Proposed Rule2024-14162
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Repair and Replacement of the Q8 Bulkhead at Naval Station Norfolk
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 3, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from the U.S. Navy (Navy) for authorization to take marine mammals incidental to the Q8 Bulkhead repair and replacement project at Naval Station (NAVSTA) Norfolk in Norfolk, Virginia over the course of 5-years (i.e., 2025-2029) (the Project). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations. Agency responses will be included in the notice of the final decision.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 128 (Wednesday, July 3, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 128 (Wednesday, July 3, 2024)]
[Proposed Rules]
[Pages 55180-55215]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14162]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240621-0172]
RIN 0648-BM74
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to U.S. Navy Repair and Replacement of
the Q8 Bulkhead at Naval Station Norfolk
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule, request for comment.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for
authorization to take marine mammals incidental to the Q8 Bulkhead
repair and replacement project at Naval Station (NAVSTA) Norfolk in
Norfolk, Virginia over the course of 5-years (i.e., 2025-2029) (the
Project). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is
proposing regulations to govern that take, and requests comments on the
proposed regulations. Agency responses will be included in the notice
of the final decision.
DATES: Comments and information must be received no later than August
2, 2024.
ADDRESSES: A copy of the Navy's application and any supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navys-construction-activities-q8-bulkhead-naval-station">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navys-construction-activities-q8-bulkhead-naval-station</a>.
In case of problems accessing these documents, please call the
contact listed below (see FOR FURTHER INFORMATION CONTACT).
Submit all electronic public comments via the Federal e-Rulemaking
Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter NOAA-NMFS-2024-0055
in the Search box. Click on the ``Comment'' icon, complete the required
fields, and enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public records and will generally be posted for public viewing on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Attachments to electronic comments will be accepted in Microsoft Word,
Excel, or Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected
Resources, NMFS, (301) 427-8401 or <a href="/cdn-cgi/l/email-protection#9af9e8fbf3fdb4f9f5f9f1e8fff6f6daf4f5fbfbb4fdf5ec"><span class="__cf_email__" data-cfemail="4b28392a222c6528242820392e27270b25242a2a652c243d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory Action
This proposed rule would establish a framework under the authority
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of
take of marine mammals incidental to the Navy's construction activities
including pile driving at NAVSTA Norfolk.
We received an application from the Navy requesting 5-year
regulations and authorization to take multiple species of marine
mammals. Take would occur by Level B harassment, incidental to impact
and vibratory pile driving. Please see Background below for definitions
of harassment.
Legal Authority for the Proposed Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce to allow, upon request, the incidental, but
not intentional, taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region for up to 5-years if,
[[Page 55181]]
after notice and public comment, the agency makes certain findings and
issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Proposed Mitigation
section), as well as monitoring and reporting requirements. Section
101(a)(5)(A) of the MMPA, and the implementing regulations at 50 CFR
part 216 subpart I, provide the legal basis for issuing this proposed
rule containing 5-year regulations, and for any subsequent letters of
authorization (LOAs). As directed by this legal authority, this
proposed rule contains mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within the Proposed Rule
Following is a summary of the major provisions of this proposed
rule regarding Navy construction activities. These measures include:
<bullet> Required monitoring of the construction areas to detect
the presence of marine mammals before beginning construction
activities;
<bullet> Shutdown of construction activities under certain
circumstances to avoid injury of marine mammals; and
<bullet> Soft start for impact pile driving to allow marine mammals
the opportunity to leave the area prior to beginning impact pile
driving at full power.
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions Section 101(a). 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 (Section 101
(5)(A)(i)(II)(aa)). The definitions of all applicable MMPA statutory
terms cited above are included in the relevant sections below.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of
regulations) with respect to potential impacts on the human
environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (i.e., incidental harassment authorizations
(IHAs) with no anticipated serious injury or mortality) of the
Companion Manual for NAO 216-6A, which do not individually or
cumulatively have the potential for significant impacts on the quality
of the human environment and for which we have not identified any
extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS has preliminarily determined that the
issuance of the proposed regulations and LOA qualifies to be
categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process or making a final decision on
final regulations and the final LOA.
Summary of Request
On September 14, 2024, NMFS received a request from the Navy for
authorization to take marine mammals incidental to repair and
replacement of the Q8 Bulkhead at NAVSTA Norfolk in Norfolk, VA.
Following NMFS' review of the application, the Navy submitted a revised
version on December 18, 2024 and after review of that application a
second revised version was submitted on January 16, 2024. The
application was deemed adequate and complete on February 23, 2024. A
notice of receipt of the Navy's application was published in the
Federal Register on March 14, 2024 (89 FR 18605). No comments were
received on the application during the 30-day comment period. Navy's
request is for the take of four species by Level B harassment only.
Neither Navy nor NMFS expect serious injury or mortality to result from
this activity. The proposed regulations would be valid for 5 years
(2025-2029).
Description of Proposed Activity
Overview
The Navy proposes to repair and replace the Q8 bulkhead at NAVSTA
Norfolk, originally constructed in 1957, that has failed in multiple
locations, creating sinkholes and unsafe conditions. Work on the
bulkhead would be conducted from Piers 12 and 14 to restore function of
this Navy dock system. Vibratory and impact hammers would be used for
pile removal and installation. Sounds produced from these pile removal
and installation activities may result in the incidental take of marine
mammals by Level B harassment in the form of behavioral harassment. The
Q8 bulkhead consists of an approximately 2,583 feet (ft) (787.30 meters
(m) long anchored concrete sheet pile wall, beginning 400-ft (121.92 m)
south of Pier 12 and terminating 1,024 ft (312.12 m) north of Pier 14
(the Project Area). The Project would occur at NAVSTA Norfolk in
Norfolk, Virginia near the mouth of the James River. Work would be
conducted over 212 non-consecutive days to complete the proposed pile
removal and installation activities.
Dates and Duration
The proposed regulations would be valid for a period of 5 years
(2025-2029). The specified activities may occur at any time during the
5-year period of validity of the proposed regulations. The Navy expects
pile removal and driving activities for the entire Project to occur
during approximately 212 non-consecutive days over three phases each of
which would take a year to complete, with the greatest amount of work
occurring during Phase III (year 3) (approximately 204 days). However,
in the event of unforeseen delays, the Project may occur over the full
5-year duration of this proposed rule. The Navy plans to conduct all
work during daylight hours.
Specific Geographic Region
The Q8 bulkhead at NAVSTA Norfolk is located at the confluence of
the Elizabeth River, James River, Nansemond River, LaFeyette River,
Willoughby Bay, and Chesapeake Bay (figure 1). The water depth of the
proposed action area can vary from six ft (1.83 m) to 50 ft (15.24 m)
when measured at mean low water. The station is home to 59 ships
(including five aircraft carriers), 187 aircraft, 18
[[Page 55182]]
aircraft squadrons, and 326 tenant commands. Waterfront structures
include 13 large piers, numerous small piers, and bulkheads.
Anthropogenic sound is a significant contributor to the ambient
acoustic environment surrounding NAVSTA Norfolk, as it is located in
close proximity to shipping channels as well as several Port of
Virginia facilities with frequent vessel traffic that altogether have
an annual average of 1,788 vessel calls (Port of Virginia, 2021). Other
sources of human-generated underwater sound not specific to naval
installations include sounds from commercial and recreational vessel
traffic. Additionally, on average, maintenance dredging of the
navigation channel occurs every 2-years (USACE and Port of Virginia,
2018).
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TP03JY24.111
[[Page 55183]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.112
BILLING CODE 3510-22-C
Detailed Description of the Specified Activity
The proposed Project at NAVSTA Norfolk would involve the repair and
replacement of the Q8 bulkhead. Excavation of the shoreside portion
existing bulkhead would occur to expose the existing concrete relieving
platform for inspection, to facilitate removal and replacement of
existing stormwater outfall pipes and catch basins, and to accommodate
installation of a new tie-back rod system. Once the replacement of the
stormwater outfall pipes and catch basins are completed the pile
removal and installation activities would begin in three phases. The
new sheet piles would be installed outboard of the existing sheet pile
wall and concrete and composite fender piles would be installed
incrementally along the span of the bulkhead. Pile removal and
installation activities over the three phases are presented below in
table 1. Once construction is complete the previously excavated fill
material would be placed in a similar location to allow for repaving of
the shoreward area of the bulkhead. In-water construction activities,
include pile removal and installation and are described in detail
below:
Pile Removal--Vibratory hammers are expected to be used to remove
piles; however, a direct pull method or clamshell device may be used to
remove piles. These three pile removal methods are described below.
Take is not expected to occur for direct pull and clamshell removal
methods; therefore, they will not be described past what is provided
below nor included in the analysis presented in this rulemaking:
<bullet> Vibratory Extraction--This method uses a barge-mounted
crane with a vibratory driver to remove all pile types. The vibratory
driver is a large mechanical device (5-16 tons) suspended from a crane
by a cable and positioned on top of a pile. The pile is then loosened
from the sediments by activating the driver and slowly lifting up on
the driver with the aid of the crane. Once the pile is released from
the sediments, the crane continues to raise the driver and pull the
pile from the sediment. The driver is typically shut off once the pile
is loosened from the sediments. The pile is then pulled from the water
and placed on a barge. Vibratory extraction usually takes between less
than one minute (for timber piles) to 30 minutes per pile depending on
the pile size, type, and substrate conditions;
<bullet> Clamshell--In cases where use of a vibratory driver is not
possible (e.g., when the pile may break apart from clamp force and
vibration), a clamshell apparatus may be lowered from the crane in
order to remove pile stubs. A clamshell is a hinged steel apparatus
that operates similar to a set of steel jaws. The bucket is lowered
from a crane and the jaws grasp the pile stub as the crane pulls
upward. The use and size of the clamshell bucket would be minimized to
reduce the potential for generating turbidity during removal; and
<bullet> Direct Pull--Piles may be removed by wrapping the piles
with a cable or chain and pulling them directly from the sediment with
a crane. In some cases, depending on access and location, piles may be
cut at or below the mudline.
Pile Installation--Pile installation would occur using both
vibratory and impact hammers. Vibratory hammers install piles by
vibrating them and allowing the weight of the hammer to push them into
the sediment. Impact hammers operate by repeatedly dropping a heavy
piston onto a pile to drive the pile into the substrate. Concrete piles
and composite piles would be installed using an impact or vibratory
hammer. Steel sheet piles would be installed only using a vibratory
hammer.
Table 1 provides the estimated construction schedule and production
rates for the proposed construction activities considered for this
proposed rulemaking beginning with Phase I. Each phase of the
construction would occur over a 1-year period for a total of 3-years.
Some Project elements will use only one method of pile installation
while others may use two methods (e.g., impact hammer or vibratory
hammer and impact hammer), but all pile driving methods have been
analyzed. The method of installation will be determined by the
construction crew
[[Page 55184]]
once demolition and installation has begun.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TP03JY24.113
BILLING CODE 3510-22-C
Concurrent Activities--In order to maintain Project schedules, it
is likely that multiple pieces of equipment would operate at the same
time within the Project Area. Table 2 provides a summary of the
possible equipment combinations by phase where a maximum of four pieces
of in-water equipment may be occurring simultaneously. As mentioned
above, the method of installation, and whether concurrent pile driving
scenarios will be implemented, will be determined by the construction
crew once the Project has begun. Therefore, the total take estimate
reflects the highest amount for a given activity during the proposed
Project.
