Notice2022-26830
Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental to the Replacement of Pier 3 at Naval Station Norfolk in Norfolk, Virginia
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
December 9, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS is proposing to modify an incidental harassment authorization (IHA) that was issued to the United States Navy (Navy) on March 15, 2022 in association with construction activities related to the replacement of Pier 3 at Naval Station Norfolk in Norfolk, Virginia. As a result of necessary changes to the Navy's construction plan, NMFS is proposing to modify the Navy's IHA to increase authorized take by Level B harassment for bottlenose dolphins and take by Level A harassment for harbor seals. NMFS is also proposing to include appropriate, additional shutdown mitigation provisions for all species in the modified IHA. The monitoring and reporting measures remain the same as prescribed in the initial IHA. NMFS will also consider public comments on the requested modification prior to making any final decision and agency responses will be summarized in the final notice of our decision.
Full Text
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<title>Federal Register, Volume 87 Issue 236 (Friday, December 9, 2022)</title>
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[Federal Register Volume 87, Number 236 (Friday, December 9, 2022)]
[Notices]
[Pages 75600-75607]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26830]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC556]
Takes of Marine Mammals Incidental To Specified Activities;
Taking Marine Mammals Incidental to the Replacement of Pier 3 at Naval
Station Norfolk in Norfolk, Virginia
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed modification of an Incidental Harassment
Authorization (IHA); request for comments.
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SUMMARY: NMFS is proposing to modify an incidental harassment
authorization (IHA) that was issued to the United States Navy (Navy) on
March 15, 2022 in association with construction activities related to
the replacement of Pier 3 at Naval Station Norfolk in Norfolk,
Virginia. As a result of necessary changes to the Navy's construction
plan, NMFS is proposing to modify the Navy's IHA to increase authorized
take by Level B harassment for bottlenose dolphins and take by Level A
harassment for harbor seals. NMFS is also proposing to include
appropriate, additional shutdown mitigation provisions for all species
in the modified IHA. The monitoring and reporting measures remain the
same as prescribed in the initial IHA. NMFS will also consider public
comments on the requested modification prior to making any final
decision and agency responses will be summarized in the final notice of
our decision.
DATES: Comments and information must be received no later than December
27, 2022.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service. Written comments should be submitted
via email to <a href="/cdn-cgi/l/email-protection#baf3eeea94f9d5c8d9d5c8dbd4fad4d5dbdb94ddd5cc"><span class="__cf_email__" data-cfemail="b1f8e5e19ff2dec3d2dec3d0dff1dfded0d09fd6dec7">[email protected]</span></a>.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. Attachments to comments will be
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All
comments received are a part of the public record and will generally be
posted 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> without change. All
personal identifying information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information.
FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application and supporting documents (including 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:
[[Page 75601]]
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such 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 such takings are set forth.
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 remains 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 preliminarily determined that the issuance of the
proposed modified IHA continues to qualify to be categorically excluded
from further NEPA review.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process or making a final decision on the
IHA request.
History of Request
On March 15, 2022, NMFS issued an incidental harassment
authorization (IHA) to the Navy to incidentally harass, by Level A and
Level B harassment only, marine mammals during construction activities
associated with the Pier 3 Replacement Project at Naval Station
(NAVFAC) Norfolk in Norfolk, Virginia (87 FR 15945; March 21, 2022).
Species authorized for take included humpback whale (Megaptera
novaeangliae), bottlenose dolphin (Tursiops truncatus), harbor porpoise
(Phocoena phocoena), harbor seal (Phoca vitulina), and gray seal
(Halichoerus grypus). The effective dates of this IHA are April 1, 2022
through March 31, 2023.
On July 29, 2022, NMFS received a request from the Navy for a
modification to the Pier 3 Replacement project IHA due to a change in
the construction contractor's plan, to include concurrent pile driving
and drilling activities. During consultation for the initial IHA, the
Navy did not anticipate the need for concurrent activities in the first
year of work. This IHA covers 1 year of a larger project for which the
Navy has submitted a request for a Letter of Authorization (LOA) (87 FR
60998; October 7, 2022) for additional work occurring from April 1,
2023 through March 31, 2028. However, the construction contractor has
since determined that in order to meet the scope requirements and dates
to complete the pier, concurrent activities would be necessary within
the first year of construction. Therefore, the Navy is requesting, and
NMFS is proposing, to modify the 2022 IHA to include concurrent pile
driving and drilling activities. This change may increase both Level A
and Level B harassment isopleths and result in an increased estimate of
exposures by Level B harassment for bottlenose dolphin and by Level A
harassment for harbor seal. NMFS has determined that the changes also
necessitate revised shutdown mitigation provisions for concurrent pile
driving scenarios for all species. The monitoring and reporting
measures remain the same as prescribed in the initial IHA, and no
additional take is requested or proposed for other species.
