Rule2024-23392
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
October 9, 2024
Effective
January 1, 2025
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS, upon request from the U.S. Navy (Navy), hereby issues regulations to govern the unintentional taking of marine mammals incidental to 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). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
Full Text
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<title>Federal Register, Volume 89 Issue 196 (Wednesday, October 9, 2024)</title>
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[Federal Register Volume 89, Number 196 (Wednesday, October 9, 2024)]
[Rules and Regulations]
[Pages 81848-81867]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23392]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 241003-0261]
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: Final rule.
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SUMMARY: NMFS, upon request from the U.S. Navy (Navy), hereby issues
regulations to govern the unintentional taking of marine mammals
incidental to 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). These regulations, which allow
for the issuance of a Letter of Authorization (LOA) for the incidental
take of marine mammals during the described activities and specified
timeframes, prescribe the permissible methods of taking and other means
of effecting the least practicable adverse impact on marine mammal
species or stocks and their habitat, as well as requirements pertaining
to the monitoring and reporting of such taking.
DATES: This rule is effective from January 1, 2025, through December
31, 2029.
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.
FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected
Resources, NMFS, (301) 427-8401 or <a href="/cdn-cgi/l/email-protection#ccafbeada5abe2afa3afa7bea9a0a08ca2a3adade2aba3ba"><span class="__cf_email__" data-cfemail="caa9b8aba3ade4a9a5a9a1b8afa6a68aa4a5ababe4ada5bc">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory Action
This rule establishes a framework under the authority of the Marine
Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) to allow for the
authorization of take of marine mammals incidental to the Navy's
construction activities related to the Project at NAVSTA Norfolk.
We received an application from the Navy requesting 5-year
regulations and authorization to take multiple species of marine
mammals. Take is anticipated to occur incidental to impact and
vibratory pile driving, by Level B harassment only. Please see
Background below for definitions of harassment.
Legal Authority for the Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce to allow, upon request, the incidental, but
not intentional, taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region for up to 5 years if,
after notice and public comment, the agency makes certain findings and
issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Mitigation section), as
well as monitoring and reporting requirements. Section 101(a)(5)(A) of
the MMPA, and the implementing regulations at 50 CFR part 216 subpart
I, provide the legal basis for issuing this rule containing 5-year
regulations, and for any subsequent letters of authorization (LOAs). As
directed by this legal authority, this final rule contains mitigation,
monitoring, and reporting requirements.
Summary of Major Provisions Within the Rule
Following is a summary of the major provisions of this final 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
[[Page 81849]]
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.
Summary of Request
On September 14, 2023, 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.
On July 3, 2024, NMFS published a notice of proposed rulemaking in
the Federal Register (89 FR 55180). All comments were considered in
development of this final rule (see Comments and Responses). 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 regulations will be valid for 5 years (2025-2029).
No changes were made from the proposed to the final rule.
Description of the Activity
The Navy proposes to repair and replace the Q8 bulkhead at NAVSTA
Norfolk, that has failed in multiple locations, creating sinkholes and
unsafe conditions. Work on the bulkhead will be conducted from Piers 12
and 14 to restore function of this Navy dock system. Vibratory and
impact hammers will 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 only.
Approximately 378 piles will be removed and 836 piles will be
installed. Work will be conducted in 3 phases over 212 non-consecutive
days to complete the pile removal and installation activities.
A detailed description of the planned construction project is
provided in the Federal Register notice for the proposed rule (89 FR
55180, July 3, 2024). Since that time, no changes have been made to the
planned activities. Therefore, a detailed description is not provided
here. Please refer to that Federal Register notice for the description
of the specific activity.
Comments and Responses
NMFS' notice of proposed rulemaking was published in the Federal
Register on July 3, 2024 (89 FR 55180). That proposed rule described,
in detail, the Navy's activities, the marine mammal species that may be
affected by the activities, and the anticipated effects on marine
mammals. In that proposed rule, we requested public input on the
request for authorization described therein, our analyses, the proposed
authorization, and any other aspect of the notice of proposed
rulemaking, and requested that interested persons submit relevant
information, suggestions, and comments. This proposed rule was
available for a 30-day public comment period.
During the 30-day public comment period, NMFS received 2
substantive comment submissions, from members of the public. NMFS'
responses to the comments are provided below, and all comments are
available online at: <a href="https://www.regulations.gov/document/NOAA-NMFS-2024-0055-0001/comment">https://www.regulations.gov/document/NOAA-NMFS-2024-0055-0001/comment</a>.
Comment 1: A commenter stated that the sound propagation equation
used by the Navy was simplistic and did not account for a variety of
environmental factors that may affect the accuracy of the predicted
harassment zones associated with pile driving. The comment stated that
at a minimum both bottom composition and topography should be included
in the acoustic modeling of the Level B harassment zones.