[[Page 55185]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.114
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (see the Proposed Mitigation
and Proposed Monitoring and Reporting sections).
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, 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 at: <a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>.
Table 3 lists all species or stocks for which take is expected and
proposed to be authorized for this activity, and summarizes information
related to the population or stock, including regulatory status under
the MMPA and Endangered Species Act (ESA) and potential biological
removal (PBR), where known. PBR is defined by the MMPA as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population (as described in NMFS'
SARs) (Section 3 (19)(A). While no serious injury or mortality is
anticipated or proposed to be 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. Atlantic SARs. All values presented in table 3 are the most
recent available at the time of publication (including from the draft
2023 SARs) 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>.
BILLING CODE 3510-22-P
[[Page 55186]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.115
BILLING CODE 3510-22-C
As indicated above, all four species (with six managed stocks) in
table 3 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. All species that could
potentially occur in the proposed action area are included in table 3-1
of the IHA application. While
[[Page 55187]]
gray seals (Halichoerus grypus) have been documented in the area, the
temporal and/or spatial occurrence of the species is such that take is
not expected to occur, and it is not discussed further beyond the
explanation provided here.
Surveys conducted in the lower Chesapeake Bay have observed gray
seals regularly near the mouth of the Bay (Rees et al., 2016; Jones et
al. 2018; Jones & Rees, 2020, 2021, 2022). Although gray seals are
present at the mouth of the Chesapeake Bay NMFS reviewed monitoring
reports from the Hampton Roads Bridge-Tunnel Expansion Project IHA (85
FR 48153, August 10, 2020) and the Navy Pier 3 IHA (87 FR 15945, March
21, 2022) and there were no gray seals observed during either of those
projects (Hampton Roads Connector Partners 2023; W.F. Magann
Corporation 2023). Therefore, take is not expected for these species
and they are not discussed further in this document.
Humpback Whale
In the winter months, humpback whales from waters off New England,
Canada, Greenland, Iceland, and Norway, migrate to mate and calve
primarily in the West Indies, where spatial and genetic mixing among
these groups occurs. NMFS defines a humpback whale stock on the basis
of feeding location (i.e., Gulf of Maine). However, our reference to
humpback whales in this document refers to any individual of the
species that are found in the species geographic region. These
individuals may be from the same breeding population (e.g., West Indies
breeding population of humpback whales) but visit different feeding
areas.
Prior to 2016, humpback whales were listed under the ESA as an
endangered species worldwide. Following a 2015 global status review
(Bettridge et al., 2015), NMFS established 14 Distinct Population
Segments (DPSs) with different listing statuses (81 FR 62259, September
8, 2016) pursuant to the ESA. Humpback whales in the Project Area are
expected to be from the West Indies DPS, which consists of the whales
whose breeding range includes the Atlantic margin of the Antilles from
Cuba to northern Venezuela, and whose feeding range primarily includes
the Gulf of Maine, eastern Canada, and western Greenland. This DPS is
not ESA listed. Bettridge et al., (2003) estimated the size of the West
Indies DPS at 12,312 (95 percent confidence interval 8,688-15,954)
whales in 2004-05, which is consistent with previous population
estimates of approximately 10,000-11,000 whales (Stevick et al., 2003;
Smith et al., 1999) and the increasing trend for the West Indies DPS
(Bettridge et al., 2015).
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine through Florida. This
event was declared an unusual mortality event (UME) in 2017. A portion
of the whales have shown evidence of pre-mortem vessel strike; however,
this finding is not consistent across all whales examined, and
additional research is needed. Since May 3, 2024, 221 Atlantic humpback
whales have been subject to the active UME. Additional information is
available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>.
Humpback whales are most likely to occur near the mouth of the
Chesapeake Bay and coastal waters of Virginia Beach between January and
March; however, they could be found in the area year-round, based on
shipboard sighting and stranding data (Barco and Swingle, 2014;
Aschettino et al., 2015; 2016; 2017; 2018). Photo-identification data
support the repeated use of the mid-Atlantic region by individual
humpback whales. Results of the vessel surveys show site fidelity in
the survey area for some individuals and a high level of occurrence
within shipping channels--an important high-use area by both the Navy
and commercial traffic (Aschettino et al., 2015; 2016; 2017; 2018).
Nearshore surveys conducted in early 2015 reported 61 individual
humpback whale sightings, and 135 individual humpback whale sightings
in late 2015 through May 2016 (Aschettino et al., 2016). Subsequent
surveys confirmed the occurrence of humpback whales in the nearshore
survey area: 248 individuals were detected in 2016-2017 surveys
(Aschettino et al., 2017), 32 individuals were detected in 2017-2018
surveys (Aschettino et al., 2018), and 80 individuals were detected in
2019 surveys (Aschettino et al., 2019). Sightings in the Hampton Roads
area in the vicinity of NAVSTA Norfolk were reported in nearshore
surveys and through tracking of satellite-tagged whales in 2016, 2017
and 2019. The numbers of whales detected, most of which were juveniles,
reflect the varying level of survey effort and changes in survey
objectives from year to year, and do not indicate abundance trends over
time. Recent monitoring reports from the Hampton Roads Bridge-Tunnel
Expansion Project and the Pier 3 Navy Construction Project did not
observe any humpback whales near the project sites. Monitoring for the
Hampton Roads Bridge-Tunnel Expansion Project spanned from September
2020 through July 2021 (over a 197-day period) and monitoring for the
Pier 3 Navy Construction Project spanned from August 2022 to December
2022 (i.e., over a 45-day period) (Hampton Roads Connector Partners
2023; W.F. Magann Corporation 2023).
Bottlenose Dolphin
Along the U.S. East Coast and northern Gulf of Mexico, the
bottlenose dolphin stock structure is well studied. There are currently
54 management stocks identified by NMFS in the western North Atlantic
and Gulf of Mexico, including oceanic, coastal, and estuarine stocks
(Hayes et al., 2017; Waring et al., 2015, 2016).
Bottlenose dolphins inhabiting nearshore coastal and estuarine
waters between New York and Florida may be a separate species from
their offshore counterparts (Costa et al., 2022). The offshore form is
larger in total length and skull length and has wider nasal bones than
the coastal form. Both inhabit waters in the western North Atlantic
Ocean and Gulf of Mexico (Curry and Smith, 1997; Hersh and Duffield,
1990; Mead and Potter, 1995) along the U.S. Atlantic coast. The coastal
species of bottlenose dolphin is continuously distributed along the
Atlantic coast south of Long Island, New York, around the Florida
peninsula, and along the Gulf of Mexico coast. This type typically
occurs in waters less than 25 meters deep (Waring et al., 2015). The
range of the offshore bottlenose dolphin includes waters beyond the
continental slope (Kenney, 1990), and offshore bottlenose dolphins may
move between the Gulf of Mexico and the Atlantic (Wells et al., 1999).
Two coastal stocks are likely to be present in the Project Area:
(1) the Western North Atlantic Northern Migratory Coastal stock; and
(2) the Western North Atlantic Southern Migratory Coastal stock.
Additionally, the Northern North Carolina Estuarine System stock may
occur in the Project Area.
Bottlenose dolphins are the most abundant marine mammal along the
Virginia coast and within the Chesapeake Bay, typically traveling in
groups of 2-15 individuals, but occasionally in groups of over 100
individuals (Engelhaupt et al., 2014; 2015; 2016). Bottlenose dolphins
of the Western North Atlantic Northern Migratory Coastal stock winter
along the coast of North Carolina and migrate as far north as Long
Island, New York, in the summer. They are rarely found north of North
Carolina in the winter (NMFS, 2018). The Western North
[[Page 55188]]
Atlantic Southern Migratory Coastal stock occurs in waters of southern
North Carolina from October to December, moving south during winter
months and north to North Carolina during spring months. During July
and August, the Western North Atlantic Southern Migratory Coastal stock
is presumed to occupy coastal waters north of Cape Lookout, North
Carolina, to the eastern shore of Virginia (NMFS, 2018). It is possible
that these animals also occur inside the Chesapeake Bay and in
nearshore coastal waters. The North Carolina Estuarine System stock
dolphins may also occur in the Chesapeake Bay during July and August
(NMFS, 2018).
Vessel surveys conducted along coastal and offshore transects from
NAVSTA Norfolk to Virginia Beach in most months from August 2012 to
August 2015 reported bottlenose dolphins throughout the survey area,
including the vicinity of NAVSTA Norfolk (Engelhaupt et al., 2014;
2015; 2016). The final results from this project confirmed earlier
findings that bottlenose dolphins are common in the study area, with
highest densities in the coastal waters in summer and fall months.
However, bottlenose dolphins do not completely leave this area during
colder months, with approximately 200-300 individuals still present in
winter and spring months, which is commonly referred to as the
Chesapeake Bay resident dolphin population (Engelhaupt et al., 2016).
During monitoring of Pier 3 Navy Construction Project, 18 bottlenose
dolphins were observed over 45 days of construction (W.F. Magann
Corporation 2023). Over the 197 days of construction a total of 94
bottlenose dolphins were observed during the Hampton Roads Bridge-
Tunnel Expansion Project (Hampton Roads Connector Partners 2023). For
both projects bottlenose dolphins were the only marine mammal observed
while conducting monitoring activities.
Harbor Porpoise
Harbor porpoises inhabit cool temperate-to-subpolar waters, often
where prey aggregations are concentrated (Watts and Gaskin, 1985).
Thus, they are frequently found in shallow waters, most often near
shore, but they sometimes move into deeper offshore waters. Harbor
porpoises are rarely found in waters warmer than 63 degrees Fahrenheit
(17 degrees Celsius) (Read 1999) and closely follow the movements of
their primary prey, Atlantic herring (Gaskin 1992).
In the western North Atlantic, harbor porpoise range from
Cumberland Sound on the east coast of Baffin Island, southeast along
the eastern coast of Labrador to Newfoundland and the Gulf of St.
Lawrence, then southwest to about 34 degrees North on the coast of
North Carolina (Waring et al., 2016). During winter (January to March),
intermediate densities of harbor porpoises can be found in waters off
New Jersey to North Carolina, and lower densities are found in waters
off New York to New Brunswick, Canada (Waring et al., 2016). Harbor
porpoises sighted off the mid-Atlantic during winter include porpoises
from other western North Atlantic populations (Rosel et al., 1999).
There does not appear to be a temporally coordinated migration or a
specific migratory route to and from the Bay of Fundy region (Waring et
al., 2016). During the fall (October to December) and the spring (April
to June), harbor porpoises are widely dispersed from New Jersey to
Maine, with lower densities farther north and south (LaBrecque et al.,
2015).
Based on stranding reports, passive acoustic recorders, and
shipboard surveys, harbor porpoise occur in coastal waters primarily in
winter and spring months, but there is little information on their
presence in the Chesapeake Bay. They do not appear to be abundant in
the NAVSTA Norfolk area in most years, but this is confounded by wide
variations in stranding occurrences over the past decade. There were no
harbor porpoise observed during construction activities for the Pier 3
Navy Construction Project or the Hampton Roads Bridge-Tunnel Expansion
Project (Hampton Roads Connector Partners 2023; W.F. Magann Corporation
2023).
