[Federal Register Volume 85, Number 77 (Tuesday, April 21, 2020)]
[Notices]
[Pages 22139-22150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08408]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XA134]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Alaska Marine Lines Lutak Dock
Project, Haines, Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Alaska Marine Lines, Inc. (AML) to incidentally harass, by Level A and
Level B harassment, marine mammals during pile driving activities
associated with the Lutak Dock Project in Haines, Alaska.
DATES: This authorization is effective from June 15, 2020 through June
14, 2021.
FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., Office of
Protected Resources, NMFS, (301) 427-8401. Electronic copies of the
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/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
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 and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.
Summary of Request
On 9 July 2019, NMFS received a request from AML for an IHA to take
marine mammals incidental to Lutak Dock project in Haines, Alaska. The
application was deemed adequate and complete on October 23, 2019. AML's
request is for take of seven species of marine mammals by Level B
harassment and/or Level A harassment. Neither AML nor NMFS expects
serious injury or mortality to result from this activity and,
therefore, an IHA is appropriate.
Description of Specified Activity
The project consists of the demolition, re-construction, and
improvement of a commercial barge cargo dock in Lutak Inlet near
Haines, Alaska adjacent to the Haines Ferry Terminal. The project
includes the following in-water components: Removal (by pulling or
cutting off at the mudline or using a vibratory hammer as a last
resort) of 12 steel pipe piles (16 inch diameter) of two berthing
dolphins associated with the existing steel cargo bridge; fill 4,000
yards (3058 cubic meters) of gravel and 1,000 yards (765 cubic meters)
of riprap to construct a causeway below the new dock; installing below
mean high water (MHW) a 46-foot (14 m) long by 15-foot (4.6 m) wide
steel float; installing below MHW (using vibratory or impact pile
driving or down-the-hole (DTH) drilling) four 24-inch diameter steel
pipe piles to construct two float strut dolphins, six 36-inch diameter
steel pipe piles to construct two breasting dolphins; and construction
of a 40-foot (12 m) wide by 40-foot (12 m) long, pile supported (three
30-inch diameter steel pipe piles), concrete abutment within the
causeway to support a 120-foot long (36.6 m) by 24-foot (7.3 m) wide
steel bridge over navigable waters.
The pile driving/removal or DTH drilling can result in take of
marine mammals from sound in the water which results in behavioral
harassment or auditory injury. The footprint of the project is
approximately one square mile (2.6 square km) around the project site.
The project will take no more than 8 days of pile-driving/removal or
DTH drilling.
A detailed description of the planned project is provided in the
Federal Register notice for the proposed IHA (84 FR 65117; November 26,
2019). Since that time, no changes have been made to the planned pile
driving activities. Therefore, a detailed description is not provided
here. Please refer to that Federal Register notice for the description
of the specific activity.
Comments and Responses
A notice of NMFS's proposal to issue an IHA to AML was published in
the Federal Register on November 26, 2019 (84 FR 65117). That notice
described, in detail, AML's activity, the marine mammal species that
may be affected by
[[Page 22140]]
the activity, and the anticipated effects on marine mammals. During the
30-day public comment period, NMFS received no public comments. A
comment letter from the Marine Mammal Commission (Commission) was
received outside of the public comment process pursuant to the
Commission's authority to recommend steps it deems necessary or
desirable to protect and conserve marine mammals (16 U.S. C.
1402.202(a)). We are obligated to respond to the Commission's
recommendations within 120 days, and we do so below.
Comment 1: The Commission recommends that NMFS refrain from issuing
renewals for any authorization and instead use its abbreviated Federal
Register notice process.
Response: NMFS appreciates the streamlining achieved by the use of
abbreviated Federal Register notices and intends to continue using them
for proposed IHAs that include minor changes from previously issued
IHAs, but which do not satisfy the renewal requirements. However, our
method for issuing renewals meets statutory requirements and maximizes
efficiency, and we plan to continue considering requests for renewals.
Comment 2: The Commission recommends that NMFS stipulate that a
renewal is a one-time opportunity in all Federal Register notices
requesting comments on the possibility of a renewal, on its web page
detailing the renewal process, and in all draft and final
authorizations that include a term and condition for a renewal.
Response: NMFS thanks the Commission for its recommendation.
Currently, Federal Register notices announcing proposed IHAs and the
potential for a Renewal state, in the SUMMARY section, ``NMFS is also
requesting comments on a possible one-year renewal that could be issued
under certain circumstances and if all requirements are met.'' Further,
no notice for any additional Renewal is included in the Federal
Register Notice for proposed Renewals, so the current process already
ensures that only one Renewal will be issued. We have revised the
website to clarify some of the language around Renewal IHAs.
Comment 3: The Commission recommends that NMFS finish reviewing and
finalize its recommended proxy source levels for both impact and
vibratory installation of the various pile types and sizes.
Response: NMFS thanks the Commission for its recommendation.
Comment 4: The Commission recommends that NMFS require all
applicants that propose to use a DTH hammer to install piles, conduct
in-situ measurements and adjust the Level A and B harassment zones
accordingly. They further recommend that we re-estimate the Level A
harassment zones for DTH drilling based on source levels provided
either by Reyff and Heyvaert (2019) or Denes et al. (2019) and NMFS's
Level A harassment thresholds for impulsive sources and (2) increase
the numbers of Level A harassment takes accordingly.
Response: We appreciate the Commission's concern about the rise of
DTH drilling. We have received a number of in-situ measurements from
prior projects, including Reyff and Heyvaert (2019) and Denes et al.
(2019), and are currently evaluating those data to determine next steps
to ensure marine mammals are adequately protected. We direct the
Commission and other readers to our recent response to a similar
Commission comment, which can be found at 85 FR 673 (January 7, 2020).
