Notice2022-02633
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the NOAA Port Facility Project in Ketchikan, Alaska
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 8, 2022
Effective
February 3, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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 NOAA to incidentally harass, by Level B harassment only, marine mammals during construction activities associated with the NOAA Port Facility Project in Ketchikan, Alaska.
Full Text
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<title>Federal Register, Volume 87 Issue 26 (Tuesday, February 8, 2022)</title>
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[Federal Register Volume 87, Number 26 (Tuesday, February 8, 2022)]
[Notices]
[Pages 7128-7138]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02633]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB713]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the NOAA Port Facility Project in
Ketchikan, 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
NOAA to incidentally harass, by Level B harassment only, marine mammals
during construction activities associated with the NOAA Port Facility
Project in Ketchikan, Alaska.
DATES: This Authorization is effective from February 3, 2022 through
February 2, 2023.
FOR FURTHER INFORMATION CONTACT: Ben Laws, 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: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. 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 IHA 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 October 26, 2021, NMFS received an application from NOAA's
Office of Marine and Aviation Operations requesting an IHA to take
small numbers of nine species (Dall's porpoise (Phocoenoides dalli),
Steller sea lions (Eumetopias jubatus), Pacific white-sided dolphin
(Lagenorhynchus obliquidens), killer whale (Orcinus orca), gray whale
(Eschrichtius robustus), minke whale (Balaenoptera acutorostrata),
harbor seal (Phoca vitulina), harbor porpoise (Phocoena phocoena) and
humpback whale (Megaptera novaeangliae)) of marine mammals incidental
to vibratory and impact pile driving and down-the-hole (DTH) system use
associated with the project. The application was deemed adequate and
complete on November 16, 2021. NOAA's request is for take of a small
number of these species by Level A or Level B harassment. Neither NOAA
nor NMFS expects serious injury or mortality to result from this
activity and, therefore, an IHA is appropriate.
Description of the Specified Activity
Overview
The purpose of the project is to remove an obsolete dock facility
and construct a new facility including a 240 feet (ft) x 50 ft floating
pier connected to land by a transfer bridge. A small boat dock would be
connected to the large ship pier and a small boat launch ramp will be
constructed adjacent to the other structures. Table 1 provides a
summary of the pile driving activities. Since the proposed
authorization the applicant has decided that they may also remove the
old steel piles with a vibratory hammer or direct pull. Because the
steel piles being removed could be removed using either a vibratory
hammer, pile clipper or hydraulic saw, we use the
[[Page 7129]]
loudest, most precautionary source level for those piles which are pile
clippers. That change has no effect however on estimated take (see
below). In summary, the project period includes 47 days of pile or DTH
activities for which this IHA is requested. A detailed description of
the planned project is provided in the Federal Register notice for the
proposed IHA (86 FR 68223; December 1, 2021). Since that time, no
additional changes have been made to the planned activities beyond
adding voluntary acoustic monitoring and recognizing that there may be
some 18-inch diameter steel piles, intermediate in size to the already
identified 14 to 24-inch diameter steel piles as described below.
Therefore, a detailed description is not provided here. Please refer to
that Federal Register notice for the description of the specific
activity.
Table 1--Summary of Pile Driving Activities and User Spreadsheet Inputs
----------------------------------------------------------------------------------------------------------------
Minutes/
Method Pile type Number of strikes per Piles per day
piles pile
----------------------------------------------------------------------------------------------------------------
DTH................................... 24-inch Steel........... 18 25,000 1.5
Impact................................ ........................ .............. 48 1.5
Vibratory............................. 14-inch Timber.......... 130 2 10
Vibratory............................. 14 to 16-inch Steel..... 28 5 5
Vibratory............................. 18 to 24-inch Steel..... 42 5 5
Small Pile Clipper.................... 14 to 16-inch Steel..... 28 10 10
Large Pile Clipper.................... 18 to 24-inch Steel..... 42 10 10
-----------------------------------------------
Totals............................ ........................ 218 .............. ..............
----------------------------------------------------------------------------------------------------------------
All User spreadsheet calculations use Transmission Loss = 15 and standard weighting factor adjustments
Mitigation, monitoring, and reporting measures are described in
detail later in this document (please see Mitigation and Monitoring and
Reporting).
Comments and Responses
A notice of NMFS's proposal to issue an IHA to NOAA was published
in the Federal Register on December 1, 2021 (86 FR 68223). That notice
described, in detail, NOAA's activity, the marine mammal species that
may be affected by the activity, and the anticipated effects on marine
mammals. During the 30-day public comment period, NMFS received no
public comments or comments from the Marine Mammal Commission.
