Silber (2003) report 

notes that the Large Whale Ship Strike 

Database represents a minimum number 

of collisions, because the vast majority 

probably goes undetected or unreported. 

In contrast, the project’s personnel are 

likely to detect any strike that does 

occur because of the required personnel 

training and lookouts, along with the 

inclusion of Protected Species 

Observers (as described in the Proposed 

Mitigation section), and they are 

required to report all ship strikes 

involving marine mammals. 

There are no known vessel strikes of 

marine mammals by any offshore wind 

energy vessel in the U.S. Given the 

extensive mitigation and monitoring 

measures (see the Proposed Mitigation 

and Proposed Monitoring and Reporting 

section) that would be required of 

Atlantic Shores, NMFS believes that a 

vessel strike is not likely to occur. 

Potential Effects to Marine Mammal 

Habitat 

Atlantic Shores’ proposed activities 

could potentially affect marine mammal 

habitat through the introduction of 

impacts to the prey species of marine 

mammals (through noise, oceanographic 

processes, or reef effects), acoustic 

habitat (sound in the water column), 

water quality, and biologically 

important habitat for marine mammals. 

Effects on Prey 

Sound may affect marine mammals 

through impacts on the abundance, 

behavior, or distribution of prey species 

(e.g., crustaceans, cephalopods, fish, 

and zooplankton). Marine mammal prey 

varies by species, season, and location 

and, for some, is not well documented. 

Here, we describe studies regarding the 

effects of noise on known marine 

mammal prey. 

Fish utilize the soundscape and 

components of sound in their 

environment to perform important 

functions such as foraging, predator 

avoidance, mating, and spawning (e.g., 

Zelick and Mann, 1999; Fay, 2009). The 

most likely effects on fishes exposed to 

loud, intermittent, low-frequency 

sounds are behavioral responses (i.e., 

flight or avoidance). Short duration, 

sharp sounds (such as pile driving or 

airguns) can cause overt or subtle 

changes in fish behavior and local 

distribution. The reaction of fish to 

acoustic sources depends on the 

physiological state of the fish, past 

exposures, motivation (e.g., feeding, 

spawning, migration), and other 

environmental factors. Key impacts to 

fishes may include behavioral 

responses, hearing damage, barotrauma 

(pressure-related injuries), and 

mortality. While it is clear that the 

behavioral responses of individual prey, 

such as displacement or other changes 

in distribution, can have direct impacts 

on the foraging success of marine 

mammals, the effects on marine 

mammals of individual prey that 

experience hearing damage, barotrauma, 

or mortality is less clear, though 

obviously population scale impacts that 

meaningfully reduce the amount of prey 

available could have more serious 

impacts. 

Fishes, like other vertebrates, have a 

variety of different sensory systems to 

glean information from ocean around 

them (Astrup and Mohl, 1993; Astrup, 

1999; Braun and Grande, 2008; Carroll 

et al., 2017; Hawkins and Johnstone, 

1978; Ladich and Popper, 2004; Ladich 

and Schulz-Mirbach, 2016; Mann, 2016; 

Nedwell et al., 2004; Popper et al., 2003; 

Popper et al., 2005). Depending on their 

hearing anatomy and peripheral sensory 

structures, which vary among species, 

fishes hear sounds using pressure and 

particle motion sensitivity capabilities 

and detect the motion of surrounding 

water (Fay et al., 2008) (terrestrial 

vertebrates generally only detect 

pressure). Most marine fishes primarily 

detect particle motion using the inner 

ear and lateral line system while some 

fishes possess additional morphological 

adaptations or specializations that can 

enhance their sensitivity to sound 

pressure, such as a gas-filled swim 

bladder (Braun and Grande, 2008; 

Popper and Fay, 2011). 

Hearing capabilities vary considerably 

between different fish species with data 

only available for just over 100 species 

out of the 34,000 marine and freshwater 

fish species (Eschmeyer and Fong, 

2016). In order to better understand 

acoustic impacts on fishes, fish hearing 

groups are defined by species that 

possess a similar continuum of 

anatomical features, which result in 

varying degrees of hearing sensitivity 

(Popper and Hastings, 2009a). There are 

four hearing groups defined for all fish 

species (modified from Popper et al., 

2014) within this analysis, and they 

include: fishes without a swim bladder 

(e.g., flatfish, sharks, rays, etc.); fishes 

with a swim bladder not involved in 

hearing (e.g., salmon, cod, pollock, etc.); 

fishes with a swim bladder involved in 

hearing (e.g., sardines, anchovy, herring, 

etc.); and fishes with a swim bladder 

involved in hearing and high-frequency 

hearing (e.g., shad and menhaden). Most 

marine mammal fish prey species would 

not be likely to perceive or hear mid- or 

high-frequency sonars. While hearing 

studies have not been done on sardines 

and northern anchovies, it would not be 

unexpected for them to have hearing 

similarities to Pacific herring (up to 2– 

5 kHz) (Mann et al., 2005). Currently, 

less data are available to estimate the 

range of best sensitivity for fishes 

without a swim bladder. 

In terms of physiology, multiple 

scientific studies have documented a 

lack of mortality or physiological effects 

to fish from exposure to low- and midfrequency sonar and other sounds 

(Halvorsen et al., 2012a; J<rgensen et al., 

2005; Juanes et al., 2017; Kane et al., 

2010; Kvadsheim and Sevaldsen, 2005; 

Popper et al., 2007; Popper et al., 2016; 

Watwood et al., 2016). Techer et al. 

(2017) exposed carp in floating cages for 

up to 30 days to low-power 23 and 46 

kHz source without any significant 

physiological response. Other studies 


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have documented either a lack of TTS 

in species whose hearing range cannot 

perceive sonar (such as Navy sonar), or 

for those species that could perceive 

sonar-like signals, any TTS experienced 

would be recoverable (Halvorsen et al., 

2012a; Ladich and Fay, 2013; Popper 

and Hastings, 2009a, 2009b; Popper et 

al., 2014; Smith, 2016). Only fishes that 

have specializations that enable them to 

hear sounds above about 2,500 Hz (2.5 

kHz), such as herring (Halvorsen et al., 

2012a; Mann et al., 2005; Mann, 2016; 

Popper et al., 2014), would have the 

potential to receive TTS or exhibit 

behavioral responses from exposure to 

mid-frequency sonar. In addition, any 

sonar induced TTS to fish whose 

hearing range could perceive sonar 

would only occur in the narrow 

spectrum of the source (e.g., 3.5 kHz) 

compared to the fish’s total hearing 

range (e.g., 0.01 kHz to 5 kHz). 

In terms of behavioral responses, 

Juanes et al. (2017) discuss the potential 

for negative impacts from anthropogenic 

noise on fish, but the author’s focus was 

on broader based sounds, such as ship 

and boat noise sources. Watwood et al. 

(2016) also documented no behavioral 

responses by reef fish after exposure to 

mid-frequency active sonar. Doksaeter et 

al. (2009; 2012) reported no behavioral 

responses to mid-frequency sonar (such 

as naval sonar) by Atlantic herring; 

specifically, no escape reactions 

(vertically or horizontally) were 

observed in free swimming herring 

exposed to mid-frequency sonar 

transmissions. Based on these results 

(Doksaeter et al., 2009; Doksaeter et al., 

2012; Sivle et al., 2012), Sivle et al. 

(2014) created a model in order to report 

on the possible population-level effects 

on Atlantic herring from active sonar. 

The authors concluded that the use of 

sonar poses little risk to populations of 

herring regardless of season, even when 

the herring populations are aggregated 

and directly exposed to sonar. Finally, 

Bruintjes et al. (2016) commented that 

fish exposed to any short-term noise 

within their hearing range might 

initially startle, but would quickly 

return to normal behavior. 

Pile-driving noise during construction 

is of particular concern as the very high 

sound pressure levels could potentially 

prevent fish from reaching breeding or 

spawning sites, finding food, and 

acoustically locating mates. A playback 

study in West Scotland revealed that 

there was a significant movement 

response to the pile-driving stimulus in 

both species at relatively low received 

sound pressure levels (sole: 144 to 156 

dB re 1mPa Peak; cod: 140 to 161 dB re 

1 mPa Peak, particle motion between 

6.51 x 103 and 8.62 x 104 m/s2 peak) 

(Mueller-Blenkle et al., 2010). The 

swimming speed of the sole increased 

significantly during the playback of 

construction noise when compared to 

the playbacks of before and after 

construction. While not statistically 

significant, cod also displayed a similar 

behavioral response during before, 

during, and after construction 

playbacks. However, cod demonstrated 

a specific and significant freezing 

response at the onset and cessation of 

the playback recording. In both species, 

indications were present displaying 

directional movements away from the 

playback source. During wind farm 

construction in the Eastern Taiwan 

Strait, Type 1 soniferous fish chorusing 

showed a relatively lower intensity and 

longer duration while Type 2 chorusing 

exhibited higher intensity and no 

changes in its duration. Deviation from 

regular fish vocalization patterns may 

affect fish reproductive success, cause 

migration, augmented predation, or 

physiological alterations. 

Occasional behavioral reactions to 

activities that produce underwater noise 

sources are unlikely to cause long-term 

consequences for individual fish or 

populations. The most likely impact to 

fish from impact and vibratory pile 

driving activities at the Project Areas 

would be temporary behavioral 

avoidance of the area. Any behavioral 

avoidance by fish of the disturbed area 

would still leave significantly large 

areas of fish and marine mammal 

foraging habitat in the nearby vicinity. 

The duration of fish avoidance of an 

area after pile driving stops is unknown, 

but a rapid return to normal 

recruitment, distribution and behavior 

is anticipated. In general, impacts to 

marine mammal prey species are 

expected to be minor and temporary due 

to the expected short daily duration of 

individual pile driving events and the 

relatively small areas being affected. 

SPLs of sufficient strength have been 

known to cause fish auditory 

impairment, injury and mortality. 

Popper et al. (2014) found that fish with 

or without air bladders could 

experience TTS at 186 dB SELcum. 

Mortality could occur for fish without 

swim bladders at >216 dB SELcum. Those 

with swim bladders or at the egg or 

larvae life stage, mortality was possible 

at >203 dB SELcum. Other studies found 

that 203 dB SELcum or above caused a 

physiological response in other fish 

species (Casper et al., 2012, Halvorsen 

et al., 2012a, Halvorsen et al., 2012b, 

Casper et al., 2013a; Casper et al., 

2013b). However, in most fish species, 

hair cells in the ear continuously 

regenerate and loss of auditory function 

likely is restored when damaged cells 

are replaced with new cells. Halvorsen 

et al. (2012a) showed that a TTS of 4– 

6 dB was recoverable within 24 hours 

for one species. Impacts would be most 

severe when the individual fish is close 

to the source and when the duration of 

exposure is long. Injury caused by 

barotrauma can range from slight to 

severe and can cause death, and is most 

likely for fish with swim bladders. 

Barotrauma injuries have been 

documented during controlled exposure 

to impact pile driving (Halvorsen et al., 

2012b; Casper et al., 2013). 

As described in the Proposed 

Mitigation section below, Atlantic 

Shores would utilize a sound 

attenuation device which would reduce 

potential for injury to marine mammal 

prey. Other fish that experience hearing 

loss as a result of exposure to impulsive 

sound sources may have a reduced 

ability to detect relevant sounds such as 

predators, prey, or social vocalizations. 

However, PTS has not been known to 

occur in fishes and any hearing loss in 

fish may be as temporary as the 

timeframe required to repair or replace 

the sensory cells that were damaged or 

destroyed (Popper et al., 2005; Popper et 

al., 2014; Smith et al., 2006). It is not 

known if damage to auditory nerve 

fibers could occur, and if so, whether 

fibers would recover during this 

process. 

Several studies have demonstrated 

that airgun sounds might affect the 

distribution and behavior of some 

fishes, potentially impacting foraging 

opportunities or increasing energetic 

costs (e.g., Fewtrell and McCauley, 

2012; Pearson et al., 1992; Skalski et al., 

1992; Santulli et al., 1999; Paxton et al., 

2017). Required soft-starts would allow 

prey and marine mammals to move 

away from the source prior to any noise 

levels that may physically injure prey 

and the use of the noise attenuation 

devices would reduce noise levels to the 

degree any mortality or injury of prey is 

also minimized. Use of bubble curtains, 

in addition to reducing impacts to 

marine mammals, for example, is a key 

mitigation measure in reducing injury 

and mortality of ESA-listed salmon on 

the U.S. West Coast. However, we 

recognize some mortality, physical 

injury and hearing impairment in 

marine mammal prey may occur, but we 

anticipate the amount of prey impacted 

in this manner is minimal compared to 

overall availability. Any behavioral 

responses to pile driving by marine 

mammal prey are expected to be brief. 

We expect that other impacts, such as 

stress or masking, would occur in fish 

that serve as marine mammal prey 

(Popper et al., 2019). However, those 

impacts would be limited to the 


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duration of impact pile driving and if 

prey were to move out the area in 

response to noise, these impacts would 

be minimized. 

In addition to fish, prey sources such 

as marine invertebrates could 

potentially be impacted by noise 

stressors as a result of the proposed 

activities. However, most marine 

invertebrates’ ability to sense sounds is 

limited. Invertebrates appear to be able 

to detect sounds (Pumphrey, 1950; 

Frings and Frings, 1967) and are most 

sensitive to low-frequency sounds 

(Packard et al., 1990; Budelmann and 

Williamson, 1994; Lovell et al., 2005; 

Mooney et al., 2010). Data on response 

of invertebrates such as squid, another 

marine mammal prey species, to 

anthropogenic sound is more limited 

(de Soto, 2016; Sole et al., 2017). Data 

suggest that cephalopods are capable of 

sensing the particle motion of sounds 

and detect low frequencies up to 1–1.5 

kHz, depending on the species, and so 

are likely to detect airgun noise (Kaifu 

et al., 2008; Hu et al., 2009; Mooney et 

al., 2010; Samson et al., 2014). Sole et 

al. (2017) reported physiological 

injuries to cuttlefish in cages placed atsea when exposed during a controlled 

exposure experiment to low-frequency 

sources (315 Hz, 139 to 142 dB re 1 mPa2

and 400 Hz, 139 to 141 dB re 1 mPa2). 

Fewtrell and McCauley (2012) reported 

squids maintained in cages displayed 

startle responses and behavioral changes 

when exposed to seismic airgun sonar 

(136–162 re 1 mPa2·s). Jones et al. (2020) 

found that when squid (Doryteuthis 

pealeii) were exposed to impulse pile 

driving noise, body pattern changes, 

inking, jetting, and startle responses 

were observed and nearly all squid 

exhibited at least one response. 

However, these responses occurred 

primarily during the first eight impulses 

and diminished quickly, indicating 

potential rapid, short-term habituation. 

Cephalopods have a specialized 

sensory organ inside the head called a 

statocyst that may help an animal 

determine its position in space 

(orientation) and maintain balance 

(Budelmann, 1992). Packard et al. 

(1990) showed that cephalopods were 

sensitive to particle motion, not sound 

pressure, and Mooney et al. (2010) 

demonstrated that squid statocysts act 

as an accelerometer through which 

particle motion of the sound field can be 

detected. Auditory injuries (lesions 

occurring on the statocyst sensory hair 

cells) have been reported upon 

controlled exposure to low-frequency 

sounds, suggesting that cephalopods are 

particularly sensitive to low-frequency 

sound (Andre et al., 2011; Sole et al., 

2013). Behavioral responses, such as 

inking and jetting, have also been 

reported upon exposure to lowfrequency sound (McCauley et al., 2000; 

Samson et al., 2014). Squids, like most 

fish species, are likely more sensitive to 

low frequency sounds and may not 

perceive mid- and high-frequency 

sonars. 

With regard to potential impacts on 

zooplankton, McCauley et al. (2017) 

found that exposure to airgun noise 

resulted in significant depletion for 

more than half the taxa present and that 

there were two to three times more dead 

zooplankton after airgun exposure 

compared with controls for all taxa, 

within 1 km of the airguns. However, 

the authors also stated that in order to 

have significant impacts on r-selected 

species (i.e., those with high growth 

rates and that produce many offspring) 

such as plankton, the spatial or 

temporal scale of impact must be large 

in comparison with the ecosystem 

concerned, and it is possible that the 

findings reflect avoidance by 

zooplankton rather than mortality 

(McCauley et al., 2017). In addition, the 

results of this study are inconsistent 

with a large body of research that 

generally finds limited spatial and 

temporal impacts to zooplankton as a 

result of exposure to airgun noise (e.g., 

Dalen and Knutsen, 1987; Payne, 2004; 

Stanley et al., 2011). Most prior research 

on this topic, which has focused on 

relatively small spatial scales, has 

showed minimal effects (e.g., 

Kostyuchenko, 1973; Booman et al., 

1996; S#tre and Ona, 1996; Pearson et 

al., 1994; Bolle et al., 2012). 

A modeling exercise was conducted 

as a follow-up to the McCauley et al. 

(2017) study (as recommended by 

McCauley et al.), in order to assess the 

potential for impacts on ocean 

ecosystem dynamics and zooplankton 

population dynamics (Richardson et al., 

2017). Richardson et al. (2017) found 

that a full-scale airgun survey would 

impact copepod abundance within the 

survey area, but that effects at a regional 

scale were minimal (2 percent decline 

in abundance within 150 km of the 

survey area and effects not discernible 

over the full region). The authors also 

found that recovery within the survey 

area would be relatively quick (3 days 

following survey completion), and 

suggest that the quick recovery was due 

to the fast growth rates of zooplankton, 

and the dispersal and mixing of 

zooplankton from both inside and 

outside of the impacted region. The 

authors also suggest that surveys in 

areas with more dynamic ocean 

circulation in comparison with the 

study region and/or with deeper waters 

(i.e., typical offshore wind locations) 

would have less net impact on 

zooplankton. 

Notably, a recently described study 

produced results inconsistent with 

those of McCauley et al. (2017). 

Researchers conducted a field and 

laboratory study to assess if exposure to 

airgun noise affects mortality, predator 

escape response, or gene expression of 

the copepod Calanus finmarchicus 

(Fields et al., 2019). Immediate 

mortality of copepods was significantly 

higher, relative to controls, at distances 

of 5 m or less from the airguns. 

Mortality 1 week after the airgun blast 

was significantly higher in the copepods 

placed 10 m from the airgun but was not 

significantly different from the controls 

at a distance of 20 m from the airgun. 

The increase in mortality, relative to 

controls, did not exceed 30 percent at 

any distance from the airgun. Moreover, 

the authors caution that even this higher 

mortality in the immediate vicinity of 

the airguns may be more pronounced 

than what would be observed in freeswimming animals due to increased 

flow speed of fluid inside bags 

containing the experimental animals. 

There were no sub-lethal effects on the 

escape performance or the sensory 

threshold needed to initiate an escape 

response at any of the distances from 

the airgun that were tested. Whereas 

McCauley et al. (2017) reported an SEL 

of 156 dB at a range of 509–658 m, with 

zooplankton mortality observed at that 

range, Fields et al. (2019) reported an 

SEL of 186 dB at a range of 25 m, with 

no reported mortality at that distance. 

The presence of large numbers of 

turbines has been shown to impact 

meso- and sub-meso-scale water column 

circulation, which can affect the 

density, distribution, and energy 

content of zooplankton and thereby, 

their availability as marine mammal 

prey. Topside, atmospheric wakes result 

in wind speed reductions influencing 

upwelling and downwelling in the 

ocean while underwater structures such 

as WTG, OSS, and Met tower 

foundations may cause turbulent 

current wakes, which impact 

circulation, stratification, mixing, and 

sediment resuspension (Daewel et al., 

2022). Overall, the presence and 

operation of structures such as wind 

turbines are, in general, likely to result 

in local and broader oceanographic 

effects in the marine environment and 

may disrupt marine mammal prey, such 

as dense aggregations and distribution 

of zooplankton through altering the 

strength of tidal currents and associated 

fronts, changes in stratification, primary 

production, the degree of mixing, and 

stratification in the water column (Chen 

et al., 2021; Johnson et al., 2021; 


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Christiansen et al., 2022; Dorrell et al., 

2022). However, the scale of impacts is 

difficult to predict and may vary from 

meters to hundreds of meters for local 

individual turbine impacts (Schultze et 

al., 2020) to large-scale dipoles of 

surface elevation changes stretching 

hundreds of kilometers (Christiansen et 

al., 2022). 

Atlantic Shores intends to install up 

to 200 WTGs, up to 10 OSSs, and 1 Met 

Tower. Turbine operations would 

commence in 2028 (Project 1) and 2029 

(Project 2), with all turbines being 

operational in 2029. As described above, 

there is scientific uncertainty around 

the scale of oceanographic impacts 

(meters to kilometers) associated with 

turbine operation. The project is located 

offshore of New Jersey, within a 

migratory BIA for North Atlantic right 

whales. Although right whales and 

humpback whales have been observed 

feeding off the New Jersey coast (Whitt 

et al., 2013; Whitt et al., 2015), the 

majority of whales are expected to be 

moving through the area. In addition, 

seasonal pile driving restrictions from 

January through April will reduce the 

potential for overlap between 

construction activities and any foraging 

whales. 

Potential impacts on prey could 

impact the distribution of marine 

mammals within the Project Area, 

potentially necessitating additional 

energy expenditure to find and capture 

prey, but at the temporal and spatial 

scales anticipated for this activity are 

not expected to impact the reproduction 

or survival of any individual marine 

mammals. Although studies assessing 

the impacts of offshore wind 

development on marine mammals are 

limited, the repopulation of wind 

energy areas by harbor porpoises 

(Brandt et al., 2016; Lindeboom et al., 

2011) and harbor seals (Lindeboom et 

al., 2011; Russell et al., 2016) following 

the installation of wind turbines are 

promising. Overall, any impacts to 

marine mammal foraging capabilities 

due to effects on prey aggregation from 

the turbine presence and operation 

during the effective period of the 

proposed rule is likely to be limited. As 

the nearest North Atlantic right whale 

feeding BIA and humpback whale 

feeding BIA are approximately 419.1 km 

away from the proposed Project Area, 

these areas would likely be unaffected 

by the project’s operation. 

In general, impacts to marine mammal 

prey species are expected to be 

relatively minor and temporary due to 

the expected short daily duration of 

individual pile driving events and the 

relatively small areas being affected. 

NMFS does not expect HRG acoustic 

sources to impact fish and most sources 

are likely outside the hearing range of 

the primary prey species in the Project 

Area. Prey species exposed to sound 

might move away from the sound 

source, experience TTS, experience 

masking of biologically relevant sounds, 

or show no obvious direct effects. 

Overall, however, the combined impacts 

of sound exposure, water quality, and 

oceanographic impacts on marine 

mammal habitat resulting from the 

proposed activities would not be 

expected to have measurable effects on 

populations of marine mammal prey 

species. 

Reef Effects 

The presence of monopile 

foundations, scour protection, and cable 

protection will result in a conversion of 

the existing sandy bottom habitat to a 

hard bottom habitat with areas of 

vertical structural relief. This could 

potentially alter the existing habitat by 

creating an ‘‘artificial reef effect’’ that 

results in colonization by assemblages 

of both sessile and mobile animals 

within the new hard-bottom habitat 

(Wilhelmsson et al., 2006; Reubens et 

al., 2013; Bergstro ̈m et al., 2014; Coates 

et al., 2014). This colonization by 

marine species, especially hardsubstrate preferring species, can result 

in changes to the diversity, composition, 

and/or biomass of the area thereby 

impacting the trophic composition of 

the site (Wilhelmsson et al., 2010, Krone 

et al., 2013; Bergstro ̈m et al., 2014, 

Hooper et al., 2017; Raoux et al., 2017; 

Harrison and Rousseau, 2020; Taormina 

et al., 2020; Buyse et al., 2022a; ter 

Hofstede et al., 2022). 

Artificial structures can create 

increased habitat heterogeneity 

important for species diversity and 

density (Langhamer, 2012). The WTG 

and OSS foundations will extend 

through the water column, which may 

serve to increase settlement of 

meroplankton or planktonic larvae on 

the structures in both the pelagic and 

benthic zones (Boehlert and Gill, 2010). 

Fish and invertebrate species are also 

likely to aggregate around the 

foundations and scour protection which 

could provide increased prey 

availability and structural habitat 

(Boehlert and Gill, 2010; Bonar et al., 

2015). Further, instances of species 

previously unknown, rare, or 

nonindigenous to an area have been 

documented at artificial structures, 

changing the composition of the food 

web and possibly the attractability of 

the area to new or existing predators 

(Adams et al., 2014; de Mesel, 2015; 

Bishop et al., 2017; Hooper et al., 2017; 

Raoux et al., 2017; van Hal et al., 2017; 

Degraer et al., 2020; Fernandez-Betelu et 

al., 2022). Notably, there are examples 

of these sites becoming dominated by 

marine mammal prey species, such as 

filter-feeding species and suspensionfeeding crustaceans (Andersson and 

O ̈ hman, 2010; Slavik et al., 2019; 

Hutchison et al., 2020; Pezy et al., 2020; 

Mavraki et al., 2022). 

Numerous studies have documented 

significantly higher fish concentrations 

including species like cod and pouting 

(Trisopterus luscus), flounder 

(Platichthys flesus), eelpout (Zoarces 

viviparus), and eel (Anguilla anguilla) 

near in-water structures than in 

surrounding soft bottom habitat 

(Langhamer and Wilhelmsson, 2009; 

Bergstro ̈m et al., 2013; Reubens et al., 

2013). In the German Bight portion of 

the North Sea, fish were most densely 

congregated near the anchorages of 

jacket foundations, and the structures 

extending through the water column 

were thought to make it more likely that 

juvenile or larval fish encounter and 

settle on them (Rhode Island Coastal 

Resources Management Council (RI– 

CRMC), 2010; Krone et al., 2013). In 

addition, fish can take advantage of the 

shelter provided by these structures 

while also being exposed to stronger 

currents created by the structures, 

which generate increased feeding 

opportunities and decreased potential 

for predation (Wilhelmsson et al., 2006). 

The presence of the foundations and 

resulting fish aggregations around the 

foundations is expected to be a longterm habitat impact, but the increase in 

prey availability could potentially be 

beneficial for some marine mammals. 

The most likely impact to marine 

mammal habitat from the project is 

expected to be from pile driving, which 

may affect marine mammal food sources 

such as forage fish and could also cause 

acoustic habitat effects on marine 

mammal prey (e.g., fish). 

Water Quality 

Temporary and localized reduction in 

water quality will occur as a result of inwater construction activities. Most of 

this effect will occur during pile driving 

and installation of the cables, including 

auxiliary work such as dredging and 

scour placement. These activities will 

disturb bottom sediments and may 

cause a temporary increase in 

suspended sediment in the Project Area. 

Currents should quickly dissipate any 

raised total suspended sediment (TSS) 

levels, and levels should return to 

background levels once the project 

activities in that area cease. No direct 

impacts on marine mammals is 

anticipated due to increased TSS and 

turbidity; however, turbidity within the 


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water column has the potential to 

reduce the level of oxygen in the water 

and irritate the gills of prey fish species 

in the proposed Project Area. However, 

turbidity plumes associated with the 

project would be temporary and 

localized, and fish in the proposed 

Project Area would be able to move 

away from and avoid the areas where 

plumes may occur. Therefore, it is 

expected that the impacts on prey fish 

species from turbidity, and therefore on 

marine mammals, would be minimal 

and temporary. 

Equipment used by Atlantic Shores 

within the Project Area, including ships 

and other marine vessels, potentially 

aircrafts, and other equipment, are also 

potential sources of by-products (e.g., 

hydrocarbons, particulate matter, heavy 

metals). All equipment is properly 

maintained in accordance with 

applicable legal requirements. All such 

operating equipment meets Federal 

water quality standards, where 

applicable. Given these requirements, 

impacts to water quality are expected to 

be minimal. 

Acoustic Habitat 

Acoustic habitat is the soundscape, 

which encompasses all of the sound 

present in a particular location and 

time, as a whole when considered from 

the perspective of the animals 

experiencing it. Animals produce sound 

for, or listen for sounds produced by, 

conspecifics (communication during 

feeding, mating, and other social 

activities), other animals (finding prey 

or avoiding predators), and the physical 

environment (finding suitable habitats, 

navigating). Together, sounds made by 

animals and the geophysical 

environment (e.g., produced by 

earthquakes, lightning, wind, rain, 

waves) make up the natural 

contributions to the total acoustics of a 

place. These acoustic conditions, 

termed acoustic habitat, are one 

attribute of an animal’s total habitat. 

Soundscapes are also defined by, and 

acoustic habitat influenced by, the total 

contribution of anthropogenic sound. 

This may include incidental emissions 

from sources such as vessel traffic or 

may be intentionally introduced to the 

marine environment for data acquisition 

purposes (as in the use of airgun arrays) 

or for Navy training and testing 

purposes (as in the use of sonar and 

explosives and other acoustic sources). 

Anthropogenic noise varies widely in its 

frequency, content, duration, and 

loudness and these characteristics 

greatly influence the potential habitatmediated effects to marine mammals 

(please also see the previous discussion 

on Masking), which may range from 

local effects for brief periods of time to 

chronic effects over large areas and for 

long durations. Depending on the extent 

of effects to habitat, animals may alter 

their communications signals (thereby 

potentially expending additional 

energy) or miss acoustic cues (either 

conspecific or adventitious). Problems 

arising from a failure to detect cues are 

more likely to occur when noise stimuli 

are chronic and overlap with 

biologically relevant cues used for 

communication, orientation, and 

predator/prey detection (Francis and 

Barber, 2013). For more detail on these 

concepts, see Barber et al., 2009; 

Pijanowski et al., 2011; Francis and 

Barber, 2013; Lillis et al., 2014. 

The term ‘‘listening area’’ refers to the 

region of ocean over which sources of 

sound can be detected by an animal at 

the center of the space. Loss of 

communication space concerns the area 

over which a specific animal signal, 

used to communicate with conspecifics 

in biologically important contexts (e.g., 

foraging, mating), can be heard, in 

noisier relative to quieter conditions 

(Clark et al., 2009). Lost listening area 

concerns the more generalized 

contraction of the range over which 

animals would be able to detect a 

variety of signals of biological 

importance, including eavesdropping on 

predators and prey (Barber et al., 2009). 

Such metrics do not, in and of 

themselves, document fitness 

consequences for the marine animals 

that live in chronically noisy 

environments. Long-term populationlevel consequences mediated through 

changes in the ultimate survival and 

reproductive success of individuals are 

difficult to study, and particularly so 

underwater. However, it is increasingly 

well documented that aquatic species 

rely on qualities of natural acoustic 

habitats, with researchers quantifying 

reduced detection of important 

ecological cues (e.g., Francis and Barber, 

2013; Slabbekoorn et al., 2010) as well 

as survivorship consequences in several 

species (e.g., Simpson et al., 2014; 

Nedelec et al., 2014). 

Sound produced from construction 

activities in the Project Area would be 

temporary and transitory. The sounds 

produced during construction activities 

may be widely dispersed or 

concentrated in small areas for varying 

periods. Any anthropogenic noise 

attributed to construction activities in 

the Project Area would be temporary 

and the affected area would be expected 

to immediately return to the original 

state when these activities cease. 

Although this proposed rulemaking 

primarily covers the noise produced 

from construction activities relevant to 

this offshore wind facility, operational 

noise was a consideration in NMFS’ 

analysis of the project, as all turbines 

would become operational within the 

effective dates of the rule (if issued). It 

is expected that all turbines would be 

operational by 2029. Once operational, 

offshore wind turbines are known to 

produce continuous, non-impulsive 

underwater noise, primarily below 1 

kHz (Tougaard et al., 2020; Sto ̈ber and 

Thomsen, 2021). 

In both newer, quieter, direct-drive 

systems (such as what has been 

proposed for use in the project) and 

older generation, geared turbine designs, 

recent scientific studies indicate that 

operational noise from turbines is on the 

order of 110 to 125 dB re 1 mPa rootmean-square sound pressure level 

(SPLrms) at an approximate distance of 

50 m (Tougaard et al., 2020). Recent 

measurements of operational sound 

generated from wind turbines (direct 

drive, 6 MW, jacket piles) at Block 

Island Wind Farm (BIWF) indicate 

average broadband levels of 119 dB at 

50 m from the turbine, with levels 

varying with wind speed (HDR, Inc., 

2019). Interestingly, measurements from 

BIWF turbines showed operational 

sound had less tonal components 

compared to European measurements of 

turbines with gear boxes. 

Tougaard et al. (2020) further stated 

that the operational noise produced by 

WTGs is static in nature and lower than 

noise produced by passing ships. This is 

a noise source in this region to which 

marine mammals are likely already 

habituated. Furthermore, operational 

noise levels are likely lower than those 

ambient levels already present in active 

shipping lanes, such that operational 

noise would likely only be detected in 

very close proximity to the WTG 

(Thomsen et al., 2006; Tougaard et al., 

2020). Similarly, recent measurements 

from a wind farm (3 MW turbines) in 

China found at above 300 Hz, turbines 

produced sound that was similar to 

background levels (Zhang et al., 2021). 

Other studies by Jansen and de Jong 

(2016) and Tougaard et al. (2009) 

determined that, while marine 

mammals would be able to detect 

operational noise from offshore wind 

farms (again, based on older 2 MW 

models) for several kilometers, they 

expected no significant impacts on 

individual survival, population 

viability, marine mammal distribution, 

or the behavior of the animals 

considered in their study (harbor 

porpoises and harbor seals). 

More recently, Sto ̈ber and Thomsen 

(2021) used monitoring data and 

modeling to estimate noise generated by 

more recently developed, larger (10 


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MW) direct-drive WTGs. Their findings, 

similar to Tougaard et al. (2020), 

demonstrate that there is a trend that 

operational noise increases with turbine 

size. Their study predicts broadband 

source levels could exceed 170 dB 

SPLrms for a 10 MW WTG. However, 

those noise levels were generated based 

on geared turbines; newer turbines 

operate with direct drive technology. 

The shift from using gear boxes to direct 

drive technology is expected to reduce 

the levels by 10 dB. The findings in the 

Sto ̈ber and Thomsen (2021) study have 

not been experimentally validated, 

though the modeling (using largely 

geared turbines) performed by Tougaard 

et al. (2020) yields similar results for a 

hypothetical 10 MW WTG. Overall, 

noise from operating turbines would 

raise ambient noise levels in the 

immediate vicinity of the turbines. 

However, the spatial extent of increased 

noise levels would be limited. NMFS 

proposes to require Atlantic Shores to 

measure operational noise levels. 

In addition, Madsen et al. (2006b) 

found the intensity of noise generated 

by operational wind turbines to be 

much less than the noises present 

during construction, although this 

observation was based on a single 

turbine with a maximum power of 2 

MW. Other studies by Jansen and de 

Jong (2016) and Tougaard et al. (2009) 

determined that, while marine 

mammals would be able to detect 

operational noise from offshore wind 

farms (again, based on older 2 MW 

models) for several thousand kilometer, 

they expected no significant impacts on 

individual survival, population 

viability, marine mammal distribution, 

or the behavior of the animals 

considered in their study (harbor 

porpoises and harbor seals). 

More recently, Sto ̈ber and Thomsen 

(2021) used monitoring data and 

modeling to estimate noise generated by 

more recently developed, larger (10 

MW) direct-drive WTGs. Their findings, 

similar to Tougaard et al. (2020), 

demonstrate that there is a trend that 

operational noise increases with turbine 

size. Their study found noise levels 

could exceed 170 (to 177 dB re 1 mPa 

SPLrms for a 10 MW WTG). However, 

those noise levels were generated by 

geared turbines, but newer turbines 

operate with direct drive technology. 

The shift from using gear boxes to direct 

drive technology is expected to reduce 

the sound level by 10 dB. The findings 

in the Sto ̈ber and Thomsen (2021) study 

have not been validated. As Atlantic 

Shores did not request, and NMFS is not 

proposing to authorize, take incidental 

to operational noise from WTGs, the 

topic is not discussed or analyzed 

further herein. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes proposed 

for authorization under the regulations, 

which will inform both NMFS’ 

consideration of ‘‘small numbers’’ and 

the negligible impact determination. 

Harassment is the only type of take 

expected to result from these activities. 

Except with respect to certain activities 

not pertinent here, section 3(18) of the 

MMPA defines ‘‘harassment’’ as any act 

of pursuit, torment, or annoyance, 

which has the potential to injure a 

marine mammal or marine mammal 

stock in the wild (Level A harassment) 

or has the potential to disturb a marine 

mammal or marine mammal stock in the 

wild by causing disruption of behavioral 

patterns, including, but not limited to, 

migration, breathing, nursing, breeding, 

feeding, or sheltering (Level B 

harassment). 

Authorized takes would primarily be 

by Level B harassment, as noise from 

pile driving and HRG surveys could 

result in behavioral disturbance of 

marine mammals that qualifies as take. 

Impacts such as masking and TTS can 

contribute to the disruption of 

behavioral patterns and are accounted 

for within those requested takes. There 

is also some potential for auditory 

injury (Level A harassment) of 9 species 

of marine mammals (including 9 

stocks), not including the North Atlantic 

right whale. However, the amount of 

Level A harassment that Atlantic Shores 

requested, and NMFS proposes to 

authorize, is low. While NMFS is 

proposing to authorize Level A 

harassment and Level B harassment, the 

proposed mitigation and monitoring 

measures are expected to minimize the 

amount and severity of such taking to 

the extent practicable (see Proposed 

Mitigation and Proposed Monitoring 

and Reporting). 

As described previously, no serious 

injury or mortality is anticipated or 

proposed to be authorized incidental to 

the specified activities. Even without 

mitigation, both pile driving activities 

and HRG surveys would not have the 

potential to directly cause marine 

mammal mortality or serious injury. 

While, in general, mortality and serious 

injury of marine mammals could occur 

from vessel strikes, the mitigation and 

monitoring measures contained within 

this proposed rule are expected to lower 

the risk of vessel strike such that the 

risk is discountable (see Proposed 

Mitigation section). Atlantic Shores has 

not requested, and NMFS is not 

authorizing, take by vessel strike. No 

other activities have the potential to 

result in mortality or serious injury. 

For acoustic impacts, we estimate take 

by considering: (1) acoustic thresholds 

above which the best available science 

indicates marine mammals will be 

behaviorally harassed or incur some 

degree of permanent hearing 

impairment; (2) the area or volume of 

water that will be ensonified above 

these levels in a day; (3) the density or 

occurrence of marine mammals within 

these ensonified areas; and, (4) the 

number of days of activities. We note 

that while these factors can contribute 

to a basic calculation to provide an 

initial prediction of potential takes, 

additional information that can 

qualitatively inform take estimates is 

also sometimes available (e.g., previous 

monitoring results or average group 

size). Below, we describe the factors 

considered here in more detail and 

present the proposed take estimates. 

As described below, there are three 

primary methods (i.e., density-based, 

PSO-based, or mean group size) 

available to predict the amount of 

harassment that may occur incidental to 

the proposed project. Alternatively, for 

each species and activity, the largest 

value resulting from the three take 

estimation methods described below 

was carried forward as the amount of 

requested take, by Level B harassment. 

The amount of requested take, by Level 

A harassment, reflects the density-based 

exposure estimates and, for some 

species and activities, consideration of 

other data such as mean group size. 

Below, we describe NMFS’ acoustic 

thresholds, acoustic and exposure 

modeling methodologies, marine 

mammal density calculation 

methodology, occurrence information, 

and the modeling and methodologies 

applied to estimate take for each 

specified activity. NMFS has carefully 

considered all information and analysis 

presented by Atlantic Shores, as well as 

all other applicable information and, 

based on the best available science, 

concurs that Atlantic Shores’ proposed 

take estimates of the types and amounts 

of take for each species and stock are 

reasonable, with some minor 

adjustments, and is proposing to 

authorize the adjusted amount 

requested. NMFS notes the take 

estimates described herein for 

foundation installation are substantially 

conservative as the estimates do not 

reflect the implementation of clearance 

and shutdown zones for any marine 

mammal species or stock. In addition, 

our estimates for Project 2 assume pin 

pile buildouts where requested; 

however, Atlantic Shores may use 

monopiles instead in certain instances, 


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which will result in generally lesser 

take. 

Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 

received level of underwater sound 

above which exposed marine mammals 

would be reasonably expected to be 

behaviorally harassed (Level B 

harassment) or to incur PTS of some 

degree (Level A harassment). A 

summary of all NMFS’ thresholds can 

be found at https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance. 

Level B Harassment 

Though significantly driven by 

received level, the onset of behavioral 

disturbance from anthropogenic noise 

exposure is also informed to varying 

degrees by other factors related to the 

source or exposure context (e.g., 

frequency, predictability, duty cycle, 

duration of the exposure, signal-to-noise 

ratio, distance to the source, ambient 

noise, and the receiving animal’s 

hearing, motivation, experience, 

demography, behavior at time of 

exposure, life stage, depth) and can be 

difficult to predict (e.g., Southall et al., 

2007, 2021; Ellison et al., 2012). Based 

on what the available science indicates 

and the practical need to use a threshold 

based on a metric that is both 

predictable and measurable for most 

activities, NMFS typically uses a 

generalized acoustic threshold based on 

received level to estimate the onset of 

behavioral harassment. 

NMFS generally predicts that marine 

mammals are likely to be behaviorally 

harassed in a manner considered to be 

Level B harassment when exposed to 

underwater anthropogenic noise above 

the received sound pressure levels 

(SPLRMS) of 120 dB for continuous 

sources (e.g., vibratory pile-driving, 

drilling) and above the received SPLRMS

160 dB for non-explosive impulsive or 

intermittent sources (e.g., impact pile 

driving, scientific sonar). Generally 

speaking, Level B harassment take 

estimates based on these behavioral 

harassment thresholds are expected to 

include any likely takes by TTS as, in 

most cases, the likelihood of TTS occurs 

at distances from the source less than 

those at which behavioral harassment is 

likely. TTS of a sufficient degree can 

manifest as behavioral harassment, as 

reduced hearing sensitivity and the 

potential reduced opportunities to 

detect important signals (conspecific 

communication, predators, prey) may 

result in changes in behavioral patterns 

that would not otherwise occur. 

The proposed project’s construction 

activities include the use of continuous 

(e.g., vibratory pile driving) and 

impulsive or intermittent sources (e.g., 

impact pile driving, some HRG acoustic 

sources); therefore, the 120 and 160 dB 

re 1 mPa (rms) thresholds are applicable 

to our analysis. 

Level A Harassment 

NMFS’ Technical Guidance for 

Assessing the Effects of Anthropogenic 

Sound on Marine Mammal Hearing 

(Version 2.0; Technical Guidance) 

(NMFS, 2018) identifies dual criteria to 

assess auditory injury (Level A 

harassment) to five different marine 

mammal groups (based on hearing 

sensitivity) as a result of exposure to 

noise from two different types of 

sources (impulsive or non-impulsive). 

As dual metrics, NMFS considers onset 

of PTS (Level A harassment) to have 

occurred when either one of the two 

metrics is exceeded (i.e., metric 

resulting in the largest isopleth). As 

described above, the proposed activities 

include the use of both impulsive and 

non-impulsive sources. NMFS’ 

thresholds identifying the onset of PTS 

are provided in Table 6. The references, 

analysis, and methodology used in the 

development of the thresholds are 

described in NMFS’ 2018 Technical 

Guidance, which may be accessed at 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance. 

TABLE 6—PERMANENT THRESHOLD SHIFT (PTS) ONSET THRESHOLDS * 

[NMFS, 2018] 

Hearing group 

PTS onset thresholds * (received level) 

Impulsive Non-impulsive 

Low-Frequency (LF) Cetaceans ...................................... Cell 1: Lp,0-pk,flat: 219 dB; LE,p,LF,24h: 183 dB .................. Cell 2: LE,p,LF,24h: 199 dB. 

Mid-Frequency (MF) Cetaceans ...................................... Cell 3: Lp,0-pk,flat: 230 dB; LE,p,MF,24h: 185 dB ................. Cell 4: LE,p,MF,24h: 198 dB. 

