Notice2023-12343
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Falls Bridge Replacement Project in Blue Hill, Maine
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Published
June 9, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from the Maine Department of Transportation (MEDOT) for the renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to Falls Bridge Replacement Project in Blue Hill, Maine. These activities consist of activities that are covered by the current authorization but will not be completed prior to its expiration. Pursuant to the Marine Mammal Protection Act, prior to issuing the currently active IHA, NMFS requested comments on both the proposed IHA and the potential for renewing the initial authorization if certain requirements were satisfied. The renewal requirements have been satisfied, and NMFS is now providing an additional 15-day comment period to allow for any additional comments on the proposed renewal not previously provided during the initial 30-day comment period.
Full Text
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<title>Federal Register, Volume 88 Issue 111 (Friday, June 9, 2023)</title>
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[Federal Register Volume 88, Number 111 (Friday, June 9, 2023)]
[Notices]
[Pages 37864-37868]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12343]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC962]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Falls Bridge Replacement
Project in Blue Hill, Maine
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; request for comments on proposed renewal incidental
harassment authorization (IHA).
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SUMMARY: NMFS received a request from the Maine Department of
Transportation (MEDOT) for the renewal of their currently active
incidental harassment authorization (IHA) to take marine mammals
incidental to Falls Bridge Replacement Project in Blue Hill, Maine.
These activities consist of activities that are covered by the current
authorization but will not be completed prior to its expiration.
Pursuant to the Marine Mammal Protection Act, prior to issuing the
currently active IHA, NMFS requested comments on both the proposed IHA
and the potential for renewing the initial authorization if certain
requirements were satisfied. The renewal requirements have been
satisfied, and NMFS is now providing an additional 15-day comment
period to allow for any additional comments on the proposed renewal not
previously provided during the initial 30-day comment period.
DATES: Comments and information must be received no later than June 26,
2023.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service, and should be submitted via email to
<a href="/cdn-cgi/l/email-protection#a5ecf1f58bcdc4d7c9c4c6cdc0d7e5cbcac4c48bc2cad3"><span class="__cf_email__" data-cfemail="6e273a3e40060f1c020f0d060b1c2e00010f0f40090118">[email protected]</span></a>.
[[Page 37865]]
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. Attachments to comments will be
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All
comments received are a part of the public record and will generally be
posted online at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All
personal identifying information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information.
FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application, renewal request, and supporting documents (including NMFS
Federal Register notices of the original proposed and final
authorizations, and the previous IHA), as well as a list of the
references cited in this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D)
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon request, the incidental, but not
intentional, taking of small numbers of marine mammals by U.S. citizens
who engage in a specified activity (other than commercial fishing)
within a specified geographical region if certain findings are made and
either regulations are issued or, if the taking is limited to
harassment, an incidental harassment authorization is issued.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to here as ``mitigation
measures''). Monitoring and reporting of such takings are also
required. The meaning of key terms such as ``take,'' ``harassment,''
and ``negligible impact'' can be found in section 3 of the MMPA (16
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods of time not to
exceed 1 year for each reauthorization. In the notice of proposed IHA
for the initial authorization, NMFS described the circumstances under
which we would consider issuing a renewal for this activity, and
requested public comment on a potential renewal under those
circumstances. Specifically, on a case-by-case basis, NMFS may issue a
one-time 1-year renewal IHA following notice to the public providing an
additional 15 days for public comments when (1) up to another year of
identical, or nearly identical, activities as described in the Detailed
Description of Specified Activities section of the initial IHA issuance
notice is planned or (2) the activities as described in the Description
of the Specified Activities and Anticipated Impacts section of the
initial IHA issuance notice would not be completed by the time the
initial IHA expires and a renewal would allow for completion of the
activities beyond that described in the DATES section of the notice of
issuance of the initial IHA, provided all of the following conditions
are met:
1. A request for renewal is received no later than 60 days prior to
the needed renewal IHA effective date (recognizing that the renewal IHA
expiration date cannot extend beyond 1 year from expiration of the
initial IHA).
2. The request for renewal must include the following:
<bullet> An explanation that the activities to be conducted under
the requested renewal IHA are identical to the activities analyzed
under the initial IHA, are a subset of the activities, or include
changes so minor (e.g., reduction in pile size) that the changes do not
affect the previous analyses, mitigation and monitoring requirements,
or take estimates (with the exception of reducing the type or amount of
take).