Harbor Seal
The Western North Atlantic stock of harbor seals occurs in the
Project Area. Harbor seal distribution along the U.S. Atlantic coast
has shifted in recent years, with an increased number of seals reported
from southern New England to the mid-Atlantic region (DiGiovanni et
al., 2011; Hayes et al., 2021). Regular sightings of seals in Virginia
have become a common occurrence in winter and early spring (Costidis et
al., 2019). Winter haulout sites for harbor seals have been documented
in the Chesapeake Bay at the Chesapeake Bay Bridge Tunnel (CBBT), on
the Virginia Eastern Shore, and near Oregon Inlet, North Carolina
(Waring et al., 2016; Rees et al., 2016; Jones et al., 2018).
Harbor seals regularly haul out on rocks around the portal islands
of the CBBT and on mud flats on the nearby southern tip of the Eastern
Shore from December through April (Rees et al., 2016; Jones et al.,
2018). Seals captured in 2018 on the Eastern Shore and tagged with
satellite-tracked tags that lasted from 2 to 5 months spent at least 60
days in Virginia waters before departing the area. All tagged seals
returned regularly to the capture site while in Virginia waters, but
individuals utilized offshore and Chesapeake Bay waters to different
extents (Ampela et al., 2019). The area that was utilized most heavily
was near the Eastern Shore capture site, but some seals ranged into the
Chesapeake Bay. To supplement this information, there were no harbor
seals observed during construction activities for the Pier 3 Navy
Construction Project or the Hampton Roads Bridge-Tunnel Expansion
Project (Hampton Roads Connector Partners 2023; W.F. Magann Corporation
2023).
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in table 4.
[[Page 55189]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.116
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
The Estimated Take of Marine Mammals section later in this document
includes a quantitative analysis of the number of individuals that are
expected to be taken by this activity. The Negligible Impact Analysis
and Determination section considers the content of this section, the
Estimated Take of Marine Mammals section, and the Proposed Mitigation
section, to draw conclusions regarding the likely impacts of these
activities on the reproductive success or survivorship of individuals
and whether those impacts are reasonably expected to, or reasonably
likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.
Description of Sound Sources
The marine soundscape is comprised of both ambient and
anthropogenic sounds. Ambient sound is defined as the all-encompassing
sound in a given place and is usually a composite of sound from many
sources both near and far. The sound level of an area is defined by the
total acoustical energy being generated by known and unknown sources.
These sources may include physical (e.g., waves, wind, precipitation,
earthquakes, ice, atmospheric sound), biological (e.g., sounds produced
by marine mammals, fish, and invertebrates), and anthropogenic sound
(e.g., vessels, dredging, aircraft, construction).
The sum of the various natural and anthropogenic sound sources at
any given location and time--which comprise ``ambient'' or
``background'' sound--depends not only on the source levels (as
determined by current weather conditions and levels of biological and
shipping activity) but also on the ability of sound to propagate
through the environment. In turn, sound propagation is dependent on the
spatially and temporally varying properties of the water column and sea
floor and is frequency-dependent. As a result of the dependence on a
large number of varying factors, ambient sound levels can be expected
to vary widely over both coarse and fine spatial and temporal scales.
Sound levels at a given frequency and location can vary by 10-20 dB
from day to day (Richardson et al., 1995). The result is that,
depending on the source type and its intensity, sound from the
specified activity may be a negligible addition to the local
environment or could form a distinctive signal that may affect marine
mammals.
In-water construction activities associated with the Project would
include vibratory pile driving and removal and impact pile driving. The
sounds produced by these activities fall into one of two general sound
types: (1) impulsive; and (2) non-impulsive. Impulsive sounds (e.g.,
explosions, gunshots, sonic booms, impact pile driving) are typically
transient, brief (i.e., less than 1 second), broadband, and consist of
high peak sound pressure with rapid rise time and rapid decay (ANSI
1986; NIOSH 1998; ANSI 2005; NMFS 2018). Non-impulsive sounds (e.g.,
aircraft, machinery operations such as drilling or dredging, vibratory
pile driving, and active sonar systems) can be broadband, narrowband or
tonal, brief or prolonged (continuous or intermittent), and typically
do not have the high peak sound pressure with raid rise/decay time that
impulsive sounds do (ANSI 1995; NIOSH 1998; NMFS 2018). The distinction
between these two sound types is important because they have differing
potential to cause physical effects, particularly with regard to
hearing (e.g., Ward 1997 in Southall et al., 2007).
Impact hammers operate by repeatedly dropping a heavy piston onto
[[Page 55190]]
a pile to drive the pile into the substrate. Sound generated by impact
hammers is characterized by rapid rise times and high peak levels, a
potentially injurious combination (Hastings and Popper 2005). Vibratory
hammers install piles by vibrating them and allowing the weight of the
hammer to push them into the sediment. The vibrations produced also
cause liquefaction of the substrate surrounding the pile, enabling the
pile to be extracted or driven into the ground more easily. Vibratory
hammers produce significantly less sound than impact hammers. Peak
sound pressure levels (SPLs) may be 180 dB or greater but are generally
10 to 20 dB lower than SPLs generated during impact pile driving of the
same-sized pile (Oestman et al., 2009). Rise time is slower, reducing
the probability and severity of injury, and sound energy is distributed
over a greater amount of time (Nedwell and Edwards 2002; Carlson et
al., 2005).
The likely or possible impacts of the Navy's proposed activity on
marine mammals could involve both non-acoustic and acoustic stressors.
Potential non-acoustic stressors could result from the physical
presence of the equipment and personnel; however, any impacts to marine
mammals are expected to be primarily acoustic in nature and no takes
specifically attributed to non-acoustic stressors are expected to
occur. Acoustic stressors include effects of heavy equipment operation
during pile driving and removal.
Acoustic Impacts
The introduction of anthropogenic noise into the aquatic
environment from pile driving is the primary means by which marine
mammals may be harassed from the Navy's specified activity. In general,
animals exposed to natural or anthropogenic sound may experience
physical and psychological effects, ranging in magnitude from none to
severe (Southall et al., 2007 and Southall et al. 2021). In general,
exposure to pile driving noise has the potential to result in auditory
threshold shifts and behavioral reactions (e.g., avoidance, temporary
cessation of foraging and vocalizing, changes in dive behavior).
Exposure to anthropogenic noise can also lead to non-observable
physiological responses such an increase in stress hormones. Additional
noise in a marine mammal's habitat can mask acoustic cues used by
marine mammals to carry out daily functions such as communication and
predator and prey detection. The effects of pile driving noise on
marine mammals are dependent on several factors, including, but not
limited to, sound type (e.g., impulsive vs. non-impulsive), the
species, age and sex class (e.g., adult male vs. mom with calf),
duration of exposure, the distance between the pile and there animal,
received levels, behavior at time of exposure, and previous history
with exposure (Wartzok et al., 2004; Southall et al., 2007). Here we
discuss physical auditory effects (threshold shifts) followed by
behavioral effects and potential impacts on habitat.
NMFS defines a noise-induced threshold shift (TS) as a change,
usually an increase, in the threshold of audibility at a specified
frequency or portion of an individual's hearing range above a
previously established reference level (NMFS 2018). The amount of
threshold shift is customarily expressed in dB. A TS can be permanent
or temporary. As described in NMFS (2018), there are numerous factors
to consider when examining the consequence of TS, including, but not
limited to, the signal temporal pattern (e.g., impulsive or non-
impulsive), likelihood an individual would be exposed for a long enough
duration or to a high enough level to induce a TS, the magnitude of the
TS, time to recovery (seconds to minutes or hours to days), the
frequency range of the exposure (i.e., spectral content), the hearing
and vocalization frequency range of the exposed species relative to the
signal's frequency spectrum (i.e., how an animal uses sound within the
frequency band of the signal; e.g., Kastelein et al., 2014), and the
overlap between the animal and the source (e.g., spatial, temporal, and
spectral).
Permanent Threshold Shift (PTS)--NMFS defines PTS as a permanent,
irreversible increase in the threshold of audibility at a specified
frequency or portion of an individual's hearing range above a
previously established reference level (NMFS 2018). Available data from
humans and other terrestrial mammals indicate that a 40 dB threshold
shift approximates PTS onset (see Ward et al., 1958, 1959; Ward 1960;
Kryter et al., 1966; Miller 1974; Ahroon et al., 1996; Henderson et
al., 2008). PTS levels for marine mammals are estimates (with the
exception of a single study unintentionally inducing PTS in a harbor
seal (Kastak et al., 2008)), and there are no empirical data measuring
PTS in marine mammals largely due to the fact that, for various ethical
reasons, experiments involving anthropogenic noise exposure at levels
inducing PTS are not typically pursued or authorized (NMFS 2018).
Temporary Threshold Shift (TTS)--TTS is a temporary, reversible
increase in the threshold of audibility at a specified frequency or
portion of an individual's hearing range above a previously established
reference level (NMFS 2018). Based on data from cetacean TTS
measurements (see Southall et al., 2007), a TTS of six dB is considered
the minimum threshold shift clearly larger than any day-to-day or
session-to-session variation in a subject's normal hearing ability
(Schlundt et al., 2000; Finneran et al., 2000, 2002). As described in
Finneran (2015), marine mammal studies have shown the amount of TTS
increases with cumulative sound exposure level (SELcum) in an
accelerating fashion. At low exposures with lower SELcum, the amount of
TTS is typically small and the growth curves have shallow slopes. At
exposures with higher SELcum, the growth curves become steeper and
approach linear relationships with the noise SEL.
Depending on the degree (elevation of threshold in dB), duration
(i.e., recovery time), and frequency range of TTS, and the context in
which it is experienced, TTS can have effects on marine mammals ranging
from discountable to serious (similar to those discussed in auditory
masking, below). For example, a marine mammal may be able to readily
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that takes place during a time when the animal
is traveling through the open ocean, where ambient noise is lower and
there are not as many competing sounds present. Alternatively, a larger
amount and longer duration of TTS sustained during a time when
communication is critical for successful mother/calf interactions could
have more serious impacts. We note that reduced hearing sensitivity as
a simple function of aging has been observed in marine mammals, as well
as humans and other taxa (Southall et al., 2007), so we can infer that
strategies exist for coping with this condition to some degree, though
likely not without cost.
Currently, TTS data only exist for four species of cetaceans (i.e.,
bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor
porpoise, and Yangtze finless porpoise (Neophocoena asiaeorientalis))
and five species of pinnipeds exposed to a limited number of sound
sources (i.e., mostly tones and octave-band noise) in laboratory
settings (Finneran 2015). TTS was not observed in trained spotted
(Phoca largha) and ringed (Pusa hispida) seals exposed to impulsive
noise at levels matching previous predictions of TTS onset (Reichmuth
et al., 2016). In general, harbor seals and harbor porpoises have a
lower TTS onset than other measured
[[Page 55191]]
pinniped or cetacean species (Finneran 2015). Additionally, the
existing marine mammal TTS data come from a limited number of
individuals within these species. No data are available on noise-
induced hearing loss for mysticetes. For summaries of data on TTS in
marine mammals or for further discussion of TTS onset thresholds,
please see Southall et al. (2007), Finneran and Jenkins (2012),
Finneran (2015), and table 5 in NMFS (2018).