Response 1: NMFS agrees with the commenter that assuming practical
spreading loss is a simplistic approach and excludes certain
environmental factors that may be influential on real transmission
loss. However, NMFS disagrees with the commenter that the acoustic
modeling is inadequate and ``undermines the predictions of Level B
harassment.'' The assumption of practical spreading loss is an approach
that is readily accessible to all applicants, and while it does exclude
certain relevant factors, it has been supported by hydroacoustic
measurements in many locations, where measured transmission loss
coefficients typically are between 10 and 30 depending on the site,
measurement date, activity, and metric. Further, more complex modeling
requires detailed knowledge of the source spectra, seabed composition
and associated acoustic parameters, and the sound speed profile, all of
which are often not readily available and introduce their own non-
negligible uncertainty.
In addition, the Navy is among the leaders in hydroacoustic
measurements of pile driving activities (Illingworth and Rodkin, 2017;
NAVFAC Southwest, 2020) and continues to contribute to the scientific
knowledge available on this topic. A relevant example can be found in
the NAVFAC 2017 pile driving noise measurement report (Illingworth and
Rodkin, 2017), wherein transmission loss coefficients were measured for
a variety of pile driving activities at JEB Little Creek NAVSTA and
NAVSTA Norfolk. Transmission loss coefficients varied significantly by
activity and location and ranged from 12.2 to 31.9, but were often near
15. This shows that while practical spreading is not a perfect model,
it is a good approximation in waters near the planned activity.
Notably, sophisticated propagation modeling has been performed for
pile driving of concrete, composite, and timber piles in the Norfolk
region. The Navy has completed this transmission loss modeling and can
be reviewed in the following document: <a href="https://media.fisheries.noaa.gov/dam-migration/nsn_pile_driving_final_loa_appendix_b_may_2020.pdf">https://media.fisheries.noaa.gov/dam-migration/nsn_pile_driving_final_loa_appendix_b_may_2020.pdf</a>. While estimated
transmission loss coefficients are not provided in the report, the
depth-averaged cumulative SEL is given as a function of range in figure
10 in the report, for the case of a constant water depth of 13 meters
(m). This modeling scenario was included only for illustrative purposes
but was deemed by the authors to be near the upper bound for expected
ranges to thresholds for the study. By fitting several points from the
unweighted curve, NMFS has determined that the best fit transmission
loss coefficient for this model result is approximately 14.5, which
agrees well with the practical spreading model.
Based on the above analyses and information, NMFS is confident that
the analysis of the harassment zones reasonably assesses the potential
impacts to marine mammals and has not changed that analysis or the
reliance upon such analysis in this final rule.
Comment 2: A commenter urged NMFS to implement ``hard limits'' on
the number of marine mammals that could be taken under an authorization
granted to the Navy. Further, the commenter stated that if take of
marine mammals exceeded those limits construction should be halted
until NMFS is able to re-analyze the impacts of the project. The
commenter also
[[Page 81850]]
urged NMFS to have a ``fair process'' for this authorization and to not
give special exceptions to the Navy regarding their application for an
LOA. The commenter also recommended that NMFS and the Navy consider the
use of a sound producing device to deter marine mammals from the
Project area in order to reduce the number of animals taken during
construction activities.
Response 2: NMFS agrees with the commenter that takes should be
limited in numbers for each incidental take authorization. In this rule
and the proposed rule the Navy and NMFS estimated takes that were
likely to occur during the course of this project (see Estimate Take
section). Take numbers for each marine mammal species were estimated
for each phase of construction. The maximum annual take numbers for
each species may not be exceeded in any given year, and the total take
level may not be exceeded over the 5-year period of effectiveness of
this rule.
NMFS also agrees with the commenter that a fair process for the
application and issuance of all incidental take authorizations should
be adhered to. Once the application submitted by the Navy for this
project was deemed adequate and complete, NMFS published a notice of
receipt of the application in the Federal Register (89 FR 18605, March
14, 2024) with a 30-day comment period for the public to review and
comment on the contents of the application. After the comment period
concluded, NMFS developed a proposed rule (89 FR 55180, July 3, 2024)
to further engage the public on the analyses of the project and the
impacts to marine mammals in the Project area. That proposed rule
process included a 30-day comment period for the public. NMFS reviewed
and responded comments submitted on the proposed rule and determined if
any changes were necessary in the final rule. This process is in
accordance with the relevant requirements of the MMPA and of the
Administrative Procedure Act, and is applied in the same fashion to all
applicants for incidental take authorizations.
