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Proposed Rule2023-04613

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Construction of the Pier 3 Replacement Project at Naval Station Norfolk

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Published

March 9, 2023

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

NMFS has received a request from the U.S. Navy (Navy) for authorization to take marine mammals incidental to the replacement of Pier 3 at Naval Station (NAVSTA) Norfolk in Norfolk, Virginia over the course of five years (2023-2028). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations. Agency responses will be included in the notice of the final decision.

Full Text

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<title>Federal Register, Volume 88 Issue 46 (Thursday, March 9, 2023)</title>
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[Federal Register Volume 88, Number 46 (Thursday, March 9, 2023)]
[Proposed Rules]
[Pages 14560-14590]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04613]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 230302-0061]
RIN 0648-BL81

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to U.S. Navy Construction of the Pier
3 Replacement Project at Naval Station Norfolk

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for
authorization to take marine mammals incidental to the replacement of
Pier 3 at Naval Station (NAVSTA) Norfolk in Norfolk, Virginia over the
course of five years (2023-2028). Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is proposing regulations to govern that
take, and requests comments on the proposed regulations. Agency
responses will be included in the notice of the final decision.

DATES: Comments and information must be received no later than April
10, 2023.

ADDRESSES: A copy of the Navy's application and any supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-replacement-pier-3-naval-station-norfolk-norfolk">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-replacement-pier-3-naval-station-norfolk-norfolk</a>. In case of problems accessing these documents, please
call the contact listed below (see FOR FURTHER INFORMATION CONTACT).
Submit all electronic public comments via the Federal e-Rulemaking
Portal. Go to <a href="http://www.regulations.gov">www.regulations.gov</a> and enter NOAA-NMFS-2022-0110 in the
Search box. Click on the ``Comment'' icon, complete the required
fields, and enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public records and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Attachments to electronic comments will be accepted in Microsoft Word,
Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

This proposed rule would establish a framework under the authority
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of
take of marine mammals incidental to the Navy's construction activities
including pile driving and drilling activities at Naval Station
(NAVSTA) Norfolk.
We received an application from the Navy requesting five-year
regulations and authorization to take multiple species of marine
mammals. Take would occur by Level B and Level A harassment, incidental
to impact and vibratory pile driving and drilling. Please see
Background below for definitions of harassment.

Legal Authority for the Proposed Action

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce 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 for up to five years
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Proposed Mitigation
section), as well as monitoring and reporting requirements. Section
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR
part 216, subpart I provide the legal basis for issuing this proposed
rule containing 5-year regulations, and for any subsequent letters of
authorization (LOAs). As directed by this legal authority, this
proposed rule contains mitigation, monitoring, and reporting
requirements.

Summary of Major Provisions Within the Proposed Rule

Following is a summary of the major provisions of this proposed
rule regarding Navy construction activities. These measures include:
<bullet> Required monitoring of the construction areas to detect
the presence of marine mammals before beginning construction
activities;
<bullet> Shutdown of construction activities under certain
circumstances to avoid injury of marine mammals;
<bullet> Soft start for impact pile driving to allow marine mammals
the opportunity to leave the area prior to beginning impact pile
driving at full power.

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 IHA is 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

[[Page 14561]]

practicable adverse impact'' on the affected species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, and on the availability of
the species or stocks for taking for certain subsistence uses (referred
to in shorthand as ``mitigation''); and requirements pertaining to the
mitigation, monitoring and reporting of the takings are set forth. The
definitions of all applicable MMPA statutory terms cited above are
included in the relevant sections below.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has
preliminarily determined that the issuance of the proposed IHA
qualifies to be categorically excluded from further review under NEPA.
We will review all comments submitted in response to this document
prior to concluding our NEPA process or making a final decision on the
IHA request.

Summary of Request

On April 8, 2022, NMFS received a request from the Navy for
authorization to take marine mammals incidental to construction
activities related to the replacement of Pier 3 at Naval Station
Norfolk in Norfolk, Virginia. Following NMFS' review of the
application, the Navy provided responses to questions on June 3, 2022
and August 29, 2022. A revised version of the application was submitted
on September 22, 2022. The application was deemed adequate and complete
on September 26, 2022 and published for public review and comment on
October 7, 2022 (87 FR 60998). We did not receive substantive comments
on the NOR.
The Navy requests authorization to take a small number of five
species of marine mammals by Level B harassment and, for harbor
porpoise and harbor seal, Level A harassment. Neither the Navy nor NMFS
expect serious injury or mortality to result from this activity. The
proposed regulations would be valid for five years (2023-2028).

Description of Proposed Activity

Overview

The Navy is currently conducting, and proposes to continue, the
replacement of Pier 3 at NAVSTA Norfolk, in Norfolk, VA. This proposed
rule follows an Incidental Harassment Authorization (IHA) issued to the
Navy on March 15, 2022, effective from April 1, 2022 through March 31,
2023 (87 FR 15945; March 21, 2022), which covered the first year of
project activities, and covers the remaining activities for the pier
replacement. During this period demolition and construction activities
will occur at existing Pier 3, new Pier 3, CEP-176 wharf, CEP-102
relieving platform, and on a fender system of CEP-175 bulkhead (See
Figure 1). The proposed project includes both vibratory pile driving
and removal, impact pile driving, and pre-drilling (hereafter, referred
to as ``drilling''). Sounds resulting from pile driving, drilling and
removal may result in the incidental take of marine mammals by Level A
and Level B harassment in the form of auditory injury or behavioral
harassment.

Dates and Duration

The proposed regulations would be valid for a period of five years
(2023-2028) The specified activities may occur at any time during the
five-year period of validity of the proposed regulations. The Navy
expects pile driving and drilling for the entire project to occur on
approximately 513 non-consecutive days over a four year duration, with
the greatest amount of work occurring during Year 4 (approximately 204
days). However, in the event of unforeseen delays, the project may
occur over the full 5-year duration of this proposed rule. The Navy
plans to conduct all work during daylight hours.

Specific Geographic Region

Pier 3 at NAVSTA Norfolk is located at the confluence of the
Elizabeth River, James River, Nansemond River, LaFeyette River,
Willoughby Bay, and Chesapeake Bay (Figure 2).
Anthropogenic sound is a significant contributor to the ambient
acoustic environment surrounding NAVSTA Norfolk, as it is located in
close proximity to shipping channels as well as several Port of
Virginia facilities with frequent vessel traffic that altogether have
an annual average of 1,788 vessel calls (Port of Virginia, 2021). Other
sources of human-generated underwater sound not specific to naval
installations include sounds from echosounders on commercial and
recreational vessels, industrial ship noise, and noise from
recreational boat engines. Additionally, on average, maintenance
dredging of the navigation channel occurs every 2 years (USACE and Port
of Virginia, 2018).
BILLING CODE 3510-22-P

[[Page 14562]]

[GRAPHIC] [TIFF OMITTED] TP09MR23.010

Figure 1: Site Location Map for NAVSTA Norfolk in Norfolk, Virginia

[[Page 14563]]

[GRAPHIC] [TIFF OMITTED] TP09MR23.011

Figure 2: Project Site Map at NAVSTA Norfolk in Norfolk, Virginia
BILLING CODE 3510-22-C

Detailed Description of Specific Activity

The proposed project involves the replacement of Pier 3 at NAVSTA
waterfront. The existing Pier 3 would be completely demolished and a
new Pier 3 would be constructed immediately north of the existing
location (Figure 2). The project scope for the replacement of Pier 3
under this proposed rule would also include construction of new CEP-176
wharf, construction of new CEP-102 relieving platform, and construction
of a portion of fender system at CEP-175. The project includes 6
phases, the first of which has begun under the previously issued IHA
(87 FR 15945; March 21, 2022). A preliminary work schedule and activity
details for the work under this proposed rule are provided in Table 1.
In-water construction activities, including pile driving, pile removal,
and drilling are described in detail below:
Pile Removal--Piles are anticipated to be removed with a vibratory
hammer, however, direct pull or clamshell removal may be used depending
on site conditions. All three pile removal methods are described below.
Take is not expected to occur for clamshell and direct pull removal,
therefore they will not be described past what is provided below nor
included in our analysis:

[[Page 14564]]

<bullet> Vibratory Extraction--This method uses a barge-mounted
crane with a vibratory driver to remove all pile types. The vibratory
driver is a large mechanical device (5 to 16 tons) suspended from a
crane by a cable and positioned on top of a pile. The pile is then
loosened from the sediments by activating the driver and slowly lifting
up on the driver with the aid of the crane. Once the pile is released
from the sediments, the crane continues to raise the driver and pull
the pile from the sediment. The driver is typically shut off once the
pile is loosened from the sediments. The pile is then pulled from the
water and placed on a barge. Vibratory extraction usually takes between
less than 1 minute (for timber piles) to 30 minutes per pile depending
on the pile size, type, and substrate conditions;
<bullet> Clamshell--In cases where use of a vibratory driver is not
possible (e.g., when the pile may break apart from clamp force and
vibration), a clamshell apparatus may be lowered from the crane in
order to remove pile stubs. The use and size of the clamshell bucket
would be minimized to reduce the potential for generating turbidity
during removal; and
<bullet> Direct Pull--Piles may be removed by wrapping the piles
with a cable or chain and pulling them directly from the sediment with
a crane. In some cases, depending on access and location, piles may be
cut at or below the mudline.
Pile Installation--Pile installation/removal would occur using
land-based or barge-mounted cranes, as appropriate. Concrete piles
would be installed using an impact hammer. Steel piles and polymeric
piles can be installed using an impact hammer or vibratory hammer.
Hammers can be steam, air, or diesel drop, single-acting, double-
acting, differential-acting, or hydraulic type. Additionally, pre-
drilling may occur for installation of concrete piles and at locations
where there may be a higher likelihood of obstructions or where soil
layers are harder to penetrate. Drilling is not permitted for
installation of steel piles on this project or for concrete piles at
Pier 3 because hard soil layers are not expected at these locations.
Table 1 provides the estimated construction schedule and production
rates for the proposed construction activities considered for this
proposed rulemaking beginning with Year 2. As indicated above, Year 1
of the Pier 3 replacement project was authorized under the 2022 IHA,
effective from April 1, 2022-March 31, 2023. Therefore, Year 2 of the
project aligns with year 1 of the proposed rule. Some project elements
will use only one method of pile installation (e.g., impact hammer or
vibratory hammer or impact hammer and drilling), but all methods have
been analyzed. The method of installation will be determined by the
construction crew once demolition and installation has begun.

Table 1--Preliminary Construction Schedule for In-Water Activities
----------------------------------------------------------------------------------------------------------------
Total Daily rate
Year *** Activity number of Activity Method (piles/ Total days Total days
piles component day) per year
----------------------------------------------------------------------------------------------------------------
Year 2..... CEP-176 Bulkhead 103 42 inch Steel Install: Impact 4 26 185
Pipe Bearing or Vibratory.
Piles.
Year 2..... CEP-176 Bulkhead 221 28 inch sheet Install: Impact 14 16
piles. or Vibratory.
Year 2..... CEP-176 Bulkhead 9 13 inch Install: Impact 5 2
polymeric or Vibratory *.
fender piles.
Year 2..... CEP-102 Platform 11 24 inch square Install: Impact 2 6
phase 2. precast *.
concrete
bearing piles.
Year 2..... Pier 3.......... 280 24 inch square Install: Impact 4 70
precast
concrete.
Year 2..... CEP-102 Platform 6 18 inch square Install: Impact 4 2
phase 2. precast
concrete fender
piles.
Year 2..... Pier 3.......... 250 24 inch square Install: Impact 4 63
precast
concrete
bearing piles.
Year 3..... Pier 3.......... 409 24 inch square Install: Impact 6 69 92
precast *.
concrete fender
files.
Year 3..... Pier 3.......... 18 18 inch steel Install: Impact 6 3
pipe fender
piles.
Year 3..... CEP-102 Platform 26 42 inch steel Install: Impact 2 13
South Portion. pipe bearing or Vibratory.
piles.
Year 3..... CEP-102 Platform 53 28 inch steel Install: Impact 14 4
South Portion. sheet piles. or Vibratory.
Year 3..... CEP-102 Platform 26 18 inch square Extract: 9 3
South Portion. precast Vibratory.
concrete fender
piles **.
Year 4..... CEP-102 Platform 40 24 inch square Install: Impact 2 20 204
South Portion. precast *.
concrete
bearing piles.
Year 4..... Existing Pier 3. 624 14 inch timber Extract: 25 25
fender piles **. Vibratory.
Year 4..... CEP-102 Platform 25 18 inch square Install: Impact 4 7
South Portion. precast *.
concrete fender
piles.
Year 4..... CEP-102 Platform 50 42 inch steel Install: Impact 2 25
Center Portion. pipe bearing or Vibratory.
piles.
Year 4..... Existing Pier 3. 72 24 inch square Extract: 12 6
precast Vibratory.
concrete fender
piles **.
Year 4..... CEP-102 Platform 102 28 inch steel Install: Impact 14 8
Center Portion. sheet piles. or Vibratory.
Year 4..... CEP-102 Platform 36 18 inch square Extract: 9 4
Center Portion. precast Vibratory.
concrete fender
piles **.
Year 4..... Existing Pier 3. 873 16 inch and 18 Extract: 10 88
inch square Vibratory.
precast
concrete
bearing piles
**.
Year 4..... CEP-102 Platform 41 24 inch square Install: Impact 2 21
Center Portion. precast *.
concrete
bearing piles.
Year 5..... Existing Pier 3. 30 16 and 18 inch Extract: 10 3 32
square precast Vibratory.
bearing piles
**.
Year 5..... CEP-102 Platform 32 24 inch square Install: Impact 2 16
Center Portion. precast bearing *.
piles.
Year 5..... CEP-102 Platform 50 18 inch square Install: Impact 4 13
Center Portion. precast *.
concrete fender
piles.
----------------------------------------------------------------------------------------------------------------

[[Page 14565]]

Total Piles Installed.... 1,726 Total: 513
------------------ -----------------------
Total Piles Removed...... 1,661
----------------------------------------------------------------------------------------------------------------
Note: Estimated construction schedule. Delays may occur due to equipment failure or weather.
* Pre-drilling is permitted to assist with pile installation.
** Denotes Piles Removed.
*** Year 2 refers to the second year of the Pier 3 replacement project, however it is considered as Year 1 under
the 2023 Rule proposed for authorization.

Concurrent Activities--In order to maintain project schedules, it
is likely that multiple pieces of equipment would operate at the same
time within the project area. Table 2 provides a summary of the
possible equipment combinations by structure and construction year
where a maximum of four in-water activities may be occurring
simultaneously. As mentioned above, the method of installation, and
whether concurrent pile driving scenarios will be implemented, will be
determined by the construction crew once the project has begun.
Therefore, the total take estimate reflects the worst case scenario for
the proposed project.

