Notice2023-01807
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Construction at Naval Station Newport, Rhode Island
Primary source
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Published
January 30, 2023
Effective
January 25, 2023
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 modified Letter of Authorization to the U.S. Navy to incidentally harass, by Level B harassment only, marine mammals during construction activities associated with pile driving and bulkhead repair at Naval Station Newport in Newport, Rhode Island.
Full Text
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<title>Federal Register, Volume 88 Issue 19 (Monday, January 30, 2023)</title>
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[Federal Register Volume 88, Number 19 (Monday, January 30, 2023)]
[Notices]
[Pages 5856-5860]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01807]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC706]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to U.S. Navy Construction at Naval
Station Newport, Rhode Island
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of a modified Letter of 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 modified Letter of Authorization to the U.S.
Navy to incidentally harass, by Level B harassment only, marine mammals
during construction activities associated with pile driving and
bulkhead repair at Naval Station Newport in Newport, Rhode Island.
DATES: This Authorization is effective from January 25, 2023 to May 14,
2027.
FOR FURTHER INFORMATION CONTACT: Cara Hotchkin, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application 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/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island</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 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.
History of Request
On December 15, 2021, NMFS issued a final rule to the Navy (86 FR
71162) to incidentally harass, by Level A and Level B harassment only,
marine mammals during construction activities associated with bulkhead
replacement and repairs at Naval Station Newport (NAVSTA Newport) over
the course of 5 years (2022-2027). Subsequently, on January 26, 2022,
NMFS issued a Letter of Authorization (LOA) to the Navy (87 FR 6145)
associated with the final rule. Species authorized for take included
Atlantic white-sided dolphin (Lagenorhynchus acutus), common dolphin
(Delphinus delphis), harbor porpoise (Phocoena phocoena), harbor seal
(Phoca vitulina), gray seal (Halichoerus grypus), harp seal (Pagophilus
groenlandicus), and hooded seal (Cystophora cristata). The effective
dates of this LOA are May 15, 2022 through May 14, 2027.
On November 15, 2022, NMFS received a request from the Navy for a
modification to the NAVSTA Newport bulkhead construction project due to
a change in the construction contractor's plan. On December 15, 2022,
the Navy revised their request to incorporate NMFS's DTH source level
recommendations (available at: <a href="https://media.fisheries.noaa.gov/2022-11/PUBLIC%20DTH%20Basic%20Guidance_November%202022.pdf">https://media.fisheries.noaa.gov/2022-11/PUBLIC%20DTH%20Basic%20Guidance_November%202022.pdf</a>). In its initial
request for incidental take regulations, the Navy did not anticipate
the need for vibratory driving of steel pipe piles or DTH installation
of any pile type. Vibratory driving of steel sheet and H-piles was
included, and analyzed in the rule. However, the construction
contractor for the first phase of the project (S45 bulkhead) has since
[[Page 5857]]
determined that vibratory driving of steel pipe piles will be required,
and that DTH hammering may be necessary if obstructions are encountered
that would prevent the use of impact or vibratory hammers to install
piles. Therefore, the Navy requested, and NMFS proposed, to modify the
2022 LOA to include take incidental to potential vibratory driving of
30-in steel pipe piles and DTH hammering of 10-in diameter holes. These
updates to the Navy's specified activity will increase estimated Level
B harassment isopleths and, therefore, result in an increased estimate
of exposures by Level B harassment for harbor seal, gray seal, and harp
seal. NMFS has determined that the changes also necessitate revised
shutdown mitigation provisions for vibratory and DTH pile driving
scenarios for all species. The monitoring and reporting measures remain
the same as prescribed in the initial LOA, and no additional take is
authorized for other species. There have been no changes from the
proposed modification.
Description of the Specified Activity and Anticipated Impacts
The modified LOA includes the same construction activities (i.e.,
impact pile driving, vibratory pile driving and removal) in the same
locations that were described in the 2022 final rule (86 FR 71162;
December 15, 2021); for the S45 location, additional vibratory driving
and DTH hammering are included. The monitoring and reporting measures
remain the same as prescribed in the initial LOA, while revisions to
the required mitigation measures have been made. NMFS refers the reader
to relevant documents related to issuance of the initial LOA, including
the Navy's application, the proposed rule and request for comments (86
FR 56857; October 13, 2021), final rule (86 FR 71162; December 15,
2021), and notice of issued LOA (87 FR 6145; February 3, 2022)
(available at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island</a>)
for more detailed description of the project activities.