NMFS agrees that sound producing devices may be a useful tool for
deterring marine mammals in certain circumstances and when warranted,
e.g., when deterrence may prevent mortality or serious injury. This
project will only result in behavioral disturbance (Level B harassment)
which 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
(Thorson and Reyff, 2006) (see Behavioral Effects section for more
information). Therefore, for this project NMFS disagrees with the use
of acoustic deterrence devices since those devices would produce the
same level of harassment as the construction activities of this
project.
Changes From the Proposed Rule to Final Rule
On May 3, 2024, NMFS published (89 FR 36762) and solicited public
comment on its draft updated Technical Guidance (<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>), which includes updated thresholds and
weighting functions to inform auditory injury estimates, and is
intended to replace the 2018 Technical Guidance referenced above, once
finalized. NMFS completed a basic comparative analysis based on the
updated Technical Guidance and has updated the Level A harassment and
shutdown zones (see Estimated Take and Mitigation). This change is
necessary because the authorization and regulations issued under this
rule are effective for 5 years and the updated Technical Guidance will
be effective before this rule expires. This updated analysis did not
change the anticipated take numbers analyzed through this rule.
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 1 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>.
[[Page 81851]]
Table 1--Species Likely Impacted by the Specified Activities \1\
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ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/SI
\2\ abundance survey) \3\ \4\
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Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
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Family Balaenopteridae (rorquals):
Humpback whale................. Megaptera novaeangliae Gulf of Maine......... -,-, N 1,396 (0, 1380, 2016). 22 12.15
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Odontoceti (toothed whales, dolphins, and porpoises)
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Family Physeteridae:
Bottlenose dolphin............. Tursiops truncatus.... Northern Migratory -, -, Y 6,639 (0.41, 4,759, 48 12.2-21.5
Coastal. 2016).
Southern Migratory -, -, Y 3,751 (0.6, 2,353, 24 0-18.3
Coastal. 2016).
Northern NC Estuarine. -, -, N 823 (0.06, 782, 2017). 7.8 7.2-30
Family Phocoenidae (porpoises):
Harbor porpoise................ Phocoena phocoena..... Gulf of Maine/Bay of -, -, N 85,765 (0.53, 56,420, 649 145
Fundy. 2021).
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Order Carnivora--Pinnipedia
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Family Phocidae (earless seals):
Harbor Seal.................... Phoca vitulina........ Western North Atlantic -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
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\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports/">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports/</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
A detailed description of the species likely to be affected by the
Navy's construction project, including brief introductions to the
species and relevant stocks as well as available information regarding
population trends and threats, and information regarding local
occurrence, were provided in the Federal Register notice for the
proposed rule (89 FR 55180, July 3, 2024); since that time, we are not
aware of any changes in the status of these species and stocks;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for
generalized species accounts.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
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 2.
Table 2--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
[[Page 81852]]
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Effects of Specified Activities on Marine Mammals and Their Habitat
The effects of underwater noise from the Navy's construction
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the Project area. The proposed rule
(89 FR 55180, July 3, 2024) included a discussion of the effects of
anthropogenic noise on marine mammals and the potential effects of
underwater noise from the Navy's construction on marine mammals and
their habitat. That information and analysis is referenced in this
final rule and is not repeated here; please refer to the proposed rule
(89 FR 55180, July 3, 2024).
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
that may be authorized, 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 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 Mitigation section, Level A harassment is neither anticipated nor
would be authorized.
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur permanent threshold shift (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 temporary threshold shift (TTS) as, in
most cases, the likelihood of TTS occurs at distances from the source
less than those at which behavioral harassment is likely. TTS of a
sufficient degree can manifest as behavioral harassment, as reduced
hearing sensitivity and the potential reduced opportunities to detect
important signals (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.
The ensonified area associated with Level A harassment is more
technically challenging to predict due to the need
[[Page 81853]]
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 9, the estimated Level A
harassment distances reflect the impact driving activity and the
estimated Level B harassment distances reflect the combined vibratory
source levels for that activity.
On May 3, 2024, NMFS published (89 FR 36762) and solicited public
comment on its draft updated Technical Guidance (<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>), which includes updated thresholds and
weighting functions to inform auditory injury estimates, and is
intended to replace the 2018 Technical Guidance referenced above, once
finalized. The public comment period ended on June 17, 2024, and
although the updated Technical Guidance is not final, we expect the
updated Technical Guidance to represent the best available science once
it is. To best ensure we have considered an appropriate estimate of
take by Level A harassment, in consideration of the best available
science, we have conducted basic comparative calculations using the
draft updated Technical Guidance for the purposes of understanding the
number of takes by Level A harassment (auditory injury) that would be
predicted if the draft updated Technical Guidance were finalized with
no changes. The relevant draft updated thresholds and weighting
functions may be found in the executive summary of the draft updated
Technical Guidance, on pages 3 and 4. We have also considered whether
modifications to mitigation zones would be appropriate in light of the
draft updated Technical Guidance. Based on the outcome of these
comparisons/analyses using the draft updated Technical Guidance, NMFS
has made changes as appropriate to the required shutdown zones
necessary to avoid Level A harassment. These updates to the estimated
harassment zones (see table 8 and table 9) and resulting changes to the
required shutdown zones (see table 11 and table 12) are minor and do
not result in any changes to the take levels as described in the
proposed rule and analyzed through this final rule.
