Notice2024-00511
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Port of Alaska's North Extension Stabilization Step 1 Project in Anchorage, Alaska
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
January 16, 2024
Effective
April 1, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the Port of Alaska (POA) to incidentally harass marine mammals during construction activities associated with the North Extension Stabilization Step 1 (NES1) Project in Anchorage, Alaska.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 10 (Tuesday, January 16, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 10 (Tuesday, January 16, 2024)]
[Notices]
[Pages 2832-2873]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00511]
[[Page 2831]]
Vol. 89
Tuesday,
No. 10
January 16, 2024
Part III
Department of Commerce
-----------------------------------------------------------------------
National Oceanic and Atmospheric Administration
-----------------------------------------------------------------------
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Port of Alaska's North Extension
Stabilization Step 1 Project in Anchorage, Alaska; Notice
Federal Register / Vol. 89 , No. 10 / Tuesday, January 16, 2024 /
Notices
[[Page 2832]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD572]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Port of Alaska's North
Extension Stabilization Step 1 Project in Anchorage, Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
the Port of Alaska (POA) to incidentally harass marine mammals during
construction activities associated with the North Extension
Stabilization Step 1 (NES1) Project in Anchorage, Alaska.
DATES: This authorization is effective from April 1, 2024, through
March 31, 2025.
ADDRESSES: Electronic copies of the application and 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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>. In case of problems accessing these documents, please call
the contact listed below.
FOR FURTHER INFORMATION CONTACT: Reny Tyson Moore, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are 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 July 19, 2022, NMFS received a request from the POA for an IHA
to take marine mammals incidental to construction activities related to
the NES1 project in Anchorage, Alaska. Following NMFS' review of the
application, the POA submitted revised versions on December 27, 2022,
July 28, 2023, and August 31, 2023. The application was deemed adequate
and complete on September 7, 2023. The POA submitted a final version
addressing additional minor corrections on September 21, 2023. The
Federal Register notice of the proposed IHA and request for comments
was published on November 6, 2023 (88 FR 76576). The POA's request is
for take of seven species of marine mammals by Level B harassment and,
for a subset of these species (i.e., harbor seal (Phoca vitulina) and
harbor porpoise (Phocoena phocoena)), Level A harassment. Neither the
POA nor NMFS expect serious injury or mortality to result from this
activity and, therefore, an IHA is appropriate.
NMFS previously issued IHAs to the POA for similar work (85 FR
19294, April 6, 2020; 86 FR 50057, September 7, 2021). The POA complied
with all the requirements (e.g., mitigation, monitoring, and reporting)
of the previous IHAs, and information regarding their monitoring
results may be found in the Effects of the Specified Activity on Marine
Mammals and their Habitat section of the Federal Register notice of the
proposed IHA (88 FR 76576, November 6, 2023), the Estimated Take
section in this notice of issuance, and online at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>.
This IHA will cover 1-year of the ongoing Port of Alaska
Modernization Program (PAMP) for which the POA obtained prior IHAs and
intends to request additional take authorization for subsequent facets
of the program. The PAMP involves construction activities related to
the modernization of the POA's marine terminals.
Description of Specified Activity
The POA, located on Knik Arm in upper Cook Inlet, provides critical
infrastructure for the citizens of Anchorage and a majority of the
citizens of Alaska. The North Extension at the POA is a failed bulkhead
structure that was constructed between 2005 and 2011. Parts of the
North Extension bulkhead structure and the surrounding upland area are
unstable and collapsing, and some of the sheet piles are visibly
twisted and buckled. The structure presents safety hazards and
logistical impediments to ongoing Port operations, and much of the
upland area is currently unusable. The North Extension Stabilization
(NES) project will result in removal of the failed sheet pile structure
and reconfiguration and realignment of the shoreline within the North
Extension, including the conversion of approximately 0.05 square
kilometers (km\2\; 13 acres) of developed land back to intertidal and
subtidal habitat within Knik Arm. The NES project will be completed in
two distinct steps, NES1 and NES2, separated by multiple years and
separate permitting efforts. This notice is applicable to an IHA for
the incidental take of marine mammals during in-water construction
associated with NES1.
The NES1 project will involve the removal of portions of the failed
sheet pile structure to stabilize the North Extension. The NES1 project
will remove approximately half of the North Extension structure
extending approximately 274-meters (m) north from the southern end of
the North Extension. This project will also stabilize the remaining
portion of the North Extension by creating an end-state embankment.
While the majority of the Project will be demolition work, the term
``construction'' as used herein refers to both construction and
demolition work.
In-water construction associated with this project includes
vibratory installation and removal of 81 24-inch (61-centimeter (cm))
or 36-inch (91-cm) temporary steel pipe stability template piles as
well as vibratory removal, splitting (via a sheet pile splitter used in
[[Page 2833]]
conjunction with a vibratory hammer), pile cutting (via hydraulic
shears or underwater ultrathermic cutting) and possible impact removal
of approximately 4,216 sheet piles from the structure tailwalls, cell
faces (bulkhead), and closure walls. Demolition of the failed sheet
pile structure will be accomplished through excavation and dredging of
impounded soils (fill material), and cutting and removal of the
existing sheet piles, most likely through use of a pile splitter and
vibratory hammer. It is assumed that pile splitting will produce the
same or similar sound levels to a vibratory hammer used without the
splitter attachment. Therefore, the use of a vibratory hammer to remove
sheet piles and the use of a splitter is combined into a single
category (i.e., vibratory hammer removal) and treated the same in our
analysis.
The first attempt to extract the sheet piles will be with direct
vertical pulling or with a vibratory hammer; however, there may be
complications with the sheet pile interlocks, which could become
seized, and other means of pile removal may be required (i.e., impact
removal, shearing, or torching). In addition, to minimize potential
impacts on marine mammals from in-water sheet pile removal, removal in
the dry would be maximized as feasible. The demolition plan also
includes stabilization of the face sheets through installation of
temporary piles and dredging back into the cell to relieve pressure on
the sheet piles and to eliminate any release of material into Cook
Inlet beyond natural tidal forces. It is anticipated that 3 sets of 27
temporary piles would be required for a total of 81 installations and
81 removals (table 1). Temporary piles would be installed and removed
with a vibratory hammer. Sound produced by vibratory pile installation
and removal and impact pile removal may result in the take of marine
mammals, by harassment only. Sound produced by all other NES1 project
activities (e.g., hydraulic shearing, ultrathermic cutting) are not
expected to result in the take of marine mammals and, therefore, are
not discussed further.
BILLING CODE 3510-22-P
[[Page 2834]]
[GRAPHIC] [TIFF OMITTED] TN16JA24.031
BILLING CODE 3510-22-C
A detailed description of the planned NES1 project is provided in
the Federal Register notice for the proposed IHA (88 FR 76576, November
6, 2023). Since that time, no changes have been made to the planned
activities. Therefore, a detailed description is not provided here.
Please refer to that Federal Register notice for the description of the
specific activity.
Dates and Duration
The POA anticipates that NES1 in-water construction activities will
begin on April 1, 2024 and extend through November 2024. In-water pile
[[Page 2835]]
installation and removal associated with the NES1 project is
anticipated to take place over approximately 246.5 hours on 110
nonconsecutive days between these dates. While the exact sequence of
demolition and construction is uncertain, an estimated schedule of
sheet pile removal and temporary stability template pile installation
and removal is shown in table 1.
A detailed description of the timing and sequencing of the NES1
project is provided in the Federal Register notice for the proposed IHA
(88 FR 76576, November 6, 2023). Since that time, no changes have been
made to the dates or duration. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for more
information regarding the dates and duration of the NES1 project.
Specific Geographic Region
The Municipality of Anchorage is located in the lower reaches of
Knik Arm of upper Cook Inlet (see figure 2-1 in the POA's application).
The POA sits on the industrial waterfront of Anchorage, just south of
Cairn Point and north of Ship Creek (lat. 61[deg]15' N, long.
149[deg]52' W; Seward Meridian). Knik Arm and Turnagain Arm are the two
branches of upper Cook Inlet, and Anchorage is located where the two
arms join. The POA's boundaries currently occupy an area of
approximately 0.52 km\2\.
A detailed description of the specific geographic region of the
NES1 project is provided in the Federal Register notice for the
proposed IHA (88 FR 76576, November 6, 2023). Since that time, no
changes have been made to the specific geographic region. Therefore, a
detailed description is not provided here. Please refer to that Federal
Register notice for more information regarding the specific geographic
region of the NES1 project.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to the POA was published
in the Federal Register on November 6, 2023 (88 FR 76576). That notice
described, in detail, the POA's activity, the marine mammal species
that may be affected by the activity, and the anticipated effects on
marine mammals. In that notice, we requested public input on the
request for authorization described therein, our analyses, the proposed
authorization, and any other aspect of the notice of proposed IHA, and
requested that interested persons submit relevant information,
suggestions, and comments.
During the 30-day public comment period, NMFS received comments
from the Center for Biological Diversity (CBD) and Eklutna, Inc. NMFS
also received a letter from United States Geological Survey stating
that they had no comment. All relevant, substantive comments, and NMFS'
responses, are provided below. The comments and recommendations are
available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>. Please see the comment submissions for full details
regarding the recommendations and supporting rationale.
Comment 1: The CBD opposed NMFS' issuance of an IHA for
construction and associated activities related to the NES1 project,
stating that the proposed actions would further imperil the already
critically endangered Cook Inlet beluga whale (CIBW) and that ``most of
the proposed activities should not be authorized until and unless
[NMFS] can ensure that take will not impede the survival and recovery
of the [CIBW] population.''
Response: NMFS shares CBD's concern regarding the impacts of human
activities on CIBWs and is committed to supporting the conservation and
recovery of the species. Under section 101(a)(5)(D) of the MMPA, NMFS
considers the at risk status of CIBWs (and other species) in both the
negligible impact analysis and through our consideration of impact
minimization measures that support the least practicable adverse impact
on those species. For example, the IHA for the NES1 project includes a
requirement to implement shutdown zones for CIBWs that encompass the
estimated Level B harassment zones. However, section 101(a)(5)(D) also
mandates that NMFS ``shall issue'' an IHA if we are able to make the
necessary findings for any specified activity for which incidental take
is requested.
In accordance with our implementing regulations at 50 CFR
216.104(c), we use the best available scientific evidence to determine
whether the taking by the specified activity within the specified
geographic region will have a negligible impact on the species or stock
and will not have an unmitigable adverse impact on the availability of
such species or stock for subsistence uses. Based on the best
scientific evidence available, NMFS determined that the take incidental
to POA's NES1 project would have no more than a negligible impact on
the affected species and stocks, including CIBW, and no unmitigable
adverse impact on the availability of marine mammals for subsistence
uses. Moreover, NMFS has required through the IHA implementation of
mitigation and monitoring measures that balances the safety needs of
this demolition project with reducing potential impacts to CIBWs and
other marine mammals to the lowest level practicable, thereby providing
the means of effecting the least practicable adverse impact on the
affected species and stocks of marine mammals.
Further, as described in the Federal Register notice of the
proposed IHA (88 FR 76576, November 6, 2023), data from several years
of scientific monitoring at the POA during previous work involving pile
driving (occurring April through November) demonstrate there is no
significant difference in beluga whale sightings during and in absence
of pile driving (Kendell and Cornick, 2016). While we do anticipate
some behavioral modifications to occur, these will likely be limited to
increased travel speeds, reduced vocalizations, and potentially
traveling in more cohesive groups (Kendell and Cornick, 2016). However,
we anticipate behavior will return to normal after the whales move past
the POA (e.g., when they reach productive foraging grounds north of the
POA) as these areas would not be ensonified by pile driving noise.
There is no evidence CIBWs have abandoned foraging in Knik Arm due to
pile driving noise or that exposure to pile driving noise has resulted
in more than a negligible impact to the CIBW population (e.g., 61N
Environmental, 2021, 2022a, 2022b, 2022c; Easley-Appleyard and Leonard,
2022). In light of the mitigation and monitoring measures and
scientific data to date, we anticipate the impacts of any Level B
harassment to CIBWs will be limited to short-term, mild to moderate
behavioral changes and will not affect the fitness of any individuals.
Therefore, NMFS' negligible impact determination is well supported and
the authorized take for the NES1 project is neither reasonably expected
nor likely to adversely affect the stock through effects on annual
rates of recruitment or survival and thus, will not contribute to or
exacerbate the stock's decline. Additionally, the NMFS Alaska Regional
Office issued a Biological Opinion (BiOp) on December 15, 2023, under
section 7 of the Endangered Species Act (ESA), on the issuance of an
IHA to the POA under section 101(a)(5)(D) of the MMPA by the NMFS
Office of Protected Resources (OPR) that determined that the issuance
of the IHA is not likely to jeopardize the continued existence of
CIBWs.
CBD cited a letter from the Marine Mammal Commission (MMC)
submitted to NMFS in response to the issuance of an IHA for the POA's
Petroleum and Cement Terminal (PCT) project (MMC, 2020) that
specifically recommended for
[[Page 2836]]
POA construction activities, that the Service ``defer issuance of the
final incidental harassment authorizations to [the POA] or any other
applicant proposing to conduct sound-producing activities in Cook Inlet
until [it] has a reasonable basis for determining that authorizing any
additional incidental harassment takes of Cook Inlet beluga whales
would not contribute to or exacerbate the stock's decline.'' NMFS
responded to this recommendation in the Federal Register notice of the
final IHA for the PCT project (e.g., 85 FR 19294, April 1, 2020) and we
incorporate that response by reference. In summary, that notice
describes how there is no evidence that exposure to pile driving noise
in Knik Arm has resulted in more than a negligible impact to the CIBW
population. Therefore, NMFS negligible impact determination was well
supported and the authorized take for the PCT project was neither
reasonably expected nor likely to adversely affect the stock through
effects on annual rates of recruitment or survival. Thus NMFS had a
reasonable basis for determining that authorizing take incidental to
the PCT project would not contribute to or exacerbate the stock's
decline. Since the publication of this notice, no new information has
become available that would suggest that determination was incorrect.
Similarly, NMFS' independent evaluation of the best scientific evidence
in this case supports our negligible impact determination and our
finding that the authorized take for the NES1 project is neither
reasonably expected nor likely to adversely affect the stock through
effects on annual rates of recruitment or survival. Thus, NMFS has a
reasonable basis for determining that authorizing take incidental to
the NES1 project would not contribute to or exacerbate the stock's
decline. NMFS did not receive any recommendations from the MMC
regarding the proposed IHA for the NES1 project.
Finally, we also note CBD's suggestion that this IHA authorizes the
subject construction activities. We note that NMFS does not have
authority under the MMPA or other statute to authorize the specified
activity. NMFS' authority pertains only to the authorization of marine
mammal take incidental to that activity and to the prescription of
appropriate mitigation, monitoring, and reporting requirements.
Comment 2: The CBD expressed concern regarding uncertainty in the
trends of the CIBW population status. They stated that ``changes in
survey methods bring into question the approach of determining any
trend in population status.'' They cited scientific studies that
confirm a negative trend in the population status of CIBWs.
Response: CBD is incorrect in that survey methods for detecting
trends in CIBW population have changed; the survey field methods are
essentially unchanged since 2004 (Paul Wade, personal communication,
December 11, 2023). The analysis methods used to detect trends in the
CIBW population have been updated and implemented in recent studies
examining the CIBW population, notably Sheldon and Wade (2019) and
Goetz et al. (2023).
Results of recent studies, including those cited by CBD, provide
evidence that the CIBW population increased between 2004 and 2010,
declined after 2010, and increased again from 2016 to 2022 (Jacobsen et
al., 2020; Shelden and Wade, 2019; Warlick et al., 2023; Goetz et al.,
2023). While there is some uncertainty around CIBW population trend
analyses, the results of these four studies are consistent in showing
general trends. Thus, while the CBD were correct that some studies
confirm a negative trend in beluga whale abundance, recent studies,
which NMFS considers the best scientific information available, suggest
this trend may now be increasing. Additional data in the coming years
will help to inform whether the recent positive trend in the CIBW
population will continue.
Comment 3: The CBD states that NMFS must conduct a comprehensive
analysis of all CIBW take and asserts that NMFS should place an overall
cap on authorizations for CIBW incidental take. They state that the
various construction, vessel traffic, oil and gas, and other activities
are cumulatively threatening the conservation and recovery of CIBWs.
CBD also provides examples for the number of takes authorized by NMFS
for various time periods, citing Migura and Bollini (2021) and recent
authorizations to the POA.
Response: We note first that the Migura and Bollini (2021) paper
cited by CBD seems to have led to a misunderstanding of the takes
authorized or permitted by NMFS. In summary, CBD asserts that NMFS
authorized nearly 120,000 takes of CIBWs from 2017 to 2025 and that in
2020 alone, NMFS authorized the equivalent of 50 percent of the entire
CIBW population to be ``incidentally'' harassed by industrial projects
in the Inlet, such as oil and gas development and pile driving
activities.
The vast majority of the asserted ~120,000 total takes (99
percent), including all of the very small amount of take by Level A
harassment, were authorized under directed research or enhancement
permits, which directly support research or actions identified in the
Recovery Plan to address CIBW recovery goals. Further, the vast
majority (~99 percent) of the total permitted research or enhancement
take numbers cited by CBD are low-level MMPA Level B harassment from
remote or non-invasive procedures that are considered not likely to
adversely affect listed species pursuant to the ESA (i.e., no
associated take under the ESA is either expected to occur or exempted
for those specific activities).
Regarding the comprehensive evaluation and minimization of
permitted takes, we reference the analysis that has already been
completed through NMFS' 2019 Biological and Conference Opinion on the
Proposed Implementation of a Program for the Issuance of Permits for
Research and Enhancement Activities on Cetaceans in the Arctic,
Atlantic, Indian, Pacific, and Southern Oceans (NMFS, 2019), which
determined that the research and enhancement takes permitted by the
program would not jeopardize the existence of any of the affected
species. As part of our programmatic framework for permitting directed
take of ESA species, the Permits and Conservation Division will
continue to closely evaluate the number and manner of CIBW takes
requested by each applicant, how the proposed research ties to recovery
plan goals, and the collective number of authorized and requested takes
to consider the potential cumulative impact of the activities to the
population. Each directed take annual report is reviewed to understand
how authorized takes were actually used and to closely monitor the
impacts that permitted research methods are having on the target
animals.
