Rule2023-10168
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
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 18, 2023
Effective
May 18, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS, upon request from the U.S. Navy (Navy), hereby issues regulations to govern the unintentional taking of marine mammals incidental to construction activities associated with the replacement of Pier 3 at Naval Station (NAVSTA) Norfolk in Norfolk, Virginia over the course of 5 years (2023-2028). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
Full Text
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<title>Federal Register, Volume 88 Issue 96 (Thursday, May 18, 2023)</title>
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[Federal Register Volume 88, Number 96 (Thursday, May 18, 2023)]
[Rules and Regulations]
[Pages 31633-31657]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10168]
[[Page 31633]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 230508-0126]
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: Final rule; notification of issuance of Letter of
Authorization.
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SUMMARY: NMFS, upon request from the U.S. Navy (Navy), hereby issues
regulations to govern the unintentional taking of marine mammals
incidental to construction activities associated with the replacement
of Pier 3 at Naval Station (NAVSTA) Norfolk in Norfolk, Virginia over
the course of 5 years (2023-2028). These regulations, which allow for
the issuance of a Letter of Authorization (LOA) for the incidental take
of marine mammals during the described activities and specified
timeframes, prescribe the permissible methods of taking and other means
of effecting the least practicable adverse impact on marine mammal
species or stocks and their habitat, as well as requirements pertaining
to the monitoring and reporting of such taking.
DATES: This rule is effective from May 18, 2023, through May 18, 2028.
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.
FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected
Resources, NMFS, <a href="/cdn-cgi/l/email-protection#5d14090d733e322f3e322f3c331d33323c3c733a322b"><span class="__cf_email__" data-cfemail="feb7aaaed09d918c9d918c9f90be90919f9fd0999188">[email protected]</span></a>, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory Action
We received an application from the Navy requesting 5-year
regulations and authorization to take multiple species of marine
mammals. This rule establishes a framework under the authority of the
Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) to allow
for the authorization of take by Level A and Level B harassment of
marine mammals incidental to the Navy's construction activities related
to the replacement of Pier 3 at Naval Station Norfolk in Norfolk,
Virginia. Please see Background below for definitions of harassment.
Legal Authority for the 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 5 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 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 rule containing 5-year
regulations, and for any subsequent LOAs. As directed by this legal
authority, this rule contains mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within the Rule
Following is a summary of the major provisions of this 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; and
<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 practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth. The definitions
of all applicable MMPA statutory terms cited above are included in the
relevant sections below.
Summary of Request
On 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 in the Federal Register for public
review and comment on October 7, 2022 (87 FR 60998). We did not receive
substantive comments on the notice of receipt (NOR).
On March 9, 2023, NMFS published a notice of proposed rulemaking in
the Federal Register (88 FR 14560). The regulations are valid for 5
years (2023-2028) from the date of issuance, and authorize the Navy to
take five species of marine mammals by Level B harassment and, for a
subset of these species, Level A harassment incidental to construction
activities related to the replacement of Pier 3 at Naval Station
Norfolk, Norfolk, Virginia. Neither the Navy nor NMFS expect serious
injury or mortality to marine mammals to result from this activity, and
none has been authorized.
[[Page 31634]]
NMFS previously issued an Incidental Harassment Authorization (IHA)
(87 FR 15945, March 21, 2022) to the Navy for authorization to take
marine mammals during the first year of the construction project
described in this rule. Upon request from the Navy, NMFS modified the
2022 IHA (88 FR 2880, January 18, 2023) to include concurrent pile
driving and drilling activities due to a change in the contractor's
construction plan that was not initially analyzed in the initial
activity. This rule could not be completed prior to expiration of the
Navy's modified 2022 IHA and, therefore, the Navy requested issuance of
a renewal IHA associated with continued work towards completion of year
1 of the construction project. The requested renewal IHA was issued on
March 30, 2023 (88 FR 20133, April 5, 2023). As required, the Navy
provided monitoring reports (available at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-replacement-pier-3-naval-station-norfolk-norfolk-virginia">https://www.fisheries.noaa.gov/action/incidental-take-authorization-replacement-pier-3-naval-station-norfolk-norfolk-virginia</a>) that confirm
that it has implemented the required mitigation and monitoring, and
also show that no impacts of a scale or nature not previously analyzed
or authorized have occurred as a result of the activities conducted. No
changes were made from the proposed to the final rule.
