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AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION:
Final rule.
SUMMARY:
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, the National Marine Fisheries Service (hereafter, “NMFS”) promulgates regulations to govern the incidental taking of marine mammals by Atlantic Shores Offshore Wind Project 1, LLC, the project company of the original applicant, Atlantic Shores Offshore Wind, LLC, a joint venture between EDF-RE Offshore Development LLC (a wholly owned subsidiary of EDF Renewables, Inc.) and Shell New Energies US LLC, during the construction of the Atlantic Shores South Project (hereafter, “Atlantic Shores South” or the “Project”), an offshore wind energy project located in Federal and State waters offshore of New Jersey, specifically within the Bureau of Ocean Energy Management (hereafter, “BOEM”) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (hereafter, “OCS”) Lease Areas OCS-A-0499 and OCS-A-0570 (hereafter, “Lease Areas”) and along export cable routes to sea-to-shore transition points. The Project will be divided into 2 projects in 2 areas: Project 1 and Project 2 (the combined hereafter referred to as the “Project Area”), over the course of 5 years (January 1, 2025, through December 31, 2029). Of note, the proposed rule for this action named only OCS-A-0499 and the parent company, Atlantic Shores Offshore Wind LLC, with 2 subsidiaries who control each component of the Project ( i.e., Project 1 is controlled by Atlantic Shores Offshore Wind Project 1, LLC, and Project 2 is controlled by Atlantic Shores Offshore Wind Project 2, LLC). However, after publication of the proposed rule, Atlantic Shores Offshore Wind LLC notified NMFS that this rulemaking should be issued for Atlantic Shores Offshore Wind Project 1, LLC (“Project Company 1”). Furthermore, Project Company 1 now maintains ownership of both Project 1 and Project 2, rather than 2 separate subsidiaries for each of Project 1 and Project 2. As a result of this, the applicant requested that the Letter of Authorization (hereafter, “LOA”), if issued, be issued to Project Company 1, which would oversee the construction of both Project 1 and Project 2 (where the latter Project would be operated by “Atlantic Shores Offshore Wind Project 2, LLC” (“Project Company 2”)). These regulations, which allow for the issuance of a LOA for the incidental take of marine mammals during construction-related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat as well as requirements pertaining to the monitoring and reporting of such taking.
DATES:
This rule is effective from January 1, 2025, through December 31, 2029.
FOR FURTHER INFORMATION CONTACT:
Kelsey Potlock, Office of Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Project Company 1's Incidental Take Authorization (hereafter, “ITA”) application, supporting documents, received public comments, and the proposed rulemaking, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT ).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to allow the take of marine mammals incidental to construction of the Project within the Project Area. NMFS received a request from Project Company 1 to incidentally take 16 species of marine mammals, comprising 17 stocks ( i.e., 9 species by Level A harassment and Level B harassment and 7 species by Level B harassment only), incidental to Project Company 1's 5 years of construction activities. No mortality or serious injury is anticipated or allowed in this final rulemaking. Please see the Legal Authority for the Final Action section below for definitions of harassment, serious injury, and incidental take.
Legal Authority for the Final 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.
Allowing for and authorizing 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: (1) prescribe the permissible methods of taking; (2) analyze “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 (hereafter referred to as “mitigation”); and (3) enact requirements pertaining to the monitoring and reporting of such takings.
As noted above, no serious injury or mortality is anticipated or allowed in this final rule. Relevant definitions of MMPA statutory and regulatory terms are included below:
- U.S. Citizens —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 (see 16 U.S.C. 1362(13); 50 CFR 216.3);
- Incidental harassment, incidental taking, and incidental, but not intentional, taking —an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable, or accidental (see 50 CFR 216.103);
- Serious Injury —any injury that will likely result in mortality (see 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 (see 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 (see 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. This final rule establishes permissible methods of taking and mitigation, monitoring, and reporting requirements for Project Company 1's construction activities.
Summary of Major Provisions Within the Final Rule
The major provisions of this final rule are:
- The allowed take of marine mammals by Level A harassment and/or Level B harassment;
- No allowed take of marine mammals by mortality or serious injury;
- The establishment of a seasonal moratorium on pile driving of foundation piles during the months of the highest presence of North Atlantic right whales (Eubalaena glacialis) in the Lease Areas (January 1st through April 30th, annually, and in December unless it is necessary to complete the Project and if it is approved by NMFS to minimize the number of North Atlantic right whale takes);
- A requirement for NOAA Fisheries-approved Protected Species Observers (hereafter, “PSOs”) and Passive Acoustic Monitoring (hereafter, “PAM”) operators (where required) to conduct both visual and passive acoustic monitoring before, during, and after select activities;
- A requirement for training for all Project Company 1 personnel to ensure marine mammal protocols and procedures are understood;
- The establishment and implementation 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 devices during all foundation 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 the PAM Clearance/Shutdown Zone (10 kilometer (km) (6.21 miles (mi));
- 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 pile driving (if feasible, otherwise “powering down” (i.e., reducing the impact hammer's energy) is required) if a North Atlantic right whale is observed at any distance or if any other marine mammals are observed entering their respective shutdown zones;
- A requirement to conduct sound field verification (SFV) during foundation pile driving to measurein situ noise levels for comparison against the modeled results;
- A requirement to implement soft-starts during all impact pile driving using the least amount of hammer energy necessary for installation;
- A requirement to implement ramp-up during the use of non-binary high-resolution geophysical (HRG) marine site characterization survey equipment;
- A requirement to monitor the relevant Right Whale Sightings Advisory System, the United States' Coast Guard's Channel 16, and NMFS' website at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales, 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 to submit frequent regularly scheduled and situational reports including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and SFV monitoring results.