<bullet> A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
3. Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed renewal. A description of the renewal process
may be found on our website at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>. Any
comments received on the potential renewal, along with relevant
comments on the initial IHA, have been considered in the development of
this proposed IHA renewal, and a summary of agency responses to
applicable comments is included in this notice. NMFS will consider any
additional public comments prior to making any final decision on the
issuance of the requested renewal, and agency responses will be
summarized in the final notice of our decision.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA
renewal) with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental take authorizations with no
anticipated serious injury or mortality) of the Companion Manual for
NOAA Administrative Order 216-6A, which do not individually or
cumulatively have the potential for significant impacts on the quality
of the human environment and for which we have not identified any
extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS determined that the issuance of the
initial IHA qualified to be categorically excluded from further NEPA
review. NMFS has preliminarily determined that the application of this
categorical exclusion remains appropriate for this renewal IHA.
[[Page 37866]]
History of Request
On December 8, 2021, NMFS issued an IHA to MEDOT to take marine
mammals incidental to Falls Bridge Replacement Project in Blue Hill,
Maine (86 FR 71034, December 14, 2021), effective from July 1, 2022
through June 30, 2023. On March 3, 2023, NMFS received an application
for the renewal of that initial IHA. As described in the application
for renewal IHA, the activities for which incidental take is requested
consist of activities that are covered by the initial authorization but
will not be completed prior to its expiration. As required, the
applicant also provided a preliminary monitoring report which confirms
that the applicant has implemented the required mitigation and
monitoring, and which also shows that no impacts of a scale or nature
not previously analyzed or authorized have occurred as a result of the
activities conducted.
Description of the Specified Activities and Anticipated Impacts
The MEDOT construction project consists of creating a temporary
bridge for vehicle traffic during work on the Falls Bridge; this will
require the installation (and then removal when the project is
complete) of 15 24-inch steel pipe piles. Work on the main bridge deck
was not expected to incidentally harass marine mammals, however in
order to facilitate that work, one or two large trestles (up to 100
foot by 125 foot (30.5 by 38 meters) long) would be placed in the water
next to the bridge. These trestles would require the installation of up
to 60 24-inch diameter steel pipe piles. In addition to the temporary
work trestles and temporary bridge, MEDOT anticipated the need for four
temporary support towers during the demolition and removal of the
existing bridge superstructure. The temporary support towers will be
placed at the corners of the tied arch, approximately 20 feet (6.1
meters) in from the existing bridge abutments. Up to 5 24-inch steel
pipe piles will be needed to support each of the temporary support
towers, for a total of 20 24-inch steel pipe piles.
In total the initial project expected the installation and removal
of 95 24-inch diameter steel pipe piles. It was expected that all 95
piles would be installed in rock sockets (holes) in the bedrock created
by down-the-hole (DTH) equipment. Impact pile driving would be used to
seat the piles and potentially drive them through softer substrates.
For piles driven in the center of the channel under the bridge (mostly
for the trestles), additional lateral stability may require the use of
rebar tension anchors drilled deeper into the substrate in the center
of the piles and connected to the piles once installed. This would be
accomplished by using an 8-inch diameter DTH bit. It was expected that
no more than 65 of the 95 piles would require these tension anchors.
Once the work on the bridge was complete, all 95 piles would be removed
using a vibratory hammer. The DTH and impact hammer installation and
vibratory extraction of the piles was expected to take up to 80 days of
in-water work.
Specifically, under the initial IHA, all project related pile
installation activities were completed over a 2-day period in October
and November 2022. MEDOT completed all pile driving with the use of an
impact hammer, and the DTH method was not used by MEDOT. In addition,
the number of driven piles was reduced from the previously estimated 95
piles down to a total of 12 piles. Pile size was also reduced from 24-
inch steel pipe piles to 14-inch steel pipe piles.
This renewal request is to cover the subset of the activities
covered in the initial IHA that will not be completed during the
effective IHA period. MEDOT plans to remove all 12 14-inch steel pipe
piles through vibratory means between October and December of 2023.
MEDOT estimates it will take 30 minutes to remove a single pile, with
up to six piles removed per day.
The likely or possible impacts of the MEDOT's proposed activity on
marine mammals could involve both non-acoustic and acoustic stressors
and is unchanged from the impacts described in the initial IHA.
Potential non-acoustic stressors could result from the physical
presence of the equipment, vessels, and personnel; however, any impacts
to marine mammals are expected to primarily be acoustic in nature.
Acoustic stressors include effects of heavy equipment operation during
pile installation and removal. The effects of underwater and in-air
noise and visual disturbance from the MEDOT's proposed activities have
the potential to result in Level B harassment of marine mammals in the
action area.