Installing piles for this Project requires a combination of impact
pile driving and vibratory pile driving. For this Project, these
activities would not occur at the same time and there would be pauses
in activities producing the sound during each day. Given these pauses
and that many marine mammals are likely moving through the ensonified
area and not remaining for extended periods of time, the potential for
TS declines.
Behavioral Effects
Exposure to noise from pile driving and removal also has the
potential to behaviorally disturb marine mammals. Available studies
show wide variation in response to underwater sound; therefore, it is
difficult to predict specifically how any given sound in a particular
instance might affect marine mammals perceiving the signal. If a marine
mammal does react briefly to an underwater sound by changing its
behavior or moving a small distance, the impacts of the change are
unlikely to be significant to the individual, let alone the stock or
population. However, if a sound source displaces marine mammals from an
important feeding or breeding area for a prolonged period, impacts on
individuals and populations could be significant (e.g., Lusseau and
Bejder, 2007; Weilgart, 2007; NRC, 2005; Southall et al., 2021).
Disturbance may result in: (1) changing durations of surfacing and
dives, number of blows per surfacing, or moving direction and/or speed;
(2) reduced/increased vocal activities; (3) changing/cessation of
certain behavioral activities (e.g., socializing or feeding); (4)
visible startle response or aggressive behavior (e.g., tail/fluke
slapping or jaw clapping); (5) avoidance of areas where sound sources
are located. Pinnipeds may increase their haul out time, possibly to
avoid in-water disturbance (Thorson and Reyff, 2006). Behavioral
responses to sound are highly variable and context-specific, and any
reactions depend on numerous intrinsic and extrinsic factors (e.g.,
species, state of maturity, experience, current activity, reproductive
state, auditory sensitivity, time of day), as well as the interplay
between those factors (e.g., Richardson et al., 1995; Wartzok et al.,
2003; Southall et al., 2007, Southall et al. 2021; Weilgart, 2007;
Archer et al., 2010). Behavioral reactions can vary not only among
individuals but also within exposures of an individual, depending on
previous experience with a sound source, context, and numerous other
factors (Ellison et al., 2012; Southall et al., 2021), and can vary
depending on characteristics associated with the sound source (e.g.,
whether it is moving or stationary, number of sources, distance from
the source). In general, pinnipeds seem more tolerant of, or at least
habituate more quickly to, potentially disturbing underwater sound than
do cetaceans, and generally seem to be less responsive to exposure to
industrial sound than most cetaceans. For a review of studies involving
marine mammal behavioral responses to sound, see: Southall et al.,
2007; Gomez et al., 2016; and Southall et al., 2021.
Disruption of feeding behavior can be difficult to correlate with
anthropogenic sound exposure, so it is usually inferred by observed
displacement from known foraging areas, the appearance of secondary
indicators (e.g., bubble nets or sediment plumes), or changes in dive
behavior. As for other types of behavioral response, the frequency,
duration, and temporal pattern of signal presentation, as well as
differences in species sensitivity, are likely contributing factors to
differences in response in any given circumstance (e.g., Croll et al.,
2001; Nowacek et al., 2004; Madsen et al., 2006; Yazvenko et al.,
2007). A determination of whether foraging disruptions incur fitness
consequences would require information on or estimates of the energetic
requirements of the affected individuals and the relationship between
prey availability, foraging effort and success, and the life history
stage of the animal.
In 2021, the Navy monitored construction activities at Pier 3
during pile driving activities from August through December. That
project was in roughly the same location as the Q8 bulkhead. Four
detections of 35 bottlenose dolphins occurred over 45 total days of
construction. All 35 of the bottlenose dolphins that were observed were
in estimated Level B harassment zones and occurred just in the month of
August (W.F. Magann Corporation 2023). The I-64 Hampton Roads Bridge-
Tunnel Expansion Project pile driving occurred from January through
December of 2023 over 234 days. During that work, 94 bottlenose
dolphins were observed entering harassment zones (92 in estimated Level
B harassment zones and two in estimated Level A harassment zones)
(Hampton Roads Connector Partners 2023). During both of these projects,
the only marine mammals observed were bottlenose dolphins and no
visible signs of disturbance were noted for any of the dolphins. Given
the similarities in activities and habitat and the fact the same
species are involved, we expect similar behavioral responses of marine
mammals to the specified activity. That is, disturbance, if any, is
likely to be temporary and localized (e.g., small area movements).
Airborne Acoustic Effects--Although pinnipeds are known to haul-out
regularly on man-made objects (e.g., the CBBT), we believe that
incidents of take resulting solely from airborne sound are unlikely due
to the sheltered proximity between the proposed Project Area and these
haulout sites (i.e., over 16 miles (26 km)). There is a possibility
that an animal could surface in-water, but with head out, within the
area in which airborne sound exceeds relevant thresholds and thereby be
exposed to levels of airborne sound that we associate with harassment,
but any such occurrence would likely be accounted for in our estimate
of incidental take from underwater sound. Therefore, authorization of
incidental take resulting from airborne sound for pinnipeds is not
warranted, and airborne sound is not discussed further here. Cetaceans
are not expected to be exposed to airborne sounds that would result in
harassment as defined under the MMPA.
Marine Mammal Habitat Effects
The Navy's construction activities could have localized, temporary
impacts on marine mammal habitat by increasing in-water sound pressure
levels and slightly decreasing water quality. However, since the focus
of the proposed action is pile driving, no net habitat loss is expected
as the new Q8 bulkhead would be immediately seaward of the existing
bulkhead or would encapsulate the existing bulkhead. Construction
activities are of short duration and would likely have temporary
impacts on marine mammal habitat through increases in underwater
sounds. Increased noise levels may affect the acoustic habitat and
adversely affect marine mammal prey in the vicinity of the Project Area
(see discussion below). During pile driving activities, elevated levels
of underwater noise would ensonify the Project Area where both fishes
and marine mammals may occur and could affect foraging success.
Additionally, marine mammals may avoid the area during construction,
[[Page 55192]]
however displacement due to noise is expected to be temporary and is
not expected to result in long-term effects to the individuals or
populations. The area likely impacted by the Project is relatively
small compared to the available habitat in the surrounding waters of
the Chesapeake Bay.
Temporary and localized reduction in water quality will occur
because of in-water construction activities as well. Most of this
effect will occur during the installation and removal of piles when
bottom sediments are disturbed. The installation of piles will disturb
bottom sediments and may cause a temporary increase in suspended
sediment in the Project Area. In general, turbidity associated with
pile installation is localized to an approximately 25-ft (7.6 m) radius
around the pile (Everitt et al., 1980). Cetaceans are not expected to
be close enough to the pile driving areas to experience effects of
turbidity, and any pinnipeds could avoid localized areas of turbidity.
Therefore, we expect the impact from increased turbidity levels to be
discountable to marine mammals and do not discuss it further.
In-Water Construction Effects on Potential Foraging Habitat--The
proposed activities would not result in permanent impacts to habitats
used directly by marine mammals except for the actual footprint of the
new Q8 bulkhead. The total seafloor area affected by pile installation
and removal is a very small area that is not known to be of particular
importance compared to the vast foraging area available to marine
mammals in the Project Area and lower Chesapeake Bay. Pile extraction
and installation may have impacts on benthic invertebrate species
primarily associated with disturbance of sediments that may cover or
displace some invertebrates. The impacts will be temporary and highly
localized, and no habitat will be permanently displaced by
construction. Therefore, it is expected that impacts on foraging
opportunities for marine mammals due to the construction of the Q8
bulkhead would be minimal.
It is possible that avoidance by potential prey (i.e., fish) in the
immediate area may occur due to temporary loss of this foraging
habitat. The duration of fish avoidance of this area after pile driving
stops is unknown, but we anticipate a rapid return to normal
recruitment, distribution, and behavior. Any behavioral avoidance by
fish of the disturbed area would still leave large areas of fish and
marine mammal foraging habitat in the nearby vicinity in the Project
Area and lower Chesapeake Bay.
Effects on Potential Prey--Sound may affect marine mammals through
impacts on the abundance, behavior, or distribution of prey species
(e.g., fish). Marine mammal prey varies by species, season, and
location. Here, we describe studies regarding the effects of noise on
known marine mammal prey.
Fish utilize the soundscape and components of sound in their
environment to perform important functions such as foraging, predator
avoidance, mating, and spawning (e.g., Zelick et al., 1999; Fay, 2009).
Depending on their hearing anatomy and peripheral sensory structures,
which vary among species, fish hear sounds using pressure and particle
motion sensitivity capabilities and detect the motion of surrounding
water (Fay et al., 2008). The potential effects of noise on fishes
depend on the overlapping frequency range, distance from the sound
source, water depth of exposure, and species-specific hearing
sensitivity, anatomy, and physiology. Key impacts to fishes may include
behavioral responses, hearing damage, pressure-related injuries (i.e.,
barotrauma), and mortality.
Fish react to sounds which are especially strong and/or
intermittent low-frequency sounds, and behavioral responses such as
flight or avoidance are the most likely effects. Short duration, sharp
sounds can cause overt or subtle changes in fish behavior and local
distribution. The reaction of fish to noise depends on the
physiological state of the fish, past exposures, motivation (e.g.,
feeding, spawning, migration), and other environmental factors.
Hastings and Popper (2005) identified several studies that suggest fish
may relocate to avoid certain areas of sound energy. Additional studies
have documented effects of pile driving on fish, although several are
based on studies in support of large, multiyear bridge construction
projects (e.g., Scholik and Yan, 2001, 2002; Popper and Hastings,
2009). Several studies have demonstrated that impulse sounds might
affect the distribution and behavior of some fishes, potentially
impacting foraging opportunities or increasing energetic costs (e.g.,
Fewtrell and McCauley, 2012; Pearson et al., 1992; Skalski et al.,
1992; Santulli et al., 1999; Paxton et al., 2017). However, some
studies have shown no or slight reaction to impulse sounds (e.g., Pena
et al., 2013; Wardle et al., 2001; Jorgenson and Gyselman, 2009; Cott
et al., 2012).
SPLs of sufficient strength have been known to cause injury to fish
and fish mortality. However, in most fish species, hair cells in the
ear continuously regenerate and loss of auditory function likely is
restored when damaged cells are replaced with new cells. Halvorsen et
al. (2012a) showed that a TTS of 4-6 dB was recoverable within 24 hours
for one species. Impacts would be most severe when the individual fish
is close to the source and when the duration of exposure is long.
Injury caused by barotrauma can range from slight to severe and can
cause death and is most likely for fish with swim bladders. Barotrauma
injuries have been documented during controlled exposure to impact pile
driving (Halvorsen et al., 2012b; Casper et al., 2013).
The most likely impact to fish from pile driving activities in the
Project Area would be temporary behavioral avoidance of the area. The
duration of fish avoidance of an area after pile driving stops is
unknown, but a rapid return to normal recruitment, distribution and
behavior is anticipated.
The area impacted by the Project is relatively small compared to
the available habitat in the remainder of the Project Area and the
lower Chesapeake Bay, and there are no areas of particular importance
that would be impacted by this Project. Any behavioral avoidance by
fish of the disturbed area would still leave significantly large areas
of fish and marine mammal foraging habitat in the nearby vicinity. As
described in the preceding, the potential for the Navy's construction
to affect the availability of prey to marine mammals or to meaningfully
impact the quality of physical or acoustic habitat is considered to be
insignificant.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
proposed for authorization, 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) (16 U.S.C. 1362(18)(A)(i)-
(ii)).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for
[[Page 55193]]
individual marine mammals resulting from exposure to sounds emitted
from pile driving. Based on the nature of the activity and the
anticipated effectiveness of the mitigation measures (i.e., shutdown
zones) discussed in detail below in the Proposed Mitigation section,
Level A harassment is neither anticipated nor proposed to be
authorized.