NMFS must withdraw or suspend any LOA 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 216.106(e)). Additionally, failure to comply with the requirements of the LOA may result in civil monetary penalties and knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 CFR 216.106(g)).
Fixing America's Surface Transportation Act (FAST-41)
This Project is covered under Title 41 of the Fixing America's Surface Transportation Act or “FAST-41”. FAST-41 includes a suite of provisions designed to expedite the environmental review for covered infrastructure Projects, including enhanced interagency coordination as well as milestone tracking on the public-facing Permitting Dashboard. FAST-41 also places a 2-year limitations period on any judicial claim that challenges the validity of a Federal agency decision to issue or deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-6(a)(1)(A)).
Atlantic Shores South 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/fast-41-covered-projects/atlantic-shores-south.
Summary of Request
On February 8, 2022, NMFS received a request from Project Company 1 (previously, “Atlantic Shores”) for the promulgation of regulations and the issuance of an associated LOA to take marine mammals incidental to construction activities associated with the Project located offshore of New Jersey in Lease Area OCS-A-0499 (then, a single lease) and associated export cable corridors. Project Company 1's request is for the incidental, but not intentional, take of a small number of 16 marine mammal species comprising 17 stocks ( i.e., 9 species by Level A harassment and Level B harassment and 7 species by Level B harassment only). Neither Project Company 1 nor NMFS expected serious injury and/or mortality to result from the specified activities. Because of this, Project Company 1 did not request, and NMFS has not allowed 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, Project Company 1 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/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
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 Project Company 1's request during a 30-day public comment period. Due to a request from a public group called Save Long Beach Island, Inc. (SaveLBI), 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, an environmental non-governmental organization (hereafter, “eNGO”), and a local citizen group. NMFS has reviewed all submitted material and has taken these into consideration during the drafting of this final rulemaking.
On September 22, 2023, NMFS published a proposed rule in the Federal Register for the Project (88 FR 65430). In the proposed rule, NMFS synthesized all of the information provided by Project Company 1, all best available scientific information and literature relevant to the proposed Project, outlined, in detail, proposed mitigation designed to effect the least practicable adverse impacts on marine mammal species and stocks as well as proposed monitoring and reporting measures, and made preliminary negligible impact and small numbers determinations. The public comment period on the proposed rule was open for 30 days at: https://www.regulations.gov, starting on September 22, 2023 and closing after October 23, 2023. The public comments can be viewed at: https://www.regulations.gov/docket/NOAA-NMFS-2023-0068 . A summary of public comments received during this 30-day period and NMFS responses are described in the Comments and Responses section.
In June 2022, Duke University's Marine Spatial Ecology Laboratory released updated habitat-based marine mammal density models (Roberts et al., 2016a; Roberts et al., 2023). After consideration by NMFS, and because Project Company 1 applied previous marine mammal densities to their analysis in their initially submitted application, Project Company 1 reanalyzed its Project using the new Duke University data and submitted a final Updated Density and Take Estimation Memorandum on March 28, 2023 that included marine mammal densities and take estimates based on these new models. This memorandum can be found on NMFS' website at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. This information was incorporated into the proposed rule (88 FR 65430, September 22, 2023).
During the development of the proposed rule during the months of January and February 2023, Project Company 1 informed NMFS that the proposed activity had been narrowed from what was presented in the adequate and complete MMPA application. Specifically, Project Company 1 committed to installing only monopile wind turbine generator (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 as presented in the adequate and complete MMPA application. Additionally, all offshore substation (OSS) foundations that could be developed across both Projects 1 and 2 continue to maintain build-outs using only jacket foundations. Project Company 1 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/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
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 (hereafter, “UME”). Should a final vessel speed rule or any other MMPA ITA be issued and become effective during the effective period of these regulations, Atlantic Shores will be required to comply with any and all applicable requirements contained within the final rule. Specifically, where measures in any final vessel speed rule are more protective or restrictive than those in this or any other MMPA ITA, Atlantic Shores will be required to comply with the requirements of the vessel speed rule. Alternatively, where measures in this or any other MMPA ITA are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA ITA will remain in place. The responsibility to comply with the applicable requirements of any vessel speed rule will become effective immediately upon the effective date of any final vessel speed rule, and when notice is published on the effective date, NMFS will also notify Project Company 1 if the measures in the speed rule were to supersede any of the measures in the MMPA ITA such that they were no longer required.