Description of the Activity
Overview
The Navy is currently conducting, and will continue, the
replacement of Pier 3 at NAVSTA Norfolk, in Norfolk, VA. The
aforementioned 2022 IHA (as modified) and subsequent renewal covered
the first year of project activities, and this rule 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). Activities under the rule
include 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 regulations are valid for a period of 5 years (2023-2028). The
specified activities may occur at any time during the 5-year period of
validity of the regulations. The Navy expects pile driving and drilling
for the entire project to occur on approximately 513 non-consecutive
days over a 4-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 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).
[[Page 31635]]
[GRAPHIC] [TIFF OMITTED] TR18MY23.007
[[Page 31636]]
[GRAPHIC] [TIFF OMITTED] TR18MY23.008
Detailed Description of Specific Activity
The project involves the replacement of Pier 3 at NAVSTA
waterfront. The existing Pier 3 will be completely demolished and a new
Pier 3 will be constructed immediately north of the existing location
(Figure 2). The project scope for the replacement of Pier 3 under this
rule will 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 six 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 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:
<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 (4.5 to 14.5 metric
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
[[Page 31637]]
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 construction activities considered for this rulemaking
beginning with Year 2. As indicated above, Year 1 of the Pier 3
replacement project was authorized under the 2022 IHA and subsequent
renewal. Therefore, Year 2 of the project aligns with year 1 of the
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.
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Total Piles Installed.... 1,726 ................ ............... .......... 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.
[[Page 31638]]
** Denotes piles removed.
*** Year 2 refers to the second year of the Pier 3 replacement project, however it is considered as Year 1 under
this 2023 rule.
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 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),
2 Rotary Drill (1)
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 CEP- Extraction of 14-inch 4 Vibratory Hammer (3),
102. timber piles from 4 Rotary Drill (1).
Pier 3 and Driving of Vibratory Hammer (2),
42-inch steel pipe, Impact Hammer (2),
sheet piles, and Rotary Drill (1).
precast concrete
piles.
4 Vibratory (1), Impact
Hammer (3).
Year 4-Year 5............ Existing Pier 3 and CEP- Extraction of 16- to 2 Vibratory Hammer (1),
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.
----------------------------------------------------------------------------------------------------------------
Mitigation, monitoring, and reporting measures are described in
detail later in this document (please see Mitigation and Monitoring and
Reporting).
Comments and Responses
NMFS' notice of proposed rulemaking was published in the Federal
Register on March 9, 2023 (88 FR 14560). That proposed rule described,
in detail, the Navy's activities, the marine mammal species that may be
affected by the activities, and the anticipated effects on marine
mammals. In that proposed rule, we requested public input on the
request for authorization described therein, our analyses, the proposed
authorization, and any other aspect of the notice of proposed
rulemaking, and requested that interested persons submit relevant
information, suggestions, and comments. The proposed rule was available
for a 30-day public comment period.
During the 30-day public comment period, NMFS received one
substantive comment submission, from a member of the public. NMFS'
responses to the comments in the submission are provided below, and all
comments are available online at: <a href="https://www.regulations.gov/document/NOAA-NMFS-2022-0110-0001/comment">https://www.regulations.gov/document/NOAA-NMFS-2022-0110-0001/comment</a>.
Comment 1: A member of the public noted that the Navy's
construction work has the potential to cause sediment runoff into the
marine environment, which can smother marine plants and reduce light
availability for primary productivity. The individual indicated
agreement with the mitigation measures as outlined in the notice of
proposed rulemaking and recommends that extra vegetation be planted and
heavy monitoring of substrates occur throughout the project. The
individual also noted concerns with the impact of underwater noise on
the life history of marine fish species as well as sea turtles.