Changes From the Proposed IHA to Final IHA
While we are not requiring acoustic monitoring or sound source
verification studies for this project because the construction
equipment and pile types and sizes are common ones for which we have
significant data, the applicant has requested the possibility of
altering shutdown and/or harassment zones based on voluntary acoustic
monitoring, so we have added our standard term for this to the IHA (see
below).
Since the proposed authorization the applicant has decided that
they may also remove the old steel piles with a vibratory hammer or
direct pull, but as mentioned above, the source levels for these are
quieter than the loudest possible tool that could be used to remove
these piles, large pile clippers, so there is no effect on take (see
above). They have also discovered that there may be some 18-inch
diameter steel piles as part of the mix of pile sizes already described
that vary from 14- to 24-inch diameter. That change also has no effect
however on estimated take. Direct pulling does not generate sounds
exceeding the regulatory thresholds so need not be discussed further.
The applicant has decided they would rather have hearing-group-
specific shutdown zone sizes. Therefore the idea discussed in the
proposed IHA of implementing fewer taxa-based shutdown ones has been
rejected as described below.
Some source level references in Table 4 were incorrect and have
been fixed. A few minor typographic errors were corrected.
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; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species with expected potential for occurrence in
the project area and summarizes information related to the population
or stock, including regulatory status under the MMPA and Endangered
Species Act (ESA) and potential biological removal (PBR), where known.
For taxonomy, we follow Committee on Taxonomy (2021). 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 or Pacific SARs, including the 2021 draft SARs.
[[Page 7130]]
Table 2--Species That Spatially Co-Occur With the Activity to the Degree That Take Is Reasonably Likely To Occur
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ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
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Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Balaenopteridae (rorquals):
Humpback whale.................. Megaptera novaeangliae. Central North Pacific.. -,-; Y 10,103 (0.3, 7,890, 83 26
2006).
Minke Whale..................... Balaenoptera Alaska................. -,-; N N/A (see SAR, N/A, see UND 0
acutorostrata. SAR).
Family Eschrichtiidae (gray whale):
Gray Whale...................... Eschrichtius robustus.. Eastern North Pacific.. -,-; N 26,960 (0.05, 25,849, 801 131
2016).
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Pacific white-sided dolphin..... Lagenorhynchus North Pacific.......... -,-; N 26,880 (N/A, N/A, UND 0
obliquidens. 1990).
Killer Whale.................... Orcinus orca........... Northern Resident...... -,-; N 302 (N/A, 302, 2018).. 2.2 0.2
Alaska Resident........ -,-; N 2,347 (N/A, 2347, 24 1
2012).
West Coast Transient... -,-; N 349 (N/A, 349, 2018).. 3.5 0.4
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Southeast Alaska....... -, -; N see SAR (see SAR, see See SAR 34
SAR, 2012).
Dall's porpoise................. Phocoenoides dalli..... Entire Alaska Stock.... -, -; N 83,400 (0.097, N/A, UND 38
1991).
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (sea lions and fur
seals):
Steller sea lion.................... Eumetopias jubatus..... Eastern Stock.......... -, -; N 43,201 a (see SAR, 2592 112
43,201, 2017).
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Clarence Strait........ -; N 27,659 (see SAR, 746 40
24,854, 2015).
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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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\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 Mortality/Serious Injury (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.
Humpback whales, minke whales, gray whales, Pacific white-sided
dolphin, killer whale, harbor porpoise, Dall's porpoise, harbor seal,
and Steller sea lions spatially co-occur with the activity to the
degree that take is reasonably likely to occur, and we have proposed
authorizing take of these species. Fin whale could potentially occur in
the area, however there are no known sightings nearby so the species is
very rare, is readily observed, and the applicant would shut down pile
driving if they enter the project area. Thus take is not expected to
occur, and they are not discussed further.
A detailed description of the of the species likely to be affected
by the 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 (86 FR
68223; December 1, 2021); 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 (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized
species accounts.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from NOAA's construction activities
have the potential to result in behavioral harassment of marine mammals
in the vicinity of the survey area. The notice of proposed IHA (86 FR
68223; December 1, 2021) included a discussion of the effects of
anthropogenic noise on marine mammals and the potential effects of
underwater noise from NOAA's construction on marine mammals and their
habitat. That information and analysis is incorporated by reference
into this final IHA determination and is not repeated here; please
refer to the notice of proposed IHA (86 FR 68223; December 1, 2021).
Estimated Take
This section provides an estimate of the number of incidental takes
authorized 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).
[[Page 7131]]
Authorized takes would primarily be by Level B harassment, as use
of the acoustic sources (i.e., vibratory or impact pile driving and
DTH) have 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 for porpoises and harbor
seals because predicted auditory injury zones are larger. The
mitigation and monitoring measures are expected to minimize the
severity of the taking to the extent practicable.