These thresholds are provided in table 3 and table 4 below. The
references, analysis, and methodology used in the development of the
thresholds are described in NMFS' 2018 Technical Guidance and the draft
NMFS' 2024 Technical Guidance, both of 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>.
Table 3--Thresholds Identifying the Onset of Auditory Injury
[NMFS 2018]
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of one [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.
Table 4--Updated Thresholds Identifying the Onset of Auditory Injury (AUD INJ)
[NMFS 2024]
----------------------------------------------------------------------------------------------------------------
AUD INJ Onset Thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: L0-pk,flat: 222 Cell 2: LE, LF,24h: 197 dB.
dB; LE, LF,24h: 183 dB.
High-Frequency (HF) Cetaceans.......... Cell 3: L0-pk,flat: 230 Cell 4: LE, HF,24h: 201 dB.
dB; LE, HF,24h: 193 dB.
Very High-Frequency (VHF) Cetaceans.... Cell 5: L0-pk,flat: 202 Cell 6: LE, VHF,24h: 181 dB.
dB; LE,VHF,24h: 159 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: L0-pk,flat: 223 Cell 8: LE,PW,24h: 195 dB.
dB; LE,PW,24h: 183 dB.
[[Page 81854]]
Otariid Pinnipeds (OW) (Underwater).... Cell 9: L0-pk,flat: 230 Cell 10: LE,OW,24h: 199 dB.
dB; LE,OW,24h: 185 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating AUD
INJ onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (L0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
exposure level (LE,) has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to be
more reflective of International Organization for Standardization standards (ISO 2017). The subscript ``flat''
is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized
hearing range of marine mammals (i.e., 7 Hz to 165 kHz). The subscript associated with cumulative sound
exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, HF, and VHF
cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted
cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure
levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the
conditions under which these thresholds will be exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
The sound field in the Project area is the existing background
noise plus additional construction noise from the 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 square kilometers (km\2\)(36.1 miles (mi\2\))
and will 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 will 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, water depth, water chemistry, and bottom composition
and topography. The general formula for underwater TL is:
TL = B * Log<INF>10</INF> (R<INF>1</INF>/R<INF>2</INF>)
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 will 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 will be installed with vibratory hammers. Source levels for
each pile size and driving method for individual activities are
presented in table 5. 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 6.
[[Page 81855]]
Table 5--Proxy Sound Source Levels for Pile Sizes and Driving Methods
----------------------------------------------------------------------------------------------------------------
Proxy source level
-------------------------------------------------- Literature
Pile size Method dB RMS re dB SEL re dB peak re source
1[micro]Pa 1[micro]Pa\2\sec 1[micro]Pa
----------------------------------------------------------------------------------------------------------------
56-in sheet pile............ Vibratory...... 168 N/A N/A Illingworth and
Rodkin, 2017.
18-in concrete.............. Vibratory...... 162 N/A N/A Caltrans, 2020.
16-in composite............. Vibratory...... 158 N/A N/A Illingworth and
Rodkin, 2017.
18-in concrete.............. Impact......... 170 160 185 e4sciences,
2023.
16-in composite............. Impact......... 169 157 177 Illingworth and
Rodkin, 2017.
----------------------------------------------------------------------------------------------------------------
Table 6--Proxy Sound Source Levels for Concurrent Activities
----------------------------------------------------------------------------------------------------------------
Vibratory
Pile size and type installation Vibratory extract Revised SL to be
source 1 [dB RMS] source 2 [dB RMS] used [dB RMS]
----------------------------------------------------------------------------------------------------------------
Source 1: Vibratory hammer 56-in steel sheet pile; 168 162 169
Source 2: Vibratory extraction of 18-in concrete pile.
Source 1: Vibratory hammer 18-in concrete pile; Source 162 162 165
2: Vibratory extraction of 18-in concrete pile........
Source 1: Vibratory hammer 56-in steel sheet pile; 168 158 168
Source 2: 16 in composite pile........................