Regarding the incidental takes authorized for 2020, those takes
represent instances of exposure above the Level B harassment threshold
that could occur within a day. In other words, if those approximately
130 takes were assumed to be 130 separate individual whales, it would
mean that those individual whales were each behaviorally disturbed on
one day in that year. The more likely scenario is that some of those
130 exposures were takes of the same whale on a few different days, and
in fact a lesser number of individuals were taken, but still on only a
few days within a year. In all cases, the necessary findings under MMPA
and ESA were made prior to the authorization of the take.
Neither the MMPA nor NMFS' codified implementing regulations call
for consideration of the take resulting from other activities in the
negligible
[[Page 2837]]
impact analysis. The preamble for NMFS' implementing regulations (54 FR
40338, September 29, 1989) states, in response to comments, that the
impacts from other past and ongoing anthropogenic activities are to be
incorporated into the negligible impact analysis via their impacts on
the baseline. Consistent with that direction, NMFS has factored into
its negligible impact analysis the impacts of other past and ongoing
anthropogenic activities via their impacts on the baseline (e.g., as
reflected in the density/distribution and status of the species,
population size and growth rate, and other relevant stressors (such as
incidental mortality in commercial fisheries, Unusual Mortality Events
(UMEs), and subsistence hunting); see the Negligible Impact Analyses
and Determinations section of this notice of issuance). The 1989 final
rule for the MMPA implementing regulations also addressed public
comments regarding cumulative effects from future, unrelated
activities. There, NMFS stated that such effects are not considered in
making findings under section 101(a)(5) concerning negligible impact.
In this case, this ITA as well as other ITAs currently in effect or
proposed within the specified geographic region, are appropriately
considered an unrelated activity relative to the others. The ITAs are
unrelated in the sense that they are discrete actions under section
101(a)(5)(D) issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals and will not have an unmitigable adverse impact on the
availability of such species or stocks for taking for subsistence uses.
NMFS' implementing regulations require applicants to include in their
request a detailed description of the specified activity or class of
activities that can be expected to result in incidental taking of
marine mammals (see 50 CFR 216.104(a)(1)). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, the POA was the applicant for the IHA, and we are
responding to the specified activity as described in that application
(and making the necessary findings on that basis). Therefore, setting
limits on the number and types of CIBW takes across all activities in
Cook Inlet would not be an appropriate requirement of an MMPA ITA. The
take estimates NMFS authorizes represent the upper limits for
individuals and some instances of take may represent multiple exposures
to a single individual.
Separately, setting blanket take limits may not be meaningful, as
the nature and intensity of impacts from a given activity can vary
widely. For example, an animal exposed to noise levels just above our
harassment threshold in a non-critical area may experience a small
behavioral change with no biological consequence while an animal
exposed to very loud noise levels (but lower than levels that would
result in a permanent threshold shift (PTS)) in an area where active
critical foraging occurs could result in behavioral changes that may be
more likely to impact fitness. While both of these examples would be
characterized as Level B harassment, the resulting impact on the
population could be different. Context differences such as these are
analyzed in our negligible impact analysis for each application under
the MMPA.
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated (1) that we would consider cumulative
effects that are reasonably foreseeable when preparing a National
Environmental Policy Act (NEPA) analysis, and (2) that reasonably
foreseeable cumulative effects would also be considered under section 7
of the ESA for ESA-listed species, as appropriate. Accordingly, NMFS
has written an Environmental Assessment (EA) that addressed cumulative
impacts of the NES1 project and all past, present and reasonably
foreseeable future actions. Additionally, the NMFS Alaska Regional
Office issued a BiOp on December 15, 2023, under section 7 of the ESA,
on the issuance of an IHA to the POA under section 101(a)(5)(D) of the
MMPA by the NMFS OPR that independently considered the reasonably
foreseeable cumulative effects of activities on ESA-listed species.
Comment 4: The CBD asserts that NMFS's negligible impact
determination is arbitrary and capricious and that the specified
activities would have greater than a negligible impact on CIBWs. The
CBD claims that NMFS failed to substantiate its assumption that impacts
are negligible because CIBWs remained in the area during similar
construction activities and that NMFS underestimated the impacts of
pile driving on CIBWs. They state that pile driving threatens marine
mammals by potentially displacing them from key foraging habitat,
causing hearing loss, masking communications, and interfering with
natural behaviors. They cite several studies regarding behavioral
responses of marine mammals to pile driving.
Response: NMFS disagrees with the CBD's claim that NMFS failed to
substantiate our assumptions that impacts to CIBWs are negligible in
our determination. In the Negligible Impact Analysis and Determination
section of the Federal Register notice of the proposed IHA (88 FR
76576, November 6, 2023) and this notice of issuance, we describe how
the take estimated and authorized for the NES1 project will have a
negligible impact on all of the affected species, including CIBWs (as
discussed above). We discussed how this determination is based upon the
authorized number of CIBWs that might be exposed briefly during the 110
nonconsecutive days of activity, the low level of behavioral harassment
that might result from an instance of take that could occur within a
year, and the likelihood that the mitigation measures required further
lessen the likelihood of exposures. NMFS has considered the status of
CIBWs in its analysis, as well as the importance of reducing impacts
from anthropogenic noise, but nonetheless, there is no evidence that
brief exposure to low level noise causing Level B harassment would have
a greater than negligible impact on CIBWs.
NMFS' negligible impact finding considers a number of parameters
including, but not limited to, the nature of the activities (e.g.,
duration, sound source), effects/intensity of the taking, the context
of takes, and mitigation. For CIBWs, NMFS' finding did account for data
demonstrating that CIBWs are not discouraged from entering Knik Arm and
traveling to critical foraging grounds to the north when pile driving
activities, such as those proposed by NES1, are occurring (e.g., 61N
Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard, 2022),
but it also relied on other data that show at most, low-level
behavioral responses of CIBWs to pile driving activities. For example,
during the POA's PCT and South Floating Dock (SFD) pile driving
activities, CIBWs were more likely to display no reaction or to
continue to move towards the POA during pile installation and removal
(61N Environmental, 2021, 2022a, 2022b). In situations during which
CIBWs showed a possible reaction to pile driving, individuals were
observed either moving away from the pile driving activities or
increasing their rate of travel (61N Environmental, 2021, 2022a,
2022b). Other behavioral responses observed in relation to pile driving
activities include moving silently
[[Page 2838]]
through the area, decreased sighting durations, and the formation of
more cohesive groups (Kendall and Cornick, 2015).
NMFS understands that marine mammals will have varying responses to
elevated noise levels resulting from pile driving activities such as
masking of communication and foraging signals, avoidance behaviors, and
more. However, NMFS disagrees with CBD that we have underestimated the
impacts of pile driving on beluga whales. Marine mammal data collected
at the POA during pile driving activities, as described above, provides
evidence that effects of pile driving on CIBWs will be limited to
temporary modifications in behavior such as increased swim speeds,
tighter group formations, and cessation of vocalizations, but not
through the loss of foraging capabilities or abandonment of habitat.
Further, while masking of CIBW signals can have a profound impact on
the communication of CIBWs (e.g., Brewer et al., 2023), the short-term
duration and limited areas affected by the NES1 project make it very
unlikely that the fitness of individual marine mammals would be
impacted. In addition, the frequency range of pile driving activities
is typically below 1 kHz (Richardson et al., 1995), which is below the
peak frequencies for many CIBW communication signals (Brewer et al.,
2023). Therefore, while expected impacts to CIBWs from the NES1 project
are considered Level B harassment events, they are events with
relatively little consequence for individuals in terms of energetic
effects or foregone opportunities to engage in important foraging or
social behaviors.
While exposure to elevated noise levels associated with the NES1
project may result in low-level behavioral changes in CIBWs, NMFS'
review of the best available scientific evidence, as summarized and
cited herein, demonstrates that these responses do not rise to the
level of having adverse effects on the reproduction or survival of
CIBWs. CBD provides no evidence to the contrary. Therefore, NMFS has
appropriately concluded that the activity will have a negligible impact
on the CIBW population.
Comment 5: The CBD expressed concern regarding the take estimates
for CIBWs proposed by NMFS. They state that the take estimates fail to
explain how pods of animals are accounted for and improperly discounts
the estimated CIBW take with a 59 percent adjustment. They suggest that
this supposed failure may result in a higher take than anticipated.
They believe that take should be estimated without considering the
demonstrated efficacy of the proposed mitigation requirements, with
expected benefits of the mitigation requirements being described only
separately.
Response: CBD is concerned that exposure of one pod of whales to
harassment by the construction could exceed the take authorized. They
cite McGuire et al. (2020) which suggests CIBW groups can be between 61
and 313 whales. CBD is correct that there have been large observations
of CIBW pods, and that if one very large pod appeared near the POA
during pile driving activities, it could result in the POA meeting or
exceeding authorized take for this species. However, such large pods
are not expected to be observed near the POA based on the best
scientific information available, including recent marine mammal
monitoring efforts. The mean (median, standard deviation) CIBW group
size observed during the 2020 through 2022 POA and NMFS marine mammal
monitoring efforts in Knik Arm were 4.28 (3, 4.86) whales (61N
Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard, 2022).
Further, the 95 percentile group size of CIBWs observed during these
years was 12.30 individuals. This means that of the 495 documented CIBW
groups in these data sets, 95 percent consisted of fewer than 12.3
whales; 5 percent of the groups consisted of more than 12.3 whales.
Lastly, the largest group observed during these efforts was 53
individuals. Therefore, NMFS believes that the 72 takes by Level B
harassment authorized for CIBW during the authorized one-year period
adequately accounts for the possibility of the POA taking multiple pods
(or groups) of CIBWs.
The CBD stated that the 59 percent adjustment is ``based on one
data point'' from the PCT project monitoring program. This is
incorrect. As described in the Estimated Take sections of the Federal
Register notice of the proposed IHA (88 FR 76576, November 6, 2023) and
this notice of issuance, this adjustment was calculated by including
data from all observations from April to November for each year of the
PCT project, the same time frame over which the POA will be conducting
the NES1 project. Between the two phases of the PCT project, 90 total
Level B harassment takes were authorized and 53 were potentially
realized (i.e., 53 CIBWs were observed within estimated Level B
harassment zones), equating to an overall percentage of 59 percent
(Note that simple occurrence within the estimated harassment zone in
and of itself does not demonstrate that a take has occurred). In our
calculations for estimating CIBW take in the Estimated Take sections of
the Federal Register notice of the proposed IHA (88 FR 76576, November
6, 2023) and this notice of issuance, NMFS did preliminarily calculate
take for CIBWs without the 59% adjustment (i.e., 122 instances of
take). However, we disagree with the CBD that the adjustment for
mitigation requirements should be described separately and not be
considered in the take estimation. This 59% adjustment is based on the
effectiveness of monitoring during the PCT Phase 1 and PCT Phase 2
projects, which most accurately reflect the current POA marine mammal
monitoring program, the current program's effectiveness, and CIBW
occurrence in the proposed project area. It is anticipated that the POA
monitoring program during the NES1 project will be similar to that of
the program implemented during the PCT project. Therefore, NMFS has
determined that it is appropriate to include the adjustment in our
calculation of authorized take.
Comment 6: The CBD assert that the root mean square (RMS)
thresholds of 120-decibels (dB) referenced to 1 micropascal (re
1[mu]Pa) for continuous and 160 dB re 1[mu]Pa for impulsive or
intermittent sources are insufficiently conservative to protect CIBWs.
They cite Mooney et al. (2018), which suggests that wild beluga whales
have highly sensitive hearing. They state that, at a minimum, NMFS
should use a 120-dB threshold for all sound sources.
Response: NMFS disagrees that we should apply a 120-dB threshold
for Level B harassment from all sound sources based on beluga hearing
sensitivity. First, we provide here some necessary background on
implementation of acoustic thresholds. NMFS has historically used
generalized acoustic thresholds based on received levels to predict the
occurrence of behavioral disturbance rising to the level of Level B
harassment, given the practical need to use a relatively simple
threshold based on information that is available for most activities.
Thresholds were selected largely in consideration of measured avoidance
responses of mysticete whales to airgun signals and to industrial noise
sources, such as drilling. The selected thresholds of 160-dB RMS sound
pressure level (SPL) and 120-dB RMS SPL, respectively, have been
extended for use for estimation of behavioral disturbance rising to the
level of Level B harassment associated with noise exposure from sources
associated with other common activities.
[[Page 2839]]
Sound sources can be divided into broad categories based on various
criteria or for various purposes. As discussed by Richardson et al.
(1995), source characteristics include strength of signal amplitude,
distribution of sound frequency and, importantly in context of these
thresholds, variability over time. With regard to temporal properties,
sounds are generally considered to be either continuous or transient
(i.e., intermittent). Continuous sounds, which are produced by the
industrial noise sources (such as vibratory pile driving) for which the
120-dB behavioral threshold was selected, are simply those for which
sound pressure levels remain above background sound during the
observation period (ANSI, 2005). Intermittent sounds are defined as
sounds with interrupted levels of low or no sound (NIOSH, 1998). Simply
put, a continuous noise source produces a signal that continues over
time, while an intermittent source produces signals of relatively short
duration having an obvious start and end with predictable patterns of
bursts of sound and silent periods (i.e., duty cycle) (Richardson and
Malme, 1993). It is this fundamental temporal distinction that is most
important for categorizing sound types in terms of their potential to
cause a behavioral response. For example, Gomez et al. (2016) found a
significant relationship between source type and marine mammal
behavioral response when sources were split into continuous (e.g.,
shipping, icebreaking, drilling) versus intermittent (e.g., sonar,
seismic, explosives) types. In addition, there have been various
studies noting differences in responses to intermittent and continuous
sound sources for other species (e.g., Neo et al., 2014; Radford et
al., 2016; Nichols et al., 2015).
Given the existing paradigm--dichotomous thresholds appropriate for
generic use in evaluating the potential for behavioral disturbance
rising to the level of Level B harassment resulting from exposure to
continuous or intermittent sound sources--the CBD does not explain why
potential harassment from an intermittent sound source (i.e., impact
pile driving) should be evaluated using a threshold developed for use
with continuous sound sources. As we have stated in prior responses to
this recommendation, consideration of the preceding factors leads to a
conclusion that the 160-dB threshold is more appropriate for use for
intermittent sources such as impact pile driving than the 120-dB
threshold.
Further, any dB-based threshold itself is a step-function approach
(i.e., animals exposed to received levels above the threshold are
considered to be ``taken'' and those exposed to levels below the
threshold are not); but, in reality, it is in fact intended as a sort
of mid-point of likely behavioral responses (which are extremely
complex depending on many factors including species, noise source,
individual experience, and behavioral context). What this means is
that, conceptually, the function recognizes that some animals exposed
to levels below the threshold will in fact react in ways that are
appropriately considered take, while others that are exposed to levels
above the threshold will not. Use of a specific dB threshold allows for
a simplistic quantitative estimate of take, while we can qualitatively
address the variation in responses across different received levels in
our discussion and analysis.
Lastly, NMFS has acknowledged that the scientific evidence
indicates that certain species are, in general, more acoustically
sensitive than others. In particular, harbor porpoise and beaked whales
are considered to be behaviorally sensitive, and it may be appropriate
to consider use of lower Level B harassment thresholds for these
species. Beluga whales have been observed to have sensitive hearing
(<80 dB) in the frequency range of 16 to 100 kilohertz (kHz) (Mooney et
al., 2018). However, noise from pile driving activities is typically
below 1 kHz (Richardson et al., 1995), well outside this sensitive
hearing range. Therefore, based on the best available science (i.e.,
Mooney et al., 2018), sensitivity in CIBW hearing does not support the
application of a 120-dB threshold for Level B harassment from all pile
driving sound sources. NMFS is currently engaged in an ongoing effort
to develop updated guidance regarding the effects of anthropogenic
sound on marine mammal behavior, and in this effort NMFS is considering
this issue for assessing Level B harassment. However, until this work
is completed and new guidelines are identified (if appropriate), NMFS
will continue using the historical Level B harassment thresholds (or
derivations thereof) and will appropriately evaluate behavioral
disturbance rising to the level of Level B harassment due to
intermittent sound sources relative to the 160-dB threshold.
Comment 7: CBD states that NMFS should undertake the analysis using
the framework provided by Southall et al. (2023) to determine the
vulnerability of marine mammals to noise disturbance.
Response: Southall et al. (2023) present an analytical framework
for assessing the relative risk of anthropogenic disturbances, such as
those resulting from noise, on marine vertebrates. This framework is
based on both species-specific `vulnerability' (which accounts for
population, life history, auditory communication systems, and
environmental factors) and species-specific and scenario-specific
`severity' (which includes population modeling methods for acute
(short-term, project specific) exposure events) and a spatial-temporal-
spectral algorithm for estimating a disturbance magnitude metric from
aggregate events (long-term, multiple years, and or multiple projects).
For each species and exposure scenario, a vulnerability and severity
risk rating are computed, which allows for the assessment of the
overall risk of each scenario for each species. Lastly, in this
framework a subjective consideration of confidence in the risk
assessment scores is provided. The Southall et al. (2023) framework has
been used to model results from the construction and operation of wind
farms and seismic surveys.
While the framework presented by Southall et al. (2023) is a useful
tool for evaluating risk of marine mammals to exposure events, such as
pile driving activities, it is intended to be used as a complementary
tool to use when implementing marine policies. It is ``not intended to
replicate or supersede current regulatory guidelines for auditory or
behavioral impact'' (Southall et al., 2023). Furthermore, the framework
presented by Southall et al. (2023) does not estimate defined impacts
such as injury (equivalent to Level A harassment) or behavioral
disturbance (equivalent to Level B harassment) that would inform take
estimates. In the Federal Register notice of the proposed IHA (88 FR
76576, November 6, 2023) and this notice of issuance, NMFS discusses
the anticipated impacts of the NES1 project activities in the context
of species status, which included an assessment of species population
trends, life history traits, auditory communication systems, and
environmental factors as well as estimated impacts of project
activities. Thus, for this action, NMFS has determined that the
application of the framework proposed by Southall et al. (2023) would
not provide meaningful additive information in our assessment of take
or in our negligible impact determination, and therefore, we do not
apply it here.