High-Frequency (HF) Cetaceans ..................................... Cell 5: Lp,0-pk,flat: 202 dB; LE,p,HF,24h: 155 dB ................. Cell 6: LE,p,HF,24h: 173 dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7: Lp,0-pk.flat: 218 dB; LE,p,PW,24h: 185 dB ................ Cell 8: LE,p,PW,24h: 201 dB. 

* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound 

has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds are recommended 

for consideration. 

Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 μPa, and weighted cumulative sound exposure level (LE,p) has a reference value of 1μPa2s. In this table, thresholds are abbreviated to be more reflective of International Organization for Standardization standards 

(ISO, 2017). The subscript ‘‘flat’’ is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative sound exposure level thresholds indicates the 

designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these thresholds 

will be exceeded. 

Below we describe the assumptions 

and methodologies used to estimate 

take, in consideration of acoustic 

thresholds and appropriate marine 

mammals density and occurrence 

information, for WTG, OSS, and Met 

Tower foundation installation, 

temporary cofferdam installation, and 

HRG surveys. Resulting distances to 

thresholds, densities used, activityspecific exposure estimates (as relevant 

to the analysis), and activity-specific 

take estimates can be found in each 

activity subsection below. At the end of 

this section, we present the amount of 

annual and 5-year take that Atlantic 

Shores requested, and NMFS proposes 

to authorize, from all activities 

combined. 

Acoustic and Exposure Modeling 

The predominant underwater noise 

associated with the construction of the 

project results from impact and 

vibratory pile driving. Atlantic Shores 

employed JASCO Applied Sciences 

(USA) Inc. (JASCO) to conduct acoustic 

modeling to better understand sound 

fields produced during these activities 

(Weirathmueller et al., 2022). The basic 


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modeling approach is to characterize the 

sounds produced by the source, and 

determine how the sounds propagate 

within the surrounding water column. 

For impact pile driving, JASCO 

conducted sophisticated source and 

propagation modeling (as described 

below). For vibratory pile driving 

activities, JASCO applied in situ data to 

estimate source levels and applied more 

simple propagation modeling. To assess 

the potential for take from impact pile 

driving, JASCO also conducted animal 

movement modeling to estimate 

exposures; JASCO estimated speciesspecific exposure probability by 

considering the range- and depthdependent sound fields in relation to 

animal movement in simulated 

representative construction scenarios. 

To assess the potential for take from 

vibratory pile driving, exposure 

modeling was not conducted; instead, a 

density-based estimation approach was 

used. More details on these acoustic 

source modeling, propagation modeling, 

and exposure modeling methods are 

described below. 

JASCO’s Pile Driving Source Model 

(PDSM), a physical model of pile 

vibration and near-field sound radiation 

(MacGillivray, 2014), was used in 

conjunction with the GRL, Inc Wave 

Equation Analysis of Pile Driving 

(GRLWEAP) 2010 wave equation model 

(Pile Dynamics, 2010) to predict 

representative source levels associated 

with impact pile driving activities 

(WTG, OSS, and Met Tower foundation 

installation). The PDSM physical model 

computes the underwater vibration and 

sound radiation of a pile by solving the 

theoretical equations of motion for axial 

and radial vibrations of a cylindrical 

shell. This model is used to estimate the 

energy distribution per frequency 

(source spectrum) at a close distance 

from the source (10 m). Piles are 

modeled as a vertical installation using 

a finite-difference structural model of 

pile vibration based on thin-shell 

theory. To model the sound emissions 

from the piles, the force of the pile 

driving hammers also had to be 

modeled. The force at the top of each 

monopile and jacket foundation pile 

was computed using the GRLWEAP 

2010 wave equation model, which 

includes a large database of simulated 

hammers. The forcing functions from 

GRLWEAP were used as inputs to the 

finite difference model to compute the 

resulting pile vibrations (see Figures 8– 

10 in Appendix B of Atlantic Shores’ 

ITA application for the computed 

forcing functions). The sound radiating 

from the pile itself was simulated using 

a vertical array of discrete point sources. 

These models account for several 

parameters that describe the operation— 

pile type, material, size, and length—the 

pile driving equipment, and 

approximate pile penetration depth. The 

model assumed direct contact between 

the representative hammers, helmets, 

and piles (i.e., no cushioning material). 

For both jacket and monopile 

foundation models, the piles are 

assumed to be vertical and driven to a 

penetration depth of 70 m (230 ft) and 

60 m (197 ft), respectively. 

Atlantic Shores is required to employ 

noise abatement systems (NAS), also 

known as noise attenuation systems, 

during all foundation installation (i.e., 

impact pile driving) activities to reduce 

the sound pressure levels that are 

transmitted through the water in an 

effort to reduce ranges to acoustic 

thresholds and minimize any acoustic 

impacts resulting from the activities. 

Atlantic Shores is required to use 

whatever technology is necessary to 

ensure that measured sound levels do 

not exceed the levels modeled for a 10- 

dB sound level reduction for foundation 

installation, which is likely to include a 

double big bubble curtain combined 

with another NAS (e.g., hydro-sound 

damper, or an AdBm Helmholtz 

resonator), as well as the adjustment of 

operational protocols to minimize noise 

levels. Other systems that could be 

implemented include an evacuated 

sleeve system (e.g., IHC-Noise 

Mitigation System (NMS)), or 

encapsulated bubble systems (e.g., 

HydroSound Dampers (HSD)) to reduce 

sound levels. Hence, hypothetical 

broadband attenuation levels of 0 dB, 6 

dB, 10 dB, and 15 dB were incorporated 

into the foundation source models to 

gauge effects on the ranges to thresholds 

given these levels of attenuation 

(Appendix B of the ITA application). 

Although four attenuation levels were 

evaluated, Atlantic Shores and NMFS 

anticipate that the noise attenuation 

system ultimately chosen will be 

capable of reliably reducing source 

levels by 10 dB; therefore, this 

assumption was carried forward in this 

analysis for monopile and jacket 

foundation pile driving installation. See 

the Proposed Mitigation section for 

more information regarding the 

justification for the 10-dB assumption. 

In addition to considering noise 

abatement, the amount of sound 

generated during pile driving varies 

with the energy required to drive piles 

to a desired depth and depends on the 

sediment resistance encountered. 

Sediment types with greater resistance 

require hammers that deliver higher 

energy strikes and/or an increased 

number of strikes relative to 

installations in softer sediment. 

Maximum sound levels usually occur 

during the last stage of impact pile 

driving where the greatest resistance is 

encountered (Betke, 2008). Key 

modeling assumptions for the 

monopiles and pin piles are listed in 

Table 7 (additional modeling details and 

input parameters can be found in Table 

B–1 in Appendix B of Atlantic Shores’ 

ITA application). Hammer energy 

schedules for monopiles (12-m and 15- 

m) and pin piles (5-m) are provided in 

Table 8, respectively. Decidecade 

spectral source levels for each pile type, 

hammer energy, and modeled location 

for summer sound speed profiles can be 

found in Appendix B of Atlantic Shores’ 

ITA application (see Figures 11 to 13 in 

the application). 

TABLE 7—KEY PILING ASSUMPTIONS USED IN THE SOURCE MODELING

Foundation type 

Maximum impact 

hammer energy 

(kJ) 

Wall thickness 

(mm) 

Pile length 

(m) 

Seabed 

penetration 

depth 

(m) 

Number 

per day 

12-m Monopile Foundation ...................................................... 4,400 130 101 60 2 

15-m Monopile Foundation ...................................................... 4,400 162 105 60 2 

5-m Pin Pile for Jacket Foundation ......................................... 2,500 72 76 70 4 


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TABLE 8—HAMMER ENERGY SCHEDULES FOR MONOPILES AND PIN PILES USED IN SOURCE MODELING

Modeled installation scenario Hammer model Energy level 

(kJ) Strike count 

Pile 

penetration 

range 

(m) 

Strike rate 

(strikes/min) 

12-m Monopile Foundation .................... Menck MHU 4400S ................... 1,400 750 5 30 

1,800 1,250 5 

2,000 4,650 15 

3,000 4,200 15 

4,400 1,500 5 

Total 12,350 45 

15-m Monopile Foundation .................... Menck MHU 4400S ................... 480 1,438 8 30 

800 1,217 3 

1,600 1,472 4 

2,500 2,200 5 

3,000 4,200 10 

4,000 2,880 9 

4,400 1,980 6 

Total 15,387 45 

5-m Pin Piles for Jacket Foundation ...... IHC S–2500 ............................... 1,200 700 10 30 

1,400 2,200 20 

1,800 2,100 15 

2,500 1,750 10 

Total 6,750 55 

Within these assumptions, jacket 

foundations were assumed to be preand post-piled. Pre-piled means that the 

jacket structure is set on pre-installed 

piles while post-piling means that that 

jacket structure is placed on the seafloor 

and the piles are subsequently driven 

through guides located at the base of 

each jacket leg. Due to these installation 

approaches, the jacket structure itself 

radiates sound, which needs to be 

accounted for in the modeling. Because 

of this, JASCO estimated a larger 

broadband sound level for the piles (+2 

dB) for the post-piling scenario. 

After calculating source levels, 

Atlantic Shores used propagation 

models to estimate distances to NMFS’ 

harassment thresholds. The propagation 

of sound through the environment can 

be modeled by predicting the acoustic 

propagation loss—a measure, in 

decibels, of the decrease in sound level 

between a source and a receiver some 

distance away. Geometric spreading of 

acoustic waves is the predominant way 

by which propagation loss occurs. 

Propagation loss also happens when the 

sound is absorbed and scattered by the 

seawater, and absorbed, scattered, and 

reflected at the water surface and within 

the seabed. Propagation loss depends on 

the acoustic properties of the ocean and 

seabed and its value changes with 

frequency. Acoustic propagation 

modeling for impact pile driving 

applied JASCO’s Marine Operations 

Noise Model (MONM) and Full Wave 

Range Dependent Acoustic Model 

(FWRAM) that combine the outputs of 

the source model with the spatial and 

temporal environmental context (e.g., 

location, oceanographic conditions, and 

seabed type) to estimate sound fields. 

The lower frequency bands were 

modeled using MONM–RAM, which is 

based on the parabolic equation method 

of acoustic propagation modeling. For 

higher frequencies, additional losses 

resulting from absorption were added to 

the transmission loss model. See 

Appendix B and D in Atlantic Shores’ 

application (and supplemental memos) 

for more detailed descriptions of 

JASCO’s propagation models. 

Sounds produced by installation of 

the proposed monopiles and pin piles 

were modeled at two sites (L01 and L02) 

for the 12-m and 15-m diameter 

monopile foundations and for the 5-m 

pin piles for jacket foundations—L01 in 

the southern section of the Lease Area 

in 36.1 m (118.4 ft) of water depth and 

L02 in the northeastern section of the 

Lease Area in 28.1 m (92.2 ft) of water 

depth. Modeling locations are shown in 

Figure 2 of Appendix B in the ITA 

application. For temporary cofferdams, 

simpler propagation modeling using insitu data was performed using 

information from Illingworth & Rodkin 

(2017), which measured the sound 

exposure level at 10 m (32.8 ft) distance 

from the pile for sheet piles using a 

vibratory hammer. JASCO used the 

source spectrum produced from this 

study (see Figure 2 in Appendix D, the 

revised cofferdam memo) to define the 

expected source characteristics during 

Atlantic Shores’ cofferdam installation 

and removal activities. JASCO’s model, 

MONM, was again used to predict the 

SEL and SPL fields at representative 

locations near the proposed cofferdam 

locations, considering the influences of 

bathymetry, seabed properties, water 

sound speed, and water attenuation. 

Sheet piles were represented as a point 

source at a depth of 2 m (6.56 ft). 

Due to seasonal changes in the water 

column, sound propagation is likely to 

differ at different times of the year. The 

speed of sound in seawater depends on 

the temperature T (degree Celsius), 

salinity S (parts per thousand (ppt)), and 

depth D (m) and can be described using 

sound speed profiles. Oftentimes, a 

homogeneous or mixed layer of constant 

velocity is present in the first few 

meters. It corresponds to the mixing of 

surface water through surface agitation. 

There can also be other features, such as 

a surface channel, which corresponds to 

sound velocity increasing from the 

surface down. This channel is often due 

to a shallow isothermal layer appearing 

in winter conditions, but can also be 

caused by water that is very cold at the 

surface. In a negative sound gradient, 

the sound speed decreases with depth, 

which results in sound refracting 

downwards which may result in 

increased bottom losses with distance 

from the source. In a positive sound 


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gradient, as is predominantly present in 

the winter season, sound speed 

increases with depth and the sound is, 

therefore, refracted upwards, which can 

aid in long distance sound propagation. 

Within the Project Area from July 

through September, the average 

temperature of the upper 10 m to 15 m 

of the water column is higher, resulting 

in an increased surface layer sound 

speed. 

Acoustic propagation modeling for 

impact pile driving foundations was 

conducted using an average sound 

speed profile for a summer period given 

this would be when Atlantic Shores 

would conduct the majority, if not all of 

its foundation installation work. 

Vibratory pile driving for cofferdams 

used a mean summer (June–August) and 

mean winter (December–February), 

given the specifics described in the 

construction schedule. FWRAM 

computes pressure waveforms via 

Fourier synthesis of the modeled 

acoustic transfer function in closely 

spaced frequency bands. Examples of 

decidecade spectral levels for each 

foundation pile type, hammer energy, 

and modeled location, using average 

summer sound speed profile are 

provided in Weirathmueller et al. 

(2022). Resulting distances to NMFS’ 

harassment thresholds for impact 

driving and vibratory driving 

cofferdams can be found in the WTG, 

OSS, and Met Tower Foundation 

Installation and Cable Landfall 

Activities subsections, respectively, 

below. 

To estimate the probability of 

exposure of animals to sound above 

NMFS’ harassment thresholds during 

impact pile driving for foundation 

installation, JASCO’s Animal 

Simulation Model Including Noise 

Exposure (JASMINE) was used to 

integrate the sound fields generated 

from the source and propagation models 

described above with species-typical 

behavioral parameters (e.g., dive 

patterns). Sound exposure models such 

as JASMINE use simulated animals 

(animats) to sample the predicted 3–D 

sound fields with movement rules 

derived from animal observations. 

Animats that exceed NMFS’ acoustic 

thresholds are identified and the range 

for the exceedances determined. The 

output of the simulation is the exposure 

history for each animat within the 

simulation. An individual animat’s 

sound exposure levels are summed over 

a specific duration (24 hours), to 

determine its total received acoustic 

energy (sound exposure level (SEL)) and 

maximum received PK and SPL. These 

received levels are then compared to the 

threshold criteria within each analysis 

period. 

JASCO ran JASMINE simulations for 

7 days, assuming piling every day. 

Separate simulations were run for each 

scenario (e.g., pile diameter/number of 

piles per day/season combination). The 

combined history of all animats gives a 

probability density function of exposure 

during the project. The number of 

animals expected to exceed the 

regulatory thresholds per day is 

determined by scaling the number of 

predicted animat exposures by the 

species-specific density of animals in 

the area. The average number of 

exposures per day for the scenario in 

question was then multiplied by the 

number of days of pile driving planned 

for that scenario. In general, the number 

of days of pile driving is more 

influential in determining total 

exposures for Level B harassment than 

Level A harassment. However, the use 

of other conservative parameters (e.g., 

assuming most pile driving occurs in 

highest density months) in the 

calculation ensure that, regardless, the 

estimated take numbers appropriately 

represent the maximum number of 

instances marine mammals are 

reasonably likely to be harassed by the 

activities. 

By programming animats to behave 

like marine species that may be present 

near the Project Area, the sound fields 

are sampled in a manner similar to that 

expected for real animals. The 

parameters used for forecasting realistic 

behaviors (e.g., diving, foraging, and 

surface times) were determined and 

interpreted from marine species studies 

(e.g., tagging studies) where available, or 

reasonably extrapolated from related 

species (Weirathmueller et al., 2022). 

For modeled animals that have 

received enough acoustic energy to 

exceed a given harassment threshold, 

the exposure range for each animal is 

defined as the closest point of approach 

(CPA) to the source made by that animal 

while it moved throughout the modeled 

sound field, accumulating received 

acoustic energy. The CPA for each of the 

species-specific animats during a 

simulation is recorded and then the 

CPA distance that accounts for 95 

percent of the animats that exceed an 

acoustic impact threshold is 

determined. The ER95% (95 percent 

exposure radial distance) is the 

horizontal distance that includes 95 

percent of the CPAs of animats 

exceeding a given impact threshold. The 

ER95% ranges are species-specific rather 

than categorized only by any functional 

hearing group, which allows for the 

incorporation of more species-specific 

biological parameters (e.g., dive 

durations, swim speeds, etc.) for 

assessing the potential for PTS from 

impact pile driving. 

Atlantic Shores also calculated 

acoustic ranges which represent the 

distance to harassment thresholds based 

on sound propagation through the 

environment independent of any 

receiver. As described above, applying 

animal movement and behavior within 

the modeled noise fields allows for a 

more realistic indication of the 

distances at which PTS acoustic 

thresholds are reached that considers 

the accumulation of sound over 

different durations. The use of acoustic 

ranges (R95%) to the Level A harassment 

SELcum metric thresholds to assess the 

potential for PTS is considered overly 

conservative as it does not account for 

animal movement and behavior and, 

therefore, assumes that animals are 

essentially stationary at that distance for 

the entire duration of the pile 

installation, a scenario that does not 

reflect realistic animal behavior. The 

acoustic ranges to the SELcum Level A 

harassment thresholds for impact pile 

driving can be found in Atlantic Shores’ 

ITA application but will not be 

discussed further in this analysis. 

However, because NMFS’ Level A 

harassment (PTS dBpeak) and Level B 

harassment (SPL) thresholds refer to 

instantaneous exposures, acoustic 

ranges are more relevant to the analysis. 

Also, because animat modeling was not 

conducted for vibratory pile driving, 

acoustic range is used to assess Level A 

harassment (dB SEL). Acoustic ranges to 

the Level A harassment (dBpeak), Level A 

harassment (dB SEL; vibratory pile 

driving only), and Level B harassment 

threshold for each activity are provided 

in the WTG, OSS, and Met Tower 

Foundation Installation subsection 

below. The differences between 

exposure ranges and acoustic ranges for 

Level B harassment are minimal given it 

is an instantaneous method. 

Density and Occurrence 

In this section we provide the 

information about marine mammal 

density, presence, and group dynamics 

that informed the take calculations for 

all activities. For foundation installation 

and temporary cofferdam installation 

and removal, JASCO performed the 

analysis, while Environmental Design & 

Research, Landscape Architecture, 

Engineering & Environmental Services, 

D.P.C. (EDR) assessed HRG surveys, on 

behalf of Atlantic Shores. In either case, 

the 2022 Duke University Marine 

Geospatial Ecology Laboratory Habitatbased Marine Mammal Density Models 

for the U.S. Atlantic (i.e., the Duke 

University density models; Roberts et 


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al., 2016; Roberts et al., 2023) were 

applied to estimate take from 

foundation installation, temporary 

cofferdam installation and removal, and 

HRG surveys (please see each activity 

subsection below for the resulting 

densities). The models estimate absolute 

density (individuals/100 km2) by 

statistically correlating sightings 

reported on shipboard and aerial 

surveys with oceanographic conditions. 

For most marine mammal species, 

densities are provided on a monthly 

basis. Where monthly densities are not 

available (e.g., pilot whales), annual 

densities are provided. Moreover, some 

species are represented as guilds (e.g., 

seals (representing Phocidae spp. 

comprising harbor and gray seals) and 

pilot whales (representing short-finned 

and long-finned pilot whales)). 

The Duke University density models 

delineate species’ density into 5 x 5 km 

(3.1 x 3.1 mi) grid cells. Atlantic Shores 

calculated mean monthly densities for 

each species using grid cells within the 

Lease Area and a predetermined buffer 

around the Lease Area that represented 

the expected ensonified area to NMFS’ 

harassment thresholds for each soundproducing activity. All 5 x 5 km grid 

cells in the models that fell partially or 

fully within the analysis polygon were 

considered in the calculations. Cells 

that fell entirely on land were not 

included, but cells that overlapped only 

partially with land were included. 

For impact pile driving, the buffer 

from the edge of the Lease Area was 

chosen as it was based on the largest 10 

dB-attenuated (from the bubble curtain/ 

NAS) exposure range calculated based 

on installation of a 15-m monopile using 

a 4,400 kJ hammer (3.9 km (2.4); Table 

9). For vibratory pile driving associated 

with temporary cofferdam installation 

and removal, Atlantic Shores applied 

the applicable buffer sizes at each of the 

landfall locations (7.546 km (4.7 mi) at 

the Atlantic site and 11.286 km (7 mi) 

at the Monmouth site) based on the R95%

value for the largest acoustic range to 

threshold (Table 10). For HRG surveys, 

Atlantic Shores mapped the density 

data within the boundary of each survey 

area using geographic information 

systems (GIS). No buffer was applied 

given the small distance to Level B 

harassment (<200 m) during surveys 

compared to the grid cell size in the 

Duke University density models (5 x 5 

km; Table 11). 


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TABLE 9—MEAN

MONTHLY AND

ANNUAL

MARINE

MAMMAL

DENSITY

ESTIMATES (ANIMALS/100 km2) FOR IMPACT

PILE

DRIVING

CONSIDERING A 3.9-km BUFFER

AROUND THE

LEASE

AREA a

Marine mammal species Jan Feb Mar Apr May Jun July Aug Sep Oct Nov Dec Annual mean May–Dec mean 

North Atlantic right whale * ........ 0.069 0.074 0.062 0.046 0.010 0.003 0.001 0.001 0.002 0.004 0.010 0.042 0.027 0.009 Fin whale * ................................. 0.178 0.123 0.098 0.099 0.088 0.075 0.047 0.028 0.029 0.031 0.038 0.141 0.081 0.060 Humpback whale ....................... 0.093 0.065 0.084 0.101 0.091 0.058 0.011 0.006 0.020 0.065 0.086 0.121 0.067 0.057 Minke whale ............................... 0.051 0.049 0.049 0.737 0.810 0.202 0.054 0.026 0.015 0.066 0.016 0.042 0.176 0.154 Sei whale * ................................. 0.026 0.016 0.034 0.074 0.027 0.006 0.001 0.001 0.002 0.008 0.026 0.042 0.022 0.014 Sperm whale * ............................ 0.004 0.002 0.001 0.007 0.010 0.005 0.003 0.000 0.000 0.000 0.003 0.004 0.003 0.003 Atlantic spotted dolphin ............. 0.001 0.000 0.001 0.003 0.006 0.012 0.028 0.133 0.109 0.147 0.113 0.008 0.047 0.070 Atlantic white-sided dolphin ....... 0.355 0.225 0.221 0.673 0.755 0.605 0.018 0.004 0.059 0.556 0.591 0.601 0.389 0.399 Bottlenose dolphin, offshore d .... 1.409 0.489 0.732 2.460 6.311 8.449 9.350 9.485 8.613 8.335 9.468 5.944 5.920 8.244 Bottlenose dolphin, coastal d ...... 2.917 1.024 2.053 8.290 20.869 27.429 29.272 31.415 32.096 29.744 30.414 16.667 19.349 27.238 Common dolphin ........................ 2.754 1.139 1.347 2.751 3.431 1.695 0.939 0.507 0.085 1.006 5.315 5.876 2.237 2.357 Long-finned pilot whale b ............ .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. 0.016 ................Short-finned pilot whale b ........... .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. 0.012 ................Risso’s dolphin ........................... 0.015 0.002 0.003 0.031 0.029 0.008 0.006 0.006 0.006 0.013 0.074 0.115 0.026 0.032 Harbor porpoise ......................... 3.968 3.756 3.091 4.161 1.025 0.033 0.023 0.016 0.003 0.007 0.029 2.891 1.584 0.503 Gray seal c ................................. 4.881 3.521 2.352 2.866 4.508 0.492 0.080 0.054 0.120 0.639 1.731 4.588 2.153 1.527 Harbor seal c .............................. 10.967 7.911 5.285 6.439 10.127 1.106 0.180 0.122 0.271 1.437 3.889 10.308 4.837 3.430 

Note: * denotes species listed under the Endangered Species Act. a Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts et al., 2023). b Long- and short-finned pilot whale densities are the annual pilot whale guild density scaled by their relative abundances. cGray and harbor seal densities are the seals guild density scaled by their relative abundances. dBottlenose dolphin stocks were split based on the 3.9 km buffer at the 20-m isobath where the coastal stock was allocated to areas <20 m and the offshore stock for areas >20 m. 


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TABLE 10—MAXIMUM MONTHLY DENSITIES a (NO/100 km2) FOR SEPTEMBER THROUGH MAY USED TO ANALYZE

COFFERDAM ACTIVITIES b

Marine mammal species Monmouth site Atlantic site 

North Atlantic right whale * .............................................................................................................................. 0.035 0.092 

Fin whale * ....................................................................................................................................................... 0.117 0.052 

Humpback whale ............................................................................................................................................. 0.132 0.114 

Minke whale ..................................................................................................................................................... 0.526 0.136 

Sei whale * ....................................................................................................................................................... 0.046 0.018 

Sperm whale * .................................................................................................................................................. 0.008 0.002 

Atlantic spotted dolphin ................................................................................................................................... 0.033 0.014 

Atlantic white-sided dolphin ............................................................................................................................. 0.206 0.051 

Common dolphin .............................................................................................................................................. 2.058 0.524 

Bottlenose dolphin (offshore stock) c ............................................................................................................... 22.53 0 

Bottlenose dolphin (coastal stock) c ................................................................................................................. 27.795 146.614

Long-finned pilot whale d ................................................................................................................................. 0 0 

Short-finned pilot whale d ................................................................................................................................. 0 0 

Risso’s dolphin ................................................................................................................................................. 0.02 0.002 

Harbor porpoise ............................................................................................................................................... 2.768 0.821 

Gray seal e ....................................................................................................................................................... 4.477 9.029 

Harbor seal e .................................................................................................................................................... 10.059 20.287 

Note: * denotes species listed under the Endangered Species Act. a Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts et al., 

2023). b Density estimates are based on habitat-based density modeling of the entire Atlantic Exclusive Economic zone (EEZ). 

cFor both bottlenose dolphin stocks, the impact area was split at the 20-m isobath where the coastal stock was assumed to be in <20 m in 

depth and the offshore stock were allocated to waters >20 m in depth. dFor long- and short-finned pilot whale densities, annual pilot whale guild densities were scaled by the relative abundance of each species. 

eFor gray and harbor seal densities, the Roberts et al. (2023) seal guild was scaled by the relative abundance of each species. 

TABLE 11—MAXIMUM SEASONAL DENSITIES USED TO ANALYZE THE ANNUAL HRG SURVEYS FOR THE PROJECT AREA a

Marine mammal species Stock 

Maximum 

seasonal density 

(No./100 km2) b

North Atlantic right whale * ..................................................... Western Atlantic ..................................................................... 0.056 

Fin whale * .............................................................................. Western North Atlantic ........................................................... 0.114 

Humpback whale .................................................................... Gulf of Maine .......................................................................... 0.090 

Minke whale ............................................................................ Canadian Eastern Coastal ..................................................... 0.401 

Sei whale * .............................................................................. Nova Scotia ............................................................................ 0.031 

Sperm whale * ......................................................................... Western North Atlantic ........................................................... 0.005 

Atlantic spotted dolphin .......................................................... Western North Atlantic ........................................................... 0.033 

Atlantic white-sided dolphin .................................................... Western North Atlantic ........................................................... 0.278 

Bottlenose dolphin c ................................................................ Northern Migratory Coastal ....................................................

Western North Atlantic—Offshore ..........................................

36.269 

Common dolphin .................................................................... Western North Atlantic ........................................................... 1.473 

Long-finned pilot whale d ........................................................ Western North Atlantic ........................................................... 0.004 

Short-finned pilot whale d ........................................................ Western North Atlantic ........................................................... 0.003 

Risso’s dolphin ....................................................................... Western North Atlantic ........................................................... 0.017 

Harbor porpoise ...................................................................... Gulf of Maine/Bay of Fundy ................................................... 2.506 

Gray seal e .............................................................................. Western North Atlantic ........................................................... 4.319 

Harbor seal e ........................................................................... Western North Atlantic ........................................................... 9.704 

Note: * denotes species listed under the Endangered Species Act. aThe survey area accounts for waters within and around the Lease Area and the ECRs. 

b Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts et al., 

2023). cThe bottlenose dolphin density is for the species collectively, and was not delineated by stock. 

dPilot whales are reported as a single ‘‘pilot whale’’ guild within the Duke University dataset Roberts et al., 2023 and are not species-specific. 

To partition take between each of the long-finned and short-finned pilot whale species, the total density was scaled based on the abundance estimates provided in the NOAA Fisheries SARs (Hayes et al., 2023). ePinnipeds are reported as a single ‘‘seals’’ guild within the Duke University dataset (Roberts et al., 2023) and are not species-specific. To 

partition take between each of the harbor and gray seal species, the total density was scaled based on the abundance estimates provided in the 

NOAA Fisheries SARs (Hayes et al., 2023). 

Densities were computed based on 

when the proposed activities were 

expected. For foundation installation, 

densities were accrued monthly, 

annually, and specifically for the MayDecember period that coincided with 

the proposed pile driving activities. For 

temporary cofferdams, maximum 

monthly densities were calculated based 

on the planned September to May 

construction period. For HRG surveys, 

the maximum average seasonal density 

value for each marine mammal species 

was calculated. 

Here we note some exceptions, based 

on the availability of data. For the pilot 

whale guild (i.e., long-finned and shortfinned), monthly densities are 

unavailable so annual mean densities 

were used instead. Additionally, the 

models provide density for pilot whales 

as a guild that includes both species. To 

obtain density estimates for long-finned 

and short-finned pilot whales, the guild 


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density was scaled by the relative stock 

sizes based on the best available 

abundance estimate from NOAA 

Fisheries SARs (NOAA Fisheries, 

2021b). Similarly, gray and harbor seal 

densities were scaled by each of their 

relative abundances, as found in the 

NOAA Fisheries SARs (NOAA 

Fisheries, 2021b). These scaled and 

surrogate densities were carried forward 

to the exposure and take estimates. 

Please see the activity-specific 

subsections below for resulting 

densities. 

The equation below, using pilot 

whales as an example, shows how 

abundance scaling is applied to 

compute densities for the pilot whale 

and seal guilds. 

Dshort-finned = Dboth × (Nshort-finned/ 

(Nshort-finned + Nlong-finned)) 

Where D represents density and N 

represents abundance. 

For some species and activities, 

Atlantic Marine Assessment Program for 

Protected Species (AMAPPS) data from 

2010–2019 shipboard distance sampling 

surveys (Palka et al., 2021) and 

observational data collected during 

previous site assessment surveys in the 

Project Area indicate that the densitybased exposure estimates may be 

insufficient to account for the number of 

individuals of a species that may be 

encountered during the planned 

activities. This is particularly true for 

uncommon or rare species with very 

low densities in the models. Hence, 

consideration of other data is required 

to ensure the potential for take is 

adequately assessed. 

Here we note the existence of two 

different stocks of bottlenose dolphins, 

the coastal and offshore stocks, near the 

Project Area. However, the best 

available science consists of only a 

combined, single bottlenose dolphin 

density model found in Roberts et al. 

(2023). To appropriately account for 

which stock may be taken during 

foundation installation, the 3.9 km 

buffer was split at the 20-m isobath. Any 

bottlenose dolphins found within the 

20-m isobath to shore were allocated to 

the coastal stock. Any that were outside 

of the 20-m isobath more seaward were 

allocated to the offshore stock. Animat 

simulations were run for each stock 

separately with the same behavioral 

characteristics. Because of this, the 

exposure ranges are very similar 

between the two stocks as the only 

difference would be due to the different 

random seeding that was incorporated 

into the analysis. During cofferdam 

installation and removal, it was 

assumed that all dolphins near the 

Atlantic landfall site would consist of 

the coastal stock, which allowed for a 

density value of zero for the offshore 

stock. However, given the Atlantic 

landfall site did not exceed the 20-m 

isobath but the Monmouth site did, the 

area used to calculate the densities for 

bottlenose dolphins was split at the 20- 

m isobath. Because of this, any area <20 

m deep and >20 m deep were used to 

calculate the exposures and takes for the 

coastal and offshore stocks, respectively. 

For HRG surveys, given that the 

northern migratory stock has more often 

been found in waters shallower than 20 

m, the survey area was divided along 

the 20-m isobath break. Atlantic Shores 

estimated that 33 percent of the survey 

area fell from the 20-m isobath 

landward; therefore, 33 percent of the 

estimated take calculated for bottlenose 

dolphins was allocated to the coastal 

stock and the remaining was applied to 

the offshore stock. 

Mean group sizes were used in the 

take estimation and were derived from 

NMFS’ data upload to the Ocean 

Biodiversity Information System (OBIS) 

repository (OBIS, 2022), which is 

informed by information from the 

AMAPPS 2010–2019 aerial and 

shipboard surveys, North Atlantic right 

whale aerial surveys, and other surveys. 

The dataset was downloaded from OBIS 

and then filtered to include only 

observations from the Northwestern 

Atlantic region (extending from the Gulf 

of Maine to Cape Hatteras and the 

relevant shelf edge) with the institution 

owner code of ‘‘NMFS’’. From there, the 

average group sizes were calculated as 

the mean value of the 

‘‘individualCount’’ column for all 

sighting records for a species. 

Additional information was also 

incorporated based on Atlantic Shores’ 

experience with site characterization 

surveys in this region through issued 

IHAs (87 FR 24103, April 22, 2022; 88 

FR 38821, June 14, 2023). This yielded 

unique group sizes for long-finned pilot 

whales, Atlantic spotted dolphins, and 

Risso’s dolphins that were used rather 

than the OBIS dataset. 

Additional detail regarding the 

density and occurrence as well as the 

assumptions and methodology used to 

estimate take for specific activities is 

included in the activity-specific 

subsections below and in the February 

2023 update memo. Average group sizes 

used in take estimates, where 

applicable, for all activities are provided 

in Table 12. 

TABLE 12—AVERAGE MARINE MAMMAL GROUP SIZES USED IN TAKE ESTIMATE CALCULATIONS

Marine mammal species Mean group size 

North Atlantic right whale * .............................................................................................................................................................. c 3.8 

Fin whale * ....................................................................................................................................................................................... c 1.3 

Humpback whale ............................................................................................................................................................................. c 1.8 

Minke whale ..................................................................................................................................................................................... c 1.1 

Sei whale * ....................................................................................................................................................................................... c 2.1 

Sperm whale * .................................................................................................................................................................................. c 1.8 

Atlantic spotted dolphin ................................................................................................................................................................... a 100 

Atlantic white-sided dolphin ............................................................................................................................................................. c 21.4 

Common dolphin .............................................................................................................................................................................. b 1.55 

Bottlenose dolphin, coastal .............................................................................................................................................................. c 13.1 

Bottlenose dolphin, offshore ............................................................................................................................................................ 30 

Long-finned pilot whale .................................................................................................................................................................... a 20 

Short-finned pilot whale ................................................................................................................................................................... c 6.0 

Risso’s dolphin ................................................................................................................................................................................. a 20 

Harbor porpoise ............................................................................................................................................................................... c 1.3 

Gray seal ......................................................................................................................................................................................... c 1.2 

Harbor seal ...................................................................................................................................................................................... c 1.2 

Note: * denotes species listed under the Endangered Species Act. aThese mean group sizes were used in the 2022 (87 FR 24103, April 22, 2022) and 2023 (88 FR 38821, June 14, 2023) IHAs for site characterization surveys and are informed by previous HRG surveys in the area. bThe mean group size for common dolphins was based on the daily sighting rate of that species during HRG surveys. 

cThese group sizes are from the OBIS data repository (OBIS, 2022). 


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WTG, OSS, and Met Tower Foundation 

Installation 

Here we describe the results from the 

acoustic, exposure, and take estimate 

methodologies outlined above for WTG, 

OSS, and Met Tower foundation 

installation activity that have the 

potential to result in harassment of 

marine mammals (i.e., impact pile 

driving). We present exposure ranges to 

Level A harassment (SEL) thresholds 

from impact driving, acoustic ranges to 

Level A harassment (peak) and Level B 

harassment thresholds, densities, 

exposure estimates, and the amount of 

take requested and proposed to be 

authorized incidental to foundation 

installation following the 

aforementioned assumptions (e.g., 

construction and hammer schedules). 

As described above, this proposed rule 

analyzes a modified Schedule 2 which 

accommodates a full monopile WTG 

build-out of Project 1 and Met Tower 

and a full jacket buildout for the WTGs 

in Project 2. Schedule 2 assumes 

foundation installation activities would 

occur over a 2 year period (May through 

December, annually). 

As previously described, JASCO 

integrated the results from acoustic 

source and propagation modeling into 

an animal movement model to calculate 

exposure ranges for 16 marine mammal 

species (17 stocks) considered common 

in the Project Area. The resulting ranges 

represent the distances at which marine 

mammals may incur Level A 

harassment (i.e., PTS). 

As described in the Detailed 

Description of Specified Activities 

section, Atlantic Shores’ preference is to 

install 15-m monopiles but Atlantic 

Shores may alternatively install 12-m 

monopiles. Hence, we have provided 

the modeled exposure and ranges for 12- 

m and 15-m monopiles below. We note 

that because the 15-m monopiles 

produce larger sound fields in general, 

in order to ensure a conservative 

analysis, this proposed rule assumes all 

take is consistent with that expected for 

the 15-m monopiles. 

Similarly, as described in the Detailed 

Description of Specified Activities 

section, Atlantic Shores may install preor post-piled pin piles to construct the 

jacket foundations. We note that 

because post-piled pin piles produce 

larger sound fields than pre-piled piles, 

this proposed rule carries forward take 

specific to the post-piled pin piles. To 

more appropriately account for the 

larger radiated area produced around 

the jacket foundations as pin piles are 

driven, the broadband sound level 

estimated for the jacket piles was 

increased by 2 dB in all post-piling 

scenarios. 

Table 13 provides the exposure ranges 

for impact pile driving of a 12-m 

monopile, 15-m monopile, and 5-m pin 

pile and (pre- and post-piled) jacket 

foundations, assuming 10 dB of sound 

attenuation to the PTS (SEL) thresholds. 

TABLE 13—EXPOSURE RANGES (ER95%) IN KILOMETERS TO MARINE MAMMAL PTS (SEL; LEVEL A HARASSMENT) 

THRESHOLDS DURING IMPACT PILE DRIVING 12-m AND 15-m MONOPILES, AND 5-m PIN PILES (PRE- AND POSTPILED) FOR JACKETS, ASSUMING 10 dB ATTENUATION

Marine mammal hearing group 

and species 

12-m monopiles, 

4,400 kJ hammer 

15-m monopiles, 

4,400 kJ hammer 

5-m pin piles, 

2,500 kJ hammer 

One pile/day Two 

piles/day b One pile/day Two 

piles/day b

Four 

pin piles/day 

(pre-piled) 

Four 

pin piles/day 

(post-piled) 

North Atlantic right whale (migrating) * .... 0.56 0.67 0.72 0.72 0.73 1.06 

Fin whale (sei whale proxy) * a ................. 1.09 1.30 1.81 1.83 1.80 1.90 

Humpback whale ..................................... 1.08 1.01 1.25 1.29 1.07 1.56 

Minke whale ............................................. 0.33 0.38 0.35 0.41 0.40 0.69 

Sperm whale * .......................................... 0 0 0 0 0 0 

Atlantic spotted dolphin ............................ 0 0 0 0 0 0 

Atlantic white-sided dolphin ..................... 0 0 0 0 0 0.01 

Bottlenose dolphin (offshore) ................... 0 0 0 0 0 0 

Bottlenose dolphin (coastal) .................... 0 0 0 0 0 0 

Common dolphin ...................................... 0 0 0 0 0 0 

Long-finned pilot whale ............................ 0 0 0 0 0 0 

Short-finned pilot whale ........................... 0 0 0 0 0 0 

Risso’s dolphin ......................................... 0 0 0 0 <0.01 <0.01 

Harbor porpoise ....................................... 0.39 0.32 0.26 0.28 1.11 1.48 

Gray seal .................................................. 0.01 0 0.02 0 0.15 0.24 

Harbor seal .............................................. <0.01 <0.01 <0.01 <0.01 0.16 0.32 

Note: * denotes species listed under the Endangered Species Act. aFin whales were used as a surrogate for sei whale behaviors. 

bGiven the revised construction schedule, Atlantic Shores has carried forward into their exposure and take estimates only constructing one pile 

per day for this proposed action. 

We note here that between the two 

differently sized monopiles, all of the 

distances to the Level A harassment 

threshold are smaller for the 12-m, with 

exception for the harbor porpoise 

distances, which show minute 

differences between the 15-m (0.26 and 

0.28) and the 12-m (0.39 and 0.32) for 

each of one or two piles installed per 

day, respectively (Table 13). This is 

because as the pile diameter increases 

from 12 to 15 meters, the frequency 

spectrum shifts. More of the energy 

increase occurs at the lower frequencies, 

which are largely filtered out by the 

high-frequency weighting function. 

As described above, JASCO also 

calculated acoustic ranges which 

represent distances to NMFS’ 

harassment isopleths independent of 

movement of a receiver. Presented 

below are the distances to the PTS (dB 

peak) threshold for impact pile driving 

and the Level B harassment (SPL) 

thresholds for all impact pile driving 

during WTG, OSS, and Met Tower 

foundation installation (Tables 14 and 

15). 


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TABLE 14—ACOUSTIC RANGES (R95%), IN KILOMETERS, TO PTS (Lpk) THRESHOLDS DURING IMPACT PILE DRIVING, 

ASSUMING 10 dB ATTENUATION

Pile type Installation method 

Modeled 

source 

location 

Hammer 

energy 

(kJ) 

Activity 

duration 

(minutes) 

Lowfrequency 

cetacean 

Midfrequency 

cetacean 

Highfrequency 

cetaceans 

Phocids 

219 Lp, pk 230 Lp, pk 202 Lp, pk

218 Lp, pk

12-m Monopile ............ Impact hammer .......... L01 ...........

L02 ...........

4,400 

4,400 

540 0.08 

0.06 

0.01 

0.01 

0.72 

0.74 

0.09 

0.07 

15-m Monopile ............ Impact hammer .......... L01 ...........

L02 ...........

4,400 

4,400 

540 0.08 

0.07 

0.01 

0.01 

0.78 

0.78 

0.09 

0.08 

5-m Pin Pile ................ Impact hammer .......... L01 ...........

L02 ...........

2,500 

2,500 

180 0.02 

0.02 

0.00 

0.00 

0.28 

0.28 

0.03 

0.03 

5-m Pin Pile (2 dB 

shift for post-piled).

Impact hammer .......... L01 ...........

L02 ...........

2,500 

2,500 

180 0.01 

0.01 

0.00 

0.01 

0.23 

0.14 

0.03 

0.04 

Note: Lp,pk = peak sound pressure (dB re 1 μPa). 

TABLE 15—ACOUSTIC RANGES (R95%), IN KILOMETERS, TO LEVEL B HARASSMENT (SPL, 160 LP) THRESHOLDS DURING

IMPACT PILE DRIVING, ASSUMING 10 dB ATTENUATION

Pile type Installation method 

Hammer 

energy 

(kJ) 

L01 L02 

12-m Monopile ................................................ Impact Hammer .............................................. 4,400 8.20 7.31 

15-m Monopile ................................................ Impact Hammer .............................................. 4,400 8.30 7.44 

5-m Pin Pile (pre-piled) ................................... Impact Hammer .............................................. 2,500 4.76 1.98 

5-m Pin Pile (post-piled) ................................. Impact Hammer .............................................. 2,500 5.50 2.28 

Note: Lp = root-mean square sound pressure (dB re 1 μPa). 

Next, the specific densities for each 

marine mammal species were 

incorporated. Initially, Atlantic Shores 

provided the densities used in the 

analysis in their ITA application. 

However, due to the June 2022 release 

of the updated Duke University density 

models, Atlantic Shores submitted a 

memo with the revised densities and the 

derived exposure and take estimates. 

These were the values NMFS carried 

forward into this proposed rule (refer 

back to Tables 9, 10, and 11). 