Table 2--Summary of Possible Concurrent Pile Driving Scenarios
----------------------------------------------------------------------------------------------------------------
Total
Year Structure Pile types equipment Equipment (quantity)
quantity
----------------------------------------------------------------------------------------------------------------
Year 3...................... Pier 3................ Driving of precast 2 Rotary Drill (2).
bearing piles. 2 Impact Hammer (1),
Rotary Drill (1).
2 Impact Hammer (2).
CEP-102............... Driving 42-inch steel 2 Vibratory Hammer (2).
pipe and 28-inch 2 Impact Hammer (2).
steel sheet.
2 Vibratory Hammer (1),
Impact Hammer (1).
Year 4...................... Existing Pier 3 and Extraction of 14-inch 4 Vibratory Hammer (3),
CEP-102. timber piles from 4 Rotary Drill (1).
Pier 3 and Driving of .......... Vibratory Hammer (2),
42-inch steel pipe, 4 Impact Hammer (2),
sheet piles, and Rotary Drill (1).
precast concrete Vibratory (1), Impact
piles. Hammer (3).
Year 4-Year 5............... Existing Pier 3 and Extraction of 16- to 2 Vibratory Hammer (1),
CEP-102. 18-inch concrete 2 Rotary Drill (1).
piles from Pier 3 and Vibratory Hammer (1),
Driving of 24-inch Impact Hammer (1).
precast concrete
bearing piles.
----------------------------------------------------------------------------------------------------------------

Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Proposed
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, incorporated here by reference, instead of
reprinting the information. Additional information regarding population
trends and threats may be found in NMFS' Stock Assessment Reports
(SARs; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these
species (e.g., physical and behavioral descriptions) may be found on
NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 3 lists all species or stocks for which take is expected and
proposed to be authorized for this activity, and summarizes information
related to the population or stock, including regulatory status under
the MMPA and Endangered Species Act (ESA) and potential biological
removal (PBR), where known. PBR is defined by the MMPA as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population (as described in NMFS'
SARs). While no serious injury or mortality is expected to occur, PBR
and annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species or
stocks and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All stocks managed under the MMPA in this region
are assessed in NMFS' U.S. draft 2022 SARs. All values presented in
Table 2 are the most recent available at the time of publication and
are available online at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.

[[Page 14566]]

Table 3--Species Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals):
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -,-, Y 1,396 (0, 1,380, 2016) 22 12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Bottlenose Dolphin.............. Tursiops truncatus..... Western North Atlantic -,-, Y 6,639 (0.41, 4,759, 48 12.2-21.5
(WNA) Coastal, 2016).
Northern Migratory.
WNA Coastal, Southern -, -, Y 3,751 (0.6, 2,353, 24 0-18.3
Migratory. 2016).
Northern North Carolina -, -, Y 823 (0.06, 782, 2017). 7.8 7.2-30
Estuarine.
Family Phocoenidae (porpoises):
Harbor Porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31, 74,034, 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
Gray seal \4\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,300 (0.22, 22,785, 1,458 4453
2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ This stock abundance estimate is only for the U.S. portion of this stock. The actual stock abundance, including the Canadian portion of the
population, is estimated to be approximately 424,300 animals. The PBR value listed here is only for the U.S. portion of the stock, while M/SI reflects
both the Canadian and U.S. portions.

As indicated above, all five species (with seven managed stocks) in
Table 3 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. While North Atlantic
right whales (Eubalaena glacialis), minke whales (Balaenoptera
acutorostrata acutorostata), and fin whales (Balaenoptera physalus)
have been documented in the area, the temporal and/or spatial
occurrence of these whales is far outside the proposed area for this
project and take is not expected to occur. Therefore, they are not
discussed further beyond the explanation provided below.
Based on sighting data and passive acoustic studies, the North
Atlantic right whale could occur off the coast of Virginia year-round
(Department of Navy (DoN) 2009; Salisbury et al., 2016). They have also
been reported seasonally off Virginia during migrations in the spring,
fall, and winter (Cotter 2019). Right whales are known to frequent the
coastal waters of the mouth of the Chesapeake Bay (Knowlton et al.,
2002) and the area is a seasonal management area (November 1-April 30)
mandating reduced ship speeds out to approximately 20 nautical miles
(37 kilometers [km]); however, the project area is further inside the
Bay and away from this area.
North Atlantic right whales have stranded in Virginia, one each in
2001, 2002, 2004, 2005; three during winter (February and March) and
one in the summer (September) (Costidis et al., 2017, 2019). In January
2018, a dead, entangled North Atlantic right whale was observed
floating over 60 miles (96.6 km) offshore of Virginia Beach (Costidis
et al., 2019). All North Atlantic right whale strandings in Virginia
waters have occurred on ocean-facing beaches along Virginia Beach and
the barrier islands seaward of the lower Delmarva Peninsula (Costidis
et al., 2017). Right whales are not expected to occur in the project
area, and NMFS is not proposing to authorize take of this species.
Fin whales have been sighted off Virginia (Cotter 2019), and in the
Chesapeake Bay (Aschettino et al., 2018); however, they are not likely
to occur in the project area. Sightings have been documented around the
Chesapeake Bay Bridge Tunnel (CBBT) during winter months (Aschettino et
al., 2018).
Eleven fin whale strandings have occurred off Virginia from 1988 to
2016, mostly during the winter months of February and March, followed
by a few in the spring and summer months (Costidis et al., 2017). Six
of the strandings occurred in the Chesapeake Bay (three on the eastern
shore; three on the western shore) with the remaining five occurring on
the Atlantic coast (Costidis et al.,2017). Documented strandings near
the project area have occurred: February 2012, a dead fin whale washed
ashore on Oceanview Beach in Norfolk (Swingle et al., 2013); December
2017, a live fin whale stranded on a shoal in Newport News and died at
the site (Swingle et al., 2018); February 2014, a dead fin whale
stranded on a sand bar in Pocomoke Sound near Great Fox Island,
Accomack (Swingle et al., 2015); and, March 2007, a dead fin whale near
Craney Island, in the Elizabeth River, in Norfolk (Barco 2013). Only
stranded fin whales have been documented in the project area; no free
swimming fin whales have been observed. Fin whales are not expected to
occur in the project area, and NMFS is not proposing to authorize take
of this species.

[[Page 14567]]

Minke whales have been sighted off Virginia (CeTAP 1981, 1982;
Hyrenbach et al., 2012; Barco 2013; Mallette et al., 2016a, b; McLellan
2017; Engelhaupt et al., 2017, 2018; Cotter 2019), near the CBBT
(Aschettino et al., 2018), but sightings in the project area are from
strandings (Jensen and Silber 2004; Barco 2013; DoN 2009). In August
1994, a ship strike incident involved a minke whale in Hampton Roads
(Jensen and Silber 2004; Barco 2013). It was reported that the animal
was struck offshore and was carried inshore on the bow of a ship (DoN
2009). Twelve strandings of minke whales have occurred in Virginia
waters from 1988 to 2016 (Costidis et al., 2017). There have been six
minke whale stranding from 2017 through 2020 in Virginia waters. Minke
whales are not expected to occur in the project area, and NMFS is not
proposing to authorize take of this species.
Humpback Whale
Humpback whales are found worldwide in all oceans. In winter,
humpback whales from waters off New England, Canada, Greenland,
Iceland, and Norway, migrate to mate and calve primarily in the West
Indies, where spatial and genetic mixing among these groups occurs.
NMFS defines a humpback whale stock on the basis of feeding location,
i.e., Gulf of Maine. However, our reference to humpback whales in this
document refers to any individual of the species that are found in the
species geographic region. These individuals may be from the same
breeding population (e.g., West Indies breeding population of humpback
whales) but visit different feeding areas.
Based on photo-identification studies, only 39 percent of
individual humpback whales observed along the mid- and south Atlantic
U.S. coast are from the Gulf of Maine stock (Barco et al., 2002).
Therefore, the SAR abundance estimate is an underrepresentation of the
relevant population, i.e., the West Indies breeding population.
Prior to 2016, humpback whales were listed under the ESA as an
endangered species worldwide. Following a 2015 global status review
(Bettridge et al., 2015), NMFS established 14 Distinct Population
Segments (DPSs) with different listing statuses (81 FR 62259; September
8, 2016) pursuant to the ESA. Humpback whales in the project area are
expected to be from the West Indies DPS, which consists of the whales
whose breeding range includes the Atlantic margin of the Antilles from
Cuba to northern Venezuela, and whose feeding range primarily includes
the Gulf of Maine, eastern Canada, and western Greenland. This DPS is
not ESA listed. Bettridge et al., (2003) estimated the size of the West
Indies DPS at 12,312 (95% CI 8,688-15,954) whales in 2004-05, which is
consistent with previous population estimates of approximately 10,000-
11,000 whales (Stevick et al., 2003; Smith et al., 1999) and the
increasing trend for the West Indies DPS (Bettridge et al., 2015).
Although humpback whales are migratory between feeding areas and
calving areas, individual variability in the timing of migrations may
result in the presence of individuals in high-latitude areas throughout
the year (Straley, 1990). Records of humpback whales off the U.S. mid-
Atlantic coast (New Jersey to North Carolina) from January through
March suggest these waters may represent a supplemental winter feeding
ground used by juvenile and mature humpback whales of U.S. and Canadian
North Atlantic stocks (LaBrecque et al., 2015).
Humpback whales are most likely to occur near the mouth of the
Chesapeake Bay and coastal waters of Virginia Beach between January and
March; however, they could be found in the area year-round, based on
shipboard sighting and stranding data (Barco and Swingle, 2014;
Aschettino et al., 2015; 2016; 2017; 2018). Photo-identification data
support the repeated use of the mid-Atlantic region by individual
humpback whales. Results of the vessel surveys show site fidelity in
the survey area for some individuals and a high level of occurrence
within shipping channels--an important high-use area by both the Navy
and commercial traffic (Aschettino et al., 2015; 2016; 2017; 2018).
Nearshore surveys conducted in early 2015 reported 61 individual
humpback whale sightings, and 135 individual humpback whale sightings
in late 2015 through May 2016 (Aschettino et al., 2016). Subsequent
surveys confirmed the occurrence of humpback whales in the nearshore
survey area: 248 individuals were detected in 2016-2017 surveys
(Aschettino et al., 2017), 32 individuals were detected in 2017-2018
surveys (Aschettino et al., 2018), and 80 individuals were detected in
2019 surveys (Aschettino et al., 2019). Sightings in the Hampton Roads
area in the vicinity of NAVSTA Norfolk were reported in nearshore
surveys and through tracking of satellite-tagged whales in 2016, 2017
and 2019. The numbers of whales detected, most of which were juveniles,
reflect the varying level of survey effort and changes in survey
objectives from year to year, and do not indicate abundance trends over
time. Most recently, the Hampton Roads Bridge-Tunnel Expansion Project
(HRBT), which spanned from September 2020 through July 10, 2021 did not
observe any humpback whales near the project site between Norfolk and
Hampton, VA over 197 days of observations (Hampton Roads Connector
Partners (HRCP), Unpublished).
Bottlenose Dolphin
Along the U.S. East Coast and northern Gulf of Mexico, the
bottlenose dolphin stock structure is well studied. There are currently
53 management stocks identified by NMFS in the western North Atlantic
and Gulf of Mexico, including oceanic, coastal, and estuarine stocks
(Hayes et al., 2017; Waring et al., 2015, 2016).
A recent study proposes that bottlenose dolphins inhabiting
nearshore coastal and estuarine waters between New York and Florida are
likely a separate species from their offshore counterparts (Costa et
al., 2022). The offshore form is larger in total length and skull
length, and has wider nasal bones than the coastal form. Both inhabit
waters in the western North Atlantic Ocean and Gulf of Mexico (Curry
and Smith, 1997; Hersh and Duffield, 1990; Mead and Potter, 1995) along
the U.S. Atlantic coast. The coastal species of bottlenose dolphin is
continuously distributed along the Atlantic coast south of Long Island,
New York, around the Florida peninsula, and along the Gulf of Mexico
coast. This type typically occurs in waters less than 25 meters deep
(Waring et al., 2015). The range of the offshore bottlenose dolphin
includes waters beyond the continental slope (Kenney, 1990), and
offshore bottlenose dolphins may move between the Gulf of Mexico and
the Atlantic (Wells et al., 1999).
Two coastal stocks are likely to be present in the project area:
the Western North Atlantic Northern Migratory Coastal stock and the
Western North Atlantic Southern Migratory Coastal stock. Additionally,
the Northern North Carolina Estuarine System stock may occur in the
project area.
Bottlenose dolphins are the most abundant marine mammal along the
Virginia coast and within the Chesapeake Bay, typically traveling in
groups of 2 to 15 individuals, but occasionally in groups of over 100
individuals (Engelhaupt et al., 2014; 2015; 2016). Bottlenose dolphins
of the Western North Atlantic Northern Migratory Coastal stock winter
along the coast of North Carolina and migrate as far north as Long
Island, New York, in the summer. They are rarely found north of North
Carolina in the winter (NMFS, 2018). The Western North Atlantic
Southern Migratory Coastal