On June 26, 2024, Atlantic Shores Offshore Wind LLC provided a written request to NMFS to change the LOA Holder from Atlantic Shores Offshore Wind LLC to Project Company 1, who would oversee and be responsible for the construction of both Project 1 and Project 2. Furthermore, on June 26, 2024, Atlantic Shores Offshore Wind LLC notified NMFS that it had requested that BOEM segregate a portion of Lease Area OCS-A-0499, which would then be assigned to another subsidiary of Atlantic Shores, Project Company 2, as Lease Area OCS-A-0570. As described above, Project Company 1 requested to NMFS that the incidental take regulation (ITR) governing take of marine mammals incidental to activities associated with both phases of the Project and the associated LOA (if issued by NMFS) be issued to Project Company 1, which would oversee Project 1 (constructed and operated by Project Company 1) and Project 2 (constructed and operated by Project Company 2) of the Atlantic Shores South Project. The lease segregation is expected to be completed by BOEM on September 30, 2024, and will not alter the geographic location or size of the area in which either Project 1 or Project 2 would be built, nor will it cause any changes to the construction schedule, planned activities, or take. In short, no changes to the overall Project were requested or are expected, with the exception of the name change. As a result, where appropriate, Project Company 1, the owner of the Project, has henceforth been incorporated as the “applicant” or “LOA Holder” throughout this final rule.
NMFS has previously issued 5 Incidental Harassment Authorizations (hereafter, “IHAs”), including 1 renewal IHA to Project Company 1 authorizing take incidental to high-resolution site characterization surveys offshore New Jersey in the now segregated OCS-A-0499 (to include OCS-A-0570) (see 85 FR 21198, April 16, 2020; 86 FR 21289, April 22, 2021 (renewal); 87 FR 24103, April 22, 2022; 88 FR 38821, June 14, 2023; and 89 FR 20434, March 22, 2024).
To date, Project Company 1 has complied with all the requirements ( e.g., mitigation, monitoring, and reporting) of the previous IHAs and information regarding Project Company 1's 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 at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
Description of the Specified Activities
Overview
Project Company 1 plans to construct and operate two offshore wind projects, Project 1 and Project 2, (collectively, Atlantic Shores South, or the Project) in the Lease Areas. These Lease Areas are located within the New Jersey Wind Energy Area (hereafter, “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 (hereafter, “OWEDA”). Project Company 1 has been given an allowance by the New Jersey Board of Public Utilities through an Offshore Renewable Energy Certificate (hereafter, “OREC”) to construct a facility capable of delivering 1,510 megawatts (MW) of renewable energy to the State of New Jersey through Project 1. Project 1 would be capable of powering approximately 700,000 homes (see https://atlanticshoreswind.com/atlantic-shores-offshore-wind-receives-record-of-decision-for-atlantic-shores-project-1-and-2/ ). Project Company 1 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 Project Company 1, Project Company 2, although Project Company 1 will oversee Project 2'sdevelopment. Collectively, the entire Project is capable of powering over 1 million homes (see https://atlanticshoreswind.com/atlantic-shores-offshore-wind-receives-record-of-decision-for-atlantic-shores-project-1-and-2/ ).
The Project will consist of several different types of permanent offshore infrastructure, including: (1) up to 200 15-MW WTGs and up to 10 OSSs; (2) a single Met Tower; and (3) OSS array cables and interconnector cables. All permanent foundations (WTGs, OSSs, and the single Met Tower) will be installed using impact pile driving only. For the permanent foundations, Project Company 1 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. Schedules 1 and 3 assume monopile foundations for all WTGs and the Met Tower across both Projects 1 and 2. Schedule 2 originally assumed a full jacket foundation buildout for both Projects 1 and 2. However, Project Company 1 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 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.
Project Company 1 would also conduct the following specified activities: (1) temporarily installation and removal, by vibratory pile driving, of up to eight nearshore cofferdams to connect the offshore export cables to onshore facilities; (2) deployment of up to four temporary meteorological and oceanographic (hereafter, “metocean”) buoys (three in Project 1 and one in Project 2); (3) conducting of several types of fishery and ecological monitoring surveys; (4) placement of scour protection, trenching, laying, and burial activities associated with the installation of the export cable route from OSSs to shore-based switching and substations and inter-array cables between turbines; (5) conducting of HRG vessel-based site characterization and assessment surveys using active acoustic sources with frequencies of less than 180 kilohertz (hereafter, “kHz”); (6) transiting within the Project Area and between ports and the Lease Areas to transport crew, supplies, and materials to support pile installation via vessels; and (7) 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 (hereafter, “Atlantic City landfall site”) and in Sea Girt, New Jersey (hereafter, “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 (hereafter, “ UXOs/MECs ”) were planned to occur, nor are they included in this final rulemaking. Therefore, these are not discussed further and no take has been allowed for these activities.
Marine mammals exposed to elevated noise levels during vibratory and impact pile driving and site characterization surveys may be taken by Level A harassment and/or Level B harassment, depending on the specified activity and species.