As described previously, no mortality is anticipated or authorized
for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which marine mammals will be behaviorally harassed or
incur some degree of permanent hearing impairment; (2) the area or
volume of water that will be ensonified above these levels in a day;
(3) the density or occurrence of marine mammals within these ensonified
areas; and, (4) the number of days of activities. We note that while
these 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). Due to the lack of
marine mammal density, NMFS relied on local occurrence data and group
size to estimate take for some species. Below, we describe the factors
considered here in more detail and present the proposed take estimate.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur 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) 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.
NOAA's proposed activity includes the use of continuous (vibratory
hammer and DTH) and impulsive (DTH and 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 (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). NOAA's activity includes the use of
impulsive (impact pile-driving and DTH) and non-impulsive (vibratory
hammer and DTH) sources.
These thresholds are provided in Table 3. The references, analysis,
and methodology used in the development of the thresholds are described
in NMFS 2018 Technical Guidance, which may be accessed at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Table 3--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.
The sound field in the project area is the existing background
noise plus additional construction noise from the proposed project.
Marine mammals are expected to be affected via sound generated by the
primary components of the project (i.e., impact and vibratory pile
driving, and DTH).
In order to calculate distances to the Level A harassment and Level
B harassment sound thresholds for the methods and piles being used in
this
[[Page 7132]]
project, NMFS used acoustic monitoring data from other locations to
develop source levels for the various pile types, sizes and methods
(Table 4). Because the steel piles being removed could be removed using
either a vibratory hammer, pile clipper or hydraulic saw, we use the
loudest, most precautionary source level for our analysis of the
removal of those piles.
Table 4--Project Sound Source Levels
------------------------------------------------------------------------
Estimated noise levels
Method (dB) Source
------------------------------------------------------------------------
24-inch DTH--impulsive........ 154 SELss............. Reyff & Heyvaert
(2019).
24-inch DTH--non-impulsive.... 166 dB RMS............ Denes et al.
(2016).
24-inch Steel Impact.......... 211.2 Pk, 182.1 SEL, Denes et al.
197 RMS. (2016) max.
14-inch Timber Vibratory...... 157 RMS............... WADOT (2011)
plus 4 dB.
Small Pile Clipper............ 154 RMS............... NAVFAC SW
(2020).
Large Pile Clipper............ 161 RMS............... NAVFAC SW
(2020).
------------------------------------------------------------------------
Note: SEL = single strike sound exposure level; RMS = root mean square.
Level B Harassment Zones
Transmission loss (TL) is the decrease in acoustic intensity as an
acoustic pressure wave propagates out from a source. TL parameters vary
with frequency, temperature, sea conditions, current, source and
receiver depth, water depth, water chemistry, and bottom composition
and topography. The general formula for underwater TL is:
TL = B * Log10 (R1/R2),
where
TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement
The recommended TL coefficient for most nearshore environments is
the practical spreading value of 15. This value results in an expected
propagation environment that would lie between spherical and
cylindrical spreading loss conditions, which is the most appropriate
assumption for NOAA's proposed activity in the absence of specific
modelling.
NOAA determined underwater noise would fall below the behavioral
effects threshold of 160 dB RMS for impact driving at 2,530 m and the
120 dB rms threshold for the other methods at between 1848 and 11,659 m
(Table 5). It should be noted that based on the bathymetry and
geography of the project area, sound will not reach the full distance
of the harassment isopleths in all directions.
Level A Harassment Zones
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 take by Level A harassment. 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 or removal and DTH using any of the methods discussed
above, NMFS User Spreadsheet predicts the closest distance at which, if
a marine mammal remained at that distance the whole duration of the
activity, it would not incur PTS. We used the User Spreadsheet to
determine the Level A harassment isopleths. Inputs used in the User
Spreadsheet or models are reported in Table 1 and the resulting
isopleths are reported in Table 5 for each of the construction methods
and scenarios.
Table 5--Level A and Level B Isopleths (meters) for Each Method
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low Mid- High
Method Pile type frequency frequency frequency Phocids Otariids Level B
--------------------------------------------------------------------------------------------------------------------------------------------------------
DTH........................................ 24-inch steel................ 130 5 155 70 5 11,659
Impact..................................... 24-inch steel................ 151 5 179 81 6 2,530
Vibratory.................................. 14-inch Timber............... 2 0 3 1 0 2,929
Small Pile Clipper......................... 14 to 20-inch Steel.......... 3.3 0 5 2 0 1,848
Large Pile Clipper......................... 14- to 24-inch Steel......... 9.6 1 14 6 0 5,412
--------------------------------------------------------------------------------------------------------------------------------------------------------
Marine Mammal Occurrence and Take Calculation and Estimation
In this section we provide the information about the presence or
group dynamics of marine mammals that will inform the take
calculations. No density data are available for species in the project
area. Here we describe how the information provided above is brought
together to produce a quantitative take estimate. The estimates below
are similar to and informed by prior projects in the Ketchikan area as
discussed above. A summary of proposed take is in Table 6.