[[Page 14568]]

stock occurs in waters of southern North Carolina from October to
December, moving south during winter months and north to North Carolina
during spring months. During July and August, the Western North
Atlantic Southern Migratory Coastal stock is presumed to occupy coastal
waters north of Cape Lookout, North Carolina, to the eastern shore of
Virginia (NMFS, 2018). It is possible that these animals also occur
inside the Chesapeake Bay and in nearshore coastal waters. The North
Carolina Estuarine System stock dolphins may also occur in the
Chesapeake Bay during July and August (NMFS, 2018a).
Vessel surveys conducted along coastal and offshore transects from
NAVSTA Norfolk to Virginia Beach in most months from August 2012 to
August 2015 reported bottlenose dolphins throughout the survey area,
including the vicinity of NAVSTA Norfolk (Engelhaupt et al., 2014;
2015; 2016). The final results from this project confirmed earlier
findings that bottlenose dolphins are common in the study area, with
highest densities in the coastal waters in summer and fall months.
However, bottlenose dolphins do not completely leave this area during
colder months, with approximately 200-300 individuals still present in
winter and spring months, which is commonly referred to as the
Chesapeake Bay resident dolphin population (Engelhaupt et al., 2016).
Harbor Porpoise
Harbor porpoises inhabit cool temperate-to-subpolar waters, often
where prey aggregations are concentrated (Watts and Gaskin, 1985).
Thus, they are frequently found in shallow waters, most often near
shore, but they sometimes move into deeper offshore waters. Harbor
porpoises are rarely found in waters warmer than 63 degrees Fahrenheit
(17 degrees Celsius) (Read 1999) and closely follow the movements of
their primary prey, Atlantic herring (Gaskin 1992).
In the western North Atlantic, harbor porpoise range from
Cumberland Sound on the east coast of Baffin Island, southeast along
the eastern coast of Labrador to Newfoundland and the Gulf of St.
Lawrence, then southwest to about 34 degrees North on the coast of
North Carolina (Waring et al., 2016). During winter (January to March),
intermediate densities of harbor porpoises can be found in waters off
New Jersey to North Carolina, and lower densities are found in waters
off New York to New Brunswick, Canada (Waring et al., 2016). Harbor
porpoises sighted off the mid-Atlantic during winter include porpoises
from other western North Atlantic populations (Rosel et al., 1999).
There does not appear to be a temporally coordinated migration or a
specific migratory route to and from the Bay of Fundy region (Waring et
al., 2016). During fall (October to December) and spring (April to
June), harbor porpoises are widely dispersed from New Jersey to Maine,
with lower densities farther north and south (LaBrecque et al., 2015).
Based on stranding reports, passive acoustic recorders, and
shipboard surveys, harbor porpoise occur in coastal waters primarily in
winter and spring months, but there is little information on their
presence in the Chesapeake Bay. They do not appear to be abundant in
the NAVSTA Norfolk area in most years, but this is confounded by wide
variations in stranding occurrences over the past decade. In the recent
HRBT project, zero harbor porpoises were observed near the project area
(HRCP, Unpublished).
Harbor Seal
The Western North Atlantic stock of harbor seals occurs in the
project area. Harbor seal distribution along the U.S. Atlantic coast
has shifted in recent years, with an increased number of seals reported
from southern New England to the mid-Atlantic region (DiGiovanni et
al., 2011; Hayes et al., 2021). Regular sightings of seals in Virginia
have become a common occurrence in winter and early spring (Costidis et
al., 2019). Winter haulout sites for harbor seals have been documented
in the Chesapeake Bay at the CBBT, on the Virginia Eastern Shore, and
near Oregon Inlet, North Carolina (Waring et al., 2016; Rees et al.,
2016; Jones et al., 2018).
Harbor seals regularly haul out on rocks around the portal islands
of the CBBT and on mud flats on the nearby southern tip of the Eastern
Shore from December through April (Rees et al., 2016; Jones et al.,
2018). Seals captured in 2018 on the Eastern Shore and tagged with
satellite-tracked tags that lasted from 2 to 5 months spent at least 60
days in Virginia waters before departing the area. All tagged seals
returned regularly to the capture site while in Virginia waters, but
individuals utilized offshore and Chesapeake Bay waters to different
extents (Ampela et al., 2019). The area that was utilized most heavily
was near the Eastern Shore capture site, but some seals ranged into the
Chesapeake Bay. To supplement this information, the HRBT project
reported seeing zero seals in or around the project area (HRCP,
Unpublished).
Gray Seal
The Western North Atlantic stock of gray seal occurs in the project
area. The western North Atlantic stock is centered in Canadian waters,
including the Gulf of St. Lawrence and the Atlantic coasts of Nova
Scotia, Newfoundland, and Labrador, Canada, and the northeast U.S.
continental shelf (Hayes et al., 2021). Gray seals range south into the
northeastern United States, with strandings and sightings as far south
as North Carolina (Hammill et al., 1998; Waring et al., 2004). Gray
seal distribution along the U.S. Atlantic coast has shifted in recent
years, with an increased number of seals reported in southern New
England (DiGiovanni et al., 2011; Kenney R.D., 2019; Waring et al.,
2016). Recent sightings included a gray seal in the lower Chesapeake
Bay during the winter of 2014 to 2015 (Rees et al., 2016). Along the
coast of the United States, gray seals are known to pup at three or
more colonies in Massachusetts and Maine.

Unusual Mortality Events

An unusual mortality even (UME) is defined under section 410(6) of
the MMPA as a stranding that is unexpected; involves a significant die-
off of any marine mammal population; and demands immediate response.
Currently, there are active UMEs for northeast pinnipeds (harbor and
gray seals) and humpback whales along the east coast.
Northeast Pinniped UME
Since June 2022, elevated numbers of sick and dead harbor seal and
gray seal have been documented along the southern and central coast of
Maine from Biddeford to Boothbay (including Cumberland, Lincoln, Knox,
Sagadahoc and York Counties). This event has been declared a UME.
Additional information is available at: <a href="https://www.fisheries.noaa.gov/2022-pinniped-unusual-mortality-event-along-maine-coast">https://www.fisheries.noaa.gov/2022-pinniped-unusual-mortality-event-along-maine-coast</a>.
Atlantic Humpback Whale UME
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine through Florida. This
event was declared an UME in 2017 however. A portion of the whales have
shown evidence of pre-mortem vessel strike; however, this finding is
not consistent across all whales examined, and additional research is
needed. Additional information is available at <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>.

[[Page 14569]]

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 4.

Table 4--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
Generalized hearing
Hearing group range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen whales).... 7 Hz to 35 kHz.
Mid-frequency (MF) cetaceans (dolphins, toothed 150 Hz to 160 kHz.
whales, beaked whales, bottlenose whales).
High-frequency (HF) cetaceans (true porpoises, 275 Hz to 160 kHz.
Kogia, river dolphins, Cephalorhynchid,
Lagenorhynchus cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true seals). 50 Hz to 86 kHz.
Otariid pinnipeds (OW) (underwater) (sea lions 60 Hz to 39 kHz.
and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).

The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
The Estimated Take section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The Negligible Impact Analysis and
Determination section considers the content of this section, the
Estimated Take section, and the Proposed Mitigation section, to draw
conclusions regarding the likely impacts of these activities on the
reproductive success or survivorship of individuals and whether those
impacts are reasonably expected to, or reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.

Description of Sound Sources

The marine soundscape is comprised of both ambient and
anthropogenic sounds. Ambient sound is defined as the all-encompassing
sound in a given place and is usually a composite of sound from many
sources both near and far. The sound level of an area is defined by the
total acoustical energy being generated by known and unknown sources.
These sources may include physical (e.g., waves, wind, precipitation,
earthquakes, ice, atmospheric sound), biological (e.g., sounds produced
by marine mammals, fish, and invertebrates), and anthropogenic sound
(e.g., vessels, dredging, aircraft, construction).
The sum of the various natural and anthropogenic sound sources at
any given location and time--which comprise ``ambient'' or
``background'' sound--depends not only on the source levels (as
determined by current weather conditions and levels of biological and
shipping activity) but also on the ability of sound to propagate
through the environment. In turn, sound propagation is dependent on the
spatially and temporally varying properties of the water column and sea
floor, and is frequency-dependent. As a result of the dependence on a
large number of varying factors, ambient sound levels can be expected
to vary widely over both coarse and fine spatial and temporal scales.
Sound levels at a given frequency and location can vary by 10-20 dB
from day to day (Richardson et al., 1995). The result is that,
depending on the source type and its intensity, sound from the
specified activity may be a negligible addition to the local
environment or could form a distinctive signal that may affect marine
mammals.
In-water construction activities associated with the project would
include vibratory pile removal, impact and vibratory pile driving, and
drilling. The sounds produced by these activities fall into one of two
general sound types: Impulsive and non-impulsive. Impulsive sounds
(e.g., explosions, gunshots, sonic booms, impact pile driving) are
typically transient, brief (less than 1 second), broadband, and consist
of high peak sound pressure with rapid rise time and rapid decay (ANSI
1986; NIOSH 1998; ANSI 2005; NMFS 2018). Non-impulsive sounds (e.g.,
aircraft, machinery operations such as drilling or dredging, vibratory
pile driving, and active sonar systems) can be broadband, narrowband or
tonal, brief or prolonged (continuous or intermittent), and typically
do not have the high peak sound pressure with raid rise/decay time that
impulsive sounds do (ANSI 1995; NIOSH 1998; NMFS 2018). The distinction
between these two sound types is important because they have differing
potential to cause physical effects, particularly with regard to
hearing (e.g., Ward 1997 in Southall et al., 2007).
Impact hammers operate by repeatedly dropping a heavy piston onto a
pile to drive the pile into the substrate. Sound generated by impact
hammers is

[[Page 14570]]

characterized by rapid rise times and high peak levels, a potentially
injurious combination (Hastings and Popper 2005). Vibratory hammers
install piles by vibrating them and allowing the weight of the hammer
to push them into the sediment. The vibrations produced also cause
liquefaction of the substrate surrounding the pile, enabling the pile
to be extracted or driven into the ground more easily. Vibratory
hammers produce significantly less sound than impact hammers. Peak
sound pressure levels (SPLs) may be 180 dB or greater, but are
generally 10 to 20 dB lower than SPLs generated during impact pile
driving of the same-sized pile (Oestman et al., 2009). Rise time is
slower, reducing the probability and severity of injury, and sound
energy is distributed over a greater amount of time (Nedwell and
Edwards 2002; Carlson et al., 2005). As mentioned previously, drilling
is considered a continuous source, similar to vibratory pile driving.
The drilling may be used before driving piles in order to facilitate
pile driving and hence is referred to as ``pre-drilling''. For the
proposed project, the drilling apparatus utilized would vary depending
on the different applications during in-water construction activities.
Drilling would be used as necessary to remove sand with shell fragments
or any obstructions in order to accelerate pile driving.
The likely or possible impacts of the Navy's proposed activity on
marine mammals could involve both non-acoustic and acoustic stressors.
Potential non-acoustic stressors could result from the physical
presence of the equipment and personnel; however, any impacts to marine
mammals are expected to be primarily acoustic in nature. Acoustic
stressors include effects of heavy equipment operation during pile
driving, removal and drilling.

Acoustic Impacts

The introduction of anthropogenic noise into the aquatic
environment from pile driving or drilling is the primary means by which
marine mammals may be harassed from the Navy's specified activity. In
general, animals exposed to natural or anthropogenic sound may
experience physical and psychological effects, ranging in magnitude
from none to severe (Southall et al., 2007). In general, exposure to
pile driving or drilling noise has the potential to result in auditory
threshold shifts and behavioral reactions (e.g., avoidance, temporary
cessation of foraging and vocalizing, changes in dive behavior).
Exposure to anthropogenic noise can also lead to non-observable
physiological responses such an increase in stress hormones. Additional
noise in a marine mammal's habitat can mask acoustic cues used by
marine mammals to carry out daily functions such as communication and
predator and prey detection. The effects of pile driving or drilling
noise on marine mammals are dependent on several factors, including,
but not limited to, sound type (e.g., impulsive vs. non-impulsive), the
species, age and sex class (e.g., adult male vs. mom with calf),
duration of exposure, the distance between the pile and there animal,
received levels, behavior at time of exposure, and previous history
with exposure (Wartzok et al., 2004; Southall et al., 2007). Here we
discuss physical auditory effects (threshold shifts) followed by
behavioral effects and potential impacts on habitat.
NMFS defines a noise-induced threshold shift (TS) as a change,
usually an increase, in the threshold of audibility at a specified
frequency or portion of an individual's hearing range above a
previously established reference level (NMFS 2018). The amount of
threshold shift is customarily expressed in decibels (dB). A TS can be
permanent or temporary. As described in NMFS (2018), there are numerous
factors to consider when examining the consequence of TS, including,
but not limited to, the signal temporal pattern (e.g., impulsive or
non-impulsive), likelihood an individual would be exposed for a long
enough duration or to a high enough level to induce a TS, the magnitude
of the TS, time to recovery (seconds to minutes or hours to days), the
frequency range of the exposure (i.e., spectral content), the hearing
and vocalization frequency range of the exposed species relative to the
signal's frequency spectrum (i.e., how an animal uses sound within the
frequency band of the signal; e.g., Kastelein et al., 2014), and the
overlap between the animal and the source (e.g., spatial, temporal, and
spectral).
Permanent Threshold Shift (PTS)--NMFS defines PTS as a permanent,
irreversible increase in the threshold of audibility at a specified
frequency or portion of an individual's hearing range above a
previously established reference level (NMFS 2018). Available data from
humans and other terrestrial mammals indicate that a 40 dB threshold
shift approximates PTS onset (see Ward et al., 1958, 1959; Ward 1960;
Kryter et al., 1966; Miller 1974; Ahroon et al., 1996; Henderson et
al., 2008). PTS levels for marine mammals are estimates, as with the
exception of a single study unintentionally inducing PTS in a harbor
seal (Kastak et al., 2008), there are no empirical data measuring PTS
in marine mammals largely due to the fact that, for various ethical
reasons, experiments involving anthropogenic noise exposure at levels
inducing PTS are not typically pursued or authorized (NMFS 2018).
Temporary Threshold Shift (TTS)--TTS is a temporary, reversible
increase in the threshold of audibility at a specified frequency or
portion of an individual's hearing range above a previously established
reference level (NMFS 2018). Based on data from cetacean TTS
measurements (see Southall et al., 2007), a TTS of 6 dB is considered
the minimum threshold shift clearly larger than any day-to-day or
session-to-session variation in a subject's normal hearing ability
(Schlundt et al., 2000; Finneran et al., 2000, 2002). As described in
Finneran (2015), marine mammal studies have shown the amount of TTS
increases with cumulative sound exposure level (SEL<INF>cum</INF>) in
an accelerating fashion: At low exposures with lower SEL<INF>cum,</INF>
the amount of TTS is typically small and the growth curves have shallow
slopes. At exposures with higher SEL<INF>cum</INF>, the growth curves
become steeper and approach linear relationships with the noise SEL.
Depending on the degree (elevation of threshold in dB), duration
(i.e., recovery time), and frequency range of TTS, and the context in
which it is experienced, TTS can have effects on marine mammals ranging
from discountable to serious (similar to those discussed in auditory
masking, below). For example, a marine mammal may be able to readily
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that takes place during a time when the animal
is traveling through the open ocean, where ambient noise is lower and
there are not as many competing sounds present. Alternatively, a larger
amount and longer duration of TTS sustained during a time when
communication is critical for successful mother/calf interactions could
have more serious impacts. We note that reduced hearing sensitivity as
a simple function of aging has been observed in marine mammals, as well
as humans and other taxa (Southall et al., 2007), so we can infer that
strategies exist for coping with this condition to some degree, though
likely not without cost.
Currently, TTS data only exist for four species of cetaceans
(bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor
porpoise, and Yangtze finless porpoise (Neophocoena asiaeorientalis)
and five species of pinnipeds exposed to a limited number of sound
sources (i.e., mostly tones and