Comment 5: The Commission recommends that NMFS include in the
Federal Register notice relevant site-specific information for harbor
and Dall's porpoises, pertinent information regarding subsistence use
of the various marine mammal species, whether AML's activities overlap
in time and space with known hunting activities, whether the local
Native Alaskan communities that hunt marine mammals were contacted,
whether any concerns were conveyed, whether additional mitigation
measures are warranted, and the requirement to report unauthorized
taking (including injured and dead marine mammals) to the Alaska
Regional Stranding Coordinator.
Response: The Commission did not note any specific information
lacking for harbor and Dall's porpoises that would affect the proposed
authorization so we have not added any additional information to this
notice. We note that the proposed IHA referred readers to the Stock
Assessment Reports and other information on these and the other species
on our website. AML contacted local Native Alaskan communities and
updated the subsistence use section of their application accordingly,
and we include this new information below. We note the appropriate
local Alaska Regional contact for unauthorized take was in our proposed
IHA.
Comment 6: The Commission recommends that NMFS include in the
notice and final authorization, if issued, the requirements to
extrapolate Level A harassment takes to unobserved portions of the
Level A harassment zone, similar to Level B harassment takes and to
keep a running tally of total Level A and B harassment takes based on
both observed and extrapolated takes.
Response: We clarify in this notice and final authorization the
requirement for AML to extrapolate Level A harassment takes to
unobserved portions of the Level A harassment zone, if necessary. With
regard to keeping a running tally of total Level A and B harassment
takes, we agree that the applicant must ensure they do not exceed
authorized takes.
Comment 7: The Commission recommends that NMFS re-estimate the
Level B harassment zone for impact installation of 36-in piles based on
the source level of 193 dB re 1 [mu]Pa at 10 m as provided in Caltrans
(2015) and consistent with the other source level metrics.
Response: AML chose to use the more conservative source level of
194 dB re 1 [mu]Pa at 10 m as provided in Denes et al. (2016) because
this reference is based on local conditions more similar to the current
project. We support the use of the more conservative source level of
Denes (2016).
Changes From the Proposed IHA to Final IHA
A new paper was published that provided updated estimates of the
proportion of western Distinct Population Segment (DPS) Steller sea
lions occurring in different parts of the range of the eastern DPS of
Steller sea lions in Alaska (Hastings et al., 2020). For the area of
this project the estimate declined from 2 percent to 1.4 percent. We
used the updated 1.4 percent value to calculate the share of take for
the two DPSs. The final take numbers are thus 1291 for the eastern DPS
and 18 for the western DPS.
New information also became available for the abundance of humpback
whales in the area. We used that to calculate density and estimate
take, though in the end, take did not change from the proposed
authorization.
Minor clarifications have been made to language regarding pile
removal methods in the Description of Specified Activity section. In
the Estimated Take section we clarified the use of Denes et al. (2016)
to calculate the Level B harassment zones for impact pile driving as
this reference is based on local conditions more similar to the current
project and is a more conservative estimate. We also clarified in that
section the method for determining a combined source level for
vibratory and DTH drilling. As a result of the ESA Section 7 Biological
Opinion the mitigation requirement not to recommence pile driving is
extended to
[[Page 22141]]
30 minutes for ESA listed species and there are additional reporting
requirements for take of ESA listed species. We clarify in the
Monitoring and Reporting section of this notice and final authorization
the requirement for AML to extrapolate Level A harassment takes to
unobserved portions of the Level A harassment zone, if necessary.
Additional details on subsistence use and consultations with local
Native Alaskan communities are provided in the Effects of Specified
Activities on Subsistence Uses of Marine Mammals section of their
application accordingly and we included those herein.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (https://www.fisheries.noaa.gov/find-species).
Table 1 lists all species with expected potential for occurrence in
Haines, Alaska and summarizes information related to the population or
stock, including regulatory status under the MMPA and ESA and potential
biological removal (PBR), where known. For taxonomy, we follow
Committee on Taxonomy (2019). PBR is defined by the MMPA as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population (as described in NMFS's
SARs). While no mortality is anticipated or authorized here, PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's 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. Alaska SARs (e.g., Muto et al., 2019). All values presented
in Table 1 are the most recent available at the time of publication and
are available in the draft 2019 SARs (Muto et al., 2019).
Table 1--Marine Mammals Potentially Present in the Vicinity of the Study Areas
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Stock abundance (CV,
Common name Scientific name Stock ESA/MMPA status; Nmin, most recent PBR Annual M/
strategic (Y/N) \1\ abundance survey) \2\ SI \3\
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Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Physeteridae:
Sperm whale.................... Physeter macrocephalus North Pacific......... -; N N/A (see SAR, N/A, See SAR 4.4
2015), see text.
Family Balaenopteridae (rorquals):
Humpback Whale................. Megaptera novaeangliae Central North Pacific. -;N (Hawaii DPS) 10,103 (0.3, 7,890, 83 25
2006).
Central North Pacific. T,D,Y (Mexico DPS) 3,264................ N/A N/A
Minke whale \4\................ Balaenoptera Alaska................ -; N N/A, see text........ N/A 0
acutorostrata.
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
Killer whale \5\............... Orcinus orca.......... Alaska Resident....... 2,347................ 24 1
Northern Resident..... -; Y 261.................. 1.96 0
West Coast transient.. 243.................. 2.4 0
Family Phocoenidae (porpoises):
Dall's porpoise \4\............ Phocoenoides dalli.... Alaska................ -; N 83,400 (0.097, N/A, N/A 38
1991).
Harbor porpoise................ Phocoena phocoena..... Southeast Alaska...... -; Y 975 (2012)........... 8.9 34
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
sea lions):
California sea lion............ Zalophus californianus U.S................... -; N 257,606 (N/A, 14,011 >320
233,515, 2014).
Steller sea lion............... Eumetopias jubatus.... Eastern U.S........... -; N 41,638 (n/a; 41,638; 2,498 108
2015).