Comment 8: The CBD states that NMFS' negligible impact
determination fails to adequately consider adverse impacts to CIBW
critical habitat and biologically important areas (BIAs). In addition,
they assert that the proposed NES1 project does not avoid or impose
[[Page 2840]]
any specific mitigation for the year-round CIBW BIA.
Response: In our analysis, NMFS considered the potential for
impacts to CIBWs and their habitat in general (see the Potential
Effects of Specified Activities on Marine Mammals and their Habitat
section of the Federal Register notice of the proposed IHA (88 FR
76576, November 6, 2023). The CIBW Recovery Plan (NMFS, 2016b)
determined that CIBWs having waters that do not restrict passage within
or between critical habitat areas and having waters with in-water noise
levels below levels resulting in abandonment of critical habitat were
essential for the conservation of this species. While some marine
mammals--largely harbor porpoise, which are generally considered as one
of the most behaviorally sensitive marine mammal species--have been
observed to abandon or reduce time spent in preferred habitat during
periods of increased anthropogenic noise (e.g., Wartzok et al., 2003;
Carstensen et al., 2006; D[auml]hne et al., 2012; Forney et al., 2017),
CIBW presence in the project area has persisted during numerous periods
of pile driving, dredging, and other construction activities at the
POA. Previous monitoring data indicates that CIBWs are not abandoning
critical habitat and are able to transit through the project area to
primary foraging areas north of the Port. Instead, they travel more
often and faster past the POA, more quietly, and in tighter groups
(Kendall and Cornick, 2015; 61N Environmental, 2021, 2022a, 2022b).
Moreover, marine mammal monitoring results from the POA and NMFS (e.g.,
61N Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard,
2022) suggest that the areas that are expected to be impacted by noise
during the NES1 project are not particularly important feeding or
calving areas for CIBWs. Rather CIBWs typically transit through the
area adjacent to the POA to foraging areas located to the north (e.g.,
Six Mile Creek, Eagle River, Eklutna River). For these reasons, NMFS
expects the effects that sounds from the NES1 project will have on
these essential features will be small (see NMFS, 2023a).
Concerning BIAs, CBD improperly cited Ferguson et al. (2015) when
referring to the CIBW BIA. This BIA was updated by Wild et al. (2023)
as part of the BIA II effort, which built upon the 2015 study but used
new methodology and structured expert elicitation principles to update
existing BIAs, and identify and delineate new BIAs (see Harrison et
al., 2023). In this new effort, Wild et al. (2023) defined a static,
year-round, small and resident BIA for CIBWs whose boundary is
consistent with NMFS' critical habitat designation, (including
excluding the area adjacent to POA, illustrating that the area is of
low value) (Wild et al., 2023).
In regards to specific mitigation requirements for this year-round
BIA, the proposed IHA does include a measure that requires the POA to
make all practicable efforts to complete construction activities
between April and July when CIBWs are typically found in lower numbers
near the POA. However, due to the design of the existing sheet pile
wall, the need for demolition to occur in a sequential manner to
prevent structural failure, and uncertainty regarding construction
progress until work is initiated, the POA cannot commit to restricting
pile driving to these months. Given that the location and sequencing of
the activity cannot be changed, NMFS has prescribed mitigation measures
that affect the least practicable adverse impact on the stock. CBD did
not provide a specific recommendation for NMFS to consider.
Comment 9: The CBD stresses that NMFS should have analyzed the
potential impact on feeding of preferred prey in making its negligible
impact determination.
Response: NMFS provided this information in the Acoustic Impacts
section of the Federal Register notice of the proposed IHA (88 FR
76576, November 6, 2023), and provides additional discussion in the
Negligible Impact Analysis and Determination section for CIBWs of this
notice. In summary, the habitat near the POA is not typically
considered high quality foraging habitat for CIBWs and feeding is not a
predominant behavior observed in CIBWs near the POA. Further, there is
no evidence to suggest that CIBWs are restricted in transiting between
preferred feeding areas during pile driving activities (e.g., 61N
Environmental, 2021, 2022a, 2022b, 2022c; Easley-Appleyard and Leonard,
2022). Lastly, any impacts to preferred prey are anticipated to be
temporary, and most likely limited to fish avoiding the action area.
Comment 10: The CBD postulates that NMFS' small numbers
determination is flawed because the amount of take proposed to be
authorized is greater than 12 percent of the CIBW population and that
NMFS' definition of small numbers ``conflates this criterion with the
negligible impact requirement.'' CBD claims the incidental harassment
authorization here violates the MMPA because it does not guarantee that
only small numbers of CIBWs and other marine mammals impacted by the
POA's activities will be taken.
Response: CBD suggests that by defining small numbers to be
relative to the overall population the criterion ends up being similar
to the negligible impact finding and that Congress's intent was that
the MMPA protect not only populations, but individual marine mammals.
We disagree that our small numbers finding is conflated with our
negligible impact finding. While ``small numbers'' is simply a percent
of the population, our negligible impact finding considers a number of
parameters including, but not limited to, the nature of the activities
(e.g., duration, sound source), effects/intensity of the taking, the
context of takes, and mitigation.
The reference to a take limit of 12 percent for small numbers comes
from a 2003 district court opinion (Natural Resources Defense Council
v. Evans, 279 F.Supp.2d 1129 (N.D. Cal. 2003)). However, given the
particular administrative record and circumstances in that case,
including the fact that our small numbers finding for the challenged
incidental take rule was based on an invalid regulatory definition of
small numbers, we view the district court's opinion regarding 12
percent as dicta.
In NMFS' Final Rule for taking of marine mammals incidental to
geophysical surveys in the Gulf of Mexico (86 FR 5322, January 19,
2021), NMFS fully describes its interpretation and implementation of
``small numbers''. Included as part of that discussion, NMFS explains
the concept of ``small numbers'' in recognition that there could also
be quantities of individuals taken that would correspond with
``medium'' and ``large'' numbers. As such, NMFS has established that
one-third of the most appropriate population abundance number--as
compared with the assumed number of individuals taken--is an
appropriate limit with regard to ``small numbers.'' This relative
approach is consistent with the statement from the legislative history
that ``[small numbers] is not capable of being expressed in absolute
numerical limits'' (H.R. Rep. No. 97-228, at 19 (September 16, 1981)),
and relevant case law (Center for Biological Diversity v. Salazar, 695
F.3d 893, 907 (9th Cir. 2012) (holding that the U.S. Fish and Wildlife
Service reasonably interpreted ``small numbers'' by analyzing take in
relative or proportional terms)).
As described in the Small Numbers section of the Federal Register
notice of the proposed IHA (88 FR 76576, November 6, 2023) and this
notice of
[[Page 2841]]
issuance, NMFS is authorizing take of less than 2 percent for eight
stocks and 22 percent for one stock (i.e., CIBWs) and based on this
analysis, NMFS finds that small numbers of marine mammals will be taken
relative to the population size of the affected species or stocks.
Comment 11: CBD asserts that NMFS relies on visual monitoring
measures that it claims are ``known to be ineffective and inadequate''
to protect marine mammals.
Response: NMFS disagrees the mitigation and monitoring measures
included in this authorization are ineffective and inadequate and CBD
does not provide additional information to support their claim. The IHA
requires a minimum of two Protected Species Observer (PSO) stations,
and that at each station, at least two PSOs must be on watch at any
given time. Further, the PSO stations must be located so that the PSOs
can fully monitor the shutdown zones and call for activities to be
delayed when CIBWs are entering or observed within the Level B
harassment zones. The POA has a demonstrated history of successfully
implementing a rigorous monitoring program during recent construction
projects in Knik Arm (i.e., PCT and SFD), and monitoring data from
these projects provides evidence that their PSOs are capable of
observing belugas out to 11,057-m from the NES1 project site. This
distance is dependent on several factors such as visual acuity, sea
state, glare, animal behavior/body type, speed of travel for vessel and
animal, etc.; but this demonstrates that it is possible for PSOs to
detect and identify marine mammals to the species level several km from
the source, including CIBWs. In addition, Easley-Appleyard and Leonard
(2022) reported that PSOs who worked for the PCT monitoring program
expressed that they were effective at detecting CIBWs from two
monitoring stations despite occasional challenges related to the timing
of the detection and the ability to track multiple CIBW groups.
The majority of the work for this project will be the vibratory
removal of sheet piles, which has an estimated Level B harassment
distance of 1,954-m. The largest zones will be associated with the
installation and removal of the temporary steel pipe piles, which could
have estimated Level B harassment zones up to 6,861-m. These distances
are well within the distances that PSOs at the POA have effectively
detected CIBWs as described above. Further, there are mitigation
measures preventing pile driving from occurring if visibility in any
portion of the shutdown zone (i.e., the Level B harassment zone for
CIBWs) is obscured by weather or sea state. Therefore, we find the
visual monitoring plan can reasonably be expected to be an effective
tool at detecting marine mammals, ensuring the mitigation measures are
adhered to.
Comment 12: CBD suggests that construction should be restricted
from August through October, and further states that NMFS ``should also
consider time area restrictions that would further mitigate impacts to
beluga whales and other marine mammals,'' though it provides no
recommendations.
Response: Time-area restrictions were considered for this project,
in addition to the PSO requirements. We note that August through
November are months with high CIBW abundance, and NMFS expects that the
POA will likely have to shut down pile driving activities more
frequently during that time period due to the increased presence of
CIBWs in Knik Arm. NMFS is requiring the POA to complete in-water work
as early in the construction season as is practicable. However, the
design of the existing sheet pile wall, the safety requirements of the
demolition sequencing, and the likely highly adaptive nature of the
field work once construction commences do not allow NMFS to practicably
restrict pile driving to any specific time periods or areas (e.g., only
allowing pile driving April through July). Furthermore, there are
potential consequences of pausing or delaying the construction season,
including de-rating the structural capacity of the existing docks, a
shutdown of dock operations due to deteriorated conditions, or an
actual collapse of one or more dock structures. The potential for
collapse increases with schedule delays, due to both worsening
deterioration and the higher probability of a significant seismic event
occurring. Any of these scenarios could have dire consequences for the
populations of Anchorage and Alaska who are served by the POA. In this
context, NMFS has determined that the current mitigation and monitoring
measures affect the least practicable adverse impact on marine mammal
species and stocks.
Comment 13: CDB states that NMFS failed to consider other
mitigation measures to reduce the proposed activities' impacts to the
least practicable level such as bubble curtains placement
configurations, pile caps, physical barrier technologies, such as
dewatered cofferdams, passive acoustic monitoring (PAM), and sound
source verification (SSV) studies.
Response: CBD does not provide any specific information
contradicting NMFS' determinations concerning whether these measures
should be included in the suite of mitigation requirements determined
to provide the means of effecting the least practicable adverse impact
on the affected species or stocks of marine mammals. CBD states that
bubble curtains were required for previous POA pile driving activities,
and recommends that one could be placed beyond the construction area
for the NES1 site due to spacing and safety concerns. They also state
that NMFS could consider other noise mitigation technologies such as
pile caps, dewatered cofferdams, and other physical barrier mitigation.
CBD is correct that NMFS has required the POA to use bubble curtains
for other POA pile driving activities. During construction of the PCT,
two different types of bubble curtain systems were utilized, confined
bubble curtain systems and unconfined bubble curtain systems. Both
bubble curtain systems were expensive to construct, maintain, and
repair. It was necessary to build several versions of each model for
each pile size in case of damage and so that two or more piles could be
simultaneously staged and prepared for installation, which was done in
an effort to save time. Both bubble curtain systems were time-consuming
to deploy and retrieve, adding an average of 6 hours (confined) and 4
hours (unconfined) of deployment and retrieval time to each pile. Thus,
as described in the Proposed Mitigation section of the Federal Register
notice of the proposed IHA (88 FR 76576, November 6, 2023), adding a
requirement for a bubble curtain may hinder production of the NES1
project, which could push the in-water construction schedule further
into the late summer months, which are known for higher CIBW abundance
in lower Knik Arm, thus lengthening the duration of potential
interactions between CIBW and in-water works. Lastly, data from prior
SSV studies conducted during the PCT project (i.e., Illingworth &
Rodkin (I&R), 2021a, 2022b), yielded mixed results regarding the
efficacy of bubble curtains for use with vibratory hammers (which makes
up the majority of the NES1 project). Therefore, a requirement to use
bubble curtains in this case (aside from the cost and safety concerns)
would likely have a detrimental impact over the full scope of the
project.
Further, dredging associated with the NES1 project will frequently
require barges and vessels to maneuver through the area between the
sheet pile face and the disposal area located in the middle of Knik
Arm. Additional barges to stage
[[Page 2842]]
air compressors for a bubble curtain would add multiple anchor lines
that would present a logistical challenge to the frequent vessel
transit and increase the risk of a safety incident, particularly if
there were to be an uncontrolled release of sediments from a structure
collapse. Additional vessels, air compressors, and crew also increase
the cost and potential negative impacts of the project. The POA
believes this combination of logistical challenges, time requirements,
and safety considerations make it impractical for the POA to use a
bubble curtain for this project. NMFS has considered input from the
POA, as well as other information, and concurs that use of bubble
curtains is not practicable in this case. Additional information
regarding practicability and efficacy concerns with using bubble
curtains during the NES1 project were included in the Proposed
Mitigation section of the Federal Register notice of the proposed IHA
(88 FR 76576, November 6, 2023) and the Mitigation section of this
notice.
Pile cap cushions are commonly used in conjunction with an impact
hammer to reduce stress on a pile during hammer blows. Their efficacy
as an underwater sound attenuation measure during pile installation
remains uncertain. There are safety and logistical concerns with the
use of a pile cap cushion as they have been known to combust from the
friction created during impact pile driving. The NES1 project does not
involve the installation of piles using an impact hammer. Pile cap
cushions are not compatible with vibratory pile installation or
removal, or with sheet pile installation or removal. Therefore, the
inclusion of pile caps is not a feasible option for this project.
Other physical barrier technologies, such as dewatered cofferdams,
would substantially increase project risks, construction schedule and
costs. Cofferdams are typically sheet pile structures supported by
cylindrical steel piles that would require installation and removal of
temporary sheet and cylindrical piles along the entire length of the
NES1 face sheets, which would increase potential impacts on CIBWs and
other marine species. Other physical barriers installed into Knik Arm
would also need to be engineered to a level to resist the tidal forces
of Knik Arm, and would likely require pile supports, increasing
impacts, duration, and cost. Thus, NMFS has determined that the
recommendation of applying other physical barriers to mitigate noise
from construction activities is not an appropriate addition to the
required suite of mitigation measures for the NES1 project.
In addition, the CBD states that NMFS should require PAM for marine
mammals. The use of PAM for real-time mitigation purposes has been used
in Cook Inlet for some studies. These efforts have generally not
resulted in successful deployment of PAM or useful detections of marine
mammals to inform mitigation and monitoring during the activities due
to the environmental conditions of the region. For example, a real-time
PAM system implemented as part of the 2012 Apache 3D seismic survey
program in lower- and mid-Cook Inlet only yielded six confirmed marine
mammal detections. One of these detections was of a CIBW, however, it
did not result in a shutdown procedure (Lomac-MacNair et al., 2013).
Similarly, a real-time PAM program was required in the IHA for the 2015
SAExploration 3D seismic program. This program only detected 15 marine
mammal detections (including 2 from CIBWs) over 310 hours. For these
reasons, we have determined PAM is not likely to be sufficiently
effective at detection for real-time mitigation for the POA's
construction activities and, therefore, is not included in the IHA.
Researchers have begun to implement more effective passive acoustic
monitors for research purposes at several places in Cook Inlet (e.g.,
Castellote et al., 2020). However, the framework used by those
researchers is impractical, particularly for the POA's planned
activity. An article on NOAA's website (<a href="https://www.fisheries.noaa.gov/science-blog/beluga-whale-acoustic-monitoring-survey-post-3">https://www.fisheries.noaa.gov/science-blog/beluga-whale-acoustic-monitoring-survey-post-3</a>)
illustrates the level of customization, expertise, and difficulty
required to assemble a passive acoustic mooring to then deploy in the
Inlet. Additionally, these instruments are stationary, which means to
effectively use these monitors as a means of avoiding harassment of
marine mammals during the POA's, the POA would need to build and
successfully deploy dozens (or more) of stationary monitors along a
route of travel that is subject to change depending upon weather or
other environmental and shipping restrictions. Additionally, the data
stored on these types of moorings is not accessible until they are
retrieved by the researcher who deployed them. In the future, if an
established network of passive acoustic monitors with shared access to
the data is available, this could be a useful tool for implementing
mitigation measures, but is currently not practicable. NMFS looks
forward to advances in technology that could make real-time PAM a
practicable mitigation measure in these areas in the future.
Lastly, CBD recommends that NMFS should require that in-situ SSV
studies be conducted to ensure that the Level A and Level B harassment
zones are sufficient. Lessons learned from prior SSV studies carried
out at the POA (e.g., I&R, 2021a, 2022b) indicate that Knik Arm is a
very challenging environment to collect high quality acoustic data
usable by NMFS, the POA, and others due to the presence of strong tidal
currents, which can create substantial flow noise in recordings, and
prevalent anthropogenic noise, which can mask acoustic signals of
interest. Specifically during the NES1 project, multiple barges, tugs,
and other support vessels, which can obscure signals of interest, will
be within the action area at all times during the project. Further,
active dredging and removal of above-water soils, and vessels with
generators running will be present at all times. While both the POA and
NMFS believe sound source data would be valuable, this measure is not
practicable given the known challenges of the area.
Comment 14: CBD asserts that NMFS should require larger exclusion
zones.
Response: CBD did not provide any additional information for NMFS
to consider to support this recommendation. The exclusion zones
proposed in the Federal Register notice of the proposed IHA (88 FR
76576, November 6, 2023) (referred to as shutdown zones) are equivalent
to the estimated Level B harassment zone for CIBWs. This is consistent
with shutdown zones required in other recent ITAs issued to the POA for
construction activities at the Port including the PCT (85 FR 19284,
April 6, 2020) and SFD (86 FR 50057, September 7, 2021) projects, which
resulted in the number of CIBWs occurring within estimated harassment
zones being 59 percent and 7 percent of the authorized take for each
project, respectively. Therefore, NMFS disagrees that the final IHA
should include larger exclusion zones and requires the exclusion zones
proposed in the Federal Register notice of the proposed IHA (88 FR
76576, November 6, 2023) in the final IHA.