Detailed Description of the Action
A detailed description of the planned construction activities is
found in the aforementioned documents associated with issuance of the
initial LOA. The location, time of year, and general nature of the
activities are identical to those described in the previous documents.
However, as noted in the History of Request section, the Navy
anticipates that vibratory installation of 30-in steel pipe piles and
DTH hammering will be necessary to complete the S45 phase of the
project on time.
A detailed description of the planned S45 bulkhead modifications is
provided in the Federal Register notice for the proposed LOA
Modification (88 FR 342; January 4, 2023). Since that time, no changes
have been made to the planned construction activities. Therefore, a
detailed description is not provided here. Please refer to that Federal
Register notice for the description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue a Modified LOA to the Navy was
published in the Federal Register on January 4, 2023 (88 FR 342). That
notice described, in detail, the Navy's modified activities. In that
notice, we requested public input on the request for authorization
described therein, our analyses, the proposed authorization, and any
other aspect of the notice of proposed LOA modification, and requested
that interested persons submit relevant information, suggestions, and
comments. This proposed notice was available for a 15-day public
comment period. NMFS received no public comments on the proposed
modification.
Description of Marine Mammals
A detailed description of the marine mammals in the area of the
activities is found in relevant documents related to issuance of the
initial LOA, including the Navy's application, and the proposed rule
and request for comments (86 FR 56857; October 13, 2021). This
information remains applicable to this modified LOA. A description of
the modified construction activities at the S45 bulkhead, 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 of proposed LOA Modification (88 FR 342; January 4, 2023);
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 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 final rule, which remains applicable to modification of
the LOA. 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 proposed
rule (86 FR 56857; October 13, 2021); the descriptions presented in the
proposed rule did not change in the final rule (86 FR 71162; December
15, 2021). The types and sizes of piles, and marine mammal stocks taken
remain unchanged from the final rule. This modification addresses the
addition of vibratory driving of four 30-in steel pipe piles and ten
instances of DTH hammering at the S45 bulkhead, which would result in
increased harassment zone sizes. The Navy anticipates that up to four
days of vibratory driving (up to two piles per day) and up to eight
days of DTH hammering at one hole per day will be required. Acoustic
effects on marine mammals during the specified activity can occur from
impact and vibratory pile installation and removal, and DTH. The
effects of underwater noise from the Navy's activities have the
potential to result in Level A and Level B harassment of marine mammals
in the action area.
The modification includes the use of DTH hammers, which were not
evaluated in the final rule. A DTH hammer is essentially a drill bit
that drills through the bedrock using a rotating function like a normal
drill, in concert with a hammering mechanism operated by a pneumatic
(or sometimes hydraulic) component integrated into to the DTH hammer to
increase speed of progress through the substrate (i.e., it is similar
to a ``hammer drill'' hand tool). The sounds produced by DTH methods
contain both a continuous non-impulsive component from the drilling
action and an impulsive component from the hammering effect. Therefore,
NMFS treats DTH systems as both impulsive and continuous, non-impulsive
sound source types simultaneously.
Ensonified Area
A detailed description of the operational and environmental
parameters of the activity that are used in estimating the area
ensonified above the acoustic thresholds, including source levels and
transmission loss coefficient, can be found in the proposed rule (86 FR
56857; October 13, 2021), and did not change in the final rule (86 FR
71162; December 15, 2021).
[[Page 5858]]
The new activities include vibratory driving of 30-in pipe piles and
DTH hammering; for those activities, we provide a description of the
sound source levels and ensonified areas below.
Sound Source Levels of Construction Activities--The intensity of
pile driving sounds is greatly influenced by factors such as the type
of piles, hammers, and the physical environment (e.g., sediment type)
in which the activity takes place. The Navy consulted with NMFS on the
appropriate sound source levels to use for vibratory driving, and NMFS
recommended a value based on available measurements of vibratory
driving of 30-in steel pipe piles (CALTRANS, 2020). Source data for the
installation methods and pile types are provided in Table 2. Note that
the source levels in this Table represent the SPL referenced at a
distance of 10 m from the source.