Steller sea lion............... Eumetopias jubatus.... Western U.S........... E,D,Y 54,268 (see SAR, 326 247
54,267, 2017).
Family Phocidae (earless seals):
Harbor seal.................... Phoca vitulina Lynn Canal/Stephens -; N 9,478 (see SAR, 155 50
richardii. Passage. 8,605, 2011).
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\1\ 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.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ 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.
\4\ The most recent abundance estimate is >8 years old, there is no official current estimate of abundance available for this stock.
[[Page 22142]]
\5\ NMFS has preliminary genetic information on killer whales in Alaska which indicates that the current stock structure of killer whales in Alaska
needs to be reassessed. NMFS is evaluating the new genetic information. A complete revision of the killer whale stock assessments will be postponed
until the stock structure evaluation is completed and any new stocks are identified'' (Muto, Helker et al. 2018). For the purposes of this IHA
application, the existing stocks are used to estimate potential takes.
All species that could potentially occur in the planned project
area are included in Table 1. As described below, all 7 species (with
10 managed stocks) temporally and spatially co-occur with the activity
to the degree that take is reasonably likely to occur, and we have
authorized it.
A detailed description of the of the species likely to be affected
by AML's planned project, including brief introductions to the species
and relevant stocks as well as available information regarding
population trends and threats, and information regarding local
occurrence, were provided in the Federal Register notice for the
proposed IHA (84 FR 65117; November 26, 2019); since that time, we are
not aware of any changes in the status of these species and stocks;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for
generalized species accounts.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from pile installation and removal
activities for the Lutak Dock Project have the potential to result in
behavioral harassment of marine mammals in the vicinity of the action
area. The Federal Register notice for the proposed IHA (84 FR 65117;
November 26, 2019) included a discussion of the effects of
anthropogenic noise on marine mammals, therefore that information is
not repeated here; please refer to the Federal Register notice (84 FR
65117; November 26, 2019) for that information.
The main impact associated with the Lutak Dock Project would be
temporarily elevated sound levels and the associated direct effects on
marine mammals. The project would not result in permanent impacts to
habitats used directly by marine mammals, such as haulout sites, but
may have potential short-term impacts to food sources such as forage
fish, and minor impacts to the immediate substrate during installation
and removal of piles during the planned project. These potential
effects are discussed in detail in the Federal Register notice for the
proposed IHA (84 FR 65117; November 26, 2019), therefore that
information is not repeated here; please refer to that Federal Register
notice for that information.
Estimated Take
This section provides an estimate of the number of incidental takes
for authorization through this IHA, 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 (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) 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 use
of the acoustic source (i.e., vibratory or impact pile driving or DTH
drilling) has the potential to result in disruption of behavioral
patterns for individual marine mammals. There is also some potential
for auditory injury (Level A harassment) to result, primarily for
mysticetes, high frequency species and pinnipeds because predicted
auditory injury zones are larger than for mid-frequency species.
Auditory injury is unlikely to occur for mid-frequency species. The
mitigation and monitoring measures are expected to minimize the
severity of the taking to the extent practicable.
As described previously, no mortality is authorized for this
activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes 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)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of 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 take estimate.
Acoustic Thresholds
Using the best available science, NMFS has developed acoustic
thresholds that identify the received level of underwater sound above
which exposed marine mammals would be reasonably expected to be
behaviorally harassed (equated to Level B harassment) or to incur
Permanent Threshold Shift (PTS) of some degree (equated to Level A
harassment).
Level B harassment for non-explosive sources--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 (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed in a manner we consider Level B
harassment when exposed to underwater anthropogenic noise above
received levels of 120 dB re 1 microPascal ([mu]Pa) (root mean square
(rms)) for continuous (e.g., vibratory pile-driving, drilling) and
above 160 dB re 1 [mu]Pa (rms) for non-explosive impulsive (e.g.,
impact pile driving) or intermittent (e.g., scientific sonar) sources.
AML's planned activity includes the use of continuous (vibratory
pile-driving, drilling) and impulsive (impact pile-driving) sources,
and therefore the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are
applicable.
Level A harassment for non-explosive sources--NMFS' Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual
criteria to assess auditory injury
[[Page 22143]]
(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). AML's activity
includes the use of impulsive (impact pile-driving) sources.
These thresholds are provided in Table 2. The references, analysis,
and methodology used in the development of the thresholds are described
in NMFS 2018 Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
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PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
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Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
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* Dual metric acoustic 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 should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The 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 acoustic thresholds will be
exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
Even though multiple pile sizes will be used, to be conservative
for calculation of take, we assumed all piles would be the largest size
pile (36 inch). It is also likely that impact and vibratory pile
driving will occur on the same day, so we calculate Level B take
assuming the larger vibratory disturbance isopleths for every day of
activity. For vibratory pile driving we assumed a source level of 175
dB (RMS SPL) based on Caltrans (2015) with a maximum of five piles per
day and 60 minutes per pile. For DTH drilling we used a source level of
171 dB (RMS SPL); this is derived from Denes et al. (2016), where we
used the more conservative 90 percent median value. We assumed no more
than two piles per day with DTH drilling as the duration per pile was
assumed to be 3 hours. For impact pile driving activities we used
source levels of 210 dB (PK SPL) or 183 dB (single strike SEL) based on
Caltrans (2015) and 194 dB (RMS SPL) from Denes et al. (2016), to be
conservative. We assumed no more than five piles per day and 700
strikes per pile. In all cases we used a propagation loss coefficient
of 15 logR as most appropriate for these stationary, in-shore sources.
Because DTH would only be used in combination with vibratory pile
driving, we also used a combined scenario that assumed 4 hours of
vibratory pile driving plus 6 hours of DTH drilling in a single day.