As described previously, no serious injury or mortality is
anticipated or proposed to be authorized for this activity. Below we
describe how the proposed take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the proposed take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the state of the receiving animals (e.g.,
hearing, motivation, experience, demography, life stage, depth) and can
be difficult to predict (e.g., Southall et al., 2007, 2021, Ellison et
al., 2012). Based on what the available science indicates and the
practical need to use a threshold based on a metric that is both
predictable and measurable for most activities, NMFS typically uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS generally predicts that marine
mammals are likely to be behaviorally harassed in a manner considered
to be Level B harassment when exposed to underwater anthropogenic noise
above root-mean-squared pressure received levels (RMS SPL) of 120 dB
(referenced to one micropascal (re one [mu]Pa)) for continuous (e.g.,
vibratory pile driving) and above RMS SPL 160 dB re one [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 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 (i.e.,
conspecific communication, predators, and prey) may result in changes
in behavior patterns that would not otherwise occur.
The Navy's activity includes the use of continuous (e.g., vibratory
pile driving and removal) and impulsive (e.g., impact pile driving)
sources, and therefore the RMS SPL thresholds of 120 and 160 dB re one
[mu]Pa are applicable.
These thresholds are provided in table 5 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 55194]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.117
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
coefficient.
The sound field in the Project Area is the existing background
noise plus additional construction noise from the proposed Project.
Marine mammals are expected to be affected via sound generated by the
primary components of the Project (i.e., impact pile driving and
vibratory pile driving and removal). The maximum underwater area
ensonified above the thresholds for individual activities of behavioral
harassment referenced above is 93.5 km\2\ (36.1 mi\2\) and would
consist of an area reaching the opposite shoreline of the river (see
figures 6.6, 6.8, and 6.10 in the Navy's application for the Incidental
Take Authorization for the Q8 bulkhead Project). The maximum
(underwater) area ensonified above the thresholds for concurrent
activities of behavioral harassment referenced above is 97.9 km\2\
(37.8 mi\2\) and would consist of a similar area reaching the opposite
shoreline of the river as individual activities (see figures 6.11-6.16
in the Navy's application). Additionally, vessel traffic and other
commercial and industrial activities in the Project Area may contribute
to elevated background noise levels which may mask sounds produced by
the Project.
Transmission loss (TL) is the decrease in acoustic intensity as an
acoustic pressure wave propagates out from a source. TL parameters vary
with frequency, temperature, sea conditions, current, source and
receiver depth,
[[Page 55195]]
water depth, water chemistry, and bottom composition and topography.
The general formula for underwater TL is:
TL = B * Log<INF>10</INF> (R1/R2),
where
TL = transmission loss in dB
B = transmission loss coefficient
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement
This formula neglects loss due to scattering and absorption, which
is assumed to be zero here. The degree to which underwater sound
propagates away from a sound source is dependent on a variety of
factors, most notably the water bathymetry and presence or absence of
reflective or absorptive conditions including in-water structures and
sediments. Spherical spreading occurs in a perfectly unobstructed
(i.e., free-field) environment not limited by depth or water surface,
resulting in a 6-dB reduction in sound level for each doubling of
distance from the source (20*log[range]). Cylindrical spreading occurs
in an environment in which sound propagation is bounded by the water
surface and sea bottom, resulting in a reduction of three dB in sound
level for each doubling of distance from the source (10*log[range]). A
practical spreading value of 15 is often used under conditions, such as
the Project site, where water increases with depth as the receiver
moves away from the shoreline, resulting in an expected propagation
environment that would lie between spherical and cylindrical spreading
loss conditions. Practical spreading loss is assumed here.
The intensity of pile driving sounds is greatly influenced by
factors such as the type of piles, hammers, and the physical
environment 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 Navy and NMFS used acoustic monitoring data from other locations to
develop proxy source levels for the various pile types, sizes, and
methods. The Project includes vibratory and impact installation of
prestressed concrete and composite piles and vibratory removal of
existing concrete piles. Steel sheet piles to make up the wall of the
bulkhead would be installed with vibratory hammers. Source levels for
each pile size and driving method for individual activities are
presented in table 6. For concurrent activities where two noise sources
have overlapping sound fields, there is potential for higher sound
levels than for non-overlapping sources because the isopleth of one
sound source encompasses the sound source of another isopleth. In such
instances, the sources are considered additive and combined using the
rules of decibel addition. For addition of two simultaneous sources,
the difference between the two sound source levels is calculated, and:
(1) if that difference is between zero and one dB, three dB are added
to the higher sound source level; (2) if the difference is between two
or three dB, two dB are added to the highest sound source level; (3) if
the difference is between four to nine dB, one dB is added to the
highest sound source level; and (4) with differences of 10 dB or more,
there is no addition. Source levels for each pile size and vibratory
driving for concurrent activities are presented in table 7.
[GRAPHIC] [TIFF OMITTED] TP03JY24.118
[[Page 55196]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.119
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 impact or vibratory pile driving and removal, the
optional User Spreadsheet tool predicts the distance at which, if a
marine mammal remained at that distance for the duration of the
activity, it would be expected to incur PTS. Inputs used in the
optional User Spreadsheet tool, and the resulting estimated isopleths,
are reported below. For concurrent activities where combined impact and
vibratory hammer scenarios shown in table 10, the estimated Level A
isopleth distances reflect the impact driving activity and the
estimated Level B isopleth distances reflect the combined vibratory
source levels for that activity.
BILLING CODE 3510-22-P
[[Page 55197]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.120
[[Page 55198]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.121
[[Page 55199]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.122
[[Page 55200]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.123
BILLING CODE 3510-22-C
The maximum distance to the Level A harassment threshold during
construction would be during the impact driving of 18-inch (in)
concrete piles during Phase III of individual activities (i.e., 64.0 m
for humpback whale) and during the concurrent vibratory extraction of
18-in concrete piles, vibratory installation of 56-in steel sheet
piles, and impact install 18-in concrete piles for concurrent
activities of Phase I (i.e., 5.4 m for bottlenose dolphin; 89.8 m for
harbor porpoises; and 36.9 m for pinnipeds). Given these relatively
small isopleths, if a marine mammal enters the shutdown zone during
impact pile driving it is expected that the construction activity would
be shut down before any marine mammal would incur PTS. Therefore, no
take by Level A harassment is expected during the construction
activities associated with the Q8 bulkhead. The largest calculated
Level B harassment isopleth extends out to 18,478 m, which would result
from concurrent pile driving of the scenarios presented in table 9. The
largest Level B harassment zone of 18,478 m is not an attainable
observable distance in all directions, but in some areas the distance
is smaller due to the zone being cut off by landmasses. The Level B
harassment zone will be monitored to the maximum extent possible.
Marine Mammal Occurrence and Take Estimation
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information which
will inform the take calculations. We describe how the information
provided is synthesized
[[Page 55201]]
to produce a quantitative estimate of the take that is reasonably
likely to occur and proposed for authorization.
Humpback Whale
Humpback whales occur in the mouth of the Chesapeake Bay and
nearshore waters of Virginia during winter and spring months. Several
satellite tagged humpback whales were detected west of the Chesapeake
Bay Bridge Tunnel, including two individuals with locations near NAVSTA
Norfolk and Joint Expeditionary Base Little Creek (Aschettino et al.,
2017). Group size was not reported in these surveys; however, most
whales detected were juveniles. Although two individuals were detected
in the vicinity of the proposed Project Area during shipboard surveys
conducted in 2020, there is no evidence that they lingered for multiple
days (Aschettino, 2020). Because no density estimates are available for
the species in this area, the Navy estimated, and NMFS concurs, that
one potential sighting of an average size group (i.e., two individuals)
could occur every 60 days of pile driving. Therefore, given the number
of Project days expected in each year (table 1), NMFS is proposing to
authorize a total of 16 takes by Level B harassment of humpback whale
over the 5-year authorization, with no more than four takes by Level B
harassment in a given year.
The largest Level A harassment zone for low-frequency cetaceans
extends approximately 64 m from the source during impact pile driving
of the 18-in concrete piles (table 9). The Navy plans to shut down if a
humpback whale is sighted within any of the Level A harassment zones
for all activities. Therefore, NMFS is not proposing to authorize take
by Level A harassment of humpback whales.
Bottlenose Dolphins
The expected number of bottlenose dolphins in the Project Area was
estimated using inshore seasonal densities provided in Engelhaupt et
al. (2016) from vessel line-transect surveys near NAVSTA Norfolk and
adjacent areas near Virginia Beach, Virginia, from August 2012 through
August 2015. This density includes sightings inshore of the Chesapeake
Bay from NAVSTA Norfolk west to the Thimble Shoals Bridge and is the
most representative density for the Project Area. To calculate
potential Level B harassment takes of bottlenose dolphin, NMFS
conservatively multiplied the density of 1.38 dolphin/km\2\ (from
Engelhaupt et al., 2016) by the largest Level B harassment isopleth for
each activity (tables 9 and 10), and then by the number of days
associated with that activity (table 1). For example, to calculate
Level B harassment takes associated with work at the Q8 bulkhead in
Phase I for the vibratory removal of 18-in concrete piles, NMFS
multiplied the density (i.e., 1.38 dolphins/km\2\) by the Level B
harassment zone for that activity (i.e., 43.3 km\2\) by the
proportional number of pile driving days for that activity (i.e., 24
days) for a total of 1,437 Level B harassment takes for that activity
during Phase I. Takes by Level B harassment were calculated for both
individual pile driving activities and concurrent pile driving
activities, as authorized takes are conservatively based on the
scenario that produces more takes by Level B harassment (table 11).
Therefore, NMFS proposes to authorize 14,191 takes by Level B
harassment of bottlenose dolphin across all 5 years, with no more than
6,168 takes in a given year.
The largest Level A harassment zone for mid-frequency cetaceans
extends approximately 5.4 m from the source during concurrent
activities during Phase I (table 10). A minimum shutdown zone of 10 m
would be established for all construction activities. The Navy plans to
shut down all activities if a bottlenose dolphin is sighted within the
shutdown zones for mid-frequency cetaceans. Therefore, NMFS is not
proposing to authorize take by Level A harassment of bottlenose
dolphins.
Harbor Porpoise
Harbor porpoises are known to occur in the coastal waters near
Virginia Beach (Hayes et al., 2019). Density data for this species
within the Project vicinity do not exist or were not calculated because
sample sizes were too small to produce reliable estimates of density.
Harbor porpoise sighting data collected by the Navy near NAVSTA Norfolk
and Virginia Beach from 2012 to 2015 (Engelhaupt et al. 2014; 2015;
2016) did not produce enough sightings to calculate densities. One
group of two harbor porpoises was seen during spring 2015 (Engelhaupt
et al. 2016). Elsewhere in their range, harbor porpoises typically
occur in groups of two to three individuals (Carretta et al. 2001;
Smultea et al. 2017).