Response: NMFS appreciates the commenter's engagement in the
rulemaking process, but notes that concerns regarding sediment runoff
are outside NMFS' purview under the MMPA, except inasmuch as such
impacts may affect marine mammal habitat (including prey). Similarly,
concerns related to species other than marine mammals (and marine
mammal habitat), such as sea turtles, are outside NMFS' purview under
the MMPA. As required under the MMPA, NMFS assessed the impacts of the
Navy's construction project on marine mammals and their habitat and
made the necessary findings in support of issuance of this rule and
subsequent LOA. NMFS notes that mitigation and monitoring prescribed
will affect the least practicable adverse impact on marine mammals and
their habitat.
As described in the proposed rule (88 FR 14560, March 9, 2023),
NMFS finds that the most likely impact to fish (i.e., potential prey)
from pile driving activities at the project areas would be temporary
behavioral avoidance of the area. The duration of fish avoidance of
this area after pile driving stops is unknown, but a rapid return to
normal recruitment, distribution and behavior is anticipated. 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.
Construction activities, in the form of increased turbidity, have
the potential to adversely affect forage fish in the project area.
Forage fish form a significant prey base for many marine mammal species
that occur in the project area. Increased turbidity is expected to
occur in the immediate vicinity of construction activities. However,
suspended sediments and particulates are expected to dissipate quickly
within a single tidal cycle. Given the limited area affected, any
effects on forage fish are expected to be minor or negligible.
Comment 2: The commenter indicated concern regarding the length of
time for which the rule is valid, noting five years is a significant
amount of time and believes the regulations should be valid for a
shorter period of time so NMFS is able to reevaluate the success of the
mitigation and monitoring plan.
Response: MMPA section 101(a)(5)(A) allows the authorization of
incidental taking of marine mammals by U.S. citizens incidental to
specified activities for up to 5 consecutive years, as requested by the
Navy in this case. Therefore, NMFS has determined that 5 years is an
appropriate length of time for effectiveness of the rule. Additionally,
the regulations governing the take of marine mammals incidental to Navy
construction activities contains an adaptive management component.
[[Page 31639]]
Please see the Adaptive Management section for more detail.
Comment 3: The individual recommends that trained professionals
report on any harm to marine life, the use of visual and acoustic
monitoring techniques, and measures to limit noise pollution in the
marine environment.
Response: NMFS concurs with the recommendation to use trained
professional protected species observers (PSOs), which were included in
the proposed rule as well as this final rule. These PSOs will provide
adequate visual monitoring to ensure the Navy complies with the
requirements outlined in their issued LOA. The Navy will also collect
acoustic data for specified piles as outlined in their Marine Mammal
Monitoring Plan. Additionally, the Navy will submit a visual and
acoustic monitoring report to NMFS annually, well as a comprehensive
report at the conclusion of the five years. Please see the Mitigation
and Monitoring and Reporting sections of this final rule for additional
details.
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
is 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. Atlantic and Gulf of Mexico SARs. All values
presented in Table 2 are the most recent available at the time of
publication, including from the draft 2022 SARs, 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>.
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, 1729 339
2018).
Gray seal \4\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,300 (0.22, 22,785, 1458 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.
[[Page 31640]]
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 area for this project and
take is not expected to occur. Therefore, they are not discussed
further beyond the explanation provided in the Federal Register
proposed rule (88 FR 14560, March 9, 2023).
A detailed description of the species likely to be affected by the
Navy's project, including brief introductions to the species and
relevant stocks as well as available information regarding population
trends and threats, and information regarding local occurrence, were
provided in the Federal Register proposed rule (88 FR 14560, March 9,
2023). Since that time, we are not aware of any changes in the status
of these species and stocks; therefore, detailed descriptions are not
provided here. Please refer to that Federal Register proposed rule for
these descriptions. Please also refer to the NMFS website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized species accounts.
Unusual Mortality Events
An unusual mortality event (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. As of April 2023, six
humpback whales have been found stranded in Virginia. 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>.
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]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions 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
The effects of underwater noise from the Navy's construction
activities have the potential to result in Level A and Level B
harassment of marine mammals in the vicinity of the project area. The
notice of the proposed rulemaking (88 FR 14560, March 9, 2023) included
a discussion of the effects of anthropogenic noise on marine mammals
and the potential effects of underwater noise from the Navy's
construction activities on marine mammals and their habitat. That
information and analysis is referenced in this final rule and is not
repeated here; please refer to the notice of
[[Page 31641]]
proposed rulemaking (88 FR 14560; March 9, 2023).