A detailed description of the specified activities is provided in the proposed rule as published in the Federal Register (88 FR 65430, September 22, 2023). Since the proposed rule was published, Project Company 1 has not modified the specified activities. Please refer to the proposed rule for more information on the description of the specified activities.
Dates and Duration
Project Company 1 anticipates its specified activities to occur throughout all 5 years of the effective period of the regulations, beginning on January 1, 2025 and continuing through December 31, 2029. Project Company 1's anticipated construction schedule can be found in table 1. Project Company 1 has noted that these are the best and conservative estimates for activity durations but that the schedule may shift due to weather, mechanical, or other related delays.
Table 1—Construction Schedule
| Activity | Duration (months) | Expected schedule | 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 | 10 | 2026-2027 | Q1—2026 | Q1—2026 |
| Inter-Array Cable Installation | 14 | 2026-2027 | Q2—2026 | Q3—2026 |
| WTG Installation and Commissioning | 17 | 2026-2027 | Q2—2026 | Q1—2027 |
| Met Buoy Deployments | 36 | 2025-2027 | Q1—2025 | Q1—2025 |
| Scour Protection Pre-Installation | 17 | 2025-2027 | Q2—2025 | Q3—2025 |
| Scour Protection Post-Installation | 17 | 2025-2027 | Q2—2025 | Q3—2025 |
| Site Preparation | 60 | 2025-2029 | Q1—2025 | Q4—2029 |
| 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. | ||||
| These durations are a total across all years the activity may occur. | ||||
| The expected timeframe, based on a modified Schedule 2, is indicative of the most probable duration for each activity; the timeframe could shift and/or extend depending on supply chains, weather, mechanical, or other related delays. | ||||
| Project Company 1 intends to install the temporary cofferdams for a limited duration annually between Labor Day and Memorial Day ( i.e., between early September and late May). However, given limited species presence, the limited amount of work planned for the entire cable landfall activity, and the expected impact is not anticipated to rise above a small subset of take by Level B harassment ( i.e., no take by Level A harassment is expected), this rulemaking does not specifically require time-of-year restrictions on this activity. | ||||
| As described in the proposed rule (88 FR 65430, September 22, 2023), the expected timeframe is dependent on the completion of the preceding Project 1 activities ( i.e., Project 1 inter-array cable installation and WTG installation) and the Project 2 foundation installation schedule. | ||||
| A seasonal pile driving moratorium is in place from January 1st through April 30th, annually, unless pile driving must occur in December to complete the Project and NMFS allows for December pile driving to also occur. | ||||
| Project Company 1 anticipates that WTGs for each Project would be commissioned starting in 2026 and 2027 but turbines would not become operational until 2028 and 2029. |
Table 2—Marine Mammal Species Likely To Occur Near the Project Area That May Be Taken by Project Company 1' s Activities
| Common name | Scientific name | Stock | ESA/ MMPA status; strategic (Y/N) | Stock abundance (CV, N min , most recent abundance survey) | PBR | Annual M/SI |
|---|---|---|---|---|---|---|
| Order Artiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) | ||||||
| Family Balaenidae: | ||||||
| North Atlantic right whale | Eubalaena glacialis | Western Atlantic | E, D, Y | 340 (0, 337, 2021) | 0.7 | 27.2 |
| Family Balaenopteridae (rorquals): | ||||||
| Fin whale | Balaenoptera physalus | Western North Atlantic | E, D, Y | 6,802 (0.24, 5,573, 2021) | 11 | 2.05 |
| 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, 2021) | 170 | 9.4 |
| Sei whale | Balaenoptera borealis | Nova Scotia | E, D, Y | 6,292 (1.02, 3,098, 2021) | 6.2 | 0.6 |
| Superfamily Odontoceti (toothed whales, dolphins, and porpoises) | ||||||
| Family Physeteridae: | ||||||
| Sperm whale | Physeter macrocephalus | North Atlantic | E, D, Y | 5,895 (0.29, 4,639, 2021) | 9.28 | 0.2 |
| Family Delphinidae: | ||||||
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic | -, -, N | 31,506 (0.28, 25,042, 2021) | 250 | 0 |
| Atlantic white-sided dolphin | Lagenorhynchus acutus | Western North Atlantic | -, -, N | 93,233 (0.71, 54,443, 2021) | 544 | 28 |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic—Offshore | -, -, N | 64,587 (0.24, 52,801, 2021) | 507 | 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 | 93,100 (0.56, 59,897, 2021) | 1,452 | 414 |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic | -, -, N | 39,215 (0.30, 30,627, 2021) | 306 | 5.7 |