Description of the Proposed Activity and Anticipated Impacts
The modified IHA would include the same construction activities
(i.e., impact pile driving, vibratory pile driving and removal, and
drilling) in the same locations that were described in the initial IHA.
The monitoring and reporting measures remain the same as prescribed in
the initial IHA, while revisions to the required mitigation measures
have been proposed. NMFS refers the reader to relevant documents
related to issuance of the initial IHA, including the Navy's
application, the notice of proposed IHA and request for comments (87 FR
3976; January 26, 2022), and notice of issued IHA (87 FR 15945; March
21, 2022) (available at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-replacement-pier-3-naval-station-norfolk-norfolk-virginia">https://www.fisheries.noaa.gov/action/incidental-take-authorization-replacement-pier-3-naval-station-norfolk-norfolk-virginia</a>) for more detailed description of the project
activities.
Detailed Description of the Action
A detailed description of the construction activities is found in
the aforementioned documents associated with issuance of the initial
IHA. The location, time of year, and nature of the activities,
including the types of piles and methods of installation and removal
are identical to those described in the previous documents. However, as
noted in the History of Request section, the Navy anticipates that
concurrent pile driving would be necessary to complete year one
activities on time. Potential concurrent activity scenarios for year
one can be found in Table 1. For individual pile driving activities,
the Level A and Level B harassment zones remain unchanged (see initial
IHA (87 FR 3976; January 26, 2022)), however for concurrent pile
driving scenarios harassment zones increased. Therefore, the larger
harassment zone for each scenario was used to calculate exposure
estimates as well as to determine appropriate shutdown zones.
[[Page 75602]]
Table 1--Potential Concurrent Activity Scenarios
----------------------------------------------------------------------------------------------------------------
Total
Scenario locations Concurrent scenarios equipment Equipment Number of days
quantity (quantity)
----------------------------------------------------------------------------------------------------------------
Pier 3T and Pier 4............... Vibratory extract 14- 2 Vibratory Hammer 16
inch timber or 18-inch (2).
concrete piles at Pier
3T and vibratory
extract 14-inch timber
piles at Pier 4.
Pier 3T and Pier 4............... Vibratory extract 14- 3 Vibratory Hammer 41
inch timber or 18-inch (2), Impact Hammer
concrete piles at Pier (1).
3T and impact install
24-inch concrete piles.
Pier 3T and Pier 4............... Vibratory extract 14- 3 Vibratory Hammer 30
inch timber or 18-inch (2), Rotary Drill
concrete piles at Pier (1).
3T and rotary drill 24-
inch concrete piles.
Pier 3T, CEP-176, and CEP-102.... Vibratory extract 14- 3 Vibratory Hammer 34
inch timber or 18-inch (2), Impact Hammer
concrete piles at Pier (1).
3T, vibratory or impact
install 42-inch pipe
piles at CEP-176 and
CEP-102.
Pier 3T and CEP-176.............. Vibratory extract 14- 3 Vibratory Hammer 67
inch timber or 18-inch (2), Impact Hammer
concrete piles at Pier (1).
3T, vibratory or impact
install 42-inch pipe
piles at CEP-176, and
vibratory or impact
install 28-inch sheet
pile at CEP-176.
Pier 3T and Pier 3............... Vibratory extract 14- 2 Vibratory Hammer 13
inch timber and or 18- (1), Impact Hammer
inch concrete piles at (1).
Pier 3T and impact
hammer 24-inch concrete.
Pier 3T and Pier 3............... Vibratory extract 14- 2 Vibratory Hammer 33
inch timber or 18-inch (1), Rotary Drill
concrete piles at Pier (1).
3T and rotary drill 24-
inch concrete.