To estimate take from foundation 

installation activities, Atlantic Shores 

assumed the buildout described for the 

modified Schedule 2 (see the PDE 

Refinement Memo), which entails that 

all WTGs and the Met Tower found 

within Project 1 would be built using 

15-m monopiles and all WTGs in Project 

2 would be built on jacket foundations 

using 5-m piles. All OSSs would be 

built on jacket foundations using 5-m 

pin piles. The full buildout of Atlantic 

Shores South (200 WTGs) assuming 

Schedule 2 is provided on Table 16. 

This represents the maximum amount of 

take that would occur incidentally to 

Atlantic Shores South as no more than 

200 WTGs, 1 Met Tower, and 10 OSSs 

will be installed within the Lease Area. 

However, Atlantic Shores has requested 

NMFS issue two distinct LOAs for each 

of Project 1 and Project 2. Hence, there 

is a need to also estimate the maximum 

amount of annual take from each Project 

which, collectively, is greater given it is 

currently unknown exactly how many 

WTG and OSSs will be constructed in 

each Project. For this analysis, it was 

assumed that Project 1 may have a 

maximum of 105 WTGs (plus 6 WTG 

foundations installed as part of the 

Overlap Area for Project 1; n=111), 1 

Met Tower, and 2 OSSs and Project 2 

may have a maximum of 89 WTGs (plus 

6 WTG foundations installed as part of 

the Overlap Area for Project 2; n=95) 

and 2 OSS. As described above, the 

number of days of pile driving per 

month is part of the exposure estimate 

calculation. Atlantic Shores assumes 

that 1 monopile could be installed per 

day and four pin piles could be installed 

per day. 


lotter on DSK11XQN23PROD with PROPOSALS2
65478 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

TABLE 16—PROJECT 1 AND

PROJECT 2’s BUILDOUT

SCHEDULE

PRESENTED

ANNUALLY AND

OVER

TWO-YEARS

Construction month 

Year 1 (2026) Year 2 (2027) a

Project 1 

Project 2 

Total 

Project 2 

Number of days 

(number of piles 

installed) Number of days 

(number of piles 

installed) 

Number of days 

(number of piles 

installed) 

WTG and met 

tower 

monopile 

15-m 

(1 pile/day) 

OSS jacket 

5-m pin piles 

(4 piles/day) 

WTG jacket 

5-m pin piles 

(4 piles/day) 

OSS jacket 

5-m pin piles 

(4 piles/day) 

WTG monopile 

15-m 

(1 pile/day) 

WTG jacket 

5-m pin piles 

(4 piles/day) 

OSS jacket 

5-m pin piles 

(4 piles/day) 

WTG jacket 

5-m pin piles 

(4 piles/day) 

OSS jacket 

5-m pin piles 

(4 piles/day) 

May ......................................................................................... 8 (8) 0 (0) 0 (0) 0 (0) 8 (8) 0 (0) 0 (0) 5 (20) 0 (0) June ........................................................................................ 20 (20) 6 (24) 0 (0) 0 (0) 20 (20) 0 (0) 6 (24) 15 (60) 6 (2$) July .......................................................................................... 25 (25) 0 (0) 0 (0) 0 (0) 25 (25) 0 (0) 0 (0) 20 (80) 0 (0) August ..................................................................................... 19 (19) 6 (24) 0 (0) 0 (0) 19 (19) 0 (0) 6 (24) 18 (72) 6 (2$) September .............................................................................. 18 (18) 0 (0) 0 (0) 0 (0) 18 (18) 0 (0) 0 (0) 14 (56) 0 (0) October ................................................................................... 16 (16) 0 (0) 0 (0) 0 (0) 16 (16) 0 (0) 0 (0) 13 (52) 0 (0) November ............................................................................... 5 (5) 0 (0) 5 (20) 0 (0) 5 (5) 5 (20) 0 (0) 4 (16) 0 (0) December ............................................................................... 1 (1) 0 (0) 1 (4) 0 (0) 1 (1) 1 (4) 0 (0) 0 (0) 0 (0) 

Totals 

Total Piling Days ..................................................................... 112 12 6 112 18 101 Total Piles ............................................................................... 112 48 24 112 72 404 Total Foundations b ................................................................. 112 2 6 112 8 91 

aAs 2027 only has foundation installation activities occurring from Project 2, there is no total column for this year. bThe total foundations included in this table sum up to more (n=207) than the planned number of WTG and Met Tower foundations (n=201) due to the possibility of 6 WTGs being installed either under Project 1 or 

Project 2 in the Overlap Area; these are therefore counted twice within this table. 


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Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 65479 

Atlantic Shores assumes that 

construction would start in 2026 for 

foundation installation (Table 16). 

Modeling assumed that up to 106 

monopile foundations (105 WTGs plus 

the Met Tower) would be installed 

during May through October in the area 

for Project 1 (2026) and up to 89 

monopiles (WTGs) for Project 2 for May 

through December (in part of 2026 and 

in 2027). Additionally, up to 6 monopile 

foundations (WTGs) could be installed 

during November through December for 

either Project 1 or Project 2 (total of 112 

WTG and Met Tower foundations for 

Project 1 or a total of 94 WTG 

foundations for Project 2). This also 

assumes the buildout of two large-sized 

OSSs each being installed on jacket 

foundations during June and August for 

each of Project 1 and for Project 2. 

Atlantic Shores expects that all 

foundation installation activities for 

Project 1 would occur during the first 

year of construction activities (2026) 

with parts of Project 2 starting in 2026 

and completing in 2027. 

Between these schedules, we note that 

Atlantic Shores has analyzed the 

construction of 205 permanent 

foundation structures, including up to 

200 WTGs, one Met Tower, and 4 largesized OSSs. The 6 WTGs in the overlap 

area are included in the maximum take 

calculation for each of Project 1 and 

Project 2. The Project 1 take calculations 

include the 6 WTGs in the overlap area 

during Year 1 to ensure sufficient take 

for Project 1 (if those positions are 

allocated to Project 1 during 

construction). If, however, those 

positions are allocated to Project 2, they 

are also included during Year 1 of 

foundation installation for Project 2 (to 

ensure sufficient take allocation to 

Project 2 during that year). However, the 

full buildout scenario, which describes 

the take for the Projects combined, only 

includes the 6 WTGs in the entire 

project once (to avoid double counting 

of the 6 WTGs). 

As described previously, to estimate 

the amount of take that may occur 

incidental to the foundation installation, 

Atlantic Shores conducted exposure 

modeling to estimate the number of 

exposures that may occur from impact 

pile driving in a 24-hour period. 

Exposure estimates were then scaled to 

reflect the appropriate density estimates 

as described above. These scaled 24- 

hour exposure estimates were then 

multiplied by the number of days to 

produce the estimated take numbers for 

each year. Exposure estimates can be 

found within the LOA Updates Memo 

on NMFS’ website. 

As described above, exposure 

estimates were subsequently adjusted 

based on appropriate group sizes and 

PSO data (refer back to Table 12) to 

yield the requested take in Atlantic 

Shores’ LOA Updates Memo. The 

amount of take Atlantic Shores 

requested similarly equates to the 

amount of take NMFS proposes to 

authorize (Tables 17 and 18). 

TABLE 17—ANNUAL TOTAL EXPOSURE ESTIMATES AND PROPOSED TAKES BY LEVEL A HARASSMENT AND LEVEL B 

HARASSMENT FOR FOUNDATION INSTALLATION ACTIVITIES FOR PROJECT 1, ASSUMING SCHEDULE 2 a

Marine mammal species 

Year 2 

(2026) 

Year 3 

(2027) b

Estimated exposures Proposed take Estimated exposures Proposed take 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

North Atlantic right whale * ............................... 0.14 1.24 0 4 0 0 0 0 

Fin whale * ........................................................ 2.80 8.23 3 9 0 0 0 0 

Humpback whale .............................................. 2.20 8.33 3 9 0 0 0 0 

Minke whale ..................................................... 10.07 135.38 11 136 0 0 0 0 

Sei whale * ........................................................ 0.35 1.04 1 3 0 0 0 0 

Sperm whale * .................................................. 0 0 0 2 0 0 0 0 

Atlantic spotted dolphin .................................... 0 0 0 100 0 0 0 0 

Atlantic white-sided dolphin .............................. 0.01 159.94 1 160 0 0 0 0 

Bottlenose dolphin, offshore ............................. 0 3,100.73 0 3,101 0 0 0 0 

Bottlenose dolphin, coastal .............................. 0 50.32 0 51 0 0 0 0 

Common dolphin .............................................. 0 0 0 193 0 0 0 0 

Long-finned pilot whale .................................... 0 0 0 20 0 0 0 0 

Short-finned pilot whale .................................... 0 0 0 6 0 0 0 0 

Risso’s dolphin ................................................. <0.01 5.58 1 30 0 0 0 0 

Harbor porpoise ................................................ 1.38 49.85 2 50 0 0 0 0 

Gray seal .......................................................... 0.52 98.42 1 99 0 0 0 0 

Harbor seal ....................................................... 1.29 235.51 2 236 0 0 0 0 

Note: * denotes species listed under the Endangered Species Act. aWhile the foundation installation counted the 6 WTGs in the Overlap Area for both Project 1 and Project 2, the exposure estimates and take requested is based 

on those 6 WTGs only being installed once under the full buildout scenario; no double counting of take occurred. bAll of Project 1’s activities would be completed within a single year (2026), which means that no take would occur during the second construction year (2027). 

TABLE 18—ANNUAL EXPOSURE ESTIMATES AND PROPOSED TAKES BY LEVEL A HARASSMENT AND LEVEL B HARASSMENT

FOR FOUNDATION INSTALLATION ACTIVITIES FOR PROJECT 2, ASSUMING SCHEDULE 2 a

Marine mammal species 

ITA request year 2 

(2026) 

ITA request year 3 

(2027) 

Estimated exposures Proposed take Estimated exposures Proposed take 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

North Atlantic right whale * ............................... 0.08 0.43 0 4 0.24 1.31 0 4 

Fin whale * ........................................................ 0.24 0.65 1 2 3.46 9.20 4 10 

Humpback whale .............................................. 0.46 1.53 1 2 3.02 9.82 4 10 

Minke whale ..................................................... 0.16 1.55 1 2 16.27 141.72 17 142 

Sei whale * ........................................................ 0.13 0.34 1 3 0.41 1.09 1 3 

Sperm whale * .................................................. 0 0 0 2 0 0 0 2 

Atlantic spotted dolphin .................................... 0 0 0 100 0 0 0 100 

Atlantic white-sided dolphin .............................. 0 21.98 0 22 0.01 171.37 1 172 


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65480 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

TABLE 18—ANNUAL EXPOSURE ESTIMATES AND PROPOSED TAKES BY LEVEL A HARASSMENT AND LEVEL B HARASSMENT

FOR FOUNDATION INSTALLATION ACTIVITIES FOR PROJECT 2, ASSUMING SCHEDULE 2 a—Continued 

Marine mammal species 

ITA request year 2 

(2026) 

ITA request year 3 

(2027) 

Estimated exposures Proposed take Estimated exposures Proposed take 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Bottlenose dolphin, offshore ............................. 0 201.39 0 202 0 3,416.59 0 3,417 

Bottlenose dolphin, coastal .............................. 0 0 0 14 0 0 0 14 

Common dolphin .............................................. 0 0 0 10 0 0 0 157 

Long-finned pilot whale .................................... 0 0 0 20 0 0 0 20 

Short-finned pilot whale .................................... 0 0 0 6 0 0 0 6 

Risso’s dolphin ................................................. <0.01 2.61 1 30 <0.01 6.03 1 30 

Harbor porpoise ................................................ 5.40 17.14 6 18 12.52 39.23 13 40 

Gray seal .......................................................... 0.45 23.56 1 24 2.00 94.34 2 95 

Harbor seal ....................................................... 1.66 53.29 2 54 7.03 213.40 8 214 

Note: * denotes species listed under the Endangered Species Act. a Includes the 6 WTGs in the Overlap Area. 

Based on Tables 17 and 18 above, 

NMFS proposes to authorize the 

following numbers for the harassment of 

marine mammals incidental to 

foundation installation activities of 

WTGs, OSSs, and the Met Tower by 

Level A harassment and Level B 

harassment in Table 19. We note that 

Atlantic Shores did not request, nor is 

NMFS proposing to authorize, serious 

injury and/or mortality of marine 

mammals. Furthermore, no Level A 

harassment of North Atlantic right 

whales has been proposed for 

authorization due to enhanced 

mitigation measures that Atlantic 

Shores would be required to implement 

for this species. 

TABLE 19—MAXIMUM ANNUAL EXPOSURE ESTIMATES AND PROPOSED TAKES BY LEVEL A HARASSMENT AND LEVEL B 

HARASSMENT FOR ALL FOUNDATION INSTALLATION ACTIVITIES IN BOTH PROJECT 1 AND PROJECT 2 (FULL BUILDOUT), 

ASSUMING SCHEDULE 2 a

Marine mammal species 

ITA request year 2 

(2026) 

ITA request year 3 

(2027) 

Estimated exposures Proposed take Estimated exposures Proposed take 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

North Atlantic right whale * ............................... 0.14 1.24 0 4 0.24 1.31 0 4 

Fin whale * ........................................................ 2.80 8.23 3 9 3.46 9.20 4 10 

Humpback whale .............................................. 2.20 6.15 3 9 3.02 9.82 4 10 

Minke whale ..................................................... 10.07 135.38 11 136 16.27 141.72 17 142 

Sei whale * ........................................................ 0.35 1.04 1 3 0.41 1.09 1 3 

Sperm whale * .................................................. 0 0 0 2 0 0 0 2 

Atlantic spotted dolphin .................................... 0 0 0 100 0 0 0 100 

Atlantic white-sided dolphin .............................. 0.01 159.94 1 160 0.01 171.37 1 172 

Bottlenose dolphin, offshore ............................. 0 3,100.73 0 3,101 0 3,416.59 0 3,417 

Bottlenose dolphin, coastal .............................. 0 50.32 0 51 0 0 0 14 

Common dolphin .............................................. 0 0 0 193 0 0 0 157 

Long-finned pilot whale .................................... 0 0 0 20 0 0 0 20 

Short-finned pilot whale .................................... 0 0 0 6 0 0 0 6 

Risso’s dolphin ................................................. <0.01 5.58 1 30 <0.01 6.03 1 30 

Harbor porpoise ................................................ 1.38 49.85 2 50 12.52 39.23 13 40 

Gray seal .......................................................... 0.52 98.42 1 99 2.00 94.34 2 95 

Harbor seal ....................................................... 1.29 235.51 2 236 7.03 213.40 8 214 

Note: * denotes species listed under the Endangered Species Act. aWhile the foundation installation counted the 6 WTGs in the Overlap Area for both Project 1 and Project 2, the exposure estimates and take requested is based 

on those 6 WTGs only being installed once under the full buildout scenario; no double counting of take occurred. In total, this table accounts for exposure and take 

estimates of 200 WTGs, 1 Met Tower, and 4 OSSs. 


lotter on DSK11XQN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 65481 

Cable Landfall Activities 

We previously described the acoustic 

modeling and static methodologies to 

estimate the take of marine mammals 

and have already identified that Atlantic 

Shores estimated take using propagation 

modeling which then used a static 

density-based approach. This 

information will not be reiterated here. 

Here, we present the results of acoustic 

modeling and take estimation processes, 

as previously described. More 

information can also be found in the 

ITA application and subsequent 

supplementary memos provided by the 

applicant. 

Atlantic Shores proposes to install 

and remove up to four temporary 

cofferdams per Atlantic and Monmouth 

cable landfall location (eight cofferdams 

total) using a vibratory hammer. To 

calculate the acoustic ranges to PTS 

thresholds, it was assumed that up to 8 

hours of vibratory pile driving would 

occur within any 24-hour period. The 

furthest ranges were noted where the 

sound propagated offshore from the 

New Jersey coastline into the 

continental shelf (see Figure 3 in the 

supplemental memo for Appendix D). 

Variation in acoustic ranges between the 

two sites is due to differing propagation 

loss properties. See Table 20 below for 

the ranges to the thresholds for both 

Level A harassment and Level B 

harassment. 

TABLE 20—ACOUSTIC RANGES (R95%) IN METERS TO THE LEVEL A HARASSMENT (PTS) AND LEVEL B HARASSMENT

THRESHOLDS FROM VIBRATORY PILE DRIVING DURING TEMPORARY COFFERDAM INSTALLATION AND REMOVAL

Marine mammal hearing 

group 

Atlantic landfall site Monmouth landfall site 

Level A 

harassment SELcum thresholds 

(dB re 1 μPa2·s) 

Level B harassment 

SPLrms threshold 

(120 dB re 1 μPa) 

Level A harassment 

SELcum thresholds 

(dB re 1 μPa2·s) 

Level B harassment SPLrms

threshold 

(120 dB re 1 μPa) 

Summer Winter Summer Winter Summer Winter Summer Winter 

Low-frequency cetaceans 65 65 5,076 7,546 45 60 5,412 11,268 

Mid-frequency cetaceans 0 0 0 0 

High-frequency cetaceans 490 540 0 0 425 450 

Phocids ............................. 30 30 20 20 

Given the very small distances to the 

Level A harassment thresholds (0–540 

m), which accounts for 8 hours of pile 

driving, installation and removal of 

temporary cofferdams is not expected to 

result in any Level A harassment of 

marine mammals. Atlantic Shores did 

not request, nor is NMFS proposing to 

authorize, any Level A harassment 

incidental to vibratory pile driving 

activities. 

Using the acoustic ranges to the Level 

B harassment threshold, the ensonified 

area around each cable landfall 

construction site was determined for 

each of the two seasons (i.e., summer 

and winter) using the following formula: 

Ensonified Area = pi x r,2

where r is the linear acoustic range 

distance from the source to the isopleth 

to the Level B harassment thresholds. 

Given the acoustic source is stationary, 

this formula assumes the distance to 

threshold would be the radius with the 

source in the center. 

For vibratory pile driving associated 

with the sheet pile installation and 

removal necessary for cofferdams, it was 

assumed that the daily ensonified area 

was 104.33 km2 (25,780.12 acres) at the 

Atlantic landfall site and 221.77 km2

(54,799.57 acres) at the Monmouth 

landfall site. To estimate marine 

mammal densities around the nearshore 

landfall sites, the largest 95th percentile 

acoustic range to threshold (R95%; 7.546 

km at the Atlantic site and 11.268 km 

at the Monmouth site) were used as 

density buffers. The maximum annual 

densities were calculated for each 

landfall location based on the average of 

the Duke University density model grid 

cells for each species and the period of 

time for when cofferdam activities may 

occur (September to May). Any grids 

that overlapped partially or completed 

were included. Grid cells that fell 

entirely on land were not included in 

the analysis, but due to the nearshore 

proximity of the cofferdams, grid cells 

that overlapped partially with land and 

water were included in the analysis. For 

two species guilds (i.e., pinnipeds and 

pilot whale spp.), minor adjustments 

were necessary as the Roberts et al. 

(2023) data did not separate these by 

species. In these two cases, the densities 

were scaled by the relative abundance of 

each species, as described in the final 

2022 SARs (Hayes et al., 2023). 

Annual maximum marine mammal 

exposures were calculated assuming 

that cofferdam activities would only 

occur during the activity window of 

September through May. The density 

value for each species represented the 

highest density month for each specific 

species within this window, so as to not 

underestimate any potential take when 

the activity would occur. The exposures 

were calculated using the following 

static formula: 

Exposures = area ensonified × (days) × 

density, 

Where the area ensonified is equal to π 

× r2, wherein r is equal to the Level B 

harassment isopleth distance, days 

constituted the total number of days 

needed for cofferdam activities (n=28), 

and density were incorporated as 

species-specific during the activity 

window. 

The exposure estimates were 

calculated assuming 6 days of 

installation and 6 days of removal at the 

Atlantic City landfall location (n=12), 

and 8 days of installation and 8 days of 

removal at the Monmouth landfall 

location (n=28), equating to 28 days in 

total. In their adequate and complete 

ITA application, Atlantic Shores 

initially proposed 16 days total for the 

Atlantic City landfall location (8 days of 

installation and 8 days of removal). 

However, given the shallower waters at 

this location, they believe that it would 

be possible to install and remove the 

temporary cofferdams more quickly 

than initially modeled, thus reducing 

the total number of days at this location 

(n=12). Where applicable, calculated 

exposure estimates were then adjusted 

up for average group sizes, per Table 12, 

to yield the proposed take numbers. The 

estimated take and maximum amount of 

take proposed for authorization during 

temporary cofferdam installation and 

removal during the proposed Project is 

in Table 21. No take by Level A 

harassment is expected, nor has it been 

requested by Atlantic Shores or 

proposed for authorization by NMFS. 


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65482 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

TABLE 21—THE MAXIMUM PREDICTED LEVEL B HARASSMENT EXPOSURES, AND TOTAL TAKES BY LEVEL B HARASSMENT

PROPOSED FOR AUTHORIZATION FOR COFFERDAM ACTIVITIES WITH GROUP SIZE ADJUSTMENT a b

Marine mammal species 

Atlantic City 

landfall site 

exposures 

Monmouth 

landfall site 

exposures 

Atlantic City total 

takes by Level B 

harassment 

Monmouth total 

takes by Level B 

harassment 

North Atlantic right whale * .............................................................. 1.15 1.23 4 4 

Fin whale * ....................................................................................... 0.65 4.14 2 5 

Humpback whale ............................................................................. 1.43 4.70 2 5 

Minke whale ..................................................................................... 1.70 18.66 2 19 

Sei whale ......................................................................................... 0.23 1.62 3 3 

Sperm whale .................................................................................... 0.03 0.28 2 2 

Atlantic spotted dolphin ................................................................... 0.18 1.16 100 100 

Atlantic white-sided dolphin ............................................................. 0.64 7.31 22 22 

Common dolphin .............................................................................. 6.56 73.01 7 74 

Bottlenose dolphin (offshore stock) ................................................. 0 307.29 0 308 

Bottlenose dolphin (coastal stock) ................................................... 1,835.55 607.29 1,836 608 

Long-finned pilot whale c .................................................................. 0 0.01 6 6 

Short-finned pilot whale c ................................................................. 0 0.01 2 2 

Risso’s dolphin ................................................................................. 0.03 0.70 20 20 

Harbor porpoise ............................................................................... 10.28 98.23 11 99 

Gray seal ......................................................................................... 113.04 158.86 114 159 

Harbor seal ...................................................................................... 253.99 356.92 254 357 

Note: * denotes species listed under the Endangered Species Act. aGroup size for adjustments can be found in Table 12. 

bThe Atlantic City landfall site installation and removal is in Year 1; Monmouth landfall site installation and removal is in Year 2. 

cAtlantic Shores has requested a single group size for these species. 

HRG Surveys 

Atlantic Shores’ proposed HRG 

survey activities include the use of 

impulsive (i.e., sparkers) and nonimpulsive sources (i.e., CHIRPs) that 

have the potential to harass marine 

mammals. The list of all equipment 

proposed is in Table 2 (see Detailed 

Description of Specified Activities). 

Authorized takes would be by Level B 

harassment only in the form of 

disruption of behavioral patterns for 

individual marine mammals resulting 

from exposure to noise from certain 

HRG acoustic sources. Specific to HRG 

surveys, in order to better consider the 

narrower and directional beams of the 

sources, NMFS has developed a 

calculation tool, available at https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance, 

for determining the distances at which 

sound pressure level (SPLrms) generated 

from HRG surveys reach the 160 dB 

threshold. The equations in the tool 

consider water depth, frequencydependent absorption and some 

directionality to refine estimated 

ensonified zones. Atlantic Shores used 

NMFS’ methodology with additional 

modifications to incorporate a seawater 

absorption formula and account for 

energy emitted outside of the primary 

beam of the source. For sources 

operating with different beamwidths, 

the beamwidth associated with 

operational characteristics reported in 

Crocker and Fratantonio (2016) were 

used. 

The isopleth distances corresponding 

to the Level B harassment threshold for 

each type of HRG equipment with the 

potential to result in harassment of 

marine mammals were calculated per 

NOAA Fisheries’ Interim 

Recommendation for Sound Source 

Level and Propagation Analysis for High 

Resolution Geophysical Sources. The 

distances to the Level B harassment 

isopleth are presented in Table 22. 

Please refer to Appendix C for a full 

description of the methodology and 

formulas used to calculate distances to 

the Level B harassment threshold. 

TABLE 22—DISTANCES CORRESPONDING TO THE LEVEL B HARASSMENT THRESHOLD FOR HRG EQUIPMENT OPERATING

BELOW 180 kHz 

HRG survey equipment type Representative equipment type 

Horizontal 

distance (m) 

to the Level B 

harassment 

threshold 

Ensonified area 

(km2) 

Sparker ..................................................................... Applied Acoustics Dura-Spark 240 .......................... 141 15.57 

GeoMarine Geo-Source ........................................... 56 

CHIRP ....................................................................... Edgetech 2000–DSS ................................................

Edgetech 216 ...........................................................

56 

9 

Edgetech 424 ...........................................................

Edgetech 512i ...........................................................

Pangeosubsea Sub-Bottom ImagerTM .....................

10 

9 

32 

The survey activities that have the 

potential to result in Level B harassment 

(160 dB SPL) include the noise 

produced by sparkers and CHIRPS. Of 

these, the Applied Acoustics DuraSpark 240 results in the greatest 

calculated distance to the Level B 

harassment criteria at 141 m (463 ft). 

The total area ensonified was 

estimated by considering the distance of 

the daily vessel track line (determined 

using the estimated average speed of the 


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vessel and the 24-hour operational 

period within each of the corresponding 

survey segments) and the longest 

horizontal distance to the relevant 

acoustic threshold from an HRG sound 

source (full formula in Section 6 of the 

ITA application and in the Revised HRG 

Memo on NMFS’ website). Using the 

larger distance of 141 m to the 160 

dBRMS90≠ re 1 mPa Level B harassment 

isopleth (Table 22), the estimated daily 

vessel track of approximately 55 km 

(34.2 mi) per vessel for 24-hour 

operations, inclusive of an additional 

circular area to account for radial 

distance at the start and end of a 24- 

hour cycle, estimates of the total area 

ensonified to the Level B harassment 

threshold per day of HRG surveys were 

calculated (Table 22). 

Exposure calculations assumed that 

there would be 60 days of HRG 

surveying per year over each of the 5 

years. As described in the ITA 

application, density data were mapped 

within the boundary of the Project Area 

using geographic information systems. 

These data were updated based on the 

revised data from the Duke University 

density models. Because the exact dates 

of HRG surveys are unknown, the 

maximum average seasonal density 

values for each marine mammal species 

was used and carried forward in the 

take calculations (Table 23). 

The calculated exposure estimates 

based on the exposure modeling 

methodology described above were 

compared with the best available 

information on marine mammal group 

sizes. Group sizes used for HRG take 

estimates were the same as those used 

for impact pile driving take estimation 

(refer back to Table 11). Atlantic Shores 

also used data collected by PSOs on 

survey vessels operating during HRG 

surveys in their 2020 season in the 

relevant Project Area. It was determined 

that the calculated number of potential 

takes by Level B harassment based on 

the exposure modeling methodology 

above may be underestimates for some 

species and therefore warranted 

adjustment using group size estimates 

and PSO data to ensure conservatism in 

the take numbers proposed for 

authorization. Despite the relatively 

small modeled Level B harassment zone 

(141 m) for HRG survey activities, it was 

determined that adjustments to the 

requested numbers of take by Level B 

harassment for some dolphin species 

was warranted (see below). 

For certain species for which the 

density-based methodology described 

above may result in potential 

underestimates of take and Atlantic 

Shores’ PSO sightings data were 

relatively low, adjustments to the 

exposure estimates were made based on 

the best available information on marine 

mammal group sizes to ensure 

conservatism. For species with densities 

too low in the region to provide 

meaningful modeled exposure 

estimates, the take request is based on 

the average group size (Table 12). Other 

adjustments were made based on 

information previously presented in 

previous IHAs issued to Atlantic Shores. 

These include an estimate of 1.55 

individuals of common dolphins per 

day multiplied by the number of survey 

days annually (i.e., 60 days), which is in 

alignment with what was done in 87 FR 

24103 (April 22, 2022) based on 

previous daily observations of common 

dolphins. Additionally, requested take 

estimates for long-finned pilot whales, 

Atlantic spotted dolphins, and Risso’s 

dolphins were also adjusted based on 

typical group sizes (i.e., 20, 100, and 30 

annual takes, respectively), based on 

take numbers from 2020, 2021, and 2022 

IHAs issued to Atlantic Shores (see 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-take-authorizations-otherenergy-activities-renewable#expiredauthorizations). Lastly, adjustments 

were made for short-finned pilot whales 

based on group size data reported by the 

OBIS data repository (OBIS, 2022). The 

average group size used was 6 

individuals for short-finned pilot 

whales. 

The maximum seasonal density used 

for the HRG survey analysis are shown 

in Table 11 in the Density and 

Occurrence section. The calculated take 

and the take proposed for authorization 

(via Level B harassment only) is found 

in Table 23 below. 

TABLE 23—CALCULATED EXPOSURE AND PROPOSED TAKE BY LEVEL B HARASSMENT DURING ANNUAL HRG SURVEYS

FOR THE ATLANTIC SHORES SOUTH SURVEY AREA a

Marine mammal species Stock Exposure 

Take proposed 

for authorization 

(Level B 

harassment only) 

North Atlantic right whale * ..................................... Western Atlantic ..................................................... 1 1 

Fin whale * .............................................................. Western North Atlantic ........................................... 2 2 

Humpback whale .................................................... Gulf of Maine .......................................................... 1 1 

Minke whale ............................................................ Canadian Eastern Coastal ..................................... 4 4 

Sei whale * .............................................................. Nova Scotia ............................................................ 1 b 2 

Sperm whale * ......................................................... Western North Atlantic ........................................... 1 1 

Atlantic spotted dolphin .......................................... Western North Atlantic ........................................... 1 100 

Atlantic white-sided dolphin .................................... Western North Atlantic ........................................... 3 3 

Bottlenose dolphin .................................................. Northern Migratory Coastal ....................................

Western North Atlantic—Offshore ..........................

113 

225 

113 

225 

Common dolphin ..................................................... Western North Atlantic ........................................... 14 d 93 

Long-finned pilot whale ........................................... Western North Atlantic ........................................... 1 c 20 

Short-finned pilot whale .......................................... Western North Atlantic ........................................... 1 c 6 

Risso’s dolphin ........................................................ Western North Atlantic ........................................... 1 c 30 

Harbor porpoise ...................................................... Gulf of Maine/Bay of Fundy ................................... 24 24 

Gray seal ................................................................ Western North Atlantic ........................................... 41 41 

Harbor seal ............................................................. Western North Atlantic ........................................... 91 91 

Note: * denotes species listed under the Endangered Species Act. aThe survey area accounts for waters within and around the Lease Area and the ECRs. 

bAtlantic Shores is requesting one additional take of sei whales, for a total of two, based on the average group size found in NOAA (2022a) 

and due to an encounter during their 2020 surveys where a single sei whale was observed. cThis adjustment was made in alignment with take that was previously authorized to Atlantic Shores in an issued IHA (88 FR 38821, June 14, 

2023). As the survey area for this proposed rulemaking overlaps the survey area for that IHA the same group size assumptions were used in this 

analysis. 


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65484 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

dThis adjustment was made in alignment with the take that was previously authorized to Atlantic Shores in an issued IHA (88 FR 38821, June 

14, 2023) where an average take of 1.5 individuals per day was multiplied by the total number of survey days (i.e., 60 days). 

Total Take Across All Activities 

The amount of Level A harassment 

and Level B harassment NMFS proposes 

to authorize incidental to all project 

activities combined (i.e., impact pile 

driving to install WTG, OSS, and Met 

tower foundations; vibratory pile 

driving to install and subsequently 

remove temporary cofferdams, and HRG 

surveys) are shown below. The annual 

amount of take that is expected to occur 

in each year based on Atlantic Shores’ 

current schedules is provided in Table 

24. The Year 1 take estimates include 

temporary cofferdam installation and 

HRG surveys. Year 2 includes 

foundation installation, temporary 

cofferdam installation, and HRG 

surveys. Year 3 includes take for 

foundation installation and HRG 

surveys. Year 4 and Year 5 each include 

HRG surveys. However, NMFS 

recognizes that schedules may shift due 

to a number of planning and logistical 

constraints such that take may be 

redistributed throughout the 5 years. 

However, the 5-year total amount of take 

for each species, shown in Table 25, and 

the maximum amount of take in any 1 

year (Table 26) may not be exceeded. 

The amount of take that Atlantic 

Shores requested, and NMFS proposes 

to authorize, is substantially 

conservative. For the species for which 

modeling was conducted, the take 

estimates are conservative for a number 

of reasons. The amount of take proposed 

to be authorized assumes the worst case 

scenario with respect to project design 

and schedules. As described in the 

Detailed Description of Specified 

Activities section and the applicant’s 

PDE Refinement memo, Atlantic Shores 

may use suction-buckets or gravitybased structures to install the 

foundations for the Met Tower, and may 

use suction-buckets for each of the OSSs 

rather than monopiles or jacket 

foundations (depending on the size OSS 

used). Should Atlantic Shores decide to 

use these different foundations, take of 

marine mammals would not occur as 

noise levels would not be elevated to 

the degree there is a potential for take 

(i.e., no pile driving is involved with 

installing suction buckets). All 

calculated take incorporated the 

maximum average densities for any 

given species in any given season. The 

amount of proposed Level A harassment 

does not fully account for the likelihood 

that marine mammals would avoid a 

stimulus when possible before the 

individual accumulates enough acoustic 

energy to potentially cause auditory 

injury, or the effectiveness of the 

proposed monitoring and mitigation 

measures (with the exception of North 

Atlantic right whales given the 

enhanced mitigation measures proposed 

for this species). 


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TABLE 24—PROPOSED

LEVEL A HARASSMENT AND

LEVEL B HARASSMENT

TAKES FOR

ALL

ACTIVITIES

PROPOSED

T

O

BE CONDUCTED

ANNUALLY FOR THE

PROJECT

OVER 5 YEARS

Marine mammal species Stock NMFS stock abundance a

Year 1 

(2025) 

Year 2 

(2026) 

Year 3 

(2027) 

Year 4 

(2028) 

Year 5 

(2029) 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

North Atlantic right 

whale * b d.

Western Atlantic ............. 338 0 5 0 9 0 5 0 1 0 1 

Fin whale * d .................... Western North Atlantic ... 6,802 0 4 3 16 4 12 0 2 0 2 Humpback whale ............ Gulf of Maine ................. 1,396 0 3 3 15 4 11 0 1 0 1 Minke whale ................... Canadian Eastern Coastal. 21,968 0 6 11 159 17 146 0 4 0 4 Sei whale *bd .................. Nova Scotia .................... 6,292 0 5 1 8 1 5 0 2 0 2 Sperm whale *bd ............ Western North Atlantic ... 4,349 0 3 0 5 0 3 0 1 0 1 Atlantic spotted dolphin bcd. Western North Atlantic ... 39,921 0 200 0 300 0 200 0 100 0 100 Atlantic white-sided dolphin d. Western North Atlantic ... 93,233 0 25 1 185 1 175 0 3 0 3 Bottlenose dolphin .......... Western North Atlantic— 

Offshore.

62,851 0 225 0 3,634 0 3,642 0 225 0 225 

Northern Migratory 

Coastal b.

6,639 0 1,949 0 772 0 127 0 113 0 113 

Common dolphin e .......... Western North Atlantic ... 172,974 0 100 0 360 0 250 0 93 0 93 Long-finned pilot 

whale bcd.

Western North Atlantic ... 39,215 0 26 0 46 0 40 0 20 0 20 

Short-finned pilot 

whale bcd.

Western North Atlantic ... 28,924 0 8 0 14 0 12 0 6 0 6 

Risso’s dolphin bcd ......... Western North Atlantic ... 35,215 0 50 1 80 1 60 0 30 0 30 Harbor porpoise ............. Gulf of Maine/Bay of 

Fundy.

95,543 0 35 2 173 13 64 0 24 0 24 

Gray seal ........................ Western North Atlantic ... 27,300 0 155 1 299 2 136 0 41 0 41 Harbor seal ..................... Western North Atlantic ... 61,336 0 345 2 684 8 305 0 91 0 91 

Note: * denotes species listed under the Endangered Species Act. a NMFS 2022 final SARs (Hayes et al., 2023) were used for the stock abundances. bThe take estimate by Level B harassment for foundation installation via impact pile driving was rounded up to one average group size; impact pile driving is scheduled to occur during Year 2 and Year 3 of the proposed rulemaking. While the foundation installation (Tables 17 and 18) counted the six WTGs in the Overlap Area for both Project 1 and Project 2, the take by Level A harassment or Level B harassment requested 

(Table 19) is based on those six WTGs occurring under Project 2; no double counting of take occurred. cThe take estimate by Level B harassment for HRG surveys was rounded up to one group size; HRG surveys are planned to occur during the entire 5-year period of the proposed rulemaking. 

dThe take estimate by Level B harassment for temporary cofferdams via vibratory pile driving was rounded up to one group size; temporary cofferdam installation and removal is expected to occur during Year 1 and 

2 of the proposed rulemaking. eThe take estimate by Level B harassment for common dolphins is derived by the daily sighting rate for previous HRG surveys multiplied by the number of HRG survey or pile driving days that would occur for each specific activity. 


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65486 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

TABLE 25—TOTAL 5-YEAR PROPOSED TAKES OF MARINE MAMMALS (BY LEVEL A HARASSMENT AND LEVEL B 

HARASSMENT) FOR ALL ACTIVITIES PROPOSED TO BE CONDUCTED DURING THE CONSTRUCTION OF THE PROJECT

Marine mammal species Stock NMFS stock 

abundance 

Proposed 

Level A 

harassment 

Proposed 

Level B 

harassment 

5-year total 

(Level A 

harassment + 

Level B 

harassment) 

North Atlantic right whale * ........................ Western Atlantic ........................................ 338 0 21 21 

Fin whale * ................................................. Western North Atlantic .............................. 6,802 7 36 43 

Humpback whale ....................................... Gulf of Maine ............................................. 1,396 7 31 38 

Minke whale .............................................. Canadian Eastern Coastal ........................ 21,968 28 319 347 

Sei whale * ................................................. Nova Scotia ............................................... 6,292 2 22 24 

Sperm whale * ........................................... Western North Atlantic .............................. 4,349 0 13 13 

Atlantic spotted dolphin ............................. Western North Atlantic .............................. 39,921 2 391 393 

Atlantic white-sided dolphin ....................... Western North Atlantic .............................. 93,233 0 900 900 

Bottlenose dolphin ..................................... Western North Atlantic—Offshore ............. 62,851 0 7,951 7,951 

Northern Migratory Coastal ....................... 6,639 0 3,074 3,074 

Common dolphin ....................................... Western North Atlantic .............................. 172,974 0 896 896 

Long-finned pilot whale ............................. Western North Atlantic .............................. 39,215 0 152 152 

Short-finned pilot whale ............................. Western North Atlantic .............................. 28,924 0 46 46 

Risso’s dolphin .......................................... Western North Atlantic .............................. 35,215 2 250 252 

Harbor porpoise ......................................... Gulf of Maine/Bay of Fundy ...................... 95,543 15 320 335 

Gray seal ................................................... Western North Atlantic .............................. 27,300 3 672 675 

Harbor seal ................................................ Western North Atlantic .............................. 61,336 10 1,516 1,526 

Note: * denotes species listed under the Endangered Species Act. 

To inform both the negligible impact 

analysis and the small numbers 

determination, NMFS assesses the 

maximum number of takes of marine 

mammals that could occur within any 

given year. In this calculation, the 

maximum estimated number of Level A 

harassment takes in any 1 year is 

summed with the maximum estimated 

number of Level B harassment takes in 

any 1 year for each species to yield the 

highest number of estimated take that 

could occur in any year (Table 26). 

Table 26 also depicts the number of 

takes proposed relative to the 

abundance of each stock. The takes 

enumerated here represent daily 

instances of take, not necessarily 

individual marine mammals taken. One 

take represents a day (24-hour period) in 

which an animal was exposed to noise 

above the associated harassment 

threshold at least once. Some takes 

represent a brief exposure above a 

threshold, while in some cases takes 

could represent a longer, or repeated, 

exposure of one individual animal 

above a threshold within a 24-hour 

period. Whether or not every take 

assigned to a species represents a 

different individual depends on the 

daily and seasonal movement patterns 

of the species in the area. For example, 

activity areas with continuous activities 

(all or nearly every day) overlapping 

known feeding areas (where animals are 

known to remain for days or weeks on 

end) or areas where species with small 

home ranges live (e.g., some pinnipeds) 

are more likely to result in repeated 

takes to some individuals. Alternatively, 

activities far out in the deep ocean or 

takes to nomadic species where 

individuals move over the population’s 

range without spatial or temporal 

consistency represent circumstances 

where repeat takes of the same 

individuals are less likely. In other 

words, for example, 100 takes could 

represent 100 individuals each taken on 

1 day within the year, or it could 

represent 5 individuals each taken on 20 

days within the year, or some other 

combination depending on the activity, 

whether there are biologically important 

areas in the Project Area, and the daily 

and seasonal movement patterns of the 

species of marine mammals exposed. 

Wherever there is information to better 

contextualize the enumerated takes for a 

given species is available, it is discussed 

in the Negligible Impact Analysis and 

Determination and/or Small Numbers 

sections, as appropriate. 

TABLE 26—MAXIMUM NUMBER OF PROPOSED TAKES (LEVEL A HARASSMENT AND LEVEL B HARASSMENT) THAT COULD

OCCUR IN ANY ONE YEAR OF THE PROJECT RELATIVE TO STOCK POPULATION SIZE

Marine mammal species Stock NMFS stock 

abundance 

Maximum annual 

Level A 

harassment 

Maximum annual 

Level B 

harassment 

Maximum 

annual take 

(maximum 

Level A 

harassment + 

maximum 

Level B 

harassment in 

any one year) 

Total percent 

stock taken in 

any one year 

based on 

maximum 

annual take 

North Atlantic right whale * .... Western Atlantic ................................ 338 0 9 9 2.66 

Fin whale * ............................. Western North Atlantic ...................... 6,802 4 16 20 0.29 

Humpback whale ................... Gulf of Maine .................................... 1,396 4 15 19 1.36 

Minke whale ........................... Canadian Eastern Coastal ................ 21,968 17 159 176 0.80 

Sei whale * ............................. Nova Scotia ....................................... 6,292 1 8 9 0.14 

Sperm whale * ........................ Western North Atlantic ...................... 4,349 0 5 5 0.11 

Atlantic spotted dolphin ......... Western North Atlantic ...................... 39,921 0 300 300 0.75 

Atlantic white-sided dolphin ... Western North Atlantic ...................... 93,233 1 185 186 0.20 

Bottlenose dolphin ................. Western North Atlantic—Offshore .... 62,851 0 3,634 3,634 5.78 

Northern Migratory Coastal ............... 6,639 0 1,949 1,949 29.36 

Common dolphin ................... Western North Atlantic ...................... 172,974 0 360 360 0.21 

Long-finned pilot whale ......... Western North Atlantic ...................... 39,215 0 46 46 0.12 

Short-finned pilot whale ......... Western North Atlantic ...................... 28,924 0 14 14 0.05 

Risso’s dolphin ...................... Western North Atlantic ...................... 35,215 1 80 81 0.23 


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TABLE 26—MAXIMUM NUMBER OF PROPOSED TAKES (LEVEL A HARASSMENT AND LEVEL B HARASSMENT) THAT COULD

OCCUR IN ANY ONE YEAR OF THE PROJECT RELATIVE TO STOCK POPULATION SIZE—Continued 

Marine mammal species Stock NMFS stock 

abundance 

Maximum annual 

Level A 

harassment 

Maximum annual 

Level B 

harassment 

Maximum 

annual take 

(maximum 

Level A 

harassment + 

maximum 

Level B 

harassment in 

any one year) 

Total percent 

stock taken in 

any one year 

based on 

maximum 

annual take 

Harbor porpoise ..................... Gulf of Maine/Bay of Fundy .............. 95,543 13 173 186 0.19 

Gray seal ............................... Western North Atlantic ...................... 27,300 2 299 301 1.10 

Harbor seal ............................ Western North Atlantic ...................... 61,336 8 684 692 1.13 

Note: * denotes species listed under the Endangered Species Act. 