| Short-finned pilot whale | Globicephala macrorhynchus | Western North Atlantic | -, -, Y | 18,726 (0.33, 14,292, 2021) | 143 | 218 |
| Risso's dolphin | Grampus griseus | Western North Atlantic | -, -, N | 44,067 (0.19, 30,662, 2021) | 307 | 18 |
| Family Phocoenidae (porpoises): | ||||||
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy | -, -, N | 85,765 (0.53, 56,420, 2021) | 649 | 145 |
| Order Carnivora—Superfamily Pinnipedia | ||||||
| Family Phocidae (earless seals): | ||||||
| Gray seal | Halichoerus grypus | Western North Atlantic | -, -, N | 27,911 (0.20, 23,624, 2021) | 1,512 | 4,570 |
| Harbor seal | Phoca vitulina | Western North Atlantic | -, -, N | 61,336 (0.08, 57,637, 2018) | 1,729 | 339 |
| 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 at: https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/ (Committee on Taxonomy (2023)). | ||||||
| Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. | ||||||
| NMFS' marine mammal stock assessment reports can be found online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is the coefficient of variation; N min is the minimum estimate of stock abundance. In some cases, CV is not applicable. | ||||||
| These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined ( e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. | ||||||
| The current SAR includes an estimated population (Nbest = 340) based on sighting history through December 2021 (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports ). In October 2023, NMFS released a technical report identifying that the North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023). | ||||||
| In the proposed rule (88 FR 65430, September 22, 2023), the best available science included a North Atlantic right whale M/SI value of 8.1 which accounted for detected mortality/serious injury. In the final 2022 SAR, released in June 2023, the total annual average observed North Atlantic right whale mortality was updated from 8.1 to 31.2. In the draft 2023 SAR, released on January 29, 2024 (89 FR 5495), the total annual average observed North Atlantic right whale mortality was updated from 31.2 to 27.2. Numbers presented in this table (27.2 total mortality (17.6 of which are attributed to fishery-induced mortality) are 2016-2020 estimated annual means, accounting for both detected and undetected mortality and serious injury (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports ). | ||||||
| Estimates may include sightings of the coastal form. | ||||||
| Key uncertainties exist in the population size estimate for this species, including uncertain separation between short-finned and long-finned pilot whales, small negative bias due to lack of abundance estimate in the region between US and the Newfoundland/Labrador survey area, and uncertainty due to unknown precision and accuracy of the availability bias correction factor that was applied. | ||||||
| A key uncertainty exists in the population size estimate for this species based upon the assumption that the logistic regression model accurately represents the relative distribution of short-finned vs. long-finned pilot whales. | ||||||
| NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada) is approximately 394,311. The annual M/SI value given is for the total stock. |
Table 3—Marine Mammal Hearing Groups (NMFS, 2018)
Table 4—Onset of Permanent Threshold Shift (PTS) (NMFS, 2018)
Table 5—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 |
Table 6—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 |
Table 7—Mean Monthly and Annual Marine Mammal Density Estimates (Animals/100 km ) for Impact Pile Driving Considering a 3.9- km Buffer Around the Lease Areas
Table 8—Maximum Monthly Densities (Animals/100 km ) for September Through May Used To Analyze Cofferdam Activities
Table 9—Maximum Seasonal Densities Used To Analyze the Annual HRG Surveys for the Project Area
Table 10—Average Marine Mammal Group Sizes Used in Take Estimate Calculations
| Marine mammal species | Mean group size |
|---|---|
| North Atlantic right whale * | 3.8 |
| Fin whale * | 1.3 |
| Humpback whale | 1.8 |
| Minke whale | 1.1 |
| Sei whale * | 2.1 |
| Sperm whale * | 1.8 |
| Atlantic spotted dolphin | 100 |
| Atlantic white-sided dolphin | 21.4 |
| Common dolphin | 1.55 |
| Bottlenose dolphin, coastal | 13.1 |
| Bottlenose dolphin, offshore | 30 |
| Long-finned pilot whale | 20 |
| Short-finned pilot whale | 6.0 |
| Risso's dolphin | 20 |
| Harbor porpoise | 1.3 |
| Gray seal | 1.2 |
| Harbor seal | 1.2 |