----------------------------------------------------------------------------------------------------------------
Description of Marine Mammals
A description of the marine mammals in the area of the activities
is found in these previous documents, which remains applicable to this
modified IHA as well. In addition, NMFS has reviewed the 2021 Stock
Assessment Reports (Hayes et al., 2022), information on relevant
Unusual Mortality Events, and recent scientific literature, and
determined that no new information affects our original analysis of
impacts under the initial IHA. (Note that the Potential Biological
Removal of the gray seal Western North Atlantic stock increased from
1,389 to 1,458, and annual mortality and serious injury of the harbor
porpoise Gulf of Maine/Bay of Fundy stock decreased from 217 to 164).
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in the documents
supporting the initial IHA, which remains applicable to the issuance of
this modified IHA. NMFS is not aware of new information regarding
potential effects.
Estimated Take
A detailed description of the methods and inputs used to estimate
authorized take for the specified activity are found in the notice of
issuance of the initial Pier 3 Replacement IHA (87 FR 15945; March 21,
2022). The types and sizes of piles, installation methods, and marine
mammal stocks taken remain unchanged from the initial IHA. The proposed
modification includes concurrent pile driving activities which could
result in increased SPLs and harassment zone sizes given the proximity
of the component driving sites and the physical rules of decibel
addition. The Navy anticipates that concurrent use of up to three
hammers producing continuous noise could occur on 70 days. Given that
the use of more than one hammer for pile installation and removal on
the same day (whether simultaneous or not) would increase the number of
piles installed per day, this would be anticipated to result in a
reduction in total number of days of pile installation. Table 1 shows
potential scenarios for concurrent pile driving. However, as described
further below, the Navy has conservatively calculated take for both
individual and concurrent pile driving scenarios and requested
authorization of take for the most conservative scenario.
NMFS (2018b) analyzes overlapping sound fields created by the use
of more than one hammer differently for impulsive (impact hammer and
Level A harassment zones for drilling with a DTH hammer) and continuous
sound sources (vibratory hammer and Level B harassment zones for
drilling with a DTH hammer; Table 7) and differently for impulsive
sources with rapid impulse rates of multiple strikes per second (DTH)
and slow impulse rates (impact hammering) (NMFS 2021). It is unlikely
that the two impact hammers would strike at the same instant, and
therefore, the SPLs would not be adjusted regardless of the distance
between impact hammers. In this case, each impact hammer would be
considered to have its own independent harassment zones.
When two continuous noise sources, such as vibratory hammers and
drills, have overlapping sound fields, there is potential for higher
sound levels than for non-overlapping sources. When two or more
vibratory hammers are used simultaneously, and the isopleth of one
sound source encompasses the isopleth of another sound source, the
sources are considered additive and source levels are combined using
the rules in Table 2.
Table 2--Rules for Combining Sound Source Levels Generated During Pile Installation
----------------------------------------------------------------------------------------------------------------
Hammer types Difference in SSL Level A zones Level B zones
----------------------------------------------------------------------------------------------------------------
Vibratory, Impact.................. Any......................... Use impact zones...... Use largest zones.
Impact, Impact..................... Any......................... Use zones for each Use zone for each
pile size and number pile size.
of strikes.
[[Page 75603]]
Vibratory, Vibratory or Vibratory, 0 or 1 dB................... Add 3 dB to the higher Add 3 dB to the
Drilling. source level. higher source level.
2 or 3 dB................... Add 2 dB to the higher Add 2 dB to the
source level. higher source level.
4 to 9 dB................... Add 1 dB to the higher Add 1 dB to the
source level. higher source level.
10 dB or more............... Add 0 dB to the higher Add 0 dB to the
source level. higher source level.
----------------------------------------------------------------------------------------------------------------
During pile driving, it is common for pile installation to start
and stop multiple times as each pile is adjusted and its progress is
measured and documented, though as stated above, for short durations,
it is anticipated that multiple hammers could be in use simultaneously.
Following the rules for combining sound source levels, decibel addition
calculations were carried out for each possible concurrent pile driving
scenario. The source levels included in Table 3 are used to estimate
the Level A harassment zones and Level B harassment zones. No addition
is warranted for impact pile driving in combination with vibratory.
Table 3--Revised Proxy Values for Simultaneous Use of Non-Impulsive
Sources
------------------------------------------------------------------------
Scenario location Activity and proxy Revised proxy
------------------------------------------------------------------------
Pier 3T and Pier 4........... Vibratory Extract 14- 165 dB RMS.
inch timber at Pier
3T--162 dB RMS.
Vibratory extract 14-
inch timber Pier 4--
162 dB RMS.
Vibratory Extract 18- 165 dB RMS.
inch concrete piles
at Pier 3T--162 dB
RMS.