[[Page 14571]]

octave-band noise) in laboratory settings (Finneran 2015). TTS was not
observed in trained spotted (Phoca largha) and ringed (Pusa hispida)
seals exposed to impulsive noise at levels matching previous
predictions of TTS onset (Reichmuth et al., 2016). In general, harbor
seals and harbor porpoises have a lower TTS onset than other measured
pinniped or cetacean species (Finneran 2015). Additionally, the
existing marine mammal TTS data come from a limited number of
individuals within these species. No data are available on noise-
induced hearing loss for mysticetes. For summaries of data on TTS in
marine mammals or for further discussion of TTS onset thresholds,
please see Southall et al., (2007), Finneran and Jenkins (2012),
Finneran (2015), and Table 5 in NMFS (2018). Installing piles for this
project requires a combination of drilling, impact pile driving and
vibratory pile driving. For this project, these activities would not
occur at the same time and there would be pauses in activities
producing the sound during each day. Given these pauses and that many
marine mammals are likely moving through the ensonified area and not
remaining for extended periods of time, the potential for TS declines.
Behavioral Harassment--Exposure to noise from pile driving and
removal also has the potential to behaviorally disturb marine mammals.
Available studies show wide variation in response to underwater sound;
therefore, it is difficult to predict specifically how any given sound
in a particular instance might affect marine mammals perceiving the
signal. If a marine mammal does react briefly to an underwater sound by
changing its behavior or moving a small distance, the impacts of the
change are unlikely to be significant to the individual, let alone the
stock or population. However, if a sound source displaces marine
mammals from an important feeding or breeding area for a prolonged
period, impacts on individuals and populations could be significant
(e.g., Lusseau and Bejder 2007; Weilgart 2007; NRC 2005).
Disturbance may result in changing durations of surfacing and
dives, number of blows per surfacing, or moving direction and/or speed;
reduced/increased vocal activities; changing/cessation of certain
behavioral activities (such as socializing or feeding); visible startle
response or aggressive behavior (such as tail/fluke slapping or jaw
clapping); avoidance of areas where sound sources are located.
Pinnipeds may increase their haul out time, possibly to avoid in-water
disturbance (Thorson and Reyff 2006). Behavioral responses to sound are
highly variable and context-specific and any reactions depend on
numerous intrinsic and extrinsic factors (e.g., species, state of
maturity, experience, current activity, reproductive state, auditory
sensitivity, time of day), as well as the interplay between factors
(e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al.,
2007; Weilgart 2007; Archer et al., 2010). Behavioral reactions can
vary not only among individuals but also within an individual,
depending on previous experience with a sound source, context, and
numerous other factors (Ellison et al., 2012), and can vary depending
on characteristics associated with the sound source (e.g., whether it
is moving or stationary, number of sources, distance from the source).
In general, pinnipeds seem more tolerant of, or at least habituate more
quickly to, potentially disturbing underwater sound than do cetaceans,
and generally seem to be less responsive to exposure to industrial
sound than most cetaceans. Please see Appendices B and C of Southall et
al. (2007) and Gomez et al. (2016) for reviews of studies involving
marine mammals behavioral responses to sound.
Habituation can occur when an animal's response to a stimulus wanes
with repeated exposure, usually in the absence of unpleasant associated
events (Wartzok et al., 2003). Animals are most likely to habituate to
sounds that are predictable and unvarying. It is important to note that
habituation is appropriately considered as a ``progressive reduction in
response to stimuli that are perceived as neither aversive nor
beneficial,'' rather than as, more generally, moderation in response to
human disturbance (Bejder et al., 2009). The opposite process is
sensitization, when an unpleasant experience leads to subsequent
responses, often in the form of avoidance, at a lower level of
exposure.
As noted above, behavioral state may affect the type of response.
For example, animals that are resting may show greater behavioral
change in response to disturbing sound levels than animals that are
highly motivated to remain in an area for feeding (Richardson et al.,
1995; National Research Council (NRC), 2003; Wartzok et al., 2003).
Controlled experiments with captive marine mammals have showed
pronounced behavioral reactions, including avoidance of loud sound
sources (Ridgway et al., 1997; Finneran et al., 2003). Observed
responses of wild marine mammals to loud pulsed sound sources
(typically seismic airguns or acoustic harassment devices) have been
varied but often consist of avoidance behavior or other behavioral
changes suggesting discomfort (Morton and Symonds, 2002; see also
Richardson et al., 1995; Nowacek et al., 2007).
Available studies show wide variation in response to underwater
sound; therefore, it is difficult to predict specifically how any given
sound in a particular instance might affect marine mammals perceiving
the signal. If a marine mammal does react briefly to an underwater
sound by changing its behavior or moving a small distance, the impacts
of the change are unlikely to be significant to the individual, let
alone the stock or population. However, if a sound source displaces
marine mammals from an important feeding or breeding area for a
prolonged period, impacts on individuals and populations could be
significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC,
2005). However, there are broad categories of potential response, which
we describe in greater detail here, that include alteration of dive
behavior, alteration of foraging behavior, effects to breathing,
interference with or alteration of vocalization, avoidance, and flight.
Changes in dive behavior can vary widely and may consist of
increased or decreased dive times and surface intervals as well as
changes in the rates of ascent and descent during a dive (e.g., Frankel
and Clark, 2000; Costa et al., 2003; Ng and Leung, 2003; Nowacek et
al., 2004; Goldbogen et al., 2013a,b). Variations in dive behavior may
reflect interruptions in biologically significant activities (e.g.,
foraging) or they may be of little biological significance. The impact
of an alteration to dive behavior resulting from an acoustic exposure
depends on what the animal is doing at the time of the exposure and the
type and magnitude of the response.
Disruption of feeding behavior can be difficult to correlate with
anthropogenic sound exposure, so it is usually inferred by observed
displacement from known foraging areas, the appearance of secondary
indicators (e.g., bubble nets or sediment plumes), or changes in dive
behavior. As for other types of behavioral response, the frequency,
duration, and temporal pattern of signal presentation, as well as
differences in species sensitivity, are likely contributing factors to
differences in response in any given circumstance (e.g., Croll et al.,
2001; Nowacek et al., 2004; Madsen et al., 2006; Yazvenko et al.,
2007). A determination of whether foraging disruptions incur fitness
consequences would require information on or estimates of the energetic
requirements of the affected individuals and the relationship between
prey availability, foraging effort

[[Page 14572]]

and success, and the life history stage of the animal.
Variations in respiration naturally vary with different behaviors
and alterations to breathing rate as a function of acoustic exposure
can be expected to co-occur with other behavioral reactions, such as a
flight response or an alteration in diving. However, respiration rates
in and of themselves may be representative of annoyance or an acute
stress response. Various studies have shown that respiration rates may
either be unaffected or could increase, depending on the species and
signal characteristics, again highlighting the importance in
understanding species differences in the tolerance of underwater noise
when determining the potential for impacts resulting from anthropogenic
sound exposure (e.g., Kastelein et al., 2001, 2005, 2006; Gailey et
al., 2007).
Marine mammals vocalize for different purposes and across multiple
modes, such as whistling, echolocation click production, calling, and
singing. Changes in vocalization behavior in response to anthropogenic
noise can occur for any of these modes and may result from a need to
compete with an increase in background noise or may reflect increased
vigilance or a startle response. For example, in the presence of
potentially masking signals, humpback whales and killer whales have
been observed to increase the length of their songs (Miller et al.,
2000; Fristrup et al., 2003; Foote et al., 2004), while right whales
have been observed to shift the frequency content of their calls upward
while reducing the rate of calling in areas of increased anthropogenic
noise (Parks et al., 2007). In some cases, animals may cease sound
production during production of aversive signals (Bowles et al., 1994).
Avoidance is the displacement of an individual from an area or
migration path as a result of the presence of a sound or other
stressors, and is one of the most obvious manifestations of disturbance
in marine mammals (Richardson et al., 1995). For example, gray whales
are known to change direction--deflecting from customary migratory
paths--in order to avoid noise from seismic surveys (Malme et al.,
1984). Avoidance may be short-term, with animals returning to the area
once the noise has ceased (e.g., Bowles et al., 1994; Goold, 1996;
Stone et al., 2000; Morton and Symonds, 2002; Gailey et al., 2007).
Longer-term displacement is possible, however, which may lead to
changes in abundance or distribution patterns of the affected species
in the affected region if habituation to the presence of the sound does
not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann
et al., 2006).
A flight response is a dramatic change in normal movement to a
directed and rapid movement away from the perceived location of a sound
source. The flight response differs from other avoidance responses in
the intensity of the response (e.g., directed movement, rate of
travel). Relatively little information on flight responses of marine
mammals to anthropogenic signals exist, although observations of flight
responses to the presence of predators have occurred (Connor and
Heithaus, 1996, Bowers et al., 2018). The result of a flight response
could range from brief, temporary exertion and displacement from the
area where the signal provokes flight to, in extreme cases, marine
mammal strandings (Evans and England, 2001). However, it should be
noted that response to a perceived predator does not necessarily invoke
flight (Ford and Reeves, 2008), and whether individuals are solitary or
in groups may influence the response.
Behavioral disturbance can also impact marine mammals in more
subtle ways. Increased vigilance may result in costs related to
diversion of focus and attention (i.e., when a response consists of
increased vigilance, it may come at the cost of decreased attention to
other critical behaviors such as foraging or resting). These effects
have generally not been demonstrated for marine mammals, but studies
involving fish and terrestrial animals have shown that increased
vigilance may substantially reduce feeding rates (e.g., Beauchamp and
Livoreil, 1997). In addition, chronic disturbance can cause population
declines through reduction of fitness (e.g., decline in body condition)
and subsequent reduction in reproductive success, survival, or both
(e.g., Harrington and Veitch, 1992). However, Ridgway et al. (2006)
reported that increased vigilance in bottlenose dolphins exposed to
sound over a 5 day period did not cause any sleep deprivation or stress
effects.
Many animals perform vital functions, such as feeding, resting,
traveling, and socializing, on a diel cycle (24-hour cycle). Disruption
of such functions resulting from reactions to stressors such as sound
exposure are more likely to be significant if they last more than one
diel cycle or recur on subsequent days (Southall et al., 2007).
Consequently, a behavioral response lasting less than one day and not
recurring on subsequent days is not considered particularly severe
unless it could directly affect reproduction or survival (Southall et
al., 2007). Note that there is a difference between multi-day
substantive behavioral reactions and multi-day anthropogenic
activities. For example, just because an activity lasts for multiple
days does not necessarily mean that individual animals are either
exposed to activity-related stressors for multiple days or, further,
exposed in a manner resulting in sustained multi-day substantive
behavioral responses.
Stress responses--An animal's perception of a threat may be
sufficient to trigger stress responses consisting of some combination
of behavioral responses, autonomic nervous system responses,
neuroendocrine responses, or immune responses (e.g., Seyle, 1950;
Moberg, 2000). In many cases, an animal's first and sometimes most
economical (in terms of energetic costs) response is behavioral
avoidance of the potential stressor. Autonomic nervous system responses
to stress typically involve changes in heart rate, blood pressure, and
gastrointestinal activity. These responses have a relatively short
duration and may or may not have a significant long-term effect on an
animal's fitness.
Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that
are affected by stress--including immune competence, reproduction,
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been
implicated in failed reproduction, altered metabolism, reduced immune
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha,
2000). Increases in the circulation of glucocorticoids are also equated
with stress (Romano et al., 2004).
The primary distinction between stress (which is adaptive and does
not normally place an animal at risk) and ``distress'' is the cost of
the response. During a stress response, an animal uses glycogen stores
that can be quickly replenished once the stress is alleviated. In such
circumstances, the cost of the stress response would not pose serious
fitness consequences. However, when an animal does not have sufficient
energy reserves to satisfy the energetic costs of a stress response,
energy resources must be diverted from other functions. This state of
distress will last until the animal replenishes its energetic reserves
sufficient to restore normal function.
Relationships between these physiological mechanisms, animal
behavior, and the costs of stress responses are well-studied through
controlled experiments and for both laboratory and free-ranging animals
(e.g., Holberton et al., 1996; Hood et al.,

[[Page 14573]]

1998; Jessop et al., 2003; Krausman et al., 2004; Lankford et al.,
2005). Stress responses due to exposure to anthropogenic sounds or
other stressors and their effects on marine mammals have also been
reviewed (Fair and Becker, 2000; Romano et al., 2002b) and, more
rarely, studied in wild populations (e.g., Romano et al., 2002a). For
example, Rolland et al. (2012) found that noise reduction from reduced
ship traffic in the Bay of Fundy was associated with decreased stress
in North Atlantic right whales. These and other studies lead to a
reasonable expectation that some marine mammals will experience
physiological stress responses upon exposure to acoustic stressors and
that it is possible that some of these would be classified as
``distress.'' In addition, any animal experiencing TTS would likely
also experience stress responses (NRC, 2003), however distress is an
unlikely result of this project based on observations of marine mammals
during previous, similar construction projects.
Acoustic Masking--Sound can disrupt behavior through masking, or
interfering with, and animal's ability to detect, recognize, or
discriminate between acoustic signals of interest (e.g., those used for
intraspecific communication and social interactions, prey detection,
predator avoidance, navigation) (Richardson et al., 1995). Masking
occurs when the receipt of a sound is interfered with by another
coincident sound at similar frequencies and at similar or higher
intensity, and may occur whether the sound is natural (e.g., snapping
shrimp, wind, waves, precipitation) or anthropogenic (e.g., pile
driving, shipping, sonar, seismic exploration) in origin. The ability
of a noise source to mask biologically important sounds depends on the
characteristics of both the noise source and the signal of interest
(e.g., signal-to-noise ratio, temporal variability, direction), in
relation to each other and to an animal's hearing abilities (e.g.,
sensitivity, frequency range, critical rations, frequency
discrimination, directional discrimination, age or TTS hearing loss),
and existing ambient noise and propagation conditions. Masking of
natural sounds can result when human activities produce high levels of
background sound at frequencies important to marine mammals.
Conversely, if the background level of underwater sound is high (e.g.,
on a day with strong wind and high waves), an anthropogenic sound
source would not be detectable as far away as would be possible under
quieter conditions and would itself be masked.
Airborne Acoustic Effects--Although pinnipeds are known to haul-out
regularly on man-made objects, such as the nearby Chesapeake Bay Bridge
Tunnel, we believe that incidents of take resulting solely from
airborne sound are unlikely due to the sheltered proximity between the
proposed project area and these haulout sites (over 16 miles (26 km)).
There is a possibility that an animal could surface in-water, but with
head out, within the area in which airborne sound exceeds relevant
thresholds and thereby be exposed to levels of airborne sound that we
associate with harassment, but any such occurrence would likely be
accounted for in our estimate of incidental take from underwater sound.
Therefore, authorization of incidental take resulting from airborne
sound for pinnipeds is not warranted, and airborne sound is not
discussed further here. Cetaceans are not expected to be exposed to
airborne sounds that would result in harassment as defined under the
MMPA.