Humpback Whale
Humpback whales are expected to occur in the project area no more
than twice per five-day work week. Typical group size for humpback
whales in the project area is two animals. The project involves 47 days
(10 work weeks) of in-water work where take could occur. Therefore, we
estimate total take at 2 whales x 2/week x 10 weeks = 40 takes. All of
these takes are expected to be Level B harassment takes as we believe
the Level A shutdown zones can be
[[Page 7133]]
fully implemented by Protected Species Observers (PSO) because of the
large size, short dive duration, and obvious behaviors of humpback
whales.
Given the data in Wade (2021) discussed above on the relative
frequencies of Hawaii and Mexico DPS humpback whales in the project
area the 40 takes is expected to comprise 39 Hawaii DPS animals and 1
Mexico DPS animal.
Minke Whale
As discussed above minke whales have not been seen in the project
area but could occur there. They are often solitary. Therefore we
conservatively authorize a single take of minke whales. This one
estimated take is expected to be by Level B harassment as we believe
the Level A shutdown zones can be fully implemented by PSOs because of
the large size, short dive duration, and obvious behaviors of minke
whales.
Gray Whale
Gray whales are expected to occur in the project area no more than
once per month. Typical group size for gray whales in the project area
is two animals. The project involves 47 days of in-water work where
take could occur. Therefore, we estimate total take at two whales x two
full months = four takes. All of these takes are expected to be Level B
harassment takes as we believe the Level A shutdown zones can be fully
implemented by PSOs because of the large size, short dive duration, and
obvious behaviors of gray whales.
Killer Whale
Killer whales are expected to occur in the project area no more
than once per month. Typical group size for killer whales in the
project area is conservatively estimated at 10 animals. The project
involves 47 days of in-water work where take could occur. Therefore, we
estimate total take at 10 whales x 2 full months = 20 takes. All of
these takes are expected to be Level B harassment takes as we believe
the Level A shutdown zones can be fully implemented by PSOs because of
the large size, short dive duration, and obvious behaviors of killer
whales and the smaller size of the shutdown zones.
Pacific White-Sided Dolphin
Pacific white-sided dolphins are expected to occur in the project
area no more than once per week. Typical group size for Pacific white-
sided dolphins in the project area is 20 animals. The project involves
10 work weeks of in-water work where take could occur. Therefore, we
estimate total take at 20 dolphins x 10 weeks = 200 takes. All of these
takes are expected to be Level B harassment takes as we believe the
Level A shutdown zones can be fully implemented by PSOs because of the
large group size, short dive duration, and obvious behaviors of Pacific
white-sided dolphins and the smaller size of the shutdown zones.
Harbor Porpoise
Harbor porpoises are expected to occur in the project area no more
than three times per month. Typical group size for harbor porpoises in
the project area is 5 animals. The project involves 47 days (2 months)
of in-water work where take could occur. Therefore, we estimate total
take at 5 porpoises x 6/month = 30 takes. Twenty of these takes are
expected to be Level B harassment takes. Because harbor porpoises are
small and cryptic and could sometimes remain undetected within the
estimated harassment zones for a duration sufficient to experience PTS,
we authorize 10 takes by Level A harassment.
Dall's Porpoise
Dall's porpoises are expected to occur in the project area no more
than three times. Typical group size for Dall's porpoises in the
project area is 20 animals. The project involves two months of in-water
work where take could occur. Therefore, we estimate total take at 20
porpoises x 3 = 60 takes. Forty of these takes are expected to be Level
B harassment takes. Because Dall's porpoises are small and cryptic and
could sometimes remain undetected within the estimated harassment zones
for a duration sufficient to experience PTS, we authorize 20 takes by
Level A harassment.
Harbor Seal
Harbor seals are expected to occur in the project area once per
day. The typical number of harbor seals per day in the project area is
up to 12 animals. The project involves 47 days of in-water work where
take could occur. Therefore, we estimate total take at 12 seals x 47
days = 564 takes. Seventy-five percent or 423 of these takes are
expected to be Level B harassment takes. Because harbor seals are small
and cryptic and could sometimes remain undetected within the estimated
harassment zones for a duration sufficient to experience PTS, we
authorize 141 takes by Level A harassment.
Steller Sea Lion
Steller sea lions are expected to occur in the project area once
per day. The typical number of Steller sea lions per day in the project
area is up to 10 animals. The project involves 47 days of in-water work
where take could occur. Therefore, we estimate total take at 10 sea
lions x 47 days = 470 takes. Because the shutdown zone is small and
Steller sea lions are not cryptic we believe the Level A shutdown zones
can be fully implemented by PSOs and no Level A harassment take is
authorized.