Vibratory Extract 14-
inch timber piles at
Pier 4--162 dB RMS.
Vibratory extract 14- 166 dB RMS.
inch timber piles at
Pier 3T--162 dB RMS.
Vibratory extract 18-
inch concrete Piles
at Pier 3T--162 dB
RMS.
Rotary drill 24-inch
concrete piles at
Pier 4--154 dB RMS.
Pier 3T, CEP-176, and CEP-102 Vibratory extract 14- 169 dB RMS.
inch timber at Pier
3T--162 dB RMS.
Vibratory install 42-
inch pipe at CEP-176
or CEP-102--168 dB
RMS.
Vibratory extract 18- 169 dB RMS.
inch concrete at
Pier 3T--162 dB RMS.
Vibratory install 42-
inch pipe at CEP-176
or CEP-102--168 dB
RMS.
Pier 3T and Pier 3........... Vibratory extract 14- 163 dB RMS.
inch timber at Pier
3T--162 dB RMS.
Rotary drill 24-inch
concrete piles at
Pier 4--154 dB RMS.
Vibratory extract 18- 163 dB RMS.
inch concrete at
Pier 3T--162 dB RMS.
Rotary drill 24-inch
concrete piles at
Pier 4--154 dB RMS.
------------------------------------------------------------------------
The size of the Level A harassment zones and Level B harassment
zones using the source levels in Table 3 result in larger isopleths
(see Table 4 for isopleth distances) compared to individual activities.
Table 4--Level A and Level B Harassment Isopleths for Concurrent Pile Driving Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A (m)
Activity Pile location Scenario Source -------------------------------------------- Level B
level LF MF HF Phocids (m/km2)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Pile Extraction........... Pier 3T and pier 4..... Remove two 14-inch 165 51 5 75 31 10,000
timber piles.
Vibratory Pile Extraction........... Pier 3T and pier 4..... Remove 18-inch concrete 165 51 5 75 31 10,000
and 14-inch timber
piles.
Vibratory Pile Extraction and Pier 3T and pier 4..... Remove 14-inch timber 166 59 5 87 36 11,659
Drilling. and 18-inch concrete
piles at Pier 3T and
rotary drill for 24-
inch concrete piles at
Pier 4.
Vibratory Pile Extraction and Pier 3T, CEP-176, and Remove 14-inch timber 169 194 17 287 118 18,479
Drilling. CEP-102. at Pier 3T and install
42-inch pipe at either
CEP-176 or CEP-102.
Vibratory Pile Extraction and Pier 3T, CEP-176, and Remove 18-inch concrete 169 194 17 287 118 18,479
Drilling. CEP-102. at Pier 3T and install
42-inch pipe at either
CEP-176 or CEP-102.
Vibratory Pile Extraction and Pier 3T and Pier 3..... Remove 14-inch timber 163 43 4 64 26 7,356
Drilling. piles at Pier 3T and
rotary drill for 24-
inch concrete piles at
new Pier 3.
Vibratory Pile Extraction and Pier 3T and Pier 3..... Remove 18-inch concrete 163 43 4 64 26 7,356
Drilling. piles at Pier 3T and
rotary drill for 24-
inch concrete piles at
new Pier 3.
--------------------------------------------------------------------------------------------------------------------------------------------------------
With the exception of bottlenose dolphins, which is the only
species where densities and harassment isopleths are used to determine
take estimates as opposed to local occurrence data, the total taking by
Level B harassment of all species is predicted to be the same or lower
with concurrent activity scenarios due to a decrease in number of
construction days (see Table 5 for calculated take estimate
comparison), therefore the authorized take for these species remains
unchanged from the initial IHA to account for the most conservative
[[Page 75604]]
scenario. As stated in the initial Pier 3 IHA (87 FR 15945; March 21,
2022), the total take number for all species, except bottlenose
dolphin, were estimated using local occurrence data, therefore take
estimates were determined by multiplying the number of pile driving
days by assumed daily occurrence for each species. As the number of
pile driving days under concurrent scenarios is lower than the number
of days anticipated for individual activities, the calculated takes
were lower than what was originally authorized through the initial IHA.
Please see the notice of issuance for the initial Pier 3 IHA (87 FR
15945; March 21, 2022) for a detailed explanation of how take estimates
were calculated for individual pile driving activities for these
species.