----------------------------------------------------------------------------------------------------------------
Table 7--User Spreadsheet Input Parameters Used for Calculating Level A Harassment Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
Weighting
Pile size and factor Number of Number of Activity
Phase (year) installation method Spreadsheet tab used adjustment strikes per piles per day duration
(kHz) pile (minutes)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Phase 1 (Year 1)..................... 18-in concrete impact E.1 Impact pile driving 2 307 6 N/A
installation.
18-in concrete vibratory A.1 Vibratory pile 2.5 N/A 6 14
extraction. driving.
56-in sheet pile A.1 Vibratory pile 2.5 N/A 6 24
vibratory installation. driving.
Phase II (Year 2).................... 18-in concrete impact E.1 Impact pile driving 2 499 6 N/A
installation.
18-in concrete vibratory A.1 Vibratory pile 2.5 N/A 6 26
extraction. driving.
56-in sheet pile A.1 Vibratory pile 2.5 N/A 6 28
vibratory installation. driving.
Phase III (Year 3)................... 16-in composite impact E.1 Impact pile driving 2 540 6 N/A
installation.
18-in concrete vibratory E.1 Impact pile driving 2 540 6 N/A
installation.
16-in composite A.1 Vibratory pile 2.5 N/A 6 20
vibratory extraction. driving.
56-in sheet pile A.1 Vibratory pile 2.5 N/A 6 38
vibratory installation. driving.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 8--Calculated Level A and Level B Harassment Isopleths for Individual Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment zone (m) \1\
---------------------------------------------------------------- Level B
Phase (year) Activity HF (MF)- VHF (HF)- harassment
LF- cetaceans cetaceans cetaceans Phocids zone(m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Phase 1 (Year 1).......................... 18-in concrete impact 43.9 (43.6) 5.6 (1.6) 67.8 (52.3) 38.9 (23.5) 46.4
installation.
18-in concrete vibratory 13.5 (10.0) 5.2 (0.9) 11.0 (14.7) 17.3 (6.1) 6,310
extraction.
56-in sheet pile vibratory 48.4 (35.9) 18.6 (3.2) 39.5 (53.0) 62.3 (21.8) 15,849
installation.
Phase II (Year 2)......................... 18-in concrete impact 60.8 (60.8) 7.7 (2.2) 93.7 (72.4) 53.8 (32.5) 46.4
installation.
18-in concrete vibratory 20.3 (15.1) 7.8 (1.3) 16.6 (22.3) 26.2 (9.2) 6,310
extraction.
56-in sheet pile vibratory 53.7 (39.7) 20.6 (3.2) 43.8 (58.7) 69.1 (24.2) 15,849
installation.
Phase III (Year 3)........................ 16-in composite impact 40.4 (40.4) 5.1 (1.4) 62.3 (48.1) 35.8 (21.6) 39.8
installation.
18-in concrete impact 64.0 (64.0) 8.1 (2.3) 98.7 (76.3) 56.7 (34.3) 46.4
installation.
16-in composite vibratory 9.2 (6.8) 3.5 (0.6) 7.5 (10.1) 11.9 (4.2) 3,415
extraction.
56-in sheet pile vibratory 65.8 (48.7) 25.3 (4.3) 53.7 (72.0) 84.7 (29.6) 15,849
installation.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Harassment zones shown in parentheticals are based on the 2018 technical guidance and were presented in the proposed rule.
[[Page 81856]]
Table 9--Calculated Level A and Level B Harassment Isopleths for Concurrent Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment zone (m) \1\
---------------------------------------------------------------- Level B
Phase (year) Activity MF (HF)- HF (VHF)- harassment
LF- cetaceans cetaceans cetaceans Phocids zone (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Phase 1 (Year 1).......................... Vibratory extract 18-in 56.4 (41.8) 21.7 (3.7) 46.1 (61.8) 72.7 (25.4) 18,478
concrete piles and
vibratory install 56-in
steel sheet piles.
Vibratory extract 18-in 43.9 (43.9) 5.6 (1.6) 67.8 (52.3) 38.9 (23.5) 18,478
concrete piles; vibratory
install 56-in steel sheet
piles; impact install 18-in
concrete piles.
Phase II (Year 2)......................... Vibratory extract 18-in 62.6 (46.3) 24.0 (4.1) 51.1 (68.5) 80.5 (28.2) 18,478
concrete piles and
vibratory install 56-in
steel sheet piles.
Vibratory install 56-in 60.8 (60.8) 7.7 (2.2) 93.7 (72.4) 53.8 (32.5) 15,849
steel sheet piles and
impact install 18-in
concrete piles.
Phase III (Year 3)........................ Vibratory extract 18-in 65.8 (56.8) 25.3 (5.0) 53.7 (84.0) 84.7 (34.5) 18,478
concrete piles and
vibratory install 56-in
steel sheet piles.