Table 6--Proposed Authorized Amount of Taking, by Level A Harassment and Level B Harassment, by Species and
Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
Level B Level A Percent of
Common name Stock harassment harassment stock
----------------------------------------------------------------------------------------------------------------
Humpback whale *...................... Central North Pacific... 40 0 0.4
Minke whale........................... Alaska.................. 1 0 <0.1
Gray whale............................ Eastern North Pacific... 4 0 <0.1
Killer whale.......................... Northern Resident, 20 0 <6.7
Alaska Resident, West
Coast Transient.
Pacific White-sided dolphin........... North Pacific........... 200 0 0.7
Dall's porpoise....................... Alaska.................. 40 20 <0.1
Harbor porpoise....................... Southeast Alaska........ 20 10 0.3
Harbor seal........................... Clarence Strait......... 423 141 2.1
Steller sea lion...................... Eastern DPS............. 470 0 1.1
----------------------------------------------------------------------------------------------------------------
* 1 take from the ESA listed Mexico DPS.
[[Page 7134]]
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 (latter not applicable for this action). NMFS
regulations require applicants for IHAs to include information about
the availability and feasibility (economic and technological) of
equipment, methods, and manner of conducting the activity or other
means of effecting the least practicable adverse impact upon the
affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
Because of the need for an ESA Section 7 consultation for effects
of the project on ESA listed humpback whales, there are a number of
mitigation measures that go beyond or are in addition to typical
mitigation measures we would otherwise require for this sort of
project. The measures are however typical for actions in the Ketchikan
area. The following mitigation measures are in the IHA:
<bullet> Avoid direct physical interaction with marine mammals
during construction activity. If a marine mammal comes within 10 m of
such activity, operations must cease and vessels must reduce speed to
the minimum level required to maintain steerage and safe working
conditions;
<bullet> Conduct training between construction supervisors and
crews and the marine mammal monitoring team and relevant NOAA staff
prior to the start of all pile driving and DTH activity and when new
personnel join the work, so that responsibilities, communication
procedures, monitoring protocols, and operational procedures are
clearly understood;
<bullet> Pile driving activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or within the
harassment zone. If an ESA listed marine mammal is determined by the
PSO to have been disturbed, harassed, harmed, injured, or killed (e.g.,
a listed marine mammal is observed entering a shutdown zone before
operations can be shut down, or is injured or killed as a direct or
indirect result of this action), the PSO will report the incident to
within one business day to <a href="/cdn-cgi/l/email-protection#90f1fbe2bee3f5f3e4f9fffea7d0fefff1f1bef7ffe6"><span class="__cf_email__" data-cfemail="422329306c312721362b2d2c75022c2d23236c252d34">[email protected]</span></a>;
<bullet> NOAA will establish and implement the shutdown zones
indicated in Table 7. The purpose of a shutdown zone is generally to
define an area within which shutdown of the activity would occur upon
sighting of a marine mammal (or in anticipation of an animal entering
the defined area). Shutdown zones typically vary based on the activity
type and marine mammal hearing group. At the applicant's request we
will not implement the single shutdown zone size per activity discussed
in the proposed IHA;
<bullet> Employ PSOs and establish monitoring locations as
described in the Marine Mammal Monitoring Plan and Section 5 of the
IHA. The Holder must monitor the project area to the maximum extent
possible based on the required number of PSOs, required monitoring
locations, and environmental conditions. For all pile driving and
removal at least three PSOs must be used;
<bullet> The placement of the PSOs during all pile driving and
removal and DTH activities will ensure that the entire shutdown zone is
visible during pile installation. Should environmental conditions
deteriorate such that marine mammals within the entire shutdown zone
will not be visible (e.g., fog, heavy rain), pile driving and removal
must be delayed until the PSO is confident marine mammals within the
shutdown zone could be detected;
<bullet> Monitoring must take place from 30 minutes prior to
initiation of pile driving activity through 30 minutes post-completion
of pile driving activity. Pre-start clearance monitoring must be
conducted during periods of visibility sufficient for the lead PSO to
determine the shutdown zones clear of marine mammals. Pile driving may
commence following 30 minutes of observation when the determination is
made;
<bullet> If pile driving is delayed or halted due to the presence
of a marine mammal, the activity may not commence or resume until
either the animal has voluntarily exited and been visually confirmed
beyond the shutdown zone or 15 minutes have passed without re-detection
of the animal (30 minutes for humpback whales);
<bullet> For humpback whales, if the boundaries of the harassment
zone have not been monitored continuously during a work stoppage, the
entire harassment zone will be surveyed again to ensure that no
humpback whales have entered the harassment zone that were not
previously accounted for;
<bullet> In-water activities will take place only: Between civil
dawn and civil dusk when PSOs can effectively monitor for the presence
of marine mammals; during conditions with a Beaufort Sea State of 4 or
less; when the entire shutdown zone and adjacent waters are visible
(e.g., monitoring effectiveness is not reduced due to rain, fog, snow,
etc.). Pile driving activities may continue for up to 30 minutes after
sunset during evening civil twilight, as necessary to secure a pile for