The total take number for bottlenose dolphin was estimated using
inshore seasonal densities provided in Engelhaupt et al. (2016) from
vessel line-transect surveys near NAVSTA Norfolk and adjacent areas
near Virginia Beach, Virginia from August 2012 through August 2015.
This density includes sightings inshore of the Chesapeake Bay from
NAVSTA Norfolk west to the Thimble Shoals Bridge, and is the most
representative density for the project area. NMFS multiplied the
density of 1.38 dolphins per square kilometer by the Level B harassment
zone area for each activity for the project, and then by the number of
days associated with that activity (see Table 1). The Level B
harassment zones increased as a result of concurrent pile driving
activities; therefore, calculated Level B harassment exposure estimates
also increased as a result. As described in the notice of the initial
proposed and issued IHA, there is insufficient information on relative
abundance to apportion the takes precisely to each of the three stocks
in the area. Therefore, the same approach as used in previous projects
(e.g., Hampton Roads Bridge Tunnel project (86 FR 17458; April 2,
2021), and the U.S. Navy Norfolk Maintenance Rule (86 FR 24340; May 6,
2021)) was used to estimate the appointment of takes to each of the
three bottlenose dolphin stocks that may be present in the area. Given
that most of the Northern North Carolina Estuarine Stock (NNCES) are
found in the Pamlico Sound Estuary, over 160 kilometers from Norfolk,
we conservatively estimated that no more than 200 of the requested
takes will be from this stock. Since members of the northern migratory
coastal and southern migratory coastal stocks are thought to occur in
or near the Bay in greater numbers, we conservatively assume that no
more than half of the remaining takes will accrue to either of these
stocks. Additionally, a subset of these takes would likely be comprised
of the Chesapeake Bay resident dolphins, although the size of that
population is unknown.
With the exception of harbor seals, the total taking by Level A
harassment of all species is predicted to be the same or lower with the
concurrent activity scenario given the decreased number of pile driving
days anticipated and therefore the authorized take by Level A
harassment remains unchanged from the initial IHA to be conservative.
To remain consistent with the calculations used to determine take by
Level A harassment for harbor seals in the proposed rulemaking for
years two through five of the Navy's Pier 3 Replacement project (87 FR
60998; October 7, 2022), the Navy has requested to increase the number
of takes by Level A harassment for harbor seals to reflect the
potential of one seal per day (of 13.6 seals per day occurrence), or 20
percent of the total taking, to remain within the Level A harassment
area and within the shutdown zone for sufficient prior to detection
that Level A harassment would actually occur. Similar methodologies
were applied for gray seal which resulted in no estimated change in the
number of takes by Level A harassment.
The total numbers of incidental takes by Level A harassment and
Level B harassment, including proposed updated Level A harassment
numbers for harbor seal and Level B harassment numbers for bottlenose
dolphin, are shown in Table 5. The total number of takes (Level A
harassment and Level B harassment combined) has not changed for harbor
seal because the additional takes by Level A harassment are assumed to
occur to animals that would have previously been counted as taken by
Level B harassment. Therefore, NMFS is proposing to reduce the
authorized Level B harassment take of harbor seal by the same amount
that the Level A harassment estimate is increased.
Table 5--Proposed Total Numbers of Authorized Takes by Level A and Level B Harassment and as a Percentage of the Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A Level B Percent of
Species Stock harassment harassment Total taking stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale................................. Gulf of Maine \a\...................... 0 12 12 0.9
Bottlenose dolphin \b\ \c\ \d\................. WNA Coastal, Northern Migratory........ 0 14,841 14,841 223.5
WNA Coastal, Southern Migratory........ 0 14,841 14,841 395.7
Northern NC Estuarine.................. 0 200 200 24.3
Harbor porpoise................................ Gulf of Maine/Bay of Fundy............. 10 12 22 0.0
Harbor seal.................................... WNA.................................... 152 1,092 1,244 2.0
Gray seal...................................... WNA.................................... 1 2 3 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ West Indies DPS. Please see the Description of Marine Mammals in the Area of Specified Activities section in the initial IHA for further discussion.
\b\ Takes estimates are weighted based on calculated percentages of population for each distinct stock, assuming animals present would follow the same
probability of presence in the project area. Please see the Small Numbers section for additional information.
\c\ Assumes multiple repeated takes of the same individuals from a small portion of each stock as well as repeated takes of Chesapeake Bay resident
population (size unknown). Please see the Small Numbers section for additional information.