For this scenario the source level was calculated by converting the
source levels from dB before averaging and then re-converting the
result to dB again. This is thus not a direct arithmetic average of all
the hourly levels in decibels and could be described as the energy
equivalent average level over 10 hours of activity.
When the NMFS Technical Guidance (2016) was published, in
recognition of the fact that ensonified area/volume could be more
technically challenging to predict because of the duration component in
the new thresholds, we developed a User Spreadsheet that includes tools
to help predict a simple isopleth that can be used in conjunction with
marine mammal density or occurrence to help predict takes. We note that
because of some of the assumptions included in the methods used for
these tools, we anticipate that isopleths produced are typically going
to be overestimates of some degree, which may result in some degree of
overestimate of Level A harassment take. However, these tools offer the
best way to predict appropriate isopleths when more sophisticated 3D
modeling methods are not available, and NMFS continues to develop ways
to quantitatively refine these tools, and will qualitatively address
the output where appropriate. For stationary sources, such as pile
driving and drilling in this project, NMFS User Spreadsheet predicts
the distance at which, if a marine mammal remained at that distance the
whole duration of the activity, it would incur PTS. Inputs used in the
User Spreadsheet, and the resulting isopleths are reported below.
NMFS User spreadsheet input scenarios for vibratory pile driving,
impact pile driving, and the combined DTH drilling and vibratory pile
driving scenario discussed above are shown in Table 3. These input
scenarios lead to PTS isopleth distances (Level A thresholds) of
anywhere from 7 to 2,742 meters, depending on the marine mammal group
and scenario (Table 4). Table 4 also shows the daily ensonified areas
(Level A harassment zones) to the PTS threshold distances for each
scenario and marine mammal group; these vary from just a few square
meters to 8.736 km\2\.
[[Page 22144]]
Table 3--NMFS User Spreadsheet Inputs
----------------------------------------------------------------------------------------------------------------
User spreadsheet input
-----------------------------------------------------------------------------------------------------------------
DTH/vibratory pile
Vibratory pile driving Impact pile driving driving
----------------------------------------------------------------------------------------------------------------
Spreadsheet Tab Used................. (A.1) Vibratory pile (E.1) Impact pile (A.1) Vibratory pile
driving. driving. driving.
Source Level (RMS SPL or single 175.................... 183 SELss, 194 SPLrms.. 173.
strike SEL).
Weighting Factor Adjustment (kHz).... 2.5.................... 2...................... 2.5.
(a) Number of strikes per pile....... N/A.................... 700.................... N/A.
(a) Activity Duration (h) within 24-h 5...................... N/A.................... 10.
period.
Propagation (xLogR).................. 15..................... 15..................... 15.
Distance of source level measurement 10..................... 10..................... 10.
(meters).
Number of piles per day.............. 5...................... 5...................... 2.5.
----------------------------------------------------------------------------------------------------------------
Table 4--NMFS User Spreadsheet Outputs: PTS Isopleths and Daily Ensonified Area
----------------------------------------------------------------------------------------------------------------
User spreadsheet output
-----------------------------------------------------------------------------------------------------------------
High-
Source type Low-frequency Mid-frequency frequency Phocid Otariid
cetaceans cetaceans cetaceans pinnipeds pinnipeds
----------------------------------------------------------------------------------------------------------------
PTS Isopleth (meters)
----------------------------------------------------------------------------------------------------------------
Vibratory pile driving.......... 171 15 253 104 7
Impact pile driving............. 2302 82 2742 1232 90
DTH/vibratory pile driving...... 200 18 296 122 9
----------------------------------------------------------------------------------------------------------------
Daily ensonified area (km\2\)
----------------------------------------------------------------------------------------------------------------
Vibratory pile driving.......... 0.056 0.001 0.113 0.025 0
Impact pile driving............. 6.899 0.017 8.736 2.369 0.02
DTH/vibratory pile driving...... 0.074 0.001 0.151 0.032 0
----------------------------------------------------------------------------------------------------------------
The distances to the Level B threshold of 120 dB RMS are 28.8 miles
(46.3 km) for vibratory pile driving and 0.98 miles (1.58 km) for
impact driving. The enclosed nature of Lutak Inlet restricts the
propagation of noise in all directions before noise levels reduce below
the Level B threshold for continuous source types (i.e., vibratory pile
driving, DTH). Therefore, the area ensonified to the Level B threshold
is truncated by land in all directions. Measurements of the ensonified
areas show that 5.179 km\2\ are ensonified to the Level B threshold for
impact pile driving and 22.164 km\2\ are ensonified to the Level B
threshold for vibratory pile driving. Note that thresholds for
behavioral disturbance are unweighted with respect to marine mammal
hearing and therefore the thresholds apply to all species.
Marine Mammal Occurrence
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations. The density of six of the seven marine mammal species
(except humpback whales, see below) for which take is authorized is
calculated by month in the project area (see Table 6-4 in the
application) for months when project activity is planned to occur (June
through October). Density was estimated using available survey data,
literature, sightings from protected Species observers (PSOs) from
other projects, personal communication from researchers, state and
Federal biologists, average group size (i.e., killer whales, Dall's
porpoise) and the data underlying the IHA issued by NMFS for the
ADOT&PF Haines Ferry Terminal Project (NMFS, 2018b). Density estimates
were calculated by dividing the estimated monthly abundance for each
species by the area of marine mammal habitat near the project, which is
approximately 91.3 km\2\ and extends from Lutak Inlet/Chilkat River
south down Lynn Canal to the Gran Point haulout. In order to be
conservative, even though pile driving could occur at any period from
June through October, for purposes of requesting takes, we used the
highest monthly density for each species to calculate take. For killer
whales and Dall's porpoises we calculated density by assuming a minimum
group size of 5 and 10 animals, respectively, might enter the
ensonified area, rather than their lower density value, because of the
social nature of these species. Thus the species densities used in our
take calculations are shown in Table 5.