safety prior to demobilization for the evening. PSO(s) will continue to
observe shutdown and monitoring zones during this time. The length of
the post-activity monitoring period may be reduced if darkness
precludes visibility of the shutdown and monitoring zones;
<bullet> Vessel operators will maintain a watch for marine mammals
at all times while underway; stay at least 91 m (100 yards (yd)) away
from listed marine mammals; travel at less than 5 knots (9 km/hr) when
within 274 m (300 yd) of a whale; avoid changes in direction and speed
when within 274 m (300 yd) of whales, unless doing so is necessary for
maritime safety; not position vessel(s) in the path of whales, and will
not cut in front of whales in a way or at a distance that causes the
whales to change their direction of travel or behavior (including
breathing/surfacing pattern); check the waters immediately adjacent to
the vessel(s) to ensure that no whales will be injured when the
propellers are engaged; reduce vessel speed to 10 knots or less when
weather conditions
[[Page 7135]]
reduce visibility to 1.6 km (1 mi) or less; adhere to the Alaska
Humpback Whale Approach Regulations when transiting to and from the
project site (see 50 CFR 216.18, 223.214, and 224.103(b)); not allow
lines to remain in the water, and no trash or other debris will be
thrown overboard, thereby reducing the potential for marine mammal
entanglement; follow established transit routes and will travel <10
knots while in the harassment zones; the speed limit within Tongass
Narrows is 7 knots for vessels over 23 ft in length. If a whale's
course and speed are such that it will likely cross in front of a
vessel that is underway, or approach within 91 m (100 yards (yd)) of
the vessel, and if maritime conditions safely allow, the engine will be
put in neutral and the whale will be allowed to pass beyond the vessel;
and
<bullet> NOAA must use soft start techniques when impact pile
driving. Soft start requires contractors to provide an initial set of
three strikes at reduced energy, followed by a 30-second waiting
period, then two subsequent reduced-energy strike sets. A soft start
must be implemented at the start of each day's impact pile driving and
at any time following cessation of impact pile driving for a period of
30 minutes or longer.
Table 7--Minimum Required Shutdown Zones (Meters) by Hearing Group for Each Method
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method Pile type Low frequency Mid- frequency High frequency Phocids Otariids
--------------------------------------------------------------------------------------------------------------------------------------------------------
DTH....................................... 24-inch steel............... 130 10 160 70 10
Impact.................................... 24-inch steel............... 160 10 180 90 10
Vibratory................................. 14-inch Timber.............. 10 10 10 10 10
Small Pile Clipper........................ 14 to 16-inch Steel......... 10 10 10 10 10
Large Pile Clipper........................ 18- to 24-inch Steel........ 10 10 20 10 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, 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.
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
proposed action area. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> 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);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Visual Monitoring
Monitoring must be conducted by qualified, NMFS-approved PSOs, in
accordance with the following:
<bullet> PSOs must be independent (i.e., not construction
personnel) and have no other assigned tasks during monitoring periods.
At least one PSO must have prior experience performing the duties of a
PSO during construction activity pursuant to a NMFS-issued IHA. Other
PSOs may substitute other relevant experience, education (degree in
biological science or related field), or training. PSOs must be
approved by NMFS prior to beginning any activity subject to this IHA;
and
<bullet> PSOs must record all observations of marine mammals as
described in the Section 5 of the IHA and the Marine Mammal Monitoring
Plan, regardless of distance from the pile being driven. PSOs shall
document any behavioral reactions in concert with distance from piles
being driven or removed;
PSOs must have the following additional qualifications:
<bullet> Ability to conduct field observations and collect data
according to assigned protocols;
<bullet> Experience or training in the field identification of
marine mammals, including the identification of behaviors;
<bullet> Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
<bullet> 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, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
and marine mammal behavior; and
<bullet> 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;
NOAA must establish the following monitoring locations. For all
pile driving and DTH activities, a minimum of one PSO must be assigned
to the active pile driving or DTH location to monitor the shutdown
zones and as much of the Level B harassment zones as possible. For all
pile driving and DTH activities, two additional PSOs are
[[Page 7136]]
required. The additional PSOs will start at the project site and travel
along Tongass Narrows, counting all humpback whales present, until they
have reached the edge of the respective harassment zone. At this point,
the PSOs will identify suitable observation points from which to
observe the width of Tongass Narrows for the duration of pile driving
activities. For the largest DTH zones these are expected to be on South
Tongass Highway near Mountain Point and North Tongass Highway just
northwest of the intersection with Carlanna Creek. See application
Figure 11-1 for map of PSO locations. If visibility deteriorates so
that the entire width of Tongass Narrows at the harassment zone
boundary is not visible, additional PSOs may be positioned so that the
entire width is visible, or work will be halted until the entire width
is visible to ensure that any humpback whales entering or within the
harassment zone are detected by PSOs.