\d\ Total proposed authorized takes by Level B harassment increased from 14,989 in the initial IHA to 29,882.
\e\ Total proposed authorized takes by Level A harassment increased from 16 in the initial IHA to 152, however the total take (1244) has not increased.
Description of Proposed Mitigation, Monitoring and Reporting Measures
With the exception of the revised shutdown provisions for
concurrent pile driving scenarios discussed below, the monitoring and
reporting measures described here are identical to those included in
the initial Pier 3 IHA (87 FR 15945; March 21, 2022).
In addition to the measures described later in this section, the
Navy will
[[Page 75605]]
employ the following mitigation measures:
<bullet> Avoid direct physical interactions with marine mammals
during construction activity. If a marine mammal comes within 10 meters
of such activity, operations must cease and vessels must reduce speed
to the minimum level required to maintain steerage and safe working
conditions, as necessary to avoid direct physical interaction;
<bullet> The Navy will conduct trainings between construction
supervisors and crews and the marine mammal monitoring team prior to
the start of all activities subject to this IHA and when new personnel
join the work, to explain responsibilities, communication procedures,
marine mammal monitoring protocol, and operational procedures; and
<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.
The following monitoring measures apply to the Navy's in water
construction activities:
<bullet> Protected Species Observers (PSOs)--The placement of PSOs
during all pile driving, removal, and drilling activities will ensure
that the entire shutdown zone is visible. Should environmental
conditions deteriorate such that the entire shutdown zone would not be
visible (e.g., fog, heavy rain), pile driving, removal, and drilling
must be delayed until the PSO is confident marine mammals within the
shutdown zone could be detected.
<bullet> Monitoring for Level A and Level B Harassment--The Navy
will monitor the Level B harassment zones to the extent practicable,
and all of the Level A harassment zones. The Navy will monitor at least
a portion of the Level B harassment zone on all pile driving, removal,
or drilling days. Monitoring zones provide utility for observing by
establishing monitoring protocols for areas adjacent to the shutdown
zones. Monitoring zones enable observers to be aware of and communicate
the presence of marine mammals in the project area outside the shutdown
zone and thus prepare for a potential cessation of activity should the
animal enter the shutdown zone.
<bullet> Pre-Activity Monitoring--Prior to the start of daily in
water construction activity, or whenever a break in pile driving/
removal of 30 minutes or longer occurs, PSOs will observe the shutdown
and monitoring zones for a period of 30 minutes. The shutdown zone will
be considered cleared when a marine mammal has not been observed within
the zone for that 30 minute period. If a marine mammal is observe
within the shutdown zones listed in Table 6, pile driving, removal, and
drilling activities must be delayed or halted. If pile driving,
removal, and/or drilling 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 zones or 15 minutes have passed without re-detection of the
animal. When a marine mammal for which Level A harassment take is
authorized is present in the Level B harassment zone, activities may
begin and Level B harassment take will be recorded. If work ceases for
more than 30 minutes, the pre-activity monitoring of the shutdown zones
will commence. A determination that the shutdown zone is clear must be
made during a period of good visibility (i.e., the entire shutdown zone
and surrounding waters must be visible to the naked eye).
<bullet> Soft Start--Soft start procedures are used to provide
additional protection to marine mammals by providing and/or giving
marine mammals a chance to leave the area prior to the hammer operating
at full capacity. For impact pile driving, contractors will be required
to provide an initial set of three strikes from the hammer at reduced
energy, followed by a 30-second waiting period, then two subsequent
reduced energy strike sets. Soft start will 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.
<bullet> Reporting--PSOs must record specific information as
described in the Federal Register notice of the issuance of the initial
IHA (87 FR 15945; March 21, 2022). Within 90 days after completion of
pile driving and removal activities, the Navy must provide NMFS with a
monitoring report which includes summaries of recorded takes and
estimates of the number of marine mammals that may have been harassed.
If no comments are received by 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.
<bullet> Establishment of Shutdown Zones--The Navy will establish
shutdown zones for all pile driving, removing, and drilling activities.
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 will vary based on the activity type and marine mammal
hearing group (Table 6). For every pile driving activity, shutdown is
mandatory whenever an animal is within 10 m of a pile driving location.
In such instances, in-water pile driving operations may only continue
after 15 minutes have passed or the animal is seen heading away from
the 10 m shutdown zone.