A very small number of humpback whales were recorded on the sea
lion surveys near Gran Point (low single digits), representing our only
non-anecdotal source of locally-obtained abundance data. Various
reports, both anecdotal and from these surveys, put the number of
humpback whales present near the project area in the single digits
(NMFS, 2017; ECO49, 2019 (the application)). We estimate that the
number of whales that may encounter project sound per day is likely
about one per day. Sometimes, a breeding female whale with a calf may
pass by, increasing a particular day's total whale exposure rate from
one to two. Because this operation will continue for up to 8 days, we
estimate no more than 10 whales total might enter the ensonified area
during the project.
Table 5--Species Density Values Used To Calculate Take
------------------------------------------------------------------------
Density (#/
Species km\2\)
------------------------------------------------------------------------
Minke Whale............................................. 0.022
Killer Whale............................................ 0.055
Harbor Porpoise......................................... 0.055
Dall's Porpoise......................................... 0.11
Harbor Seal............................................. 1.095
Steller Sea Lion........................................ 7.382
------------------------------------------------------------------------
[[Page 22145]]
Take Calculation and Estimation
Here we describe how the information provided above is brought
together to produce a quantitative take estimate. We estimated Level A
take for the project by multiplying the maximum monthly species density
for the species with data from Table 5 by the daily ensonified area for
PTS for Level A from Table 4 above and then multiplying by the maximum
possible number of work days (8) and finally rounding to the next whole
number (Table 6). We similarly estimated Level B take for the project
by multiplying the maximum monthly species density from Table 5 by the
ensonified area for Level B (22.164 km\2\) and then multiplying by the
maximum possible number of work days (8) and finally rounding to the
next whole number. Estimated Level A takes from Table 6 were then
subtracted from the preliminary Level B takes to get the total number
of unique Level B takes that do not double-count the Level A takes
(Table 6).
For humpback whales we estimated above no more than 10 whales total
may encounter project sound at Level B Harassment levels; thus our
total take is estimated to be 10 whales. Of these 10 whales, 6.1
percent are expected to be of the ESA listed entity, or about 0.6
whales, which we conservatively round up to one ESA listed Mexico DPS
whale exposed to Level B acoustic harassment. The remaining nine takes
are of the Hawaii DPS whales. No Level A harassment is expected for
ESA-listed humpbacks due to the very small total number of humpbacks
that are expected to be exposed. Given the size of the daily ensonified
area for PTS for Level A from Table 4 above, we estimate three of the
takes of the Hawaii DPS of humpback whales will be Level A takes,
leaving six Level B takes for the Hawaii DPS and seven overall for the
species (Table 6).
Table 6--Authorized Level A and B Take and Percent of MMPA Stock To Be Taken
----------------------------------------------------------------------------------------------------------------
Species
Authorized Take -----------------------------------------------
Level B Level A % of Stock
----------------------------------------------------------------------------------------------------------------
Humpback Whale \1\.............................................. 7 3 0.1
Minke Whale..................................................... 2 2 N/A
Killer Whale \2\................................................ 10 0 0.35
Harbor Porpoise................................................. 6 4 1.03
Dall's Porpoise................................................. 12 8 N/A
Harbor Seal..................................................... 174 21 2.06
Steller Sea Lion (Eastern DPS) 2 3.............................. 1291 0 3.1
Steller Sea Lion (Western DPS) 2 3.............................. 18 0 0.03
----------------------------------------------------------------------------------------------------------------
\1\ Distribution of take by ESA status is 6 Level B takes and 3 Level A takes for Hawaii DPS and 1 Level B take
for Mexico.
\2\ The potential for these species to experience PTS due to vibratory/impact driving or from DTH drilling is
very low considering the distances to the PTS thresholds and the species behavior. Shutdown for all species is
at 200 m (see below) which would further decrease possibility of Level A takes for these species. Therefore,
Level A takes are not authorized.
\3\ Total estimated take of Steller sea lions was 1309 individuals. Distribution between the stocks was
calculated assuming 1.4 percent Western DPS and rounding to nearest whole number.
Effects of Specified Activities on Subsistence Uses of Marine Mammals
The availability of the affected marine mammal stocks or species
for subsistence uses may be impacted by this activity. The subsistence
uses that may be affected and the potential impacts of the activity on
those uses are described below. The information from this section is
analyzed to determine whether the necessary findings may be made in the
Unmitigable Adverse Impact Analysis and Determination section.
No records exist of subsistence harvests of whales and porpoises in
Lynn Canal (Haines, 2007). Subsistence harvest of harbor seals and
Steller sea lions by Alaska Natives is not prohibited by the MMPA. The
ADF&G has regularly conducted surveys of harbor seal and Steller sea
lion subsistence harvest in Alaska and the number of animals taken for
subsistence in this immediate area is low when compared to other areas
in Southeast Alaska (Wolfe et al., 2013). Marine mammals comprise less
than 1 pound (0.45 kg) per capita of all resources harvested by Haines
residents (Household Survey of Wildfoods Resources Harvest in Haines,
as cited in Haines, 2007). Construction activities at the project site
would be expected to cause only short term, non-lethal disturbance of
marine mammals. Impacts on the abundance or availability of either
species to subsistence hunters in the region are not anticipated.
Mitigation
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable 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. 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, as
well as subsistence uses. 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
[[Page 22146]]
of a military readiness activity, personnel safety, practicality of
implementation, and impact on the effectiveness of the military
readiness activity.