| Note: * denotes species listed under the Endangered Species Act. | |
| These 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. | |
| The mean group size for common dolphins was based on the daily sighting rate of that species during HRG surveys. | |
| These group sizes are from the OBIS data repository (OBIS, 2022). |
Table 11—Exposure Ranges (ER 95 % ) 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 Post-Piled) for Jackets, Assuming 10 d B Attenuation
Table 12—Acoustic Ranges (R 95 % ), in Kilometers, to PTS (L pk ) Thresholds During Impact Pile Driving, Assuming 10 d B Attenuation
| Pile type | Installation method | Modeled source location | Hammer energy (kJ) | Activity duration (minutes) | Low-frequency cetacean | Mid-frequency cetacean | High-frequency cetaceans | Phocids |
|---|---|---|---|---|---|---|---|---|
| 219 L p, pk | 230 L p, pk | 202 L p, pk | 218 L p, pk | |||||
| 12-m Monopile | Impact hammer | L01 | 4,400 | 540 | 0.08 | 0.01 | 0.72 | 0.09 |
| L02 | 4,400 | 0.06 | 0.01 | 0.74 | 0.07 | |||
| 15-m Monopile | Impact hammer | L01 | 4,400 | 540 | 0.08 | 0.01 | 0.78 | 0.09 |
| L02 | 4,400 | 0.07 | 0.01 | 0.78 | 0.08 | |||
| 5-m Pin Pile | Impact hammer | L01 | 2,500 | 180 | 0.02 | 0.00 | 0.28 | 0.03 |
| L02 | 2,500 | 0.02 | 0.00 | 0.28 | 0.03 | |||
| 5-m Pin Pile (2 dB shift for post-piled) | Impact hammer | L01 | 2,500 | 180 | 0.01 | 0.00 | 0.23 | 0.03 |
| L02 | 2,500 | 0.01 | 0.01 | 0.14 | 0.04 | |||
| Note: L p,pk = peak sound pressure (dB re 1 μPa). |
Table 13—Flat Acoustic Ranges (Flat R 95 % ), in Kilometers, to Level B Harassment (SPL, 170 L P ) Threshold During Impact Pile Driving, Not Assuming 10 d B Attenuation
Table 14—Project 1 and Project 2' s Buildout Schedule Presented Annually and Over Two-Years
Table 15—Annual Total Exposure Estimates and Allowable Takes by Level A Harassment and Level B Harassment for Foundation Installation Activities for Project 1, Assuming Schedule 2
Table 16—Annual Total Exposure Estimates and Allowable Takes by Level A Harassment and Level B Harassment for Foundation Installation Activities for Project 2, Assuming Schedule 2
| Marine mammal species | ITA Request Year (2026) | ITA Request Year (2027) | ||||||
|---|---|---|---|---|---|---|---|---|
| Estimated exposures | Allowed takes | Estimated exposures | Allowed takes | |||||
| 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 |
| 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. |
Table 17—Summed Annual Exposure Estimates and Allowable 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
Table 18—Acoustic Ranges (R 95 % ) in Meters to the Level A Harassment (PTS) and Level B Harassment Thresholds From Vibratory Pile Driving During Temporary Cofferdam Installation and Removal
Table 19—The Maximum Predicted Level B Harassment Exposures, and Takes That Are Reasonably Expected To Occur by Level B Harassment Allowed for Cofferdam Activities, Including a Group Size Adjustment
Table 20—Distances Corresponding to the Level B Harassment Threshold for HRG Equipment Operating Below 180 k H z
Table 21—Calculated Exposures, and Allowed Take, and 5-year Allowed Take by Level B Harassment Only During Annual HRG Surveys for the Atlantic Shores South Survey Area
| Marine mammal species | Stock | Calculated exposures | Annual allowed take by Level B harassment | Total 5-year allowed take by Level B harassment |
|---|---|---|---|---|
| North Atlantic right whale * | Western Atlantic | 1 | 1 | 5 |
| Fin whale * | Western North Atlantic | 2 | 2 | 10 |
| Humpback whale | Gulf of Maine | 1 | 1 | 5 |
| Minke whale | Canadian Eastern Coastal | 4 | 4 | 20 |
| Sei whale * | Nova Scotia | 1 | 2 | 10 |
| Sperm whale * | Western North Atlantic | 1 | 1 | 5 |
| Atlantic spotted dolphin | Western North Atlantic | 1 | 100 | 500 |
| Atlantic white-sided dolphin | Western North Atlantic | 3 | 3 | 15 |
| Bottlenose dolphin | Northern Migratory Coastal | 113 | 113 | 565 |
| Western North Atlantic—Offshore | 225 | 225 | 1,125 | |
| Common dolphin | Western North Atlantic | 14 | 93 | 465 |
| Long-finned pilot whale | Western North Atlantic | 1 | 20 | 100 |
| Short-finned pilot whale | Western North Atlantic | 1 | 6 | 30 |
| Risso's dolphin | Western North Atlantic | 1 | 30 | 150 |
| Harbor porpoise | Gulf of Maine/Bay of Fundy | 24 | 24 | 120 |
| Gray seal | Western North Atlantic | 41 | 41 | 205 |
| Harbor seal | Western North Atlantic | 91 | 91 | 455 |
| Note: * denotes species listed under the Endangered Species Act. | ||||
| The survey area accounts for waters within and around the Lease Areas and the export cable routes. | ||||