Vibratory install 56-in 40.4 (40.4) 5.1 (1.4) 62.3 (48.1) 35.8 (21.6) 15,849
steel sheet piles and
impact install 16-in
composite piles.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Harassment zones shown in parentheticals are based on the 2018 technical guidance and were presented in the proposed rule.
The maximum distance to the Level A harassment threshold during
construction will be during the vibratory driving of 56-inch (in)
concrete piles during Phase III of individual activities (i.e., 84.7 m
for harbor seals) and during the concurrent vibratory extraction of 18-
in concrete piles and vibratory installation of 56-in steel sheet piles
for concurrent activities of Phase III (i.e., 84.7 m for harbor seals).
Given these relatively small isopleths, if a marine mammal enters the
shutdown zone during vibratory or impact pile driving it is expected
that the construction activity will 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 will 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 to produce a quantitative estimate of the take
that is reasonably likely to occur and may be authorized.
Humpback Whale
Humpback whales occur in the mouth of the Chesapeake Bay and
nearshore waters of Virginia during winter and spring months. Several
satellite tagged humpback whales were detected west of the Chesapeake
Bay Bridge Tunnel, including two individuals with locations near NAVSTA
Norfolk and Joint Expeditionary Base Little Creek (Aschettino et al.,
2017). Group size was not reported in these surveys; however, most
whales detected were juveniles. Although two individuals were detected
in the vicinity of the Project 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, NMFS will 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 65.8 m from the source during concurrent
activities for the vibratory extraction of 18-in concrete piles and
vibratory install 56-in steel sheet 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 will not 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 7 and 8), and then by the number of days
associated with that activity. 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 9). Therefore, NMFS will authorize 14,191
takes by Level B
[[Page 81857]]
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 25.3 m from the source during individual and
concurrent activities during Phase III (table 8 and table 9). The Navy
plans to shut down all activities if a bottlenose dolphin is sighted
within the shutdown zones for mid-frequency cetaceans. Therefore, NMFS
will not 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 will be 74 days, Phase II will be 37 days, and Phase III
will 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 98.7 m from the source during
individual activities during Phase III (table 8). The Navy plans to
shut down all activities if a harbor porpoise is sighted within the
shutdown zones for high-frequency cetaceans. Therefore, NMFS will not
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 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 84.7 m from the source during individual and concurrent
activities during Phase III (table 8 and table 9). The Navy plans to
shut down all activities if a harbor porpoise is sighted within the
shutdown zones for phocids. Therefore, NMFS will not authorize take by
Level A harassment of harbor seals.
Table 10--Takes by Level B Harassment by Species and Stock in Comparison to Stock Abundance
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level B Level B
LOA construction phase (year) Species (individual (concurrent Total Stock Percentage of
activities) activities) abundance stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Phase 1................................... Humpback.................... 2 2 2 1,396 <1
Bottlenose dolphin--Northern 5,414 2,888 2,607 6,639 39.27
Migratory (NM) 1 2.
Bottlenose dolphin--Southern 2,607 3,751 69.50
Migratory (SM) 1 2.
Bottlenose dolphin--NC 200 823 24.30
Estuarine 1 2.
Harbor porpoise............. 4 2 4 85,765 <1
Harbor seal................. 1,006 408 1,006 61,336 1.64
Phase 2................................... Humpback.................... 2 2 2 1,396 <1
Bottlenose dolphin--NM 1 2.. 2,609 2,179 1,205 6,639 18.15
Bottlenose dolphin--SM 1 2.. 1,205 3,751 32.12
Bottlenose dolphin--NC 200 823 24.30
Estuarine 1 2.
Harbor porpoise............. 2 2 2 85,765 <1
Harbor seal................. 503 653 653 61,336 1.06
Phase 3................................... Humpback.................... 4 2 4 1,396 <1
Bottlenose dolphin--NM 1 2.. 6,168 6,712 3,256 6,639 49.04
Bottlenose dolphin--SM 1 2.. 3,256 3,751 85.80
Bottlenose dolphin--NC 200 823 24.30
Estuarine 1 2.
Harbor porpoise............. 4 2 4 85,765 <1
Harbor seal................. 1,236 625 1,373 61,336 2.24
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Take estimates are weighted based on the assumed percentages of population for each distinct stock, those percentages were also used to predict the
proportion of animals present in the Project area from each stock. Please see Small Numbers section for additional information.
\2\ Assumes multiple repeated takes of the same individuals. Please see Small Numbers section for additional information.