In addition to the measures described later, AML is required to
employ the following mitigation measures:
Schedule: No pile driving or removal would occur from
March 1 through May 31 to avoid peak marine mammal abundance periods
and critical foraging periods;
Pile Removal: If possible, piles must be removed by using
a direct pull method or by cutting piles off at the mudline instead of
using a vibratory hammer;
Pile Driving Delay/Shut-Down: For use of in-water heavy
machinery/vessel (e.g., use of barge-mounted excavators, or dredging),
AML will implement a minimum shutdown zone of 10 m radius around the
pile/vessel. For vessels, AML must cease operations and reduce vessel
speed to the minimum required to maintain steerage and safe working
conditions. In addition, if an animal comes within 200 m of a pile
being driven or removed, AML would shut down. The 200 m shutdown zone
would only be reopened when a marine mammal has not been observed
within the shutdown zone for a 15-minute period (30 minutes for ESA
listed humpback whales and Steller sea lions). If pile driving is
stopped, pile installation would not commence if pile any marine
mammals are observed anywhere within the Level A harassment zone (Table
7). Pile driving activities would only be conducted during daylight
hours when it is possible to visually monitor for marine mammals. If
poor environmental conditions restrict visibility (e.g., from excessive
wind or fog, high Beaufort state), pile installation would be delayed.
If a species for which authorization has not been granted, or if a
species for which authorization has been granted but the authorized
takes are met, AML would delay or shut-down pile driving if the marine
mammal approaches or is observed within the Level A and/or B harassment
zones. In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA,
such as serious injury or mortality, the PSO on watch would immediately
call for the cessation of the specified activities and immediately
report the incident to the Chief of the Permits and Conservation
Division, Office of Protected Resources, NMFS, and NMFS Alaska Regional
Office;
Table 7--Level A Harassment Zones (m) for Each Project Activity
----------------------------------------------------------------------------------------------------------------
Combined
Hearing group Vibratory DTH vibratory + Impact
DTH
----------------------------------------------------------------------------------------------------------------
Low Frequency Cetaceans......................... * 200 * 200 * 200 * 1400
Mid-Frequency Cetaceans......................... * 200 * 200 * 200 * 200
High Frequency Cetaceans........................ 253 * 200 296 2700
Phocids......................................... * 200 * 200 * 200 1200
Otarids......................................... * 200 * 200 * 200 * 200
----------------------------------------------------------------------------------------------------------------
* Actual zone distance is less, but 200-m shutdown zone takes precedence.
Soft-start: For all impact pile driving, a ``soft start''
technique will be used at the beginning of each pile installation day,
or if pile driving has ceased for more than 30 minutes, to allow any
marine mammal that may be in the immediate area to leave before
hammering at full energy. The soft start requires AML to provide an
initial set of three strikes from the impact hammer at reduced energy,
followed by a one-minute waiting period, then two subsequent reduced
energy strike sets. If any marine mammal is sighted within the 200-m
Level A shutdown zone prior to pile-driving, or during the soft start,
AML will delay pile-driving until the animal is confirmed to have moved
outside and is on a path away from the Level A harassment zone or if 15
minutes have elapsed since the last sighting; and
Other best management practices: AML will drive all piles
with a vibratory hammer to the maximum extent possible (i.e., until a
desired depth is achieved or to refusal) prior to using an impact
hammer and will use DTH drilling prior to using an impact hammer. AML
will also use the minimum hammer energy needed to safely install the
piles.
Based on our evaluation of the applicant's proposed measures, NMFS
has determined that the mitigation measures provide the means effecting
the least practicable 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
such species or stock for subsistence uses.
Monitoring and Reporting
In order to issue an IHA for an activity, Section 101(a)(5)(D) 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
planned 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
[[Page 22147]]
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
Mitigation and monitoring effectiveness.
Visual Monitoring
Monitoring would be conducted 30 minutes before, during, and 30
minutes after pile driving and removal activities. In addition,
observers shall record all incidents of marine mammal occurrence,
regardless of distance from activity, and shall document any behavioral
reactions in concert with distance from piles being driven or removed.
Pile driving activities include the time to install or remove a single
pile or series of piles, as long as the time elapsed between uses of
the pile driving equipment is no more than 30 minutes.
A primary PSO must be placed at Lutak Dock where pile driving would
occur. The primary purpose of this observer is to monitor and implement
the 200 m Level A shutdown zone. Two additional observers must focus on
monitoring large parts of the Level B harassment zone as well as
visible parts of the Level A shutdown and harassment zones. The second
observer must be placed at a vantage point near Tanani Point that
allows monitoring of the area offshore from Lutak Dock and across the
inlet, a width of about 0.6 miles (1 km, see application Figure 11-1).
This location is near the edge of the Level A harassment zone for low-
frequency cetaceans during impact pile driving. The third PSO must be
placed northwest of the dock near the edge of the Level A harassment
zone for low-frequency cetaceans. Therefore, the outer edge of the
largest Level A harassment zone and a majority of the Level B
harassment zone would be monitored by these other two PSOs. These two
PSOs must also assess movement of animals within Level A harassment
zones, including time spent at various distances from the sound source
to help us gather needed information on the dynamics of marine mammal
behavior around pile driving activities. Since not all of the level A
or B harassment zones will be observable by PSOs, they will calculate
take for the project by extrapolating the observable area to the total
size of the Level A or B harassment zone, as needed. PSOs would scan
the waters using binoculars, and/or spotting scopes, and would use a
handheld GPS or range-finder device to verify the distance to each
sighting from the project site. All PSOs would be trained in marine
mammal identification and behaviors and are required to have no other
project-related tasks while conducting monitoring. The following
measures also apply to visual monitoring:
(1) Monitoring will be conducted by qualified observers, who will
be placed at the best vantage point(s) practicable to monitor for
marine mammals and implement shutdown/delay procedures when applicable
by calling for the shutdown to the hammer operator. Qualified observers
are trained biologists, with the following minimum qualifications:
(a) Visual acuity in both eyes (correction is permissible)
sufficient for discernment of moving targets at the water's surface
with ability to estimate target size and distance; use of binoculars
may be necessary to correctly identify the target;
(b) Advanced education in biological science or related field
(undergraduate degree or higher required);
(c) Experience and ability to conduct field observations and
collect data according to assigned protocols (this may include academic
experience);
(d) Experience or training in the field identification of marine
mammals, including the identification of behaviors;
(e) Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
(f) Writing skills sufficient to prepare a report of observations
including but not limited to the number and species of marine mammals
observed; dates and times when in-water construction activities were
conducted; dates and times when in-water construction activities were
suspended to avoid potential incidental injury from construction sound
of marine mammals observed within a defined shutdown zone; and marine
mammal behavior; and
(g) Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary; and
(2) AML shall submit observer CVs for approval by NMFS.