Comment 15: The CBD asserts that a 1-year renewal should require
new permitting and programmatic analysis of impacts.
Response: NMFS disagrees with this assertion. NMFS' IHA Renewal
process meets all statutory requirements. All IHAs issued, whether an
initial IHA or a Renewal IHA, are valid for a period of not more than
1-year. Renewal IHAs are limited to another year of identical or nearly
identical activities in the same location or the same activities that
were not completed within the 1-year period
[[Page 2843]]
of the initial IHA. Should a Renewal request be made, additional
documentation would be required from the POA that NMFS would make
publicly available and would use to verify that the activities are
identical to those in the initial IHA, are nearly identical such that
the changes would have either no effect on impacts to marine mammals or
decrease those impacts, or are a subset of activities already analyzed
and authorized but not completed under the initial IHA. NMFS would also
confirm, among other things, that the activities would occur in the
same location; involve the same species and stocks; provide for
continuation of the same mitigation, monitoring, and reporting
requirements; and that no new information had been received that would
alter the prior analysis. If new information has been received that
would alter the prior analysis, that information would be analyzed in
the notice of the proposed Renewal IHA. A Renewal request would also
contain a preliminary monitoring report, specifically to verify that
effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. Any Renewal request is subject to an
additional 15-day public comment period that provides the public an
opportunity to review these few documents, provide any additional
pertinent information and comment on whether they think the criteria
for a Renewal have been met. Between the initial 30-day comment period
on these same activities and the additional 15 days, the total comment
period for a Renewal is 45 days.
In addition to the IHA Renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress' intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for Renewals in the regulations, description of the process
and express invitation to comment on specific potential Renewals in the
Request for Public Comments section of each proposed IHA, the
description of the process on NMFS' website, further elaboration on the
process through responses to comments such as these, posting of
substantive documents on the agency's website, and provision of 30 or
45 days for public review and comment on all proposed initial IHAs and
Renewals respectively, NMFS has ensured that the public ``is invited
and encouraged to participate fully in the agency decision-making
process.''
Regarding a programmatic analysis, we refer to our response to
Comment 3.
Comment 16: CBD asserts that the proposed activities will have an
unmitigable adverse impact on subsistence uses. CBD states that the
proposed activities may have an adverse impact on the availability of
beluga whales, harbor seals, and Steller sea lions for Native Alaskan
subsistence harvest. They also state that the IHA should require
consultation with Native Alaskan communities to ensure adequate
mitigation for subsistence harvest for harbor seals and Steller sea
lions.
Response: The POA sent letters to and conducted follow-up calls
with the Kenaitze, Tyonek, Knik, Eklutna, Ninilchik, Salamatof, and
Chickaloon Tribes informing them of the proposed project (i.e., timing,
location, and features), the availability of the notice of proposed IHA
for public comment, and inquiring about any marine mammal subsistence
concerns they have. The POA also explained the measures that have been
taken or will be taken to minimize any adverse effects of NES1 on the
availability of marine mammals for subsistence uses. No Tribes or
affected subsistence communities/users expressed concern over
subsistence use during the 30-day public comment period for the
proposed IHA. One letter was received from Eklutna Inc. requesting that
Alaska Native residents with traditional knowledge about marine mammals
and the local marine environment be involved in the monitoring and
support roles related to the project (i.e., as PSOs) (see Comment 22
Response), but it did not suggest concerns regarding unmitigable
adverse impact on subsistence uses. The POA adequately communicated
with representative Alaska Native subsistence users and Tribal members
to ensure any concerns they had regarding marine mammal subsistence
uses would be addressed, hence fulfilling any requirements provided by
the MMPA.
Overall, there is little subsistence use of marine mammals near the
project area. There has been no subsistence harvest of CIBWs since 2005
(NMFS, 2022d) and subsistence harvest of other marine mammals in upper
Cook Inlet is limited to harbor seals. Steller sea lions are rare in
upper Cook Inlet; therefore, subsistence use of this species is not
common. Residents of the Native Village of Tyonek are the primary
subsistence users in the upper Cook Inlet area, however no NES1
activities will take place in or near Tyonek's identified traditional
subsistence hunting areas. Additionally, the harvest of marine mammals
in upper Cook Inlet is historically a small portion of the total
subsistence harvest, and the number of marine mammals harvested in
upper Cook Inlet is expected to remain low. The potential impacts from
harassment on stocks that are harvested in Cook Inlet would be limited
to minor behavioral changes (e.g., increased swim speeds, changes in
dive time, temporary avoidance near the POA) within the vicinity of the
POA or slight PTS. NMFS has found that the taking of marine mammals
incidental to the NES1 project would have a negligible impact on the
population, meaning we do not anticipate there to be adverse impacts on
the annual rates of recruitment or survival. Therefore, the taking
would not impede recovery of CIBW for potential future subsistence use.
The full explanation and support for this finding is described further
in the Unmitigable Adverse Impact Determination section of this notice.
NMFS has required rigorous mitigation and monitoring measures in
the IHA to reduce impacts to CIBWs, Steller sea lions, and harbor seals
including shutdown measures at the Level B harassment zone for CIBWs
and Level A harassment zone for harbor seals and Steller sea lions if
pile driving is occurring and an animal enters the zone. These measures
are expected to reduce both the scope and severity of potential
harassment takes by reducing the potential for exposure above
harassment thresholds. In addition to the mitigation measures, the POA
will monitor from elevated platforms at a minimum of two locations
dispersed throughout lower Knik Arm. All stations will have at least
two NMFS-approved observers on-watch at any given time. Therefore,
marine mammal detection effectiveness is expected to be high. In
accordance with our implementing regulations at 50 CFR 216.104(c), we
use the best available scientific evidence to determine whether the
taking by the specified activity within the specified geographic region
will have a negligible impact on the species or stock and will not have
an unmitigable adverse impact on the availability of such species or
stock for subsistence uses. Based on the scientific evidence available,
NMFS determined that the impacts of the authorized take incidental to
pile driving would result in a negligible impact and no unmitigable
adverse impact on availability of marine mammals for subsistence uses.
Comment 17: CBD states that NMFS must prepare a programmatic
environmental impact statement (EIS) for its CIBW take authorizations.
They state that at a minimum, NMFS should analyze the PAMP in a single
NEPA review that considers all cumulative,
[[Page 2844]]
indirect, and direct environmental effects.
Response: For clarity, NMFS' authorization does not ``approve
activities''; that permitting responsibility lies with the United
States Army Corps of Engineers (USACE). Rather, NMFS authorizes
unintentional take of marine mammals incidental to specified
activities. Therefore, under NEPA, NMFS must evaluate the impacts of
our issuance of the ITA to the POA for the NES1 activities.
NMFS originally declared its intent to prepare an EIS for oil and
gas activities in Cook Inlet, Alaska (79 FR 61616, October 14, 2014).
However, in a 2017 Federal Register notice (82 FR 41939, September 5,
2017), NMFS indicated that due to a reduced number of ITA requests in
the region, combined with funding constraints at that time, we were
postponing any potential preparation of an EIS for oil and gas
activities in Cook Inlet. As stated in the 2017 Federal Register
notice, should the number of ITA requests, or anticipated requests,
noticeably increase, NMFS will re-evaluate whether preparation of an
EIS is necessary. Currently, the number of ITA requests for activities
that may affect marine mammals in Cook Inlet is at such a level that
preparation of an EIS is not yet necessary. Nonetheless, under NEPA,
NMFS is required to consider cumulative effects of other potential
activities in the same geographic area, and these are discussed in
greater detail in the Final EA prepared for this issuance of an IHA to
the POA for the NES1 project, which supports our finding that NMFS'
issuance of the POA IHA will not have a significant impact on the human
environment.
CBD assert that NMFS should analyze the PAMP in a single NEPA
review and comment that ``[NMFS] has already segmented analysis of the
[PCT] and [SFD] and, here, the NES1 construction''. NMFS has
appropriately analyzed and captured all past, present and reasonably
foreseeable future actions under NEPA. This includes the projects
associated with the PAMP, which each have independent utility and
require separate authorizations and NEPA analyses. The EAs for each
PAMP activity appropriately analyze the cumulative, indirect, and
direct environmental effects of each specified action. They include an
evaluation of each action's affected area, the scale and geographic
extent of each action, and the degree of cumulative effects on
resources (including the duration of impact, and whether the impacts
were adverse and/or beneficial and their magnitude) under NEPA.
CBD is correct that Federal agencies generally prepare an EIS for a
major Federal action significantly affecting the quality of the human
environment. While CBD acknowledges that significance is determined by
considering the potential affected environment and the degree of the
action (40 CFR 1501.3(b)), CBD argues that if this factor is met, then
the agency must prepare an EIS. CBD further argues that, ``the impacts
on an endangered species like the environmentally and culturally
significant Cook Inlet beluga and its designated critical habitat is
sufficient to trigger a full EIS.'' NMFS disagrees. NMFS can prepare an
EA so long as the record supports the conclusion that potential impacts
are not ``significant'' per 40 CFR 1501.3(b) for the purposes of NEPA.
Based on the information presented in the application and NMFS' Policy
and Procedures for Compliance with the NEPA and Related Authorities
(Companion Manual (CM) for NOAA Administrative Order (NAO) 216-6A)
(NOAA 2017), sections 3 and 7, NMFS' determination to prepare an EA is
appropriate and in compliance with NEPA and 40 CFR 1501.3. NMFS
appropriately signed a Finding of No Significant Impact (FONSI) for the
issuance of the IHA for incidental take associated with the POA's NES1
project in support of this determination. The FONSI concluded that
NMFS' proposed action, the issuance of an IHA to the POA, will not
meaningfully contribute to significant impacts to specific resources,
given the limited scope of NMFS' action and required mitigation
measures. Accordingly, preparation of an EIS for this action is not
necessary.
Comment 18: CBD believes the draft EA for the NES1 project fails to
comply with the requirements of NEPA. They stipulate that the draft EA
fails to consider a reasonable range of alternatives and lacks a
meaningful environmental and cumulative impacts analysis.
Response: In accordance with the NEPA and the Council on
Environmental Quality (CEQ) Regulations, NMFS is required to consider a
reasonable range of alternatives to a Proposed Action, as well as a No
Action Alternative. Reasonable alternatives are viable options for
meeting the purpose and need for the proposed action. The evaluation of
alternatives under NEPA assists NMFS with understanding, and as
appropriate, minimizing impacts through an assessment of alternative
ways to achieve the purpose and need for our Proposed Action.
Reasonable alternatives are carried forward for detailed evaluation
under NEPA while alternatives considered but determined not to meet the
purpose and need are not carried forward. For the purposes of this EA,
an alternative will only meet the purpose and need if it satisfies the
requirements of section 101(a)(5)(D) of the MMPA.
In accordance with NOAA's implementing procedures, the CM for NAO
216-6A, Section 6.B.i, NMFS is defining the No Action alternative as
not authorizing the requested incidental take of marine mammals under
Section 101(a)(5)(D) of the MMPA. This is consistent with our statutory
obligation under the MMPA to either: (1) Deny the requested
authorization; or (2) grant the requested authorization and prescribe
mitigation, monitoring, and reporting requirements. The Preferred
Alternative (i.e., issuance of the IHA) includes mandatory mitigation,
monitoring, and reporting requirements for POA to achieve the MMPA
standard of effecting the least practicable adverse impact on each
species or stock of marine mammal and their habitat, paying particular
attention to rookeries, mating grounds, and other areas of similar
significance. Since NMFS is required to prescribe mitigation to effect
the least practicable adverse impact on marine mammals, mitigation that
reduces impacts on marine mammals is inherently included in Alternative
2 (the proposed action) and is included as part of the analysis of
alternative(s) in the Environmental Consequences chapter in the EA.
NMFS described both the No Action Alternative and Preferred Alternative
in the EA. We have also included an ``Alternatives Considered but
Eliminated from Further Consideration'' section in the final EA that
considered whether other alternatives could meet the purpose and need
while supporting this applicant's proposal to demolish the NES. There
is no requirement under NEPA to consider more than two alternatives, or
to consider alternatives that are substantially similar to other
alternatives or which have substantially similar consequences. NMFS'
range of alternatives is based on the proposed action and the purpose
and need, which are linked to NMFS' authorities under the MMPA. For the
purposes of analysis under NEPA in the EA, an alternative will only
meet the purpose and need if it satisfies the requirements under
section 101(a)(5)(D) of the MMPA. Therefore, NMFS determined that,
based on our authorities and criteria under the MMPA, which included
criteria regarding mitigation measures, appropriate considerations were
applied
[[Page 2845]]
to identify which alternatives to carry forward for analysis.
CBD comments that the environmental and cumulative impacts section
of the EA is not sufficient. CBD asserts that NMFS does not evaluate
what the level of take will have on individual whales or the
population, and fails to take into account any impact to CIBW pods. In
addition, they state that NMFS does not include the most recent
available information regarding the impacts of noise on marine mammals,
and new information about CIBWs. In the draft EA, NMFS described both
the general effects to marine mammals from exposure to noise (e.g.,
pile driving) and scientific literature identifying responses of CIBWs
to pile driving at the POA in Chapter 4 of the EA. This includes, as
described in the Federal Register notice of proposed IHA (88 FR 76576,
November 6, 2023) and in our response to Comment 1, data from several
years of recent scientific monitoring at the POA during previous work
involving pile driving (e.g., Kendall and Cornick, 2016; 61N
Environmental, 2021, 2022a, 2022b, 2022c; Easley-Appleyard and Leonard,
2022). In Chapter 3 of the EA we also describe anticipated impacts on
marine mammal habitat and their prey. We believe these descriptions are
sufficient with regard to the requirements of NEPA and the CEQ
regulations.
NMFS disagrees that we did not include the most recent available
information about noise on marine mammals or new information about
CIBWs. As described above, the EA includes an analysis of CIBW
observations directly in relation to in-water construction, including
pile driving activities from 2020 through 2021 that took place at the
POA (61N Environmental, 2021, 2022a, 2022b, 2022c; Easley-Appleyard and
Leonard, 2022). Chapter 4 of the EA also includes an assessment on the
impacts on marine mammals to noise that includes recent information on
permanent and temporary threshold shifts, avoidance or abandonment
behaviors, changes in vocalizations, and the masking of communication
and foraging signals. The impacts of the NES1 project on marine
mammals, including CIBWs, are expected to represent short-term,
localized, negligible, adverse, direct impacts. For CIBWs, NMFS
anticipates these impacts will manifest as whales moving more quickly
and silently through the area, in more cohesive groups, but not by
habitat abandonment or ceasing traveling through Knik Arm.
CBD also states that the draft EA fails to evaluate the cumulative
impacts of other proposed projects and ongoing activities in Cook
Inlet. In Chapter 4 of the draft EA, NMFS evaluated the cumulative
impacts of the past, present, and reasonably foreseeable future actions
in the action area, including projects associated with PAMP and the
Alaska LNG project, which the CBD mentioned should be included, and
research activities. These instances do not change NMFS' overall
determination regarding the cumulative impacts of the NES1 project on
marine mammals or marine mammal habitat. As stated in the draft EA,
while consideration of activities in sum suggests an increase in
industrialization of Cook Inlet, many of the past, present, and
reasonably foreseeable future actions are spatially and temporally
limited and do not permanently reduce or degrade the habitat available
to marine mammals or their prey species. While the NES1 project would
add an incremental contribution to the combined environmental impacts
of other past, present, and reasonably foreseeable future actions;
those direct and indirect adverse impacts are expected to be mainly
short-term, localized, and minor, as described in the draft EA. None of
the harassment authorized by NMFS in other ITAs would overlap in time
or space with impacts from the NES1 Project.
The CBD postulates that NMFS' consideration of climate change is
inadequate. However, CBD improperly states that the proposed project is
for cement and petroleum. That is incorrect as the proposed project is
for the demolition of portions of the failed NES sheet pile structure
and reconfiguration and realignment of the shoreline within the North
Extension. NMFS considers climate change in its EA. However, as
mentioned above NMFS does not authorize any of the POA's activities but
rather take of marine mammals incidental to the POA's activities. While
changes in environmental conditions due to climate change could result
in prey distribution changes or loss for beluga whales or other marine
mammals, the NES1 project is planned to occur during a 1-year period,
during which time the impacts of climate change on marine mammals are
likely to remain at baseline levels.
Comment 19: CBD states that NMFS must comply with the ESA but
asserts that NMFS should not issue take authorization under the ESA
because such taking would jeopardize the continued existence of CIBWs.
Response: In the Federal Register notice of the proposed IHA (88 FR
76576, November 6, 2023), NMFS indicated that we requested section 7
consultation under the ESA. CBD indicates they believe the proposed
taking would jeopardize the recovery and survival of CIBWs but did not
further explain how they reached this conclusion. NMFS has fully
complied with the ESA. NMFS Alaska Region issued a BiOp on December 15,
2023 concluding that issuance of take, by harassment, of CIBW, humpback
whales (Mexico Distinct Population Segment (DPS) and Western DPS), and
Steller sea lions would not jeopardize the continued existence of those
stocks and the takings would not adversely modify critical habitat. The
full analysis supporting these conclusions can be found in the BiOp
(NMFS, 2023a).
Comment 20: In their letter, CBD stated they did not believe NMFS
should authorize take of CIBWs and other marine mammals but, if NMFS
did take action to do so, we must impose stringent mitigation measures
to ensure the least practicable adverse impact on protected species.
Response: The proposed IHA included a suite of mitigation measures,
which have been carried forward into the final IHA, which NMFS
determined to effect the least practicable adverse impact on marine
mammals, in accordance with the MMPA (see the Mitigation section).