Proposed Mitigation 

In order to promulgate a rulemaking 

under section 101(a)(5)(A) of the 

MMPA, NMFS must set forth the 

permissible methods of taking pursuant 

to the activity, and other means of 

effecting the least practicable adverse 

impact on the species or stock and its 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stock for 

taking for certain subsistence uses (latter 

not applicable for this action). NMFS’ 

regulations require applicants for 

incidental take authorizations to include 

information about the availability and 

feasibility (economic and technological) 

of equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, we carefully consider two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), the 

likelihood of effective implementation 

(probability implemented as planned); 

and, 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost, 

impact on operations, and, in the case 

of a military readiness activity, 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the military readiness 

activity. 

The mitigation strategies described 

below are consistent with those required 

and successfully implemented under 

previous incidental take authorizations 

issued in association with in-water 

construction activities (e.g., soft-start, 

establishing shutdown zones). 

Additional measures have also been 

incorporated to account for the fact that 

the proposed construction activities 

would occur offshore. Modeling was 

performed to estimate harassment 

zones, which were used to inform 

mitigation measures for the Project’s 

activities to minimize Level A 

harassment and Level B harassment to 

the extent practicable, while providing 

estimates of the areas within which 

Level B harassment might occur. 

Generally speaking, the mitigation 

measures considered and proposed to be 

required here fall into three categories: 

temporal (seasonal and daily) work 

restrictions, real-time measures 

(shutdown, clearance, and vessel strike 

avoidance), and noise attenuation/ 

reduction measures. Seasonal work 

restrictions are designed to avoid or 

minimize operations when marine 

mammals are concentrated or engaged 

in behaviors that make them more 

susceptible or make impacts more 

likely, in order to reduce both the 

number and severity of potential takes, 

and are effective in reducing both 

chronic (longer-term) and acute effects. 

Real-time measures, such as 

implementation of shutdown and 

clearance zones, as well as vessel strike 

avoidance measures, are intended to 

reduce the probability or severity of 

harassment by taking steps in real time 

once a higher-risk scenario is identified 

(e.g., once animals are detected within 

an impact zone). Noise attenuation 

measures, such as bubble curtains, are 

intended to reduce the noise at the 

source, which reduces both acute 

impacts, as well as the contribution to 

aggregate and cumulative noise that may 

result in longer-term chronic impacts. 

Below, we briefly describe the 

required training, coordination, and 

vessel strike avoidance measures that 

apply to all activity types, and then in 

the following subsections we describe 

the measures that apply specifically to 

foundation installation, nearshore 

installation and removal activities for 

cable laying, and HRG surveys. Details 

on specific requirements can be found 

in Part 217—Regulations Governing The 

Taking And Importing Of Marine 

Mammals at the end of this proposed 

rulemaking. 

Training and Coordination 

NMFS requires all Atlantic Shores’ 

employees and contractors conducting 

activities on the water, including, but 

not limited to, all vessel captains and 

crew, to be trained in marine mammal 

detection and identification, 

communication protocols, and all 

required measures to minimize impacts 

on marine mammals and support 

Atlantic Shores’ compliance with the 

LOA, if issued. Additionally, all 

relevant personnel and the marine 

mammal species monitoring team(s) are 

required to participate in joint, onboard 

briefings prior to the beginning of 

project activities. The briefing must be 

repeated whenever new relevant 

personnel (e.g., new PSOs, construction 

contractors, relevant crew) join the 

project before work commences. During 

this training, Atlantic Shores is required 

to instruct all project personnel 

regarding the authority of the marine 

mammal monitoring team(s). For 

example, the HRG acoustic equipment 

operator, pile driving personnel, etc., 

are required to immediately comply 

with any call for a delay or shut down 

by the Lead PSO. Any disagreement 

between the Lead PSO and the project 

personnel must only be discussed after 

delay or shutdown has occurred. In 

particular, all captains and vessel crew 

must be trained in marine mammal 

detection and vessel strike avoidance 


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65488 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

measures to ensure marine mammals are 

not struck by any project or projectrelated vessel. 

Prior to the start of in-water 

construction activities, vessel operators 

and crews would receive training about 

marine mammals and other protected 

species known or with the potential to 

occur in the Project Area, making 

observations in all weather conditions, 

and vessel strike avoidance measures. In 

addition, training would include 

information and resources available 

regarding applicable Federal laws and 

regulations for protected species. 

Atlantic Shores will provide 

documentation of training to NMFS. 

North Atlantic Right Whale Awareness 

Monitoring 

Atlantic Shores would be required to 

use available sources of information on 

North Atlantic right whale presence, 

including daily monitoring of the Right 

Whale Sightings Advisory System, 

monitoring of U.S. Coast Guard very 

high frequency (VHF) Channel 16 

throughout each day to receive 

notifications of any sightings, and 

information associated with any 

regulatory management actions (e.g., 

establishment of a zone identifying the 

need to reduce vessel speeds). 

Maintaining daily awareness and 

coordination affords increased 

protection of North Atlantic right 

whales by understanding North Atlantic 

right whale presence in the area through 

ongoing visual and passive acoustic 

monitoring efforts and opportunities 

(outside of Atlantic Shores’ efforts), and 

allows for planning of construction 

activities, when practicable, to 

minimize potential impacts on North 

Atlantic right whales. 

Vessel Strike Avoidance Measures 

This proposed rule contains 

numerous vessel strike avoidance 

measures that reduce the risk that a 

vessel and marine mammal could 

collide. While the likelihood of a vessel 

strike is generally low, they are one of 

the most common ways that marine 

mammals are seriously injured or killed 

by human activities. Therefore, 

enhanced mitigation and monitoring 

measures are required to avoid vessel 

strikes, to the extent practicable. While 

many of these measures are proactive, 

intending to avoid the heavy use of 

vessels during times when marine 

mammals of particular concern may be 

in the area, several are reactive and 

occur when a project personnel sights a 

marine mammal. The mitigation 

requirements we propose are described 

generally here and in detail in the 

regulation text at the end of this 

proposed rule (see 50 CFR 217.264(b)). 

Atlantic Shores would be required to 

comply with these measures except 

under circumstances when doing so 

would create an imminent and serious 

threat to a person or vessel or to the 

extent that a vessel is unable to 

maneuver and, because of the inability 

to maneuver, the vessel cannot comply. 

While underway, Atlantic Shores’ 

personnel would be required to monitor 

for and maintain a minimum separation 

distance from marine mammals and 

operate vessels in a manner that reduces 

the potential for vessel strike. 

Regardless of the vessel’s size, all vessel 

operators, crews, and dedicated visual 

observers (i.e., PSO or trained crew 

member) must maintain a vigilant watch 

for all marine mammals and slow down, 

stop their vessel, or alter course (as 

appropriate) to avoid striking any 

marine mammal. The dedicated visual 

observer, equipped with suitable 

monitoring technology (e.g., binoculars, 

night vision devices), must be located at 

an appropriate vantage point for 

ensuring vessels are maintaining 

required vessel separation distances 

from marine mammals (e.g., 500 m from 

North Atlantic right whales). 

All project vessels, regardless of size, 

must maintain the following minimum 

separation zones: 500 m from North 

Atlantic right whales; a 100 m zone 

from sperm whales and non-North 

Atlantic right whale baleen whales; and 

50 m from all delphinid cetaceans and 

pinnipeds (an exception is made for 

those species that approach the vessel 

(i.e., bow-riding dolphins)). If any of 

these species are sighted within their 

respective minimum separation zone, 

the underway vessel must shift its 

engine to neutral and the engines must 

not be engaged until the animal(s) have 

been observed to be outside of the 

vessel’s path and beyond the respective 

minimum separation zone. If a North 

Atlantic right whale is observed at any 

distance by any project personnel or 

acoustically detected, project vessels 

must reduce speeds to 10 kn. 

Additionally, in the event that any 

project-related vessel, regardless of size, 

observes any large whale (other than a 

North Atlantic right whale) within 500 

m of an underway vessel, the vessel is 

required to immediately reduce speeds 

to 10 kn or less. The 10 kn speed 

restriction will remain in effect as 

outlined in 50 CFR 217.264(b). 

All of the project-related vessels 

would be required to comply with 

existing NMFS vessel speed restrictions 

for North Atlantic right whales and the 

measures within this rulemaking for 

operating vessels around North Atlantic 

right whales and other marine 

mammals. When NMFS vessel speed 

restrictions are not in effect and a vessel 

is traveling at greater than 10 kn, in 

addition to the required dedicated 

visual observer, Atlantic Shores would 

be required to monitor the crew transfer 

vessel transit corridor (the path crew 

transfer vessels take form port to any 

work area) in real-time with PAM prior 

to and during transits. To maintain 

awareness of North Atlantic right whale 

presence, vessel operators, crew 

members, and the marine mammal 

monitoring team will monitor U.S. Coast 

Guard VHF Channel 16, WhaleAlert, the 

Right Whale Sighting Advisory System 

(RWSAS), and the PAM system. Any 

marine mammal observed by project 

personnel must be immediately 

communicated to any on-duty PSOs, 

PAM operator(s), and all vessel 

captains. Any North Atlantic right 

whale or large whale observation or 

acoustic detection by PSOs or PAM 

operators must be conveyed to all vessel 

captains. All vessels would be equipped 

with an AIS and Atlantic Shores must 

report all Maritime Mobile Service 

Identify (MMSI) numbers to NMFS 

Office of Protected Resources prior to 

initiating in-water activities. Atlantic 

Shores will submit a NMFS-approved 

North Atlantic Right Whale Vessel 

Strike Avoidance Plan at least 90 days 

prior to commencement of vessel use. 

Atlantic Shores’ compliance with 

these proposed measures would reduce 

the likelihood of vessel strike to the 

extent practicable. These measures 

increase awareness of marine mammals 

in the vicinity of project vessels and 

require project vessels to reduce speed 

when marine mammals are detected (by 

PSOs, PAM, and/or through another 

source, e.g., RWSAS) and maintain 

separation distances when marine 

mammals are encountered. While visual 

monitoring is useful, reducing vessel 

speed is one of the most effective, 

feasible options available to reduce the 

likelihood of and effects from a vessel 

strike. Numerous studies have indicated 

that slowing the speed of vessels 

reduces the risk of lethal vessel 

collisions, particularly in areas where 

right whales are abundant and vessel 

traffic is common and otherwise 

traveling at high speeds (Vanderlaan 

and Taggart, 2007; Conn and Silber, 

2013; Van der Hoop et al., 2014; Martin 

et al., 2015; Crum et al., 2019). 

Seasonal and Daily Restrictions 

Temporal restrictions in places where 

marine mammals are concentrated, 

engaged in biologically important 

behaviors, and/or present in sensitive 

life stages are effective measures for 

reducing the magnitude and severity of 


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human impacts. The temporal 

restrictions required here are built 

around North Atlantic right whale 

protection. Based upon the best 

scientific information available (Roberts 

et al., 2023), the highest densities of 

North Atlantic right whales in the 

specified geographic region are expected 

during the months of January through 

April, with an increase in density 

starting in December. However, North 

Atlantic right whales may be present in 

the specified geographic region 

throughout the year. 

NMFS is proposing to require 

seasonal work restrictions to minimize 

risk of noise exposure to the North 

Atlantic right whales incidental to 

certain specified activities to the extent 

practicable. These seasonal work 

restrictions are expected to greatly 

reduce the number of takes of North 

Atlantic right whales. These seasonal 

restrictions also afford protection to 

other marine mammals that are known 

to use the Project Area with greater 

frequency during winter months, 

including other baleen whales. 

As described previously, no impact 

pile driving activities may occur January 

1 through April 30. In addition, NMFS 

is proposing to require that Atlantic 

Shores install the foundations as 

quickly as possible and avoid pile 

driving in December to the maximum 

extent practicable; however, pile driving 

may occur in December if it is 

unavoidable upon approval from NMFS. 

Atlantic Shores has proposed to 

construct the cofferdams in 2025 and 

2026 of the effective period of the 

regulations and LOA. However, NMFS 

is not requiring any seasonal restrictions 

due to the relatively short duration of 

work and low impacts to marine 

mammals. Although North Atlantic 

right whales do migrate in coastal 

waters, they do not typically migrate 

very close to shore off of New Jersey 

and/or within New Jersey bays where 

work would be occurring. Given the 

distance to the Level B harassment 

isopleth is conservatively modeled at 

approximately 11 km (36,089.2 ft), we 

expect that exposure to vibratory pile 

driving during cofferdam installation 

would be unlikely, and that if exposures 

occur, they will occur at levels 

consistent with only the Level B 

harassment threshold, and for only short 

durations given that large whales, if 

present, would likely be moving 

through the area in migration. NMFS is 

not proposing any seasonal restrictions 

to HRG surveys; however, Atlantic 

Shores would only perform a specific 

amount of 24-hour survey days within 

the proposed effective period of these 

regulations. 

NMFS is also requiring temporal 

restrictions for some activities. Within 

any 24-hour period, Atlantic Shores 

would be limited to installing up to 2 

monopile foundations or 4 pin piles. 

Atlantic Shores has requested to initiate 

pile driving during nighttime when 

detection of marine mammals is visually 

challenging. To date, Atlantic Shores 

has not submitted a plan containing the 

information necessary, including 

evidence, that their proposed systems 

are capable of detecting marine 

mammals, particularly large whales, at 

distances necessary to ensure mitigation 

measures are effective and, in general, 

the scientific literature on these 

technologies demonstrate there is a high 

degree of uncertainty in reliably 

detecting marine mammals at distances 

necessary for this project. Therefore, 

NMFS is not proposing, at this time, to 

allow Atlantic Shores to initiate pile 

driving later than 1.5 hours after civil 

sunset or 1 hour before civil sunrise. We 

are, however, proposing to encourage 

and allow Atlantic Shores the 

opportunity to further investigate and 

test advanced technology detection 

systems to support their request. NMFS 

is proposing to condition the LOA such 

that nighttime pile driving would only 

be allowed if Atlantic Shores submits an 

Alternative Monitoring Plan to NMFS 

for approval that proves the efficacy of 

their night vision devices (e.g., mounted 

thermal/infrared (IR) camera systems, 

hand-held or wearable night vision 

devices (NVDs), IR spotlights) in 

detecting protected marine mammals. If 

the plan does not include a full 

description of the proposed technology, 

monitoring methodology, and data 

supporting that marine mammals can 

reliably and effectively be detected 

within the clearance and shutdown 

zones for monopiles and pin piles 

before and during impact pile driving, 

nighttime pile driving (unless a pile was 

initiated 1.5 hours prior to civil sunset) 

will not be allowed. The Plan should 

identify the efficacy of the technology at 

detecting marine mammals in the 

clearance and shutdowns under all the 

various conditions anticipated during 

construction, including varying weather 

conditions, sea states, and in 

consideration of the use of artificial 

lighting. Any and all vibratory pile 

driving associated with cofferdams 

installation and removal would only be 

able to occur during daylight hours. 

Lastly, given the very small Level B 

harassment zone associated with HRG 

survey activities and no anticipated or 

authorized Level A harassment, NMFS 

is not proposing any daily restrictions 

for HRG surveys. 

More information on activity-specific 

seasonal and daily restrictions can be 

found in the regulatory text at the end 

of this proposed rulemaking. 

Noise Abatement Systems 

Atlantic Shores would be required to 

employ noise abatement systems (NAS), 

also known as noise attenuation 

systems, during all foundation 

installation (i.e., impact pile driving) 

activities to reduce the sound pressure 

levels that are transmitted through the 

water in an effort to reduce acoustic 

ranges to the Level A harassment and 

Level B harassment acoustic thresholds 

and minimize, to the extent practicable, 

any acoustic impacts resulting from 

these activities. Atlantic Shores would 

be required to use at least two NAS to 

ensure that measured sound levels do 

not exceed the levels modeled for a 10- 

dB sound level reduction for foundation 

installation, which is likely to include a 

double big bubble curtain combined 

with another NAS (other available NAS 

technologies are the hydro-sound 

damper, or an AdBm Helmholz 

resonator), as well as the adjustment of 

operational protocols to minimize noise 

levels. A single bubble curtain, alone or 

in combination with another NAS 

device, may not be used for pile driving 

as received SFV data reveals this 

approach is unlikely to attenuate sound 

sufficiently to be consistent with the 

modeling underlying our take analysis 

here, which incorporates expected 

ranges to the Level A and Level B 

harassment isopleths assuming 10-dB of 

attenuation and appropriate NAS use. 

Should the research and development 

phase of newer systems demonstrate 

effectiveness, as part of adaptive 

management, Atlantic Shores may 

submit data on the effectiveness of these 

systems and request approval from 

NMFS to use them during foundation 

installation activities. 

Two categories of NAS exist: primary 

and secondary. A primary NAS would 

be used to reduce the level of noise 

produced by foundation installation 

activities at the source, typically 

through adjustments on to the 

equipment (e.g., hammer strike 

parameters). Primary NAS are still 

evolving and will be considered for use 

during mitigation efforts when the NAS 

has been demonstrated as effective in 

commercial projects. However, as 

primary NAS are not fully effective at 

eliminating noise, a secondary NAS 

would be employed. The secondary 

NAS is a device or group of devices that 

would reduce noise as it was 

transmitted through the water away 

from the pile, typically through a 

physical barrier that would reflect or 


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absorb sound waves and, therefore, 

reduce the distance the higher energy 

sound propagates through the water 

column. Together, these systems must 

reduce noise levels to those not 

exceeding modeled ranges to Level A 

harassment and Level B harassment 

isopleths corresponding to those 

modeled assuming 10-dB sound 

attenuation, pending results of SFV (see 

Sound Field Verification section below 

and Part 217—Regulations Governing 

The Taking And Importing Of Marine 

Mammals). 

Noise abatement systems, such as 

bubble curtains, are used to decrease the 

sound levels radiated from a source. 

Bubbles create a local impedance 

change that acts as a barrier to sound 

transmission. The size of the bubbles 

determines their effective frequency 

band, with larger bubbles needed for 

lower frequencies. There are a variety of 

bubble curtain systems, confined or 

unconfined bubbles, and some with 

encapsulated bubbles or panels. 

Attenuation levels also vary by type of 

system, frequency band, and location. 

Small bubble curtains have been 

measured to reduce sound levels but 

effective attenuation is highly 

dependent on depth of water, current, 

and configuration and operation of the 

curtain (Austin et al., 2016; Koschinski 

and Lu ̈demann, 2013). Bubble curtains 

vary in terms of the sizes of the bubbles 

and those with larger bubbles tend to 

perform a bit better and more reliably, 

particularly when deployed with two 

separate rings (Bellmann, 2014; 

Koschinski and Lu ̈demann, 2013; Nehls 

et al., 2016). Encapsulated bubble 

systems (i.e., Hydro Sound Dampers 

(HSDs)), can be effective within their 

targeted frequency ranges (e.g., 100–800 

Hz), and when used in conjunction with 

a bubble curtain appear to create the 

greatest attenuation. The literature 

presents a wide array of observed 

attenuation results for bubble curtains. 

The variability in attenuation levels is 

the result of variation in design as well 

as differences in site conditions and 

difficulty in properly installing and 

operating in-water attenuation devices. 

The literature presents a wide array of 

observed attenuation results for bubble 

curtains. The variability in attenuation 

levels is the result of variation in design 

as well as differences in site conditions, 

installation, and operation. For 

example, Da ̈hne et al. (2017) found that 

single bubble curtains that reduce sound 

levels by 7 to 10 dB reduced the overall 

sound level by approximately 12 dB 

when combined as a double bubble 

curtain for 6-m steel monopiles in the 

North Sea. During installation of 

monopiles (consisting of approximately 

8-m in diameter) for more than 150 

WTGs in comparable water depths (>25 

m) and conditions in Europe indicate 

that attenuation of 10 dB is readily 

achieved (Bellmann, 2019; Bellmann et 

al., 2020) using single big bubble 

curtains (BBCs) for noise attenuation. 

When a double big bubble curtain is 

used (noting a single bubble curtain is 

not allowed), Atlantic Shores would be 

required to maintain numerous 

operational performance standards. 

These standards are defined in the 

regulatory text at the end of this 

proposed rulemaking and include, but 

are not limited to: construction 

contractors must train personnel in the 

proposed balancing of airflow to the 

bubble ring and Atlantic Shores would 

be required to submit a performance test 

and maintenance report to NMFS within 

72 hours following the performance test. 

Corrections to the attenuation device to 

meet regulatory requirements must 

occur prior to use during foundation 

installation activities. In addition, a full 

maintenance check (e.g., manually 

clearing holes) must occur prior to each 

pile being installed. If Atlantic Shores 

uses a noise mitigation device in 

addition to a double big bubble curtain, 

similar quality control measures are 

required. 

Atlantic Shores would be required to 

submit an SFV plan to NMFS for 

approval at least 180 days prior to 

installing foundations. They would also 

be required to submit interim and final 

SFV data results to NMFS and make 

corrections to the noise attenuation 

systems in the case that any SFV 

measurements demonstrate noise levels 

are above those modeled assuming 10 

dB. These frequent and immediate 

reports would allow NMFS to better 

understand the sound fields to which 

marine mammals are being exposed and 

require immediate corrective action 

should they be misaligned with 

anticipated noise levels within our 

analysis. 

Noise abatement devices are not 

required during HRG surveys and 

cofferdam (sheet pile) installation/ 

removal. Regarding cofferdam sheet pile 

installation and removal, NAS is not 

practicable to implement due to the 

physical nature of linear sheet piles, and 

is of low risk for impacts to marine 

mammals due to the short work 

duration and lower noise levels 

produced during the activities. 

Regarding HRG surveys, NAS cannot 

practicably be employed around a 

moving survey ship, but Atlantic Shores 

would be required to make efforts to 

minimize source levels by using the 

lowest energy settings on equipment 

that has the potential to result in 

harassment of marine mammals (e.g., 

sparkers, boomers) and turn off 

equipment when not actively surveying. 

Overall, minimizing the amount and 

duration of noise in the ocean from any 

of the project’s activities through use of 

all means necessary (e.g., noise 

abatement, turning off power) will effect 

the least practicable adverse impact on 

marine mammals. 

Clearance and Shutdown Zones 

NMFS is proposing to require the 

establishment of both clearance and 

shutdown zones during project 

activities that have the potential to 

result in harassment of marine 

mammals. The purpose of ‘‘clearance’’ 

of a particular zone is to minimize 

potential instances of auditory injury 

and more severe behavioral 

disturbances by delaying the 

commencement of an activity if marine 

mammals are near the activity. The 

purpose of a shutdown is to prevent a 

specific acute impact, such as auditory 

injury or severe behavioral disturbance 

of sensitive species, by halting the 

activity. 

All relevant clearance and shutdown 

zones during project activities would be 

monitored by NMFS-approved PSOs 

and/or PAM operators (as described in 

the regulatory text at the end of this 

proposed rulemaking). At least one 

PAM operator must review data from at 

least 24 hours prior to foundation 

installation and actively monitor 

hydrophones for 60 minutes prior to 

commencement of these activities. Any 

sighting or acoustic detection of a North 

Atlantic right whale triggers a delay to 

commencing pile driving and 

shutdown. 

Prior to the start of certain specified 

activities mammals (foundation 

installation, cofferdam install and 

removal, and HRG surveys), Atlantic 

Shores would be required to ensure 

designated areas (i.e., clearance zones, 

Tables 27, 28, and 29) are clear of 

marine mammals prior to commencing 

activities to minimize the potential for 

and degree of harassment. For 

foundation installation, PSOs must 

visually monitor clearance zones for 

marine mammals for a minimum of 60 

minutes, where the zone must be 

confirmed free of marine mammals at 

least 30 minutes directly prior to 

commencing these activities. Clearance 

zones represent the largest Level A 

harassment zone for each species group, 

plus 20 percent of a minimum of 100 m 

(whichever is greater). For foundation 

installation, the minimum visibility 

zone would extend 1,900 m (6,233.6 ft) 

from the pile (Table 27). This value 

corresponds to the modeled maximum 


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ER95% distances to the Level A 

harassment threshold for low-frequency 

cetaceans, assuming 10 dB of 

attenuation. 

For cofferdam vibratory pile driving 

and HRG surveys, monitoring must be 

conducted for 30 minutes prior to 

initiating activities and the clearance 

zones (Tables 28 and 29) must be free 

of marine mammals during that time. 

For any other in-water construction 

heavy machinery activities (e.g., 

trenching, cable laying, etc.), if a marine 

mammal is on a path towards or comes 

within 10 m (32.8 ft) of equipment, 

Atlantic Shores would be required to 

cease operations until the marine 

mammal has moved more than 10 m on 

a path away from the activity to avoid 

direct interaction with equipment. 

Once an activity begins, any marine 

mammal entering their respective 

shutdown zone would trigger the 

activity to cease. In the case of pile 

driving, the shutdown requirement may 

be waived if is not practicable due to 

imminent risk of injury or loss of life to 

an individual or risk of damage to a 

vessel that creates risk of injury or loss 

of life for individuals or the lead 

engineer determines there is pile refusal 

or pile instability. 

In situations when shutdown is called 

for but Atlantic Shores determines 

shutdown is not practicable due to 

aforementioned emergency reasons, 

reduced hammer energy must be 

implemented when the lead engineer 

determines it is practicable. 

Specifically, pile refusal or pile 

instability could result in not being able 

to shut down pile driving immediately. 

Pile refusal occurs when the pile driving 

sensors indicate the pile is approaching 

refusal, and a shut-down would lead to 

a stuck pile which then poses an 

imminent risk of injury or loss of life to 

an individual, or risk of damage to a 

vessel that creates risk for individuals. 

Pile instability occurs when the pile is 

unstable and unable to stay standing if 

the piling vessel were to ‘‘let go.’’ 

During these periods of instability, the 

lead engineer may determine a shutdown is not feasible because the shutdown combined with impending 

weather conditions may require the 

piling vessel to ‘‘let go’’ which then 

poses an imminent risk of injury or loss 

of life to an individual, or risk of 

damage to a vessel that creates risk for 

individuals. Atlantic Shores must 

document and report to NMFS all cases 

where the emergency exemption is 

taken. 

After shutdown, impact pile driving 

may be reinitiated once all clearance 

zones are clear of marine mammals for 

the minimum species-specific periods, 

or, if required to maintain pile stability, 

impact pile driving may be reinitiated 

but must be used to maintain stability. 

If pile driving has been shut down due 

to the presence of a North Atlantic right 

whale, pile driving must not restart 

until the North Atlantic right whale has 

neither been visually or acoustically 

detected for30 minutes. Upon re-starting 

pile driving, soft-start protocols must be 

followed if pile driving has ceased for 

30 minutes or longer. 

The clearance and shutdown zone 

sizes vary by species and are shown in 

Table 27, Table 28, and Table 29. 

Atlantic Shores would be allowed to 

request modification to these zone sizes 

pending results of sound field 

verification (see regulatory text at the 

end of this proposed rulemaking). Any 

changes to zone size would be part of 

adaptive management and would 

require NMFS’ approval. 

TABLE 27—MINIMUM VISIBILITY, CLEARANCE, SHUTDOWN, AND LEVEL B HARASSMENT ZONES DURING IMPACT PILE

DRIVING

Monitoring zone North Atlantic 

right whales 

Other large 

whales 

Delphinids and 

pilot whales 

Harbor 

porpoises Seals 

Minimum Visibility Zone a .............................................. 1,900 m. 

Clearance Zone c .......................................................... Any distance ....... 2,300 m .......... 100 m b .......... 1,800 m .......... 400 m. 

Shutdown Zone c ........................................................... Any distance ....... 1,900 .............. 100 m d .......... 1,500 m .......... 350. 

PAM Monitoring Zone ................................................... 10,000 m. 

Level B Harassment (Acoustic Range, R95%) .............. Monopiles: 8,300 m; Pin Piles: 5,500 m. 

aThe minimum visibility zone is equal to the modeled maximum ER95% distances to the Level A harassment threshold for low-frequency 

cetaceans, assuming 10 dB of attenuation. bThe clearance zone is equal to the maximum Level A harassment distance for each species group (assuming 10 dB of attenuation) plus 20 

percent or a minimum of 100 m (whichever is greater). cThis zone applies to both visual and PAM. 

dThe exposure ranges (ER95%) presented for delphinid species and pilot whale spp. were either all zero or near-zero. However, to ensure a 

protective zone, NMFS is requiring a 100 m (328 ft) clearance zone. 

TABLE 28—TEMPORARY COFFERDAM VIBRATORY INSTALLATION AND REMOVAL CLEARANCE AND SHUTDOWN ZONES

Marine mammal species 

Clearance and 

shutdown zones 

(m) 

North Atlantic right whale—visual detection .................................................................................................................................. 100 

All other large marine mammals ................................................................................................................................................... 100 

Delphinids and Pilot whales .......................................................................................................................................................... 50 

Harbor porpoise ............................................................................................................................................................................. a 540 

Seals .............................................................................................................................................................................................. 60 

a Harbor porpoise is unlikely to be near the nearshore environment. 


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TABLE 29—HRG SURVEY CLEARANCE, SHUTDOWN, AND VESSEL SEPARATION ZONES

Marine mammal species Clearance zone 

(m) 2

Shutdown zone 

(m) 

Vessel 

separation zone 

(m) 

North Atlantic right whale .......................................................................................... 500 500 500

Other ESA-listed species (i.e., fin, sei, sperm whale) ............................................... 500 100 100 

Other marine mammals 1 ........................................................................................... 100 100 50 

1With the exception of seals and delphinid(s) from the genera Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below. 2For HRG surveys, Atlantic Shores did not propose clearance zones, although they are referenced in the ITA application and in their Protected 

Species Management and Equipment Specifications Plan (PSMESP). Because of this, NMFS instead proposes Clearance Zones of 500 m 

(1,640 ft; for NARW), 500 m (1,640 ft; for all other ESA-listed species); and 100 m (328 ft; for all other marine mammals, with exceptions noted for 

specific bow-riding delphinids). These zones are considered for protection for protected species, given the extensive vessel presence in and 

around the Project Area. 

Soft-Start/Ramp-Up 

The use of a soft-start or ramp-up 

procedure is believed to provide 

additional protection to marine 

mammals by warning them, or 

providing them with a chance to leave 

the area prior to the hammer or HRG 

equipment operating at full capacity. 

Soft-start typically involves initiating 

hammer operation at a reduced energy 

level (relative to full operating capacity) 

followed by a waiting period. Atlantic 

Shores would be required to utilize a 

soft-start protocol for impact pile 

driving of monopiles and pin piles by 

performing four to six strikes per minute 

at 10 to 20 percent of the maximum 

hammer energy, for a minimum of 20 

minutes. NMFS notes that it is difficult 

to specify a reduction in energy for any 

given hammer because of variation 

across drivers and installation 

conditions. Atlantic Shores will reduce 

energy based on consideration of sitespecific soil properties and other 

relevant operational considerations. A 

soft-start during vibratory pile driving of 

sheet piles would be accomplished by 

varying hammer frequency and/or 

amplitude. The final methodology will 

be developed by Atlantic Shores 

considering final design details 

including site specific soil properties 

and other considerations. HRG survey 

operators would be required to ramp-up 

sources when the acoustic sources are 

used unless the equipment operates on 

a binary on/off switch. The ramp up 

would involve starting from the smallest 

setting to the operating level over a 

period of approximately 30 minutes. 

Soft-start and ramp-up would be 

required at the beginning of each day’s 

activity and at any time following a 

cessation of activity of 30 minutes or 

longer. Prior to soft-start or ramp-up 

beginning, the operator must receive 

confirmation from the PSO that the 

clearance zone is clear of any marine 

mammals. 

Fishery Monitoring Surveys 

While the likelihood of Atlantic 

Shores’ fishery monitoring surveys 

impacting marine mammals is minimal, 

NMFS proposed to require Atlantic 

Shores to adhere to gear and vessel 

mitigation measures to reduce potential 

impacts to the extent practicable. In 

addition, all crew undertaking the 

fishery monitoring survey activities 

would be required to receive protected 

species identification training prior to 

activities occurring and attend the 

aforementioned onboarding training. 

The specific requirements that NMFS 

would set for the fishery monitoring 

surveys can be found in the regulatory 

text at the end of this proposed 

rulemaking. 

Based on our evaluation of the 

mitigation measures, as well as other 

measures considered by NMFS, NMFS 

has preliminarily determined that these 

proposed measures would provide the 

means of affecting 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. 

Proposed Monitoring and Reporting 

In order to promulgate a rulemaking 

for an activity, section 101(a)(5)(A) of 

the MMPA states that NMFS must set 

forth requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104(a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present in the proposed action area. 

Effective reporting is critical both to 

compliance as well as ensuring that the 

most value is obtained from the required 

monitoring. 

• Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas); 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors; 

• How anticipated responses to 

stressors impact either: (1) long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat); and/or 

• Mitigation and monitoring 

effectiveness. 

Separately, monitoring is also 

regularly used to support mitigation 

implementation, which is referred to as 

mitigation monitoring, and monitoring 

plans typically include measures that 

both support mitigation implementation 

and increase our understanding of the 

impacts of the activity on marine 

mammals. 

During the planned activities, visual 

monitoring by NMFS-approved PSOs 

would be conducted before, during, and 

after all impact pile driving, vibratory 

pile driving, and HRG surveys. PAM 

would be also conducted during impact 


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pile driving. Visual observations and 

acoustic detections would be used to 

support the activity-specific mitigation 

measures (e.g., clearance zones). To 

increase understanding of the impacts of 

the activity on marine mammals, PSOs 

must would record all incidents of 

marine mammal occurrence at any 

distance from the piling locations, near 

the HRG acoustic sources. PSOs would 

document all behaviors and behavioral 

changes, in concert with distance from 

an acoustic source. The required 

monitoring is described below, 

beginning with PSO measures that are 

applicable to all the aforementioned 

activities, followed by activity-specific 

monitoring requirements. 

Protected Species Observer and PAM 

Operator Requirements 

Atlantic Shores would be required to 

employ NMFS-approved PSOs and PAM 

operators. PSOs are trained 

professionals who are tasked with 

visually monitoring for marine 

mammals during pile driving and HRG 

surveys. The primary purpose of a PSO 

is to carry out the monitoring, collect 

data, and, when appropriate, call for the 

implementation of mitigation measures. 

In addition to visual observations, 

NMFS would require Atlantic Shores to 

conduct PAM using PAM operators 

during impact pile driving and vessel 

transit. 

The inclusion of PAM, which would 

be conducted by NMFS-approved PAM 

operators, following a standardized 

measurement, processing methods, 

reporting metrics, and metadata 

standards for offshore wind alongside 

visual data collection is valuable to 

provide the most accurate record of 

species presence as possible, together, 

and these two monitoring methods are 

well understood to provide best results 

when combined together (e.g., Barlow 

and Taylor, 2005; Clark et al., 2010; 

Gerrodette et al., 2011; Van Parijs et al., 

2021). Acoustic monitoring (in addition 

to visual monitoring) increases the 

likelihood of detecting marine mammals 

within the shutdown and clearance 

zones of project activities, which when 

applied in combination with required 

shutdowns helps to further reduce the 

risk of marine mammals being exposed 

to sound levels that could otherwise 

result in acoustic injury or more intense 

behavioral harassment. 

The exact configuration and number 

of PAM systems depends on the size of 

the zone(s) being monitored, the amount 

of noise expected in the area, and the 

characteristics of the signals being 

monitored. More closely spaced 

hydrophones would allow for more 

directionality, and perhaps, range to the 

vocalizing marine mammals; although, 

this approach would add additional 

costs and greater levels of complexity to 

the project. Larger baleen cetacean 

species (i.e., mysticetes), which produce 

loud and lower-frequency vocalizations, 

may be able to be heard with fewer 

hydrophones spaced at greater 

distances. However, smaller cetaceans 

(such as mid-frequency delphinids; 

odontocetes) may necessitate more 

hydrophones and to be spaced closer 

together given the shorter range of the 

shorter, mid-frequency acoustic signals 

(e.g., whistles and echolocation clicks). 

As there are no ‘‘perfect fit’’ singleoptimal-array configurations, NMFS 

will consider and approve these set-ups, 

as appropriate, on a case-by-case basis. 

Specifically, Atlantic Shores will be 

required to provide a plan that describes 

an optimal configuration for collecting 

the required marine mammal data, 

based on the real world circumstances 

in the project area, recognizing that we 

will continue to learn more as 

monitoring results from other wind 

projects are submitted. 

NMFS does not formally administer 

any PSO or PAM operator training 

program or endorse specific providers 

but will approve PSOs and PAM 

operators that have successfully 

completed courses that meet the 

curriculum and trainer requirements 

referenced below and further specified 

in the regulatory text at the end of this 

proposed rulemaking. 

NMFS will provide PSO and PAM 

operator approvals in the context of the 

need to ensure that PSOs and PAM 

operators have the necessary training 

and/or experience to carry out their 

duties competently. In order for PSOs 

and PAM operators to be approved, 

NMFS must review and approve PSO 

and PAM operator resumes indicating 

successful completion of an acceptable 

training course. PSOs and PAM 

operators must have previous 

experience observing marine mammals 

and must have the ability to work with 

all required and relevant software and 

equipment. NMFS may approve PSOs 

and PAM operators as conditional or 

unconditional. A conditional approval 

may be given to one who is trained but 

has not yet attained the requisite 

experience. An unconditional approval 

is given to one who is trained and has 

attained the necessary experience. The 

specific requirements for conditional 

and unconditional approval can be 

found in the regulatory text at the end 

of this proposed rulemaking. 

Conditionally-approved PSOs and 

PAM operators would be paired with an 

unconditionally-approved PSO (or PAM 

operator, as appropriate) to ensure that 

the quality of marine mammal 

observations and data recording is kept 

consistent. Additionally, activities 

requiring PSO and/or PAM operator 

monitoring must have a lead on duty. 

The visual PSO field team, in 

conjunction with the PAM team (i.e., 

marine mammal monitoring team) 

would have a lead member (designated 

as the ‘‘Lead PSO’’ or ‘‘Lead PAM 

operator’’) who would be required to 

meet the unconditional approval 

standard. 

Although PSOs and PAM operators 

must be approved by NMFS, third-party 

observer providers and/or companies 

seeking PSO and PAM operator staffing 

should expect that those having 

satisfactorily completed acceptable 

training and with the requisite 

experience (if required) will be quickly 

approved. Atlantic Shores is required to 

request PSO and PAM operator 

approvals 60 days prior to those 

personnel commencing work. An initial 

list of previously approved PSO and 

PAM operators must be submitted by 

Atlantic Shores at least 30 days prior to 

the start of the project. Should Atlantic 

Shores require additional PSOs or PAM 

operators throughout the project, 

Atlantic Shores must submit a 

subsequent list of pre-approved PSOs 

and PAM operators to NMFS at least 15 

days prior to planned use of that PSO 

or PAM operator. A PSO may be trained 

and/or experienced as both a PSO and 

PAM operator and may perform either 

duty, pursuant to scheduling 

requirements (and vice versa). 

A minimum number of PSOs would 

be required to actively observe for the 

presence of marine mammals during 

certain project activities with more 

PSOs required as the mitigation zone 

sizes increase. A minimum number of 

PAM operators would be required to 

actively monitor for the presence of 

marine mammals during foundation 

installation. The types of equipment 

required (e.g., Big Eye binoculars on the 

pile driving vessel) are also designed to 

increase marine mammal detection 

capabilities. Specifics on these types of 

requirements can be found in the 

regulations at the end of this proposed 

rulemaking. In summary, at least three 

PSOs and one PAM operator per 

acoustic data stream (equivalent to the 

number of acoustic buoys) must be onduty and actively monitoring per 

platform during foundation installation; 

at least two PSOs must be on duty 

during cable landfall construction 

vibratory pile installation and removal; 

at least one PSO must be on-duty during 

HRG surveys conducted during daylight 

hours; and at least two PSOs must be 


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on-duty during HRG surveys conducted 

during nighttime. 

In addition to monitoring duties, 

PSOs and PAM operators are 

responsible for data collection. The data 

collected by PSO and PAM operators 

and subsequent analysis provide the 

necessary information to inform an 

estimate of the amount of take that 

occurred during the project, better 

understand the impacts of the project on 

marine mammals, address the 

effectiveness of monitoring and 

mitigation measures, and to adaptively 

manage activities and mitigation in the 

future. Data reported includes 

information on marine mammal 

sightings, activity occurring at time of 

sighting, monitoring conditions, and if 

mitigative actions were taken. Specific 

data collection requirements are 

contained within the regulations at the 

end of this proposed rulemaking. 

Atlantic Shores would be required to 

submit a Pile Driving Marine Mammal 

Monitoring Plan and a PAM Plan to 

NMFS 180 days in advance of 

foundation installation activities. The 

Plan must include details regarding PSO 

and PAM monitoring protocols and 

equipment proposed for use. More 

specifically, the PAM Plan must include 

a description of all proposed PAM 

equipment, address how the proposed 

passive acoustic monitoring must follow 

standardized measurement, processing 

methods, reporting metrics, and 

metadata standards for offshore wind as 

described in NOAA and BOEM 

Minimum Recommendations for Use of 

Passive Acoustic Listening Systems in 

Offshore Wind Energy Development 

Monitoring and Mitigation Programs 

(Van Parijs et al., 2021). NMFS must 

approve the plan prior to foundation 

installation activities commencing. 

Specific details on NMFS’ PSO or PAM 

operator qualifications and 

requirements can be found in Part 217— 

Regulations Governing The Taking And 

Importing Of Marine Mammals at the 

end of this proposed rulemaking. 

Additional information can be found in 

Atlantic Shores’ Protected Species 

Management and Equipment 

Specifications Plan (PSMESP; Appendix 

E) found in their ITA application on 

NMFS’ website at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-atlanticshores-offshore-wind-llc-constructionatlantic-shores. 

Sound Field Verification 

Atlantic Shores would be required to 

conduct SFV measurements during all 

impact pile-driving activities associated 

with the installation of, at minimum, 

the first three monopile foundations. 

SFV measurements must continue until 

at least three consecutive monopiles and 

three entire jacket foundations 

demonstrate noise levels are at or below 

those modeled, assuming 10-decibels 

(dB) of attenuation. Subsequent SFV 

measurements would also be required 

should larger piles be installed or if 

additional piles are driven that are 

anticipated to produce louder sound 

fields than those previously measured 

(e.g., higher hammer energy, greater 

number of strikes, etc.). The 

measurements and reporting associated 

with SFV can be found in the regulatory 

text at the end of this proposed 

rulemaking. The proposed requirements 

are extensive to ensure monitoring is 

conducted appropriately and the 

reporting frequency is such that Atlantic 

Shores would be required to make 

adjustments quickly (e.g., add 

additional sound attenuation) to ensure 

marine mammals are not experiencing 

noise levels above those considered in 

this analysis. For recommended SFV 

protocols for impact pile driving, please 

consult ISO 18406 Underwater 

acoustics—Measurement of radiated 

underwater sound from percussive pile 

driving (2017). 

Reporting 

Prior to any construction activities 

occurring, Atlantic Shores would 

provide a report to NMFS Office of 

Protected Resources that demonstrates 

that all required training for Atlantic 

Shores personnel, which includes the 

vessel crews, vessel captains, PSOs, and 

PAM operators have completed all 

required trainings. 

NMFS would require standardized 

and frequent reporting from Atlantic 

Shores during the life of the regulations 

and LOA. All data collected relating to 

the Project would be recorded using 

industry-standard software (e.g., 

Mysticetus or a similar software) 

installed on field laptops and/or tablets. 

Atlantic Shores would be required to 

submit weekly, monthly, annual, and 

situational reports. The specifics of 

what we require to be reported can be 

found in the regulatory text at the end 

of this proposed rulemaking. 