Marine Mammal Habitat Effects

The Navy's construction activities could have localized, temporary
impacts on marine mammal habitat by increasing in-water sound pressure
levels and slightly decreasing water quality. However, since the focus
of the proposed action is pile driving and drilling, no net habitat
loss is expected as the new Pier 3 will be immediately north of the
existing Pier 3 and, once complete, the current Pier 3 will be
demolished. Construction activities are of short duration and would
likely have temporary impacts on marine mammal habitat through
increases in underwater sounds. Increased noise levels may affect the
acoustic habitat (see masking discussion above) and adversely affect
marine mammal prey in the vicinity of the project area (see discussion
below). During pile driving activities, elevated levels of underwater
noise would ensonify the project area where both fishes and marine
mammals may occur and could affect foraging success. Additionally,
marine mammals may avoid the area during construction, however
displacement due to noise is expected to be temporary and is not
expected to result in long-term effects to the individuals or
populations.
Temporary and localized reduction in water quality will occur
because of in-water construction activities as well. Most of this
effect will occur during the installation and removal of piles when
bottom sediments are disturbed. The installation of piles will disturb
bottom sediments and may cause a temporary increase in suspended
sediment in the project area. In general, turbidity associated with
pile installation is localized to about 25-ft (7.6 meter) radius around
the pile (Everitt et al., 1980). Cetaceans are not expected to be close
enough to the pile driving areas to experience effects of turbidity,
and any pinnipeds could avoid localized areas of turbidity. Therefore,
we expect the impact from increased turbidity levels to be discountable
to marine mammals and do not discuss it further.
In-Water Construction Effects on Potential Foraging Habitat--The
proposed activities would not result in permanent impacts to habitats
used directly by marine mammals except for the actual footprint of the
new Pier 3. The total seafloor area affected by pile installation and
removal is a very small area compared to the vast foraging area
available to marine mammals in the project area and lower Chesapeake
Bay. Pile extraction and installation may have impacts on benthic
invertebrate species primarily associated with disturbance of sediments
that may cover or displace some invertebrates. The impacts will be
temporary and highly localized, and no habitat will be permanently
displaced by construction. Therefore, it is expected that impacts on
foraging opportunities for marine mammals due to the demolition and
reconstruction of Pier 3 would be minimal.
It is possible that avoidance by potential prey (i.e., fish) in the
immediate area may occur due to temporary loss of this foraging
habitat. The duration of fish avoidance of this area after pile driving
stops is unknown, but we anticipate a rapid return to normal
recruitment, distribution and behavior. Any behavioral avoidance by
fish of the disturbed area would still leave large areas of fish and
marine mammal foraging habitat in the nearby vicinity in the project
area and lower Chesapeake Bay.
Effects on Potential Prey--Sound may affect marine mammals through
impacts on the abundance, behavior, or distribution of prey species
(e.g., fish). Marine mammal prey varies by species, season, and
location. Here, we describe studies regarding the effects of noise on
known marine mammal prey.
Fish utilize the soundscape and components of sound in their
environment to perform important functions such as foraging, predator
avoidance, mating, and spawning (e.g., Zelick et al., 1999; Fay, 2009).
Depending on their hearing anatomy and peripheral sensory structures,
which vary among species, fishes hear

[[Page 14574]]

sounds using pressure and particle motion sensitivity capabilities and
detect the motion of surrounding water (Fay et al., 2008). The
potential effects of noise on fishes depends on the overlapping
frequency range, distance from the sound source, water depth of
exposure, and species-specific hearing sensitivity, anatomy, and
physiology. Key impacts to fishes may include behavioral responses,
hearing damage, barotrauma (pressure-related injuries), and mortality.
Fish react to sounds which are especially strong and/or
intermittent low-frequency sounds, and behavioral responses such as
flight or avoidance are the most likely effects. Short duration, sharp
sounds can cause overt or subtle changes in fish behavior and local
distribution. The reaction of fish to noise depends on the
physiological state of the fish, past exposures, motivation (e.g.,
feeding, spawning, migration), and other environmental factors.
Hastings and Popper (2005) identified several studies that suggest fish
may relocate to avoid certain areas of sound energy. Additional studies
have documented effects of pile driving on fish, although several are
based on studies in support of large, multiyear bridge construction
projects (e.g., Scholik and Yan, 2001, 2002; Popper and Hastings,
2009). Several studies have demonstrated that impulse sounds might
affect the distribution and behavior of some fishes, potentially
impacting foraging opportunities or increasing energetic costs (e.g.,
Fewtrell and McCauley, 2012; Pearson et al., 1992; Skalski et al.,
1992; Santulli et al., 1999; Paxton et al., 2017). However, some
studies have shown no or slight reaction to impulse sounds (e.g., Pena
et al., 2013; Wardle et al., 2001; Jorgenson and Gyselman, 2009; Cott
et al., 2012).
SPLs of sufficient strength have been known to cause injury to fish
and fish mortality. However, in most fish species, hair cells in the
ear continuously regenerate and loss of auditory function likely is
restored when damaged cells are replaced with new cells. Halvorsen et
al. (2012a) showed that a TTS of 4-6 dB was recoverable within 24 hours
for one species. Impacts would be most severe when the individual fish
is close to the source and when the duration of exposure is long.
Injury caused by barotrauma can range from slight to severe and can
cause death, and is most likely for fish with swim bladders. Barotrauma
injuries have been documented during controlled exposure to impact pile
driving (Halvorsen et al., 2012b; Casper et al., 2013).
The most likely impact to fish from pile driving activities at the
project areas would be temporary behavioral avoidance of the area. The
duration of fish avoidance of an area after pile driving stops is
unknown, but a rapid return to normal recruitment, distribution and
behavior is anticipated.
The area impacted by the project is relatively small compared to
the available habitat in the remainder of the project area and the
lower Chesapeake Bay, and there are no areas of particular importance
that would be impacted by this project. Any behavioral avoidance by
fish of the disturbed area would still leave significantly large areas
of fish and marine mammal foraging habitat in the nearby vicinity. As
described in the preceding, the potential for the Navy's construction
to affect the availability of prey to marine mammals or to meaningfully
impact the quality of physical or acoustic habitat is considered to be
insignificant.

Estimated Take

This section provides an estimate of the number of incidental takes
proposed for authorization through this IHA, which will inform both
NMFS' consideration of ``small numbers,'' and the negligible impact
determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as noise
generated from in-water pile driving (vibratory and impact) and
drilling has the potential to result in disruption of behavioral
patterns for individual marine mammals. There is also some potential
for auditory injury (Level A harassment) to result, primarily for high-
and low-frequency species and phocids because predicted auditory injury
zones are larger than for mid-frequency species. However, auditory
injury is unlikely to occur for low- and mid- frequency species as
proposed shutdown zones encompass the entirely of the auditory injury
zones for all proposed activities (see Proposed Mitigation section).
The proposed mitigation and monitoring measures are expected to
minimize the severity of the taking to the extent practicable.
As described previously, no serious injury or mortality is
anticipated or proposed to be authorized for this activity. Below we
describe how the proposed take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and, (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the proposed take estimates.

Acoustic Thresholds

NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater

[[Page 14575]]

anthropogenic noise above root-mean-squared pressure received levels
(RMS SPL) of 120 dB (referenced to 1 micropascal (re 1 [mu]Pa)) for
continuous (e.g., vibratory pile-driving, drilling) and above RMS SPL
160 dB re 1 [mu]Pa for non-explosive impulsive (e.g., impact pile
driving) or intermittent (e.g., scientific sonar) sources.
The Navy's construction includes the use of continuous (vibratory
pile driving/removal, drilling) and impulsive (impact pile driving)
sources, and therefore the 120 and 160 dB re 1 [mu]Pa (rms) are
applicable.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). As
previously noted, the Navy's proposed activity includes the use of non-
impulsive (vibratory pile driving/removal, drilling) and impulsive
(impact pile driving) sources.
These thresholds are provided in the table below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
<a href="http://www.fisheries.noaa.gov/national/marine-mammal-p-rotection/marine-mammal-acoustic-technical-guidance">www.fisheries.noaa.gov/national/marine-mammal-p-rotection/marine-mammal-acoustic-technical-guidance</a>.

Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.

Ensonified Area

Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
In order to calculate the distances to the Level A harassment and
the Level B harassment sound thresholds for the methods and piles being
used in this project, NMFS used acoustic monitoring data from other
locations to develop proxy source levels for various pile types (Table
6). Generally we choose source levels from similar pile types and
locations (e.g., geology, bathymetry) similar to the project. At this
time, NMFS is not aware of reliable source levels available for
polymeric piles using vibratory pile installation, therefore source
levels for timber pile driving were used as a proxy. Vibratory pile
driving of polymeric piles expected to occur under the 2022 IHA has yet
to occur and therefore has not been measured. Similarly, the following
proxies were used as source levels for piles where no data was
available: Source levels from the 48-inch steel pile from Naval Base
Kitsap at Bangor, Washington (Caltrans 2020) was used as a proxy for 42
inch steel pipe piles (impact); the 30-inch steel pipe pile was used as
a proxy for the 28 inch steel sheet pile (impact and vibratory); source
levels for timber piles were used as a proxy for concrete as they are
expected to have similar sound levels as they are similarly sized, non-
metallic, and will be removed using the same methods.
Very little information is available regarding source levels for
in-water drilling activities associated with nearshore pile
installation. Measurements made during a pile drilling project in 1-5 m
(3-16 ft) depth at Santa Rosa Island, CA, by Dazey et al. (2012) appear
to provide the best available proxy source levels for proposed
activities. Dazey et al. (2012) reported average rms source levels
ranging from 151 to 157 db re 1 [mu]Pa during 62 days that spanned all
related drilling activities during a single season.

Table 6--Project Sound Source Levels and Proxy Source Levels Used for Acoustic Modeling
--------------------------------------------------------------------------------------------------------------------------------------------------------
Peak SPL (re 1 RMS SPL (re 1 SEL (re 1
Pile type Pile size (inch) Method [mu]Pa (rms)) [mu]Pa (rms)) [mu]Pa (rms)) Source
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steel Pipe Pile......... 42............................. Impact.............. 213 190 177 Caltrans 2020.
Vibratory........... N/A 168 N/A Sitka 2017.
Steel Sheet............. 28............................. Impact \1\.......... 211 196 181 NAVFAC SW 2020.
Vibratory \2\....... N/A 167 167 Navy 2015.
Concrete Pile........... 24............................. Impact.............. 189 176 163 Illingworth and
Rodkin 2017.
Vibratory Removal 185 162 157 Caltrans 2020.
\3\.
Concrete Pile........... 18............................. Impact \3\.......... 185 166 154 Caltrans 2020.
Vibratory Removal 185 162 157 Caltrans 2020.
\4\.
Polymeric Pile.......... 13............................. Impact.............. 177 153 ............... Denes et al., 2016.
Vibratory \5\....... 185 162 157 Caltrans 2020.

[[Page 14576]]

Timber Pile............. 14............................. Vibratory Install/ 185 162 157 Caltrans 2020.
Removal.
N/A \6\................. ``Multiple pile sizes'' \6\.... Drilling............ N/A 154 N/A Dazey et al., 2012.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ A source level value for impact pile driving of 28-inch steel sheet piles could not be found so a value for a 30-inch steel pipe pile has been used
as a proxy (NAVFAC SW, 2020 [p.A-4]).
\2\ A source level value for vibratory pile driving of 28-inch steel sheet piles could not be found so a value for a 30-inch steel pipe pile has been
used as a proxy (Navy, 2015 [p. 14]).
\3\ Data on vibratory extraction of concrete piles is not available, however source levels are expected to be similar to the levels produced by timber
piles as they are similar in size, material and removal method.
\4\ Proxy data for 18-inch octagonal piles.
\5\ Vibratory proxy for polymeric/plastic piles is unavailable; we assume SPL to be consistent with timber.
\6\ See Table 2 for pile types/size that may use drilling, as needed.

Table 7--Source Level Matrix for Concurrent Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
42-inch 28-inch 14-inch 14-inch 24-inch 18-inch 14-inch
Pile diameter steel pipe steel pipe timber polymeric concrete concrete timber Multiple
--------------------------------------------------------------------------------------------------------------------------------------------------------
SSL 168 167 162 162 162 162 162 154
42-inch Steel Pipe................. 168 171 171 169 169 169 169 169 168
28-inch Steel Pipe................. 167 171 170 168 168 168 168 168 167
14-inch Timber..................... 162 169 168 165 165 165 165 165 163
14-inch Polymeric.................. 162 169 168 165 165 165 165 165 163
24-inch Concrete................... 162 169 168 165 165 165 165 165 163
18-inch Concrete................... 162 169 168 165 165 165 165 165 163
14-inch Timber..................... 162 169 168 165 165 165 165 165 163
Multiple........................... 154 168 167 163 163 163 163 163 157
--------------------------------------------------------------------------------------------------------------------------------------------------------

The ensonified area associated with Level A harassment is more
technically challenging to predict due to the need to account for a
duration component. Therefore, NMFS developed an optional User
Spreadsheet tool to accompany the Technical Guidance that can be used
to relatively simply predict an isopleth distance for use in
conjunction with marine mammal density or occurrence to help predict
potential takes. We note that because of some of the assumptions
included in the methods underlying this optional tool, we anticipate
that the resulting isopleth estimates are typically going to be
overestimates of some degree, which may result in an overestimate of
potential take by Level A harassment. However, this optional tool
offers the best way to estimate isopleth distances when more
sophisticated modeling methods are not available or practical. For
stationary sources, such as pile driving, removal, and drilling, the
optional User Spreadsheet tool predicts the distance at which, if a
marine mammal remained at that distance for the duration of the
activity, it would be expected to incur PTS. Inputs used in the
optional User Spreadsheet tool are reported in Table 1 and Table 2, and
source levels used in the User Spreadsheet are reported in Table 6. The
resulting isopleths are reported in Table 7 (impact pile driving),
Table 8 (vibratory pile driving/removal, and drilling), and Table 9
(concurrent pile driving scenarios) below.