Table 6--Proposed Shutdown Zones (m) During Concurrent Pile Driving Scenarios
[Shutdown zones for Individual pile driving activities remain unchanged from the initial IHA.]
----------------------------------------------------------------------------------------------------------------
Shutdown zones
-----------------------------------------------
Activity Humpback Harbor Dolphins and
whale * porpoise seals
----------------------------------------------------------------------------------------------------------------
Vibratory Remove two 14-inch timber piles....................... 55 55 35
Vibratory Remove 18-inch concrete and 14-inch timber piles...... 55 55 35
Vibratory Remove 14-inch timber and 18-inch concrete piles at 60 60 35
Pier 3T and rotary drill for 24-inch concrete piles at Pier 4..
Vibratory Remove 14-inch timber at Pier 3T and Vibratory install 200 200 50
42-inch pipe at either CEP-176 or CEP-102......................
Vibratory Remove 18-inch concrete at Pier 3T and Vibratory 200 200 50
install 42-inch pipe at either CEP-176 or CEP-102..............
Vibratory Remove 14-inch timber piles at Pier 3T and rotary 45 45 30
drill for 24-inch concrete piles at new Pier 3.................
[[Page 75606]]
Vibratory Remove 18-inch concrete piles at Pier 3T and rotary 45 45 30
drill for 24-inch concrete piles at new Pier 3.................
----------------------------------------------------------------------------------------------------------------
* Shutting down to the maximum distance to the Level A harassment threshold. No takes by Level A harassment are
expected to occur or proposed for authorization.
Based on our evaluation of the applicant's measures in
consideration of the increased estimated take for bottlenose dolphin,
as well as the modified shutdown provisions for concurrent pile driving
scenarios, NMFS has re-affirmed the determination that the required
mitigation measures, as proposed to be modified here, provide the means
of effecting the least practicable impact on the affected species and
their habitat.
Preliminary Determinations
With the exception of the revised take numbers and shutdown
procedures, the Navy's in water construction activities as well as
monitoring and reporting requirements are unchanged from those in the
initial IHA. The effects of the activity on the affected species and
stocks, taking into consideration the modified mitigation and related
monitoring measures, remain unchanged, notwithstanding the increase to
the authorized amount of harbor seal take by Level A harassment, and to
the authorized amount of bottlenose dolphin take by Level B harassment.
The takes from Level A and Level B harassment would be due to
potential behavioral disturbance, temporary threshold shift (TTS), and
potentially but unlikely, permanent threshold shift (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 Description of Mitigation, Monitoring and Reporting
Measures section).
The Level A harassment zones identified in Table 4 are based upon
an animal exposed to pile driving or drilling multiple concurrent piles
per day. Considering the short duration to drive each pile and breaks
between pile installations (to reset equipment and move pile into
place), means an animal would have to remain within the area estimated
to be ensonified above the Level A harassment threshold for multiple
hours. With the addition of concurrent pile driving, the Navy
anticipates fewer construction days than with individual pile driving
which will ultimately reduce exposure time for all species.
Additionally, no Level A harassment is anticipated for humpback whales
due to the proposed mitigation measures to shutdown to the full extent
of the Level A harassment zone, which we expect the Navy will be able
to effectively implement given the reasonable Level A harassment zone
sizes and high visibility of humpback whales. 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 Navy's proposed pile driving project precludes the likelihood
of serious injury or mortality. For all species and stocks, take would
occur within a limited, confined area (immediately surrounding NAVSTA
Norfolk in the Chesapeake Bay area) 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.
Furthermore, the amount of take proposed to be authorized is extremely
small when compared to stock abundance.
There are three bottlenose dolphin stocks that could occur in the
project area. Therefore, the estimated 29,882 incidents of dolphin take
by Level B harassment would likely be split among the western North
Atlantic northern migratory coastal stock, the western North Atlantic
southern migratory coastal stock, and the northern North Carolina
Estuarine stock (NNCES), and is expected to involve repeated takes of a
limited subset of individuals of these stocks. Based on the stocks'
respective occurrence in the area, NMFS estimates that there would be
no more than 200 takes from the NNCES stock, representing 24 percent of
that population, with the remaining takes split evenly between the
northern and southern migratory coastal stocks. Based on the
consideration of various factors as described below, we have determined
the number of individuals taken would comprise less than one-third of
the best available population abundance estimate of either coastal
migratory stocks. Detailed descriptions of the stocks' ranges have been
provided in the Description of Marine Mammals in the Area of Specified
Activities section of the initial IHA.