Estimated Take
This section provides an estimate of the number of incidental takes
that may be authorized under this rule, 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 will 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
shutdown zones encompass the entirely of the auditory injury zones for
all activities (see Mitigation section). The 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 is authorized for this activity. Below we describe how
the 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 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 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 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.
[[Page 31642]]
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
a reference value of 1[mu]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 (121.9-cm) 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, California, by Dazey et al.
(2012) appear to provide the best available proxy source levels for
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.
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 (2018) 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
[[Page 31643]]
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............... 1482 53 1766 793 1,000
28-inch Steel Sheets............. 1783 63 2123 954 2512
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............... 1002 36 1193 536 1000
28-inch Steel Sheet.............. 1783 63 2123 954 2512
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............... 1002 36 1193 536 1000
28-inch Steel Sheet.............. 1783 63 2123 954 2512
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).
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) \1\ 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.
[[Page 31644]]
4....... Existing Pier 3 Extraction of 14- 981 87 1450 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 (71-cm)
steel sheets at CEP-176 and CEP-102 (1,783 m for humpback whale; 63 m
for bottlenose dolphin; 2,123 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 Whale
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 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 (two individuals) every
60 days of pile driving. Therefore, given the number of project days
expected in each year (Table 1), NMFS has authorized a total of 19
takes by Level B harassment of humpback whale over the 5-year
authorization, with no more than 7 takes by Level B harassment in a
given year.
The largest Level A harassment zone for low-frequency cetaceans
extends approximately 1,783 m from the source during impact pile
driving of the 28-inch steel sheet piles (Table 8). The Navy will 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 did not 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 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 dolphins
per square kilometer (/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 authorized 28,480 \1\ takes by
Level B harassment of bottlenose dolphin across all 5 years, with no
more than 13,190 takes in a given year.
---------------------------------------------------------------------------
\1\ Note: This total number of takes by Level B harassment
authorized 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
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 will be 185 days, Year 3 will be 92 days, Year 4 will be 204 days,
and Year 5 will 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
[[Page 31645]]
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 will shut down at 500 m for harbor porpoises during the
aforementioned activity, in addition to shorter distances where
appropriate for other activities as noted in Table 13 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 authorized 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 Navy at the Chesapeake Bay
Bridge Tunnel 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
requested and NMFS authorizeda 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 U.S.
population of gray seals 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 6-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 authorized (Table 11).
Therefore, the Navy requested and NMFS authorized five takes by Level B
harassment. Given the low likelihood of encountering gray seals during
the project and low number of days in which Level A harassment
isopleths may exceed shutdown zones, no take by Level A harassment is
authorized.
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 Migratory. 0 2,691 0 5,609
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 Migratory. 0 3,061 0 1,440
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 Migratory. 0 13,190 0 3,023
BND--Southern Migratory
BND--NC Estuarine
Harbor porpoise......... 2 5 0 1
Harbor seal............. 0 1,809 26 232
Gray seal............... 0 2 0 0
5 Humpback whale.......... 0 2 0 3
BND--Northern Migratory. 0 383 0 6,620
BND--Southern Migratory
BND--NC Estuarine
[[Page 31646]]
Harbor porpoise ........................ 0 1 0 3
Harbor seal............. 0 435 0 1,115
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 authorized is italicized and used to determine percent of
stock.
Table 12--Authorized Takes by Level A and Level B Harassment by Species and Stock in Comparison to Stock
Abundance
----------------------------------------------------------------------------------------------------------------
Take
Year Species Abundance -------------------------------- Total Percent of
Level A Level B stock
----------------------------------------------------------------------------------------------------------------
2 Humpback whale 1,396 0 6 6 0.43
\a\.
BND--Northern 6,639 0 5,609 2,705 40.74
Migratory \b\
\c\.
BND--Southern 3,751 .............. .............. 2,705 72.10
Migratory \b\
\c\.
BND--NC 823 .............. .............. 200 24.30
Estuarine \b\
\c\.