[[Page 81858]]
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; and
<bullet> Pile driving activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or 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 will occur upon sighting of a marine mammal (or in
anticipation of an animal entering the defined area). Shutdown zones
will vary based on the activity type and marine mammal hearing group
(table 11 and table 12).
Protected Species Observers (PSO)--The placement of PSOs during all
pile driving and removal activities (described in the Monitoring and
Reporting section) will ensure that the entire shutdown zone is
visible. A minimum of two PSOs will 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 11 or table 12, 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.
Table 11--Shutdown and Monitoring Zones for Individual Activities
----------------------------------------------------------------------------------------------------------------
Shutdown zones (m) \1\
------------------------------------------------ Level B
Phase (year) Activity All other monitoring
LF- cetaceans VHF (HF)- marine zones all
cetaceans mammals marine mammals
----------------------------------------------------------------------------------------------------------------
Phase 1 (Year 1).............. 18-in concrete 50 (50) 70 (60) 40 (30) 50
impact
installation.
18-in concrete 20 (10) 20 (20) 20 (10) 6,310
vibratory
extraction.
56-in sheet pile 50 (40) 40 (60) 60 (30) 15,850
vibratory
installation.
Phase II (Year 2) 18-in concrete 70 (70) 100 (80) 60 (40) 50
impact
installation.
18-in concrete 20 (20) 20 (30) 30 (10) 6,310
vibratory
extraction.
[[Page 81859]]
56-in sheet pile 60 (40) 50 (60) 70 (30) 15,850
vibratory
installation.
Phase III (Year 3)............ 16-in composite 50 (50) 70 (50) 40 (30) 40
impact
installation.
18-in concrete 70 (70) 100 (80) 60 (40) 50
impact
installation.
16-in composite 10 (10) 10 (20) 20 (10) 3,415
vibratory
extraction.
56-in sheet pile 70 (50) 60 (80) 90 (30) 15,850
vibratory
installation.
----------------------------------------------------------------------------------------------------------------
\1\ Shutdown zones shown in parentheticals are based on the 2018 technical guidance and were presented in the
proposed rule.
Table 12--Shutdown and Monitoring Zones for Concurrent Activities
----------------------------------------------------------------------------------------------------------------
Shutdown zones (m) \1\
------------------------------------------------ Level B
Phase (year) Activity All other monitoring
LF- cetaceans HF- cetaceans marine zones all
mammals marine mammals
----------------------------------------------------------------------------------------------------------------
Phase 1 (Year 1).............. Vibratory 60 (50) 50 (70) 80 (30) 18,480
extract 18-in
concrete piles
and vibratory
install 56-in
steel sheet
piles.
Vibratory 50 (70) 70 (90) 40 (40) 18,480
extract 18-in
concrete piles;
vibratory
install 56-in
steel sheet
piles; impact
install 18-in
concrete piles.
Phase II (Year 2)............. Vibratory 70 (50) 60 (70) 80 (30) 18,480
extract 18-in
concrete piles
and vibratory
install 56-in
steel sheet
piles.
Vibratory 70 (50) 100 (80) 60 (30) 15,850
install 56-in
steel sheet
piles and
impact install
18-in concrete
piles.
Phase III (Year 3)............ Vibratory 70 (50) 60 (70) 90 (30) 18,480
extract 18-in
concrete piles
and vibratory
install 56-in
steel sheet
piles.
Vibratory 60 (50) 50 (80) 40 (30) 15,850
install 56-in
steel sheet
piles and
impact install
16-in composite
piles.
----------------------------------------------------------------------------------------------------------------
\1\ Shutdown zones shown in parentheticals are based on the 2018 technical guidance and were presented in the
proposed rule.
Based on our evaluation of the applicant's mitigation measures, as
well as other measures considered by NMFS, NMFS has determined that the
mitigation measures provide the means of effecting the least
practicable impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, 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
[[Page 81860]]
construction activity pursuant to a NMFS-issued incidental take
authorization;
<bullet> PSOs must be approved by NMFS prior to beginning any
activity subject to an LOA issued under this final rule; 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 2 PSOs will be sufficient to monitor the zones
for impact drivers, and 3 to 4PSOs will be sufficient to monitor the
zones for vibratory drivers given the 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 1) to
monitor for marine mammals and implement shutdown/delay procedures when
applicable by calling for the shutdown by the pile driver operator.
PSOs will 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.
[GRAPHIC] [TIFF OMITTED] TR09OC24.013
Figure 1 Protected Species Observer Locations at NAVSTA Norfolk at
Norfolk, Virginia
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 13). The Navy will collect and evaluate acoustic sound recording
levels during pile driving activities. The Navy will collect data on 10
percent of the number of total piles driven for each pile type.