Table 8--Level A and Level B Harassment Isopleths for Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment isopleths (m) Level B
Year Pile driving site Source ---------------------------------------------------- (behavioral)
LF MF HF Phocids (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 2............... CEP-176..................... 42-inch Steel Pipe............... 1,482 53 1,766 793 1,000
28-inch Steel Sheets............. 1,783 63 2,123 954 2,512
CEP-175..................... 13-inch Polymeric Piles.......... 17 1 20 9 3
CEP-102..................... 24-inch Square Precast Concrete.. 117 4 139 63 117
18-inch Square Precast Concrete.. 7 0 9 4 25
Pier 3 (bearing piles)...... 24-inch Square Precast Concrete.. 254 9 302 136 117
Year 3............... Pier 3 (Fender Piles)....... 24-inch Square Precast Concrete.. 37 1 44 20 117
18-inch Steel Pipe............... 661 24 788 354 25
CEP-102..................... 42-inch Steel Pipe............... 1,002 36 1,193 536 1,000
28-inch Steel Sheet.............. 1,783 63 2,123 954 2,512
Year 4............... CEP-102..................... 24-inch Square Precast Concrete.. 117 4 139 63 117
18-inch Square Precast Concrete.. 7 0 9 4 25
42-inch Steel Pipe............... 1,002 36 1,193 536 1,000
28-inch Steel Sheet.............. 1,783 63 2,123 954 2,512
Year 5............... CEP-102..................... 24-inch Square Precast Concrete.. 117 4 139 63 117
18-inch Square Precast Concrete.. 7 0 9 4 25
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 9--Level A and Level B Harassment Isopleths for Vibratory Pile Driving, Removal and Drilling
----------------------------------------------------------------------------------------------------------------
Level A harassment isopleths (m) \1\ Level B
Year Pile driving Source ---------------------------------------------------- behavioral
site LF MF HF Phocids (m)
----------------------------------------------------------------------------------------------------------------
Year 2.. CEP-176........ 42-inch Steel Pipe 127 11 188 77 15,849
(Vibratory).
28-inch Steel Sheet 100 9 147 61 13,594
(Vibratory).
CEP-175........ 13-inch Polymeric 15 1 22 9 6,310
Piles (Vibratory).
CEP-102........ 24-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).

[[Page 14577]]

18-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
Year 3.. Pier 3 (Fender 24-inch Square 1 0 1 1 1,848
Piles). Precast Concrete
(Drilling).
CEP-102........ 42-inch Steel Pipe 80 7 118 49 15,849
(Vibratory Install).
28-inch Steel Sheet 100 9 147 61 13,594
Piles (Vibratory).
18-inch Square 35 3 51 21 6,310
Precast Concrete
(Vibratory
Extraction).
Year 4.. CEP-102........ 24-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
14-inch Timber 68 6 101 41 6,310
(Vibratory
Extraction).
18-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
42-inch Steel Pipe 80 7 118 49 15,849
(Vibratory).
28-inch Steel Sheet 100 9 147 61 13,594
(Vibratory).
18-inch Square 35 3 51 21 6,310
Precast Concrete
(Vibratory
Extraction).
Existing Pier 3 24-inch Square 42 4 62 25 6,310
Precast Concrete
(Vibratory
Extraction).
16-inch and 18-inch 37 3 55 23 6,310
Square Precast
Concrete (Vibratory
Extraction).
Year 5.. CEP-102........ 24-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
18-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
Existing Pier 3 16-inch and 18-inch 37 3 55 23 6,310
Square Precast
Concrete (Vibratory
Extraction).
----------------------------------------------------------------------------------------------------------------

Table 10--Level A and Level B Harassment Isopleths for Concurrent Pile Driving and Drilling Scenarios
----------------------------------------------------------------------------------------------------------------
Level A harassment isopleths (m) Level B
Year Pile driving Source ---------------------------------------------------- behavioral
site LF MF HF Phocids (m)
----------------------------------------------------------------------------------------------------------------
2....... CEP-176 Install of 42-inch 549 49 811 334 25,119
Bulkhead. steel pipe and 28-
inch steel sheets.
2....... CEP-176 Install of two 42- 320 28 472 194 25,119
Bulkhead. inch steel pipe
piles.
2....... CEP-176 and CEP- Install of 42-inch 166 15 246 101 15,849
102. steel pipe and 24-
inch Square precast
concrete.
2....... CEP-176 and CEP- Install of 42-inch 254 23 376 155 18,478
175. steel pipe piles
and 13-inch
polymeric piles.
3....... Pier 3......... Install of 24-inch 2 0.1 2 1 2,929
Square precast
concrete fender
piles using two
drills.
3....... CEP-102 Install of 42-inch 507 45 750 308 25,119
Bulkhead. steel pipe and 28-
inch steel sheets.
4....... Existing Pier 3 Extraction of 14- 981 87 1,450 596 25,119
CEP-102 inch timber piles,
Platform. install of 42-inch
steel pipe and 28-
inch steel sheets,
and rotary drilling
of 24-inch Square
precast concrete.
5....... Existing Pier 3 Concurrent 77 7 114 47 7,356
CEP-102 extraction of 16-
Platform. and 18-inch Square
precast concrete
and rotary drilling
of 24-inch Square
precast concrete.
----------------------------------------------------------------------------------------------------------------

The maximum distance to the Level A harassment threshold during
construction would be during the impact driving of 28 inch steel sheets
at CEP-176 and CEP-102 (1783 m for humpback whale; 63 m for bottlenose
dolphin; 2123 m for harbor porpoises; and 954 m for pinnipeds). The
largest calculated Level B harassment isopleth extends out to 25,119 m,
which would result from concurrent pile driving of the scenarios
presented in Table 10. While 25,119 m may not be an attainable
observable distance in all directions, the Level B harassment zone will
be monitored to the maximum extent possible.

Marine Mammal Occurrence and Take Estimation

In this section we provide information about the presence, density,
or group dynamics of marine mammals that will inform the take
calculations. We describe how the information provided above is brought
together to produce a quantitative take estimate for each species.
Humpback Whales
Humpback whales occur in the mouth of the Chesapeake Bay and
nearshore waters of Virginia during winter and spring months. Several
satellite tagged humpback whales were detected west of the Chesapeake
Bay Bridge Tunnel, including two individuals with locations near NAVSTA
Norfolk and Joint Expeditionary Base Little Creek (Aschettino et al.,
2017). Group size was not reported in these surveys, however most
whales detected were juveniles. Although two individuals were detected
in the vicinity of the proposed project activities, there is no
evidence that they linger for multiple days. Because no density
estimates are available for the species in this area, the Navy
estimated one potential sighting of a group of average size (2
individuals) every 60 days of pile driving. Therefore, given the number
of project days expected in each year (Table 1), NMFS is proposing to
authorize a total of 19 takes by Level B harassment of humpback whale
over the five-year authorization, with no more than seven takes by
Level B harassment in a given year.
The largest Level A harassment zone for low-frequency cetaceans
extends approximately 1783 m from the source during impact pile driving
of the 28-inch steel sheet piles (Table 8). The Navy plans to shut down
if a humpback whale is sighted within any of the Level A harassment
zones for all activities, as indicated in Table 11. Therefore, the Navy
did not request, and NMFS is not proposing to authorize, take by Level
A harassment of humpback whales.
Bottlenose Dolphin
The expected number of bottlenose dolphins in the project area was
estimated using inshore seasonal

[[Page 14578]]

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 (Engelhaupt et
al., 2016). 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. To calculate
potential Level B harassment takes of bottlenose dolphin, NMFS
conservatively multiplied the density of 1.38 dolphin/km\2\ (from
Englehaupt et al., 2016) by the largest Level B harassment isopleth for
each project location (Table 8, 9 and 10), and then by the number of
days associated with that activity (Table 1). For example, to calculate
Level B harassment takes associated with work at the existing Pier 3 in
year 2, NMFS multiplied the density (1.38 dolphins/km\2\) by the
largest Level B harassment zone for impact pile driving on the 24-inch
concrete bearing piles at the new Pier 3 (0.043 km\2\) by the
proportional number of pile driving days for that activity (70 days)
for a total of 4 Level B harassment takes at Pier 3, for that activity
in year 1. Takes by Level B harassment were calculated for both
individual pile driving activities and concurrent pile driving
activities, as authorized takes are conservatively based on the
scenario that produces more takes by Level B harassment (Table 11).
Therefore, NMFS proposes to authorize 28,480 \1\ takes by Level B
harassment of bottlenose dolphin across all five years, with no more
than 13,190 takes in a given year.
---------------------------------------------------------------------------

\1\ Note: This total number of takes by Level B harassment
proposed for authorization differs from that in the Navy's request
for Rulemaking. The number presented here conservatively uses
exposure estimates for concurrent pile driving scenarios in Year 5,
which were higher than those produced for individual pile driving
activities.
---------------------------------------------------------------------------

Harbor Porpoise
Harbor porpoises are known to occur in the coastal waters near
Virginia Beach (Hayes et al., 2019). Density data for this species
within the project vicinity do not exist or were not calculated because
sample sizes were too small to produce reliable estimates of density.
Harbor porpoise sighting data collected by the U.S. Navy near NAVSTA
Norfolk and Virginia Beach from 2012 to 2015 (Engelhaupt et al. 2014;
2015; 2016) did not produce enough sightings to calculate densities.
One group of two harbor porpoises was seen during spring 2015
(Engelhaupt et al. 2016). Elsewhere in their range, harbor porpoises
typically occur in groups of two to three individuals (Carretta et al.
2001; Smultea et al. 2017).
Because there are no density estimates for the species in the
proposed project area, the Navy conservatively estimated one harbor
porpoise sighting (of two individuals) once every 60 days of pile
driving or drilling. Therefore, the assumption of two individuals per
60 days was used for calculation of take numbers. Total pile driving
days for Year 2 would be 185 days, Year 3 would be 92 days, Year 4
would be 204 days, and Year 5 would have 32 days. Takes by Level B
harassment were calculated for both individual pile driving activities
and concurrent pile driving activities, as authorized takes are
conservatively based on the scenario that produced the larger exposure
estimate (Table 11). Using the above methodology, NMFS calculated an
exposure estimate of 19 incidents of take for harbor porpoises.
The largest Level A harassment zone for high-frequency cetaceans is
2,123 m during impact pile driving of the 28-inch steel sheet piles.
The Navy has proposed to shut down at 500 m for harbor porpoises during
the aforementioned activity, in addition to shorter distances where
appropriate for other proposed activities as noted in Table13 as a
reasonable area to observe for harbor porpoises and implement shutdown
procedures while avoiding an impracticable number of shutdowns.
Consequently, the Navy has requested authorization of take by Level A
harassment for harbor porpoise during the course of the project. Take
by Level A harassment may not actually occur due to the duration of
time harbor porpoise would be required to remain within the Level A
harassment zone to accumulate enough energy to experience PTS. However,
as a precaution NMFS proposes to authorize a total of 4 takes by Level
A harassment as requested by the Navy (Table 11) with no more than 2
takes by Level A harassment occurring in a given year, and 15 total
takes by Level B harassment with no more than 5 takes by Level B
harassment occurring in a given year, equaling the aforementioned total
of 19 takes over 5 years.
Harbor Seal
The expected number of harbor seals in the project area was
estimated using systematic land- and vessel-based survey data for in-
water and hauled out seals collected by the U.S. Navy at the CBBT rock
armor and portal islands from 2014 through 2019 (Jones et al., 2020).
The average daily seal count from the field season ranged from 8 to 23
seals, with an average of 13.6 harbor seals across all the field
seasons.
The Navy expects, and NMFS concurs, that harbor seals are likely to
be present from November to April. Consistent with previous nearby
projects (87 FR 15945; March 31, 2022, 86 FR 24340; May 6, 2021, 86 FR
17458; April 2, 2021), NMFS calculated take by Level B harassment by
multiplying 13.6 seals by the number of pile driving days expected to
occur from November through April (seal season): 74 days in Year 2, 23
days in Year 3, 133 days in Year 4. And 32 days in Year 5. Potential
takes by Level A harassment were calculated based on the number of
production days within seal season on which the Level A harassment
isopleth exceeds the shutdown zone of 200 m (42 days in Year 2; 3 days
in Year 3; and 0 days in Year 4 and 5), assuming that approximately 10
percent of harbor seal exposures would be at or above the Level A
harassment threshold. Potential takes by Level B harassment were
calculated by subtracting the Level A harassment takes estimated per
year from the total calculated takes. Consistent with previous species,
take estimates are based on the scenario (individual or concurrent)
that produced the higher take estimate (Table 11). Therefore, the Navy
is requesting and NMFS is proposing to authorize a total of 4,182 takes
by Level B harassment and 61 takes by Level A harassment (Table 12).
Gray Seal
Very little information is available about the occurrence of gray
seals in the Chesapeake Bay and coastal waters. Although the population
of the United States may be increasing, there are only a few records
available at the known haulout sites in Virginia used by gray seals,
strandings are rare, and they have not been reported in shipboard
surveys. Assuming that they may utilize the Chesapeake Bay waters, the
Navy conservatively estimates one gray seal may be exposed to elevated
noise levels for every 60 days of vibratory pile driving during the six
month period when they are most likely to be present. Similar to harbor
seals, the maximum number of pile driving days where gray seals may be
exposed during seal season per year were used for calculations. The
scenario (concurrent or individual activities) that produced the larger
exposure estimate is proposed for authorization (Table 11). Therefore,
the Navy has requested and NMFS is proposing to authorize 5 takes by
Level B harassment. Given the low likelihood of encountering gray seals
during the project and low number of days in

[[Page 14579]]

which Level A harassment isopleths may exceed proposed shutdown zones,
no take by Level A harassment is proposed for authorization.

Table 11--Calculated Takes by Level A and Level B Harassment for Concurrent and Individual Pile Driving, Removal
and Drilling Scenarios \1\
----------------------------------------------------------------------------------------------------------------
Individual activities Concurrent activities
Year Species ---------------------------------------------------------------
Level A Level B Level A Level B
----------------------------------------------------------------------------------------------------------------
2............................. Humpback whale.. 0 6 0 2
BND--Northern 0 2691 0 5609
Migratory.
BND--Southern
Migratory.
BND--NC
Estuarine.
Harbor porpoise. 2 4 0 1
Harbor seal..... 57 949 25 832
Gray seal....... 0 1 0 1
3............................. Humpback whale.. 0 3 0 1
BND--Northern 0 3061 0 1440
Migratory.
BND--Southern
Migratory.
BND--NC
Estuarine.
Harbor porpoise. 0 3 0 1
Harbor seal..... 4 309 7 537
Gray seal....... 0 0 0 1
4............................. Humpback whale.. 0 7 0 1
BND--Northern 0 13190 0 3023
Migratory.
BND--Southern
Migratory.
BND--NC
Estuarine.
Harbor porpoise. 2 5 0 1
Harbor seal..... 0 1809 26 232
Gray seal....... 0 2 0 0
5............................. Humpback whale.. 0 2 0 3
BND--Northern 0 383 0 6620
Migratory.
BND--Southern
Migratory.
BND--NC
Estuarine.
Harbor porpoise. 0 1 0 3
Harbor seal..... 0 435 0 1115
Gray seal....... 0 2 0 1
----------------------------------------------------------------------------------------------------------------
\1\ Potential takes by Level A and Level B harassment are conservatively based on the scenario (individual vs.
concurrent pile driving, removal, or drilling) that produced the highest exposure estimate. Therefore, the
number of takes by Level A and Level B harassment proposed for authorization is italicized and used to
determine percent of stock.