Harbor porpoise. 95,543 2 4 6 0.01
Harbor seal..... 61,336 57 949 1,006 1.64
Gray seal....... 27,300 0 1 1 0.00
3 Humpback whale 1,396 0 3 3 0.21
\a\.
BND--Northern 6,639 0 3,061 1,431 21.55
Migratory \b\
\c\.
BND--Southern 3,751 .............. .............. 1,431 38.15
Migratory \b\
\c\.
BND--NC 823 .............. .............. 200 24.30
Estuarine \b\
\c\.
Harbor porpoise. 95,543 0 3 3 0.00
Harbor seal..... 61,336 7 537 544 0.89
Gray seal....... 27,300 0 1 1 0.00
4 Humpback whale 1,396 0 7 7 0.50
\a\.
BND--Northern 6,639 0 13,190 6,495 97.83
Migratory \b\
\c\.
BND--Southern 3,751 .............. .............. 6,495 173.15
Migratory \b\
\c\.
BND--NC 823 .............. .............. 200 24.30
Estuarine \b\
\c\.
Harbor porpoise. 95,543 2 5 7 0.01
Harbor seal..... 61,336 26 1,783 1,809 2.95
Gray seal....... 27,300 0 2 2 0.01
5 Humpback whale 1,396 0 3 3 0.21
\a\.
BND--Northern 6,639 0 6,620 3,210 48.35
Migratory \b\
\c\.
BND--Southern 3,751 .............. .............. 3,210 85.58
Migratory \b\
\c\.
BND--NC 823 .............. .............. 200 24.30
Estuarine \b\
\c\.
Harbor porpoise. 95,543 0 3 3 0.00
Harbor seal..... 61,336 0 1,115 1,115 1.82
Gray seal....... 27,300 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 will 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.
Mitigation
In order to issue an LOA under section 101(a)(5)(A) 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,
[[Page 31647]]
(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 m of construction
activities, including in-water heavy machinery work not being analyzed
in this 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 will 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
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 PSOs 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 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--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
[[Page 31648]]
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, shutdown zones
conservatively reflect individual activity.
Based on our evaluation of the applicant's measures, as well as
other measures considered by NMFS, NMFS has determined that the
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.
Monitoring and Reporting
In order to issue an LOA for an activity, section 101(a)(5)(A) 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 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 rulemaking; and
<bullet> Where a team of three or more PSOs is required, a lead PSO
or monitoring coordinator must be designated. The lead PSO 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
[[Page 31649]]
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 1,000 m. All other activities will require a minimum of
two PSOs. For activities in Tables 8, 9, and 10, with Level B
harassment zones larger than 3,000 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
1,000 m will 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 shutdown zones, the Navy shall contact NMFS to alter PSO
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, PSOs
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.
[GRAPHIC] [TIFF OMITTED] TR18MY23.009
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 will 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.
[[Page 31650]]
[GRAPHIC] [TIFF OMITTED] TR18MY23.010
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, and 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,
[[Page 31651]]
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 [mu]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#2171730f6875710f6c4e4f48554e53484f467344514e535552614f4e40400f464e57"><span class="__cf_email__" data-cfemail="f4a4a6dabda0a4dab99b9a9d809b869d9a93a691849b868087b49a9b9595da939b82">[email 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:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
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 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 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
[[Page 31652]]
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 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 has authorized no more than 8
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 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 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 is of 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; and
<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 monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
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 authorized 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
[[Page 31653]]
split evenly between the northern and southern coastal migratory
stocks. Based on the consideration of various factors as described
below, we have 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 of the proposed rule.
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 and 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 km from the initial sighting location.
Multiple sightings of the same individual would considerably reduce the
number of individual animals that are taken by harassment. Furthermore,
the existence of a resident dolphin population in the bay would
increase the percentage of dolphin takes that are actually re-sightings
of the same individuals.
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 authorized 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 will 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 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 will 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 will contain an adaptive management
component. The reporting requirements associated with this 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.
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 promulgation of
regulations and subsequent issuance of incidental take authorization)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no
[[Page 31654]]
anticipated serious injury or mortality) of the Companion Manual for
NOAA 216-6A, which do not individually or cumulatively have the
potential for significant impacts on the quality of the human
environment and for which we have not identified any extraordinary
circumstances that would preclude this categorical exclusion.