Comment 21: A commenter from Eklutna, Inc. representing the
indigenous Dena'ina people of the Anchorage, Alaska area requested that
Dena'ina individuals from the local area be trained and employed as
NMFS-approved PSOs. They stated that the Dena'ina people possess a
deep-seated knowledge and understanding of the local marine ecosystem,
particularly concerning the marine mammals that NMFS aims to protect
through its monitoring efforts. Given the significance of these species
to their way of life and the potential impacts of the NES1 project, the
commenter proposed that members of their community be actively involved
in the monitoring and support roles related to the project. They
stressed that this initiative would not only ensure effective
monitoring of marine mammals, but also foster a sense of ownership and
participation among the indigenous community in the conservation
efforts.
Response: NMFS agrees that Alaska Native residents with traditional
knowledge about marine mammals and the local marine environment hold
valuable knowledge and skills that are critical to the effectiveness of
a PSO. In the final IHA, NMFS requires at least one PSO to have at
least 1-year of prior experience performing the duties of a PSO during
construction activity
[[Page 2846]]
pursuant to a NMFS-issued ITA or Letter of Concurrence. 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 ITA. For this project, in consideration of valuable traditional
ecological knowledge that many community members hold, PSOs may also
substitute relevant Alaska native traditional knowledge for experience.
Regarding hiring preference for regional residents with traditional
ecological knowledge, NMFS cannot require an IHA-holder to employ
certain individuals, though it does require that an applicant request
NMFS approval for all PSOs so that NMFS can confirm that they meet the
requirements outlined in the IHA. NMFS has passed this recommendation
on to the POA for its consideration and has suggested that the POA send
letters to the Kenaitze, Tyonek, Knik, Eklutna, Ninilchik, Salamatof,
and Chickaloon Tribes informing them of the hiring process when known.
Changes From the Proposed IHA to Final IHA
As a result of the public comments received from CBD and Eklutna,
Inc. (and summarized above), provisions were added to the final IHA and
this Federal Register notice of issuance that incorporates additional
discussion regarding impacts to CIBW preferred prey, and our
clarification of requirements related to PSO qualifications (i.e.,
making clear that relevant Alaska native traditional knowledge can be
considered as a substitute for relevant experience when considering
prospective PSOs for the NES1 project).
Since the Federal Register notice of the proposed IHA was published
(88 FR 76576, November 6, 2023), NMFS became aware of an error in the
calculation of the RMS SPLs that were used as proxies for unattenuated
vibratory pile removal of steel pipe piles for this project. NMFS has
recalculated these levels and has revised the Estimated Take section
accordingly. Specifically, the RMS SPL proxy for the vibratory removal
of 24-inch (61-cm) piles changed from 168-dB to 169-dB. The RMS SPL for
the vibratory removal of 36-inch (91-cm) piles did not change (i.e., it
remains 159-dB RMS). As a result of the change to the 24-inch (61-cm)
RMS SPL, the Level B harassment zone for this activity increased from
5,967-m to 6,861-m, and the Level A harassment zones for low-frequency
cetaceans, mid-frequency cetaceans, high-frequency cetaceans, and
phocid pinniped increased slightly (i.e., between 1-m to 7-m
increases). Given the shutdown zone for CIBWs is equivalent to the
Level B harassment zone (see the Mitigation section of this Federal
Register notice of issuance), the shutdown zone for this activity has
increased from 6,000-m to 6,900-m (6,861-m rounded up) for this
species. The shutdown zone for low-frequency cetaceans also increased
from 40-m to 50-m due to this change.
In the proposed IHA, NMFS proposed to require the POA to submit
interim weekly and monthly monitoring reports (that include raw
electronic data sheets) during the NES1 construction season. Since the
Federal Register notice of the proposed IHA published (88 FR 76576,
November 6, 2023), the POA has expressed concern that the inclusion of
raw electronic data sheets with weekly and monthly reports will not be
feasible for their monitoring program. In addition, the raw data will
need to be reviewed and corrected for any errors. Rather, the POA has
agreed to submit the final electronic data sheets with the final draft
summary report. NMFS has accepted this request and has revised the
final IHA to indicate that the final electronic data sheets must be
submitted with the final draft summary report instead of with the
required weekly and monthly monitoring reports. This is consistent with
reporting requirements for the PCT and SFD IHAs.
Typographical errors identified in tables 2 and 13 in the Federal
Register notice of the proposed IHA have been corrected in this Federal
Register notice of issuance (see tables 1 and 10, respectively). In
addition, some clarifying language regarding source levels proposed for
impact pile removal and pile splitting has been added to the Estimated
Take section. Lastly, in the Endangered Species Act section of the
Federal Register notice of the proposed IHA, NMFS omitted reference to
the Western North Pacific DPS of humpback whales as a listed species
under the ESA for which NMFS OPR was requesting ESA section 7
consultation. However, this species was considered in the formal
consultation and is assessed in the BiOp issued by the NMFS Alaska
Regional Office on December 15, 2023. No other changes have been made
from the proposed IHA to the final IHA.
Description of Marine Mammals in the Area of Specified Activities
There are seven species of marine mammals that may be found in
upper Cook Inlet during the planned construction and demolition
activities. Sections 3 and 4 of the IHA 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, instead of reprinting the
information. Additional information regarding population trends and
threats may be found in NMFS' Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://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>).
Additional information on CIBWs may be found in NMFS' 2016 Recovery
Plan for the CIBW, available online at <a href="https://www.fisheries.noaa.gov/resource/document/recovery-plan-cook-inlet-beluga-whale-delphinapterus-leucas">https://www.fisheries.noaa.gov/resource/document/recovery-plan-cook-inlet-beluga-whale-delphinapterus-leucas</a>, and NMFS' 2023 report on the abundance and trend of CIBWs in
Cook Inlet in June 2021 and June 2022, available online at <a href="https://www.fisheries.noaa.gov/resource/document/abundance-and-trend-belugas-delphinapterus-leucas-cook-inlet-alaska-june-2021-and">https://www.fisheries.noaa.gov/resource/document/abundance-and-trend-belugas-delphinapterus-leucas-cook-inlet-alaska-june-2021-and</a>.
Table 2 lists all species or stocks for which take is expected and
authorized for this activity, and summarizes information related to the
population or stock, including regulatory status under the MMPA and 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 anticipated or authorized here, 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 managed stocks in this region are assessed in
NMFS' U.S. Alaska and Pacific SARs (e.g., Carretta, et al., 2023; Young
et al.,
[[Page 2847]]
2023). Values presented in table 2 are the most recent available at the
time of publication and are available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. The most recent abundance estimate for CIBWs,
however, is available from Goetz et al. (2023) and available online at
<a href="https://www.fisheries.noaa.gov/feature-story/new-abundance-estimate-endangered-cook-inlet-beluga-whales">https://www.fisheries.noaa.gov/feature-story/new-abundance-estimate-endangered-cook-inlet-beluga-whales</a>.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN16JA24.032
[[Page 2848]]
[GRAPHIC] [TIFF OMITTED] TN16JA24.033
BILLING CODE 3510-22-C
On June 15, 2023, NMFS released an updated abundance estimate for
endangered CIBWs in Alaska (Goetz et al., 2023) that incorporates
aerial survey data from June 2021 and 2022, but which is not included
in the most recent SAR (Young et al., 2023). Data collected during NMFS
recent aerial survey effort suggest that the whale population is stable
or may be increasing slightly. Goetz et al. (2023) estimated that the
population size is currently between 290 and 386, with a median best
estimate of 331. In accordance with the MMPA, this population estimate
will be incorporated into the next draft CIBW SAR, which will be
reviewed by an independent panel of experts, the Alaska Scientific
Review Group. After this review, the SAR will be made available as a
draft for public review before being finalized. We have determined that
it is appropriate to consider the CIBW estimate of abundance reported
by Goetz et al. (2023) in our analysis rather than the older estimate
currently available from the Alaska SAR (Young et al., 2023) because it
is based on the most recent and best available science.
As indicated above, all seven species (with nine managed stocks) in
table 2 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. Minke whales
(Balaenoptera acutorostrata) and Dall's porpoises (Phocoenoides dalli)
also occur in Cook Inlet; however, the spatial occurrence of these
species is such that take is not expected to occur, and they are not
discussed further beyond the explanation provided here. Data from the
Alaska Marine Mammal Stranding Network database (NMFS, unpublished
data) provide additional support for these determinations. From 2011 to
2020, only one minke whale and one Dall's porpoise were documented as
stranded in the portion of Cook Inlet north of Point Possession. Both
were dead upon discovery; it is unknown if they were alive upon their
entry into upper Cook Inlet or drifted into the area with the tides.
With very few exceptions, minke whales and Dall's porpoises do not
occur in upper Cook Inlet, and therefore take of these species is
considered unlikely.
In addition, sea otters (Enhydra lutris) may be found in Cook
Inlet. However, sea otters are managed by the U.S. Fish and Wildlife
Service (USFWS) and are not considered further in this document.
A detailed description of the species likely to be affected by the
NES1 project, including a brief introduction to the affected stock as
well as available information regarding population trends
[[Page 2849]]
and threats, and information regarding local occurrence, were provided
in the Federal Register notice of the proposed IHA (88 FR 76576,
November 6, 2023). Since that time, we are not aware of any changes in
the status of these species and stocks; therefore, detailed
descriptions are not provided here. Please refer to that Federal
Register notice for these descriptions. Please also refer to NMFS'
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized
species accounts.
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-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 3. Specific to this
action, gray whales and humpback whales are considered low-frequency
(LF) cetaceans, CIBWs, and killer whales are considered mid-frequency
(MF) cetaceans, harbor porpoises are considered high-frequency (HF)
cetaceans, Steller sea lions are otariid pinnipeds, and harbor seals
are phocid pinnipeds.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN16JA24.034
BILLING CODE 3510-22-C
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). This division between phocid and otariid pinnipeds is now
reflected in the updated hearing groups proposed in Southall et al.
(2019).
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 POA's construction
activities have the potential to result in harassment of marine mammals
in the vicinity of the POA. The Federal Register notice of the proposed
IHA (88 FR 76576, November 6, 2023) included a discussion of the
[[Page 2850]]
effects of anthropogenic noise on marine mammals and the potential
effects of underwater noise from the POA's construction activities on
marine mammals and their habitat. That information and analysis is
referenced in this notice of issuance of the final IHA and is not
repeated here; please refer to the notice of the proposed IHA (88 FR
76576, November 6, 2023).
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through the IHA, which will inform both NMFS' consideration
of ``small numbers,'' and the negligible impact determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes will primarily be by Level B harassment, as use of
the acoustic sources (i.e., vibratory and impact pile driving) 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 HF cetaceans and phocids because
predicted auditory injury zones are larger than for MF cetaceans and
otariids. Auditory injury is unlikely to occur for mysticetes, MF
cetaceans, and otariids due to measures described in the 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
authorized for this activity. Below we describe how the take numbers
were 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 RMS SPL
of 120-dB 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., seismic airguns) or intermittent (e.g., scientific
sonar) sources. Generally speaking, Level B harassment take estimates
based on these behavioral harassment thresholds are expected to include
any likely takes by temporary threshold shift (TTS) as, in most cases,
the likelihood of TTS occurs at distances from the source less than
those at which behavioral harassment is likely. TTS of a sufficient
degree can manifest as behavioral harassment, as reduced hearing
sensitivity and the potential reduced opportunities to detect important
signals (conspecific communication, predators, prey) may result in
changes in behavior patterns that would not otherwise occur.
The POA's planned activity includes the use of continuous
(vibratory pile driving) and intermittent (impact pile driving) noise
sources, and therefore the RMS SPL thresholds of 120- and 160-dB re 1
[mu]Pa are applicable.
Level A Harassment. NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0;
NMFS, 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). The POA's planned activity
includes the use of impulsive (impact pile driving) and non-impulsive
(vibratory 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="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
BILLING CODE 3510-22-P
[[Page 2851]]
[GRAPHIC] [TIFF OMITTED] TN16JA24.035
BILLING CODE 3510-22-C
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 (TL)
coefficient.
The sound field in the project area is the existing background
noise plus additional construction noise from the planned project.
Marine mammals are expected to be affected via sound generated by the
primary components of the project (i.e., impact pile removal and
vibratory pile installation and removal). Calculation of the area
ensonified by the specified action is dependent on the background sound
levels at the project site, the source levels of the planned
activities, and the estimated transmission loss coefficients for the
planned activities at the site. These factors are addressed in order,
below.
Background Sound Levels at the Port of Alaska. As noted in the
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat section of the Federal Register notice of the proposed IHA (88
FR 76576, November 6, 2023), the POA is an industrial facility in a
location with high levels of commercial vessel traffic, port operations
(including dredging), and extreme tidal flow. Previous measurements of
background noise at the POA have recorded a background SPL of 122.2-dB
RMS (Austin et al., 2016). NMFS concurred that this SPL reasonably
represents background noise near the project area, and therefore we
have used 122.2-dB RMS as the threshold for Level B harassment (instead
of 120-dB RMS).
[[Page 2852]]
Sound Source Levels of Specified Activities. The intensity of pile
driving sounds is greatly influenced by factors such as the type of
piles (material and diameter), hammer type, and the physical
environment (e.g., sediment type) in which the activity takes place. 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, the POA used acoustic monitoring data from sound
source verification studies to develop proxy source levels for the
various pile types, sizes and methods (table 5). While site-specific
sound source verification studies have been conducted at the POA, the
vast majority of the measurements recorded in those studies were made
when bubble curtains were deployed around the sound source, which act
to attenuate sound levels (Austin et al., 2016; I&R, 2021a, 2021b).
Bubble curtains are not a feasible mitigation measure for the NES1
project due to the demolition and sequencing nature of the project (see
the Mitigation section of this notice for additional discussion), and
therefore the majority of the proxy values for this project are based
on measurements recorded from locations other than the POA.
Underwater sound was measured in 2008 at the POA for the Marine
Terminal Redevelopment Project (MTRP) during installation of sheet
piles to assess potential impacts of sound on marine species. Sound
levels for installation of sheet piles measured at 10-m typically
ranged from 147- to 161-dB RMS, with a mean of approximately 155-dB RMS
(James Reyff, unpublished data). An SPL of 162-dB RMS was reported in
(California Department of Transportation (CALTRANS), 2020) summary
tables for 24-inch (61-cm) steel sheet piles. This is a more rigid type
of sheet pile that requires a large vibratory driver (James Reyff,
personal communication, August 26, 2020). Based on the 2008
measurements at the POA and the CALTRANS data, a value of 160-dB RMS
was assumed for vibratory removal of sheet piles.
NMFS concurred that the source levels proposed by the POA for all
pile sizes during impact removal and vibratory installation of all pile
types are appropriate to use for calculating harassment isopleths for
the POA's planned NES1 activities (table 5). Impact removal is the
process of hitting a pile with an impact hammer with a small number of
strikes (up to 50 per pile) to loosen it from the soil so that it can
be removed via other means such as direct pulling or with a vibratory
hammer. There are no data to our knowledge available on impact removal
of this nature. The POA proposed to use SPL values measured during the
impact installation of 24-inch (61-cm) AZ steel sheet piles from the
Berth 23, Port of Oakland Project (CALTRANS, 2020) for this activity.
Given this is the best available information, NMFS has accepted the
POA's proposed SPLs for this activity.
However, the source levels proposed by the POA for vibratory pile
removal were based on limited data collected at the POA. Therefore,
NMFS considered and evaluated all data related to unattenuated
vibratory removal of 24-inch (61-cm) and 36-inch (91-cm) steel pipe
piles available, including sound source verification data measured at
the POA during the PCT project (Reyff et al., 2021a) and elsewhere
(i.e., Coleman, 2011; U.S. Navy, 2012; I&R, 2017). NMFS gathered data
from publicly available reports that reported driving conditions and
specified vibratory removal for certain piles. If vibratory removal was
not specifically noted for a given pile, we excluded that data from the
analysis. Mean RMS SPLs reported by these studies were converted into
pressure values, and pressure values for piles from each project were
averaged to give a single SPL for each project. The calculated project
means were then averaged and converted back into dBs to give a single
recommended SPL (rounded to the nearest whole dB) for each pile type.
Ten measurements were available for unattenuated vibratory removal
of 24-inch (61-cm) piles: 3 from Columbia River Crossing in Oregon
(mean RMS SPL of 173-dB; Coleman, 2011), 5 from Joint Expeditionary
Base Little Creek in Norfolk, Virginia (mean RMS SPL of 148-dB; I&R,
2017), and 2 from the PCT project at the POA (mean RMS SPL of 169-dB;
I&R, 2021a, 2023). The calculated average SPL for unattenuated
vibratory removal of 24-inch (61-cm) steel pipe piles from these
studies was 169-dB RMS (table 5). Forty measurements were available for
unattenuated vibratory removal of 36-inch (91-cm) piles: 38 from the
U.S. Navy Test Pile Program at Naval Base Kitsap in Bangor, Washington
(mean RMS SPL of 160-dB; U.S. Navy, 2012), and 2 from the PCT project
at the POA (mean RMS SPL of 159-dB; I&R, 2021, 2023). The calculated
average SPL for unattenuated vibratory removal of 36-inch (91-cm) steel
pipe piles from these studies was 159-dB RMS (table 5). Note that the
proxy values in table 5 represent SPL referenced at a distance of 10- m
from the source.
Interestingly, the RMS SPLs for the unattenuated vibratory removal
of 24-inch (61-cm) piles were much louder than the unattenuated
vibratory removal of 36-inch (91-cm) piles, and even louder than the
unattenuated vibratory installation of 24-inch piles. I&R (2023)
suggest that at least for data recorded at the POA, the higher 24-inch
(61-cm) removal levels are likely due to the piles being removed at
rates of 1,600 to 1,700 revolutions per minute (rpm), while 36-inch
(91-cm) piles, which are significantly heavier than 24-inch (61-cm)
piles), were removed at a rate of 1,900 rpm. The slower rates combined
with the lighter piles would cause the hammer to easily ``jerk'' or
excite the 24-inch (61-cm) piles as they were extracted, resulting in a
louder rattling sound and louder sound levels. This did not occur for
the 36-inch (91-cm) piles, which were considerably heavier due to
increased diameter, longer length, and greater thickness.
