Notice2022-24812
Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental To the Parallel Thimble Shoal Tunnel Project in Virginia
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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
November 15, 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 a Renewal incidental harassment authorization (IHA) to Chesapeake Tunnel Joint Venture (CTJV) to incidentally harass marine mammals incidental to the Parallel Thimble Shoal Tunnel Project (PTST) in Virginia Beach, Virginia.
Full Text
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<title>Federal Register, Volume 87 Issue 219 (Tuesday, November 15, 2022)</title>
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[Federal Register Volume 87, Number 219 (Tuesday, November 15, 2022)]
[Notices]
[Pages 68462-68466]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-24812]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC50]
Takes of Marine Mammals Incidental To Specified Activities;
Taking Marine Mammals Incidental To the Parallel Thimble Shoal Tunnel
Project in Virginia
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of renewal 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 a Renewal incidental harassment authorization
(IHA) to Chesapeake Tunnel Joint Venture (CTJV) to incidentally harass
marine mammals incidental to the Parallel Thimble Shoal Tunnel Project
(PTST) in Virginia Beach, Virginia.
DATES: This Renewal IHA is valid from 16 November 2022 through 15
November 2023.
FOR FURTHER INFORMATION CONTACT: Cara Hotchkin, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application, renewal request, and supporting documents (including NMFS
Federal Register notices of the original proposed and final
authorizations, and the previous IHA), 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 proposed or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization is provided to the public for
review.
[[Page 68463]]
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 such species or stocks for
taking for certain subsistence uses (referred to here as ``mitigation
measures''). Monitoring and reporting of such takings are also
required. The meaning of key terms such as ``take,'' ``harassment,''
and ``negligible impact'' can be found in section 3 of the MMPA (16
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods of time not to
exceed one year for each reauthorization. In the notice of proposed IHA
for the initial authorization, NMFS described the circumstances under
which we would consider issuing a renewal for this activity, and
requested public comment on a potential renewal under those
circumstances. Specifically, on a case-by-case basis, NMFS may issue a
one-time one-year Renewal IHA following notice to the public providing
an additional 15 days for public comments when (1) up to another year
of identical or nearly identical, or nearly identical, activities as
described in the Detailed Description of Specified Activities section
of the initial IHA issuance notice is planned or (2) the activities as
described in the Detailed Description of Specified Activities section
of the initial IHA issuance notice would not be completed by the time
the initial IHA expires and a renewal would allow for completion of the
activities beyond that described in the DATES section of the initial
IHA issuance, provided all of the following conditions are met:
(1) A request for renewal is received no later than 60 days prior
to the needed Renewal IHA effective date (recognizing that the Renewal
IHA expiration date cannot extend beyond 1 year from expiration of the
initial IHA);
(2) The request for renewal must include the following:
<bullet> An explanation that the activities to be conducted under
the requested Renewal IHA are identical to the activities analyzed
under the initial IHA, are a subset of the activities, or include
changes so minor (e.g., reduction in pile size) that the changes do not
affect the previous analyses, mitigation and monitoring requirements,
or take estimates (with the exception of reducing the type or amount of
take);
<bullet> A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized; and
(3) Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed renewal. A description of the renewal process
may be found on our website at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>.
History of Request
On November 16, 2021, NMFS issued an IHA to CJTV to take marine
mammals incidental to the Parallel Thimble Shoal Tunnel Project in
Virginia Beach, Virginia (86 FR 67024, November 24, 2021), effective
from November 16, 2021 through November 15, 2022. On August 24, 2022,
NMFS received an application for the renewal of that initial IHA. As
described in the application for Renewal IHA, the activities for which
incidental take is requested are nearly identical to, and a subset of,
those covered in the initial authorization. The project has experienced
delays and a portion of the work covered in the initial IHA will not be
completed by the time it expires. As required, the applicant also
provided a preliminary monitoring report which confirms that the
applicant has implemented the required mitigation and monitoring, and
which also shows that no impacts of a scale or nature not previously
analyzed or authorized have occurred as a result of the activities
conducted. The notice of the proposed Renewal IHA was published on
October 18, 2022 (87 FR 63037).
Description of the Specified Activities and Anticipated Impacts
CTJV's planned activities include construction associated with the
PTST project. Specifically, the location, timing, and nature of the
activities, including the types of equipment planned for use, are
identical to those described in the initial IHA. The precise details of
the work planned under the Renewal IHA are nearly identical to that
described in the initial IHA; the planned work includes a subset of the
initial activities, as well as some additional work that involves
additional piles of identical type and driving methods as initially
proposed. Details of the additional work are described below. The
project consists of the construction of a two-lane parallel tunnel to
the west of the existing Thimble Shoal Tunnel, connecting Portal
Islands Nos. 1 and 2 of the Chesapeake Bay Bridge Tunnel (CBBT)
facility which extends across the mouth of the Chesapeake Bay near
Virginia Beach, Virginia. The PTST project will address existing
constraints to regional mobility based on current traffic volume along
the facility. Planned construction associated with the initial IHA
included the driving of 764 piles over 252 days as shown below:
<bullet> 722 36-inch steel pipe piles; and
<bullet> 42 42-inch steel pipe piles.