NMFS recommends treating DTH systems as both impulsive and
continuous, non-impulsive sound source types simultaneously. Thus,
impulsive thresholds are used to evaluate Level A harassment, and the
continuous threshold is used to evaluate Level B harassment. The Navy
consulted with NMFS to obtain the appropriate proxy values for DTH
mono-hammers. NMFS recommended proxy levels for Level A harassment
based on available data regarding DTH systems of similar sized piles
and holes (Table 1) (Denes et al., 2019; Guan and Miner, 2020; Reyff
and Heyvaert, 2019; Reyff, 2020; Heyvaert and Reyff, 2021).
Table 1--Source Information for Modified Pile Driving and DTH Activities
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Average peak Average RMS Average SEL Strike rate Maximum number
SPL (dB re 1 SPL (dB re 1 (dB re 1 (strikes per Minutes to of piles per
[mu]Pa) [mu]Pa) [mu]Pa\2\ sec) second) drive day
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Vibratory Driving 30-in steel pipe piles................ N/A 159 N/A N/A 30 2
10-in DTH mono-hammer................................... 172 167 146 10 240 1
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The methods used to calculate the ensonified areas based on the
sound source information in Table 2 are identical to those used in the
final rule; details are provided in the Proposed Rule (86 FR 56857;
October 13, 2021). The resulting Level A and Level B harassment
isopleths are provided in Tables 2 and 3.
Table 2--Calculated Distance and Areas of Level A and Level B Harassment for Impulsive Noise (DTH)
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Level A harassment \2\ Level B harassment
Total ------------------------------------------------------------------------------------
Activity Duration, count, production High frequency
size, and or rate days Mid-frequency cetaceans (harbor Phocid pinnipeds Harbor porpoise and
cetaceans (dolphins) porpoise) phocids
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DTH (10-in holes)................ 4 hours/day (1 hole/ 8 3.3 m/0.000034 km\2\ 111.6 m/0.019204 50.1 m/0.004657 See Table 4.
day). km\2\. km\2\.
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Table 3--Calculated Distance and Areas of Level A and Level B Harassment for Non-Impulsive Noise (Vibratory, DTH)
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Level A harassment \2\ Level B harassment
Total ------------------------------------------------------------------------------------
Activity Duration, count, production High frequency
size, and or rate days Mid-frequency cetaceans (harbor Phocid pinnipeds Harbor porpoise and
cetaceans (dolphins) porpoise) phocids
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DTH (10-in holes)................ 4 hours/day (1 hole/ 8 See Table 3 13,594 m/7.80374
day). km\2\
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30-in Steel Pipe Vibratory....... 1 hour/day (2 piles/ 4 0.4 m/0.000001 km\2\ 7.4 m/0.000152 3.1 m/0.00003 km\2\ 3,981 m/6.741652
day). km\2\. km\2\
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Marine Mammal Occurrence and Take Calculation and Estimation
A description of the methods used to estimate take anticipated to
occur from the project is found in the project's aforementioned
documents. The methods of estimating take are identical to those used
in the final rule. Table 4 shows the authorized takes at the S45
facility under the initial LOA (all in year 1) and the estimated takes
from the modified activities.
Table 4--Take Estimates at S45 Facility Under the Initial LOA and the Modification
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Initial LOA (year 1; S45) Modified LOA
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Level A Level B Level A Level B
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Atlantic White-sided Dolphin.................... 0 1 0 1
Common Dolphin.................................. 0 3 0 3
Harbor Porpoise................................. 1 4 1 4
Harbor Seal..................................... 15 188 15 244
Gray Seal....................................... 3 40 3 52
Harp Seal....................................... 1 16 1 20
Hooded Seal..................................... 0 0 0 0
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[[Page 5859]]
Table 5--Take Estimates as a Percentage of Stock Abundance for the Modification for Year 1 Takes at the S45
Facility
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Level A Level B
Species Stock (NEST) harassment harassment Percent of stock
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Atlantic White-sided Dolphin....... Western North Atlantic 0 3 Less than 1 percent.
(93,233).
Common Dolphin..................... Western North Atlantic 0 3 Less than 1 percent.
(172,947).
Harbor Porpoise.................... Gulf of Maine/Bay of Fundy 1 4 Less than 1 percent.
(95,543).
Harbor Seal........................ Western North Atlantic 15 244 Less than 1 percent.