[[Page 2853]]
[GRAPHIC] [TIFF OMITTED] TN16JA24.036
A splitter will be used in conjunction with a vibratory hammer to
make vertical cuts in sheet piles as necessary to help with their
removal. The POA assumes that a pile splitter will produce the same or
similar sound levels as a vibratory hammer without the splitter
attachment; therefore, the POA combined use of a vibratory hammer to
remove sheet pile and use of a splitter into a single category (i.e.,
vibratory hammer removal). NMFS is currently unaware of any
hydroacoustic measurements of pile splitting with a vibratory hammer.
NMFS specifically requested comments on the proposed SPL values for
vibratory pile splitting in the Federal Register notice of the proposed
IHA (88 FR 76576, November 6, 2023). No additional data or
recommendations for proxy SPLs for these activities were received
during the public comment period. Given this is the best available
information, NMFS has accepted the POA's proposed SPLs and assessments.
Transmission Loss. For unattenuated impact pile driving, the POA
proposed to use 15 as the TL coefficient, meaning they assumed
practical spreading loss (i.e., the POA assumes TL =
15*Log<INF>10</INF>(range)); NMFS concurred with this value and has
used the practical spreading loss model for impact driving in this
analysis.
The TL coefficient that the POA proposed for unattenuated vibratory
installation and removal of piles is 16.5 (i.e., TL =
16.5*Log<INF>10</INF>(range)). This value is an average of measurements
obtained from two 48-inch (122-cm) piles installed via an unattenuated
vibratory hammer in 2016 (Austin et al., 2016). To assess the
appropriateness of this TL coefficient to be used for the NES1 project,
NMFS examined and analyzed additional TL measurements recorded at the
POA. This included a TL coefficient of 22 (deep hydrophone measurement)
from the 2004 unattenuated vibratory installation of one 36-inch (91-
cm) pile in Knik Arm (Blackwell, 2004), as well as TL coefficients
ranging from 10.3 to 18.2 from the unattenuated vibratory removal of
24-inch (61 cm) and 36-inch (91-cm) piles and the unattenuated
vibratory installation of one 48-inch (122-cm) pile at the POA in 2021
(I&R 2021, 2023). To account for statistical interdependence due to
temporal correlations and equipment issues across projects, values were
averaged first within each individual project, and then across
projects. The mean and median value of the measured TL coefficients for
unattenuated vibratory piles in Knik Arm by project were equal to 18.9
and 16.5, respectively. NMFS used the project median TL coefficient of
16.5 during unattenuated vibratory installation and removal of all
piles during the NES1 project. This value is representative of all
unattenuated vibratory measurements in the Knik Arm. Further, 16.5 is
the mean of the 2016 measurements, which were made closer to the NES1
project area than other measurements and were composed of measurements
from multiple directions (both north and south/southwest).
Estimated Harassment Isopleths. All estimated Level B harassment
isopleths are reported in table 6. At POA, Level B harassment isopleths
from the NES1 project will be limited by the coastline along Knik Arm
along and across from the project site. The maximum predicted isopleth
distance is 6,861-m during vibratory removal of 24-inch (61-cm) steel
pipe piles.
The ensonified area associated with Level A harassment is more
technically challenging to predict due to the need to account for a
duration component. Therefore, NMFS developed an optional User
Spreadsheet tool to accompany the Technical Guidance that can be used
to relatively simply predict an isopleth distance for use in
conjunction with marine mammal density or occurrence to help predict
potential takes. We note that because of some of the assumptions
included in the methods underlying this optional tool, we anticipate
that the resulting isopleth estimates are typically going to be
overestimates of some degree, which may result in an overestimate of
potential take by Level A harassment. However, this optional tool
offers the best way to estimate isopleth distances when more
sophisticated modeling methods are not available or practical. For
stationary sources such as pile driving, 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
[[Page 2854]]
expected to incur PTS. Inputs used in the User Spreadsheet are reported
in table 6 and the resulting isopleths and ensonified areas are
reported in table 7.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN16JA24.037
[[Page 2855]]
[GRAPHIC] [TIFF OMITTED] TN16JA24.038
BILLING CODE 3510-22-C
Marine Mammal Occurrence and Take Estimation
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information which
informed the take calculation. We also describe how the information
provided above was synthesized to produce a quantitative estimate of
the take that is reasonably likely to occur and is authorized.
Gray Whale
Sightings of gray whales in the project area are rare. Few, if any,
gray whales are expected to approach the project area. However, based
on three separate sightings of single gray whales near the POA in 2020
and 2021 (61N Environmental, 2021, 2022a; Easley-Appleyard and Leonard,
2022), the POA anticipates that up to six individuals could be within
estimated harassment zones during NES1 project activities. Therefore,
NMFS authorized six takes by Level B harassment for gray whales during
the NES1 project. Take by Level A harassment is not anticipated or
authorized. The Level A harassment zones (table 7) are smaller than the
required shutdown zones (see the Mitigation section). It is unlikely
that a gray whale will enter and remain within the Level A harassment
zone long enough to incur PTS.
Humpback Whale
Sightings of humpback whales in the project area are rare, and few,
if any, humpback whales are expected to approach the project area.
However, there have been a few observations of humpback whales near the
POA as described in the Description of Marine Mammals in the Area of
Specified Activities section of the Federal Register notice of the
proposed IHA (88 FR 76576, November 6, 2023). Based on the two
sightings in 2017 of what was likely a single individual at the
Anchorage Public Boat Dock at Ship Creek (ABR, Inc., 2017) south of the
project area, the POA requested authorization of six takes of humpback
whales. However, given the maximum number of humpback whales observed
within a single construction season was two (in 2017), NMFS instead
anticipates that only up to four humpback whales could be exposed to
project-related underwater noise during the NES1 project. Therefore,
NMFS authorized four takes by Level B harassment for humpback whales
during the NES1 project. Take by Level A harassment is not anticipated
or authorized. The Level A harassment zones (table 7) are smaller than
the required shutdown zones (see the Mitigation section), therefore, it
is unlikely that a humpback whale will enter and remain within the
Level A harassment zone long enough to incur PTS.
Killer Whale
Few, if any, killer whales are expected to approach the NES1
project area. No killer whales were sighted during previous monitoring
programs for POA construction projects, including the 2016 TPP, 2020
PCT, and 2022 SFD projects (Prevel-Ramos et al., 2006; Markowitz and
McGuire, 2007; Cornick and Saxon-Kendall, 2008, 2009; Cornick et al.,
2010, 2011; ICRC, 2009, 2010, 2011, 2012; Cornick and Pinney, 2011;
Cornick and Seagars, 2016; 61N Environmental, 2021, 2022b), until PCT
construction in 2021, when two killer whales were sighted (61N
Environmental, 2022a). Previous sightings of transient killer whales
have documented pod sizes in upper Cook Inlet between one and six
individuals (Shelden et al., 2003). Therefore, the POA conservatively
estimated that no more than one small pod (assumed to be six
individuals) could be within estimated harassment zones during NES1
project activities.
Take by Level A harassment is not anticipated or authorized due to
the implementation of shutdown zones, which will be larger than the
Level A harassment zones (described below in the Mitigation section),
and the low likelihood that killer whales will approach this distance
for sufficient duration to incur PTS. Therefore, NMFS authorized six
takes by Level B harassment for killer whales.
[[Page 2856]]
Harbor Porpoise
Monitoring data recorded from 2005 through 2022 were used to
evaluate hourly sighting rates for harbor porpoises in the NES1 project
area (see table 4-3 in the POA's application). During most years of
monitoring, no harbor porpoises were observed. However, there has been
an increase in harbor porpoise sightings in upper Cook Inlet in recent
decades (e.g., 61N Environmental, 2021, 2022a; Shelden et al., 2014).
The highest sighting rate for any recorded year during in-water pile
installation and removal was an average of 0.037 harbor porpoises per
hour during PCT construction in 2021, when observations occurred across
most months. Given the uncertainty around harbor porpoise occurrence at
the POA and potential that occurrence is increasing, it is estimated
that approximately 0.07 harbor porpoises per hour (the 2021 rate of
0.037 harbor porpoises per hour doubled) may be observed near the NES1
project area per hour of hammer use. With 246.5 hours of in-water pile
installation and removal, the POA estimated that there could be 18
instances where harbor porpoises (0.07 harbor porpoises per hour *
246.5 hours = 17.3 harbor porpoises rounded up to 18 harbor porpoises)
could be within estimated harassment zones during NES1 project
activities.
Harbor porpoises are small, lack a visible blow, have low dorsal
fins, an overall low profile, and a short surfacing time, making them
difficult to observe (Dahlheim et al., 2015). To account for the
possibility that a harbor porpoise could enter a Level A harassment
zone and remain there for sufficient duration to incur PTS before
activities were shut down, the POA assumed that 5 percent of estimated
harbor porpoise takes (1 take of harbor porpoise; 5 percent of 18 =
0.9, rounded up to 1) could be taken by Level A harassment. In its
request, the POA rounded this estimate up to two to account for the
average group size of this species, However, NMFS has determined such
adjustments are generally unnecessary for purposes of estimating
potential incidents of Level A harassment and did not concur with the
request. At relatively close distances, NMFS believes it unlikely that
groups will necessarily adhere to each other for sufficient duration
for the entire group to incur PTS. While it is unlikely that a harbor
porpoise could enter a Level A harassment zone for sufficient duration
to incur PTS given the required shutdown measures (see the Mitigation
section for more information) and potential for avoidance behavior,
this species moves quickly and can be difficult to detect and track,
therefore, NMFS authorized 1 take by Level A harassment and 17 takes by
Level B harassment for harbor porpoises, for a total of 18 instances of
take.
Steller Sea Lion
Steller sea lions are anticipated to occur in low numbers within
the NES1 project area as summarized in the Description of Marine
Mammals in the Area of Specified Activities section of the Federal
Register of the proposed IHA (88 FR 76576, November 6, 2023). Similar
to the approach used above for harbor porpoises, the POA used
previously recorded sighting rates of Steller sea lions near the POA to
estimate requested take for this species. During SFD construction in
May and June of 2022, the hourly sighting rate for Steller sea lions
was 0.028. The hourly sighting rate for Steller sea lions in 2021, the
most recent year with observations across most months, was
approximately 0.01. Given the uncertainty around Steller sea lion
occurrence at the POA and potential that occurrence is increasing, the
POA estimated that approximately 0.06 Steller sea lions per hour (the
May and June 2022 rate of 0.028 Steller sea lions per hour doubled) may
be observed near the NES1 project areas per hour of hammer use. With
246.5 hours of in-water pile installation and removal, the POA
estimates that 15 Steller sea lions (0.06 sea lions per hour * 246.5
hours = 14.79 sea lions rounded up to 15) could be within estimated
harassment zones during NES1 project activities. However, the highest
number of Steller sea lions that have been observed during the 2020-
2022 monitoring efforts at the POA was nine individuals (eight during
PCT Phase 1 monitoring and one during NMFS 2021 monitoring). Given the
POA's estimate assumes a higher Steller sea lion sighting rate (0.06)
than has been observed at the POA and results in an estimate that is
much larger than the number of Steller sea lions observed in a year,
NMFS believed that the 15 estimated takes requested by the POA
overestimated potential exposures of this species. NMFS instead
authorized nine takes by Level B harassment for Steller sea lions
during the NES1 project.
The largest Level A harassment zone for Steller sea lions is 6-m.
While it is unlikely that a Steller sea lion will enter a Level A
harassment zone for sufficient duration to incur PTS, the POA is aware
of a Steller sea lion that popped up next to a work skiff during the
TPP in 2016, which was documented as a potential take by Level A
harassment by the PSOs on duty at the time. Pile driving, however, was
not occurring at the time the event was recorded and a brief
observation of an animal within a Level A harassment zone does not
necessarily mean the animal experienced Level A harassment (other
factors such as duration within the harassment zone need to be taken
into consideration). However, as a result of the aforementioned event,
the POA requested authorization of an additional two takes of Steller
sea lions by Level A harassment. Given the small Level A harassment
zone (6-m), and shutdown zones of >= 10-m (see the Mitigation section),
NMFS believes that it is unlikely that a Steller sea lion will be
within the Level A harassment zone for sufficient duration to incur
PTS. Therefore, NMFS did not authorize take by Level A harassment for
Steller sea lions. Rather, all nine estimated takes are authorized as
Level B harassment.
Harbor Seal
No known harbor seal haulout or pupping sites occur in the vicinity
of the POA. In addition, harbor seals are not known to reside in the
NES1 project area, but they are seen regularly near the mouth of Ship
Creek when salmon are running, from July through September. With the
exception of newborn pups, all ages and sexes of harbor seals may occur
in the NES1 project area. Any harassment of harbor seals during in-
water pile installation and removal will involve a limited number of
individuals that may potentially swim through the NES1 project area or
linger near Ship Creek.
The POA evaluated marine mammal monitoring data to calculate hourly
sighting rates for harbor seals in the NES1 project area (see table 4-1
in the POA's application). Of the 524 harbor seal sightings in 2020 and
2021, 93.7 percent of the sightings were of single individuals; only
5.7 percent of sightings were of 2 individual harbor seals, and only
0.6 percent of sightings reported 3 harbor seals. Sighting rates of
harbor seals were highly variable and appeared to have increased during
monitoring between 2005 and 2022. It is unknown whether any potential
increase was due to local population increases or habituation to
ongoing construction activities. The highest individual hourly sighting
rate recorded for a previous year was used to quantify take of harbor
seals for in-water pile installation and removal associated with NES1.
This occurred in 2021 during PCT Phase 2 construction, when harbor
seals were observed from May through September. A total of 220 harbor
seal
[[Page 2857]]
sightings were observed over 734.9 hours of monitoring, at an average
rate of 0.30 harbor seal sightings per hour. The maximum monthly
sighting rate occurred in September 2020 and was 0.51 harbor seal
sightings per hour. Based on these data, the POA estimated that
approximately one harbor seal (the maximum monthly sighting rate (0.51)
rounded up) may be observed near the NES1 project per hour of hammer
use. This approximate sighting rate of one harbor seal per hour was
also used to calculate potential exposures of harbor seals for the SFD
project (86 FR 50057, September 7, 2021). Therefore, the POA estimated
that during the 246.5 hours of anticipated in-water pile installation
and removal, up to 247 harbor seals (1 harbor seal per hour * 246.5
hours = 246.5 harbor seals, rounded up to 247) could be within
estimated harassment zones.
Harbor seals often appear curious about onshore activities and may
approach closely. The mouth of Ship Creek, where harbor seals linger,
is about 2,500-m from the southern end of the NES1 and is therefore
outside of the Level A harassment zones calculated for harbor seals
(table 7). However, given the potential difficulty of tracking
individual harbor seals along the face of the NES1 site and their
consistent low-level use of the POA area, NMFS anticipates the
potential for some take by Level A harassment for harbor seals. For the
SFD project, NMFS authorized 8.6 percent of estimated harbor seal takes
as potential Level A harassment based on the proportion of previous
harbor seal sightings within the estimated Level A harassment zones for
that project (86 FR 50057, September 7, 2021), but the NES1 Project is
more distant from Ship Creek than SFD. NMFS therefore anticipated that
a smaller proportion of takes by Level A harassment may occur during
the NES1 project, and reduced this percentage to 5 percent. Therefore,
NMFS authorized 13 harbor seal takes (5 percent of 247 exposures) by
Level A harassment and 234 takes (247 exposures minus 13) by Level B
harassment, for a total of 247 takes.
Beluga Whale
For the POA's PCT and SFD projects, NMFS used a sighting rate
methodology to calculate potential exposure (equated to take) of CIBWs
to sound levels above harassment criteria produced by the POA's
construction activities (85 FR 19294, April 6, 2020; 86 FR 50057,
September 7, 2021, respectively). For the PCT project, NMFS used data
collected during marine mammal observations from 2005 to 2009 (Kendall
and Cornick, 2015) and the total number of monthly observation hours
during these efforts to derive hourly sighting rates of CIBWs per month
of observation (April through November) (85 FR 19294, April 6, 2020).
For the SFD project, observation data from 2020 PCT construction were
also incorporated into the analysis (86 FR 50057, September 7, 2021;
61N Environmental, 2021).
The marine mammal monitoring programs for the PCT and SFD projects
produced a unique and comprehensive data set of CIBW locations and
movements (table 8; 61N Environmental, 2021, 2022a, 2022b; Easley-
Appleyard and Leonard, 2022) that is the most current data set
available for Knik Arm. During the PCT and SFD projects, the POA's
marine mammal monitoring programs included 11 PSOs working from 4
elevated, specially designed monitoring stations located along a 9-km
stretch of coastline surrounding the POA. The number of days data was
collected varied among years and project, with 128 days during PCT
Phase 1 in 2020, 74 days during PCT Phase 2 in 2021, and 13 days during
SFD in 2022 (see table 6-7 in the POA's application for additional
information regarding CIBW monitoring data). PSOs during these projects
used 25-power ``big-eye'' and hand-held binoculars to detect and
identify marine mammals, and theodolites to track movements of CIBW
groups over time and collect location data while they remained in view.
These POA monitoring programs were supplemented in 2021 with a
NMFS-funded visual marine mammal monitoring project that collected data
during non-pile driving days during PCT Phase 2 (table 8; Easley-
Appleyard and Leonard, 2022). NMFS replicated the POA monitoring
efforts, as feasible, including use of 2 of the POA's monitoring
platforms, equipment (Big Eye binoculars, theodolite, 7x50 reticle
binoculars), data collection software, monitoring and data collection
protocol, and observers; however, the NMFS-funded program utilized only
4 PSOs and 2 observation stations along with shorter (4- to 8-hour)
observation periods compared to PCT or SFD data collection, which
included 11 PSOs, 4 observation stations, and most observation days
lasting close to 10 hours. Despite the differences in effort, the NMFS
dataset fills in gaps during the 2021 season when CIBW presence began
to increase from low presence in July and is thus valuable in this
analysis. NMFS' PSO's monitored for 231.6 hours on 47 non-consecutive
days in July, August, September, and October.