Weekly Report—During foundation 

installation activities, Atlantic Shores 

would be required to compile and 

submit weekly marine mammal 

monitoring reports for foundation 

installation pile driving to NMFS Office 

of Protected Resources that document 

the daily start and stop of all piledriving activities, the start and stop of 

associated observation periods by PSOs, 

details on the deployment of PSOs, a 

record of all detections of marine 

mammals (acoustic and visual), any 

mitigation actions (or if mitigation 

actions could not be taken, provide 

reasons why), and details on the noise 

abatement system(s) (e.g., system type, 

distance deployed from the pile, bubble 

rate, etc.). Weekly reports will be due on 

Wednesday for the previous week 

(Sunday to Saturday). The weekly 

reports are also required to identify 

which turbines become operational and 

when (a map must be provided). Once 

all foundation pile installation is 

complete, weekly reports would no 

longer be required. 

Monthly Report—Atlantic Shores 

would be required to compile and 

submit monthly reports to NMFS Office 

of Protected Resources that include a 

summary of all information in the 

weekly reports, including project 

activities carried out in the previous 

month, vessel transits (number, type of 

vessel, and route), number of piles 

installed, all detections of marine 

mammals, and any mitigative actions 

taken. Monthly reports would be due on 

the 15th of the month for the previous 

month. The monthly report would also 

identify which turbines become 

operational and when (a map must be 

provided). Once all foundation pile 

installation is complete, monthly 

reports would no longer be required. 

Annual Reporting—Atlantic Shores 

would be required to submit an annual 

marine mammal monitoring (both PSO 

and PAM) report to NMFS Office of 

Protected Resources no later than 90 

days following the end of a given 

calendar year describing, in detail, all of 

the information required in the 

monitoring section above. A final 

annual report must be prepared and 

submitted within 30 calendar days 

following receipt of any NMFS 

comments on the draft report. 

Final 5-Year Reporting—Atlantic 

Shores would be required to submit its 

draft 5-year report(s) to NMFS Office of 

Protected Resources on all visual and 

acoustic monitoring conducted under 

the LOA within 90 calendar days of the 

completion of activities occurring under 

the LOA. A final 5-year report must be 

prepared and submitted within 60 

calendar days following receipt of any 

NMFS comments on the draft report. 

Information contained within this report 

is described at the beginning of this 

section. 

Situational Reporting—Specific 

situations encountered during the 

development of the Project would 

require immediate reporting. For 

instance, if a North Atlantic right whale 

is observed at any time by PSOs or 

project personnel, the sighting must be 

immediately (if not feasible, as soon as 

possible and no longer than 24 hours 


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after the sighting) reported to NMFS. If 

a North Atlantic right whale is 

acoustically detected at any time via a 

project-related PAM system, the 

detection must be reported as soon as 

possible and no longer than 24 hours 

after the detection to NMFS via the 24- 

hour North Atlantic right whale 

Detection Template (https://

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates). Calling the hotline is 

not necessary when reporting PAM 

detections via the template. 

If a sighting of a stranded, entangled, 

injured, or dead marine mammal occurs, 

the sighting would be reported to NMFS 

Office of Protected Resources, the NMFS 

Greater Atlantic Stranding Coordinator 

for the New England/Mid-Atlantic area 

(866–755–6622), and the U.S. Coast 

Guard within 24 hours. If the injury or 

death was caused by a project activity, 

Atlantic Shores would be required to 

immediately cease all activities until 

NMFS Office of Protected Resources is 

able to review the circumstances of the 

incident and determine what, if any, 

additional measures are appropriate to 

ensure compliance with the terms of the 

LOA. NMFS Office of Protected 

Resources may impose additional 

measures to minimize the likelihood of 

further prohibited take and ensure 

MMPA compliance consistent with the 

adaptive management provisions 

described below and codified at 

§ 217.307. Atlantic shores could not 

resume their activities until notified by 

NMFS Office of Protected Resources. 

In the event of a vessel strike of a 

marine mammal by any vessel 

associated with the Project. Atlantic 

Shores must immediately report the 

strike incident. If the strike occurs in the 

Greater Atlantic Region (Maine to 

Virginia), Atlantic Shores must call the 

NMFS Office of Protected Resources and 

GARFO. Atlantic Shores would be 

required to immediately cease all onwater activities until NMFS Office of 

Protected Resources is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the LOA. 

NMFS Office of Protected Resources 

may impose additional measures to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. Atlantic Shores may, 

consistent with the adaptive 

management provisions described 

below and codified at § 217.307, not 

resume their activities until notified by 

NMFS. 

In the event of any lost gear associated 

with the fishery surveys, Atlantic 

Shores must report to the GARFO as 

soon as possible or within 24 hours of 

the documented time of missing or lost 

gear. This report must include 

information on any markings on the gear 

and any efforts undertaken or planned 

to recover the gear. 

The specifics of what NMFS Office of 

Protected Resources requires to be 

reported is listed at the end of this 

proposed rulemaking in the regulatory 

text. 

Sound Field Verification—Atlantic 

Shores would be required to submit 

interim SFV reports after each 

foundation installation is completed as 

soon as possible but within 48 hours. A 

final SFV report for all monopile and 

jacket foundation installation 

monitoring would be required within 90 

days following completion of acoustic 

monitoring. 

Adaptive Management 

The regulations governing the take of 

marine mammals incidental to Atlantic 

Shores’ construction activities contain 

an adaptive management component. 

Our understanding of the effects of 

offshore wind construction activities 

(e.g., acoustic stressors) on marine 

mammals continues to evolve, which 

makes the inclusion of an adaptive 

management component both valuable 

and necessary within the context of 5- 

year regulations. 

The monitoring and reporting 

requirements in this final rule provide 

NMFS with information that helps us to 

better understand the impacts of the 

project’s activities on marine mammals 

and informs our consideration of 

whether any changes to mitigation and 

monitoring are appropriate. The use of 

adaptive management allows NMFS to 

consider new information and modify 

mitigation, monitoring, or reporting 

requirements, as appropriate, with input 

from Atlantic Shores regarding 

practicability, if such modifications will 

have a reasonable likelihood of more 

effectively accomplishing the goal of the 

measures. 

The following are some of the 

possible sources of new information to 

be considered through the adaptive 

management process: (1) results from 

monitoring reports, including the 

weekly, monthly, situational, and 

annual reports required; (2) results from 

marine mammal and sound research; 

and (3) any information which reveals 

that marine mammals may have been 

taken in a manner, extent, or number 

not authorized by these regulations or 

subsequent LOA. During the course of 

the rule, Atlantic Shores (and other LOA 

Holders conducting offshore wind 

development activities) are required to 

participate in one or more adaptive 

management meetings convened by 

NMFS and/or BOEM, in which the 

above information will be summarized 

and discussed in the context of potential 

changes to the mitigation or monitoring 

measures. 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

as an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

by mortality, serious injury, Level A 

harassment and Level B harassment, we 

consider other factors, such as the likely 

nature of any behavioral responses (e.g., 

intensity, duration), the context of any 

such responses (e.g., critical 

reproductive time or location, 

migration), as well as effects on habitat, 

and the likely effectiveness of 

mitigation. We also assess the number, 

intensity, and context of estimated takes 

by evaluating this information relative 

to population status. Consistent with the 

1989 preamble for NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

(e.g., as reflected in the regulatory status 

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

In the Estimated Take section, we 

estimated the maximum number of 

takes by Level A harassment and Level 

B harassment that could occur from 

Atlantic Shores’ specified activities 

based on the methods described. The 

impact that any given take would have 

is dependent on many case-specific 

factors that need to be considered in the 

negligible impact analysis (e.g., the 

context of behavioral exposures such as 

duration or intensity of a disturbance, 

the health of impacted animals, the 

status of a species that incurs fitnesslevel impacts to individuals, etc.). In 

this proposed rule, we evaluate the 

likely impacts of the enumerated 

harassment takes that are authorized in 

the context of the specific circumstances 


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surrounding these predicted takes. We 

also collectively evaluate this 

information, as well as other more taxaspecific information and mitigation 

measure effectiveness, in group-specific 

discussions that support our negligible 

impact conclusions for each stock. As 

described above, no serious injury or 

mortality is expected or proposed to be 

authorized for any species or stock. 

The Description of the Specified 

Activities section describes Atlantic 

Shores’ specified activities proposed for 

the project that may result in take of 

marine mammals and an estimated 

schedule for conducting those activities. 

Atlantic Shores South has provided a 

realistic construction schedule although 

we recognize schedules may shift for a 

variety of reasons (e.g., weather or 

supply delays). However, the total 

amount of take would not exceed the 5- 

year totals and maximum annual total in 

any given year indicated in Tables 25 

and 26, respectively. 

We base our analysis and preliminary 

negligible impact determination on the 

maximum number of takes that could 

occur and are proposed to be authorized 

annually and across the effective period 

of these regulations, and extensive 

qualitative consideration of other 

contextual factors that influence the 

degree of impact of the takes on the 

affected individuals and the number 

and context of the individuals affected. 

As stated before, the number of takes, 

both maximum annual and 5-year total, 

alone are only a part of the analysis. 

To avoid repetition, we provide some 

general analysis in this Negligible 

Impact Analysis and Determination 

section that applies to all the species 

listed in Table 4 given that some of the 

anticipated effects of Atlantic Shores’ 

construction activities on marine 

mammals are expected to be relatively 

similar in nature. Then, we subdivide 

into more detailed discussions for 

mysticetes, odontocetes, and pinnipeds 

which have broad life history traits that 

support an overarching discussion of 

some factors considered within the 

analysis for those groups (e.g., habitatuse patterns, high-level differences in 

feeding strategies). 

Last, we provide a negligible impact 

determination for each species or stock, 

providing species or stock-specific 

information or analysis, where 

appropriate, for example, for North 

Atlantic right whales given the 

population status. Organizing our 

analysis by grouping species or stocks 

that share common traits or that would 

respond similarly to effects of Atlantic 

Shores’ activities, and then providing 

species- or stock-specific information 

allows us to avoid duplication while 

ensuring that we have analyzed the 

effects of the specified activities on each 

affected species or stock. It is important 

to note that in the group or species 

sections, we base our negligible impact 

analysis on the maximum annual take 

that is predicted under the 5-year rule; 

however, the majority of the impacts are 

associated with WTG, Met Tower, and 

OSS foundation installation, which 

would occur largely within the first 2 to 

3 years (2025 through 2026 or 2027). 

The estimated take in the other years is 

expected to be notably less, which is 

reflected in the total take that would be 

allowable under the rule (see Tables 24, 

25, and 26). 

As described previously, no serious 

injury or mortality is anticipated or 

authorized in this rule. Any Level A 

harassment authorized would be in the 

form of auditory injury (i.e., PTS) and 

not non-auditory injury (e.g., lung injury 

or gastrointestinal injury from 

detonations). The amount of harassment 

Atlantic Shores has requested, and 

NMFS proposes to authorize, is based 

on exposure models that consider the 

outputs of acoustic source and 

propagation models and other data such 

as frequency of occurrence or group 

sizes. Several conservative parameters 

and assumptions are ingrained into 

these models, such as assuming forcing 

functions that consider direct contact 

with piles (i.e., no cushion allowances) 

and application of the average summer 

sound speed profile to all months 

within a given season. The exposure 

model results do not reflect any 

mitigation measures (other than 10-dB 

sound attenuation) or avoidance 

response. The amount of take requested 

and proposed to be authorized also 

reflects careful consideration of other 

data (e.g., group size data) and, for Level 

A harassment potential of some large 

whales, the consideration of mitigation 

measures. For all species, the amount of 

take proposed to be authorized 

represents the maximum amount of 

Level A harassment and Level B 

harassment that could occur. 

Behavioral Disturbance 

In general, NMFS anticipates that 

impacts on an individual that has been 

harassed are likely to be more intense 

when exposed to higher received levels 

and for a longer duration (though this is 

in no way a strictly linear relationship 

for behavioral effects across species, 

individuals, or circumstances) and less 

severe impacts result when exposed to 

lower received levels and for a brief 

duration. However, there is also growing 

evidence of the importance of 

contextual factors such as distance from 

a source in predicting marine mammal 

behavioral response to sound—i.e., 

sounds of a similar level emanating 

from a more distant source have been 

shown to be less likely to evoke a 

response of equal magnitude (DeRuiter 

and Doukara, 2012; Falcone et al., 

2017). As described in the Potential 

Effects of Specified Activities on Marine 

Mammals and their Habitat section, the 

intensity and duration of any impact 

resulting from exposure to Atlantic 

Shores’ activities is dependent upon a 

number of contextual factors including, 

but not limited to, sound source 

frequencies, whether the sound source 

is moving towards the animal, hearing 

ranges of marine mammals, behavioral 

state at time of exposure, status of 

individual exposed (e.g., reproductive 

status, age class, health) and an 

individual’s experience with similar 

sound sources. Southall et al. (2021), 

Ellison et al. (2012) and Moore and 

Barlow (2013), among others, emphasize 

the importance of context (e.g., 

behavioral state of the animals, distance 

from the sound source) in evaluating 

behavioral responses of marine 

mammals to acoustic sources. 

Harassment of marine mammals may 

result in behavioral modifications (e.g., 

avoidance, temporary cessation of 

foraging or communicating, changes in 

respiration or group dynamics, masking) 

or may result in auditory impacts such 

as hearing loss. In addition, some of the 

lower level physiological stress 

responses (e.g., change in respiration, 

change in heart rate) discussed 

previously would likely co-occur with 

the behavioral modifications, although 

these physiological responses are more 

difficult to detect and fewer data exist 

relating these responses to specific 

received levels of sound. Takes by Level 

B harassment, then, may have a stressrelated physiological component as 

well. However, we would not expect 

Atlantic Shores’ activities to produce 

conditions of long-term and continuous 

exposure to noise leading to long-term 

physiological stress responses in marine 

mammals that could affect reproduction 

or survival. 

In the range of behavioral effects that 

might be expected to be part of a 

response that qualifies as an instance of 

Level B harassment by behavioral 

disturbance (which by nature of the way 

it is modeled/counted, occurs within 1 

day), the less severe end might include 

exposure to comparatively lower levels 

of a sound, at a greater distance from the 

animal, for a few or several minutes. A 

less severe exposure of this nature could 

result in a behavioral response such as 

avoiding an area that an animal would 

otherwise have chosen to move through 


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or feed in for some amount of time, or 

breaking off one or a few feeding bouts. 

More severe effects could occur if an 

animal gets close enough to the source 

to receive a comparatively higher level, 

is exposed continuously to one source 

for a longer time, or is exposed 

intermittently to different sources 

throughout a day. Such effects might 

result in an animal having a more severe 

flight response and leaving a larger area 

for a day or more or potentially losing 

feeding opportunities for a day. 

However, such severe behavioral effects 

are expected to occur infrequently. 

Many species perform vital functions, 

such as feeding, resting, traveling, and 

socializing on a diel cycle (24-hour 

cycle). Behavioral reactions to noise 

exposure, when taking place in a 

biologically important context, such as 

disruption of critical life functions, 

displacement, or avoidance of important 

habitat, are more likely to be significant 

if they last more than 1 day or recur on 

subsequent days (Southall et al., 2007) 

due to diel and lunar patterns in diving 

and foraging behaviors observed in 

many cetaceans (Baird et al., 2008; 

Barlow et al., 2020; Henderson et al., 

2016; Schorr et al., 2014). It is important 

to note the water depth in the Project 

Area is shallow (ranging up to 30 m in 

the ECRs, and 19 to 37 m in the Lease 

Area) and deep diving species, such as 

sperm whales, are not expected to be 

engaging in deep foraging dives when 

exposed to noise above NMFS 

harassment thresholds during the 

specified activities. Therefore, we do 

not anticipate impacts to deep foraging 

behavior to be impacted by the specified 

activities. 

It is also important to identify that the 

estimated number of takes does not 

necessarily equate to the number of 

individual animals Atlantic Shores 

expects to harass (which is lower), but 

rather to the instances of take (i.e., 

exposures above the Level B harassment 

thresholds) that may occur. These 

instances may represent either seconds 

to minutes for HRG surveys, or, in some 

cases, longer durations of exposure 

within a day (e.g., pile driving). Some 

individuals of a species may experience 

recurring instances of take over multiple 

days throughout the year while some 

members of a species or stock may 

experience one exposure as they move 

through an area, which means that the 

number of individuals taken is smaller 

than the total estimated takes. In short, 

for species that are more likely to be 

migrating through the area and/or for 

which only a comparatively smaller 

number of takes are predicted (e.g., 

some of the mysticetes), it is more likely 

that each take represents a different 

individual. Whereas for non-migrating 

species with larger amounts of predicted 

take, we expect that the total anticipated 

takes represent exposures of a smaller 

number of individuals of which some 

would be taken across multiple days. 

For Atlantic Shores, impact pile 

driving of foundation piles is most 

likely to result in a higher magnitude 

and severity of behavioral disturbance 

than other activities (i.e., vibratory pile 

driving and HRG surveys). Impact pile 

driving has higher source levels and 

longer durations (on an annual basis) 

than vibratory pile driving and HRG 

surveys. HRG survey equipment also 

produces much higher frequencies than 

pile driving, resulting in minimal sound 

propagation. While impact pile driving 

for foundation installation is anticipated 

to be most impactful for these reasons, 

impacts are minimized through 

implementation of mitigation measures, 

including use of a sound attenuation 

system, soft-starts, the implementation 

of clearance zones that would facilitate 

a delay to pile-driving commencement, 

and implementation of shutdown zones. 

All these measures are designed to 

avoid or minimize harassment. For 

example, given sufficient notice through 

the use of soft-start, marine mammals 

are expected to move away from a 

sound source that is disturbing prior to 

becoming exposed to very loud noise 

levels. The requirement to couple visual 

monitoring and PAM before and during 

all foundation installation will increase 

the overall capability to detect marine 

mammals compared to one method 

alone. 

Occasional, milder behavioral 

reactions are unlikely to cause long-term 

consequences for individual animals or 

populations, and even if some smaller 

subset of the takes are in the form of a 

longer (several hours or a day) and more 

severe response, if they are not expected 

to be repeated over numerous or 

sequential days, impacts to individual 

fitness are not anticipated. Also, the 

effect of disturbance is strongly 

influenced by whether it overlaps with 

biologically important habitats when 

individuals are present—avoiding 

biologically important habitats will 

provide opportunities to compensate for 

reduced or lost foraging (Keen et al., 

2021). Nearly all studies and experts 

agree that infrequent exposures of a 

single day or less are unlikely to impact 

an individual’s overall energy budget 

(Farmer et al., 2018; Harris et al., 2017; 

King et al., 2015; National Academy of 

Science, 2017; New et al., 2014; 

Southall et al., 2007; Villegas-Amtmann 

et al., 2015). 

Temporary Threshold Shift (TTS) 

TTS is one form of Level B 

harassment that marine mammals may 

incur through exposure to Atlantic 

Shores’ activities and, as described 

earlier, the proposed takes by Level B 

harassment may represent takes in the 

form of behavioral disturbance, TTS, or 

both. As discussed in the Potential 

Effects of Specified Activities on Marine 

Mammals and their Habitat section, in 

general, TTS can last from a few 

minutes to days, be of varying degree, 

and occur across different frequency 

bandwidths, all of which determine the 

severity of the impacts on the affected 

individual, which can range from minor 

to more severe. Impact and vibratory 

pile driving are broadband noise sources 

but generate sounds in the lower 

frequency ranges (with most of the 

energy below 1–2 kHz, but with a small 

amount energy ranging up to 20 kHz). 

Therefore, in general and all else being 

equal, we would anticipate the potential 

for TTS is higher in low-frequency 

cetaceans (i.e., mysticetes) than other 

marine mammal hearing groups and 

would be more likely to occur in 

frequency bands in which they 

communicate. However, we would not 

expect the TTS to span the entire 

communication or hearing range of any 

species given that the frequencies 

produced by these activities do not span 

entire hearing ranges for any particular 

species. Additionally, though the 

frequency range of TTS that marine 

mammals might sustain would overlap 

with some of the frequency ranges of 

their vocalizations, the frequency range 

of TTS from Atlantic Shores’ pile 

driving activities would not typically 

span the entire frequency range of one 

vocalization type, much less span all 

types of vocalizations or other critical 

auditory cues for any given species. 

However, the proposed mitigation 

measures further reduce the potential 

for TTS in mysticetes. 

Generally, both the degree of TTS and 

the duration of TTS would be greater if 

the marine mammal is exposed to a 

higher level of energy (which would 

occur when the peak dB level is higher 

or the duration is longer). The threshold 

for the onset of TTS was discussed 

previously (refer back to Estimated 

Take). However, source level alone is 

not a predictor of TTS. An animal 

would have to approach closer to the 

source or remain in the vicinity of the 

sound source appreciably longer to 

increase the received SEL, which would 

be difficult considering the proposed 

mitigation and the nominal speed of the 

receiving animal relative to the 

stationary sources such as impact pile 


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driving. The recovery time of TTS is 

also of importance when considering 

the potential impacts from TTS. In TTS 

laboratory studies (as discussed in 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat), 

some using exposures of almost an hour 

in duration or up to 217 SEL, almost all 

individuals recovered within 1 day (or 

less, often in minutes), and we note that 

while the pile-driving activities last for 

hours a day, it is unlikely that most 

marine mammals would stay in the 

close vicinity of the source long enough 

to incur more severe TTS. Overall, given 

the small number of time that any 

individual might incur TTS, the low 

degree of TTS and the short anticipated 

duration, and the unlikely scenario that 

any TTS overlapped the entirety of a 

critical hearing range, it is unlikely that 

TTS (of the nature expected to result 

from the project’s activities) would 

result in behavioral changes or other 

impacts that would impact any 

individual’s (of any hearing sensitivity) 

reproduction or survival. 

Permanent Threshold Shift (PTS) 

NMFS proposes to authorize, a very 

small amount of take by PTS to some 

marine mammal individuals. The 

numbers of proposed annual takes by 

Level A harassment are relatively low 

for all marine mammal stocks and 

species (Table 25). The only activities 

incidental to which we anticipate PTS 

may occur is from exposure to impact 

pile driving, which produces sounds 

that are both impulsive and primarily 

concentrated in the lower frequency 

ranges (below 1 kHz) (David, 2006; 

Krumpel et al., 2021). 

There are no PTS data on cetaceans 

and only one instance of PTS being 

induced in older harbor seals 

(Reichmuth et al., 2019). However, 

available TTS data (of mid-frequency 

hearing specialists exposed to mid- or 

high-frequency sounds (Southall et al., 

2007; NMFS, 2018; Southall et al., 

2019)) suggest that most threshold shifts 

occur in the frequency range of the 

source up to one octave higher than the 

source. We would anticipate a similar 

result for PTS. Further, no more than a 

small degree of PTS is expected to be 

associated with any of the incurred 

Level A harassment, given it is unlikely 

that animals would stay in the close 

vicinity of a source for a duration long 

enough to produce more than a small 

degree of PTS. 

PTS would consist of minor 

degradation of hearing capabilities 

occurring predominantly at frequencies 

one-half to one octave above the 

frequency of the energy produced by 

pile driving (i.e., the low-frequency 

region below 2 kHz) (Cody and 

Johnstone, 1981; McFadden, 1986; 

Finneran, 2015), not severe hearing 

impairment. If hearing impairment 

occurs from impact pile driving, it is 

most likely that the affected animal 

would lose a few decibels in its hearing 

sensitivity, which in most cases is not 

likely to meaningfully affect its ability 

to forage and communicate with 

conspecifics. In addition, during impact 

pile driving, given sufficient notice 

through use of soft-start prior to 

implementation of full hammer energy 

during impact pile driving, marine 

mammals are expected to move away 

from a sound source that is disturbing 

prior to it resulting in severe PTS. 

Auditory Masking or Communication 

Impairment 

The ultimate potential impacts of 

masking on an individual are similar to 

those discussed for TTS (e.g., decreased 

ability to communicate, forage 

effectively, or detect predators), but an 

important difference is that masking 

only occurs during the time of the 

signal, versus TTS, which continues 

beyond the duration of the signal. Also, 

though masking can result from the sum 

of exposure to multiple signals, none of 

which might individually cause TTS. 

Fundamentally, masking is referred to 

as a chronic effect because one of the 

key potential harmful components of 

masking is its duration—the fact that an 

animal would have reduced ability to 

hear or interpret critical cues becomes 

much more likely to cause a problem 

the longer it is occurring. Inherent in the 

concept of masking is the fact that the 

potential for the effect is only present 

during the times that the animal and the 

source are in close enough proximity for 

the effect to occur (and further, this time 

period would need to coincide with a 

time that the animal was utilizing 

sounds at the masked frequency). 

As our analysis has indicated, for this 

project we expect that impact pile 

driving foundations have the greatest 

potential to mask marine mammal 

signals, and this pile driving may occur 

for several, albeit intermittent, hours per 

day, for multiple days per year. Masking 

is fundamentally more of a concern at 

lower frequencies (which are piledriving dominant frequencies), because 

low frequency signals propagate 

significantly further than higher 

frequencies and because they are more 

likely to overlap both the narrower low 

frequency calls of mysticetes, as well as 

many non-communication cues related 

to fish and invertebrate prey, and 

geologic sounds that inform navigation. 

However, the area in which masking 

would occur for all marine mammal 

species and stocks (e.g., predominantly 

in the vicinity of the foundation pile 

being driven) is small relative to the 

extent of habitat used by each species 

and stock. In summary, the nature of 

Atlantic Shores’ activities, paired with 

habitat use patterns by marine 

mammals, does not support the 

likelihood that the level of masking that 

could occur would have the potential to 

affect reproductive success or survival. 

Therefore, we are not predicting take 

due to masking effects, and are not 

proposing to authorize such take. 

Impacts on Habitat and Prey 

Construction activities may result in 

fish and invertebrate mortality or injury 

very close to the source, and all of 

Atlantic Shores’ activities may cause 

some fish to leave the area of 

disturbance. It is anticipated that any 

mortality or injury would be limited to 

a very small subset of available prey and 

the implementation of mitigation 

measures such as the use of a noise 

attenuation system during impact pile 

driving would further limit the degree of 

impact. Behavioral changes in prey in 

response to construction activities could 

temporarily impact marine mammals’ 

foraging opportunities in a limited 

portion of the foraging range but, 

because of the relatively small area of 

the habitat that may be affected at any 

given time (e.g., around a pile being 

driven), the impacts to marine mammal 

habitat are not expected to cause 

significant or long-term negative 

consequences. 

Cable presence is not anticipated to 

impact marine mammal habitat as these 

would be buried, and any 

electromagnetic fields emanating from 

the cables are not anticipated to result 

in consequences that would impact 

marine mammals’ prey to the extent 

they would be unavailable for 

consumption. 

The presence of wind turbines within 

the Lease Area could have longer-term 

impacts on marine mammal habitat, as 

the project would result in the 

persistence of the structures within 

marine mammal habitat for more than 

30 years. The presence of structures 

such as wind turbines is, in general, 

likely to result in certain oceanographic 

effects in the marine environment, and 

may alter aggregations and distribution 

of marine mammal zooplankton prey 

through changing the strength of tidal 

currents and associated fronts, changes 

in stratification, primary production, the 

degree of mixing, and stratification in 

the water column (Schultze et al., 2020; 

Chen et al., 2021; Johnson et al., 2021; 

Christiansen et al., 2022; Dorrell et al., 

2022). 


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As discussed in the Potential Effects 

of Specified Activities on Marine 

Mammals and their Habitat section, the 

project would consist of no more than 

211 foundations (200 WTGs, 10 OSS, 1 

Met Tower) in the Lease Area, which 

will gradually become operational 

following construction completion. 

While there are likely to be 

oceanographic impacts from the 

presence of operating turbines, 

meaningful oceanographic impacts 

relative to stratification and mixing that 

would significantly affect marine 

mammal habitat and prey over large 

areas in key foraging habitats are not 

anticipated from the Atlantic Shores 

activities covered under these proposed 

regulations. For these reasons, if 

oceanographic features are affected by 

the project during the effective period of 

the proposed regulations, the impact on 

marine mammal habitat and their prey 

is likely to be comparatively minor; 

therefore, we are not predicting take due 

to habitat and prey impacts, and are not 

proposing to authorize such take. 

Mitigation To Reduce Impacts on All 

Species 

This proposed rulemaking includes a 

variety of mitigation measures designed 

to minimize impacts on all marine 

mammals, with a focus on North 

Atlantic right whales (the latter is 

described in more detail below). For 

impact pile driving of foundation piles, 

nine overarching mitigation measures 

are proposed, which are intended to 

reduce both the number and intensity of 

marine mammal takes: (1) seasonal/time 

of day work restrictions; (2) use of 

multiple PSOs to visually observe for 

marine mammals (with any detection 

within specifically designated zones 

triggering a delay or shutdown); (3) use 

of PAM to acoustically detect marine 

mammals, with a focus on detecting 

baleen whales (with any detection 

within designated zones triggering delay 

or shutdown); (4) implementation of 

clearance zones; (5) implementation of 

shutdown zones; (6) use of soft-start; (7) 

use of noise attenuation technology; (8) 

maintaining situational awareness of 

marine mammal presence through the 

requirement that any marine mammal 

sighting(s) by Atlantic Shores’ personnel 

must be reported to PSOs; (9) sound 

field verification monitoring; and (10) 

Vessel Strike Avoidance measures to 

reduce the risk of a collision with a 

marine mammal and vessel. For 

cofferdam installation and removal, we 

are requiring five overarching mitigation 

measures: (1) seasonal/time of day work 

restrictions; (2) use of multiple PSOs to 

visually observe for marine mammals 

(with any detection with specifically 

designated zones that would trigger a 

delay or shutdown); (3) implementation 

of clearance zones; (4) implementation 

of shutdown zones); and (5) maintaining 

situational awareness of marine 

mammal presence through the 

requirement that any marine mammal 

sighting(s) by Atlantic Shores’ personnel 

must be reported to PSOs. Lastly, for 

HRG surveys, we are requiring six 

measures: (1) measures specifically for 

Vessel Strike Avoidance; (2) specific 

requirements during daytime and 

nighttime HRG surveys (3) 

implementation of clearance zones (4) 

implementation of shutdown zones; (5) 

use of ramp-up of acoustic sources; and 

(6) maintaining situational awareness of 

marine mammal presence through the 

requirement that any marine mammal 

sighting(s) by Atlantic Shores’ personnel 

must be reported to PSOs. 

NMFS prescribes mitigation measures 

based on the following rationale. For 

activities with large harassment 

isopleths, Atlantic Shores would be 

required to reducing the noise levels 

generated to the lowest levels 

practicable and would be required to 

ensure that they do not exceed a noise 

footprint above that which was 

modeled, assuming a 10-dB attenuation. 

Use of a soft-start during impact pile 

driving will allow animals to move 

away from (i.e., avoid) the sound source 

prior to applying higher hammer energy 

levels needed to install the pile 

(Atlantic Shores would not use a 

hammer energy greater than necessary 

to install piles). Similarly, ramp-up 

during HRG surveys would allow 

animals to move away and avoid the 

acoustic sources before they reach their 

maximum energy level. For all 

activities, clearance zone and shutdown 

zone implementation, which are 

required when marine mammals are 

within given distances associated with 

certain impact thresholds for all 

activities, would reduce the magnitude 

and severity of marine mammal take. 

Additionally, the use of multiple PSOs 

(WTG, OSS, and Met Tower foundation 

installation; temporary cofferdam 

installation and removal; HRG surveys), 

PAM (for impact foundation 

installation), and maintaining awareness 

of marine mammal sightings reported in 

the region (WTG, OSS, and Met Tower 

foundation installation; temporary 

cofferdam installation and removal; 

HRG surveys) would aid in detecting 

marine mammals that would trigger the 

implementation of the mitigation 

measures. The reporting requirements, 

including SFV reporting (for foundation 

installation and foundation operation), 

will assist NMFS in identifying if 

impacts beyond those analyzed in this 

proposed rule are occurring, potentially 

leading to the need to enact adaptive 

management measures in addition to or 

in the place of the proposed mitigation 

measures. 

Mysticetes 

Five mysticete species (comprising 

five stocks) of cetaceans (North Atlantic 

right whale, humpback whale, fin 

whale, sei whale, and minke whale) 

may be taken by harassment. These 

species, to varying extents, utilize the 

specified geographic region, including 

the Project Area, for the purposes of 

migration, foraging, and socializing. 

Mysticetes are in the low-frequency 

hearing group. 

Behavioral data on mysticete 

reactions to pile-driving noise are scant. 

Kraus et al. (2019) predicted that the 

three main impacts of offshore wind 

farms on marine mammals would 

consist of displacement, behavioral 

disruptions, and stress. Broadly, we can 

look to studies that have focused on 

other noise sources such as seismic 

surveys and military training exercises, 

which suggest that exposure to loud 

signals can result in avoidance of the 

sound source (or displacement if the 

activity continues for a longer duration 

in a place where individuals would 

otherwise have been staying, which is 

less likely for mysticetes in this area), 

disruption of foraging activities (if they 

are occurring in the area), local masking 

around the source, associated stress 

responses, and impacts to prey, as well 

as TTS or PTS in some cases. 

Mysticetes encountered in the Project 

Area are expected to primarily be 

migrating and, to a lesser degree, may be 

engaged in foraging behavior. The extent 

to which an animal engages in these 

behaviors in the area is species-specific 

and varies seasonally. Many mysticetes 

are expected to predominantly be 

migrating through the Project Area 

towards or from feeding grounds located 

further north (e.g., southern New 

England region, Gulf of Maine, Canada). 

While we acknowledged above that 

mortality, hearing impairment, or 

displacement of mysticete prey species 

may result locally from impact pile 

driving, given the very short duration of 

and broad availability of prey species in 

the area and the availability of 

alternative suitable foraging habitat for 

the mysticete species most likely to be 

affected, any impacts on mysticete 

foraging is expected to be minor. Whales 

temporarily displaced from the Project 

Area are expected to have sufficient 

remaining feeding habitat available to 

them, and would not be prevented from 

feeding in other areas within the 


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biologically important feeding habitats 

found further north. In addition, any 

displacement of whales or interruption 

of foraging bouts would be expected to 

be relatively temporary in nature. 

The potential for repeated exposures 

is dependent upon the residency time of 

whales, with migratory animals unlikely 

to be exposed on repeated occasions and 

animals remaining in the area to be 

more likely exposed repeatedly. For 

mysticetes, where relatively low 

amounts of species-specific take by 

Level B harassment are predicted 

(compared to the abundance of each 

mysticete species or stock, such as is 

indicated in Table 25) and movement 

patterns suggest that individuals would 

not necessarily linger in a particular 

area for multiple days, each predicted 

take likely represents an exposure of a 

different individual; the behavioral 

impacts would, therefore, be expected to 

occur within a single day within a 

year—an amount that would clearly not 

be expected to impact reproduction or 

survival. Species with longer residence 

time in the Project Area may be subject 

to repeated exposures across multiple 

days. 

In general, for this project, the 

duration of exposures would not be 

continuous throughout any given day, 

and pile driving would not occur on all 

consecutive days within a given year 

due to weather delays or any number of 

logistical constraints Atlantic Shores 

has identified. Species-specific analysis 

regarding potential for repeated 

exposures and impacts is provided 

below. 

Fin, humpback, minke, and sei 

whales are the only mysticete species 

for which PTS is anticipated and 

proposed to be authorized. As described 

previously, PTS for mysticetes from 

some project activities may overlap 

frequencies used for communication, 

navigation, or detecting prey. However, 

given the nature and duration of the 

activity, the mitigation measures, and 

likely avoidance behavior, any PTS is 

expected to be of a small degree, would 

be limited to frequencies where piledriving noise is concentrated (i.e., only 

a small subset of their expected hearing 

range) and would not be expected to 

impact reproductive success or survival. 

North Atlantic Right Whale 

North Atlantic right whales are listed 

as endangered under the ESA and as 

both depleted and strategic stocks under 

the MMPA. As described in the 

Potential Effects of the Specified 

Activities on Marine Mammals and 

Their Habitat section, North Atlantic 

right whales are threatened by a low 

population abundance, higher than 

average mortality rates, and lower than 

average reproductive rates. Recent 

studies have reported individuals 

showing high stress levels (e.g., 

Corkeron et al., 2017) and poor health, 

which has further implications on 

reproductive success and calf survival 

(Christiansen et al., 2020; Stewart et al., 

2021; Stewart et al., 2022). As described 

below, a UME has been designated for 

North Atlantic right whales. Given this, 

the status of the North Atlantic right 

whale population is of heightened 

concern and, therefore, merits 

additional analysis and consideration. 

No injury or mortality is anticipated or 

proposed for authorization for this 

species. 

For North Atlantic right whales, this 

proposed rule would allow for the 

authorization of up to 21 takes, by Level 

B harassment only, over the 5-year 

period, with a maximum annual 

allowable take by Level B harassment, 

would be 9 (equating to approximately 

2.66 percent of the stock abundance, if 

each take were considered to be of a 

different individual), with far lower 

numbers than that expected in the years 

without foundation installation (e.g., 

years where only HRG surveys would be 

occurring) The Project Area is known as 

a migratory corridor for North Atlantic 

right whales and given the nature of 

migratory behavior (e.g., continuous 

path), as well as the low number of total 

takes, we anticipate that few, if any, of 

the instances of take would represent 

repeat takes of any individual, though it 

could occur if whales are engaged in 

opportunistic foraging behavior. Whitt 

et al. (2013) observed two juveniles 

potentially skim-feeding off the coast of 

Barnegat Bay, New Jersey in January. 

While opportunistic foraging may occur 

in the Project area, the habitat does not 

support prime foraging habitat. 

The highest density of North Atlantic 

right whales in the Project Area occurs 

in the winter (Table 9). The MidAtlantic, including the Project Area, 

may be a stopover site for migrating 

North Atlantic right whales moving to 

or from southeastern calving grounds. 

Migrating North Atlantic right whales 

have been acoustically detected north of 

the Project Area in the New York Bight 

from February to May and August 

through December (Biedron et al., 2009). 

Similarly, the waters off the coast of 

New Jersey, including those 

surrounding the Project Area in the New 

Jersey Wind Energy Area (NJ WEA), 

have documented North Atlantic right 

whale presence as the area is an 

important migratory route for the 

species to the northern feeding areas 

near the Gulf of Maine and Georges 

Banks and to their southern breeding 

and calving grounds off the southeastern 

U.S. (CETAP, 1982; Knowlton and 

Kraus, 2001; Knowlton et al., 2022; 

Biedron et al., 2009; DoC, 2016b). 

However, comparatively, the Project 

Area is not known as an important area 

for feeding, breeding, or calving. 

North Atlantic right whales range 

outside the Project Area for their main 

feeding, breeding, and calving activities 

(Geo-Marine, 2010). Additional 

qualitative observations include animals 

feeding and socializing in New England 

waters, north of the NJ WEA (QuintanaRizzo et al., 2021). The North Atlantic 

right whales observed during the study 

period, north of the NJ WEA, were 

primarily concentrated in the 

northeastern and southeastern sections 

of the Massachusetts WEA (MA WEA) 

during the summer (June–August) and 

winter (December–February). North 

Atlantic right whale distribution did 

shift to the west into the Rhode Island/ 

Massachusetts (RI/MA WEA) in the 

spring (March–May). Quintana-Rizzo et 

al. (2021) found that approximately 23 

percent of the right whale population is 

present from December through May, 

and the mean residence time has tripled 

to an average of 13 days during these 

months. The NJ WEA is not in or near 

these areas important to feeding, 

breeding, and calving activities. 

In general, North Atlantic right 

whales in the Project Area are expected 

to be engaging in migratory behavior. 

Given the species’ migratory behavior in 

the Project Area, we anticipate 

individual whales would be typically 

migrating through the area during most 

months when foundation installation 

would occur (given the seasonal 

restrictions on foundation installation, 

rather than lingering for extended 

periods of time). Other work that 

involves either much smaller 

harassment zones (e.g., HRG surveys) or 

is limited in amount (e.g., cable landfall 

construction) may also occur during 

periods when North Atlantic right 

whales are using the habitat for 

migration. It is important to note the 

activities occurring from December 

through May that may impact North 

Atlantic right whale would be primarily 

HRG surveys and the nearshore 

cofferdam installation and removal, 

which would not result in very high 

received levels. Across all years, if an 

individual were to be exposed during a 

subsequent year, the impact of that 

exposure is likely independent of the 

previous exposure given the duration 

between exposures. 

As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities, North 

Atlantic right whales are presently 


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experiencing an ongoing UME 

(beginning in June 2017). Preliminary 

findings support human interactions, 

specifically vessel strikes and 

entanglements, as the cause of death for 

the majority of North Atlantic right 

whales. Given the current status of the 

North Atlantic right whale, the loss of 

even one individual could significantly 

impact the population. No mortality, 

serious injury, or injury of North 

Atlantic right whales as a result of the 

project is expected or proposed to be 

authorized. Any disturbance to North 

Atlantic right whales due to Atlantic 

Shores’ activities is expected to result in 

temporary avoidance of the immediate 

area of construction. As no injury, 

serious injury, or mortality is expected 

or authorized, and Level B harassment 

of North Atlantic right whales will be 

reduced to the level of least practicable 

adverse impact through use of 

mitigation measures, the authorized 

number of takes of North Atlantic right 

whales would not exacerbate or 

compound the effects of the ongoing 

UME. 

As described in the general Mysticetes 

section above, foundation installation is 

likely to result in the highest amount of 

annual take and is of greatest concern 

given loud source levels. This activity 

would likely be limited to up to 225 

days (201 for WTG/Met Tower 

monopile/jacket foundations and 24 for 

OSS jacket foundations) over a 

maximum of 2 years, during times 

when, based on the best available 

scientific data, North Atlantic right 

whales are less frequently encountered 

due to their migratory behavior. The 

potential types, severity, and magnitude 

of impacts are also anticipated to mirror 

that described in the general Mysticetes 

section above, including avoidance (the 

most likely outcome), changes in 

foraging or vocalization behavior, 

masking, a small amount of TTS, and 

temporary physiological impacts (e.g., 

change in respiration, change in heart 

rate). Importantly, the effects of the 

proposed activities are expected to be 

sufficiently low-level and localized to 

specific areas as to not meaningfully 

impact important behaviors, such as 

migratory behavior of North Atlantic 

right whales. These takes are expected 

to result in temporary behavioral 

reactions, such as slight displacement 

(but not abandonment) of migratory 

habitat or temporary cessation of 

feeding. Further, given these exposures 

are generally expected to occur to 

different individual right whales 

migrating through (i.e., many 

individuals would not be impacted on 

more than 1 day in a year), with some 

subset potentially being exposed on no 

more than a few days within the year, 

they are unlikely to result in energetic 

consequences that could affect 

reproduction or survival of any 

individuals. 

Overall, NMFS expects that any 

behavioral harassment of North Atlantic 

right whales incidental to the specified 

activities would not result in changes to 

their migration patterns or foraging 

success, as only temporary avoidance of 

an area during construction is expected 

to occur. As described previously, North 

Atlantic right whales migrating through 

the Project Area are not expected to 

remain in this habitat for extensive 

durations, and any temporarily 

displaced animals would be able to 

return to or continue to travel through 

and forage in these areas once activities 

have ceased. 

Although acoustic masking may occur 

in the vicinity of the foundation 

installation activities, based on the 

acoustic characteristics of noise 

associated with pile driving (e.g., 

frequency spectra, short duration of 

exposure) and construction surveys 

(e.g., intermittent signals), NMFS 

expects masking effects to be minimal 

(e.g., impact pile driving) to none (e.g., 

HRG surveys). In addition, masking 

would likely only occur during the 

period of time that a North Atlantic 

right whale is in the relatively close 

vicinity of pile driving, which is 

expected to be intermittent within a 

day, and confined to the months in 

which North Atlantic right whales are at 

lower densities and primarily moving 

through the area, anticipated mitigation 

effectiveness, and likely avoidance 

behaviors. TTS is another potential form 

of Level B harassment that could result 

in brief periods of slightly reduced 

hearing sensitivity affecting behavioral 

patterns by making it more difficult to 

hear or interpret acoustic cues within 

the frequency range (and slightly above) 

of sound produced during impact pile 

driving. However, any TTS would likely 

be of low amount, limited duration, and 

limited to frequencies where most 

construction noise is centered (below 2 

kHz). NMFS expects that right whale 

hearing sensitivity would return to preexposure levels shortly after migrating 

through the area or moving away from 

the sound source. 