Accordingly, NMFS has determined that the action qualifies to be
categorically excluded from further review under NEPA.
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 ensure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of LOAs,
NMFS consults internally whenever we propose to authorize take for
endangered or threatened species.
No incidental take of ESA-listed species is authorized 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.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
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 rule, if adopted, would not have significant
economic impact on a substantial number of small entities. The Navy is
the sole entity that would be subject to the requirements in these
regulations, and the Navy is not a small governmental jurisdiction,
small organization, or small business, as defined by the RFA.
Therefore, a regulatory flexibility analysis is not required and none
has been prepared.
This rule does not contain a collection-of-information requirement
subject to the provisions of the Paperwork Reduction Act because the
applicant is a Federal agency.
Waiver of Delay in Effective Date
The Assistant Administrator for Fisheries has determined that there
is good cause under the Administrative Procedure Act (5 U.S.C.
553(d)(3)) to waive the 30-day delay in the effective date of the
measures contained in the final rule. The Navy is the only entity
subject to these regulations, and it has informed NMFS that it requests
that this final rule take effect as soon as possible. Any further delay
in promulgating the final rule could result in a delay to the project
schedule that would extend the completion of the project and cause
further risks to the Virginia Class submarines schedule. In addition,
in-water work at Pier 3 and associated fender systems are critical to
timely completion of the overall project. Delaying the completion of
ongoing work will have increased risk on other mission critical work,
as some of the construction components cannot begin until others are
started or in some cases completed. Moreover, the contractor is onsite
and currently working under the existing IHA renewal (88 FR 20133,
April 5, 2023). However, this renewal does not include all piles the
Navy plans to install or remove within the first year of the rule in
order to stay on schedule. Therefore, the Navy is ready to operate
under the LOA immediately. For these reasons, the Assistant
Administrator finds good cause to waive the 30-day delay in the
effective date. In addition, the rule allows authorization of
incidental take of marine mammals that would otherwise be prohibited
under the statute. Therefore, the rule will relieve restrictions under
the MMPA, which provides a separate basis under the Administrative
Procedure Act (5 U.S.C. 553(d)(1)) to waive the 30-day delay in
effective date.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: May 9, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, NMFS amends 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]
Subpart L--Taking and Importing Marine Mammals Incidental to U.S.
Navy Construction of the Pier 3 Replacement Project at Naval
Station Norfolk at Norfolk, Virginia
Sec. 217.110 Specified activity and geographical region.
(a) Regulations under 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 under this subpart are effective from May 18, 2023,
through May 18, 2028.
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 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 under 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:
[[Page 31655]]
(1) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. Sec. 216.106
of this chapter and 217.116;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner
other than as specified;
(4) Take a marine mammal specified in such LOA after NMFS
determines such taking results in more than a negligible impact on the
species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS
determined such taking results in an unmitigable adverse impact on the
species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
Sec. 217.114 Mitigation requirements.
(a) When conducting the activities identified in Sec. 217.110(a),
the mitigation measures contained under this subpart and any LOA issued
under Sec. Sec. 216.106 of this chapter and 217.116 must be
implemented by the Navy. These mitigation measures include:
(1) A copy of any issued LOA must be in the possession of the Navy,
supervisory construction personnel, lead protected species observers
(PSOs), and any other relevant designees of the Navy operating under
the authority of the LOA at all times that activities subject to the
LOA are being conducted.
(2) The Navy must ensure that construction supervisors and crews,
the monitoring team, and relevant Navy staff are trained prior to the
start of activities subject to any issued LOA, so that
responsibilities, communication procedures, monitoring protocols, and
operational procedures are clearly understood. New personnel joining
during the project must be trained prior to commencing work.
(3) The Navy, construction supervisors and crews, and relevant Navy
staff must avoid direct physical interaction with marine mammals during
construction activity. If a marine mammal comes within 10 m of such
activity, operations must cease and vessels must reduce speed to the
minimum level required to maintain steerage and safe working
conditions, as necessary to avoid direct physical interaction.