Due to there being no density estimates for the species in the
Project Area, the Navy conservatively estimated one exposure of two
porpoises for every 60 days of pile driving. Total pile driving days
for Phase I would be 74 days, Phase II would be 37 days, and Phase III
would be 101 days. Takes by Level B harassment were calculated for both
individual pile driving activities and concurrent pile driving
activities, as authorized takes are conservatively based on the
scenario that produced the larger exposure estimate (table 11). Using
the above methodology, NMFS calculated an exposure estimate of eight
incidents of take for harbor porpoises.
NMFS does not expect any Level A harassment of harbor porpoise
during this Project. The largest Level A harassment zone for high-
frequency cetaceans extends approximately 89.8 m from the source during
concurrent activities during Phase I (table 10). The Navy plans to shut
down all activities if a harbor porpoise is sighted within the shutdown
zones for high-frequency cetaceans. Therefore, NMFS is not proposing to
authorize take by Level A harassment of harbor porpoise.
Harbor Seal
The expected number of harbor seals in the Project Area was
estimated using systematic land- and vessel-based survey data for in-
water and hauled out seals collected by the U.S. Navy at the CBBT rock
armor and portal islands from 2014 through 2019 (Jones et al., 2020).
The average daily seal count from the field season ranged from eight to
23 seals, with an average of 13.6 harbor seals across all the field
seasons.
NMFS expects that harbor seals are likely to be present from
November to April and, consistent with other recent projects (88 FR
31633, May 18, 2023; 87 FR 15945, March 31, 2022; 86 FR 24340; May 6,
2021, and 86 FR 17458; April 2, 2021), NMFS calculated take by Level B
harassment by multiplying 13.6 seals by the maximum number of pile
driving days expected to occur from November through April. Therefore,
we expect the total number of takes by Level B harassment for harbor
seals to be 2,882.
NMFS does not expect any Level A harassment of harbor seals during
this Project. The largest Level A harassment zone for phocids extends
approximately 36.9 m from the source during concurrent activities
during Phase I (table 10). The Navy plans to shut down all activities
if a harbor porpoise is sighted within the shutdown zones for phocids.
Therefore, NMFS is not proposing to authorize take by Level A
harassment of harbor seals.
BILLING CODE 3510-22-P
[[Page 55202]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.124
[[Page 55203]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.125
BILLING CODE 3510-22-C
Proposed Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance. NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (e.g., 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, impact on
operations.
In addition to the measures described later in this section, the
Navy will employ the following mitigation measures:
<bullet> The Navy will conduct briefings between construction
supervisors and crews, the marine mammal monitoring team, and Navy
staff prior to the start of all pile driving activity and when new
personnel join the work, to explain responsibilities, communication
procedures, marine mammal monitoring protocol, and operational
procedures;
<bullet> If a marine mammal comes within 10 m of construction
activities, including in-water heavy machinery work, operations shall
cease and vessels shall reduce speed to the minimum level required to
maintain steerage and safe working conditions;
<bullet> Pile driving activity must be halted upon observation of
either a species for
[[Page 55204]]
which incidental take is not authorized or a species for which
incidental take has been authorized but the authorized number of takes
has been met, entering or is within the harassment zone.
The following mitigation measures apply to the Navy's in-water
construction activities.
Establishment of Shutdown Zones--The Navy will establish shutdown
zones for all pile driving and removal activities. The purpose of a
shutdown zone is generally to define an area within which shutdown of
the activity would occur upon sighting of a marine mammal (or in
anticipation of an animal entering the defined area). Shutdown zones
will vary based on the activity type and marine mammal hearing group
(tables 12 and 13).
Protected Species Observers (PSOs)--The placement of PSOs during
all pile driving and removal activities (described in the Proposed
Monitoring and Reporting section) will ensure that the entire shutdown
zone is visible. A minimum of two PSOs would be used during all
activities.
Monitoring for Level A and B Harassment--The Navy will monitor the
Level B harassment zones (i.e., areas where SPLs are equal to or exceed
the 160 dB rms threshold for impact pile driving, and the 120 dB rms
threshold during vibratory pile driving and removal) to the extent
practicable, and all of the Level A harassment zones and shutdown
zones, during all pile driving days. Monitoring zones provide utility
for observing by establishing monitoring protocols for areas adjacent
to the shutdown zones. Monitoring zones enable observers to be aware of
and communicate the presence of marine mammals in the Project Area
outside the shutdown zone and thus prepare for a potential cessation of
activity should the animal enter the shutdown zone.
Pre-Activity Monitoring--Prior to the start of daily in-water
construction activity, or whenever a break in pile driving/removal of
30 minutes or longer occurs, PSOs will observe the shutdown and
monitoring zones for a period of 30 minutes. Pile driving may commence
following 30 minutes of observation when the determination is made that
the shutdown zones are clear of marine mammals. If a marine mammal is
observed within the shutdown zones listed in table 12 or table 13, pile
driving activity 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 zones or 15 minutes have
passed without re-detection of the animal. If work ceases for more than
30 minutes, the pre-activity monitoring of the shutdown zones will
commence. A determination that the shutdown zone is clear must be made
during a period of good visibility (i.e., the entire shutdown zone and
surrounding waters must be visible to the naked eye).
Soft Start--Soft start procedures are used to provide additional
protection to marine mammals by providing warning and/or giving marine
mammals a chance to leave the area prior to the hammer operating at
full capacity. For impact pile driving, contractors will be required to
provide an initial set of three strikes from the hammer at reduced
energy, followed by a 30-second waiting period, then two subsequent
reduced-energy strike sets. Soft starts will be implemented at the
start of each day's impact pile driving and at any time following
cessation of impact pile driving for a period of 30 minutes or longer.
BILLING CODE 3510-22-P
[[Page 55205]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.126
[[Page 55206]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.127
BILLING CODE 3510-22-C
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has preliminarily
determined that the proposed mitigation measures provide the means of
effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Proposed Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the
[[Page 55207]]
most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Visual Monitoring
Marine mammal monitoring during pile driving and removal 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;
<bullet> At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
<bullet> Other PSOs may substitute other relevant experience,
education (i.e., a degree in biological science or related field), or
training for prior experience performing the duties of a PSO during
construction activity pursuant to a NMFS-issued incidental take
authorization;
<bullet> PSOs must be approved by NMFS prior to beginning any
activity subject to this proposed rulemaking; and
<bullet> A lead observer or monitoring coordinator must be
designated. The lead observer must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization.
PSOs must have the following additional qualifications:
<bullet> Ability to conduct field observations and collect data
according to assigned protocols;
<bullet> Experience or training in the field identification of
marine mammals, including the identification of behaviors;
<bullet> Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
<bullet> Writing skills sufficient to prepare a report of
observations including but not limited to: (1) the number and species
of marine mammals observed; (2) dates and times when in-water
construction activities were conducted; (3) dates, times, and reason
for implementation of mitigation (or why mitigation was not implemented
when required); and (4) 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.
Given the configuration of the harassment zones, which vary
depending on the pile type/size and the pile driver type (tables 9 and
10), it is assumed that two PSO would be sufficient to monitor the
zones for impact drivers, and three to four PSOs would be sufficient to
monitor the zones for vibratory drivers given the proposed placement of
the observers in the vicinity of the Project Area. However, additional
monitors may be added if warranted by the level of marine mammal
activity in the area. PSOs will be placed at the best vantage point(s)
practicable (figure 3) to monitor for marine mammals and implement
shutdown/delay procedures when applicable by calling for the shutdown
by the pile driver operator. PSOs would be deployed on the Green Mile
Fishing Pier during vibratory driving of piles when monitoring zones
are exceptionally large.
Monitoring will be conducted 30 minutes before, during, and after
all in water construction activities. In addition, observers shall
record all incidents of marine mammal occurrence, regardless of
distance from activity, and shall document any behavioral reactions in
concert with distance from piles being driven or removed. Pile driving
activities include the time to install or remove a single pile or
series of piles, as long as the time elapsed between uses of the pile
driving equipment is no more than 30 minutes.
[[Page 55208]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.128
Acoustic Monitoring
The Navy will implement in situ acoustic monitoring efforts to
measure SPLs from in-water construction activities for pile types and
methods that have not been previously collected at NAVSTA Norfolk
(table 14). The Navy will collect and evaluate acoustic sound recording
levels during pile driving activities. The Navy would collect data on
10 percent of the number of total piles driven for each pile type.
Hydrophones would be placed at locations 33 ft from the noise source
and, where the potential for Level A (PTS onset) harassment exists, at
a second representative monitoring location that is a distance of 20
times the depth of water at the pile location, to the maximum extent
practicable. For the pile driving events acoustically measured, 100
percent of the data will be analyzed. Please see the Navy's Acoustic
Monitoring Plan and section 13.2 in the application for additional
detail.
[[Page 55209]]
[GRAPHIC] [TIFF OMITTED] TP03JY24.129
Environmental data shall be collected and will include, but will
not be limited to, the following: (1) wind speed and direction; (2) air
temperature; (3) humidity; (4) surface water temperature; (5) water
depth; (6) wave height; (7) weather conditions; and (8) other factors
that could contribute to influencing underwater sound levels (e.g.,
aircrafts, boats, etc.).
Reporting
The Navy is required to submit an annual report on all activities
and marine mammal monitoring results to NMFS within 90 days following
the end of each construction year. Additionally, a draft comprehensive
5-year summary report must be submitted to NMFS within 90 days of the
end of the Project. The annual reports will include an overall
description of work completed, a narrative regarding marine mammal
sightings, and associated PSO data sheets. Specifically, the report
must include:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring;
<bullet> Construction activities occurring during each daily
observation period, including: (a) how many and what type of piles were
driven or removed and the method (i.e., impact or vibratory); and (b)
the total duration of time for each pile (vibratory driving) or number
of strikes for each pile (impact driving);
<bullet> PSO locations during marine mammal monitoring; and
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance.
Upon observation of a marine mammal the following information must
be reported:
<bullet> Name of PSO who sighted the animal(s) and PSO location and
activity at the time of the sighting;
<bullet> Time of the sighting;
<bullet> Identification of the animal(s) (e.g., genus/species,
lowest possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
<bullet> Distance and bearing of each observed marine mammal
relative to the pile being driven or removed for each sighting;
<bullet> Estimated number of animals (min/max/best estimate);
<bullet> Estimated number of animals by cohort (e.g., adults,
juveniles, neonates, group composition, etc.);
<bullet> Description of any marine mammal behavioral observations
(e.g., observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted 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, by species; and
<bullet> Detailed information about implementation of any
mitigation (e.g., shutdowns and delays), a description of specified
actions that ensured, and resulting changes in behavior of the
animal(s), if any.
The acoustic monitoring report must contain the informational
elements described in the Acoustic Monitoring Plan and, at minimum,
must include:
<bullet> Hydrophone equipment and methods: (1) recording device,
sampling rate, distance (m) from the pile where recordings were made;
and (2) the depth of water and recording device(s);
<bullet> Type and size of pile being driven, substrate type, method
of driving during recordings (e.g., hammer model and energy), and total
pile driving duration;
<bullet> Whether a sound attenuation device is used and, if so, a
detailed description of the device used and the duration of its use per
pile;
<bullet> For impact pile driving: (1) number of strikes and strike
rate; (2) depth of substrate to penetrate; (3) pulse duration and mean,
median, and maximum sound levels (dB re: one [mu]Pa): (4) root mean
square sound pressure level (SPLrms); and (5) cumulative sound exposure
level (SELcum), peak sound pressure level (SPLpeak), and single-strike
sound exposure level (SELs-s); and
<bullet> For vibratory driving/removal: (1) duration of driving per
pile; and (2) mean, median, and maximum sound levels (dB re: one
[mu]Pa): SPLrms, SELcum (and timeframe over which the sound is
averaged).