| Project Company 1 is requesting 1 additional take of sei whales, for a total of two, based on the average group size found in NOAA (2022) and due to an encounter during their 2020 surveys where a single sei whale was observed. | ||||
| This adjustment was made in alignment with take that was previously authorized to Project Company 1 in an issued IHA (88 FR 38821, June 14, 2023). As the survey area for this final rulemaking overlaps the survey area for that IHA the same group size assumptions were used in this analysis. | ||||
| This adjustment was made in alignment with the take that was previously authorized to Project Company 1 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). | ||||
| NMFS added this column to provide more clarity regarding the total number of allowed takes over the entire 5-year effective period from HRG surveys. |
Table 22—Estimated Annual Takes, by Level A Harassment and Level B Harassment, for the Project Over 5 Years
| Marine mammal species | Stock | NMFS stock abundance | 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 * | Western Atlantic | 340 | 0 | 5 | 0 | 13 | 0 | 5 | 0 | 1 | 0 | 1 |
| Fin whale * | Western North Atlantic | 6,802 | 0 | 4 | 4 | 18 | 4 | 12 | 0 | 2 | 0 | 2 |
| Humpback whale | Gulf of Maine | 1,396 | 0 | 3 | 4 | 17 | 4 | 11 | 0 | 1 | 0 | 1 |
| Minke whale | Canadian Eastern Coastal | 21,968 | 0 | 6 | 12 | 161 | 17 | 146 | 0 | 4 | 0 | 4 |
| Sei whale * | Nova Scotia | 6,292 | 0 | 5 | 2 | 11 | 1 | 5 | 0 | 2 | 0 | 2 |
| Sperm whale * | Western North Atlantic | 5,895 | 0 | 3 | 0 | 7 | 0 | 3 | 0 | 1 | 0 | 1 |
| Atlantic spotted dolphin | Western North Atlantic | 31,506 | 0 | 200 | 0 | 400 | 0 | 200 | 0 | 100 | 0 | 100 |
| Atlantic white-sided dolphin | Western North Atlantic | 93,233 | 0 | 25 | 1 | 207 | 1 | 175 | 0 | 3 | 0 | 3 |
| Bottlenose dolphin | Western North Atlantic—Offshore | 64,587 | 0 | 225 | 0 | 3,836 | 0 | 3,642 | 0 | 225 | 0 | 225 |
| Northern Migratory Coastal | 6,639 | 0 | 1.949 | 0 | 786 | 0 | 126 | 0 | 113 | 0 | 113 | |
| Common dolphin | Western North Atlantic | 93,100 | 0 | 100 | 0 | 370 | 0 | 250 | 0 | 93 | 0 | 93 |
| Long-finned pilot whale | Western North Atlantic | 39,215 | 0 | 26 | 0 | 66 | 0 | 40 | 0 | 20 | 0 | 20 |
| Short-finned pilot whale | Western North Atlantic | 18,726 | 0 | 8 | 0 | 20 | 0 | 12 | 0 | 6 | 0 | 6 |
| Risso's dolphin | Western North Atlantic | 44,067 | 0 | 50 | 2 | 110 | 1 | 60 | 0 | 30 | 0 | 30 |
| Harbor porpoise | Gulf of Maine/Bay of Fundy | 85,765 | 0 | 35 | 8 | 191 | 13 | 64 | 0 | 24 | 0 | 24 |
| Gray seal | Western North Atlantic | 27,911 | 0 | 155 | 2 | 323 | 2 | 136 | 0 | 41 | 0 | 41 |
| Harbor seal | Western North Atlantic | 61,336 | 0 | 345 | 4 | 738 | 8 | 305 | 0 | 91 | 0 | 91 |
| Note: * denotes species listed under the Endangered Species Act. | ||||||||||||
| In the proposed rule (88 FR 65430, September 22, 2023), NMFS utilized the 2022 final SARs (Hayes et al., 2023); however, in this final rule, NMFS utilized the 2023 draft SARs ( https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports ) were used for the stock abundances. | ||||||||||||
| The take estimate by Level B harassment for foundation installation via impact pile driving was rounded up to 1 average group size; impact pile driving is scheduled to occur during Year 2 and Year 3 of the proposed rulemaking. While the foundation installation schedule (table 14) counted the total number of WTGs plus 6 WTGs in the Overlap Area for both Project 1 and Project 2, the take by Level A harassment or Level B harassment requested (table 17) is based on those 6 WTGs occurring under Project 2; no double counting of take occurred. | ||||||||||||
| The take estimate by Level B harassment for HRG surveys was rounded up to 1 group size; HRG surveys are planned to occur during the entire 5-year effective period of the rulemaking. | ||||||||||||
| The take estimate by Level B harassment for temporary cofferdams via vibratory pile driving was rounded up to 1 group size; temporary cofferdam installation and removal is expected to occur during Year 1 and 2 of the rulemaking. | ||||||||||||
| The 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. |
Table 23—Total Takes Allowed for the Project Across the 5-Year Effective Period of the Rule
[By Level A harassment and Level B harassment]
| Marine mammal species | Stock | NMFS stock abundance | Allowed Level A harassment | Allowed Level B harassment | 5-Year total allowed take |
|---|---|---|---|---|---|
| North Atlantic right whale * | Western Atlantic | 340 | 0 | 25 | 25 |
| Fin whale * | Western North Atlantic | 6,802 | 8 | 38 | 46 |
| Humpback whale | Gulf of Maine | 1,396 | 8 | 33 | 41 |