(4) The Navy must employ PSOs and establish monitoring locations as
described in the NMFS-approved Marine Mammal Monitoring Plan. The Navy
must monitor the project area to the maximum extent possible based on
the required number of PSOs, required monitoring locations, and
environmental conditions.
(5) For all pile driving and drilling activity, the Navy shall
implement shutdown zones with radial distances as identified in a LOA
issued under Sec. 217.116. If a marine mammal is observed entering or
within the shutdown zone, such operations must be delayed or halted.
(6) Monitoring must take place from 30 minutes prior to initiation
of pile driving or drilling activity (i.e., pre-start clearance
monitoring) through 30 minutes post-completion of pile driving or
drilling activity.
(7) Pre-start clearance monitoring must be conducted during periods
of visibility sufficient for the lead PSO to determine that the
shutdown zones are clear of marine mammals. Pile driving and drilling
may commence following 30 minutes of observation when the determination
is made that the shutdown zones are clear of marine mammals.
(8) Should environmental conditions deteriorate such that marine
mammals within the entire shutdown zone would not be visible (e.g.,
fog, heavy rain, night), the Holder shall delay in-water construction
activities until observers are confident marine mammals within the
shutdown zone could be detected.
(9) 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 zone or 15 minutes have passed without
re-detection of the animal.
(10) Pile driving activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or within the
harassment zone.
(11) The Navy must use soft start techniques when impact pile
driving. Soft start requires contractors to provide an initial set of
strikes at reduced energy, followed by a 30-second waiting period, then
two subsequent reduced-energy strike sets. A soft start must be
implemented at the start of each day's impact pile driving and at any
time following cessation of impact pile driving for a period of 30
minutes or longer.
(b) [Reserved]
Sec. 217.115 Requirements for monitoring and reporting.
(a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS
for approval in advance of construction. Marine mammal monitoring must
be conducted in accordance with the conditions in this section and the
NMFS-approved Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs,
in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods.
(2) 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.
(3) 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.
(4) One PSO must be designated as lead PSO or monitoring
coordinator. The lead PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization.
(5) PSOs must be approved by NMFS prior to beginning any activity
subject to any issued LOA.
(6) For all pile driving activities, a minimum of two PSOs shall be
stationed at the best vantage points practicable to monitor for marine
mammals and implement shutdown/delay procedures.
(7) For all pile driving activities, a minimum of two PSOs shall be
stationed at the active pile driving site, docks, or piers to monitor
the harassment and shutdown zones, and as described in the Marine
Mammal Monitoring Plan. For shutdown zones exceeding 1,000 m, a minimum
of three PSOs shall be stationed appropriately, as described in the
Marine Mammal Monitoring Plan, to monitor the entire shutdown zone.
(8) The Navy shall monitor the harassment zones to the extent
practicable and the entire shutdown zones. The Navy shall monitor at
least a portion of the Level B harassment zone on all pile driving
days.
(9) The Navy shall conduct hydroacoustic data collection in
accordance with a Marine Mammal Monitoring Plan that must be approved
by NMFS in advance of construction.
(10) The shutdown/monitoring zones may be modified with NMFS'
approval
[[Page 31656]]
following NMFS' acceptance of an acoustic monitoring report.
(11) The Navy must submit a draft monitoring report to NMFS within
90 calendar days of the completion of each construction year. A draft
comprehensive 5-year summary report must also be submitted to NMFS
within 90 days of the end of the project. The reports must detail the
monitoring protocol and summarize the data recorded during monitoring.
Final annual reports and the final comprehensive report must be
prepared and submitted within 30 days following resolution of any NMFS
comments on the draft report. If no comments are received from NMFS
within 30 days of receipt of the draft report, the report must be
considered final. If comments are received, a final report addressing
NMFS comments must be submitted within 30 days after receipt of
comments. The reports must, at minimum, contain the informational
elements described below (as well as any additional information
described in the Marine Mammal Monitoring Plan), including:
(i) Dates and times (begin and end) of all marine mammal
monitoring;
(ii) Construction activities occurring during each daily
observation period, including the number and type of piles that were
driven or removed and by what method (i.e., impact, vibratory or
drilling), total duration of driving time for each pile (vibratory and
drilling) and number of strikes for each pile (impact);
(iii) PSO locations during marine mammal monitoring;
(iv) 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;
(v) Upon observation of a marine mammal, the follow information:
(A) Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting;
(B) Time of sighting;
(C) 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;
(D) Distance and location of each observed marine mammal relative
to the pile being driven for each sighting;
(E) Estimated number of animals (min/max/best estimate);
(F) Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, etc.); and
(G) Animal's closest point of approach and estimated time spent
within the harassment zone.