If no comments are received from NMFS within 30 days, the draft
reports will constitute the final reports. If comments are received, a
final report addressing NMFS' comments must be submitted within 30 days
after receipt of comments. All PSO datasheets and/or raw sighting data
must be submitted with the draft marine mammal report.
Reporting Injured or Dead Marine Mammals
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the LOA
(if issued) and the regulations (e.g., an injury, serious injury, or
mortality) the Navy shall report the incident to Office of Protected
Resources, NMFS, and the Greater Atlantic Region New England/Mid-
[[Page 55210]]
Atlantic Stranding Coordinator. The report must include the following
information:
<bullet> Description of the incident;
<bullet> Environmental conditions (e.g., Beaufort sea state,
visibility);
<bullet> Description of all marine mammal observations in the 24
hours preceding the incident;
<bullet> Species identification or description of the animal(s)
involved;
<bullet> Fate of the animal(s); and
<bullet> Photographs or video footage of the animal(s) (if
equipment is available).
Activities would not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS would work with the Navy to
determine what is necessary to minimize the likelihood of further
prohibited take and ensure MMPA compliance. The Navy would not be able
to resume their activities until notified by NMFS.
In the event that the Navy discovers an injured or dead marine
mammal, and the lead PSO determines that the cause of the injury or
death is unknown and the death is relatively recent (e.g., in less than
a moderate state of decomposition as described in the next paragraph),
the Navy would immediately report the incident to the Office of
Protected Resources, NMFS, and the Greater Atlantic Region New England/
Mid-Atlantic Stranding Coordinator. The report would include the same
information identified in the paragraph above. Activities would be able
to continue while NMFS reviews the circumstances of the incident. NMFS
would work with the Navy to determine whether modifications in the
activities are appropriate.
In the event that the Navy discovers an injured or dead marine
mammal and the lead PSO determines that the injury or death is not
associated with or related to the activities authorized in the LOA
(e.g., previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), the Navy would report the incident
to the Office of Protected Resources, NMFS, and the NMFS Greater
Atlantic Region New England/Mid-Atlantic Stranding Coordinator, within
24 hours of the discovery. The Navy would provide photographs, video
footage (if available), or other documentation of the stranded animal
sighting to NMFS and the Marine Mammal Stranding Network.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338,
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
To avoid repetition, this introductory discussion of our analysis
applies to all the species listed in table 3, given that many of the
anticipated effects of this Project on different marine mammal stocks
are expected to be relatively similar in nature. Where there are
meaningful differences between species or stocks, or groups of species,
in anticipated individual responses to activities, impact of expected
take on the population due to differences in population status, or
impacts on habitat, they are described independently in the analysis
below.
Construction activities associated with the Project, as outlined
previously, have the potential to disturb or displace marine mammals.
Specifically, the specified activities may result in take, in the form
of Level B harassment from underwater sounds generated by pile driving
and removal. Potential takes could occur if marine mammals are present
in zones ensonified above the thresholds for Level B harassment,
identified above, while activities are underway.
Level A harassment is unlikely considering the small Level A
harassment zones (tables 9 and 10) and corresponding shutdown zones
(tables 12 and 13) where activities would cease if animals were present
in those zones. Also, pile driving and removal activities are of
relatively short duration and an animal would have to remain within the
area estimated to be ensonified above the Level A harassment threshold
for multiple hours to incur PTS. This is highly unlikely given marine
mammal movement throughout the area, especially for small, fast-moving
species such as small cetaceans and pinnipeds. Therefore, NMFS is not
proposing to authorize take by Level A harassment during any portion of
the Navy's activities.
The nature of activities included in the Navy's pile driving
Project precludes the likelihood of serious injury or mortality. For
all species and stocks, take will occur within a limited, confined area
(i.e., immediately surrounding NAVSTA Norfolk in the Chesapeake Bay
area) of the stock's range. Level B harassment will be reduced to the
level of least practicable adverse impact through use of mitigation
measures described herein. Furthermore, the number of individuals
expected to be taken is extremely small relative to the stock abundance
for all species.
Effects on individuals that are taken by Level B harassment, on the
basis of reports in the literature as well as monitoring from other
similar activities, will likely be limited to reactions such as
increased swimming speeds, increased surfacing time, decreased foraging
(if such activity were occurring), or avoidance (e.g., Thorson and
Reyff 2006; Hampton Roads Connector Partners 2023; W.F. Magann
Corporation 2023). Individual animals, even if taken multiple times,
will most likely move away from the sound source and be temporarily
displaced from the areas of pile driving, although even this reaction
has been observed primarily only in association with impact pile
driving. The pile driving activities analyzed here are similar to, or
less impactful than, numerous other construction activities conducted
along both Atlantic and Pacific coasts, which have taken place with no
known long-term adverse consequences from behavioral harassment.
Furthermore, many Projects similar to this one are also believed to
result in multiple takes of individual animals without any documented
long-term adverse effects. Level B harassment will be minimized through
use of mitigation measures described herein and, if take does occur the
impacts would be expected to be minimal, particularly as the Project is
located on a busy waterfront with high
[[Page 55211]]
amounts of vessel traffic and other ambient noise.
A UME has been declared for humpback whales in the U.S. Atlantic.
However, we do not expect authorized takes to exacerbate or compound
upon these ongoing UMEs. As noted previously, no injury, serious
injury, or mortality is expected or authorized, and the impact of Level
B harassment takes of humpback whale will be minimized through the
incorporation of the mitigation measures. The UME does not yet provide
cause for concern regarding population-level impacts. Despite the UME,
the relevant population of humpback whales (the West Indies breeding
population, or DPS) remains healthy.
The Project is also not expected to have significant adverse
effects on affected marine mammals' habitats. The Project activities
will not modify existing marine mammal habitat for a significant amount
of time. The activities may cause some fish to leave the area of
disturbance, thus temporarily impacting marine mammals' foraging
opportunities in a limited portion of the foraging range; however,
because of the short duration of the activities and the relatively
small area of the habitat that may be affected (with no known
particular importance to marine mammals), the impacts to marine mammal
habitat are not expected to cause significant or long-term negative
consequences.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect any of the species
or stocks through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality is anticipated or
authorized;
<bullet> The intensity of anticipated takes by Level B harassment
is relatively low for all stocks;
<bullet> The specified activity and associated ensonified areas are
very small relative to the overall habitat ranges of all species and do
not include habitat areas of special significance, including any
pinniped haulouts;
<bullet> The lack of anticipated significant or long-term negative
effects to marine habitat;
<bullet> The presumed efficacy of the mitigation measures in
reducing the effects of the taking incidental to the specified
activity; and
<bullet> Monitoring reports from similar work in the Chesapeake Bay
have documented little to no effect on individuals of the same species
impacted by similar activities.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the maximum number of individuals
taken in any year to the most appropriate estimation of abundance of
the relevant species or stock in our determination of whether an
authorization is limited to small numbers of marine mammals. When the
predicted maximum annual number of individuals to be taken is fewer
than one-third of the species or stock abundance, the take is
considered to be of small numbers. Additionally, other qualitative
factors may be considered in the analysis, such as the temporal or
spatial scale of the activities.
The maximum annual take NMFS proposes to authorize for the four
marine mammal stocks is below one-third of the estimated stock
abundance for all species except for the western north Atlantic (WNA)
southern coastal migratory stock and the WNA northern coastal migratory
stock of bottlenose dolphins (see table 11).
There are three bottlenose dolphin stocks that could occur in the
Project Area. Therefore, the largest estimated annual take by Level B
harassment of 6,712 bottlenose dolphin would likely be split among the
northern migratory coastal stock, the southern migratory coastal stock,
and the northern North Carolina estuarine stock (NNCES). Based on the
stocks' respective occurrence in the area, NMFS estimates that there
would be no more than 200 takes from the NNCES stock during each phase
of construction, representing 24 percent of that population, with the
remaining takes split evenly between the northern and southern coastal
migratory stocks. Based on the consideration of various factors as
described below, we have preliminarily determined that the number of
individuals taken will comprise less than one-third of the best
available population abundance estimate of either coastal migratory
stock. Detailed descriptions of the stocks' ranges have been provided
in the Description of Marine Mammals in the Area of Specified
Activities section.
Both the WNA northern migratory stock and the WNA southern
migratory stock have expansive ranges and they are the only dolphin
stocks thought to make broad scale, seasonal migrations in coastal
waters of the WNA. Given the large ranges associated with these two
stocks, it is unlikely that large segments of either stock would
approach the Project Area and enter into the Chesapeake Bay. The
majority of both stocks are likely to be found widely dispersed across
their respective habitat ranges and unlikely to be concentrated in or
near the Chesapeake Bay.
Furthermore, the Chesapeake Bay and nearby offshore waters
represent the boundaries of the ranges of each of the two coastal
stocks during migration. The WNA northern migratory stock is found
during warm water months from coastal Virginia, including the
Chesapeake Bay and Long Island, New York. The stock migrates south in
the late summer and fall. During cold water months, dolphins may be
found in coastal waters from Cape Lookout, North Carolina, to the North
Carolina/Virginia border. During January-March, the WNA southern
migratory stock appears to move as far south as northern Florida. From
April-June, the stock moves back north to North Carolina. During the
warm water months of July-August, the stock is presumed to occupy the
coastal waters north of Cape Lookout, North Carolina, to Assateague,
Virginia, including the Chesapeake Bay. There is likely some overlap
between the stocks during spring and fall migrations, but the extent of
overlap is unknown.
In summary and as described above, the following factors primarily
support our determination regarding the incidental take of small
numbers of the affected stocks of a species or stock:
<bullet> The maximum annual take of marine mammal stocks proposed
for authorization comprises less than three percent of any stock
abundance (with the exception of the three bottlenose dolphin stocks);
<bullet> Potential bottlenose dolphin takes in the Project Area are
likely to be allocated among three distinct stocks;
<bullet> Bottlenose dolphin stocks in the Project Area have
extensive ranges and it would be unlikely to find a high percentage of
the individuals of any one stock concentrated in a relatively small
area such as the Project Area or the Chesapeake Bay;
[[Page 55212]]
<bullet> The Chesapeake Bay represents the migratory boundary for
each of the specified dolphin stocks and it would be unlikely to find a
high percentage of any stock concentrated at such boundaries; and
<bullet> Many of the takes would likely be repeats of the same
animals, including from a resident population of the Chesapeake Bay.
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals would be taken relative to the population
size of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally whenever we propose to authorize take for
endangered or threatened species.
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this action.
Request for Information
NMFS requests that interested persons submit comments, information,
and suggestions concerning the Navy's request and the proposed
regulations (see ADDRESSES). All comments will be reviewed and
evaluated as we prepare a final rule and make final determinations on
whether to issue the requested authorization. This proposed rule and
supporting documents provide all environmental information relating to
our proposed action for public review.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
proposed rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have
significant economic impact on a substantial number of small entities.