A draft marine mammal monitoring report would be submitted to NMFS
within 90 days after the completion of pile driving and removal
activities, or 60 days prior to a requested date of issuance of any
future IHAs for projects at the same location, whichever comes first.
It will include an overall description of work completed, a narrative
regarding marine mammal sightings, and associated marine mammal
observation data sheets. Specifically, the report must include:
Dates and times (begin and end) of all marine mammal
monitoring;
Construction activities occurring during each daily
observation period, including how many and what type of piles were
driven or removed and by what method (i.e., impact or vibratory);
Weather parameters and water conditions during each
monitoring period (e.g., wind speed, percent cover, visibility, sea
state);
The number of marine mammals observed, by species,
relative to the pile location and if pile driving or removal was
occurring at time of sighting;
Age and sex class, if possible, of all marine mammals
observed;
PSO locations during marine mammal monitoring;
Distances and bearings of each marine mammal observed to
the pile being driven or removed for each sighting (if pile driving or
removal was occurring at time of sighting);
Description of any marine mammal behavior patterns during
observation, including direction of travel;
Number of individuals of each species (differentiated by
month as appropriate) detected within the monitoring zone, and
estimates of number of marine mammals taken, by species (a correction
factor may be applied to total take numbers, as appropriate);
Detailed information about any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting behavior of the animal, if
any;
Description of attempts to distinguish between the number
of individual animals taken and the number of incidences of take, such
as ability to track groups or individuals; and
An extrapolation of the estimated takes by Level A or B
harassment based on the number of observed exposures within the Level A
or B harassment zone and the percentage of the Level A or B harassment
zone that was not visible, when applicable.
If no comments are received from NMFS within 30 days, the draft
final report will constitute the final report. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments.
In addition, AML must develop and submit to NMFS Alaska Region a
digital spreadsheet that specifies the date and start/stop times each
pile was removed/installed; the method(s) used to remove/
[[Page 22148]]
install each pile; the size of each pile; and any other information
which may be useful in aiding the assessment of effects of different
pile driving activities on ESA-listed species.
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA
(if issued), such as an injury, serious injury or mortality, AML would
immediately cease the specified activities and report the incident to
the Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS, and the Alaska Regional Stranding Coordinator. The
report would include the following information:
Description of the incident;
Environmental conditions (e.g., Beaufort sea state,
visibility);
Description of all marine mammal observations in the 24
hours preceding the incident;
Species identification or description of the animal(s)
involved;
Fate of the animal(s); and
Photographs or video footage of the animal(s) (if
equipment is available).
Activities would not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS would work with AML to
determine what is necessary to minimize the likelihood of further
prohibited take and ensure MMPA compliance. AML would not be able to
resume their activities until notified by NMFS via letter, email, or
telephone.
In the event that AML discovers an injured or dead marine mammal,
and the lead PSO determines that the cause of the injury or death is
unknown and the death is relatively recent (e.g., in less than a
moderate state of decomposition as described in the next paragraph),
AML would immediately report the incident to the Chief of the Permits
and Conservation Division, Office of Protected Resources, NMFS, and the
NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional
Stranding Coordinator. The report would include the same information
identified in the paragraph above. Activities would be able to continue
while NMFS reviews the circumstances of the incident. NMFS would work
with AML to determine whether modifications in the activities are
appropriate.
In the event that AML discovers an injured or dead marine mammal
and the lead PSO determines that the injury or death is not associated
with or related to the activities authorized in the IHA (e.g.,
previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), AML would report the incident to
the Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email
to the Alaska Regional Stranding Coordinator, within 24 hours of the
discovery. AML would provide photographs or video footage (if
available) or other documentation of the stranded animal sighting to
NMFS and the Marine Mammal Stranding Network.
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., population-
level 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'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the 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's 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).
To avoid repetition, the discussion of our analyses applies to all
the species listed in Table 6, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar. There is little information about the nature or severity of
the impacts, or the size, status, or structure of any of these species
or stocks that would lead to a different analysis for this activity.
Pile driving/removal and drilling activities have the potential to
disturb or displace marine mammals. Specifically, the project
activities may result in take, in the form of Level A harassment and
Level B harassment from underwater sounds generated from pile driving
and removal and DTH drilling. Potential takes could occur if
individuals of these species are present in the ensonified zone when
these activities are underway.
The takes from Level A and Level B harassment would be due to
potential behavioral disturbance, Temporary Threshold Shift (TTS), and
PTS. No mortality is anticipated given the nature of the activity and
measures designed to minimize the possibility of injury to marine
mammals. Level A harassment is only anticipated for humpback whales,
minke whales, Dall's porpoise, harbor porpoise, and harbor seal. The
potential for harassment is minimized through the construction method
and the implementation of the planned mitigation measures (see
Mitigation section).
The Level A harassment zones identified in Table 7 are based upon
an animal exposed to impact pile driving five piles per day.
Considering duration of impact driving each pile (up to 15 minutes) and
breaks between pile installations (to reset equipment and move pile
into place), this means an animal would have to remain within the area
estimated to be ensonified above the Level A harassment threshold for
multiple hours. This is highly unlikely given marine mammal movement
throughout the area. If an animal was exposed to accumulated sound
energy, the resulting PTS would likely be small (e.g., PTS onset) at
lower frequencies where pile driving energy is concentrated.