Table 12--Proposed Authorized Takes by Level A and Level B Harassment by Species and Stock in Comparison to Stock Abundance
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed take
Year Species Abundance -------------------------------- Total Percent of
Level A Level B stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
2......................................... Humpback whale \a\.......... 1396 0 6 6 0.43
BND--Northern Migratory \b\ 6639 0 5609 2705 40.74
\c\.
BND--Southern Migratory \b\ 3751 2705 72.10
\c\.
BND--NC Estuarine \b\ \c\... 823 200 24.30
Harbor porpoise............. 95543 2 4 6 0.01
Harbor seal................. 61336 57 949 1006 1.64
Gray seal................... 27300 0 1 1 0.00
3......................................... Humpback whale \a\.......... 1396 0 3 3 0.21
BND--Northern Migratory \b\ 6639 0 3061 1431 21.55
\c\.
BND--Southern Migratory \b\ 3751 1431 38.15
\c\.
BND--NC Estuarine \b\ \c\... 823 200 24.30
Harbor porpoise............. 95543 0 3 3 0.00
Harbor seal................. 61336 7 537 544 0.89
Gray seal................... 27300 0 1 1 0.00
4......................................... Humpback whale \a\.......... 1396 0 7 7 0.50
BND--Northern Migratory \b\ 6639 0 13190 6495 97.83
\c\.
BND--Southern Migratory \b\ 3751 6495 173.15
\c\.
BND--NC Estuarine \b\ \c\... 823 200 24.30
Harbor porpoise............. 95543 2 5 7 0.01
Harbor seal................. 61336 26 1783 1809 2.95
Gray seal................... 27300 0 2 2 0.01
5......................................... Humpback whale \a\.......... 1396 0 3 3 0.21
BND--Northern Migratory \b\ 6639 0 6620 3210 48.35
\c\.
BND--Southern Migratory \b\ 3751 3210 85.58
\c\.
BND--NC Estuarine \b\ \c\... 823 200 24.30
Harbor porpoise............. 95543 0 3 3 0.00

[[Page 14580]]

Harbor seal................. 61336 0 1115 1115 1.82
Gray seal................... 27300 0 2 2 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ West Indies DPS. Please see the Description of Marine Mammals in the Area of Specified Activities section for further discussion.
\b\ Take 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 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 Small Numbers section for additional information.

Proposed Mitigation

In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, and impact on
operations.
In addition to the measures described later in this section, the
Navy will employ the following mitigation measures:
<bullet> The Navy will conduct briefings between construction
supervisors and crews, the marine mammal monitoring team, and Navy
staff prior to the start of all pile driving activity and when new
personnel join the work, to explain responsibilities, communication
procedures, marine mammal monitoring protocol, and operational
procedures;
<bullet> If a marine mammal comes within 10 meters of construction
activities, including in-water heavy machinery work not being analyzed
in this proposed rule, operations shall cease and vessels shall reduce
speed to the minimum level required to maintain steerage and safe
working conditions;
<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 is within the
harassment zone.
The following mitigation measures apply to the Navy's in-water
construction activities.
Establishment of Shutdown Zones--The Navy will establish shutdown
zones for all pile driving and removal 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 13).
Protected Species Observers (PSOs)--The placement of PSOs during
all pile driving and removal and drilling activities (described in the
Proposed Monitoring and Reporting section) 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 and removal and drilling must be delayed
until the PSO is confident marine mammals within the shutdown zone
could be detected.
Monitoring for Level A and B Harassment--The Navy will monitor the
Level B harassment zones (areas where SPLs are equal to or exceed the
160 dB rms threshold for impact pile driving, and the 120 dB rms
threshold during drilling and vibratory pile driving and removal) and
Level A harassment zones to the extent practicable, and all of the
shutdown zones, during 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.
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 observed
within the shutdown zones listed in Table 13, pile driving and drilling
activity must be delayed or halted. If pile driving 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 B harassment take is authorized is present in
the Level B harassment zone, activities may begin. 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

[[Page 14581]]

good visibility (i.e., the entire shutdown zone and surrounding waters
must be visible to the naked eye).
Soft Start--Soft-start procedures are used to provide additional
protection to marine mammals by providing warning 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.

Table 13--Proposed Shutdown Zones \1\
----------------------------------------------------------------------------------------------------------------
Level B
Shutdown Shutdown Shutdown (behavioral)
Pile type, size, and distance (m) distance (m) distance (m) harassment
LOA year driving method for humpback for harbor for all other distance (m)
whales porpoise species all marine
mammals
----------------------------------------------------------------------------------------------------------------
Year 2............... Impact Install 42-inch 1,490 500 200 1,000
steel pipe piles.
Vibratory Install 42-inch 140 200 70 2,500
steel pipe piles.
Impact Install 28-inch 1,790 500 200 2,500
steel sheet piles.
Vibratory Install 28-inch 110 150 80 2,500
steel sheet piles.
Impact Install 13-inch 20 30 30 30
polymeric piles.
Vibratory Install 13-inch 20 30 30 2,500
polymeric piles.
Impact Install 24-inch 260 500 200 117
precast concrete bearing
piles.
Impact Install 18-inch 10 10 10 30
precast concrete fender
piles.
Pre-drilling............. 10 10 10 2,500
Year 3............... Impact Install 24-inch 40 50 30 120
precast concrete fender
piles.
Impact Install 18-inch 700 500 200 30
steel piles.
Impact Install 42-inch 1,010 500 200 1,000
steel pipe piles.
Vibratory Install 42-inch 90 120 50 2,500
steel pipe piles.
Impact Install 28-inch 1,790 500 200 2,500
steel sheet piles.
Vibratory Install 28-inch 110 150 70 2,500
steel sheet piles.
Vibratory Extract 18-inch 40 60 30 2,500
precast concrete fender
piles.
Pre-drilling............. 10 10 10 2,500
Year 4............... Impact Install 24-inch 120 150 70 120
precast concrete bearing
piles.
Vibratory Extract 14-inch 70 110 50 2,500
timber piles.
Impact Install 18-inch 10 10 10 30
precast concrete fender
piles.
Impact Install 42-inch 1,010 500 200 1,000
steel pipe piles.
Vibratory Install 42-inch 90 120 50 2,500
steel pipe piles.
Vibratory Extract 24-inch 50 70 30 2,500
concrete fender piles.
Impact Install 28-inch 1,790 500 200 2,500
steel sheet piles.
Vibratory Install 28-inch 120 150 70 2,500
steel sheet piles.
Vibratory Extract 18-inch 40 60 30 2,500
precast concrete fender
piles.
Vibratory Extract 16- to 40 60 30 2,500
18-inch precast concrete
bearing piles.
Pre-drilling............. 10 10 10 2,500
Year 5............... Vibratory Extract 16- to 40 60 30 2,500
18-inch precast concrete
bearing piles.
Impact Install 24-inch 120 150 70 120
precast concrete bearing
piles.
Impact Install 18-inch 10 10 10 30
precast concrete fender
piles.
Pre-drilling............. 10 10 10 2,500
----------------------------------------------------------------------------------------------------------------
\1\ Calculated Level A harassment isopleths for concurrent pile driving were smaller than those calculated for
individual impact pile driving, vibratory pile driving and removal, and drilling. Therefore, proposed shutdown
zones conservatively reflect individual activity.

Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has preliminarily
determined that the proposed mitigation measures provide the means of
effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral

[[Page 14582]]

context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and,
<bullet> Mitigation and monitoring effectiveness.
The Navy will submit a Marine Mammal Monitoring Plan to NMFS for
approval in advance of the start of construction.

Visual Monitoring

<bullet> Marine mammal monitoring during pile driving and removal
must be conducted by qualified, NMFS approved PSOs, in accordance with
the following: PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods;
<bullet> At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
<bullet> Other PSOs may substitute other relevant experience,
education (degree in biological science or related field), or training
for prior experience performing the duties of a PSO during construction
activity pursuant to a NMFS-issued incidental take authorization;
<bullet> PSOs must be approved by NMFS prior to beginning any
activity subject to this proposed rulemaking; and
<bullet> Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator must be designated. The lead
observer must have prior experience performing the duties of a PSO
during construction activity pursuant to a NMFS-issued incidental take
authorization.
PSOs must have the following additional qualifications:
<bullet> Ability to conduct field observations and collect data
according to assigned protocols;
<bullet> Experience or training in the field identification of
marine mammals, including the identification of behaviors;
<bullet> Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
<bullet> Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when in-water construction
activities were conducted; dates, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
and marine mammal behavior; and
<bullet> Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
The Navy must establish the following monitoring locations and
visual monitoring of the entire shutdown zones must occur for all pile
driving and drilling activities. For all pile driving activities, a
minimum of one PSO must be assigned to the active pile driving or
drilling location to monitor the shutdown zones and as much of the
Level A and Level B harassment zones as possible. If the active project
location includes demolition activities, then the next adjacent pier
may be used as an appropriate monitoring location ensuring that the
aforementioned criteria is met. Monitoring must be conducted by a
minimum of three PSOs for any activity with an associated harassment
isopleth over 1000 m. All other activities would require a minimum of
two PSOs. For activities in Table 8, 9 and 10, with Level B harassment
zones larger than 3000 m, at least one PSO must be stationed on either
Pier 14 or the North Jetty to monitor the part of the zone exceeding
the edge of the Norfolk Naval Station (see Figure 3). The third PSO for
activities whose harassment isopleths exceed 1000 m would be located on
Pier 1. PSOs will be placed at the best vantage point(s) practicable to
monitor for marine mammals and implement shutdown/delay procedures (See
Figure 3 for representative monitoring locations). If changes are
necessary to ensure full coverage of the proposed shutdown zones, the
Navy shall contact NMFS to alter observer locations (e.g., vessel
blocking view from pier locations). Additionally, the shutdown/
monitoring zones may be modified with NMFS' approval following NMFS'
acceptance of an acoustic monitoring report.
Monitoring will be conducted 30 minutes before, during, and 30
minutes after all in water construction activities. In addition,
observers shall record all incidents of marine mammal occurrence,
regardless of distance from activity, and shall document any behavioral
reactions in concert with distance from drilling or piles being driven
or removed. Pile driving activities include the time to install or
remove a single pile or series of piles, as long as the time elapsed
between uses of the pile driving equipment is no more than 30 minutes.
BILLING CODE 3510-22-P

[[Page 14583]]

[GRAPHIC] [TIFF OMITTED] TP09MR23.012

Figure 3. Proposed Protected Species Observer Locations at Naval
Station Norfolk at Norfolk, Virginia

Acoustic Monitoring

The Navy plans to implement in situ acoustic monitoring efforts to
measure SPLs from in-water construction activities for pile types and
methods that have not been previously collected at NAVSTA Norfolk
(Table 14). The Navy will collect and evaluate acoustic sound recording
levels during pile driving activities. Hydrophones would be placed at
locations 33 ft from the noise source and, where the potential for
Level A (PTS onset) harassment exists, at a second representative
monitoring location that is a distance of 20 times the depth of water
at the pile location. For the pile driving events acoustically
measured, 100 percent of the data will be analyzed. Please see the
Navy's Marine Mammal Monitoring Plan and application for additional
detail.

Table 14--Hydroacoustic Monitoring Summary
[GRAPHIC] [TIFF OMITTED] TP09MR23.013

\1\ Data has previously been collected on the impact driving of
24-inch concrete piles and timber piles at NAVSTA Norfolk;
therefore, no additional data collection is proposed for these pile
types.
\2\ Some piles may be either vibratory or pile driving, or a
combination of both. Pre-drilling may not be utilized if site
conditions do not require it. The hydroacoustic report at the end of
construction will clarify which

[[Page 14584]]

installation method was utilized and monitored for each pile type.

BILLING CODE 3510-22-C
Environmental data shall be collected, including but not limited
to, the following: Wind speed and direction, air temperature, humidity,
surface water temperature, water depth, wave height, weather
conditions, other factors that could contribute to influencing
underwater sound levels (e.g., aircrafts, boats, etc.).

Reporting

The Navy is required to submit an annual report on all activities
and marine mammal monitoring results to NMFS within 90 days following
the end of each construction year. Additionally, a draft comprehensive
5-year summary report must be submitted to NMFS within 90 days of the
end of the project. The annual reports will include an overall
description of work completed, a narrative regarding marine mammal
sightings, and associated PSO data sheets. Specifically, the report
must include:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring
<bullet> Construction activities occurring during each daily
observation period, including: (a) how many and what type of piles were
driven or removed and the method (i.e., impact or vibratory); and (b)
the total duration of time for each pile (vibratory driving) or hole
(drilling) and number of strikes for each pile (impact driving);
<bullet> PSO locations during marine mammal monitoring; and
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance.
Upon observation of a marine mammal the following information must
be reported:
<bullet> Name of PSO who sighted the animal(s) and PSO location and
activity at the time of sighting;
<bullet> Time of sighting;
<bullet> Identification of the animal(s) (e.g., genus/species,
lowest possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
<bullet> Distance and location of each observed marine mammal
relative to the pile being driven or hole being drilled for each
sighting;
<bullet> Estimated number of animals (min/max/best estimate);
<bullet> Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, etc.);
<bullet> Description of any marine mammal behavioral observations
(e.g., no response or changes in behavioral state such as ceasing
feeding, changing direction, flushing, or breaching);
<bullet> Number of marine mammals detected within the harassment
zones, by species; and
<bullet> Detailed information about implementation of any
mitigation (e.g., shutdowns and delays), a description of specified
actions that ensured, and resulting changes in behavior of the
animal(s), if any.
The acoustic monitoring report must contain the informational
elements described in the Marine Mammal Monitoring Plan and, at
minimum, must include:
<bullet> Hydrophone equipment and methods: Recording device,
sampling rate, distance (m) from the pile where recordings were made;
depth of water and recording device(s);
<bullet> Type and size of pile being driven, substrate type, method
of driving during recordings (e.g., hammer model and energy), and total
pile driving duration;
<bullet> Whether a sound attenuation device is used and, if so, a
detailed description of the device used and the duration of its use per
pile;
<bullet> For impact pile driving and/or drilling (per pile): Number
of strikes and strike rate; depth of substrate to penetrate; pulse
duration and mean, median, and maximum sound levels (dB re: 1
[micro]Pa): Root mean square sound pressure level (SPL<INF>rms</INF>);
cumulative sound exposure level (SEL<INF>cum</INF>), peak sound
pressure level (SPL<INF>peak</INF>), and single-strike sound exposure
level (SEL<INF>s-s</INF>); and
<bullet> For vibratory driving/removal and/or drilling (per pile):
Duration of driving per pile; mean, median, and maximum sound levels
(dB re: 1 [micro]Pa): Root mean square sound pressure level
(SPL<INF>rms</INF>), cumulative sound exposure level
(SEL<INF>cum</INF>) (and timeframe over which the sound is averaged).
If no comments are received from NMFS within 30 days, the draft
reports will constitute the final reports. If comments are received, a
final report addressing NMFS' comments must be submitted within 30 days
after receipt of comments. All PSO datasheets and/or raw sighting data
must be submitted with the draft marine mammal report.