Acoustic Monitoring
While we are not requiring acoustic monitoring or sound source
verification studies for this project because the construction
equipment and pile types and sizes are common ones for which we have
significant data, the applicant has requested the possibility of
altering shutdown and/or harassment zones based on voluntary acoustic
monitoring, so we have added our standard term for this to the IHA: The
harassment and/or shutdown zones may be modified with NMFS' approval
following NMFS' acceptance of an acoustic monitoring report.
Reporting
A draft marine mammal monitoring report will 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.
The report will include an overall description of work completed, a
narrative regarding marine mammal sightings, and associated PSO data
sheets. Specifically, the report must include:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring;
<bullet> Construction activities occurring during each daily
observation period, including the number and type of piles driven or
removed and by what method (i.e., impact, vibratory or DTH) and the
total equipment duration for vibratory removal or DTH for each pile or
hole or total number of strikes for each pile (impact driving);
<bullet> PSO locations during marine mammal monitoring;
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
<bullet> Upon observation of a marine mammal, the following
information: Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting; Time of sighting; Identification of the
animal(s) (e.g., genus/species, lowest possible taxonomic level, or
unidentified), PSO confidence in identification, and the composition of
the group if there is a mix of species; Distance and bearing of each
marine mammal observed relative to the pile being driven for each
sighting (if pile driving was occurring at time of sighting); Estimated
number of animals (min/max/best estimate); Estimated number of animals
by cohort (adults, juveniles, neonates, group composition, etc.);
Animal's closest point of approach and estimated time spent within the
harassment zone; Description of any marine mammal behavioral
observations (e.g., observed behaviors such as feeding or traveling),
including an assessment of behavioral responses thought to have
resulted from the activity (e.g., no response or changes in behavioral
state such as ceasing feeding, changing direction, flushing, or
breaching);
<bullet> Number of marine mammals detected within the harassment
zones, by species;
<bullet> Detailed information about any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting changes in behavior of the
animal(s), if any; and
<bullet> If visibility degrades to where the PSO(s) cannot view the
entire impact or vibratory harassment zones, take of humpback whales
will be extrapolated based on the estimated percentage of the
monitoring zone that remains visible and the number of marine mammals
observed.
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.
Reporting Injured or Dead Marine Mammals
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the IHA-holder must
immediately cease the specified activities and report the incident to
the Office of Protected Resources (OPR)
(<a href="/cdn-cgi/l/email-protection#82d2d0accbd6d2accfedecebf6edf0ebece5d0e7f2edf0f6f1c2ecede3e3ace5edf4"><span class="__cf_email__" data-cfemail="4212106c0b16126c0f2d2c2b362d302b2c251027322d303631022c2d23236c252d34">[email protected]</span></a>), NMFS and to the Alaska Regional
Stranding Coordinator as soon as feasible. If the death or injury was
clearly caused by the specified activity, NOAA must immediately cease
the specified activities until NMFS is able to review the circumstances
of the incident and determine what, if any, additional measures are
appropriate to ensure compliance with the terms of the IHA. The IHA-
holder must not resume their activities until notified by NMFS. The
report must include the following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
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,
[[Page 7137]]
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).
Pile driving and removal and DTH activities have the potential to
disturb or displace marine mammals. Specifically, the project
activities may result in take, in the form of Level A and Level B
harassment from underwater sounds generated from pile driving and
removal and DTH. Potential takes could occur if individuals 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, TTS, and PTS. No serious injury or
mortality is anticipated given the nature of the activity and measures
designed to minimize the possibility of injury to marine mammals. 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 5 are based upon
an animal exposed to impact pile driving multiple piles per day.
Considering the short duration to impact drive or vibe each pile 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, and
unlikely to result in impacts to individual fitness, reproduction, or
survival.
The nature of the pile driving project precludes the likelihood of
serious injury or mortality. For all species and stocks, take would
occur within a limited, confined area (adjacent to the project site) of
the stock's range. Level A and Level B harassment will be reduced to
the level of least practicable adverse impact through use of mitigation
measures described herein. Further the amount of take proposed to be
authorized is extremely small when compared to stock abundance.
Behavioral responses of marine mammals to pile driving at the
project site, 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, any harassment would be temporary. There
are no other areas or times of known biological importance for any of
the affected species.