(61,336).
Gray Seal.......................... Western North Atlantic 3 52 Less than 1 percent.
(451,431).
Harp Seal.......................... Western North Atlantic 1 20 Less than 1 percent.
(7.6 million).
Hooded Seal........................ Western North Atlantic 0 0 Less than 1 percent.
(593,500).
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Description of Mitigation, Monitoring and Reporting Measures
The reporting measures are identical to those included in the
initial LOA included in 2022 final rule. The monitoring and mitigation
measures have been updated to include additional hydroacoustic
monitoring and conservative shutdown zones. The following measures are
included in the LOA Modification, and are in addition to those
described in the Final Rule (86 FR 71162; December 15, 2021):
<bullet> Supplemental hydroacoustic monitoring will include:
[cir] 30-in Steel Pipe--vibratory driving: 2 piles; and
[cir] Obstruction drilling--DTH hammer: up to 8 holes (if required
for pile installation).
<bullet> Shutdown zones for the new activities are identical to
those identified in the Final Rule (86 FR 71162; December 15, 2021):
[cir] DTH Obstruction Drilling: The maximum shutdown zone included
in the initial LOA is 150 m. This distance is greater than the
calculated distance to Level A harassment thresholds for marine mammal
species from DTH activities at the S45 facility, which is 111.6 m for
harbor porpoise. The Navy will implement the same 150 m shutdown
distance for cetaceans and pinnipeds when conducting DTH activities.
[cir] Vibratory driving steel pipe piles: the greatest calculated
distance to Level A harassment thresholds for species at this location
is 7.4 m, which is less than the standard construction shutdown of 10 m
to prevent equipment/mammal interactions. However, for consistency the
Navy will implement a 30 m shutdown distance for cetaceans and 10 m for
pinnipeds from vibratory pile driving steel pipe piles, which is the
same as for vibratory driving steel sheet piles in the initial
authorization.
Determinations
With the exception of the revised take numbers and monitoring and
mitigation measures, the Navy's planned in water construction
activities as well as reporting requirements are unchanged from those
in the initial LOA. 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, gray seal, and harp
seal take by Level B harassment.
The additional takes from Level B harassment will be due to
potential behavioral disturbance and TTS. 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 Navy's pile driving project is unlikely to result in serious
injury or mortality. For all species and stocks, take would occur
within a limited, confined area (immediately surrounding NAVSTA Newport
in the Narragansett 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 authorized is extremely small when
compared to stock abundance.
The additional 72 takes of harbor, gray, and harp seals represents
an increase of approximately 5.7 percent of the total take authorized
in the initial LOA, and the anticipated impacts are identical to those
described in the 2022 final rule. The amount of additional take for
each species is also small (less than 1 percent of each stock). The
Navy will conduct additional hydro-acoustic monitoring of the new
activities, which will improve understanding of the source levels of
such activities for future work. The modification to the LOA includes
additional required mitigation and monitoring measures (albeit some
minor modification to harassment and shutdown distances), and identical
reporting measures as the 2022 LOA.
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 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; and (4) 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.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our action (i.e., the issuance of an IHA) with respect
to potential impacts on the human environment.
This action remains consistent with categories of activities
identified in Categorical Exclusion B4 (incidental harassment
authorizations with no anticipated serious injury or mortality) of the
Companion Manual for NOAA 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 modified LOA continues to qualify to be categorically
excluded from further NEPA review.
[[Page 5860]]
Endangered Species Act (ESA)
Section 7(a)(2) of the ESA (16 U.S.C. 1531 et seq.) requires that
each Federal agency ensure 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 incidental take authorizations, NMFS
consults internally whenever we propose to authorize take for
endangered or threatened species.
No incidental take of ESA-listed species is expected to result from
this activity, and none is authorized herein. Therefore, NMFS has
determined that formal consultation under section 7 of the ESA is not
required for this action.
Authorization
NMFS has issued a modified LOA to the Navy for the potential
harassment of small numbers of three marine mammal species incidental
to construction at the S45 Bulkhead at Naval Station Newport in
Newport, Rhode Island, that includes the previously explained
mitigation, monitoring, and reporting requirements.
Dated: January 25, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-01807 Filed 1-27-23; 8:45 am]
BILLING CODE 3510-22-P
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