Reporting of Injured or Dead Marine Mammals

In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the Navy shall report the
incident to NMFS Office of Protected Resources (OPR)
(<a href="/cdn-cgi/l/email-protection#0555572b4c51552b486a6b6c716a776c6b625760756a777176456b6a64642b626a73"><span class="__cf_email__" data-cfemail="68383a46213c3846250706011c071a01060f3a0d18071a1c1b2806070909460f071e">[email&#160;protected]</span></a>), NMFS (301-427-8401) and to the
Greater Atlantic Region New England/Mid-Atlantic Stranding Coordinator
(866-755-6622) as soon as feasible. The report must include the
following information:
[ssquf] Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
[ssquf] Species identification (if known) or description of the
animal(s) involved;
[ssquf] Condition of the animal(s) (including carcass condition if
the animal is dead);
[ssquf] Observed behaviors of the animal(s), if alive;
[ssquf] If available, photographs or video footage of the
animal(s); and
[ssquf] General circumstances under which the animal was
discovered.
If the death or injury was clearly caused by the specified
activity, the Navy must immediately cease the specified activities
until NMFS OPR is able to review the circumstances of the incident and
determine what, if any, additional measures are appropriate to ensure
compliance with the terms of this proposed rule. The Navy shall not
resume their activities until notified by NMFS that they can continue.

Negligible Impact Analysis and Determination

NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing

[[Page 14585]]

regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the baseline (e.g., as reflected in the
regulatory status of the species, population size and growth rate where
known, ongoing sources of human-caused mortality, or ambient noise
levels).
To avoid repetition, this introductory discussion of our analysis
applies to all the species listed in Table 3, given that many of the
anticipated effects of this project on different marine mammal stocks
are expected to be relatively similar in nature. Where there are
meaningful differences between species or stocks, or groups of species,
in anticipated individual responses to activities, impact of expected
take on the population due to differences in population status, or
impacts on habitat, they are described independently in the analysis
below.
Construction activities associated with the project, as outlined
previously, have the potential to disturb or displace marine mammals.
Specifically, the specified activities may result in take, in the form
of Level A and Level B harassment from underwater sounds generated by
pile driving activities, pile removal, and drilling. Potential takes
could occur if marine mammals are present in zones ensonified above the
thresholds for Level A and Level B harassment, identified above, while
activities are underway.
The Level A harassment zones identified in Tables 6 and 7 are based
upon an animal exposed to pile driving or drilling multiple piles per
day. Considering the short duration to impact drive each pile and
breaks between pile installations (to reset equipment and move pile
into place), an animal would have to remain within the area estimated
to be ensonified above the Level A harassment threshold for multiple
hours. This is highly unlikely given marine mammal movement throughout
the area, especially for small, fast moving species such as small
cetaceans and pinnipeds. Additionally, no Level A harassment is
anticipated for humpback whales due to the required mitigation
measures, which we expect the Navy will be able to effectively
implement given the majority of the Level A harassment zones are small
(under 300 m except for a few activities where additional PSOs will be
utilized to cover the entirety of the Level A harassment zone), and
high visibility of humpback whales. If an animal was exposed to
sufficient accumulated sound energy to incur PTS, the resulting PTS
would likely be small (e.g., PTS onset) at lower frequencies where pile
driving energy is concentrated, and unlikely to result in impacts to
individual fitness, reproduction, or survival.
The nature of activities included in the Navy's pile driving
project precludes the likelihood of serious injury or mortality. For
all species and stocks, take will 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 authorized
is extremely small when compared to stock abundance for all species
aside from bottlenose dolphins, however take authorized for bottlenose
dolphins is still expected to be small relative to the stock abundance
as described in the Small Numbers section.
Effects on individuals that are taken by Level B harassment, on the
basis of reports in the literature as well as monitoring from other
similar activities, will likely be limited to reactions such as
increased swimming speeds, increased surfacing time, or decreased
foraging (if such activity were occurring) (e.g., Thorson and Reyff
2006). Individual animals, even if taken multiple times, will most
likely move away from the sound source and be temporarily displaced
from the areas of pile driving or drilling, although even this reaction
has been observed primarily only in association with impact pile
driving. The pile driving and drilling activities analyzed here are
similar to, or less impactful than, numerous other construction
activities conducted along both Atlantic and Pacific coasts, which have
taken place with no known long-term adverse consequences from
behavioral harassment. Furthermore, many projects similar to this one
are also believed to result in multiple takes of individual animals
without any documented long-term adverse effects. Level B harassment
will be minimized through use of mitigation measures described herein
and, if sound produced by project activities is sufficiently
disturbing, animals are likely to simply avoid the area while the
activity is occurring, particularly as the project is located on a busy
waterfront with high amounts of vessel traffic.
UMEs have been declared for Northeast pinnipeds (including harbor
seal and gray seal) and Atlantic humpback whale. However, we do not
expect authorized takes to exacerbate or compound upon these ongoing
UMEs. As noted previously, no injury, serious injury, or mortality is
expected or authorized, and Level B harassment takes of humpback whale,
harbor seal and gray seal will be reduced to the level of least
practicable adverse impact through the incorporation of the mitigation
measures. For the WNA stock of gray seal, the estimated stock abundance
is 27,300 (424,300 including estimates in Canadian waters). Given that
only 1-2 takes by Level B harassment are authorized for this stock
annually, we do not expect this authorization to exacerbate or compound
upon the ongoing UME.
For the WNA stock of harbor seals, the estimated abundance is
61,336 individuals. The estimated M/SI (339) is well below the PBR
(1,729). As such, the Level B harassment takes of harbor seal are not
expected to exacerbate or compound upon the ongoing UMEs.
With regard to humpback whales, the UME does not yet provide cause
for concern regarding population-level impacts. Despite the UME, the
relevant population of humpback whales (the West Indies breeding
population, or distinct population segment (DPS)) remains healthy.
Prior to 2016, humpback whales were listed under the ESA as an
endangered species worldwide. Following a 2015 global status review
(Bettridge et al., 2015), NMFS established 14 DPSs with different
listing statuses (81 FR 62259; September 8, 2016) pursuant to the ESA.
The West Indies DPS, which consists of the whales whose breeding range
includes the Atlantic margin of the Antilles from Cuba to northern
Venezuela, and whose feeding range primarily includes the Gulf of
Maine, eastern Canada, and western Greenland, was delisted. The status
review identified harmful algal blooms, vessel collisions, and fishing
gear entanglements as relevant threats for this DPS, but noted that all
other threats are considered likely to have no or minor impact on
population size or the growth rate of this DPS (Bettridge et al.,
2015). As described in Bettridge et al. (2015), the West Indies DPS has
a substantial population size (i.e., 12,312 (95 percent CI 8,688-
15,954) whales in 2004-2005 (Bettridge et al., 2003)), and appears to
be experiencing consistent growth. NMFS is proposing to authorize no
more than eight takes by Level B harassment annually of humpback whale.
The project is also not expected to have significant adverse
effects on affected marine mammals' habitats. The project activities
will not modify existing marine mammal habitat for a significant amount
of time. The

[[Page 14586]]

activities may cause some fish to leave the area of disturbance, thus
temporarily impacting marine mammals' foraging opportunities in a
limited portion of the foraging range; but, because of the short
duration of the activities and the relatively small area of the habitat
that may be affected (with no known particular importance to marine
mammals), the impacts to marine mammal habitat are not expected to
cause significant or long-term negative consequences.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect any of the species
or stocks through effects on annual rates of recruitment or survival:
<bullet> No mortality is anticipated or authorized;
<bullet> Authorized Level A harassment would be very small amounts
and of low degree;
<bullet> The intensity of anticipated takes by Level B harassment
is relatively low for all stocks;
<bullet> The number of anticipated takes is very low for humpback
whale, harbor porpoise, and gray seal;
<bullet> The specified activity and associated ensonified areas are
very small relative to the overall habitat ranges of all species and do
not include habitat areas of special significance;
<bullet> The lack of anticipated significant or long-term negative
effects to marine habitat;
<bullet> The presumed efficacy of the mitigation measures in
reducing the effects of the specified activity;
<bullet> Monitoring reports from similar work in the Chesapeake Bay
have documented little to no effect on individuals of the same species
impacted by similar activities.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.

Small Numbers

As noted previously, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
The maximum annual take of take NMFS proposes to authorize for the
five marine mammal stocks is below one-third of the estimated stock
abundance for all species except for the WNA southern coastal migratory
stock and the WNA northern coastal migratory stock of bottlenose
dolphins (see Table 12).
There are three bottlenose dolphin stocks that could occur in the
project area. Therefore, largest estimated annual take by Level B
harassment of 13,190 bottlenose dolphin would likely be split among the
western WNA northern coastal migratory stock, the WNA southern coastal
migratory stock, and the northern North Carolina Estuarine stock
(NNCES). 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 coastal migratory
stocks. Based on the consideration of various factors as described
below, we have preliminarily determined that the number of individuals
taken will comprise of less than one-third of the best available
population abundance estimate of either coastal migratory stock.
Detailed descriptions of the stocks' ranges have been provided in the
Description of Marine Mammals in the Area of Specified Activities
section.
Both the northern migratory coastal and southern migratory coastal
stocks have expensive 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 the northern 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

[[Page 14587]]

population in the Bay would increase the percentage of dolphin takes
that are actually re-sightings of the same individuals.
In summary and as described above, the following factors primarily
support our determination regarding the incidental take of small
numbers of the affected stocks of a species or stock:
<bullet> The take of marine mammal stocks proposed for
authorization comprises less than 3 percent of any stock abundance
(with the exception of the three bottlenose dolphin stocks);
<bullet> Potential bottlenose dolphin takes in the project area are
likely to be allocated among three distinct stocks;
<bullet> Bottlenose dolphin stocks in the project area have
extensive ranges and it would be unlikely to find a high percentage of
the individuals of any one stock concentrated in a relatively small
area such as the project area or the Chesapeake Bay;
<bullet> The Chesapeake Bay represents the migratory boundary for
each of the specified dolphin stocks and it would be unlikely to find a
high percentage of any stock concentrated at such boundaries; and
<bullet> Many of the takes would likely be repeats of the same
animals and likely from a resident population of the Chesapeake Bay.
Based on the analysis contained herein of the activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS preliminarily finds that small numbers of marine
mammals will be taken relative to the population size of the affected
species or stock.

Unmitigable Adverse Impact Analysis and Determination

There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.

Adaptive Management

The regulations governing the take of marine mammals incidental to
Navy construction activities would contain an adaptive management
component. The reporting requirements associated with this proposed
rule are designed to provide NMFS with monitoring data from completed
projects to allow consideration of whether any changes are appropriate.
The use of adaptive management allows NMFS to consider new information
from different sources to determine (with input from the Navy regarding
practicability) on an annual or biennial basis if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or
subsequent LOAs.

Endangered Species Act

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.

Request for Information

NMFS requests that interested persons submit comments, information,
and suggestions concerning the Navy's request and the proposed
regulations (see ADDRESSES). All comments will be reviewed and
evaluated as we prepare a final rule and make final determinations on
whether to issue the requested authorization. This proposed rule and
supporting documents provide all environmental information relating to
our proposed action for public review.

Classification

Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
proposed rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have
significant economic impact on a substantial number of small entities.
The U.S. Navy is the sole entity that would be subject to the
requirements in these proposed regulations, and the Navy is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. Because of this certification, a regulatory
flexibility analysis in not required and none has been prepared.
This proposed rule does not contain a collection-of-information
requirement subject to the provisions of the Paperwork Reduction Act
(PRA) because the applicant is a Federal agency.

List of Subjects in 50 CFR Part 217

Acoustics, Administrative practice and procedure, Construction,
Endangered and threatened species, Marine mammals, Mitigation and
Monitoring requirements, Reporting requirements, Wildlife.

Dated: March 2, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

For reasons set forth in the preamble, NOAA proposes to amend 50
CFR part 217 as follows:

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS

0
1. The authority citation for part 217 continues to read as follows:

Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

0
2. Revise subpart L to read as follows:

Subpart L--Taking and Importing Marine Mammals Incidental to Navy
Construction of the Pier 3 Replacement Project at Naval Station
Norfolk at Norfolk, Virginia

Sec.
217.110 Specified activity and geographical region.
217.111 Effective dates.
217.112 Permissible methods of taking.
217.113 Prohibitions.
217.114 Mitigation requirements.
217.115 Requirements for monitoring and reporting.
217.116 Letters of Authorization.
217.117 Renewals and modifications of Letters of Authorization.
217.118 [Reserved]
217.119 [Reserved]

[[Page 14588]]

Sec. 217.110 Specified activity and geographical region.

(a) Regulations in this subpart apply only to the U.S. Navy (Navy)
and those persons it authorizes or funds to conduct activities on its
behalf for the taking of marine mammals that occurs in the areas
outlined in paragraph (b) of this section and that occurs incidental to
construction activities related to the replacement of Pier 3 at Naval
Station Norfolk at Norfolk, Virginia.
(b) The taking of marine mammals by the Navy may be authorized in a
Letter of Authorization (LOA) only if it occurs at Naval Station
Norfolk, Norfolk, Virginia.

Sec. 217.111 Effective dates.

Regulations in this subpart are effective for a period of five
years from the date of issuance.

Sec. 217.112 Permissible methods of taking.

Under an LOA issued pursuant to Sec. Sec. 216.106 of this chapter
and 217.116, the Holder of the LOA (hereinafter ``Navy'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.110(b) by harassment associated with
construction activities related to replacement of Pier 3, provided the
activity is in compliance with all terms, conditions, and requirements
of the regulations in this subpart and the applicable LOA.

Sec. 217.113 Prohibitions.

(a) Except for the takings contemplated in Sec. 217.112 and
authorized by a LOA issued under Sec. Sec. 216.106 of this chapter and
217.116, it is unlawful for any person to do any of the following in
connection with the activities described in Sec. 217.110:
(1) Violate, or f

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.