Hydrophones will be placed at locations 33 feet (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
[[Page 81861]]
Acoustic Monitoring Plan and section 13.2 in the application for
additional detail.
Table 13--Number of Piles for Hydroacoustic Monitoring
----------------------------------------------------------------------------------------------------------------
Number
Pile type Total piles Method of install of removal monitored
----------------------------------------------------------------------------------------------------------------
18-in concrete................................ 200 Vibratory....................... 20
18-in concrete................................ 184 Impact.......................... 18
56-in steel sheet............................. 547 Vibratory....................... 55
16-in composite............................... 178 Vibratory....................... 18
16-in composite............................... 105 Impact.......................... 11
----------------------------------------------------------------------------------------------------------------
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 [micro]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
[micro]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-
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 will not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with the Navy to
determine what is necessary to minimize the likelihood of further
prohibited take and ensure MMPA compliance. The Navy will not
[[Page 81862]]
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 will immediately report the incident to the Office of
Protected Resources, NMFS, and the Greater Atlantic Region New England/
Mid-Atlantic Stranding Coordinator. The report will include the same
information identified in the paragraph above. Activities will be able
to continue while NMFS reviews the circumstances of the incident. NMFS
will 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 will 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 will 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 will cease if animals were present
in those zones. Also, pile driving and removal activities are of
relatively short duration and an animal will 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 amounts of vessel traffic and
other ambient noise.
An unusual mortality event (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 distinct population segment)
remains healthy.
The Project is also not expected to have significant adverse
effects on affected marine mammals' habitats. The
[[Page 81863]]
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 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 monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
activity will have a negligible impact on all affected marine mammal
species or stocks.
Small Numbers
As noted previously, only 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 authorizes 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 10).
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 will 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
will 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 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 will
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 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 will be unlikely to find a high percentage of
the individuals of any one stock concentrated in a relatively small
area such as the Project area or the Chesapeake Bay;
<bullet> The Chesapeake Bay represents the migratory boundary for
each of the specified dolphin stocks and it will be unlikely to find a
high percentage of any stock concentrated at such boundaries; and
<bullet> Many of the takes will likely be repeats of the same
animals, including from a resident population of the Chesapeake Bay.
Based on the analysis contained herein of the activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS finds that small numbers of marine mammals will be
taken relative to the population size of the affected species or
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 will not
have an unmitigable
[[Page 81864]]
adverse impact on the availability of such species or stocks for taking
for subsistence purposes.
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 action (i.e., the promulgation of regulations and
subsequent issuance of incidental take authorization) with respect to
potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NOAA 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that will preclude this
categorical exclusion. Accordingly, NMFS has determined that the action
qualifies to be categorically excluded from further review under NEPA.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16
U.S.C. 1531 et seq.) requires that each Federal agency 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 NMFS authorizes take for endangered
or threatened species.
No incidental take of ESA-listed species is authorized or expected
to result from this activity. Therefore, NMFS has determined that
formal consultation under section 7 of the ESA is not required for this
action.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this action will not
have a significant economic impact on a substantial number of small
entities. The Navy is the sole entity that will be subject to the
requirements in these regulations, and the Navy is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. No comments were received regarding this
certification or on the economic impacts of the rule more generally. As
a result, a regulatory flexibility analysis is not required and none
has been prepared.
This rule does not contain a collection-of-information requirement
subject to the provisions of the Paperwork Reduction Act because the
applicant is a Federal agency.
List of Subjects in 50 CFR 217
Acoustics, Administrative practice and procedure, Construction,
Endangered and threatened species, Marine mammals, Mitigation and
Monitoring requirements, Reporting requirements, Wildlife.
Dated: October 4, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, NMFS amends 50 CFR part 217
as follows:
PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. 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.
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.
(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 of this chapter
and 217.236, 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 of this chapter and
217.236, 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
of this chapter and 217.236;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner
other than as specified;
(4) Take a marine mammal specified in such LOA after NMFS
determines such taking results in more than a negligible impact on the
species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS
determined such taking results in an unmitigable adverse impact on the
species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
Sec. 217.234 Mitigation requirements.
(a) When conducting the activities identified in Sec. 217.230(a),
the mitigation measures contained in this subpart and
[[Page 81865]]
any LOA issued under Sec. Sec. 216.106 of this chapter and 217.236
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
(PSO), 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 meters (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.
(b) [Reserved]
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 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
[[Page 81866]]
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; and
(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);
(vi) Number of marine mammals detected within the harassment zones,
by species; and
(vii) 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 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 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
[[Page 81867]]
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 will be published in the Federal Register
within 30 days of the action.
[FR Doc. 2024-23392 Filed 10-8-24; 8:45 am]
BILLING CODE 3510-22-P
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