In addition, 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:
<bullet> No mortality is anticipated or authorized;
<bullet> Authorized Level A harassment would be very small amounts
and of low degree;
<bullet> No important habitat areas have been identified within the
project area;
<bullet> For all species, Tongass Narrows is a very small and
peripheral part of their range;
<bullet> NOAA would implement mitigation measures such as soft-
starts, and shut downs; and
<bullet> Monitoring reports from similar work in Tongass Narrows
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
proposed 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. When the predicted number of individuals to
be taken is fewer than one third of the species or stock abundance, the
take is considered to be of small numbers. Additionally, other
qualitative factors may be considered in the analysis, such as the
temporal or spatial scale of the activities.
The amount of take NMFS authorizes is below one third of the
estimated stock abundance for all species (in fact, take of individuals
is less than 10 percent of the abundance of the affected stocks, see
Table 6). This is likely a conservative estimate because we assume all
takes are of different individual animals, which is likely not the
case. Some individuals may return multiple times in a day, but PSOs
would count them as separate takes if they cannot be individually
identified. The Alaska stock of Dall's porpoise has no official NMFS
abundance estimate for this area as the most recent estimate is greater
than eight years old. Nevertheless, the most recent estimate was 83,400
animals and it is highly unlikely this number has drastically declined.
Therefore, the 60 authorized takes of this stock clearly represent
small numbers of this stock. Likewise, the Southeast Alaska stock of
harbor porpoise has no official NMFS abundance estimate as the most
recent estimate is greater than eight years old. Nevertheless, the most
recent estimate was 11,146 animals (Muto et al., 2021) and it is highly
unlikely this number has drastically declined. Therefore, the 30
authorized takes of this stock clearly represent small numbers of this
stock. There is no current or historical estimate of the Alaska minke
whale stock, but there are known to be over 1,000 minke whales in the
Gulf of Alaska (Muto et al., 2018) so the 1 authorized take clearly
represents small numbers of this stock.
Based on the analysis contained herein of the proposed activity
(including the proposed 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.
[[Page 7138]]
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.
Alaska Native hunters in the Ketchikan vicinity do not
traditionally harvest cetaceans (Muto et al., 2021). Harbor seals are
the most commonly targeted marine mammal that is hunted by Alaska
Native subsistence hunters within the Ketchikan area. In 2012 an
estimated 595 harbor seals were taken for subsistence uses, with 22 of
those occurring in Ketchikan (Wolfe et al., 2013). This is the most
recent data available. The harbor seal harvest per capita in both
communities was low, at 0.02 for Ketchikan. ADF&G subsistence data for
Southeast Alaska shows that from 1992 through 2008, plus 2012, from
zero to 19 Steller sea lions were taken by Alaska Native hunters per
year with typical harvest years ranging from zero to five animals
(Wolfe et al., 2013). In 2012, it is estimated 9 sea lions were taken
in all of Southeast Alaska and only from Hoonah and Sitka. There are no
known haulout locations in the project area. Both the harbor seal and
the Steller sea lion may be temporarily displaced from the action area.
However, neither the local population nor any individual pinnipeds are
likely to be adversely impacted by the proposed action beyond noise-
induced harassment or slight injury. The proposed project is
anticipated to have no long-term impact on Steller sea lion or harbor
seal populations, or their habitat no long term impacts on the
availability of marine mammals for subsistence uses is anticipated.
Based on the description of the specified activity, the measures
described to minimize adverse effects on the availability of marine
mammals for subsistence purposes, and the proposed mitigation and
monitoring measures, NMFS has determined that there will not be an
unmitigable adverse impact on subsistence uses from NOAA's proposed
activities.
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 proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NOAA 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 proposed IHA qualifies to be categorically
excluded from further NEPA review.
Endangered Species Act
Section 7(a)(2) of the 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 Regional Office, whenever we propose to authorize
take for endangered or threatened species.
NMFS is authorizing take of Mexico DPS of humpback whales which are
listed under the ESA. The NMFS Alaska Regional Office Protected
Resources Division issued a Biological Opinion under section 7 of the
ESA, on the issuance of an IHA to NOAA under section 101(a)(5)(D) of
the MMPA by the NMFS Permits and Conservation Division. The Biological
Opinion concluded that the proposed action is not likely to jeopardize
the continued existence of Mexico DPS of humpback whales, and is not
likely to destroy or adversely modify Mexico DPS of humpback whales
critical habitat.
Authorization
NMFS has issued an IHA to NOAA for the potential harassment of
small numbers of nine marine mammal species incidental to the NOAA Port
Facility Project in Ketchikan, provided the previously mentioned
mitigation, monitoring, and reporting requirements are followed.
Dated: February 3, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-02633 Filed 2-7-22; 8:45 am]
BILLING CODE 3510-22-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.