Detailed Description of the Activity
A detailed description of the construction activities for which
take is proposed here may be found in the notices of the proposed and
final IHAs for the initial authorization (86 FR 61164, November 5,
2021; 86 FR 71034, December 14, 2021). As previously mentioned, this
request is for a subset of the activities authorized in the initial IHA
that would not be completed prior to its expiration. The location,
timing, and nature of the activities, including the types of equipment
planned for use, are identical to those described in the previous
notice for the initial IHA. Minor changes to the initial scope include
the reduction of pile size and number of piles required. The initial
scope planned for the installation and removal of 95 24-inch steel pipe
piles. In total, 12 14-inch piles were installed. MEDOT is requesting a
renewal IHA for vibratory removal of 12 14-inch steel pipe piles. The
proposed renewal IHA would be effective from July 1, 2023 through June
30, 2024.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which authorization of take is proposed here, including information
on abundance, status, distribution, and hearing, may be found in the
notice of the proposed IHA for the initial authorization (86 FR 61164,
November 5, 2021). NMFS has reviewed the monitoring data from the
initial IHA, recent draft Stock Assessment Reports, information on
relevant Unusual Mortality Events, and other scientific literature, and
determined that neither this nor any other new information affects
which species or stocks have the potential to be affected or the
pertinent information in the Description of the Marine Mammals in the
Area of Specified Activities contained in the supporting documents for
the initial IHA (86 FR 61164, November 5, 2021).
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which the
authorization of take is proposed here may be found in the notice of
the proposed IHA for the initial authorization (86 FR 61164, November
5, 2021). NMFS has reviewed the monitoring data from the initial IHA,
recent draft Stock Assessment Reports, information on relevant Unusual
Mortality Events, and other scientific literature, and determined that
neither this nor any other new information affects our initial analysis
of impacts on marine mammals and their habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the notices of the
proposed and final IHAs for the initial authorization (86 FR 61164,
November 5, 2021; 86 FR 71034, December 14, 2021). Specifically, days
[[Page 37867]]
of operation, area or space within which harassment is likely to occur,
and marine mammal occurrence data applicable to this authorization
remain unchanged from the initial IHA. Similarly, the stocks taken,
methods of take, daily take estimates and types of take remain
unchanged from the initial IHA. The number of takes proposed for
authorization in this renewal are a subset of the initial authorized
takes that better represent the amount of activity left to complete.
These takes, which reflect the lower number of remaining days of work,
are indicated below in Table 1.
Table 1--Proposed Amount of Taking, by Level B Harassment, by Species and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
Percent of
Species Stock Proposed take stock
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Harbor porpoise............................... Gulf Maine/Bay of Fundy......... 20 <0.1
Atlantic white-sided dolphin.................. Western North Atlantic.......... 20 <0.1
Common dolphin................................ Western North Atlantic.......... 80 0.1
Harbor seal................................... Western North Atlantic.......... 198 0.3
Gray seal..................................... Western North Atlantic.......... 8 <0.1
Harp seal..................................... Western North Atlantic.......... 1 <0.1
Hooded seal................................... Western North Atlantic.......... 1 UNK
----------------------------------------------------------------------------------------------------------------
Description of Proposed Mitigation, Monitoring and Reporting Measures
The proposed mitigation, monitoring, and reporting measures
included as requirements in this authorization are almost identical to
those included in the FR notice announcing the issuance of the initial
IHA, and the discussion of the least practicable adverse impact
included in that document remains accurate (86 FR 71034, December 14,
2021). In the renewal IHA, the pile size and the amount of piles
removed per day has been updated to reflect what occurred under the
initial IHA. MEDOT's original shutdown zones were based on removal of
three 24-inch steel piles per day. However, due to the reduced pile
size used in the initial IHA, MEDOT plans to remove six 14-in steel
piles per day causing larger Level A harassment isopleths. The Level A
harassment isopleth for high frequency cetaceans increases from 25
meters to 62 meters, therefore the shutdown zone for cetaceans
increases from 50 meters to 100 meters and is reflected in Table 2
below and in the proposed IHA renewal.
The following mitigation, monitoring, and reporting measures are
proposed for this renewal:
<bullet> The MEDOT must avoid direct physical interaction with
marine mammals during construction activity. If a marine mammal comes
within 10 meters of such activity, operations must cease and vessels
must reduce speed to the minimum level required to maintain steerage
and safe working conditions, as necessary to avoid direct physical
interaction.
<bullet> Conduct training between construction supervisors and
crews and the marine mammal monitoring team and relevant MEDOT staff
prior to the start of all pile driving activity and when new personnel
join the work, so that responsibilities, communication procedures,
monitoring protocols, and operational procedures are clearly
understood.
<bullet> Pile driving activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or within the
harassment zone.
<bullet> MEDOT will establish and implement the shutdown zones. The
purpose of a shutdown zone is generally to define an area within which
shutdown of the activity would occur upon sighting of a marine mammal
(or in anticipation of an animal entering the defined area). Shutdown
zones typically vary based on the activity type and marine mammal
hearing group. To simplify implementation of shutdown zones, MEDOT has
proposed to implement shutdown zones for two groups of marine mammals,
cetaceans and pinnipeds, with the shutdown zone in each group being the
largest of the shutdown zones for any of the hearing groups contained
within that group. MEDOT has also voluntarily proposed to increase
shutdown sizes above those we would typically require in order to be
precautionary and protective to marine mammals. Due to the modification
of pile size and duration as discussed above, the updated shutdown
zones for the IHA renewal are in Table 2.