As described in the Potential Effects 

of Specified Activities on Marine 

Mammals and Their Habitat section, the 

distance of the receiver to the source 

influences the severity of response with 

greater distances typically eliciting less 

severe responses. NMFS recognizes 

North Atlantic right whales migrating 

could be pregnant females (in the fall) 

and cows with older calves (in spring) 

and that these animals may slightly alter 

their migration course in response to 

any foundation pile-driving; however, 

as described in the Potential Effects of 

Specified Activities on Marine 

Mammals and Their Habitat section, we 

anticipate that course diversion would 

be of small magnitude. Hence, while 

some avoidance of the pile driving 

activities may occur, we anticipate any 

avoidance behavior of migratory North 

Atlantic right whales would be similar 

to that of gray whales (Tyack et al., 

1983), on the order of hundreds of 

meters up to 1 to 2 km. This diversion 

from a migratory path otherwise 

uninterrupted by the proposed activities 

is not expected to result in meaningful 

energetic costs that would impact 

annual rates of recruitment of survival. 

NMFS expects that North Atlantic right 

whales would be able to avoid areas 

during periods of active noise 

production while not being forced out of 

this portion of their habitat. 

North Atlantic right whale presence 

in the Project Area is year-round. 

However, abundance during summer 

months is lower compared to the winter 

months with spring and fall serving as 

‘‘shoulder seasons’’ wherein abundance 

waxes (fall) or wanes (spring). Given 

this year-round habitat usage, in 

recognition that where and when 

whales may actually occur during 

project activities is unknown as it 

depends on the annual migratory 

behaviors, Atlantic Shores has proposed 

and NMFS is proposing to require a 

suite of mitigation measures designed to 

reduce impacts to North Atlantic right 

whales to the maximum extent 

practicable. These mitigation measures 

(e.g., seasonal/daily work restrictions, 

vessel separation distances, reduced 

vessel speed) would not only avoid the 

likelihood of vessel strikes but also 

would minimize the severity of 

behavioral disruptions by minimizing 

impacts (e.g., through sound reduction 

using attenuation systems and reduced 

temporal overlap of project activities 

and North Atlantic right whales). This 

would further ensure that the number of 

takes by Level B harassment that are 

estimated to occur are not expected to 

affect reproductive success or 

survivorship by detrimental impacts to 

energy intake or cow/calf interactions 

during migratory transit. However, even 

in consideration of recent habitat-use 

and distribution shifts, Atlantic Shores 

would still be installing foundations 

when the presence of North Atlantic 

right whales is expected to be lower. 

As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities section, 


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Atlantic Shores would be constructed 

within the North Atlantic right whale 

migratory corridor BIA, which represent 

areas and months within which a 

substantial portion of a species or 

population is known to migrate. The 

Lease Area is extremely small compared 

with the migratory BIA area 

(approximately 413 km2 for OCS–A 

0499 versus the size of the full North 

Atlantic right whale migratory BIA, 

269,448 km2). Because of this, the 

overall North Atlantic right whale 

migration is not expected to be 

impacted by the proposed activities. 

There are no known North Atlantic right 

whale feeding, breeding, or calving 

areas within the Project Area. Prey 

species are mobile (e.g., calanoid 

copepods can initiate rapid and directed 

escape responses) and are broadly 

distributed throughout the Project Area 

(noting again that North Atlantic right 

whale prey is not particularly 

concentrated in the Project Area relative 

to nearby habitats). Therefore, any 

impacts to prey that may occur are also 

unlikely to impact marine mammals. 

The most significant measure to 

minimize impacts to individual North 

Atlantic right whales is the seasonal 

moratorium on all foundation 

installation activities from January 1 

through April 30, and the limitation on 

these activities occurring in December 

(e.g., only work with approval from 

NMFS), when North Atlantic right 

whale abundance in the Project Area is 

expected to be highest. NMFS also 

expects this measure to greatly reduce 

the potential for mother-calf pairs to be 

exposed to impact pile driving noise 

above the Level B harassment threshold 

during their annual spring migration 

through the Project Area from calving 

grounds to primary foraging grounds 

(e.g., Cape Cod Bay). NMFS expects that 

exposures to North Atlantic right whales 

would be reduced due to the additional 

proposed mitigation measures that 

would ensure that any exposures above 

the Level B harassment threshold would 

result in only short-term effects to 

individuals exposed. 

Pile driving may only begin in the 

absence of North Atlantic right whales 

(based on visual and passive acoustic 

monitoring). If pile driving has 

commenced, NMFS anticipates North 

Atlantic right whales would avoid the 

area, utilizing nearby waters to carry on 

pre-exposure behaviors. However, 

foundation installation activities must 

be shut down if a North Atlantic right 

whale is sighted at any distance unless 

a shutdown is not feasible due to risk of 

injury or loss of life. Shutdown may 

occur anywhere if North Atlantic right 

whales are seen within or beyond the 

Level B harassment zone, further 

minimizing the duration and intensity 

of exposure. NMFS anticipates that if 

North Atlantic right whales go 

undetected and they are exposed to 

foundation installation noise, it is 

unlikely a North Atlantic right whale 

would approach the sound source 

locations to the degree that they would 

purposely expose themselves to very 

high noise levels. This is because 

typical observed whale behavior 

demonstrates likely avoidance of 

harassing levels of sound where 

possible (Richardson et al., 1985). These 

measures are designed to avoid PTS and 

also reduce the severity of Level B 

harassment, including the potential for 

TTS. While some TTS could occur, 

given the proposed mitigation measures 

(e.g., delay pile driving upon a sighting 

or acoustic detection and shutting down 

upon a sighting or acoustic detection), 

the potential for TTS to occur is low. 

The proposed clearance and 

shutdown measures are most effective 

when detection efficiency is maximized, 

as the measures are triggered by a 

sighting or acoustic detection. To 

maximize detection efficiency, Atlantic 

Shores proposed, and NMFS is 

proposing to require, the combination of 

PAM and visual observers. NMFS is 

proposing to require communication 

protocols with other project vessels, and 

other heightened awareness efforts (e.g., 

daily monitoring of North Atlantic right 

whale sighting databases) such that as a 

North Atlantic right whale approaches 

the source (and thereby could be 

exposed to higher noise energy levels), 

PSO detection efficacy would increase, 

the whale would be detected, and a 

delay to commencing foundation 

installation or shutdown (if feasible) 

would occur. In addition, the 

implementation of a soft-start for impact 

pile driving would provide an 

opportunity for whales to move away 

from the source if they are undetected, 

reducing received levels. 

For HRG surveys, the maximum 

distance to the Level B harassment 

threshold is 141 m. The estimated take, 

by Level B harassment only, associated 

with HRG surveys is to account for any 

North Atlantic right whale sightings 

PSOs may miss when HRG acoustic 

sources are active. However, because of 

the short maximum distance to the 

Level B harassment threshold, the 

requirement that vessels maintain a 

distance of 500 m from any North 

Atlantic right whales, the fact that 

whales are unlikely to remain in close 

proximity to an HRG survey vessel for 

any length of time, and that the acoustic 

source would be shut down if a North 

Atlantic right whale is observed within 

500 m of the source, any exposure to 

noise levels above the harassment 

threshold (if any) would be very brief. 

To further minimize exposures, rampup of sub-bottom profilers must be 

delayed during the clearance period if 

PSOs detect a North Atlantic right 

whale (or any other ESA-listed species) 

within 500 m of the acoustic source. 

With implementation of the proposed 

mitigation requirements, take by Level 

A harassment is unlikely and, therefore, 

not proposed for authorization. 

Potential impacts associated with Level 

B harassment would include low-level, 

temporary behavioral modifications, 

most likely in the form of avoidance 

behavior. Given the high level of 

precautions taken to minimize both the 

amount and intensity of Level B 

harassment on North Atlantic right 

whales, it is unlikely that the 

anticipated low-level exposures would 

lead to reduced reproductive success or 

survival. 

As described above, no serious injury 

or mortality, or Level A harassment, of 

North Atlantic right whale is anticipated 

or proposed for authorization. Extensive 

North Atlantic right whale-specific 

mitigation measures (beyond the robust 

suite required for all species) are 

expected to further minimize the 

amount and severity of Level B 

harassment. Given the documented 

habitat use within the area, the majority 

of the individuals predicted to be taken 

(including no more than 21 instances of 

take, by Level B harassment only, over 

the course of the 5-year rule, with an 

annual maximum of no more than 9) 

would be impacted on only 1, or maybe 

2, days in a year as North Atlantic right 

whales utilize this area for migration 

and would be transiting rather than 

residing in the area for extended periods 

of time; and, further, any impacts to 

North Atlantic right whales are expected 

to be in the form of lower-level 

behavioral disturbance. 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the proposed 

mitigation and other information 

presented, Atlantic Shores’ activities are 

not expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have preliminarily 

determined that the take (by Level B 

harassment only) anticipated and 

proposed for authorization would have 

a negligible impact on the North 

Atlantic right whale. 

Fin Whale 

The fin whale is listed as Endangered 

under the ESA, and the western North 


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Atlantic stock is considered both 

Depleted and Strategic under the 

MMPA. No UME has been designated 

for this species or stock. No serious 

injury or mortality is anticipated or 

proposed for authorization for this 

species. 

The proposed rule would allow for 

the authorization of up to 43 takes, by 

Level A harassment and Level B 

harassment, over the 5-year period. The 

maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be 4 and 16, 

respectively (combined, this annual take 

(n=20) equates to approximately 0.29 

percent of the stock abundance, if each 

take were considered to be of a different 

individual), with far lower numbers 

than that expected in the years without 

foundation installation (e.g., years when 

only HRG surveys would be occurring). 

The Project Area does not overlap any 

known areas of specific biological 

importance to fin whales. It is likely that 

some subset of the individual whales 

exposed could be taken several times 

annually. 

Level B harassment is expected to be 

in the form of behavioral disturbance, 

primarily resulting in avoidance of the 

Project Area where foundation 

installation is occurring, and some lowlevel TTS and masking that may limit 

the detection of acoustic cues for 

relatively brief periods of time. Any 

potential PTS would be minor (limited 

to a few dB) and any TTS would be of 

short duration and concentrated at half 

or one octave above the frequency band 

of pile-driving noise (most sound is 

below 2 kHz) which does not include 

the full predicted hearing range of fin 

whales. 

Fin whales are present in the waters 

off of New Jersey year round and are one 

of the most frequently observed large 

whales and cetaceans in continental 

shelf waters, principally from Cape 

Hatteras in the Mid-Atlantic northward 

to Nova Scotia, Canada (Sergeant, 1977; 

Sutcliffe and Brodie, 1977; CETAP, 

1982; Hain et al., 1992; Geo-Marine, 

2010; BOEM 2012; Edwards et al., 2015; 

Hayes et al., 2022). Fin whales have 

high relative abundance in the MidAtlantic and Project Area, most 

observations occur in the winter and 

summer months (Geo-Marine, 2010; 

Hayes et al., 2022) though detections do 

occur in spring and fall (Watkins et al., 

1987; Clark and Gagnon 2002; GeoMarine, 2010; Morano et al., 2012). 

However, fin whales typically feed in 

waters off of New England and within 

the Gulf of Maine, areas north of the 

Project Area, as New England and Gulf 

of St. Lawrence waters represent major 

feeding ground for fin whales (Hayes et 

al., 2022). Hain et al. (1992), based on 

an analysis of neonate stranding data, 

suggested that calving takes place 

during October to January in latitudes of 

the U.S. mid-Atlantic region; however, 

it is unknown where calving, mating, 

and wintering occur for most of the 

population (Hayes et al., 2022). 

Given the documented habitat use 

within the area, some of the individuals 

taken would likely be exposed on 

multiple days. However, as described, 

the project area does not include areas 

where fin whales are known to 

concentrate for feeding or reproductive 

behaviors and the predicted takes are 

expected to be in the form of lower-level 

impacts. Given the magnitude and 

severity of the impacts discussed above 

(including no more than 43 takes, by 

Level A harassment and Level B 

harassment, over the course of the 5- 

year rule, and a maximum annual 

allowable take by Level A harassment 

and Level B harassment, of 4 and 16, 

respectively), and in consideration of 

the proposed mitigation and other 

information presented, Atlantic Shores’ 

proposed activities are not expected to 

result in impacts on the reproduction or 

survival of any individuals, much less 

affect annual rates of recruitment or 

survival. For these reasons, we have 

preliminarily determined that the take 

(by Level A harassment and Level B 

harassment) anticipated and proposed 

to be authorized would have a negligible 

impact on the western North Atlantic 

stock of fin whales. 

Humpback Whale 

The West Indies DPS of humpback 

whales is not listed as threatened or 

endangered under the ESA, but the Gulf 

of Maine stock, which includes 

individuals from the West Indies DPS, 

is considered Strategic under the 

MMPA. However, as described in the 

Description of Marine Mammals in the 

Geographic Area of Specified Activities, 

humpback whales along the Atlantic 

Coast have been experiencing an active 

UME as elevated humpback whale 

mortalities have occurred along the 

Atlantic coast from Maine through 

Florida since January 2016. Of the cases 

examined, approximately 40 percent 

had evidence of human interaction 

(vessel strike or entanglement). The 

UME does not yet provide cause for 

concern regarding population-level 

impacts and take from vessel strike and 

entanglement is not proposed to be 

authorized. Despite the UME, the 

relevant population of humpback 

whales (the West Indies breeding 

population, or DPS of which the Gulf of 

Maine stock is a part) remains stable at 

approximately 12,000 individuals. 

The proposed rule would allow for 

the authorization of up to 38 takes, by 

Level A harassment and Level B 

harassment, over the 5-year period. The 

maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be 4 and 15, 

respectively (combined, this maximum 

annual take (n=19) equates to 

approximately 1.36 percent of the stock 

abundance, if each take were considered 

to be of a different individual), with far 

lower numbers than that expected in the 

years without foundation installation 

(e.g., years when only HRG surveys 

would be occurring). Given that 

humpback whales are known to forage 

off of New Jersey, it is likely that some 

subset of the individual whales exposed 

could be taken several times annually. 

Among the activities analyzed, impact 

pile driving is likely to result in the 

highest amount of Level A harassment 

annual take of (n=4) humpback whales. 

The maximum amount of annual take 

proposed to be authorized (n=15), by 

Level B harassment, is highest for 

impact pile driving. 

As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities section, 

Humpback whales are known to occur 

regularly throughout the Mid-Atlantic 

Bight, including New Jersey waters, 

with strong seasonality where peak 

occurrences occur April to June (Barco 

et al., 2002; Geo-Marine, 2010; Curtice 

et al., 2019; Hayes et al., 2022). 

In the western North Atlantic, 

humpback whales feed during spring, 

summer, and fall over a geographic 

range encompassing the eastern coast of 

the U.S. Feeding is generally considered 

to be focused in areas north of the 

project area, including a feeding BIA in 

the Gulf of Maine/Stellwagen Bank/ 

Great South Channel, but has been 

documented farther south and off the 

coast of New Jersey. When foraging, 

humpback whales tend to remain in the 

area for extended durations to capitalize 

on the food sources. 

Assuming humpback whales who are 

feeding in waters within or surrounding 

the Project Area behave similarly, we 

expect that the predicted instances of 

disturbance could be comprised of some 

individuals that may be exposed on 

multiple days if they are utilizing the 

area as foraging habitat. Also similar to 

other baleen whales, if migrating, such 

that individuals would likely be 

exposed to noise levels from the project 

above the harassment thresholds only 

once during migration through the 

Project Area. 

For all the reasons described in the 

Mysticetes section above, we anticipate 

any potential PTS and TTS would be 


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concentrated at half or one octave above 

the frequency band of pile-driving noise 

(most sound is below 2 kHz) which does 

not include the full predicted hearing 

range of baleen whales. If TTS is 

incurred, hearing sensitivity would 

likely return to pre-exposure levels 

relatively shortly after exposure ends. 

Any masking or physiological responses 

would also be of low magnitude and 

severity for reasons described above. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than 38 takes over the course 

of the 5-year rule, and a maximum 

annual allowable take by Level A 

harassment and Level B harassment, of 

4 and 15, respectively), and in 

consideration of the proposed 

mitigation measures and other 

information presented, Atlantic Shores’ 

activities are not expected to result in 

impacts on the reproduction or survival 

of any individuals, much less affect 

annual rates of recruitment or survival. 

For these reasons, we have preliminarily 

determined that the take by harassment 

anticipated and proposed to be 

authorized would have a negligible 

impact on the Gulf of Maine stock of 

humpback whales. 

Minke Whale 

Minke whales are not listed under the 

ESA, and the Canadian East Coast stock 

is neither considered Depleted nor 

strategic under the MMPA. There are no 

known areas of specific biological 

importance in or adjacent to the Project 

Area. As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities, a UME has 

been designated for this species but is 

pending closure. No serious injury or 

mortality is anticipated or proposed for 

authorization for this species. 

The proposed rule would allow for 

the authorization of up to 347 takes, by 

Level A harassment and Level B 

harassment, over the 5-year period. The 

maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be 17 and 159, 

respectively (combined, this annual take 

(n=176) equates to approximately 0.80 

percent of the stock abundance, if each 

take were considered to be of a different 

individual), with far lower numbers 

than that expected in the years without 

foundation installation (e.g., years when 

only HRG surveys would be occurring). 

As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities section, 

minke whales are common offshore the 

U.S. Eastern Seaboard with a strong 

seasonal component in the continental 

shelf and in deeper, off-shelf waters 

(CETAP, 1982; Hayes et al., 2022). In the 

project area, minke whales are 

predominantly migratory and their 

known feeding areas are north, 

including a feeding BIA in the 

southwestern Gulf of Maine and 

George’s Bank. Therefore, they would be 

more likely to be moving through (with 

each take representing a separate 

individual), though it is possible that 

some subset of the individual whales 

exposed could be taken up to a few 

times annually. 

As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities section, 

there is a UME for minke whales along 

the Atlantic Coast from Maine through 

South Carolina, with the highest 

number of deaths in Massachusetts, 

Maine, and New York, and preliminary 

findings in several of the whales have 

shown evidence of human interactions 

or infectious diseases. However, we note 

that the population abundance is greater 

than 21,000 and the take proposed for 

authorization through this action is not 

expected to exacerbate the UME in any 

way. 

We anticipate the impacts of this 

harassment to follow those described in 

the general Mysticetes section above. 

Any potential PTS would be minor 

(limited to a few dB) and any TTS 

would be of short duration and 

concentrated at half or one octave above 

the frequency band of pile-driving noise 

(most sound is below 2 kHz) which does 

not include the full predicted hearing 

range of minke whales. Level B 

harassment would be temporary, with 

primary impacts being temporary 

displacement of the Project Area but not 

abandonment of any migratory or 

foraging behavior. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than 347 takes over the course 

of the 5-year rule, and a maximum 

annual allowable take by Level A 

harassment and Level B harassment, of 

17 and 159, respectively), and in 

consideration of the proposed 

mitigation measures and other 

information presented, Atlantic Shores’ 

activities are not expected to result in 

impacts on the reproduction or survival 

of any individuals, much less affect 

annual rates of recruitment or survival. 

For these reasons, we have preliminarily 

determined that the take by harassment 

anticipated and proposed to be 

authorized would have a negligible 

impact on the Canadian Eastern Coastal 

stock of minke whales. 

Sei Whale 

Sei whales are listed as Endangered 

under the ESA, and the Nova Scotia 

stock is considered both Depleted and 

Strategic under the MMPA. There are no 

known areas of specific biological 

importance in or adjacent to the Project 

Area and no UME has been designated 

for this species or stock. No serious 

injury or mortality is anticipated or 

proposed for authorization for this 

species. 

The proposed rule would allow for 

the authorization of up to 24 takes, by 

Level A harassment and Level B 

harassment, over the 5-year period. The 

maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be 1 and 8, 

respectively (combined, this annual take 

(n=9) equates to approximately 0.14 

percent of the stock abundance, if each 

take were considered to be of a different 

individual). As described in the 

Description of Marine Mammals in the 

Geographic Area of Specified Activities 

section, most of the sei whale 

distribution is concentrated in Canadian 

waters and seasonally in northerly U.S. 

waters, though they are uncommonly 

observed in the waters off of New Jersey 

Because sei whales are migratory and 

their known feeding areas are east and 

north of the Project Area (e.g., there is 

a feeding BIA in the Gulf of Maine), they 

would be more likely to be moving 

through and, considering this and the 

very low number of total takes, it is 

unlikely that any individual would be 

exposed more than once within a given 

year. 

With respect to the severity of those 

individual takes by behavioral Level B 

harassment, we would anticipate 

impacts to be limited to low-level, 

temporary behavioral responses with 

avoidance and potential masking 

impacts in the vicinity of the turbine 

installation to be the most likely type of 

response. Any potential PTS and TTS 

would likely be concentrated at half or 

one octave above the frequency band of 

pile-driving noise (most sound is below 

2 kHz) which does not include the full 

predicted hearing range of sei whales. 

Moreover, any TTS would be of a small 

degree. Any avoidance of the Project 

Area due to the Project’s activities 

would be expected to be temporary. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than 24 takes over the course 

of the 5-year rule, and a maximum 

annual allowable take by Level A 

harassment and Level B harassment, of 

1 and 8, respectively), and in 

consideration of the proposed 

mitigation measures and other 

information presented, Atlantic Shores’ 

activities are not expected to result in 

impacts on the reproduction or survival 

of any individuals, much less affect 

annual rates of recruitment or survival. 


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For these reasons, we have preliminarily 

determined that the take by harassment 

anticipated and proposed to be 

authorized would have a negligible 

impact on the Nova Scotia stock of sei 

whales. 

Odontocetes 

In this section, we include 

information here that applies to all of 

the odontocete species and stocks 

addressed below. Odontocetes include 

dolphins, porpoises, and all other 

whales possessing teeth, and we further 

divide them into the following 

subsections: sperm whales, small 

whales and dolphins, and harbor 

porpoise. These sub-sections include 

more specific information, as well as 

conclusions for each stock represented. 

All of the takes of odontocetes 

proposed for authorization incidental to 

Atlantic Shores’ specified activities are 

by pile driving and HRG surveys. No 

serious injury or mortality is anticipated 

or proposed. We anticipate that, given 

ranges of individuals (i.e., that some 

individuals remain within a small area 

for some period of time), and nonmigratory nature of some odontocetes in 

general (especially as compared to 

mysticetes), these takes are more likely 

to represent multiple exposures of a 

smaller number of individuals than is 

the case for mysticetes, though some 

takes may also represent one-time 

exposures to an individual. Foundation 

installation is likely to disturb 

odontocetes to the greatest extent, 

compared to HRG surveys. While we 

expect animals to avoid the area during 

foundation installation, their habitat 

range is extensive compared to the area 

ensonified during these activities. 

As described earlier, Level B 

harassment may include direct 

disruptions in behavioral patterns (e.g., 

avoidance, changes in vocalizations 

(from masking) or foraging), as well as 

those associated with stress responses or 

TTS. Odontocetes are highly mobile 

species and, similar to mysticetes, 

NMFS expects any avoidance behavior 

to be limited to the area near the sound 

source. While masking could occur 

during foundation installation, it would 

only occur in the vicinity of and during 

the duration of the activity, and would 

not generally occur in a frequency range 

that overlaps most odontocete 

communication or any echolocation 

signals. The mitigation measures (e.g., 

use of sound attenuation systems, 

implementation of clearance and 

shutdown zones) would also minimize 

received levels such that the severity of 

any behavioral response would be 

expected to be less than exposure to 

unmitigated noise exposure. 

Any masking or TTS effects are 

anticipated to be of low-severity. First, 

the frequency range of pile driving, the 

most impactful activity proposed to be 

conducted in terms of response severity, 

falls within a portion of the frequency 

range of most odontocete vocalizations. 

However, odontocete vocalizations span 

a much wider range than the low 

frequency construction activities 

proposed for the project. As described 

above, recent studies suggest 

odontocetes have a mechanism to selfmitigate (i.e., reduce hearing sensitivity) 

the impacts of noise exposure, which 

could potentially reduce TTS impacts. 

Any masking or TTS is anticipated to be 

limited and would typically only 

interfere with communication within a 

portion of an odontocete’s range and as 

discussed earlier, the effects would only 

be expected to be of a short duration 

and, for TTS, a relatively small degree. 

Furthermore, odontocete echolocation 

occurs predominantly at frequencies 

significantly higher than low frequency 

construction activities. Therefore, there 

is little likelihood that threshold shift 

would interfere with feeding behaviors. 

For HRG surveys, the sources operate at 

higher frequencies than foundation 

installation activities. However, sounds 

from these sources attenuate very 

quickly in the water column, as 

described above. Therefore, any 

potential for PTS and TTS and masking 

is very limited. Further, odontocetes 

(e.g., common dolphins, spotted 

dolphfins, bottlenose dolphins) have 

demonstrated an affinity to bow-ride 

actively surveying HRG surveys. 

Therefore, the severity of any 

harassment, if it does occur, is 

anticipated to be discountable based on 

the lack of avoidance previously 

demonstrated by these species. 

The waters off the coast of New Jersey 

are used by several odontocete species. 

However, none except the sperm whale 

are listed under the ESA, and there are 

no known habitats of particular 

importance. In general, odontocete 

habitat ranges are far-reaching along the 

Atlantic coast of the U.S., and the 

waters off of New Jersey, including the 

Project Area, do not contain any 

particularly unique odontocete habitat 

features. 

Sperm Whales 

Sperm whales are listed as 

endangered under the ESA, and the 

North Atlantic stock is considered both 

Depleted and Strategic under the 

MMPA. The North Atlantic stock spans 

the East Coast out into oceanic waters 

well beyond the U.S. EEZ. Although 

listed as endangered, the primary threat 

faced by the sperm whale across its 

range (i.e., commercial whaling) has 

been eliminated. Current potential 

threats to the species globally include 

vessel strikes, entanglement in fishing 

gear, anthropogenic noise, exposure to 

contaminants, climate change, and 

marine debris. There is no currently 

reported trend for the stock and, 

although the species is listed as 

endangered under the ESA, there are no 

specific issues with the status of the 

stock that cause particular concern (e.g., 

no UMEs). There are no known areas of 

biological importance (e.g., critical 

habitat or BIAs) in or near the Project 

Area. No mortality or serious injury is 

anticipated or proposed to be authorized 

for this species. 

The proposed rule would allow for 

the authorization of up to 13 takes, by 

Level B harassment only, over the 5-year 

period. The maximum annual allowable 

take would be 5, which equates to 

approximately 0.11 percent of the stock 

abundance, if each take were considered 

to be of a different individual, and with 

far lower numbers than that expected in 

the years without foundation 

installation (e.g., years when only HRG 

surveys would be occurring). Given 

sperm whale’s preference for deeper 

waters, especially for feeding, it is 

unlikely that individuals would remain 

in the Project Area for multiple days, 

and therefore, the estimated takes likely 

represent exposures of different 

individuals on 1 day each, annually. 

If sperm whales are present in the 

Project Area during any project 

activities, they would likely be only 

transient visitors and not engaging in 

any significant behaviors. Further, the 

potential for TTS is low for reasons 

described in the general Odontocete 

section, but, if it does occur, any hearing 

shift would be small and of a short 

duration. Because whales are not 

expected to be foraging in the Project 

Area, any TTS is not expected to 

interfere with foraging behavior. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than 13 takes, by Level B 

harassment only, over the course of the 

5-year rule, and a maximum annual 

allowable take of 5), and in 

consideration of the proposed 

mitigation and other information 

presented, Atlantic Shores’ activities are 

not expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have preliminarily 

determined that the take by harassment 

anticipated and proposed to be 

authorized would have a negligible 

impact on the North Atlantic stock of 

sperm whales. 


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Dolphins and Small Whales (Including 

Delphinids) 

The six species and seven stocks 

included in this group (which are 

indicated in Table 4 in the Delphinidae 

family) are not listed under the ESA; 

however, short-finned pilot whales are 

listed as Strategic under the MMPA. 

There are no known areas of specific 

biological importance in or around the 

Project Area for any of these species and 

no UMEs have been designated for any 

of these species. No serious injury or 

mortality is anticipated or proposed for 

authorization for these species. 

The six delphinid species with take 

proposed for the project consist of: 

Atlantic spotted dolphin, Atlantic 

white-sided dolphin, common 

bottlenose dolphin, common dolphin, 

long-finned pilot whale, short-finned 

pilot whale, and Risso’s dolphin. The 

proposed rule would allow for the 

authorization of up to between 46 and 

7,951 takes (depending on species), by 

Level A harassment and Level B 

harassment, over the 5-year period. The 

maximum annual allowable take for 

these species by Level A harassment 

and Level B harassment, would range 

from 0 to 1 and 14 to 3,634, respectively 

(this annual take equates to 

approximately 0.05 to 29.36 percent of 

the stock abundance, depending on each 

species, if each take were considered to 

be of a different individual), with far 

lower numbers than that expected in the 

years without foundation installation 

(e.g., years when only HRG surveys 

would be occurring). 

For both stocks of bottlenose 

dolphins, given the higher number of 

takes relative to the stock abundance, 

primarily due to nearshore landfall 

activities (i.e., temporary cofferdam 

installation and removal), while some of 

the takes likely represent exposures of 

different individuals on 1 day a year, it 

is likely that some subset of the 

individuals exposed could be taken 

several times annually. For Atlantic 

spotted dolphins, Atlantic white-sided 

dolphins, common dolphins, long- and 

short-finned pilot whales, and Risso’s 

dolphins, given the number of takes, 

while many of the takes likely represent 

exposures of different individuals on 1 

day a year, some subset of the 

individuals exposed could be taken up 

to a few times annually. 

The number of takes, likely movement 

patterns of the affected species, and the 

intensity of any Level A or B 

harassments, combined with the 

availability of alternate nearby foraging 

habitat suggests that the likely impacts 

would not impact the reproduction or 

survival of any individuals. While 

delphinids may be taken on several 

occasions, none of these species are 

known to have small home ranges 

within the Project Area or known to be 

particularly sensitive to anthropogenic 

noise. The potential for PTS in dolphins 

and small whales is very low and, if 

PTS does occur, would occur to a 

limited number of individuals, only 

affect a small portion of the individual’s 

hearing range, and would be limited to 

the frequency ranges of the activity 

which does not span across most of 

their hearing range. Some TTS can also 

occur but, again, it would be limited to 

the frequency ranges of the activity and 

any loss of hearing sensitivity is 

anticipated to return to pre-exposure 

conditions shortly after the animals 

move away from the source or the 

source ceases. 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the proposed 

mitigation and other information 

presented, Atlantic Shores’ activities are 

not expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have preliminarily 

determined that the take by harassment 

anticipated and proposed for 

authorization would have a negligible 

impact on all of the species and stocks 

addressed in this section. 

Harbor Porpoises 

Harbor porpoises are not listed as 

Threatened or Endangered under the 

ESA, and the Gulf of Maine/Bay of 

Fundy stock is neither considered 

depleted or strategic under the MMPA. 

The stock is found predominantly in 

northern U.S. coastal waters (less than 

150 m depth) and up into Canada’s Bay 

of Fundy (between New Brunswick and 

Nova Scotia). Although the population 

trend is not known, there are no UMEs 

or other factors that cause particular 

concern for this stock. No mortality or 

non-auditory injury are anticipated or 

proposed for authorization for this 

stock. 

The proposed rule would allow for 

the authorization of up to 335 takes, by 

Level A harassment and Level B 

harassment, over the 5-year period. The 

maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be 13 and 173, 

respectively (combined, this annual take 

(n=186) equates to approximately 0.19 

percent of the stock abundance, if each 

take were considered to be of a different 

individual), with far lower numbers 

than that expected in the years without 

foundation installation (e.g., years when 

only HRG surveys would be occurring). 

Given the number of takes, while many 

of the takes likely represent exposures 

of different individuals on 1 day a year, 

some subset of the individuals exposed 

could be taken up to a few times 

annually. 

Regarding the severity of takes by 

Level B harassment, because harbor 

porpoises are particularly sensitive to 

noise, it is likely that a fair number of 

the responses could be of a moderate 

nature, particularly to pile driving. In 

response to pile driving, harbor 

porpoises are likely to avoid the area 

during construction, as previously 

demonstrated in Tougaard et al. (2009) 

in Denmark, in Dahne et al. (2013) in 

Germany, and in Vallejo et al. (2017) in 

the United Kingdom, although a study 

by Graham et al. (2019) may indicate 

that the avoidance distance could 

decrease over time. Given that 

foundation installation is scheduled to 

occur off the coast of New Jersey and, 

given alternative foraging areas nearby, 

any avoidance of the area by individuals 

is not likely to impact the reproduction 

or survival of any individuals. 

With respect to PTS and TTS, the 

effects on an individual are likely 

relatively low given the frequency bands 

of pile driving (most energy below 2 

kHz) compared to harbor porpoise 

hearing (150 Hz to 160 kHz peaking 

around 40 kHz). Specifically, TTS is 

unlikely to impact hearing ability in 

their more sensitive hearing ranges, or 

the frequencies in which they 

communicate and echolocate. We 

expect any PTS that may occur to be 

within the very low end of their hearing 

range where harbor porpoises are not 

particularly sensitive and any PTS 

would affect a relatively small portion 

of the individual’s hearing range. As 

such, any PTS would not interfere with 

key foraging or reproductive strategies 

necessary for reproduction or survival. 

As discussed in Hayes et al. (2022), 

harbor porpoises are seasonally 

distributed. During fall (October through 

December) and spring (April through 

June), harbor porpoises are widely 

dispersed from New Jersey to Maine, 

with lower densities farther north and 

south. During winter (January to March), 

intermediate densities of harbor 

porpoises can be found in waters off 

New Jersey to North Carolina, and lower 

densities are found in waters off New 

York to New Brunswick, Canada. In 

non-summer months they have been 

seen from the coastline to deep waters 

(>1,800 m; Westgate et al., 1998), 

although the majority are found over the 

continental shelf. While harbor 

porpoises are likely to avoid the area 

during any of the project’s construction 

activities, as demonstrated during 


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European wind farm construction, the 

time of year in which work would occur 

is when harbor porpoises are not in 

highest abundance, and any work that 

does occur would not result in the 

species’ abandonment of the waters off 

of New Jersey. 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the proposed 

mitigation and other information 

presented, Atlantic Shores’ activities are 

not expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have preliminarily 

determined that the take by harassment 

anticipated and proposed for 

authorization would have a negligible 

impact on the Gulf of Maine/Bay of 

Fundy stock of harbor porpoises. 

Phocids (Harbor Seals and Gray Seals) 

The harbor seal and gray seal are not 

listed under the ESA, and neither the 

western North Atlantic stock of gray seal 

nor the western North Atlantic stock of 

harbor seal are considered depleted or 

strategic under the MMPA. There are no 

known areas of specific biological 

importance in or around the Project 

Area. As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities section, a 

UME has been designated for harbor 

seals and gray seals and is described 

further below. No serious injury or 

mortality is anticipated or proposed for 

authorization for this species. 

For the two seal species, the proposed 

rule would allow for the total 

authorization of up to 675 (gray seal) 

and 1,526 (harbor seal) takes for each 

species, by Level A harassment and 

Level B harassment, over the 5-year 

period. The maximum annual allowable 

take for these species, by Level A 

harassment and Level B harassment, 

would range from 2 to 8 and 299 to 684, 

respectively (combined, this annual take 

(n=301 to 692) equates to approximately 

1.10 to 1.13 percent of the stock 

abundance, if each take were considered 

to be of a different individual), with far 

lower numbers than that expected in the 

years without foundation installation 

(e.g., years when only HRG surveys 

would be occurring). Though gray seals 

and harbor seals are considered 

migratory and no specific feeding areas 

have been designated in the area, the 

higher number of takes relative to the 

stock abundance suggests that while 

some of the takes likely represent 

exposures of different individuals on 1 

day a year, it is likely that some subset 

of the individuals exposed could be 

taken several times annually. 

Harbor and gray seals occur in New 

Jersey waters most often from December 

through April, with harbor seal 

occurrences more common than gray 

seals (Reynolds, 2021). Seals are more 

likely to be close to shore (e.g., closer to 

the edge of the area ensonified above 

NMFS’ harassment threshold), such that 

exposure to foundation installation 

would be expected to be at 

comparatively lower levels. Known 

haul-outs for seals occur near the coastal 

cofferdam locations at the Atlantic 

landfall site and the Monmouth landfall 

site (i.e., in Sandy Hook, Barnegat Bay, 

and Great Bay). However, based on the 

distances between the cofferdam 

locations and the known haul-out sites, 

neither Atlantic Shores, nor NMFS, 

expects that in-air sounds produced 

would cause the take of hauled out 

pinnipeds. As all documented pinniped 

haul-outs are located far from each of 

the cofferdam locations, NMFS does not 

expect any harassment to occur, nor 

have we proposed to authorize any take 

from in-air impacts on hauled out seals. 

As described in the Potential Effects 

of Specified Activities on Marine 

Mammals and Their Habitat section, 

construction of wind farms in Europe 

resulted in pinnipeds temporarily 

avoiding construction areas but 

returning within short time frames after 

construction was complete (Carroll et 

al., 2010; Hamre et al., 2011; Hastie et 

al., 2015; Russell et al., 2016; Brasseur 

et al., 2010). Effects on pinnipeds that 

are taken by Level B harassment in the 

Project Area would likely be limited to 

reactions such as increased swimming 

speeds, increased surfacing time, or 

decreased foraging (if such activity were 

occurring). Most likely, individuals 

would simply move away from the 

sound source and be temporarily 

displaced from those areas (Lucke et al., 

2006; Edren et al., 2010; Skeate et al., 

2012; Russell et al., 2016). Given the 

low anticipated magnitude of impacts 

from any given exposure (e.g., 

temporary avoidance), even repeated 

Level B harassment across a few days of 

some small subset of individuals, which 

could occur, is unlikely to result in 

impacts on the reproduction or survival 

of any individuals. Moreover, pinnipeds 

would benefit from the mitigation 

measures described in 50 CFR part 

217—Regulations Governing the Taking 

and Importing of Marine Mammals 

Incidental to Specified Activities. 

As described above, noise from pile 

driving is mainly low frequency and, 

while any PTS and TTS that does occur 

would fall within the lower end of 

pinniped hearing ranges (50 Hz to 86 

kHz), PTS and TTS would not occur at 

frequencies around 5 kHz, where 

pinniped hearing is most susceptible to 

noise-induced hearing loss (Kastelein et 

al., 2018). In summary, any PTS and 

TTS would be of small degree and not 

occur across the entire, or even most 

sensitive, hearing range. Hence, any 

impacts from PTS and TTS are likely to 

be of low severity and not interfere with 

behaviors critical to reproduction or 

survival. 

Elevated numbers of harbor seal and 

gray seal mortalities were first observed 

in July 2018 and occurred across Maine, 

New Hampshire, and Massachusetts 

until 2020. Based on tests conducted so 

far, the main pathogen found in the 

seals belonging to that UME was 

phocine distemper virus, although 

additional testing to identify other 

factors that may be involved in this 

UME are underway. Currently, the only 

active UME is occurring in Maine with 

some harbor and gray seals testing 

positive for highly pathogenic avian 

influenza (HPAI) H5N1. Although 

elevated strandings continue, neither 

UME (alone or in combination) provide 

cause for concern regarding populationlevel impacts to any of these stocks. For 

harbor seals, the population abundance 

is over 61,000 and annual mortality/ 

serious injury (M/SI) (n=339) is well 

below PBR (1,729) (Hayes et al., 2020). 

The population abundance for gray seals 

in the United States is over 27,000, with 

an estimated overall abundance, 

including seals in Canada, of 

approximately 450,000. In addition, the 

abundance of gray seals is likely 

increasing in the U.S. Atlantic, as well 

as in Canada (Hayes et al., 2020). 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the proposed 

mitigation and other information 

presented, Atlantic Shores’ activities are 

not expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have preliminarily 

determined that the take by harassment 

anticipated and proposed for 

authorization would have a negligible 

impact on harbor and gray seals. 

Preliminary Negligible Impact 

Determination 

No mortality or serious injury is 

anticipated to occur or proposed to be 

authorized. As described in the 

preliminary analysis above, the impacts 

resulting from the project’s activities 

cannot be reasonably expected to, and 

are not reasonably likely to, adversely 

affect any of the species or stocks for 

which take is proposed for authorization 

through effects on annual rates of 

recruitment or survival. Based on the 


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analysis contained herein of the likely 

effects of the specified activity on 

marine mammals and their habitat, and 

taking into consideration the 

implementation of the proposed 

mitigation and monitoring measures, 

NMFS preliminarily finds that the 

marine mammal take from all of 

Atlantic Shores’ specified activities 

combined will have a negligible impact 

on all affected marine mammal species 

or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under sections 101(a)(5)(A) and (D) of 

the MMPA for specified activities other 

than military readiness activities. The 

MMPA does not define small numbers 

and so, in practice, where estimated 

numbers are available, NMFS compares 

the number of individuals estimated to 

be taken to the most appropriate 

estimation of abundance of the relevant 

species or stock in our determination of 

whether an authorization is limited to 

small numbers of marine mammals. 

When the predicted number of 

individuals to be taken is less than onethird of the species or stock abundance, 

the take is considered to be of small 

numbers. Additionally, other qualitative 

factors may be considered in the 

analysis, such as the temporal or spatial 

scale of the activities. 

NMFS proposes to authorize 

incidental take (by Level A harassment 

and/or Level B harassment) of 16 

species of marine mammal (with 17 

managed stocks). The maximum number 

of instances of takes by combined Level 

A harassment and Level B harassment 

possible within any 1 year and proposed 

for authorization relative to the best 

available population abundance is less 

than one-third for all species and stocks 

potentially impacted. 

For 15 of these species (15 stocks), 

less than 3 percent of the annual stock 

abundance is proposed to be authorized 

for take by Level A and/or Level B 

harassment and for 2 stock (both 

bottlenose dolphin), less than 6 percent 

is proposed for one stock (offshore) and 

less than 23 percent is proposed for the 

other (coastal). Specific to the North 

Atlantic right whale, the maximum 

amount of take, which is by Level B 

harassment only, is 21, or 6.2 percent of 

the stock abundance, assuming that 

each instance of take represents a 

different individual. Please see Table 26 

for information relating to this small 

numbers analysis. 

As noted in the final rule for the 

Taking and Importing Marine Mammals; 

Taking Marine Mammals Incidental to 

Geophysical Surveys Related to Oil and 

Gas Activities in the Gulf of Mexico (86 

FR 5322, January 19, 2023), NMFS has 

determined that the small numbers 

finding should be applied to the annual 

take authorized per individual LOA, 

rather than to the total annual taking for 

all activities potentially occurring under 

the incidental take regulations. As 

described previously, Atlantic Shores 

has asked for two separate LOAs 

through which to authorize the 

requested take. The take authorized 

through each LOA would be less than 

that analyzed in the rule and would, 

together, not exceed the take analyzed. 

While NMFS still attaches the ultimate 

small numbers conclusion to the 

individual LOAs as described in the 

above-referenced Gulf of Mexico rule, 

where the entirety of the take allowable 

under regulations would be considered 

small numbers, as is the case here, then 

it follows that any smaller subset of that 

take authorized through subordinate 

LOAs will also qualify as small 

numbers. NMFS may, therefore, elect to 

present the supporting information for 

the entire amount of take for purposes 

of the small numbers analysis, rather 

than distinguishing the take that will be 

included in each LOA. 

Based on the analysis contained 

herein of the proposed activities 

(including the proposed mitigation and 

monitoring measures) and the 

anticipated take of marine mammals, 

NMFS preliminarily finds that small 

numbers of marine mammals would be 

taken relative to the population size of 

the affected species or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of the affected marine mammal stocks or 

species implicated by this action. 