(vi) Description of any marine mammal behavioral observations
(e.g., observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted form the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing, or breaching);
(vii) Number of marine mammals detected within the harassment
zones, by species; and
(viii) Detailed information about implementation of any mitigation
(e.g., shutdown and delays), a description of specific actions that
ensued, and resulting changes in behavior of the animal(s), if any.
(12) The Holder must submit all PSO datasheets and/or raw sighting
data within the draft report.
(13) All draft and final monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#e5b5b7cbacb1b5cba88a8b8c918a978c8b82b780958a979196a58b8a8484cb828a93"><span class="__cf_email__" data-cfemail="85d5d7abccd1d5abc8eaebecf1eaf7ecebe2d7e0f5eaf7f1f6c5ebeae4e4abe2eaf3">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#216875710f424e53424e53404f614f4e40400f464e57"><span class="__cf_email__" data-cfemail="fdb4a9add39e928f9e928f9c93bd93929c9cd39a928b">[email protected]</span></a>.
(14) The Navy must report hydroacoustic data collected as required
by a LOA issued under Sec. Sec. 216.106 of this chapter and 217.116
and as discussed in the Navy's Marine Mammal Monitoring Plan approved
by NMFS.
(15) In the event that personnel involved in the construction
activities discover an injured or dead marine mammal, the Navy shall
report the incident to the Office of Protected Resources, NMFS and to
the Greater Atlantic Region New England/Mid-Atlantic Regional Stranding
Coordinator as soon as feasible. If the death or injury was clearly
caused by the specified activity, the Navy must immediately cease the
specified activities until NMFS is able to review the circumstances of
the incident and determine what, if any, additional measures are
appropriate to ensure compliance with the terms of the authorization.
The Navy must not resume their activities until notified by NMFS. The
report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the
animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if
the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s);
and
(vi) General circumstances under which the animal was discovered.
Sec. 217.116 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to the regulations
under this subpart, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of the regulations
under this subpart.
(c) If an LOA expires prior to the expiration date of the
regulations under this subpart, the Navy may apply for and obtain a
renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the Navy must
apply for and obtain a modification of the LOA as described in Sec.
217.116.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the
level of taking must be consistent with the findings made for the total
taking allowable under the regulations under this subpart.
(g) Notice of issuance or denial of an LOA must be published in the
Federal Register within 30 days of a determination.
Sec. 217.117 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.116 for the activity identified in Sec. 217.110(a) may be renewed
or modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for the regulations under this subpart;
and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under the regulations under this
subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation,
[[Page 31657]]
monitoring, or reporting that do not change the findings made for the
regulations or result in no more than a minor change in the total
estimated number of takes (or distribution by species or years), NMFS
may publish a notice of proposed LOA in the Federal Register, including
the associated analysis of the change, and solicit public comment
before issuing the LOA.
(c) A LOA issued under Sec. Sec. 216.106 of this chapter and
217.116 for the activity identified in Sec. 217.110(a) may be modified
by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation,
monitoring, or reporting measures (after consulting with Navy regarding
the practicability of the modifications) if doing so creates a
reasonable likelihood of more effectively accomplishing the goals of
the mitigation and monitoring for the regulations under this subpart;
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by the regulations under
this subpart or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
must publish a notice of proposed LOA in the Federal Register and
solicit public comment;
(2) If NMFS determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in a LOA issued pursuant to Sec. Sec. 216.106 of
this chapter and 217.116, a LOA may be modified without prior notice or
opportunity for public comment. Notification would be published in the
Federal Register within 30 days of the action.
Sec. Sec. 217.118-217.119 [Reserved]
[FR Doc. 2023-10168 Filed 5-17-23; 8:45 am]
BILLING CODE 3510-22-P
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