Both the northern migratory coastal and southern migratory coastal
stocks have expansive ranges and they are the only dolphin stocks
thought to make broad-scale, seasonal migrations in coastal waters of
the western North Atlantic. Given the large ranges associated with
these two stocks it is unlikely that large segments of either stock
would approach the project area and enter into the Chesapeake Bay. The
majority of both stocks are likely to be found widely dispersed across
their respective habitat ranges and unlikely to be concentrated in or
near the Chesapeake Bay
Furthermore, the Chesapeake Bay and nearby offshore waters
represent the boundaries of the ranges of each of the two coastal
stocks during migration. The northern migratory coastal stock is found
during warm water months from coastal Virginia, including the
Chesapeake Bay and Long Island, New York. The stock migrates south in
late summer and fall. During cold water months, dolphins may be found
in coastal waters from Cape Lookout, North Carolina, to the North
Carolina/Virginia border. During January-March, the southern Migratory
coastal stock appears to move as far south as northern Florida. From
April-June, the stock moves back north to North Carolina. During the
warm water months of July-August, the stock is presumed to occupy the
coastal waters north of Cape Lookout, North Carolina, to Assateague,
Virginia, including the Chesapeake Bay. There is likely some overlap
between
[[Page 75607]]
the northern and southern migratory stocks during spring and fall
migrations, but the extent of overlap is unknown.
The Chesapeake Bay and waters offshore of the mouth are located on
the periphery of the migratory ranges of both coastal stocks (although
during different seasons). Additionally, each of the migratory coastal
stocks are likely to be located in the vicinity of the Bay for
relatively short timeframes. Given the limited number of animals from
each migratory coastal stock likely to be found at the seasonal
migratory boundaries of their respective ranges, in combination with
the short time periods (~2 months) animals might remain at these
boundaries, it is reasonable to assume that takes are likely to occur
only within some small portion of either of the migratory coastal
stocks.
Many of the dolphin observations in the Bay are likely repeated
sightings of the same individuals. The Potomac-Chesapeake Dolphin
Project has observed over 1,200 unique animals since observations began
in 2015. Re-sightings of the same individual can be highly variable.
Some dolphins are observed once per year, while others are highly
regular with greater than 10 sightings per year (Mann, Personal
Communication). Similarly, using available photo-identification data,
Engelhaupt et al. (2016) determined that specified individuals were
often observed in close proximity to their original sighting locations
and were observed multiple times in the same season or same year.
Ninety-one percent of re-sighted individuals (100 of 110) in the study
area were recorded less than 30 kilometers from the initial sighting
location. Multiple sightings of the same individual would considerably
reduce the number of individual animals that are taken by harassment.
Furthermore, the existence of a resident dolphin population in the Bay
would increase the percentage of dolphin takes that are actually re-
sightings of the same individuals.
The increase in Level A harassment for harbor seal take corresponds
to a commensurate decrease in the predicted number of Level B
harassment, and the total number of takes remains unchanged. Therefore,
in consideration of this, the harbor seal stock abundance information
discussed in the initial IHA and in the Estimated Take section above,
we re-affirm that small numbers of harbor seals will be taken relative
to the population size of the stock. Even in consideration of the
increased numbers of take by Level A harassment, the impacts of these
exposures may result in moderate injury to a limited number of harbor
seals.
In conclusion, there is no new information suggesting that our
analysis or findings should change.
Based on the information contained here and in the referenced
documents, NMFS has preliminarily 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 proposed
authorized takes will have a negligible impact on the affected marine
mammal species or stocks; (3) the proposed authorized takes represent
small numbers of marine mammals relative to the affected stock
abundances; and (4) The Navy'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.
Endangered Species Act (ESA)
Section 7(a)(2 of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally 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.
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
modify an IHA to the Navy for conducting construction activities
related to year one of the Pier 3 replacement project, provided the
previously mentioned mitigation, monitoring, and reporting requirements
are incorporated. A draft of the proposed modified IHA can be found 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>.
Request for Public Comments
We request comment on our analyses (included in both this document
and the referenced documents supporting the 2022 IHA), the proposed
modifications to the authorization, and any other aspect of this
notice. Please include with your comments any supporting data or
literature citations to help inform our final decision on the request
for MMPA authorization.
Dated: December 6, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-26830 Filed 12-8-22; 8:45 am]
BILLING CODE 3510-22-P
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