Therefore, NMFS has determined that 

the total taking of affected species or 

stocks would not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

Classification 

Endangered Species Act (ESA) 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (16 U.S.C. 1531 et 

seq.) requires that each Federal agency 

ensure that any action it authorizes, 

funds, or carries out is not likely to 

jeopardize the continued existence of 

any endangered or threatened species or 

result in the destruction or adverse 

modification of designated critical 

habitat. To ensure ESA compliance for 

the promulgation of rulemakings, NMFS 

consults internally whenever we 

propose to authorize take for 

endangered or threatened species, in 

this case with the NOAA GARFO. 

The NMFS Office of Protected 

Resources is proposing to authorize the 

take of four marine mammal species 

which are listed under the ESA: North 

Atlantic right, fin, sei, and sperm 

whales. The Permit and Conservation 

Division requested initiation of section 

7 consultation on July 19, 2023, with 

GARFO for the promulgation of the 

rulemaking. NMFS will conclude the 

Endangered Species Act consultation 

prior to reaching a determination 

regarding the proposed issuance of the 

authorization. The proposed regulations 

and any subsequent LOA(s) would be 

conditioned such that, in addition to 

measures included in those documents, 

Atlantic Shores would also be required 

to abide by the reasonable and prudent 

measures and terms and conditions of 

the Biological Opinion and Incidental 

Take Statement, as issued by NMFS, 

pursuant to section 7 of the Endangered 

Species Act. 

Executive Order 12866 

The Office of Management and Budget 

has determined that this proposed rule 

is not significant for purposes of 

Executive Order 12866, as amended by 

Executive Order 14094. 

Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act (RFA; 5 U.S.C. 601 et seq.), the 

Chief Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

proposed rule, if adopted, would not 

have a significant economic impact on 

a substantial number of small entities. 

Atlantic Shores is the sole entity that 

would be subject to the requirements in 

these proposed regulations, and Atlantic 

Shores is not a small governmental 

jurisdiction, small organization, or small 

business, as defined by the RFA. Under 

the RFA, governmental jurisdictions are 

considered to be small if they are 

governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts, with a population of 

less than 50,000. Because of this 

certification, a regulatory flexibility 

analysis is not required and none has 

been prepared. 

Paperwork Reduction Act 

Notwithstanding any other provision 

of law, no person is required to respond 

to nor shall a person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act (PRA) unless that 

collection of information displays a 


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currently valid Office of Management 

and Budget (OMB) control number. 

These requirements have been approved 

by OMB under control number 0648– 

0151 and include applications for 

regulations, subsequent LOA, and 

reports. Submit any comments regarding 

any aspect of this data collection, 

including suggestions for reducing the 

burden, to NMFS (see ADDRESSES

section) and through the Regulatory 

Dashboard at www.reginfo.gov. 

Coastal Zone Management Act (CZMA) 

The Coastal Zone Management Act 

(CZMA) requires Federal actions within 

and outside the coastal zone that have 

reasonably foreseeable effects on any 

coastal use or natural resource of the 

coastal zone be consistent with the 

enforceable policies of a state’s 

federally-approved coastal management 

program (16 U.S.C. 1456(c)). NMFS has 

determined that Atlantic Shores’ 

application for incidental take 

regulations is not an activity listed by 

the New Jersey Coastal Management 

Program pursuant to 15 CFR 930.53 and, 

thus, is not subject to Federal 

consistency requirements in the absence 

of the receipt and prior approval of an 

unlisted activity review request from the 

state by the Director of NOAA’s Office 

for Coastal Management. Consistent 

with 15 CFR 930.54, NMFS published 

Notice of Receipt of Atlantic Shores’ 

application for this incidental take 

regulation in the Federal Register on 

September 29, 2022 (87 FR 59061) and 

a 15-day extension on October 28, 2022 

(87 FR 65193) and is now publishing the 

proposed rule. The state of New Jersey 

did not request approval from the 

Director of NOAA’s Office for Coastal 

Management to review Atlantic Shores’ 

application as an unlisted activity, and 

the time period for making such request 

has expired. Therefore, NMFS has 

determined the incidental take 

authorization is not subject to Federal 

consistency review. 

Proposed Promulgation 

As a result of these preliminary 

determinations, NMFS proposes to 

promulgate a LOA to Atlantic Shores 

authorizing take, by Level A harassment 

and Level B harassment, incidental to 

construction activities associated with 

Atlantic Shores South offshore of New 

Jersey for a 5-year period from January 

1, 2025, through December 31, 2029, 

provided the previously mentioned 

mitigation, monitoring, and reporting 

requirements are incorporated. 

Request for Additional Information and 

Public Comments 

NMFS requests interested persons to 

submit comments, information, and 

suggestions concerning Atlantic Shores’ 

request and the proposed regulations 

(see ADDRESSES). All comments will be 

reviewed and evaluated as we prepare 

the final rule and make final 

determinations on whether to issue the 

requested authorization. This proposed 

rule and referenced documents provide 

all environmental information relating 

to our proposed action for public 

review. 

Recognizing, as a general matter, that 

this action is one of many current and 

future wind energy actions, we invite 

comment on the relative merits of the 

IHA, single-action rule/LOA, and 

programmatic multi-action rule/LOA 

approaches, including potential marine 

mammal take impacts resulting from 

this and other related wind energy 

actions and possible benefits resulting 

from regulatory certainty and efficiency. 

List of Subjects in 50 CFR Part 217 

Administrative practice and 

procedure, Endangered and threatened 

species, Fish, Fisheries, Marine 

mammals, Penalties, Reporting and 

recordkeeping requirements, Wildlife. 

Dated: September 7, 2023. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

NMFS proposes to amend 50 CFR part 

217 to read as follows: 

PART 217—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

INCIDENTAL TO SPECIFIED 

ACTIVITIES 

■ 1. The authority citation for part 217 

continues to read: 

Authority: 16 U.S.C. 1361 et seq., unless 

otherwise noted. 

■ 2. Add subpart EE, consisting of 

§§ 217.300 through 217.309, to read as 

follows: 

Subpart EE—Taking Marine Mammals 

Incidental to the Atlantic Shores South 

Project Offshore of New Jersey 

Sec. 

217.300 Specified activity and specified 

geographical region. 

217.301 Effective dates. 

217.302 Permissible methods of taking. 

217.303 Prohibitions. 

217.304 Mitigation requirements. 

217.305 Monitoring and reporting 

requirements 

217.306 Letter of Authorization. 

217.307 Modifications of Letter of 

Authorization. 

217.308–217.309 [Reserved] 

Subpart EE—Taking Marine Mammals 

Incidental to the Atlantic Shores South 

Project Offshore of New Jersey 

§ 217.300 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

to activities associated with the Atlantic 

Shores South project (hereafter referred 

to as the ‘‘Project’’) by Atlantic Shores 

Offshore Wind, LLC (hereafter referred 

to as ‘‘LOA Holder’’), and those persons 

it authorizes or funds to conduct 

activities on its behalf in the specified 

geographical region outlined in 

paragraph (b) of this section. 

Requirements imposed on LOA Holder 

must be implemented by those persons 

it authorizes or funds to conduct 

activities on its behalf. 

(b) The specified geographical region 

is the Mid-Atlantic Bight, which 

includes, but is not limited to the 

Bureau of Ocean Energy Management 

(BOEM) Lease Area Outer Continental 

Shelf (OCS)–A 0499 Commercial Lease 

of Submerged Lands for Renewable 

Energy Development, along the relevant 

Export Cable Corridors (ECCs), and at 

the two sea-to-shore transition points 

located at the Atlantic City and the 

Monmouth landfall locations. 

(c) The specified activities are impact 

pile driving of wind turbine generators 

(WTGs), offshore substations (OSSs), 

and a meteorological tower (Met Tower); 

vibratory pile driving (install and 

subsequently remove) of cofferdams; 

high-resolution geophysical (HRG) site 

characterization surveys; vessel transit 

within the specified geographical region 

to transport crew, supplies, and 

materials; WTG operation; fishery and 

ecological monitoring surveys; 

placement of scour protection; and 

trenching, laying, and burial activities 

associated with the installation of the 

ECCs from OSSs to shore-based 

converter stations and inter-array cables 

between turbines. 

§ 217.301 Effective dates. 

The regulations in this subpart are 

effective from January 1, 2025, through 

December 31, 2029. 

§ 217.302 Permissible methods of taking. 

Under the LOAs, issued pursuant to 

§§ 216.106 and 217.306, the LOA 

Holder, and those persons it authorizes 

or funds to conduct activities on its 

behalf, may incidentally, but not 

intentionally, take marine mammals 

within the vicinity of BOEM Lease Area 

OCS–A 0499 Commercial Lease of 

Submerged Lands for Renewable Energy 


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Development, along export cables 

routes, and at the two sea-to-shore 

transition points located in New Jersey 

at Atlantic City and Monmouth in the 

following ways, provided the LOA 

Holder is in complete compliance with 

all terms, conditions, and requirements 

of the regulations in this subpart and the 

appropriate LOAs: 

(a) By Level B harassment associated 

with the acoustic disturbance of marine 

mammals by impact pile driving (WTG, 

OSS, and Met Tower foundation 

installation), vibratory pile driving 

(cofferdam installation and removal), 

and HRG site characterization surveys; 

and 

(b) By Level A harassment associated 

with the acoustic disturbance of marine 

mammals by impact pile driving of 

WTG, OSS, and Met Tower foundations. 

(c) Take by mortality or serious injury 

of any marine mammal species is not 

authorized. 

(d) The incidental take of marine 

mammals by the activities listed in 

paragraphs (a) and (b) of this section is 

limited to the following species: 

TABLE 1 TO PARAGRAPH (d) 

Marine mammal species Scientific name Stock 

North Atlantic right whale ................................................. Eubalaena glacialis ................................... Western Atlantic. 

Fin whale .......................................................................... Balaenoptera physalus ............................. Western North Atlantic. 

Humpback whale .............................................................. Megaptera novaeangliae .......................... Gulf of Maine. 

Minke whale ...................................................................... Balaenoptera acutorostrata ...................... Canadian Eastern Coastal. 

Sei whale .......................................................................... Balaenoptera borealis ............................... Nova Scotia. 

Sperm whale ..................................................................... Physeter macrocephalus .......................... North Atlantic. 

Atlantic spotted dolphin .................................................... Stenella frontalis ....................................... Western North Atlantic. 

Atlantic white-sided dolphin .............................................. Lagenorhynchus acutus ............................ Western North Atlantic. 

Bottlenose dolphin ............................................................ Tursiops truncatus .................................... Western North Atlantic—Offshore, Northern Migratory Coastal. 

Common dolphin ............................................................... Delphinus delphis ..................................... Western North Atlantic. 

Long-finned pilot whale ..................................................... Globicephala melas .................................. Western North Atlantic. 

Short-finned pilot whale .................................................... Globicephala macrorhynchus ................... Western North Atlantic. 

Risso’s dolphin .................................................................. Grampus griseus ...................................... Western North Atlantic. 

Harbor porpoise ................................................................ Phocoena phocoena ................................. Gulf of Maine/Bay of Fundy. 

Gray seal .......................................................................... Halichoerus grypus ................................... Western North Atlantic. 

Harbor seal ....................................................................... Phoca vitulina ........................................... Western North Atlantic. 

§ 217.303 Prohibitions. 

Except for the takings described in 

§ 217.302 and authorized by the LOAs 

issued under § 217.306 or § 217.307, it 

is unlawful for any person to do any of 

the following in connection with the 

activities described in this subpart: 

(a) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or the LOAs issued under 

§§ 217.306 and 217.307; 

(b) Take any marine mammal not 

specified in § 217.302(d); 

(c) Take any marine mammal 

specified in the LOAs in any manner 

other than as specified in the LOAs; or 

(d) Take any marine mammal 

specified in § 217.302(d), after NMFS 

Office of Protected Resources 

determines such taking results in more 

than a negligible impact on the species 

or stocks of such marine mammals. 

§ 217.304 Mitigation requirements. 

When conducting the activities 

identified in §§ 217.300(c) within the 

specified geographical area described in 

§ 217.300(b), LOA Holder must 

implement the mitigation measures 

contained in this section and any LOAs 

issued under §§ 217.306 and 217.307. 

These mitigation measures include, but 

are not limited to: 

(a) General conditions. LOA Holder 

must comply with the following general 

measures: 

(1) A copy of any issued LOAs must 

be in the possession of LOA Holder and 

its designees, all vessel operators, visual 

protected species observers (PSOs), 

passive acoustic monitoring (PAM) 

operators, pile driver operators, and any 

other relevant designees operating 

under the authority of the issued LOAs; 

(2) LOA Holder must conduct training 

for construction, survey, and vessel 

personnel and the marine mammal 

monitoring team (PSO and PAM 

operators) prior to the start of all inwater construction activities in order to 

explain responsibilities, communication 

procedures, marine mammal detection 

and identification, mitigation, 

monitoring, and reporting requirements, 

safety and operational procedures, and 

authorities of the marine mammal 

monitoring team(s). This training must 

be repeated for new personnel who join 

the work during the project. A 

description of the training program must 

be provided to NMFS at least 60 days 

prior to the initial training before inwater activities begin. Confirmation of 

all required training must be 

documented on a training course log 

sheet and reported to NMFS Office of 

Protected Resources prior to initiating 

project activities; 

(3) Prior to and when conducting any 

in-water activities and vessel 

operations, LOA Holder personnel and 

contractors (e.g., vessel operators, PSOs) 

must use available sources of 

information on North Atlantic right 

whale presence in or near the Project 

Area including daily monitoring of the 

Right Whale Sightings Advisory System, 

and monitoring of U.S. Coast Guard 

VHF Channel 16 throughout the day to 

receive notification of any sightings 

and/or information associated with any 

Slow Zones (i.e., Dynamic Management 

Areas (DMAs) and/or acousticallytriggered slow zones) to provide 

situational awareness for both vessel 

operators, PSO(s), and PAM operator(s); 

The marine mammal monitoring team 

must monitor these systems no less than 

every 4 hours. 

(4) Any marine mammal observed by 

project personnel must be immediately 

communicated to any on-duty PSOs, 

PAM operator(s), and all vessel 

captains. Any large whale observation 

or acoustic detection by PSOs or PAM 

operators must be conveyed to all vessel 

captains; 

(5) For North Atlantic right whales, 

any visual or acoustic detection must 

trigger a delay to the commencement of 

pile driving and HRG surveys. 

(6) In the event that a large whale is 

sighted or acoustically detected that 

cannot be confirmed as a non-North 

Atlantic right whale, it must be treated 

as if it were a North Atlantic right whale 

for purposes of mitigation; 


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(7) If a delay to commencing an 

activity is called for by the Lead PSO or 

PAM operator, LOA Holder must take 

the required mitigative action. If a 

shutdown of an activity is called for by 

the Lead PSO or PAM operator, LOA 

Holder must take the required mitigative 

action unless shutdown would result in 

imminent risk of injury or loss of life to 

an individual, pile refusal, or pile 

instability. Any disagreements between 

the Lead PSO, PAM operator, and the 

activity operator regarding delays or 

shutdowns would only be discussed 

after the mitigative action has occurred; 

(8) If an individual from a species for 

which authorization has not been 

granted, or a species for which 

authorization has been granted but the 

authorized take number has been met, is 

observed entering or within the relevant 

Level B harassment zone prior to 

beginning a specified activity, the 

activity must be delayed. If the activity 

is ongoing, it must be shut down 

immediately, unless shutdown would 

result in imminent risk of injury or loss 

of life to an individual, pile refusal, or 

pile instability. The activity must not 

commence or resume until the animal(s) 

has been confirmed to have left and is 

on a path away from the Level B 

harassment zone or after 15 minutes for 

odontocetes (excluding sperm whales) 

and pinnipeds, and 30 minutes for all 

other species with no further sightings; 

(9) For in-water construction heavy 

machinery activities listed in 

§ 217.300(c), if a marine mammal is on 

a path towards or comes within 10 

meters (m) (32.8 feet) of equipment, 

LOA Holder must cease operations until 

the marine mammal has moved more 

than 10 m on a path away from the 

activity to avoid direct interaction with 

equipment; 

(10) All vessels must be equipped 

with a properly installed, operational 

Automatic Identification System (AIS) 

device and LOA Holder must report all 

Maritime Mobile Service Identify 

(MMSI) numbers to NMFS Office of 

Protected Resources; 

(11) By accepting the issued LOAs, 

LOA Holder consents to on-site 

observation and inspections by Federal 

agency personnel (including NOAA 

personnel) during activities described in 

this subpart, for the purposes of 

evaluating the implementation and 

effectiveness of measures contained 

within the LOAs and this subpart; and 

(12) It is prohibited to assault, harm, 

harass (including sexually harass), 

oppose, impede, intimidate, impair, or 

in any way influence or interfere with 

a PSO, PAM Operator, or vessel crew 

member acting as an observer, or 

attempt the same. This prohibition 

includes, but is not limited to, any 

action that interferes with an observer’s 

responsibilities, or that creates an 

intimidating, hostile, or offensive 

environment. Personnel may report any 

violations to the NMFS Office of Law 

Enforcement. 

(b) Vessel strike avoidance measures. 

LOA Holder must comply with the 

following vessel strike avoidance 

measures, unless an emergency 

situation presents a threat to the health, 

safety, or life of a person or when a 

vessel, actively engaged in emergency 

rescue or response duties, including 

vessel-in-distress or environmental 

crisis response, requires speeds in 

excess of 10 kn to fulfill those 

responsibilities, while in the specified 

geographical region: 

(1) Prior to the start of the Project’s 

activities involving vessels, LOA Holder 

must receive a protected species 

training that covers, at a minimum, 

identification of marine mammals that 

have the potential to occur where 

vessels would be operating; detection 

observation methods in both good 

weather conditions (i.e., clear visibility, 

low winds, low sea states) and bad 

weather conditions (i.e., fog, high 

winds, high sea states, with glare); 

sighting communication protocols; all 

vessel speed and approach limit 

mitigation requirements (e.g., vessel 

strike avoidance measures); and 

information and resources available to 

the project personnel regarding the 

applicability of Federal laws and 

regulations for protected species. This 

training must be repeated for any new 

vessel personnel who join the Project. 

Confirmation of the observers’ training 

and understanding of the Incidental 

Take Authorization (ITA) requirements 

must be documented on a training 

course log sheet and reported to NMFS; 

(2) LOA Holder, regardless of their 

vessel’s size, must maintain a vigilant 

watch for all marine mammals and slow 

down, stop their vessel, or alter course 

to avoid striking any marine mammal; 

(3) LOA Holder’s underway vessels 

(e.g., transiting, surveying) operating at 

any speed must have a dedicated visual 

observer on duty at all times to monitor 

for marine mammals within a 180° 

direction of the forward path of the 

vessel (90° port to 90° starboard) located 

at an appropriate vantage point for 

ensuring vessels are maintaining 

appropriate separation distances. Visual 

observers must be equipped with 

alternative monitoring technology (e.g., 

night vision devices, infrared cameras) 

for periods of low visibility (e.g., 

darkness, rain, fog, etc.). The dedicated 

visual observer must receive prior 

training on protected species detection 

and identification, vessel strike 

minimization procedures, how and 

when to communicate with the vessel 

captain, and reporting requirements in 

this subpart. Visual observers may be 

third-party observers (i.e., NMFSapproved PSOs) or trained crew 

members, as defined in § 217.305 (a)(1). 

(4) LOA Holder must continuously 

monitor the U.S. Coast Guard VHF 

Channel 16 at the onset of transiting 

through the duration of transiting, over 

which North Atlantic right whale 

sightings are broadcasted. At the onset 

of transiting and at least once every 4 

hours, vessel operators and/or trained 

crew member(s) must also monitor the 

LOA Holder’s Project-wide Situational 

Awareness System, WhaleAlert, and 

relevant NOAA information systems 

such as the Right Whale Sighting 

Advisory System (RWSAS) for the 

presence of North Atlantic right whales; 

(5) All LOA Holder’s vessels must 

transit at 10 kn or less within any active 

North Atlantic right whale Slow Zone 

(i.e., Dynamic Management Areas 

(DMAs) or acoustically-triggered slow 

zone); 

(6) LOA Holder’s vessels, regardless of 

size, must immediately reduce speed to 

10 kn or less for at least 24 hours when 

a North Atlantic right whale is sighted 

at any distance by any project-related 

personnel or acoustically detected by 

any project-related PAM system. Each 

subsequent observation or acoustic 

detection in the Project area shall trigger 

an additional 24-hour period. If a North 

Atlantic right whale is reported via any 

of the monitoring systems (see (b)(4) of 

this section) within 10 kilometers (km; 

6.2 miles (mi)) of a transiting vessel(s), 

that vessel must operate at 10 knots (kn; 

11.5 miles per hour (mph)) or less for 24 

hours following the reported detection; 

(7) LOA Holder’s vessels, regardless of 

size, must immediately reduce speed to 

10 kn or less when any large whale 

(other than a North Atlantic right whale) 

is observed within 500 meters (m; 1,640 

ft (ft)) of an underway vessel; 

(8) If LOA Holder’s vessel(s) are 

traveling at speeds greater than 10 kn 

(i.e., no speed restrictions are enacted) 

in a transit corridor from a port to the 

Lease Area, in addition to the required 

dedicated visual observer, LOA Holder 

must monitor the transit corridor in 

real-time with PAM prior to and during 

transits. If a North Atlantic right whale 

is detected via visual observation or 

PAM within or approaching the transit 

corridor, all crew transfer vessels must 

travel at 10 kn or less for 24 hours 

following the detection. Each 

subsequent detection shall trigger a 24- 

hour reset. A slowdown in the transit 

corridor expires when there has been no 


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further visual or acoustic detection in 

the transit corridor in the past 24 hours; 

(9) LOA Holder’s vessels must 

maintain a minimum separation 

distance of 500 m from North Atlantic 

right whales. If underway, all vessels 

must steer a course away from any 

sighted North Atlantic right whale at 10 

kn or less such that the 500-m minimum 

separation distance requirement is not 

violated. If a North Atlantic right whale 

is sighted within 500 m of an underway 

vessel, that vessel must reduce speed 

and shift the engine to neutral. Engines 

must not be engaged until the whale has 

moved outside of the vessel’s path and 

beyond 500 m. If a whale is observed 

but cannot be confirmed as a species 

other than a North Atlantic right whale, 

the vessel operator must assume that it 

is a North Atlantic right whale and take 

the vessel strike avoidance measures 

described in this paragraph (b)(9); 

(10) LOA Holder’s vessels must 

maintain a minimum separation 

distance of 100 m (328 ft) from sperm 

whales and non-North Atlantic right 

whale baleen whales. If one of these 

species is sighted within 100 m of a 

transiting vessel, LOA Holder’s vessel 

must reduce speed and shift the engine 

to neutral. Engines must not be engaged 

until the whale has moved outside of 

the vessel’s path and beyond 100 m; 

(11) LOA Holder’s vessels must 

maintain a minimum separation 

distance of 50 m (164 ft) from all 

delphinoid cetaceans and pinnipeds 

with an exception made for those that 

approach the vessel (i.e., bow-riding 

dolphins). If a delphinid cetacean or 

pinniped is sighted within 50 m of a 

transiting vessel, LOA Holder’s vessel 

must shift the engine to neutral, with an 

exception made for those that approach 

the vessel (e.g., bow-riding dolphins). 

Engines must not be engaged until the 

animal(s) has moved outside of the 

vessel’s path and beyond 50 m; 

(12) When a marine mammal(s) is 

sighted while LOA Holder’s vessel(s) is 

transiting, the vessel must take action as 

necessary to avoid violating the relevant 

separation distances (e.g., attempt to 

remain parallel to the animal’s course, 

slow down, and avoid abrupt changes in 

direction until the animal has left the 

area). This measure does not apply to 

any vessel towing gear or any situation 

where respecting the relevant separation 

distance would be unsafe (i.e., any 

situation where the vessel is 

navigationally constrained); 

(13) LOA Holder’s vessels underway 

must not divert or alter course to 

approach any marine mammal. If a 

separation distance is triggered, any 

vessel underway must avoid abrupt 

changes in course direction and transit 

at 10 kn or less until the animal is 

outside the relevant separation distance; 

(14) LOA Holder is required to abide 

by other speed and approach 

regulations. Nothing in this subpart 

exempts vessels from any other 

applicable marine mammal speed and 

approach regulations; 

(15) LOA Holder must check, daily, 

for information regarding the 

establishment of mandatory or 

voluntary vessel strike avoidance areas 

(i.e., DMAs, SMAs, Slow Zones) and any 

information regarding North Atlantic 

right whale sighting locations; 

(16) LOA Holder must submit a North 

Atlantic Right Whale Vessel Strike 

Avoidance Plan to NMFS Office of 

Protected Resources for review and 

approval at least 180 days prior to the 

planned start of vessel activity. The plan 

must provide details on the vessel-based 

observer and PAM protocols for 

transiting vessels. If a plan is not 

submitted or approved by NMFS prior 

to vessel operations, all project vessels 

transiting, year round, must travel at 

speeds of 10-kn or less. LOA Holder 

must comply with any approved North 

Atlantic Right Whale Vessel Strike 

Avoidance Plan; and 

(17) Speed over ground will be used 

to measure all vessel speed restrictions. 

(c) WTG, OSS, Met Tower foundation 

installation. The following requirements 

apply to impact pile driving activities 

associated with the installation of WTG, 

OSS, and Met Tower foundations: 

(1) Impact pile driving must not occur 

January 1 through April 30. Impact pile 

driving must be avoided to the 

maximum extent practicable in 

December; however, it may occur if 

necessary to complete the project with 

prior approval by NMFS; 

(2) Monopiles must be no larger than 

15 m in diameter, representing the 

larger end of the monopile design. 

During all monopile installation, the 

minimum amount of hammer energy 

necessary to effectively and safely 

install and maintain the integrity of the 

piles must be used. Hammer energies 

must not exceed 4,400 kilojoules for 

monopile installation. No more than 

two monopiles may be installed per day. 

Pin piles must be no larger than 5 m in 

diameter. During all pin pile 

installation, the minimum amount of 

hammer energy necessary to effectively 

and safely install and maintain the 

integrity of the piles must be used. 

Hammer energies must not exceed 2,500 

kJ for pin pile installation. No more than 

four pin piles may be installed per day; 

(3) LOA Holder must not initiate pile 

driving earlier than 1 hour prior to civil 

sunrise or later than 1.5 hours prior to 

civil sunset, unless the LOA Holder 

submits, and NMFS approves, an 

Alternative Monitoring Plan as part of 

the Pile Driving and Marine Mammal 

Monitoring Plan that reliably 

demonstrates the efficacy of their night 

vision devices; 

(4) LOA Holder must utilize a softstart protocol for each impact pile 

driving event of all foundations by 

performing four to six strikes per minute 

at 10 to 20 percent of the maximum 

hammer energy, for a minimum of 20 

minutes; 

(5) Soft-start must occur at the 

beginning of impact driving and at any 

time following a cessation of impact pile 

driving of 30 minutes or longer; 

(6) LOA Holder must establish 

clearance and shutdown zones, which 

must be measured using the radial 

distance around the pile being driven. If 

a marine mammal is detected within or 

about to enter the applicable clearance 

zones, prior to the beginning of soft-start 

procedures, impact pile driving must be 

delayed until the animal has been 

visually observed exiting the clearance 

zone or until a specific time period has 

elapsed with no further sightings. The 

specific time periods are 15 minutes for 

odontocetes (excluding sperm whales) 

and pinnipeds, and 30 minutes for all 

other species; 

(7) For North Atlantic right whales, 

any visual observation or acoustic 

detection must trigger a delay to the 

commencement of pile driving. The 

clearance zone may only be declared 

clear if no North Atlantic right whale 

acoustic or visual detections have 

occurred within the clearance zone 

during the 60-minute monitoring 

period; 

(8) LOA Holder must deploy at least 

two fully functional, uncompromised 

noise abatement systems that reduce 

noise levels to the modeled harassment 

isopleths, assuming 10-dB attenuation, 

during all impact pile driving: 

(i) A single bubble curtain must not be 

used; 

(ii) Any bubble curtain(s) must 

distribute air bubbles using an air flow 

rate of at least 0.5 m3/(minute*m). The 

bubble curtain(s) must surround 100 

percent of the piling perimeter 

throughout the full depth of the water 

column. In the unforeseen event of a 

single compressor malfunction, the 

offshore personnel operating the bubble 

curtain(s) must adjust the air supply and 

operating pressure such that the 

maximum possible sound attenuation 

performance of the bubble curtain(s) is 

achieved; 

(iii) The lowest bubble ring must be 

in contact with the seafloor for the full 

circumference of the ring, and the 

weights attached to the bottom ring 


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must ensure 100-percent seafloor 

contact; 

(iv) No parts of the ring or other 

objects may prevent full seafloor contact 

with a bubble curtain ring; 

(v) Construction contractors must 

train personnel in the proper balancing 

of airflow to the bubble curtain ring. 

LOA Holder must provide NMFS Office 

of Protected Resources with a bubble 

curtain performance test and 

maintenance report to review within 72 

hours after each pile using a bubble 

curtain is installed. Additionally, a full 

maintenance check (e.g., manually 

clearing holes) must occur prior to each 

pile being installed; 

(vi) Corrections to the bubble ring(s) 

to meet the performance standards in 

this paragraph (c)(8) must occur prior to 

impact pile driving of monopiles and 

pin piles. If LOA Holder uses a noise 

mitigation device in addition to the 

bubble curtain, LOA Holder must 

maintain similar quality control 

measures as described in this paragraph 

(c)(8). 

(9) LOA Holder must utilize NMFSapproved PAM systems, as described in 

paragraph (c)(16) of this section. The 

PAM system components (i.e., acoustic 

buoys) must not be placed closer than 

1 km to the pile being driven so that the 

activities do not mask the PAM system. 

LOA Holder must provide an adequate 

demonstration of and justification for 

the detection range of the system they 

plan to deploy while considering 

potential masking from concurrent piledriving and vessel noise. The PAM 

system must be able to detect a 

vocalization of North Atlantic right 

whales up to 10 km (6.2 mi). 

(10) LOA Holder must utilize PSO(s) 

and PAM operator(s), as described in 

§ 217.305(c). At least three on-duty 

PSOs must be on the pile driving 

platform. Additionally, two dedicatedPSO vessels must be used at least 60 

minutes before, during, and 30 minutes 

after all pile driving, and each 

dedicated-PSO vessel must have at-least 

three PSOs on duty during these time 

periods. LOA Holder may request NMFS 

approval to use alternative technology 

(e.g., drones) in lieu of one or two of the 

dedicated PSO vessels that provide 

similar marine mammal detection 

capabilities. 

(11) If a marine mammal is detected 

(visually or acoustically) entering or 

within the respective shutdown zone 

after pile driving has begun, the PSO or 

PAM operator must call for a shutdown 

of pile driving and LOA Holder must 

stop pile driving immediately, unless 

shutdown is not practicable due to 

imminent risk of injury or loss of life to 

an individual or risk of damage to a 

vessel that creates risk of injury or loss 

of life for individuals, or the lead 

engineer determines there is pile refusal 

or pile instability. If pile driving is not 

shut down in one of these situations, 

LOA Holder must reduce hammer 

energy to the lowest level practicable 

and the reason(s) for not shutting down 

must be documented and reported to 

NMFS Office of Protected Resources 

within the applicable monitoring 

reports (e.g., weekly, monthly). 

(12) Any visual observation at any 

distance or acoustic detection within 

the PAM monitoring zone of a North 

Atlantic right whale triggers shutdown 

requirements under paragraph (c)(11) of 

this subsection. If pile driving has been 

shut down due to the presence of a 

North Atlantic right whale, pile driving 

may not restart until the North Atlantic 

right whale has neither been visually or 

acoustically detected for 30 minutes; 

(13) If pile driving has been shut 

down due to the presence of a marine 

mammal other than a North Atlantic 

right whale, pile driving must not restart 

until either the marine mammal(s) has 

voluntarily left the specific shutdown 

zones and has been visually or 

acoustically confirmed beyond that 

shutdown zone, or, when specific time 

periods have elapsed with no further 

sightings or acoustic detections have 

occurred. The specific time periods are 

15 minutes for odontocetes (excluding 

sperm whales) and pinnipeds, and 30 

minutes for all other marine mammal 

species. In cases where these criteria are 

not met, pile driving may restart only if 

necessary to maintain pile stability at 

which time LOA Holder must use the 

lowest hammer energy practicable to 

maintain stability; 

(14) LOA Holder must conduct sound 

field verification (SFV) measurements 

during pile driving activities associated 

with the installation of, at minimum, 

the first three monopile foundations 

and/or the first three full jacket 

foundations (inclusive of all pin piles 

for a specific jacket foundation). SFV 

measurements must continue until at 

least three consecutive monopiles and 

three entire jacket foundations 

demonstrate noise levels are at or below 

those modeled, assuming 10-decibels 

(dB) of attenuation. Subsequent SFV 

measurements are also required should 

larger piles be installed or if additional 

piles are driven that may produce 

louder sound fields than those 

previously measured (e.g., higher 

hammer energy, greater number of 

strikes). SFV measurements must be 

conducted as follows: 

(i) Measurements must be made at a 

minimum of four distances from the 

pile(s) being driven, along a single 

transect, in the direction of lowest 

transmission loss (i.e., projected lowest 

transmission loss coefficient), including, 

but not limited to, 750 m (2,460 ft) and 

three additional ranges selected such 

that measurement of Level A 

harassment and Level B harassment 

isopleths are accurate, feasible, and 

avoids extrapolation. At least one 

additional measurement at an azimuth 

90 degrees from the array at 750 m must 

be made. At each location, there must be 

a near bottom and mid-water column 

hydrophone (measurement systems); 

(ii) The recordings must be 

continuous throughout the duration of 

all pile driving of each foundation; 

(iii) The SFV measurement systems 

must have a sensitivity appropriate for 

the expected sound levels from pile 

driving received at the nominal ranges 

throughout the installation of the pile. 

The frequency range of SFV 

measurement systems must cover the 

range of at least 20 hertz (Hz) to 20 

kilohertz (kHz). The SFV measurement 

systems must be designed to have 

omnidirectional sensitivity so that the 

broadband received level of all pile 

driving exceeds the system noise floor 

by at least 10 dB. The dynamic range of 

the SFV measurement system must be 

sufficient such that at each location, the 

signals avoid poor signal-to-noise ratios 

for low amplitude signals and avoid 

clipping, nonlinearity, and saturation 

for high amplitude signals; 

(iv) All hydrophones used in SFV 

measurements systems are required to 

have undergone a full system, traceable 

laboratory calibration conforming to 

International Electrotechnical 

Commission (IEC) 60565, or an 

equivalent standard procedure, from a 

factory or accredited source to ensure 

the hydrophone receives accurate sound 

levels, at a date not to exceed 2 years 

before deployment. Additional in-situ 

calibration checks using a pistonphone 

are required to be performed before and 

after each hydrophone deployment. If 

the measurement system employs filters 

via hardware or software (e.g., highpass, low-pass, etc.), which is not 

already accounted for by the calibration, 

the filter performance (i.e., the filter’s 

frequency response) must be known, 

reported, and the data corrected before 

analysis. 

(v) LOA Holder must be prepared 

with additional equipment (e.g., 

hydrophones, recording devices, 

hydrophone calibrators, cables, 

batteries), which exceeds the amount of 

equipment necessary to perform the 

measurements, such that technical 

issues can be mitigated before 

measurement; 


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(vi) LOA Holder must submit 48-hour 

interim reports after each foundation is 

measured (see § 217.305(g) section for 

interim and final reporting 

requirements); 

(vii) LOA Holder must not exceed 

modeled distances to NMFS marine 

mammal Level A harassment and Level 

B harassment thresholds assuming 10- 

dB attenuation, for foundation 

installation. If any of the interim SFV 

measurement reports submitted for the 

first three monopiles indicate the 

modeled distances to NMFS marine 

mammal Level A harassment and Level 

B harassment thresholds assuming 10- 

dB attenuation, then LOA Holder must 

implement additional sound attenuation 

measures on all subsequent foundations. 

LOA Holder must also increase 

clearance and shutdown zone sizes to 

those identified by NMFS until SFV 

measurements on at least three 

additional foundations demonstrate 

acoustic distances to harassment 

thresholds meet or are less than those 

modeled assuming 10-dB of attenuation. 

LOA Holder must operate fully 

functional sound attenuation systems 

(e.g., ensure hose maintenance, pressure 

testing) to meet noise levels modeled, 

assuming 10-dB attenuation, within 

three piles or else foundation 

installation activities must cease until 

NMFS and LOA Holder can evaluate the 

situation and ensure future piles must 

not exceed noise levels modeled 

assuming 10-dB attenuation; 

(viii) If, after additional measurements 

conducted pursuant to requirements of 

paragraph (c)(15)(vii), acoustic 

measurements indicate that ranges to 

isopleths corresponding to the Level A 

harassment and Level B harassment 

thresholds are less than the ranges 

predicted by modeling (assuming 10-dB 

attenuation), LOA Holder may request 

to NMFS Office of Protected Resources 

a modification of the clearance and 

shutdown zones. For NMFS Office of 

Protected Resources to consider a 

modification request for reduced zone 

sizes, LOA Holder must have conducted 

SFV measurements on an additional 

three foundations (for either/or 

monopile and jackets) and ensure that 

subsequent foundations would be 

installed under conditions that are 

predicted to produce smaller 

harassment zones than those modeled 

assuming 10-dB of attenuation; 

(ix) LOA Holder must conduct SFV 

measurements upon commencement of 

turbine operations to estimate turbine 

operational source levels, in accordance 

with a NMFS-approved Foundation 

Installation Pile Driving SFV Plan. SFV 

must be conducted in the same manner 

as previously described in 

§ 217.304(c)(14), with appropriate 

adjustments to measurement distances, 

number of hydrophones, and 

hydrophone sensitivities being made, as 

necessary; and 

(x) LOA Holder must submit a SFV 

Plan to NMFS Office of Protected 

Resources for review and approval at 

least 180 days prior to planned start of 

foundation installation activities and 

abide by the Plan if approved. At 

minimum, the SFV Plan must describe 

how LOA Holder would ensure that the 

first three monopile foundation/entire 

jacket foundation (inclusive of all pin 

piles for a jacket foundation) installation 

sites selected for SFV measurements are 

representative of the rest of the 

monopile and/or jacket foundation 

installation sites such that future pile 

installation events are anticipated to 

produce similar sound levels to those 

piles measured. In the case that these 

sites/scenarios are not determined to be 

representative of all other pile 

installation sites, LOA Holder must 

include information in the SFV Plan on 

how additional sites/scenarios would be 

selected for SFV measurements. The 

SFV Plan must also include 

methodology for collecting, analyzing, 

and preparing SFV measurement data 

for submission to NMFS Office of 

Protected Resources and describe how 

the effectiveness of the sound 

attenuation methodology would be 

evaluated based on the results. SFV for 

pile driving may not occur until NMFS 

approves the SFV Plan for this activity. 

(16) LOA Holder must submit a 

Foundation Installation Pile Driving 

Marine Mammal Monitoring Plan to 

NMFS Office of Protected Resources for 

review and approval at least 180 days 

prior to planned start of pile driving and 

abide by the Plan if approved. LOA 

Holder must obtain both NMFS Office of 

Protected Resources and NMFS Greater 

Atlantic Regional Fisheries Office 

Protected Resources Division’s 

concurrence with this Plan prior to the 

start of any pile driving. The Plan must 

include a description of all monitoring 

equipment and PAM and PSO protocols 

(including number and location of 

PSOs) for all pile driving. No foundation 

pile installation can occur without 

NMFS’ approval of the Plan; and 

(17) LOA Holder must submit a 

Passive Acoustic Monitoring Plan (PAM 

Plan) to NMFS Office of Protected 

Resources for review and approval at 

least 180 days prior to the planned start 

of foundation installation activities 

(impact pile driving) and abide by the 

Plan if approved. The PAM Plan must 

include a description of all proposed 

PAM equipment, address how the 

proposed passive acoustic monitoring 

must follow standardized measurement, 

processing methods, reporting metrics, 

and metadata standards for offshore 

wind as described in NOAA and BOEM 

Minimum Recommendations for Use of 

Passive Acoustic Listening Systems in 

Offshore Wind Energy Development 

Monitoring and Mitigation Programs 

(2021). The Plan must describe all 

proposed PAM equipment, procedures, 

and protocols including proof that 

vocalizing North Atlantic right whales 

will be detected within the clearance 

and shutdown zones. No pile 

installation can occur if LOA Holder’s 

PAM Plan does not receive approval 

from NMFS Office of Protected 

Resources and NMFS Greater Atlantic 

Regional Fisheries Office Protected 

Resources Division. 

(d) Cofferdam installation and 

removal. The following requirements 

apply to the installation and removal of 

cofferdams at the cable landfall 

construction sites: 

(1) Installation and removal of 

cofferdams must not occur during 

nighttime hours (defined as the hours 

between 1.5 hours prior to civil sunset 

and 1 hour after civil sunrise); 

(2) All installation and removal of 

sheet piles for cofferdams must only 

occur for up to 8 hours per day (within 

a single 24-hour period); 

(3) LOA Holder must establish and 

implement clearance zones for the 

installation and removal of cofferdams 

using visual monitoring. These zones 

must be measured using the radial 

distance from the cofferdam being 

installed and/or removed; 

(4) LOA Holder must utilize PSO(s), 

as described in § 217.305(d). At least 

two on-duty PSOs must monitor for 

marine mammals at least 30 minutes 

before, during, and 30 minutes after 

vibratory pile driving associated with 

cofferdam and casing pipe installation; 

and 

(5) If a marine mammal is observed 

entering or within the respective 

shutdown zone after vibratory pile 

driving has begun, the PSO must call for 

a shutdown of vibratory pile driving. 

LOA Holder must stop vibratory pile 

driving immediately unless shutdown is 

not practicable due to imminent risk of 

injury or loss of life to an individual or 

if there is a risk of damage to the vessel 

that would create a risk of injury or loss 

of life for individuals or if the lead 

engineer determines there is refusal or 

instability. In any of these situations, 

LOA Holder must document the 

reason(s) for not shutting down and 

report the information to NMFS Office 

of Protected Resources in the next 

available weekly report (as described in 

§ 217.305(h)). 


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(e) HRG surveys. The following 

requirements apply to HRG surveys 

operating sub-bottom profilers (SBPs) 

(i.e., boomers, sparkers, and 

Compressed High Intensity Radiated 

Pulse (CHIRPS)): 

(1) LOA Holder must establish and 

implement clearance and shutdown 

zones for HRG surveys using visual 

monitoring, as described in § 217.305(f) 

of this section; 

(2) LOA Holder must utilize PSO(s), 

as described in § 217.305(e); 

(3) LOA Holder must abide by the 

relevant Project Design Criteria (PDCs 4, 

5, and 7) of the programmatic 

consultation completed by NMFS’ 

Greater Atlantic Regional Fisheries 

Office on June 29, 2021 (revised 

September 2021), pursuant to section 7 

of the Endangered Species Act (ESA). 