Distances from CIBW sightings to the project site from the POA and
NMFS-funded monitoring programs ranged from less than 10-m up to nearly
15-km during these monitoring programs. These robust marine mammal
monitoring programs in place from 2020 through 2022 located,
identified, and tracked CIBWs at greater distances from the NES1
project site than previous monitoring programs (i.e., Kendall and
Cornick, 2015), and contributed to a better understanding of CIBW
movements in upper Cook Inlet (e.g., Easley-Appleyard and Leonard,
2022).
Given the evolution of the best available data of CIBW presence in
upper Cook Inlet, particularly regarding the distances at which CIBWs
were being observed and documented (which increased during the PCT and
SFD compared to earlier monitoring efforts), the POA proposed, and NMFS
concurred, that the original sighting rate methodology used for the PCT
and SFD projects was no longer the best approach for calculating
potential take of CIBWs for the NES1 project. The recent and
comprehensive data set of CIBW locations and movements from the PCT and
SFD projects (61N Environmental, 2021, 2022a, 2022b; Easley-Appleyard
and Leonard, 2022) provided the opportunity for refinement of the
previously used sighting rate methodology with updated data. Data for
2020, 2021, and 2022 were selected for the updated sighting rate
analysis for the NES1 project because they are the most current data
available and are therefore most likely to accurately represent future
CIBW occurrence at the project site, which may be affected by CIBW
population size, CIBW movement patterns through Knik Arm, environmental
change (including climate change), differences in salmon and other prey
abundance among years, and other factors (table 8). The data from 2005
to 2009 (Kendall and Cornick, 2015), which were used by NMFS for the
sighting rate analyses for the PCT and SFD IHAs, were not included in
this analysis due to the changes in observation programs and age of the
data collected. Monitoring data from the 2016 TPP (Cornick and Seagars,
2016) were also not included in the analysis because of limited hours
observed, limited seasonal coverage, and differences in the observation
programs.
[[Page 2858]]
[GRAPHIC] [TIFF OMITTED] TN16JA24.039
The sighting rate methodology used for the PCT (85 FR 19294, April
6, 2020) and SFD (86 FR 50057, September 7, 2021) projects used
observations of CIBWs recorded in Knik Arm, regardless of observation
distance to the POA, to produce a single monthly sighting rate that was
then used to calculate potential CIBW take for all activities,
regardless of the size of the ensonified areas for the project
activities (i.e., take was calculated solely based on the monthly
sighting rates and the estimated hours of planned activities, and did
not consider the estimated sizes of the ensonified areas). This method
may have overestimated potential CIBW takes when harassment zones were
small because distant CIBWs will have been included in the sighting
rate. This method also resulted in takes estimates that were identical
for installation and removal of all pile sizes, regardless of pile
driving method used (e.g., vibratory, impact) or implementation of
attenuation systems, since the calculation did not consider the size of
the ensonified areas.
NMFS and the POA collaboratively developed a new sighting rate
methodology for the NES1 project that incorporated a spatial component
for CIBW observations, which allows for more accurate estimation of
potential take of CIBWs for this project. NMFS proposes to use this
approach to estimate potential takes of CIBW for authorization. During
the POA's and NMFS' marine mammal monitoring programs for the PCT and
SFD projects, PSOs had an increased ability to detect, identify, and
track CIBWs groups at greater distances from the project work site when
compared with previous years because of the POA's expanded monitoring
program as described above. This meant that observations of CIBWs in
the 2020-2022 dataset (table 8) include sightings of individuals at
distances far outside the ensonified areas estimated for the NES1
project (table 7). Therefore, it is not appropriate to group all CIBW
observations from these datasets into a single sighting rate as was
done for the PCT and SFD projects. Rather, CIBW observations should be
considered in relation to their distance to the NES1 project site when
determining appropriate sighting rates to use when estimating take for
this project. This helps to ensure that the sighting rates used to
estimate take are representative of CIBW presence in the NES1
ensonified areas.
To incorporate a spatial component into the sighting rate
methodology, the POA calculated each CIBW group's closest point of
approach (CPOA) relative to the NES1 project site. The 2020-2022 marine
mammal monitoring programs (table 8) enabled the collection, in many
cases, of multiple locations of CIBW groups as they transited through
Knik Arm, which allowed for track lines to be interpolated for many
groups. The POA used these track lines, or single recorded locations in
instances where only one sighting location was available, to calculate
each group's CPOA. CPOAs were calculated in ArcGIS software using the
Global Positioning System (GPS) coordinates provided for documented
sightings of each group (for details on data collection methods, see
61N Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard,
2022) and the NES1 location midpoint, centered on the project site. A
CIBW group was defined as a sighting of one or more CIBWs as determined
during data collection. The most distant CPOA location to NES1 was
11,057-m and the closest CPOA location was 15-m.
The cumulative density distribution of CPOA values represents the
percentage of CIBW observations that were within various distances to
the NES1 action site (figure 1). This distribution shows how CIBW
observations differed with distances to the NES1 site and was used to
infer appropriate distances within which to estimate spatially-derived
CIBW sighting rates (figure 1). The POA
[[Page 2859]]
implemented a piecewise regression model that detected breakpoints
(i.e., points within the CPOA data at which statistical properties of
the sequence of observational distances changed) in the cumulative
density distribution of the CPOA locations, which they proposed to
represent spatially-based sighting rate bins for use in calculating
CIBW sighting rates. The POA used the ``Segmented'' package (Muggeo,
2020) in the R Statistical Software Package (R Core Team, 2022) to
determine statistically significant breakpoints in the linear distances
of the CIBW data using this regression method (see section 6.5.5.3 of
the POA's application for more details regarding this statistical
analysis). This analysis identified breakpoints in the CPOA locations
at 74-, 1,651-, 2,808-, and 7,368-m (figure 1).
[GRAPHIC] [TIFF OMITTED] TN16JA24.040
Piecewise regression is a common tool for modeling ecological
thresholds (Lopez et al., 2020; Whitehead et al., 2016; Atwood et al.,
2016). In a similar scenario to the one outlined above, Mayette et al.
(2022) used piecewise regression methods to model the distances between
two individual CIBWs in a group in a nearshore and a far shore
environment. For the POA's analysis, the breakpoints (i.e., 74-, 1,651-
, 2,808-, and 7,368-m) detect a change in the frequency of CIBW groups
sighted and the slope of the line between two points indicates the
magnitude of change. A greater positive slope indicates a greater
accumulation of sightings over the linear distance (x-axis) between the
defining breakpoints, whereas a more level slope (i.e., closer to zero)
indicates a lower accumulation of sightings over that linear distance
(x-axis) between those defining breakpoints (figure 1; see table 6-8 in
the POA's application for the slope estimates for the empirical
cumulative distribution function).
The breakpoints identified by the piecewise regression analysis are
in agreement with what is known about CIBW behavior in Knik Arm based
on recent monitoring efforts (61N Environmental, 2021, 2022a, 2022b;
Easley-Appleyard and Leonard, 2022). Observation location data
collected during POA monitoring programs indicate that CIBWs were
consistently found in higher numbers in the nearshore areas, along both
shorelines, and were found in lower numbers in the center of the Arm.
Tracklines of CIBW group movements collected from 2020 to 2022 show
that CIBWs displayed a variety of movement patterns that included
swimming close to shore past the POA on the east side of Knik Arm
(defined by breakpoint 1 at 74-m), with fewer CIBWs swimming in the
center of Knik Arm (breakpoints 1 to 2, at 74- to 1,651-m). CIBWs
commonly swam past the POA close to shore on the west side of Knik Arm,
with no CIBWs able to swim farther from the POA in that area than the
far shore (breakpoints 2 to 3, at 1,651- to 2,808-m). Behaviors and
locations beyond breakpoint 4 (7,368-m) include swimming past the mouth
of Knik Arm between the Susitna River area and Turnagain Arm; milling
at the mouth of Knik Arm but not entering the Arm; and milling to the
northwest of the POA without exiting Knik Arm. The shallowness of slope
5, at distances greater than 7,368-m, could be due to detection falloff
from a proximity (distance) bias, which occurs when PSOs are less
likely to detect CIBW groups that are farther away than groups that are
closer.
The POA, in collaboration with NMFS, used the distances detected by
the breakpoint analysis to define five sighting rate distance bins for
CIBWs in the NES1 project area. Each breakpoint (74-, 1,651-, 2,808-,
and 7,368-m, and the complete data set of observations [>7,368-m]) was
rounded to the nearest meter and considered the outermost limit of each
sighting rate bin, resulting in five identified bins (table 9). All
CIBW observations less than or equal to
[[Page 2860]]
each bin's breakpoint distance were used to calculated that bin's
respective monthly sighting rates (e.g., all sightings from 0- to 74-m
are included in the sighting rates calculated for bin number 1, all
sightings from 0 to 1,651-m are included in the sighting rates
calculated for bin number 2, and so on). NES1 construction is
anticipated to take place from April through November 2024, therefore
monthly sighting rates were only derived for these months (table 9).
[GRAPHIC] [TIFF OMITTED] TN16JA24.041
Potential exposures (equated with takes) of CIBWs were calculated
by multiplying the total number of vibratory installation or removal
hours per month for each sized/shaped pile based on the anticipated
construction schedule (table 1) with the corresponding sighting rate
month and sighting rate distance bin (table 10). For example, the Level
B harassment isopleth distance for the vibratory installation of 24-
inch (61-cm) piles is 2,245-m, which falls within bin number 3 (table
9). Therefore, take for this activity was calculated by multiplying the
total number of hours estimated each month to install 24-inch (61-cm)
piles via a vibratory hammer by the monthly CIBW sighting rates
calculated for bin number 3 (table 10). The resulting estimated CIBW
exposures were totaled for all activities in each month (table 11).
In their calculation of CIBW take, the POA assumed that only 24-
inch (61-cm) template piles will be installed (rather than 36-inch (91-
cm)) and removed during the project. If 36-inch (91-cm) piles are used
for temporary stability template piles, it is assumed that the
potential impacts of this alternate construction scenario and method on
marine mammals are fungible (i.e., that potential impacts of
installation and removal of 36-inch (91-cm) steel pipe piles will be
similar to the potential impacts of installation and removal of 24-inch
(61-cm) steel pipe piles based on the estimated ensonified areas and
relevant sighting rate bins). Using the monthly activity estimates in
hours (table 1) and monthly calculated sighting rates (CIBWs/hour) for
the spatially derived distance bins (table 10), the POA estimated that
there could be up to 122 (121.1 rounded up to 122) instances of CIBW
take where during the NES1 project (table 11).
BILLING CODE 3510-22-P
[[Page 2861]]
[GRAPHIC] [TIFF OMITTED] TN16JA24.042
BILLING CODE 3510-22-C
For the PCT (85 FR 19294, April 6, 2020) and SFD (86 FR 50057,
September 7, 2021) projects, NMFS accounted for the implementation of
mitigation measures (e.g., shutdown procedures implemented when CIBWs
entered or approached the estimated Level B harassment zone) by
applying an
[[Page 2862]]
adjustment factor to CIBW take estimates. This was based on the
assumption that some Level B harassment takes will likely be avoided
based on required shutdowns for CIBWs at the Level B harassment zones
(see the Mitigation section of those notices for more information). For
the PCT project, NMFS compared the number of realized takes at the POA
to the number of authorized takes for previous projects from 2008 to
2017 and found the percentage of realized takes ranged from 12 to 59
percent with an average of 36 percent (85 FR 19294, April 6, 2020).
NMFS then applied the highest percentage of previous realized takes (59
percent during the 2009-2010 season) to ensure potential takes of CIBWs
were fully evaluated. In doing so, NMFS assumed that approximately 59
percent of the takes calculated would be realized during PCT and SFD
construction (85 FR 19294, April 6, 2020; 86 FR 50057, September 7,
2021) and that 41 percent of the calculated CIBW Level B harassment
takes would be avoided by successful implementation of required
mitigation measures.
The POA calculated the adjustment for successful implementation of
mitigation measures for NES1 using the percentage of realized takes for
the PCT project (see table 6-12 in the POA's application). The recent
data from PCT Phase 1 and PCT Phase 2 most accurately reflected the
current marine mammal monitoring program, the current program's
effectiveness, and CIBW occurrence in the NES1 project area. Between
the 2 phases of the PCT project, 90 total Level B harassment takes were
authorized and 53 were potentially realized (i.e., number of CIBWs
observed within estimated Level B harassment zones), equating to an
overall percentage of 59 percent. The SFD Project, during which only 7
percent of authorized take was potentially realized, represented
installation of only 12 piles during a limited time period and does not
represent the much higher number of piles and longer construction
season anticipated for NES1.
NMFS has determined that the 59-percent adjustment accurately
accounts for the efficacy of the POA's marine mammal monitoring program
and required shutdown protocols. NMFS therefore assumes that
approximately 59 percent of the takes calculated for NES1 may actually
be realized. This adjusts the potential takes by Level B harassment of
CIBWs authorized from 122 to 72 (table 11). Take by Level A harassment
is not anticipated or authorized because the POA will be required to
shutdown activities when CIBWs approach and or enter the Level B
harassment zone (see the Mitigation section for more information).
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN16JA24.043
In summary, the total amount of Level A harassment and Level B
harassment authorized for each marine mammal stock is presented in
table 12.
[[Page 2863]]
[GRAPHIC] [TIFF OMITTED] TN16JA24.044
BILLING CODE 3510-22-C
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for ITAs to include information about
the availability and feasibility (economic and technological) of
equipment, methods, and manner of conducting the activity or other
means of effecting the least practicable adverse impact upon the
affected species or stocks, and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, and impact on
operations.
The POA presented mitigation measures in section 11 of their
application that were modeled after the requirements included in the
IHAs issued for Phase 1 and Phase 2 PCT construction (85 FR 19294,
April 6, 2020) and for SFD construction (86 FR 50057, September 7,
2021), which were designed to minimize the total number, intensity, and
duration of harassment events for CIBWs and other marine mammal species
during those projects (61N Environmental, 2021, 2022a, 2022b). NMFS
concurred that these proposed measures reduce the potential for CIBWs,
and other marine mammals, to be adversely impacted by the planned
activity.
The POA must employ the following mitigation measures:
<bullet> Ensure that construction supervisors, crews, contractors,
other personnel operating at the site, the monitoring team, and
relevant POA staff are trained on all mitigation, monitoring, and
reporting requirements, and all implementing protocols or procedures,
as relevant to their respective role or position prior to the start of
all pile installation and removal activities, so that responsibilities,
communication procedures, monitoring protocols, and operational
procedures
[[Page 2864]]
are clearly understood. New personnel joining during the project must
be trained prior to commencing work;
<bullet> Employ PSOs and establish monitoring locations as
described in section 5 of the IHA and the POA's Marine Mammal
Monitoring and Mitigation Plan (see appendix B of the POA's
application). The POA must monitor the project area to the maximum
extent possible based on the required number of PSOs, required
monitoring locations, and environmental conditions;
<bullet> The POA, construction supervisors and crews, PSOs, and
relevant POA staff must avoid direct physical interaction with marine
mammals during construction activities. If a marine mammal comes within
10-m of such activity, operations shall 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> Monitoring must take place from 30 minutes prior to
initiation of pile driving (i.e., pre-start clearance monitoring)
through 30 minutes post-completion of pile driving;
<bullet> Pre-start clearance monitoring must be conducted during
periods of visibility sufficient for the lead PSO to determine that the
shutdown zones indicated in table 13 are clear of marine mammals. Pile
driving may commence following 30 minutes of observation when the
determination is made that the shutdown zones are clear of marine
mammals or when the mitigation measures required specifically for CIBWs
(below) are satisfied;
<bullet> For all construction activities, shutdown zones must be
established following table 13. The purpose of a shutdown zone is
generally to define an area within which shutdown of activity will
occur upon sighting of a marine mammal (or in anticipation of an animal
entering the defined area). In addition to the shutdown zones specified
in table 13 and the minimum shutdown zone of 10-m described above,
requirements included in NMFS' IHA, the POA will implement a minimum
100-m shutdown zone around the active NES1 project work site, including
around activities other than pile installation or removal that NMFS has
determined do not present a reasonable potential to cause take of
marine mammals. Shutdown zones for pile installation and removal will
vary based on the type of construction activity and by marine mammal
hearing group (table 13). Here, shutdown zones are larger than or equal
to the calculated Level A harassment isopleths shown in table 6 for
species other than CIBW and are equal to the estimated Level B
harassment isopleths for CIBWs;
[GRAPHIC] [TIFF OMITTED] TN16JA24.045
<bullet> Marine mammals observed anywhere within visual range of
the PSO must be tracked relative to construction activities. If a
marine mammal is observed entering or within the shutdown zones
indicated in table 13, pile driving must be delayed or halted. If pile
driving 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
(table 13, or 15 minutes (non-CIBWs) or 30 minutes (CIBWs) have passed
without re-detection of the animal;
<bullet> The POA must use soft start techniques when impact pile
driving. Soft start requires contractors to provide an initial set of
three 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. PSOs shall begin observing for marine mammals 30
minutes before ``soft start'' or in-water pile installation or removal
begins; and
<bullet> Pile driving activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or within the
harassment zone.
The following additional mitigation measures are required for
CIBWs:
<bullet> The POA must make all practicable efforts to complete
construction activities between April and July, when CIBWs are
typically found in lower numbers near the NES1 site;
[[Page 2865]]
<bullet> Prior to the onset of pile driving or removal, should a
CIBW be observed within the estimated Level B harassment zone (table 7)
(i.e. the CIBWs shutdown zone column in table 13), pile driving must
not commence until the whale(s) has voluntarily traveled at least 100-m
beyond the estimated Level B harassment zone and is on a path away from
such zone, or the whale has not been re-sighted within 30 minutes;
<bullet> If pile installation or removal has commenced, and a
CIBW(s) is observed within or likely to enter the estimated Level B
harassment zone, pile installation or removal must be delayed. Pile
driving may not commence until the whale has voluntarily traveled at
least 100-m beyond the Level B harassment zone and is on a path away
from such zone, or until no CIBW has been observed in the Level B
harassment zone for 30 minutes; and
<bullet> If during installation and removal of piles, PSOs can no
longer effectively monitor the entirety of the CIBW Level B harassment
zone due to environmental conditions (e.g., fog, rain, wind), pile
driving may continue only until the current segment of the pile is
driven; no additional sections of pile or additional piles may be
driven until conditions improve such that the Level B harassment zone
can be effectively monitored. If the Level B harassment zone cannot be
monitored for more than 15 minutes, the entire Level B harassment zone
will be cleared again for 30 minutes prior to pile driving.