Table 2--Minimum Required Shutdown Zones
------------------------------------------------------------------------
Shutdown distance (m)
Activity -------------------------------
Cetaceans Pinnipeds
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Vibratory Removal....................... 100 50
------------------------------------------------------------------------
<bullet> Monitoring must take place from 30 minutes prior to
initiation of construction activity (i.e., pre-start clearance
monitoring) through 30 minutes post-completion of construction
activity.
<bullet> Pre-start clearance monitoring must be conducted during
periods of visibility sufficient for the lead Protected Species
Observer (PSO) to determine the shutdown zones clear of marine mammals.
Construction may commence when the determination is made.
<bullet> If construction is delayed or halted due to the presence
of a marine mammal, the activity may not commence or resume until
either the animal has voluntarily exited and been visually confirmed
beyond the shutdown zone or 15 minutes have passed without re-detection
of the animal.
<bullet> MEDOT must use soft start techniques. Soft start requires
contractors and equipment to slowly approach the work site creating a
visual
[[Page 37868]]
disturbance allowing animals in close proximity to construction
activities a chance to leave the area prior to stone resetting or new
stone placement. Contractors shall avoid walking or driving equipment
through the seal haulout. A soft start must be implemented at the start
of each day's construction activity and at any time following cessation
of activity for a period of 30 minutes or longer.
<bullet> The MEDOT must employ at least one PSO to monitor the
shutdown and Level B harassment zones.
<bullet> Monitoring will be conducted 30 minutes before, during,
and 30 minutes after construction activities. In addition, observers
shall record all incidents of marine mammal occurrence, regardless of
distance from activity, and shall document any behavioral reactions in
concert with distance from construction activity.
<bullet> The MEDOT must submit a draft report detailing all
monitoring within 90 calendar days of the completion of marine mammal
monitoring or 60 days prior to the issuance of any subsequent IHA for
this project, whichever comes first.
<bullet> The MEDOT must prepare and submit final report within 30
days following resolution of comments on the draft report from NMFS.
<bullet> The MEDOT must submit all PSO datasheets and/or raw
sighting data (in a separate file from the Final Report referenced
immediately above).
<bullet> The MEDOT must report injured or dead marine mammals.
Comments and Responses
As noted previously, NMFS published a notice of a proposed IHA (86
FR 61164, November 5, 2021) and solicited public comments on both our
proposal to issue the initial IHA for Falls Bridge Replacement Project
and on the potential for a renewal IHA, should certain requirements be
met. During the 30-day public comment period, NMFS received no comments
on either the proposal to issue the initial IHA for the MEDOT's
construction activities or on the potential for a renewal IHA.
Preliminary Determinations
The proposed renewal request consists of a subset of activities
analyzed through the initial authorization described above. In
analyzing the effects of the activities for the initial IHA, NMFS
determined that the MEDOT's activities would have a negligible impact
on the affected species or stocks and that authorized take numbers of
each species or stock were small relative to the relevant stocks (e.g.,
less than one-third the abundance of all stocks). The mitigation
measures and monitoring and reporting requirements as described above
are identical to the initial IHA.
NMFS has preliminarily concluded that there is no new information
suggesting that our analysis or findings should change from those
reached for the initial IHA. Based on the information and analysis
contained here and in the referenced documents, NMFS has preliminarily
determined the following: (1) the required mitigation measures will
effect the least practicable impact on marine mammal species or stocks
and their habitat; (2) the authorized takes will have a negligible
impact on the affected marine mammal species or stocks; (3) the
authorized takes represent small numbers of marine mammals relative to
the affected stock abundances; (4) MEDOT's activities will not have an
unmitigable adverse impact on taking for subsistence purposes as no
relevant subsistence uses of marine mammals are implicated by this
action; and, (5) appropriate monitoring and reporting requirements are
included.
Endangered Species Act (ESA)
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.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to
issue a renewal IHA to MEDOT for conducting Falls Bridge Replacement
Project in Blue Hill, Maine, from July 1, 2023 through June 30, 2024,
provided the previously described mitigation, monitoring, and reporting
requirements are incorporated. A draft of the proposed and final
initial IHA can be found at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. We
request comment on our analyses, the proposed renewal IHA, and any
other aspect of this notice. Please include with your comments any
supporting data or literature citations to help inform our final
decision on the request for MMPA authorization.
Dated: June 5, 2023.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2023-12343 Filed 6-8-23; 8:45 am]
BILLING CODE 3510-22-P
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