Nevertheless, we authorize a small amount of Level A take for five
species which is considered in our analysis.
Behavioral responses of marine mammals to pile driving and removal
at the Dock, if any, are expected to be mild and temporary. Marine
mammals within the Level B harassment zone may not show any visual cues
they are disturbed by activities (as noted during modification to the
Kodiak Ferry Dock) or could become alert, avoid the area, leave the
area, or display other mild responses that are not observable such as
changes in vocalization patterns. Given the short duration of noise-
generating activities per day and that pile driving and removal would
occur on 8 days across 4-5 months, any harassment would be temporary.
In addition, AML would not conduct pile driving or removal during the
spring eulachon and herring runs, when marine mammals are in greatest
abundance and engaging in concentrated foraging behavior. There are no
other areas or times of known
[[Page 22149]]
biological importance for any of the affected species.
In addition, although some affected humpback whales and Steller sea
lions may be from a DPS that is listed under the ESA, it is unlikely
that minor noise effects in a small, localized area of habitat would
have any effect on the stocks' ability to recover. In combination, we
believe that these factors, as well as the available body of evidence
from other similar activities, demonstrate that the potential effects
of the specified activities will have only minor, short-term effects on
individuals. The specified activities are not expected to impact rates
of recruitment or survival and will therefore not result in population-
level impacts.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
No mortality is anticipated or authorized;
Authorized Level A harassment would be very small amounts
and of low degree;
AML would avoid pile driving and removal during peak
periods of marine mammal abundance and foraging (i.e., March 1 through
May 31 eulachon and herring runs);
AML would implement mitigation measures such as vibratory
driving piles to the maximum extent practicable, soft-starts, and shut
downs; and
Monitoring reports from similar work in Alaska have
documented little to no effect on individuals of the same species
impacted by the specified activities.
Based on the 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 monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the planned
activity 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 Section 101(a)(5)(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 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. Additionally, other qualitative factors may
be considered in the analysis, such as the temporal or spatial scale of
the activities.
The amount of take NMFS authorizes is less than one-third of any
stock's best population estimate. These are all likely conservative
estimates because they assume all pile driving occurs the month which
has the highest marine mammal density and assumes all takes are of
individual animals which is likely not the case. The Alaska stock of
Dall's porpoise has no official NMFS abundance estimate as the most
recent estimate is greater than 8 years old. Nevertheless, the most
recent estimate was 83,400 animals and it is highly unlikely this
number has drastically declined. Therefore, the 20 authorized takes of
this stock clearly represent small numbers of this stock. The Alaska
stock of minke whale has no stock-wide abundance estimate. The stock
ranges from the Bering and Chukchi seas south through the Gulf of
Alaska. Surveys in portions of the range have estimated abundances of
2,020 on the eastern Bering Sea shelf and 1,233 from the Kenai Fjords
in the Gulf of Alaska to the central Aleutian Islands. Thus there
appears to thousands of animals at least in the stock and clearly the
two authorized takes of this stock represent small numbers of this
stock.
Based on the analysis contained herein of the planned activity
(including the planned mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
marine mammals will be taken relative to the population size of the
affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
In order to issue an IHA, NMFS must find that the specified
activity will not have an ``unmitigable adverse impact'' on the
subsistence uses of the affected marine mammal species or stocks by
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50
CFR 216.103 as an impact resulting from the specified activity: (1)
That is likely to reduce the availability of the species to a level
insufficient for a harvest to meet subsistence needs by: (i) Causing
the marine mammals to abandon or avoid hunting areas; (ii) Directly
displacing subsistence users; or (iii) Placing physical barriers
between the marine mammals and the subsistence hunters; and (2) That
cannot be sufficiently mitigated by other measures to increase the
availability of marine mammals to allow subsistence needs to be met.
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. As discussed above,
subsistence harvest of harbor seals and Steller sea lions comprise less
than 1 pound (0.45 kg) per capita of all resources harvested by Haines
residents, so the area is not important for subsistence hunting. The
short-term, relatively low-impact, Level A and Level B harassment takes
resulting from construction activities associated with the Lutak Dock
project will have no impact on the ability of hunters to harvest marine
mammals. 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.
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure 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 issuance of IHAs,
NMFS consults internally, in this case with the Alaska Region Protected
Resources Division Office, whenever we propose to authorize take for
endangered or threatened species.
NMFS Alaska Region issued a Biological Opinion to NMFS Office of
Protected Resources on April 13, 2020, which concluded the issuance of
an IHA to AML is not likely to jeopardize the continued existence of
Western DPS Steller sea lion (Eumetopias jubatus) or the Mexico DPS of
humpback whales (Megaptera novaeangliae) and not likely to adversely
affect sperm whales (Physeter macrocephalus).
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our action (i.e., the issuance of an incidental
harassment authorization) with respect to potential impacts on the
human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental harassment authorizations with
no anticipated serious injury or mortality) of the Companion Manual for
NOAA
[[Page 22150]]
Administrative Order 216-6A, which do not individually or cumulatively
have the potential for significant impacts on the quality of the human
environment and for which we have not identified any extraordinary
circumstances that would preclude this categorical exclusion.
Accordingly, NMFS has determined that the issuance of the IHA qualifies
to be categorically excluded from further NEPA review.
Authorization
NMFS has issued an IHA to AML for conducting the Lutak Dock project
in Haines, Alaska between Jun 15, 2020 and June 14, 2021, provided the
previously mentioned mitigation, monitoring, and reporting requirements
are incorporated. The final IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
Dated: April 16, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2020-08408 Filed 4-20-20; 8:45 am]
BILLING CODE 3510-22-P