The U.S. Navy is the sole entity that would be subject to the
requirements in these proposed regulations, and the Navy is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. Because of this certification, a regulatory
flexibility analysis in not required and none has been prepared.
This proposed rule does not contain a collection-of-information
requirement subject to the provisions of the Paperwork Reduction Act
(PRA) because the applicant is a Federal agency.
List of Subjects in 50 CFR Part 217
Acoustics, Administrative practice and procedure, Construction,
Endangered and threatened species, Marine mammals, Mitigation and
monitoring requirements, Reporting requirements, Wildlife.
Dated: June 24, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, NOAA proposes to amend 50
CFR part 217 as follows:
PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Add subpart X to read as follows
Subpart X--Taking and Importing Marine Mammals Incidental to Navy
Construction of the Q8 Bulkhead Repair and Replacement Project at
Naval Station Norfolk at Norfolk, Virginia
Sec.
217.230 Specified activity and geographical region.
217.231 Effective dates.
217.232 Permissible methods of taking.
217.233 Prohibitions.
217.234 Mitigation requirements.
217.235 Requirements for monitoring and reporting.
217.236 Letters of Authorization.
217.237 Renewals and modifications of Letters of Authorization.
Sec. 217.230 Specified activity and geographical region.
(a) Regulations in this subpart apply only to the U.S. Navy (Navy)
and those persons it authorizes or funds to conduct activities on its
behalf for the taking of marine mammals that occurs in the areas
outlined in paragraph (b) of this section and that occurs incidental to
construction activities related to the repair and replacement of the Q8
bulkhead at Naval Station Norfolk at Norfolk, Virginia.
(b) The taking of marine mammals by the Navy may be authorized in a
Letter of Authorization (LOA) only if it occurs at Naval Station
Norfolk, Norfolk, Virginia.
Sec. 217.231 Effective Dates
Regulations under this subpart are effective from January 1, 2025,
through December 31, 2029.
Sec. 217.232 Permissible methods of taking.
Under an LOA issued pursuant to Sec. Sec. 216.106 and 217.236 of
this chapter, the Holder of the LOA (hereinafter ``Navy'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.230(b) by harassment associated with
construction activities related to the repair and replacement of the Q8
bulkhead, provided the activity is in compliance with all terms,
conditions, and requirements of the regulations in this subpart and the
applicable LOA.
Sec. 217.233 Prohibitions
(a) Except for the takings contemplated in Sec. 217.232 and
authorized by a LOA issued under Sec. Sec. 216.106 and 217.236 of this
chapter, it is unlawful for any person to do any of the following in
connection with the activities described in Sec. 217.230:
(1) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. Sec. 216.106
and 217.236 of this chapter;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner
other than as specified;
(4) Take a marine mammal specified in such LOA after NMFS
determines such taking results in more than a negligible impact on the
species or stocks of such marine mammal; or
[[Page 55213]]
(5) Take a marine mammal specified in such LOA after NMFS
determined such taking results in an unmitigable adverse impact on the
species or stock of such marine mammal for taking for subsistence uses.
Sec. 217.234 Mitigation requirements.
(a) When conducting the activities identified in Sec. 217.230(a),
the mitigation measures contained in this subpart and any LOA issued
under Sec. Sec. 216.106 and 217.236 of this chapter must be
implemented by the Navy. These mitigation measures include:
(1) A copy of any issued LOA must be in the possession of the Navy,
supervisory construction personnel, lead protected species observers
(PSOs), and any other relevant designees of the Navy operating under
the authority of the LOA at all times that activities subject to the
LOA are being conducted;
(2) The Navy must ensure that construction supervisors and crews,
the monitoring team, and relevant Navy staff are trained prior to the
start of activities subject to any issued LOA, so that
responsibilities, communication procedures, monitoring protocols, and
operational procedures are clearly understood. New personnel joining
during the Project must be trained prior to commencing work;
(3) The Navy, construction supervisors and crews, and relevant Navy
staff must avoid direct physical interaction with marine mammals during
construction activity. If a marine mammal comes within 10 m of such
activity, operations must cease and vessels must reduce speed to the
minimum level required to maintain steerage and safe working
conditions, as necessary to avoid direct physical interaction;
(4) The Navy must employ PSOs and establish monitoring locations as
described in the NMFS-approved Marine Mammal Monitoring Plan. The Navy
must monitor the Project Area to the maximum extent possible based on
the required number of PSOs, required monitoring locations, and
environmental conditions;
(5) For all pile driving activities, the Navy shall implement
shutdown zones with radial distances as identified in a LOA issued
under Sec. 217.236. If a marine mammal is observed entering or within
the shutdown zone, such operations must be delayed or halted.
(6) Monitoring must take place from 30 minutes prior to initiation
of a pile driving activity (i.e., pre-start clearance monitoring)
through 30 minutes post-completion of a pile driving activity.
(7) Pre-start clearance monitoring must be conducted during periods
of visibility sufficient for the lead PSO to determine that the
shutdown zones are clear of marine mammals. Pile driving may commence
following 30 minutes of observation when the determination is made that
the shutdown zones are clear of marine mammals.
(8) If a marine mammal is observed entering or within the shutdown
zones, pile driving activity must be delayed or halted.
(9) 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 or 15 minutes have passed without re-detection of the
animal.
(10) Pile driving activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or within the
harassment zone.
(11) The Navy must use soft start techniques when impact pile
driving. Soft start requires contractors to provide an initial set of
strikes at reduced energy, followed by a 30-second waiting period, then
two subsequent reduced-energy strike sets. A soft start must be
implemented at the start of each day's impact pile driving and at any
time following cessation of impact pile driving for a period of 30
minutes or longer.
Sec. 217.235 Requirements for monitoring and reporting.
(a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS
for approval in advance of construction. Marine mammal monitoring must
be conducted in accordance with the conditions in this section and the
NMFS-approved Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs,
in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (e.g.,
employed by a subcontractor) and have no other assigned tasks during
monitoring periods;
(2) At least one PSO must have prior experience performing the
duties of an observer during construction activity pursuant to a NMFS-
issued incidental take authorization;
(3) Other observers may substitute other relevant experience,
education (i.e., degree in biological science or related field), or
training for prior experience performing the duties of an observer
during construction activity pursuant to a NMFS-issued incidental take
authorization;
(4) One observer must be designated as lead observer or monitoring
coordinator. The lead observer must have prior experience performing
the duties of a PSO during construction activity pursuant to a NMFS-
issued incidental take authorization;
(5) Observers must be approved by NMFS prior to beginning any
activity subject to any issued LOA;
(6) For all pile driving activities, a minimum of two observers
shall be stationed at the best vantage points practicable. One of these
observers must be positioned to monitor for marine mammals and
implement shutdown/delay procedures.
(7) The Navy shall monitor the harassment zones to the maximum
extent practicable and the entire shutdown zones. The Navy shall
monitor at least a portion of the Level B harassment zone on all pile
driving days.
(8) The Navy shall conduct hydroacoustic data collection in
accordance with an Acoustic Monitoring Plan that must be approved by
NMFS in advance of construction.
(9) The shutdown/monitoring zones may be modified with NMFS'
approval following NMFS' acceptance of an acoustic monitoring report.
(10) The Navy must submit a draft monitoring report to NMFS within
90 calendar days of the completion of each construction year. A draft
comprehensive five-year summary report must also be submitted to NMFS
within 90 days of the end of the Project. The reports must detail the
monitoring protocol and summarize the data recorded during monitoring.
Final annual reports and the final comprehensive report must be
prepared and submitted within 30 days following resolution of any NMFS
comments on the draft report. If no comments are received from NMFS
within 30 days of receipt of the draft report, the report must be
considered final. If comments are received, a final report addressing
NMFS comments must be submitted within 30 days after receipt of
comments. The reports must at minimum contain the informational
elements described below (as well as any additional information
described in the Marine Mammal Monitoring Plan), including:
(i) Dates and times (begin and end) of all marine mammal
monitoring;
(ii) Construction activities occurring during each daily
observation period, including the number and type of piles
[[Page 55214]]
that were driven or removed and by what method (i.e., impact or
vibratory), total duration of driving time for each pile (vibratory)
and number of strikes for each pile (impact);
(iii) PSO locations during marine mammal monitoring;
(iv) Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
(v) Upon observation of a marine mammal, the following information:
(A) Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting;
(B) Time of sighting;
(C) Identification of the animal(s) (e.g., genus/species, lowest
possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
(D) Distance and location of each observed marine mammal relative
to the pile being driven for each sighting;
(E) Estimated number of animals (min/max/best estimate);
(F) Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, etc.);
(G) Animal's closest point of approach and estimated time spent
within the harassment zone;
(H) Description of any marine mammal behavioral observations (e.g.,
observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted from the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing, or breaching);
(vii) Number of marine mammals detected within the harassment
zones, by species; and
(viii) Detailed information about implementation of any mitigation
(e.g., shutdown and delays), a description of specific actions that
ensued, and resulting changes in behavior of the animal(s), if any.
(11) The Holder must submit all PSO data electronically in a format
that can be queried such as a spreadsheet or database (i.e., digital
images of data sheets are not sufficient).
(12) The Navy must report hydroacoustic data collected as required
by a LOA issued under Sec. Sec. 216.106 of this chapter and 217.236
and as discussed in the Navy's Acoustic Monitoring Plan approved by
NMFS.
(13) In the event that personnel involved in the construction
activities discover an injured or dead marine mammal, the Navy shall
report the incident to the Office of Protected Resources (OPR), NMFS,
and to the Greater Atlantic Region New England/Mid-Atlantic Regional
Stranding Coordinator as soon as feasible. If the death or injury was
clearly caused by the specified activity, the Navy must immediately
cease the specified activities until NMFS is able to review the
circumstances of the incident and determine what, if any, additional
measures are appropriate to ensure compliance with the terms of the
authorization. The Navy must not resume their activities until notified
by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the
animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if
the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s);
and
(vi) General circumstances under which the animal was discovered.
Sec. 217.236 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the Navy must
apply for and obtain a modification of the LOA as described in Sec.
217.236.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the
level of taking must be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA must be published in the
Federal Register within 30 days of a determination.
Sec. 217.237 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.236 for the activity identified in Sec. 217.230(a) may be renewed
or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting that do not change the findings made for the regulations or
result in no more than a minor change in the total estimated number of
takes (or distribution by species or years), NMFS may publish a notice
of proposed LOA in the Federal Register, including the associated
analysis of the change, and solicit public comment before issuing the
LOA.
(c) A LOA issued under Sec. Sec. 216.106 of this chapter and
217.236 for the activity identified in Sec. 217.230(a) may be modified
by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation,
monitoring, or reporting measures (after consulting with Navy regarding
the practicability of the modifications) if doing so creates a
reasonable likelihood of more effectively accomplishing the goals of
the mitigation and monitoring set forth in the preamble for these
regulations;
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
must publish a
[[Page 55215]]
notice of proposed LOA in the Federal Register and solicit public
comment;
(2) If NMFS determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in a LOA issued pursuant to Sec. 216.106 of this
chapter and Sec. 217.236, a LOA may be modified without prior notice
or opportunity for public comment. Notification would be published in
the Federal Register within 30 days of the action.
Sec. Sec. 217.238-217.239 [Reserved]
[FR Doc. 2024-14162 Filed 7-2-24; 8:45 am]
BILLING CODE 3510-22-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 3, 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.