In addition to these additional mitigation measures, NMFS had
requested that the POA restrict all pile driving and removal work to
April to July, when CIBWs are typically found in lower numbers.
However, given the safety and environmental concerns of collapse of the
Northern Extension once removal work commences, required sequencing of
pile installation and removal and fill removal, and uncertainties and
adaptive nature of the work, the POA stated that it cannot commit to
restricting pile driving and removal to April to July. Instead, as
required in the mitigation measures, NMFS will require the POA to
complete as much work as is practicable in April to July to reduce the
amount of pile driving and removal activities needed in August through
November.
For previous IHAs issued to the POA (PCT: 85 FR 19294, April 6,
2020; SFD: 86 FR 50057, September 7, 2021), the use of a bubble curtain
to reduce noise has been required as a mitigation measure for certain
pile driving scenarios. The POA did not propose to use a bubble curtain
system during the NES1 project, stating that it is not a practicable
mitigation measure for this demolition project. NMFS concurred with
this determination. Practicability concerns include the following:
<bullet> NES1 construction activities include installation of
round, temporary, stability template piles to shore up the filled NES1
structure while fill material and sheet piles are removed. Stability
template piles that will be required for demolition of the sheet pile
structure are located in proximity of the sheet piles. A bubble curtain
will not physically fit between the sheet piles and the template piles;
<bullet> Bubble curtains cannot be installed around the sheet piles
as they are removed because the structure consists of sheet piles that
are connected to one another and used to support fill-material. It will
not be possible to place a bubble curtain system along the sheet pile
face for similar reasons, including lack of space for the bubble
curtain and the structures and equipment that will be needed to install
and operate it, and the high likelihood that it could not function or
be retrieved; and
<bullet> NES1 is a failed structure, and has been deemed ``globally
unstable'' and poses significant risk for continued deterioration and
structural collapse. If the existing structure were to collapse during
deconstruction and sheet pile removal, there is risk of a significant
release of impounded fill material into CIBW habitat, the POA's vessel
operating and mooring areas, and the USACE Anchorage Harbor Project.
Due to the stability risk of the existing impounded material, it is
expected that construction and demolition means and methods will be
highly adaptive once actual field work commences, and use of a bubble
curtain with deconstruction will limit operations in the field and
create significant health and safety issues.
The POA also has efficacy concerns about requiring a bubble curtain
for NES1 construction activities. Adding a requirement for a bubble
curtain may hinder production, due to the time required to install and
remove the bubble curtain itself. This has the potential to drive the
in-water construction schedule further into the late summer months,
which are known for higher CIBW abundance in lower Knik Arm, thus
lengthening the duration of potential interactions between CIBW and in-
water work. Therefore, NMFS is concerned that use of a bubble curtain
may not be an effective measure, given the potential that bubble
curtain use could ultimately result in increased impacts to CIBW, in
addition to the aforementioned practicability issues.
Based on our evaluation of the applicant's planned measures, as
well as other measures considered by NMFS, NMFS has determined that the
mitigation measures required herein 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 IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral 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,
[[Page 2866]]
acoustic habitat, or other important physical components of marine
mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
The POA will implement a marine mammal monitoring and mitigation
strategy intended to avoid and minimize impacts to marine mammals (see
appendix B of the POA's application for their Marine Mammal Monitoring
and Mitigation Plan). Marine mammal monitoring will be conducted at all
times when in-water pile installation and removal is taking place.
Additionally, PSOs will be on-site monitoring for marine mammals during
in-water cutting of sheet piles with shears or an ultrathermic torch.
The marine mammal monitoring and mitigation program that is planned
for NES1 construction is modeled after the stipulations outlined in the
IHAs for Phase 1 and Phase 2 PCT construction (85 FR 19294, April 6,
2020) and the IHA for SFD construction (86 FR 50057, September 7,
2021).
Visual Monitoring
Monitoring must be conducted by qualified, NMFS-approved PSOs, in
accordance with the following:
<bullet> PSOs must be independent of the activity contractor (e.g.,
employed by a subcontractor) and have no other assigned tasks during
monitoring periods. At least one PSO must have prior experience
performing the duties of a PSO during construction activity pursuant to
a NMFS-issued ITA or Letter of Concurrence. Other PSOs may substitute
other relevant experience (including relevant Alaska native traditional
knowledge), education (degree in biological science or related field),
or training for prior experience performing the duties of a PSO. PSOs
must be approved by NMFS prior to beginning any activity subject to
this IHA;
<bullet> The POA must employ PSO stations at a minimum of two
locations from which PSOs can effectively monitor the shutdown zones
(table 13). Concerns about the stability of the NES1 project area
preclude determination of the exact number and locations of PSO
stations until the Construction Contractor develops their Construction
Work Plan. PSO stations must be positioned at the best practical
vantage points that are determined to be safe. Likely locations include
the Anchorage Public Boat Dock at Ship Creek to the south of the NES1
project site, and a location to the north of the project site, such as
the northern end of POA property near Cairn Point (see North Extension
area on figure 12-1 in the POA's application) or at Port MacKenzie
across Knik Arm (see figure 12-1 in the POA's application for potential
locations of PSO stations). A location near the construction activity
may not be possible given the risk of structural collapse as outlined
in the POA's IHA application. Placing a PSO on the northernmost portion
of Terminal 3 will also be considered if deemed safe. Areas near Cairn
Point or Port MacKenzie have safety, security, and logistical issues,
which will need to be considered. Cairn Point proper is located on
military land and has bear presence, and restricted access does not
allow for the location of an observation station at this site.
Tidelands along Cairn Point are accessible only during low tide
conditions and have inherent safety concerns of being trapped by rising
tides. Port MacKenzie is a secure port that is relatively remote,
creating safety, logistical, and physical staffing limitations due to
lack of nearby lodging and other facilities. The roadway travel time
between port sites is approximately 2-3 hours. An adaptive management
measure is planned for a monitoring location north of the project site,
once the Construction Contractor has been selected and more detailed
discussions can occur. Temporary staffing of a northerly monitoring
station during peak marine mammal presence time periods and/or when
shutdown zones are large will be considered;
<bullet> PSOs stations must be elevated platforms constructed on
top of shipping containers or a similar base that is at least 8' 6''
high (i.e., the standard height of a shipping container) that can
support up to three PSOs and their equipment. The platforms must be
stable enough to support use of a theodolite and must be located to
optimize the PSO's ability to observe marine mammals and the harassment
zones;
<bullet> Each PSO station must have at least two PSOs on watch at
any given time; one PSO must be observing, one PSO must be recording
data (and observing when there are no data to record). Teams of three
PSOs must include at least one PSO who must be observing and one PSO
who must be recording data (and observing when there are no data to
record). The third PSO may help to observe, record data, or rest. In
addition, if POA is conducting non-NES1-related in-water work that
includes PSOs, the NES1 PSOs must be in real-time contact with those
PSOs, and both sets of PSOs must share all information regarding marine
mammal sightings with each other;
<bullet> A designated lead PSO must always be on site. The lead
observer must have prior experience performing the duties of a PSO
during in-water construction activities pursuant to a NMFS-issued ITA
or Letter of Concurrence. Each PSO station must also have a designated
lead PSO specific to that station and shift;
<bullet> PSOs will use a combination of equipment to perform marine
mammal observations and to verify the required monitoring distance from
the project site, including 7 by 50 binoculars, 20x/40x tripod mounted
binoculars, 25 by 150 ``big eye'' tripod mounted binoculars, and
theodolites; and
<bullet> PSOs must record all observations of marine mammals,
regardless of distance from the pile being driven. PSOs shall document
any behavioral responses in concert with distance from piles being
driven or removed.
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 record required information
including but not limited to the number and species of marine mammals
observed; dates and times when in-water construction activities were
conducted; dates, times, and reason for implementation of mitigation
(or why mitigation was not implemented when required); and marine
mammal behavior; and
<bullet> Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
Reporting
NMFS will require the POA to submit interim weekly and monthly
monitoring reports during the NES1 construction season. These reports
must include a summary of marine mammal species and behavioral
observations, construction shutdowns or delays, and construction work
completed. They also must include an assessment of the amount of
construction remaining to be completed (i.e., the number of estimated
hours of work remaining), in addition to the number of CIBWs observed
within estimated harassment zones to date.
A draft summary marine mammal monitoring report (that includes
final electronic data sheets) must be submitted to NMFS within 90 days
after the completion of all construction activities, or 60 days prior
to a requested
[[Page 2867]]
date of issuance of any future ITA for projects at the same location,
whichever comes first. The report will include an overall description
of work completed, a narrative regarding marine mammal sightings, and
associated PSO data sheets. PSO data sheets should be submitted in a
format that can be queried such as a spreadsheet or database (i.e.,
digital images of data sheets are not sufficient). 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 the number and type of piles driven or
removed and by what method (i.e., impact or vibratory), the total
equipment duration for vibratory installation and removal, and the
total number of strikes for each pile during impact driving;
<bullet> PSO locations during marine mammal monitoring;
<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;
<bullet> Upon observation of a marine mammal, the following
information: name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting; time of sighting; 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; distance and bearing of each
marine mammal observed relative to the pile being driven for each
sighting (if pile driving was occurring at time of sighting); estimated
number of animals (minimum, maximum, and best estimate); estimated
number of animals by cohort (adults, juveniles, neonates, group
composition, sex class, etc.); animal's closest point of approach and
estimated time spent within the harassment zone; group spread and
formation (for CIBWs only); description of any marine mammal behavioral
observations (e.g., observed behaviors such as feeding or traveling),
including an assessment of behavioral responses that may have resulted
from the activity (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 and shutdown zones, by species; and
<bullet> Detailed information about any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting changes in behavior of the
animal(s), if any.
If no comments are received from NMFS within 30 days, the draft
final report will constitute the final report. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments.
Reporting Injured or Dead Marine Mammals
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the IHA-holder must
immediately cease the specified activities and report the incident to
OPR, NMFS (<a href="/cdn-cgi/l/email-protection#4111136f0815116f0c2e2f28352e33282f261324312e333532012f2e20206f262e37"><span class="__cf_email__" data-cfemail="0555572b4c51552b486a6b6c716a776c6b625760756a777176456b6a64642b626a73">[email protected]</span></a>), and to the Alaska
Regional Stranding Coordinator as soon as feasible. If the death or
injury was clearly caused by the specified activity, the POA 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 IHA. The POA must not resume their activities until notified by
NMFS. The report must include the following information:
<bullet> Time, date, and location (latitude and 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.
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 12, except CIBWs, given that
many of the anticipated effects of this project on different marine
mammal stocks are expected to be relatively similar in nature. For
CIBWs, there are meaningful differences in anticipated individual
responses to activities, impact of expected take on the population, or
impacts on habitat; therefore, we provide a separate detailed analysis
for CIBWs following the analysis for other species for which we
authorize take.
NMFS has identified key factors which may be employed to assess the
level of analysis necessary to conclude whether potential impacts
associated with a specified activity should be considered negligible.
These include (but are not limited to) the type and magnitude of
taking, the amount and importance of the available habitat for the
species or stock that is affected, the duration of the anticipated
effect to the species or stock, and the status of the species or stock.
The potential effects of the specified actions on gray whales, humpback
whales, killer whales, harbor porpoises, Steller sea lions, and harbor
seals are discussed below. Some of these factors also apply to CIBWs;
however, a more detailed analysis for CIBWs is provided in a separate
sub-section below.
Pile driving associated with the project, as outlined previously,
has the potential to disturb or displace marine mammals. Specifically,
the specified activities may result in take, in the form of Level B
harassment and, for some
[[Page 2868]]
species, Level A harassment, from underwater sounds generated by pile
driving. Potential takes could occur if marine mammals are present in
zones ensonified above the thresholds for Level B harassment or Level A
harassment, identified above, while activities are underway.
The POA's planned activities and associated impacts will occur
within a limited, confined area of the stocks' range. The work will
occur in the vicinity of the NES1 site and sound from the planned
activities will be blocked by the coastline along Knik Arm along the
eastern boundaries of the site, and for those harassment isopleths that
extend more than 3,000-m (i.e., the vibratory installation of 36-inch
(91-cm) piles and vibratory removal of 24-inch (61-inch) piles),
directly across the Arm along the western shoreline (see figure 6-4 in
the POA's application)). The intensity and duration of take by Level A
and Level B harassment will be minimized through use of mitigation
measures described herein. Further the amount of take authorized is
small when compared to stock abundance (see table 12). In addition,
NMFS does not anticipate that serious injury or mortality will occur as
a result of the POA's planned activity given the nature of the
activity, even in the absence of required mitigation.
Exposures to elevated sound levels produced during pile driving may
cause behavioral disturbance of some individuals. Behavioral responses
of marine mammals to pile driving at the NES1 project site are expected
to be mild, short term, and temporary. Effects on individuals that are
taken by Level B harassment, as enumerated in the Estimated Take
section, on the basis of reports in the literature as well as
monitoring from other similar activities at the POA and elsewhere, will
likely be limited to reactions such as increased swimming speeds,
increased surfacing time, or decreased foraging (if such activity were
occurring; e.g., Ridgway et al., 1997; Nowacek et al., 2007; Thorson
and Reyff, 2006; Kendall and Cornick, 2015; Goldbogen et al., 2013b;
Piwetz et al., 2021). Marine mammals within the Level B harassment
zones may not show any visual cues they are disturbed by activities or
they could become alert, avoid the area, leave the area, or display
other mild responses that are not observable such as changes in
vocalization patterns or increased haul out time (e.g., Tougaard et
al., 2003; Carstensen et al., 2006; Thorson and Reyff, 2006; Parks et
al., 2007; Brandt et al., 2011; Graham et al., 2017). However, as
described in the Potential Effects of Specified Activities on Marine
Mammals and Their Habitat section of the Federal Register notice of the
proposed IHA (88 FR 76576, November 6, 2023), marine mammals, excepting
CIBWs, observed within Level A and Level B harassment zones related to
recent POA construction activities have not shown any acute observable
reactions to pile driving activities that have occurred during the PCT
and SFD projects (61N Environmental, 2021, 2022a, 2022b).
Some of the species present in the region will only be present
temporarily based on seasonal patterns or during transit between other
habitats. These temporarily present species will be exposed to even
smaller periods of noise-generating activity, further decreasing the
impacts. Most likely, individual animals will simply move away from the
sound source and be temporarily displaced from the area. Takes may also
occur during important feeding times. The project area though
represents a small portion of available foraging habitat and impacts on
marine mammal feeding for all species should be minimal.
The activities analyzed here are similar to numerous other
construction activities conducted in Alaska (e.g., 86 FR 43190, August
6, 2021; 87 FR 15387, March 18, 2022), including the PCT and SFD
projects within Upper Knik Arm (85 FR 19294, April 6, 2020; 86 FR
50057, September 7, 2021, respectively) which have taken place with no
known long-term adverse consequences from behavioral harassment. Any
potential reactions and behavioral changes are expected to subside
quickly when the exposures cease and, therefore, no such long-term
adverse consequences should be expected (e.g., Graham et al., 2017).
For example, harbor porpoises returned to a construction area between
pile-driving events within several days during the construction of
offshore wind turbines near Denmark (Carstensen et al., 2006). The
intensity of Level B harassment events will be minimized through use of
mitigation measures described herein, which were not quantitatively
factored into the take estimates. The POA will use PSOs stationed
strategically to increase detectability of marine mammals during in-
water construction activities, enabling a high rate of success in
implementation of shutdowns to avoid or minimize injury for most
species. Further, given the absence of any major rookeries and haulouts
within the estimated harassment zones, we assume that potential takes
by Level B harassment will have an inconsequential short-term effect on
individuals and will not result in population-level impacts.
As stated in the mitigation section, the POA will implement
shutdown zones that equal or exceed the Level A harassment isopleths
shown in table 7. Take by Level A harassment is authorized for some
species (harbor seals and harbor porpoises) to account for the
potential that an animal could enter and remain within the Level A
harassment zone for a duration long enough to incur PTS. Any take by
Level A harassment is expected to arise from, at most, a small degree
of PTS because animals will need to be exposed to higher levels and/or
longer duration than are expected to occur here in order to incur any
more than a small degree of PTS.
Due to the levels and durations of likely exposure, animals that
experience PTS will likely only receive slight PTS, i.e., minor
degradation of hearing capabilities within regions of hearing that
align most completely with the frequency range of the energy produced
by POA's in-water construction activities (i.e., the low-frequency
region below 2 kHz), not severe hearing impairment or impairment in the
ranges of greatest hearing sensitivity. If hearing impairment does
occur, it is most likely that the affected animal will lose a few dBs
in its hearing sensitivity, which in most cases is not likely to
meaningfully affect its ability to forage and communicate with
conspecifics. There are no data to suggest that a single instance in
which an animal accrues PTS (or TTS) and is subject to behavioral
disturbance will result in impacts to reproduction or survival. If PTS
were to occur, it will be at a lower level likely to accrue to a
relatively small portion of the population by being a stationary
activity in one particular location. Additionally, and as noted
previously, some subset of the individuals that are behaviorally
harassed could also simultaneously incur some small degree of TTS for a
short duration of time. Because of the small degree anticipated,
though, any PTS or TTS potentially incurred here is not expected to
adversely impact individual fitness, let alone annual rates of
recruitment or survival.
Theoretically, repeated, sequential exposure to pile driving noise
over a long duration could result in more severe impacts to individuals
that could affect a population (via sustained or repeated disruption of
important behaviors such as feeding, resting, traveling, and
socializing; Southall et al., 2007). Alternatively, marine mammals
exposed to repetitious construction sounds may become
[[Page 2869]]
habituated, desensitized, or tolerant after initial exposure to these
sounds (reviewed by Richardson et al., 1995; Southall et al., 2007).
Given that marine mammals still frequent and use Knik Arm despite being
exposed to pile driving activities across many years, these severe
population level impacts are not anticipated. The absenc
[…truncated; see source link]Indexed from Federal Register on January 16, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.