To the extent that any relevant Best 

Management Practices (BMPs) described 

in these PDCs are more stringent than 

the requirements herein, those BMPs 

supersede these requirements; 

(4) SBPs (hereinafter referred to as 

‘‘acoustic sources’’) must be deactivated 

when not acquiring data or preparing to 

acquire data, except as necessary for 

testing. Acoustic sources must be used 

at the lowest practicable source level to 

meet the survey objective, when in use, 

and must be turned off when they are 

not necessary for the survey; 

(5) LOA Holder is required to rampup acoustic sources prior to 

commencing full power, unless the 

equipment operates on a binary on/off 

switch, and ensure visual clearance 

zones are fully visible (e.g., not 

obscured by darkness, rain, fog) and 

clear of marine mammals, as determined 

by the Lead PSO, for at least 30 minutes 

immediately prior to the initiation of 

survey activities using acoustic sources 

specified in the LOA; 

(6) Prior to a ramp-up procedure 

starting or activating acoustic sources, 

the acoustic source operator (operator) 

must notify a designated PSO of the 

planned start of ramp-up as agreed upon 

with the Lead PSO. The notification 

time should not be less than 60 minutes 

prior to the planned ramp-up or 

activation in order to allow the PSOs 

time to monitor the clearance zone(s) for 

30 minutes prior to the initiation of 

ramp-up or activation (pre-start 

clearance). During this 30-minute prestart clearance period, the entire 

applicable clearance zones must be 

visible, except as indicated in paragraph 

(e)(12) of this section; 

(7) Ramp-ups must be scheduled so as 

to minimize the time spent with the 

source activated; 

(8) A PSO conducting pre-start 

clearance observations must be notified 

again immediately prior to reinitiating 

ramp-up procedures and the operator 

must receive confirmation from the PSO 

to proceed; 

(9) LOA Holder must implement a 30- 

minute clearance period of the clearance 

zones immediately prior to the 

commencing of the survey or when 

there is more than a 30-minute break in 

survey activities or PSO monitoring. A 

clearance period is a period when no 

marine mammals are detected in the 

relevant zone; 

(10) If a marine mammal is observed 

within a clearance zone during the 

clearance period, ramp-up of acoustic 

sources may not begin until the 

animal(s) has been observed voluntarily 

exiting its respective clearance zone or 

until a specific time period has elapsed 

with no further sighting. The specific 

time period is 15 minutes for 

odontocetes (excluding sperm whales) 

and pinnipeds, and 30 minutes for all 

other species; 

(11) In any case when the clearance 

process has begun in conditions with 

good visibility, including via the use of 

night vision equipment (infrared (IR)/ 

thermal camera), and the Lead PSO has 

determined that the clearance zones are 

clear of marine mammals, survey 

operations are allowed to commence 

(i.e., no delay is required) despite 

periods of inclement weather and/or 

loss of daylight. Ramp-up may occur at 

times of poor visibility, including 

nighttime, if appropriate visual 

monitoring has occurred with no 

detections of marine mammals in the 30 

minutes prior to beginning ramp-up; 

(12) Once the survey has commenced, 

LOA Holder must shut down acoustic 

sources if a marine mammal enters a 

respective shutdown zone. In cases 

when the shutdown zones become 

obscured for brief periods due to 

inclement weather, survey operations 

are allowed to continue (i.e., no 

shutdown is required) so long as no 

marine mammals have been detected. 

The shutdown requirement does not 

apply to small delphinids of the 

following genera: Delphinus, Stenella, 

Lagenorhynchus, and Tursiops. If there 

is uncertainty regarding the 

identification of a marine mammal 

species (i.e., whether the observed 

marine mammal belongs to one of the 

delphinid genera for which shutdown is 

waived), the PSOs must use their best 

professional judgment in making the 

decision to call for a shutdown. 

Shutdown is required if a delphinid that 

belongs to a genus other than those 

specified in this paragraph (e)(12) of this 

section is detected in the shutdown 

zone; 

(13) If an acoustic source has been 

shut down due to the presence of a 

marine mammal, the use of an acoustic 

source may not commence or resume 

until the animal(s) has been confirmed 

to have left the Level B harassment zone 

or until a full 15 minutes (for 

odontocetes (excluding sperm whales) 

and seals) or 30 minutes (for all other 

marine mammals) have elapsed with no 

further sighting; 

(14) LOA Holder must immediately 

shut down any acoustic source if a 

marine mammal is sighted entering or 

within its respective shutdown zones. If 

there is uncertainty regarding the 

identification of a marine mammal 

species (i.e., whether the observed 

marine mammal belongs to one of the 

delphinid genera for which shutdown is 

waived), the PSOs must use their best 

professional judgment in making the 

decision to call for a shutdown. 

Shutdown is required if a delphinid that 

belongs to a genus other than those 

specified in paragraph (e)(13) of this 

section is detected in the shutdown 

zone; and 

(15) If an acoustic source is shut down 

for a period longer than 30 minutes, all 

clearance and ramp-up procedures must 

be initiated. If an acoustic source is shut 

down for reasons other than mitigation 

(e.g., mechanical difficulty) for less than 

30 minutes, acoustic sources may be 

activated again without ramp-up only if 

PSOs have maintained constant 

observation and no additional 

detections of any marine mammal 

occurred within the respective 

shutdown zones. 

(f) Fisheries monitoring surveys. The 

following measures apply to fishery 

monitoring surveys: 

(1) Survey gear must be deployed as 

soon as possible once the vessel arrives 

on station. Gear must not be deployed 

if there is a risk of interaction with 

marine mammals. Gear may be 

deployed after 15 minutes of no marine 

mammal sightings within 1 nautical 

mile (nmi; 1,852 m) of the sampling 

station; 

(2) LOA Holder and/or its cooperating 

institutions, contracted vessels, or 

commercially hired captains must 

implement the following ‘‘move-on’’ 

rule: if marine mammals are sighted 

within 1 nmi of the planned location 

and 15 minutes before gear deployment, 

then LOA Holder and/or its cooperating 

institutions, contracted vessels, or 

commercially hired captains, as 

appropriate, must move the vessel away 

from the marine mammal to a different 

section of the sampling area. If, after 

moving on, marine mammals are still 

visible from the vessel, LOA Holder and 

its cooperating institutions, contracted 


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vessels, or commercially hired captains 

must move again or skip the station; 

(3) If a marine mammal is deemed to 

be at risk of interaction after the gear is 

deployed or set, all gear must be 

immediately removed from the water. If 

marine mammals are sighted before the 

gear is fully removed from the water, the 

vessel must slow its speed and 

maneuver the vessel away from the 

animals to minimize potential 

interactions with the observed animal; 

(4) LOA Holder must maintain visual 

marine mammal monitoring effort 

during the entire period of time that 

gear is in the water (i.e., throughout gear 

deployment, fishing, and retrieval); 

(5) All fisheries monitoring gear must 

be fully cleaned and repaired (if 

damaged) before each use/deployment; 

(6) LOA Holder’s fixed gear must 

comply with the Atlantic Large Whale 

Take Reduction Plan regulations at 50 

CFR 229.32 during fisheries monitoring 

surveys; 

(7) Trawl tows must be limited to a 

maximum of a 20-minute trawl time at 

3.0 kn; 

(8) All gear must be emptied as close 

to the deck/sorting area and as quickly 

as possible after retrieval; 

(9) During trawl surveys, vessel crew 

must open the codend of the trawl net 

close to the deck in order to avoid injury 

to animals that may be caught in the 

gear; 

(10) All fishery survey-related lines 

must include the breaking strength of all 

lines being less than 1,700 pounds (lbs; 

771 kilograms (kg)). This may be 

accomplished by using whole buoy line 

that has a breaking strength of 1,700 lbs; 

or buoy line with weak inserts that 

result in line having an overall breaking 

strength of 1,700 lbs; 

(11) During any survey that uses 

vertical lines, buoy lines must be 

weighted and must not float at the 

surface of the water and all groundlines 

must consist of sinking lines. All 

groundlines must be composed entirely 

of sinking lines. Buoy lines must utilize 

weak links. Weak links must break 

cleanly leaving behind the bitter end of 

the line. The bitter end of the line must 

be free of any knots when the weak link 

breaks. Splices are not considered to be 

knots. The attachment of buoys, toggles, 

or other floatation devices to 

groundlines is prohibited; 

(12) All in-water survey gear, 

including buoys, must be properly 

labeled with the scientific permit 

number or identification as LOA 

Holder’s research gear. All labels and 

markings on the gear, buoys, and buoy 

lines must also be compliant with the 

Atlantic Large Whale Take Reduction 

Plan regulations at 50 CFR 229.32, and 

all buoy markings must comply with 

instructions received by the NOAA 

Greater Atlantic Regional Fisheries 

Office Protected Resources Division; 

(13) All survey gear must be removed 

from the water whenever not in active 

survey use (i.e., no wet storage); and 

(14) All reasonable efforts that do not 

compromise human safety must be 

undertaken to recover gear. 

§ 217.305 Monitoring and reporting 

requirements. 

(a) Protected species observer (PSO) 

and passive acoustic monitoring (PAM) 

operator qualifications. LOA Holder 

must implement the following measures 

applicable to PSOs and PAM operators: 

(1) LOA Holder must use 

independent, NMFS-approved PSOs 

and PAM operators, meaning that the 

PSOs and PAM operators must be 

employed by a third-party observer 

provider, must have no tasks other than 

to conduct observational effort, collect 

data, and communicate with and 

instruct relevant crew with regard to the 

presence of protected species and 

mitigation requirements; 

(2) All PSOs and PAM operators must 

have successfully attained a bachelor’s 

degree from an accredited college or 

university with a major in one of the 

natural sciences, a minimum of 30 

semester hours or equivalent in the 

biological sciences, and at least one 

undergraduate course in math or 

statistics. The educational requirements 

may be waived if the PSO or PAM 

operator has acquired the relevant skills 

through a suitable amount of alternate 

experience. Requests for such a waiver 

must be submitted to NMFS Office of 

Protected Resources and must include 

written justification containing 

alternative experience. Alternate 

experience that may be considered 

includes, but is not limited to: previous 

work experience conducting academic, 

commercial, or government-sponsored 

marine mammal visual and/or acoustic 

surveys; or previous work experience as 

a PSO/PAM operator; 

(3) PSOs must have visual acuity in 

both eyes (with correction of vision 

being permissible) sufficient enough to 

discern moving targets on the water’s 

surface with the ability to estimate the 

target size and distance (binocular use is 

allowable); ability to conduct field 

observations and collect data according 

to the assigned protocols; sufficient 

training, orientation, or experience with 

the construction operation to provide 

for personal safety during observations; 

writing skills sufficient to document 

observations, including but not limited 

to, the number and species of marine 

mammals observed, the dates and times 

when in-water construction activities 

were conducted, the dates and time 

when in-water construction activities 

were suspended to avoid potential 

incidental take of marine mammals from 

construction noise within a defined 

shutdown zone, and marine mammal 

behavior; and the ability to 

communicate orally, by radio, or inperson, with project personnel to 

provide real-time information on marine 

mammals observed in the area; 

(4) All PSOs must be trained in 

northwestern Atlantic Ocean marine 

mammal identification and behaviors 

and must be able to conduct field 

observations and collect data according 

to assigned protocols. Additionally, 

PSOs must have the ability to work with 

all required and relevant software and 

equipment necessary during 

observations (as described in 

§ 217.305(b)(6) and § 217.305(b)(7)); 

(5) All PSOs and PAM operators must 

successfully complete a relevant 

training course within the last 5 years, 

including obtaining a certificate of 

course completion; 

(6) PSOs and PAM operators are 

responsible for obtaining NMFS’ 

approval. NMFS may approve PSOs and 

PAM operators as conditional or 

unconditional. A conditionallyapproved PSO or PAM operator may be 

one who has completed training in the 

last 5 years but has not yet attained the 

requisite field experience. An 

unconditionally approved PSO or PAM 

operator is one who has completed 

training within the last 5 years and 

attained the necessary experience (i.e., 

demonstrate experience with 

monitoring for marine mammals at 

clearance and shutdown zone sizes 

similar to those produced during the 

respective activity). Lead PSO or PAM 

operators must be unconditionally 

approved and have a minimum of 90 

days in an northwestern Atlantic Ocean 

offshore environment performing the 

role (either visual or acoustic), with the 

conclusion of the most recent relevant 

experience not more than 18 months 

previous. A conditionally approved PSO 

or PAM operator must be paired with an 

unconditionally approved PSO or PAM 

operator; 

(7) PSOs for cable landfall 

construction (i.e., vibratory pile 

installation and removal) and HRG 

surveys may be unconditionally or 

conditionally approved. PSOs and PAM 

operators for foundation installation 

activities must be unconditionally 

approved; 

(8) At least one on-duty PSO and 

PAM operator, where applicable, for 

each activity (e.g., impact pile driving, 

vibratory pile driving, and HRG surveys) 


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must be designated as the Lead PSO or 

Lead PAM operator; 

(9) LOA Holder must submit NMFS 

previously approved PSOs and PAM 

operators to NMFS Office of Protected 

Resources for review and confirmation 

of their approval for specific roles at 

least 30 days prior to commencement of 

the activities requiring PSOs/PAM 

operators or 15 days prior to when new 

PSOs/PAM operators are required after 

activities have commenced; 

(10) For prospective PSOs and PAM 

operators not previously approved, or 

for PSOs and PAM operators whose 

approval is not current, LOA Holder 

must submit resumes for approval at 

least 60 days prior to PSO and PAM 

operator use. Resumes must include 

information related to relevant 

education, experience, and training, 

including dates, duration, location, and 

description of prior PSO or PAM 

operator experience. Resumes must be 

accompanied by relevant 

documentation of successful completion 

of necessary training; 

(11) PAM operators are responsible 

for obtaining NMFS approval. To be 

approved as a PAM operator, the person 

must meet the following qualifications: 

The PAM operator must demonstrate 

that they have prior experience with 

real-time acoustic detection systems 

and/or have completed specialized 

training for operating PAM systems and 

detecting and identifying Atlantic 

Ocean marine mammals sounds, in 

particular: North Atlantic right whale 

sounds, humpback whale sounds, and 

how to deconflict them from similar 

North Atlantic right whale sounds, and 

other co-occurring species’ sounds in 

the area including sperm whales; must 

be able to distinguish between whether 

a marine mammal or other species 

sound is detected, possibly detected, or 

not detected, and similar terminology 

must be used across companies/projects; 

Where localization of sounds or 

deriving bearings and distance are 

possible, the PAM operators need to 

have demonstrated experience in using 

this technique; PAM operators must be 

independent observers (i.e., not 

construction personnel); PAM operators 

must demonstrate experience with 

relevant acoustic software and 

equipment; PAM operators must have 

the qualifications and relevant 

experience/training to safely deploy and 

retrieve equipment and program the 

software, as necessary; PAM operators 

must be able to test software and 

hardware functionality prior to 

operation; and PAM operators must 

have evaluated their acoustic detection 

software using the PAM Atlantic baleen 

whale annotated data set available at 

National Centers for Environmental 

Information (NCEI) and provide 

evaluation/performance metric; 

(12) PAM operators must be able to 

review and classify acoustic detections 

in real-time (prioritizing North Atlantic 

right whales and noting detection of 

other cetaceans) during the real-time 

monitoring periods; 

(13) PSOs may work as PAM 

operators and vice versa, pending 

NMFS-approval; however, they may 

only perform one role at any one time 

and must not exceed work time 

restrictions, which must be tallied 

cumulatively; and 

(14) All PSOs and PAM operators 

must complete a Permits and 

Environmental Compliance Plan 

training and a 2-day refresher session 

that must be held with the PSO provider 

and Project compliance representative(s) 

prior to the start of in-water project 

activities (e.g., HRG survey, foundation 

installation, cable landfall activities, 

etc.). 

(b) General PSO and PAM operator 

requirements. The following measures 

apply to PSOs and PAM operators and 

must be implemented by LOA Holder: 

(1) PSOs must monitor for marine 

mammals prior to, during, and 

following impact pile driving, vibratory 

pile driving, and HRG surveys that use 

sub-bottom profilers (with specific 

monitoring durations and needs 

described in paragraphs (c) through (f) 

of this section, respectively). Monitoring 

must be done while free from 

distractions and in a consistent, 

systematic, and diligent manner; 

(2) For foundation installation, PSOs 

must visually clear (i.e., confirm no 

observations of marine mammals) the 

entire minimum visibility zone for a full 

30 minutes immediately prior to 

commencing activities. For cable 

landfall activities (e.g., cofferdams) and 

HRG surveys, which do not have a 

minimum visibility zone, the entire 

clearance zone must be visually cleared 

and as much of the Level B harassment 

zone as possible; 

(3) All PSOs must be located at the 

best vantage point(s) on any platform, as 

determined by the Lead PSO, in order 

to obtain 360-degree visual coverage of 

the entire clearance and shutdown 

zones around the activity area, and as 

much of the Level B harassment zone as 

possible. PAM operators may be located 

on a vessel or remotely on-shore, the 

PAM operator(s) must assist PSOs in 

ensuring full coverage of the clearance 

and shutdown zones. The PAM operator 

must monitor to and past the clearance 

zone for large whales; 

(4) All on-duty PSOs must remain in 

real-time contact with the on-duty PAM 

operator(s), PAM operators must 

immediately communicate all acoustic 

detections of marine mammals to PSOs, 

including any determination regarding 

species identification, distance, and 

bearing (where relevant) relative to the 

pile being driven and the degree of 

confidence (e.g., possible, probable 

detection) in the determination. All onduty PSOs and PAM operator(s) must 

remain in contact with the on-duty 

construction personnel responsible for 

implementing mitigations (e.g., delay to 

pile driving) to ensure communication 

on marine mammal observations can 

easily, quickly, and consistently occur 

between all on-duty PSOs, PAM 

operator(s), and on-water Project 

personnel; 

(5) The PAM operator must inform the 

Lead PSO(s) on duty of animal 

detections approaching or within 

applicable ranges of interest to the 

activity occurring via the data collection 

software system (i.e., Mysticetus or 

similar system) who must be 

responsible for requesting that the 

designated crewmember implement the 

necessary mitigation procedures (i.e., 

delay); 

(6) PSOs must use high magnification 

(25x) binoculars, standard handheld 

(7x) binoculars, and the naked eye to 

search continuously for marine 

mammals. During foundation 

installation, at least two PSOs on the 

pile driving-dedicated PSO vessel must 

be equipped with functional Big Eye 

binoculars (e.g., 25 x 150; 2.7 view 

angle; individual ocular focus; height 

control); these must be pedestal 

mounted on the deck at the best vantage 

point that provides for optimal sea 

surface observation and PSO safety. 

PAM operators must have the 

appropriate equipment (i.e., a computer 

station equipped with a data collection 

software system available wherever they 

are stationed) and use a NMFSapproved PAM system to conduct 

monitoring. PAM systems are approved 

through the PAM Plan as described in 

§ 217.304(c)(17); 

(7) During periods of low visibility 

(e.g., darkness, rain, fog, poor weather 

conditions, etc.), PSOs must use 

alternative technology (i.e., infrared or 

thermal cameras) to monitor the 

clearance and shutdown zones as 

approved by NMFS; and 

(8) PSOs and PAM operators must not 

exceed 4 consecutive watch hours on 

duty at any time, must have a 2-hour 

(minimum) break between watches, and 

must not exceed a combined watch 

schedule of more than 12 hours in a 24- 

hour period. If the schedule includes 

PSOs and PAM operators on-duty for 2- 


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hour shifts, a minimum 1-hour break 

between watches must be allowed. 

(c) PSO and PAM operator 

requirements during WTG, OSS, and 

Met Tower foundation installation. The 

following measures apply to PSOs and 

PAM operators during WTG, OSS, and 

Met Tower foundation installation and 

must be implemented by LOA Holder: 

(1) PSOs and PAM operator(s), using 

a NMFS-approved PAM system, must 

monitor for marine mammals 60 

minutes prior to, during, and 30 

minutes following all pile-driving 

activities. If PSOs cannot visually 

monitor the minimum visibility zone 

prior to impact pile driving at all times 

using the equipment described in 

paragraphs (b)(6) and (7) of this section, 

pile-driving operations must not 

commence or must shutdown if they are 

currently active; 

(2) At least three on-duty PSOs must 

be stationed and observing from the 

activity platform during impact pile 

driving and at least three on-duty PSOs 

must be stationed on each dedicated 

PSO vessel. Concurrently, at least one 

PAM operator per acoustic data stream 

(equivalent to the number of acoustic 

buoys) must be actively monitoring for 

marine mammals 60 minutes before, 

during, and 30 minutes after impact pile 

driving in accordance with a NMFSapproved PAM Plan; 

(3) LOA Holder must conduct PAM 

for at least 24 hours immediately prior 

to pile driving activities. The PAM 

operator must review all detections from 

the previous 24-hour period 

immediately prior to pile driving 

activities. 

(d) PSO requirements during 

cofferdam installation and removal. The 

following measures apply to PSOs 

during cofferdam installation and 

removal and must be implemented by 

LOA Holder: 

(1) At least two PSOs must be on 

active duty during all activities related 

to the installation and removal of 

cofferdams; and 

(2) PSOs must monitor the clearance 

zone for the presence of marine 

mammals for 30 minutes before, 

throughout the installation of the sheet 

piles, and for 30 minutes after all 

vibratory pile driving activities have 

ceased. Sheet pile installation must only 

commence when visual clearance zones 

are fully visible (e.g., not obscured by 

darkness, rain, fog, etc.) and clear of 

marine mammals, as determined by the 

Lead PSO, for at least 30 minutes 

immediately prior to initiation of 

vibratory pile driving. 

(e) PSO requirements during HRG 

surveys. The following measures apply 

to PSOs during HRG surveys using 

acoustic sources that have the potential 

to result in harassment and must be 

implemented by LOA Holder: 

(1) Between four and six PSOs must 

be present on every 24-hour survey 

vessel and two to three PSOs must be 

present on every 12-hour survey vessel; 

(2) At least one PSO must be on active 

duty monitoring during HRG surveys 

conducted during daylight (i.e., from 30 

minutes prior to civil sunrise through 30 

minutes following civil sunset) and at 

least two PSOs must be on activity duty 

monitoring during HRG surveys 

conducted at night; 

(3) PSOs on HRG vessels must begin 

monitoring 30 minutes prior to 

activating acoustic sources, during the 

use of these acoustic sources, and for 30 

minutes after use of these acoustic 

sources has ceased; 

(4) Any observations of marine 

mammals must be communicated to 

PSOs on all nearby survey vessels 

during concurrent HRG surveys; and 

(5) During daylight hours when 

survey equipment is not operating, LOA 

Holder must ensure that visual PSOs 

conduct, as rotation schedules allow, 

observations for comparison of sighting 

rates and behavior with and without use 

of the specified acoustic sources. Offeffort PSO monitoring must be reflected 

in the monthly PSO monitoring reports. 

(f) Monitoring requirements during 

fisheries monitoring surveys. The 

following measures apply during 

fisheries monitoring surveys and must 

be implemented by LOA Holder: 

(1) All captains and crew conducting 

fishery surveys must be trained in 

marine mammal detection and 

identification; and 

(2) Marine mammal monitoring must 

be conducted within 1 nmi from the 

planned survey location by the trained 

captain and/or a member of the 

scientific crew for 15 minutes prior to 

deploying gear, throughout gear 

deployment and use, and for 15 minutes 

after haul back. 

(g) Reporting. LOA Holder must 

comply with the following reporting 

measures: 

(1) Prior to initiation of any on-water 

project activities, LOA Holder must 

demonstrate in a report submitted to 

NMFS Office of Protected Resources 

that all required training for LOA 

Holder personnel (including the vessel 

crews, vessel captains, PSOs, and PAM 

operators) has been completed. 

(2) LOA Holder must use a 

standardized reporting system during 

the effective period of the LOAs. All 

data collected related to the Project 

must be recorded using industrystandard software that is installed on 

field laptops and/or tablets. Unless 

stated otherwise, all reports must be 

submitted to NMFS Office of Protected 

Resources (PR.ITP.MonitoringReports@

noaa.gov), dates must be in MM/DD/ 

YYYY format, and location information 

must be provided in Decimal Degrees 

and with the coordinate system 

information (e.g., NAD83, WGS84, etc.). 

(3) For all visual monitoring efforts 

and marine mammal sightings, the 

following information must be collected 

and reported to NMFS Office of 

Protected Resources: the date and time 

that monitored activity begins or ends; 

the construction activities occurring 

during each observation period; the 

watch status (i.e., sighting made by PSO 

on/off effort, opportunistic, crew, 

alternate vessel/platform); the PSO who 

sighted the animal; the time of sighting; 

the weather parameters (e.g., wind 

speed, percent cloud cover, visibility); 

the water conditions (e.g., Beaufort sea 

state, tide state, water depth); all marine 

mammal sightings, regardless of 

distance from the construction activity; 

species (or lowest possible taxonomic 

level possible); the pace of the 

animal(s); the estimated number of 

animals (minimum/maximum/high/ 

low/best); the estimated number of 

animals by cohort (e.g., adults, 

yearlings, juveniles, calves, group 

composition, etc.); the description (i.e., 

as many distinguishing features as 

possible of each individual seen, 

including length, shape, color, pattern, 

scars or markings, shape and size of 

dorsal fin, shape of head, and blow 

characteristics); the description of any 

marine mammal behavioral observations 

(e.g., observed behaviors such as feeding 

or traveling) and observed changes in 

behavior, including an assessment of 

behavioral responses thought to have 

resulted from the specific activity; the 

animal’s closest distance and bearing 

from the pile being driven or specified 

HRG equipment and estimated time 

entered or spent within the Level A 

harassment and/or Level B harassment 

zone(s); the activity at time of sighting 

(e.g., vibratory installation/removal, 

impact pile driving, construction 

survey), use of any noise attenuation 

device(s), and specific phase of activity 

(e.g., ramp-up of HRG equipment, HRG 

acoustic source on/off, soft-start for pile 

driving, active pile driving, etc.); the 

marine mammal occurrence in Level A 

harassment or Level B harassment 

zones; the description of any mitigationrelated action implemented, or 

mitigation-related actions called for but 

not implemented, in response to the 

sighting (e.g., delay, shutdown, etc.) and 

time and location of the action; other 

human activity in the area, and; other 


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applicable information, as required in 

any LOAs issued under § 217.306. 

(4) LOA Holder must compile and 

submit weekly reports during 

foundation installation to NMFS Office 

of Protected Resources that document 

the daily start and stop of all pile 

driving associated with the Project; the 

start and stop of associated observation 

periods by PSOs; details on the 

deployment of PSOs; a record of all 

detections of marine mammals (acoustic 

and visual); any mitigation actions (or if 

mitigation actions could not be taken, 

provide reasons why); and details on the 

noise attenuation system(s) used and its 

performance. Weekly reports are due on 

Wednesday for the previous week 

(Sunday to Saturday) and must include 

the information required under this 

section. The weekly report must also 

identify which turbines become 

operational and when (a map must be 

provided). Once all foundation pile 

installation is completed, weekly 

reports are no longer required by LOA 

Holder. 

(5) LOA Holder must compile and 

submit monthly reports to NMFS Office 

of Protected Resources during 

foundation installation that include a 

summary of all information in the 

weekly reports, including project 

activities carried out in the previous 

month, vessel transits (number, type of 

vessel, MMIS number, and route), 

number of piles installed, all detections 

of marine mammals, and any mitigative 

action taken. Monthly reports are due 

on the 15th of the month for the 

previous month. The monthly report 

must also identify which turbines 

become operational and when (a map 

must be provided). Full PAM detection 

data and metadata must also be 

submitted monthly on the 15th of every 

month for the previous month via the 

webform on the NMFS North Atlantic 

Right Whale Passive Acoustic Reporting 

System website at https://

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates. 

(6) LOA Holder must submit a draft 

annual report to NMFS Office of 

Protected Resources no later than 90 

days following the end of a given 

calendar year. LOA Holder must 

provide a final report within 30 days 

following resolution of NMFS’ 

comments on the draft report. The draft 

and final reports must detail the 

following: the total number of marine 

mammals of each species/stock detected 

and how many were within the 

designated Level A harassment and 

Level B harassment zone(s) with 

comparison to authorized take of marine 

mammals for the associated activity 

type; marine mammal detections and 

behavioral observations before, during, 

and after each activity; what mitigation 

measures were implemented (i.e., 

number of shutdowns or clearance zone 

delays, etc.) or, if no mitigative actions 

was taken, why not; operational details 

(i.e., days and duration of impact and 

vibratory pile driving, days, and amount 

of HRG survey effort, etc.); any PAM 

systems used; the results, effectiveness, 

and which noise attenuation systems 

were used during relevant activities 

(i.e., impact pile driving); summarized 

information related to situational 

reporting; and any other important 

information relevant to the Project, 

including additional information that 

may be identified through the adaptive 

management process. 

(7) LOA Holder must submit its draft 

5-year report to NMFS Office of 

Protected Resources on all visual and 

acoustic monitoring conducted within 

90 calendar days of the completion of 

activities occurring under the LOAs. A 

5-year report must be prepared and 

submitted within 60 calendar days 

following receipt of any NMFS Office of 

Protected Resources comments on the 

draft report. If no comments are 

received from NMFS Office of Protected 

Resources within 60 calendar days of 

NMFS Office of Protected Resources 

receipt of the draft report, the report 

shall be considered final. 

(8) For those foundation piles 

requiring SFV measurements, LOA 

Holder must provide the initial results 

of the SFV measurements to NMFS 

Office of Protected Resources in an 

interim report after each foundation 

installation event as soon as they are 

available and prior to a subsequent 

foundation installation, but no later 

than 48 hours after each completed 

foundation installation event. The 

report must include, at minimum: 

hammer energies/schedule used during 

pile driving, including, the total number 

of strikes and the maximum hammer 

energy; the model-estimated acoustic 

ranges (R95%) to compare with the realworld sound field measurements; peak 

sound pressure level (SPLpk), root-meansquare sound pressure level that 

contains 90 percent of the acoustic 

energy (SPLrms), and sound exposure 

level (SEL, in single strike for pile 

driving, SELss,), for each hydrophone, 

including at least the maximum, 

arithmetic mean, minimum, median 

(L50) and L5 (95 percent exceedance) 

statistics for each metric; estimated 

marine mammal Level A harassment 

and Level B harassment isopleths, 

calculated using the maximum-overdepth L5 (95 percent exceedance level, 

maximum of both hydrophones) of the 

associated sound metric; comparison of 

modeled results assuming 10-dB 

attenuation against the measured marine 

mammal Level A harassment and Level 

B harassment acoustic isopleths; 

estimated transmission loss coefficients; 

pile identifier name, location of the pile 

and each hydrophone array in latitude/ 

longitude; depths of each hydrophone; 

one-third-octave band single strike SEL 

spectra; if filtering is applied, full filter 

characteristics must be reported; and 

hydrophone specifications including the 

type, model, and sensitivity. LOA 

Holder must also report any immediate 

observations which are suspected to 

have a significant impact on the results 

including but not limited to: observed 

noise mitigation system issues, 

obstructions along the measurement 

transect, and technical issues with 

hydrophones or recording devices. If 

any in-situ calibration checks for 

hydrophones reveal a calibration drift 

greater than 0.75 dB, pistonphone 

calibration checks are inconclusive, or 

calibration checks are otherwise not 

effectively performed, LOA Holder must 

indicate full details of the calibration 

procedure, results, and any associated 

issues in the 48-hour interim reports. 

(9) The final results of SFV 

measurements from each foundation 

installation must be submitted as soon 

as possible, but no later than 90 days 

following completion of each event’s 

SFV measurements. The final reports 

must include all details prescribed 

above for the interim report as well as, 

at minimum, the following: the peak 

sound pressure level (SPLpk), the rootmean-square sound pressure level that 

contains 90 percent of the acoustic 

energy (SPLrms), the single strike sound 

exposure level (SELss), the integration 

time for SPLrms, the spectrum, and the 

24-hour cumulative SEL extrapolated 

from measurements at all hydrophones. 

The final report must also include at 

least the maximum, mean, minimum, 

median (L50) and L5 (95 percent 

exceedance) statistics for each metric; 

the SEL and SPL power spectral density 

and/or one-third octave band levels 

(usually calculated as decidecade band 

levels) at the receiver locations should 

be reported; the sound levels reported 

must be in median, arithmetic mean, 

and L5 (95 percent exceedance) (i.e., 

average in linear space), and in dB; 

range of TL coefficients; the local 

environmental conditions, such as wind 

speed, transmission loss data collected 

on-site (or the sound velocity profile); 

baseline pre- and post-activity ambient 

sound levels (broadband and/or within 

frequencies of concern); a description of 

depth and sediment type, as 


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documented in the Construction and 

Operation Plan (COP), at the recording 

and foundation installation locations; 

the extents of the measured Level A 

harassment and Level B harassment 

zone(s); hammer energies required for 

pile installation and the number of 

strikes per pile; the hydrophone 

equipment and methods (i.e., recording 

device, bandwidth/sampling rate; 

distance from the pile where recordings 

were made; the depth of recording 

device(s)); a description of the SFV 

measurement hardware and software, 

including software version used, 

calibration data, bandwidth capability 

and sensitivity of hydrophone(s), any 

filters used in hardware or software, any 

limitations with the equipment, and 

other relevant information; the spatial 

configuration of the noise attenuation 

device(s) relative to the pile; a 

description of the noise abatement 

system and operational parameters (e.g., 

bubble flow rate, distance deployed 

from the pile, etc.), and any action taken 

to adjust the noise abatement system. A 

discussion which includes any 

observations which are suspected to 

have a significant impact on the results 

including but not limited to: observed 

noise mitigation system issues, 

obstructions along the measurement 

transect, and technical issues with 

hydrophones or recording devices. 

(10) If at any time during the project 

LOA Holder becomes aware of any issue 

or issues which may (to any reasonable 

subject-matter expert, including the 

persons performing the measurements 

and analysis) call into question the 

validity of any measured Level A 

harassment or Level B harassment 

isopleths to a significant degree, which 

were previously transmitted or 

communicated to NMFS Office of 

Protected Resources, LOA Holder must 

inform NMFS Office of Protected 

Resources within 1 business day of 

becoming aware of this issue or before 

the next pile is driven, whichever comes 

first. 

(11) If a North Atlantic right whale is 

acoustic detected at any time by a 

project-related PAM system, LOA 

Holder must ensure the detection is 

reported as soon as possible to NMFS, 

but no longer than 24 hours after the 

detection via the 24-hour North Atlantic 

right whale Detection Template (https:// 

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates). Calling the hotline is 

not necessary when reporting PAM 

detections via the template; 

(12) Full detection data, metadata, 

and location of recorders (or GPS tracks, 

if applicable) from all real-time 

hydrophones used for monitoring 

during construction must be submitted 

within 90 calendar days after the 

conclusion of activities requiring PAM 

for mitigation. Reporting must use the 

webform templates on the NMFS 

Passive Acoustic Reporting System 

website at https://

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates. The full acoustic 

recordings from all real-time 

hydrophones must also be sent to the 

National Centers for Environmental 

Information (NCEI) for archiving within 

90 calendar days after pile driving has 

ended and instruments have been 

pulled from the water. 

(13) LOA Holder must submit 

situational reports if the following 

circumstances occur (including all 

instances wherein an exemption is 

taken must be reported to NMFS Office 

of Protected Resources within 24 hours): 

(i) If a North Atlantic right whale is 

observed at any time by PSOs or project 

personnel, LOA Holder must ensure the 

sighting is immediately (if not feasible, 

as soon as possible and no longer than 

24 hours after the sighting) reported to 

NMFS and the Right Whale Sightings 

Advisory System (RWSAS). If in the 

Northeast Region (Maine to Virginia/ 

North Carolina border) call (866–755– 

6622). If in the Southeast Region (North 

Carolina to Florida) call (877–WHALE– 

HELP or 877–942–5343). If calling 

NMFS is not possible, reports can also 

be made to the U.S. Coast Guard via 

channel 16 or through the WhaleAlert 

app (http://www.whalealert.org/). The 

sighting report must include the time, 

date, and location of the sighting, 

number of whales, animal description/ 

certainty of sighting (provide photos/ 

video if taken), Lease Area/project 

name, PSO/personnel name, PSO 

provider company (if applicable), and 

reporter’s contact information. 

(ii) If a North Atlantic right whale is 

observed at any time by PSOs or project 

personnel, LOA Holder must submit a 

summary report to NMFS Greater 

Atlantic Regional Fisheries (GARFO; 

nmfs.gar.incidental-take@noaa.gov) and 

NMFS Office of Protected Resources, 

and NMFS Northeast Fisheries Science 

Center (NEFSC; ne.rw.survey@noaa.gov) 

within 24 hours with the above 

information and the vessel/platform 

from which the sighting was made, 

activity the vessel/platform was engaged 

in at time of sighting, project 

construction and/or survey activity at 

the time of the sighting (e.g., pile 

driving, cable installation, HRG survey), 

distance from vessel/platform to 

sighting at time of detection, and any 

mitigation actions taken in response to 

the sighting. 

(iii) If an observation of a large whale 

occurs during vessel transit, LOA 

Holder must report the time, date, and 

location of the sighting; the vessel’s 

activity, heading, and speed (knots); 

Beaufort sea state, water depth (meters), 

and visibility conditions; marine 

mammal species identification to the 

best of the observer’s ability and any 

distinguishing characteristics; initial 

distance and bearing to marine mammal 

from vessel and closest point of 

approach; and any avoidance measures 

taken in response to the marine 

mammal sighting. 

(iv) In the event that personnel 

involved in the Project discover a 

stranded, entangled, injured, or dead 

marine mammal, LOA Holder must 

immediately report the observation to 

NMFS. If in the Greater Atlantic Region 

(Maine to Virginia) call the NMFS 

Greater Atlantic Stranding Hotline (866– 

755–6622); if in the Southeast Region 

(North Carolina to Florida), call the 

NMFS Southeast Stranding Hotline 

(877–942–5343). Separately, LOA 

Holder must report the incident to 

NMFS Office of Protected Resources 

(PR.ITP.MonitoringReports@noaa.gov) 

and, if in the Greater Atlantic region 

(Maine to Virginia), NMFS Greater 

Atlantic Regional Fisheries Office 

(GARFO; nmfs.gar.incidental-take@

noaa.gov, nmfs.gar.stranding@noaa.gov) 

or, if in the Southeast region (North 

Carolina to Florida), NMFS Southeast 

Regional Office (SERO; 

secmammalreports@noaa.gov) as soon 

as feasible. The report (via phone or 

email) must include contact (name, 

phone number, etc.), the time, date, and 

location of the first discovery (and 

updated location information if known 

and applicable); species identification 

(if known) or description of the 

animal(s) involved; condition of the 

animal(s) (including carcass condition if 

the animal is dead); observed behaviors 

of the animal(s), if alive; if available, 

photographs or video footage of the 

animal(s); and general circumstances 

under which the animal was discovered. 

(v) In the event of a vessel strike of a 

marine mammal by any vessel 

associated with the Project or if other 

project activities cause a non-auditory 

injury or death of a marine mammal, 

LOA Holder must immediately report 

the incident to NMFS. If in the Greater 

Atlantic Region (Maine to Virginia) call 

the NMFS Greater Atlantic Stranding 

Hotline (866–755–6622) and if in the 

Southeast Region (North Carolina to 

Florida) call the NMFS Southeast 

Stranding Hotline (877–942–5343). 

Separately, LOA Holder must 

immediately report the incident to 

NMFS Office of Protected Resources 


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(PR.ITP.MonitoringReports@noaa.gov) 

and, if in the Greater Atlantic region 

(Maine to Virginia), NMFS GARFO 

(nmfs.gar.incidental-take@noaa.gov, 

nmfs.gar.stranding@noaa.gov) or, if in 

the Southeast region (North Carolina to 

Florida), NMFS SERO 

(secmammalreports@noaa.gov). The 

report must include the time, date, and 

location of the incident; species 

identification (if known) or description 

of the animal(s) involved; vessel size 

and motor configuration (inboard, 

outboard, jet propulsion); vessel’s speed 

leading up to and during the incident; 

vessel’s course/heading and what 

operations were being conducted (if 

applicable); status of all sound sources 

in use; description of avoidance 

measures/requirements that were in 

place at the time of the strike and what 

additional measures were taken, if any, 

to avoid strike; environmental 

conditions (e.g., wind speed and 

direction, Beaufort sea state, cloud 

cover, visibility) immediately preceding 

the strike; estimated size and length of 

animal that was struck; description of 

the behavior of the marine mammal 

immediately preceding and following 

the strike; if available, description of the 

presence and behavior of any other 

marine mammals immediately 

preceding the strike; estimated fate of 

the animal (e.g., dead, injured but alive, 

injured and moving, blood or tissue 

observed in the water, status unknown, 

disappeared); and to the extent 

practicable, photographs or video 

footage of the animal(s). LOA Holder 

must immediately cease all on-water 

activities until the NMFS Office of 

Protected Resources is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the LOAs. 

NMFS Office of Protected Resources 

may impose additional measures to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. LOA Holder may not 

resume their activities until notified by 

NMFS Office of Protected Resources. 

(14) LOA Holder must report any lost 

gear associated with the fishery surveys 

to the NOAA GARFO Protected 

Resources Division (nmfs.gar.incidentaltake@noaa.gov) as soon as possible or 

within 24 hours of the documented time 

of missing or lost gear. This report must 

include information on any markings on 

the gear and any efforts undertaken or 

planned to recover the gear. 

§ 217.306 Letter of Authorization. 

(a) To incidentally take marine 

mammals pursuant to this subpart, LOA 

Holder must apply for and obtain the 

LOAs. 

(b) The LOAs, unless suspended or 

revoked, may be effective for a period of 

time not to exceed December 31, 2029, 

the expiration date of this subpart. 

(c) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by the 

LOAs, LOA Holder must apply for and 

obtain a modification of the LOAs as 

described in § 217.307. 

(d) The LOA must set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact (i.e., 

mitigation) on the species, its habitat, 

and on the availability of the species for 

subsistence uses; and 

(3) Requirements for monitoring and 

reporting. 

(e) Issuance of the LOAs must be 

based on a determination that the level 

of taking must be consistent with the 

findings made for the total taking 

allowable under the regulations of this 

subpart. 

(f) Notice of issuance or denial of the 

LOAs must be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.307 Modifications of Letter of 

Authorization. 

(a) The LOAs issued under §§ 217.302 

and 217.306 or this section for the 

activity identified in § 217.300(a) shall 

be modified upon request by LOA 

Holder, provided that: 

(1) The proposed specified activity 

and mitigation, monitoring, and 

reporting measures, as well as the 

anticipated impacts, are the same as 

those described and analyzed for this 

subpart (excluding changes made 

pursuant to the adaptive management 

provision in paragraph (c)(1) of this 

section); and 

(2) NMFS Office of Protected 

Resources determines that the 

mitigation, monitoring, and reporting 

measures required by the previous 

LOAs under this subpart were 

implemented. 

(b) For a LOA modification request by 

the applicant that includes changes to 

the activity or the mitigation, 

monitoring, or reporting (excluding 

changes made pursuant to the adaptive 

management provision in paragraph 

(c)(1) of this section), the LO(s shall be 

modified, provided that: 

(1) NMFS Office of Protected 

Resources determines that the changes 

to the activity or the mitigation, 

monitoring, or reporting do not change 

the findings made for the regulations in 

this subpart and do not result in more 

than a minor change in the total 

estimated number of takes (or 

distribution by species or years), and 

(2) NMFS Office of Protected 

Resources may, if appropriate, publish a 

notice of proposed LOAs in the Federal 

Register, including the associated 

analysis of the change, and solicit 

public comment before issuing the 

LOAs. 

(c) The LOAs issued under §§ 217.302 

and 217.306 or this section for the 

activities identified in § 217.300(a) may 

be modified by NMFS Office of 

Protected Resources under the following 

circumstances: 

(1) Through adaptive management, 

NMFS Office of Protected Resources 

may modify (including delete, modify, 

or add to) the existing mitigation, 

monitoring, or reporting measures (after 

consulting with the LOA Holder 

regarding the practicability of the 

modifications), if doing so creates a 

reasonable likelihood of more 

effectively accomplishing the goals of 

the mitigation and monitoring; 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in the LOAs include, but are 

not limited to: 

(A) Results from LOA Holder’s 

monitoring; 

(B) Results from other marine 

mammals and/or sound research or 

studies; and 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent, or number not 

authorized by the regulations in this 

subpart or subsequent LOAs. 

(ii) If, through adaptive management, 

the modifications to the mitigation, 

monitoring, or reporting measures are 

substantial, NMFS Office of Protected 

Resources shall publish a notice of 

proposed LOAs in the Federal Register 

and solicit public comment. 

(2) If NMFS Office of Protected 

Resources determines that an emergency 

exists that poses a significant risk to the 

well-being of the species or stocks of 

marine mammals specified in the LOAs 

issued pursuant to §§ 217.302 and 

217.306 or this section, the LOAs may 

be modified without prior notice or 

opportunity for public comment. Notice 

would be published in the Federal 

Register within 30 days of the action. 

§ 217.308–217.309 [Reserved] 

[FR Doc. 2023–19733 Filed 9–18–23; 8:45 am] 

BILLING CODE 3510–22–P 


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