Of these planned activities, under the initial IHA CTJV installed a
total of 423 36-inch pipe piles and 26 42-inch pipe piles, a total of
449 piles. The remaining 16 42-inch piles have been eliminated from the
construction plan due to a change in design. This change includes the
use of 163 additional 36-inch piles instead of the originally requested
42-inch piles. Remaining piles will be installed using impact driving,
vibratory driving and drilling with down-the-hole (DTH) hammers. Some
piles will be removed via vibratory hammer. Accounting for work
conducted under the initial IHA and the design change resulting in an
increase in total piles, CTJV plans to drive 462 piles over an
estimated 206 days under this Renewal IHA.
The anticipated impacts are identical to those described in the
initial IHA. NMFS anticipates the take of the same five species of
marine mammal (harbor seal, gray seal, bottlenose dolphin, harbor
porpoise, and humpback whale) by Level A and Level B harassment
incidental to underwater noise resulting from construction associated
with the activities. For additional detail, please see the Federal
Register notice of proposed Renewal IHA (87 FR 63037, October 18,
2022).
[[Page 68464]]
Detailed Description of the Activity
A detailed description of the activities to be conducted under the
Renewal IHA may be found in the Federal Register notice for the
proposed IHA for the Renewal authorization (87 FR 63037, October 18,
2022) and the proposed initial IHA (86 FR 56902, October 13, 2021). The
location, timing (e.g., seasonality), and nature of the pile driving
operations, including the type and size of piles and the methods of
pile driving, are identical to those analyzed in the previous notices.
The Renewal IHA would be effective for a period of one year from the
date of expiration of the initial IHA.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which take is authorized here, including information on abundance,
status, distribution, and hearing, may be found in the Federal Register
notice for the proposed IHA for the initial authorization (86 FR 56902,
October 13, 2021). Updated information regarding stock abundance was
provided in the Federal Register notice announcing issuance of the
initial IHA (86 FR 67024, November 24, 2021). NMFS has reviewed recent
Stock Assessment Reports, information on relevant Unusual Mortality
Events, and other scientific literature. NMFS has preliminarily
determined that neither this nor any other new information affects
which species or stocks have the potential to be affected or the
pertinent information in the Description of the Marine Mammals in the
Area of Specified Activities contained in the supporting documents for
the initial IHA.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which take is
authorized may be found in the Federal Register notice for the proposed
initial IHA (86 FR 56902, October 13, 2021). NMFS has reviewed the
monitoring data from the initial IHA, recent Stock Assessment Reports,
information on relevant UMEs, and other scientific literature, and
determined that neither this nor any other new information affects our
initial analysis of impacts on marine mammals and their habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the Federal Register
notices for the proposed and final initial IHAs (86 FR 56902, October
13, 2021; 86 FR 67024, November 24, 2021). The source levels and marine
mammal occurrence data applicable to this authorization remain
unchanged from the initial IHA. CTJV conducted approximately 50 percent
of the planned work and has replaced all remaining 42-inch piles with
additional 36-inch piles. The approximate total number of operational
days for this Renewal IHA is lower than the initial IHA. However,
because the take numbers developed for most species for which take is
authorized involve qualitative elements and because the reduction in
total days would not result in a substantive decrease in the take
number for bottlenose dolphin (i.e., the only species for which a
density-based approach to estimating take is used), we carry forward
the take numbers unchanged for this Renewal IHA. The stocks taken,
methods of take, and types of take remain unchanged from the previously
issued IHA, as do the number of takes, which are indicated below in
Table 1.
Table 1--Estimated Take Authorized
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Species Stock Level A takes Level B takes
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Humpback whale................................ Gulf of Maine................... .............. 12
Harbor porpoise............................... Gulf of Maine/Bay of Fundy...... 5 7
Bottlenose dolphin............................ WNA \1\ Coastal, Northern .............. 43,203
Migratory.
WNA Coastal, Southern Migratory. .............. 43,203
NNCES \2\....................... .............. 250
Harbor seal................................... Western North Atlantic.......... 1,154 1,730
Gray seal..................................... Western North Atlantic.......... 16 24
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\1\ Western North Atlantic.
\2\ Northern North Carolina Estuarine System.
Description of Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring, and reporting measures included as
requirements in this authorization are identical to those included in
the Federal Register notice announcing the issuance of the initial IHA
(86 FR 67024, November 24, 2021), and the discussion of the least
practicable adverse impact included in that document remains accurate.