| Minke whale | Canadian Eastern Coastal | 21,968 | 29 | 321 | 360 |
| Sei whale * | Nova Scotia | 6,292 | 3 | 25 | 28 |
| Sperm whale * | Western North Atlantic | 5,895 | 0 | 15 | 15 |
| Atlantic spotted dolphin | Western North Atlantic | 31,506 | 0 | 1,000 | 1,000 |
| Atlantic white-sided dolphin | Western North Atlantic | 93,233 | 2 | 413 | 415 |
| Bottlenose dolphin | Western North Atlantic—Offshore | 64,587 | 0 | 8,153 | 8,153 |
| Northern Migratory Coastal | 6,639 | 0 | 3,087 | 3,087 | |
| Common dolphin | Western North Atlantic | 93,100 | 0 | 906 | 906 |
| Long-finned pilot whale | Western North Atlantic | 39,215 | 0 | 172 | 172 |
| Short-finned pilot whale | Western North Atlantic | 18,726 | 0 | 52 | 52 |
| Risso's dolphin | Western North Atlantic | 44,067 | 3 | 280 | 283 |
| Harbor porpoise | Gulf of Maine/Bay of Fundy | 85,765 | 21 | 338 | 359 |
| Gray seal | Western North Atlantic | 27,911 | 4 | 696 | 700 |
| Harbor seal | Western North Atlantic | 61,336 | 12 | 1,570 | 1,582 |
| Note: * denotes species listed under the Endangered Species Act. | |||||
| In the proposed rule (88 FR 65430, September 22, 2023), NMFS utilized the 2022 final SARs (Hayes et al., 2023); however, in this final rule, NMFS utilized the 2023 draft SARs ( https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports ) were used for the stock abundances. | |||||
| Within the proposed rule (88 FR 65430, September 22, 2023), NMFS had initially used the maximum take that is reasonably expected to occur for each of Project 1 and Project 2's buildout; however, given both Projects would be constructed, this has been corrected to sum the values. | |||||
| During the drafting of the proposed rule (88 FR 65430, September 22, 2023), the total take by Level A harassment and Level B harassment was inadvertently flipped between these 2 species. NMFS has fixed that error for this final rule. |
Table 24—Maximum Number of Takes Allowed for the Project in Any One Year Under the Rule
[By Level A harassment and Level B harassment]
| Marine mammal species | Stock | NMFS stock abundance | Maximum annual Level A harassment | Maximum annual Level B harassment | Maximum annual take in any one year (maximum Level A harassment + maximum Level B harassment) | Total percent stock taken in any one year based on maximum annual take |
|---|---|---|---|---|---|---|
| North Atlantic right whale * | Western Atlantic | 340 | 0 | 13 | 13 | 3.82 |
| Fin whale * | Western North Atlantic | 6,802 | 4 | 18 | 22 | 0.32 |
| Humpback whale | Gulf of Maine | 1,396 | 4 | 17 | 21 | 1.50 |
| Minke whale | Canadian Eastern Coastal | 21,968 | 17 | 161 | 178 | 0.81 |
| Sei whale * | Nova Scotia | 6,292 | 2 | 11 | 13 | 0.21 |
| Sperm whale * | Western North Atlantic | 5,895 | 0 | 7 | 7 | 0.12 |
| Atlantic spotted dolphin | Western North Atlantic | 31,506 | 0 | 400 | 400 | 1.27 |
| Atlantic white-sided dolphin | Western North Atlantic | 93,233 | 1 | 207 | 208 | 0.22 |
| Bottlenose dolphin | Western North Atlantic—Offshore | 64,587 | 0 | 3,836 | 3,836 | 5.94 |
| Northern Migratory Coastal | 6,639 | 0 | 1,949 | 1,949 | 29.36 | |
| Common dolphin | Western North Atlantic | 93,100 | 0 | 370 | 370 | 0.40 |
| Long-finned pilot whale | Western North Atlantic | 39,215 | 0 | 66 | 66 | 0.17 |
| Short-finned pilot whale | Western North Atlantic | 18,726 | 0 | 20 | 20 | 0.11 |
| Risso's dolphin | Western North Atlantic | 44,067 | 2 | 110 | 112 | 0.25 |
| Harbor porpoise | Gulf of Maine/Bay of Fundy | 85,765 | 13 | 191 | 204 | 0.24 |
| Gray seal | Western North Atlantic | 27,911 | 2 | 323 | 325 | 1.16 |
| Harbor seal | Western North Atlantic | 61,336 | 8 | 738 | 746 | 1.22 |
| Note: * denotes species listed under the Endangered Species Act. | ||||||
| In the proposed rule (88 FR 65430, September 22, 2023), NMFS utilized the 2022 final SARs (Hayes et al., 2023); however, in this final rule, NMFS utilized the 2023 draft SARs ( https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports ) were used for the stock abundances. | ||||||
| The percentages presented here are simplistic, assuming that each take is of a different individual; however, that is a conservative assessment. |
Table 25—Clearance, Shutdown, and Minimum Visibility Zones, in Meters ( m ), Inclusive of 10 d B of Sound Attenuation
Table 26—Distances to Mitigation Zones During Nearshore Cable Landfall Activities
[Temporary cofferdams]
Table 27—Distances to Mitigation Zones During HRG Surveys
Table 1 to Paragraph ( d )
| Marine mammal species | Scientific name | Stock |
|---|---|---|
| North Atlantic right whale | Eubalaena glacialis | Western North 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. |