Further detail regarding the mitigation, monitoring, and reporting
requirements prescribed through the IHA can be found in the notice of
issuance for the initial IHA (86 FR 67024, November 24, 2021). The
following measures are included in this renewal:
<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 CTJV 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;
<bullet> CTJV will establish and implement the shutdown zones
indicated in Table 2. 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;
<bullet> Employ Protected Species Observers (PSOs) and establish
monitoring locations as described in the Marine Mammal Monitoring Plan
and Section 5 of the initial IHA. The Holder
[[Page 68465]]
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
one PSO must be used. The PSO will be stationed as close to the
activity as possible;
<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;
<bullet> CTJV 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; and
<bullet> Use a bubble curtain during impact and vibratory pile
driving and DTH in water depths greater than 3 m and ensure that it is
operated as necessary to achieve optimal performance, and that no
reduction in performance may be attributable to faulty deployment. At a
minimum, CTJV must adhere to the following performance standards: The
bubble curtain must distribute air bubbles around 100 percent of the
piling circumference for the full depth of the water column. The lowest
bubble ring must be in contact with the substrate for the full
circumference of the ring, and the weights attached to the bottom ring
shall ensure 100 percent substrate contact. No parts of the ring or
other objects shall prevent full substrate contact. Airflow to the
bubblers must be balanced around the circumference of the pile. For
work with interlocking pipe piles for the berm construction a special
three-sided bubble curtain will be used (see initial IHA Application
Appendix A).
Table 2--Shutdown Zones (meters) for Each Method
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Low-frequency Mid-frequency High-frequency
Method and piles/day cetaceans cetaceans cetaceans Phocids
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DTH (3/day).................................... 1,230 50 200 150
DTH (6/day).................................... 1,950 70 200 150
Impact (4/day)................................. 1,010 40 200 150
Impact (6/day)................................. 1,320 50 200 150
Vibratory (4/day).............................. 20 10 20 10
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Impact + DTH................................... Use zones for each source alone
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DTH + Vibratory................................ 1,230 50 200 150
Impact + Vibratory............................. 1,320 50 200 150
Impact + DTH + DTH............................. 1,320 50 200 150
DTH + DTH + Vibratory.......................... 1,950 70 200 1,050
DTH + Vibratory + Impact....................... 1,320 50 200 710
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Impact + Impact + DTH.......................... Use zones for each source alone
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Comments and Responses
NMFS received no public comments on the proposed Renewal IHA.
Determinations
The construction activities proposed by CTJV are nearly identical
to those analyzed in the initial IHA, as are the method of taking and
the effects of the action. The planned number of days of activity will
be reduced given the completion of a substantial portion (approximately
50 percent) of the originally planned work. Additionally, the work at
Portal Island No. 1 is nearly complete, with an estimated 11 days of
work remaining. This significantly reduces the likelihood of three
drills operating concurrently for the duration of the renewal period,
thus reducing the number of days where the largest impact zones would
be present. The potential effects of CTJV's activities are limited to
Level A and Level B harassment in the form of auditory injury and
behavioral disturbance. In analyzing the effects of the activities in
the initial IHA, NMFS determined that CTJV's activities would have a
negligible impact on the affected species or stocks and that the
authorized take numbers of each species or stock were small relative to
the relevant stocks (e.g., less than one-third of the abundance of all
stocks). The mitigation measures and monitoring and reporting
requirements as described above are identical to the initial IHA.
NMFS has concluded that there is no new information suggesting that
our analysis or findings should change from those reached for the
initial IHA. This includes consideration of the estimated abundance of
harbor seal decreasing slightly. Based on the information and analysis
contained here and in the referenced documents, NMFS has determined the
following: (1) the required mitigation measures will effect the least
practicable impact on marine mammal species or stocks and their
habitat; (2) the authorized takes will have a negligible impact on the
affected marine mammal species or stocks; (3) the authorized takes
represent small numbers of marine mammals relative to the affected
stock abundances; (4) CTJV's activities will not have an unmitigable
adverse impact on taking for subsistence purposes as no relevant
subsistence uses of marine mammals are implicated by this action, and;
(5) appropriate monitoring and reporting requirements are included.
[[Page 68466]]
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
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 (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 Renewal 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 whenever
we propose to authorize take for endangered or threatened species.
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this action.
Renewal
NMFS has issued a Renewal IHA to CTJV for the take of marine
mammals incidental to conducting pile driving activities at the Thimble
Shoal Tunnel in Virginia Beach, Virginia between 16 November 2022 and
15 November 2023.
Dated: November 9, 2022.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2022-24812 Filed 11-14-22; 8:45 am]
BILLING CODE 3510-22-P
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