Notice2025-03542
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Lubec Harbor Project in Lubec, Maine
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
March 5, 2025
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from Maine Department of Transportation (ME DOT) for authorization to take marine mammals incidental to Lubec Harbor Project in Lubec, Maine. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time, 1-year renewal that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.
Full Text
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<title>Federal Register, Volume 90 Issue 42 (Wednesday, March 5, 2025)</title>
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[Federal Register Volume 90, Number 42 (Wednesday, March 5, 2025)]
[Notices]
[Pages 11262-11282]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-03542]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE442]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Lubec Harbor Project in Lubec,
Maine
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental harassment authorization; request
for comments on proposed authorization and possible renewal.
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SUMMARY: NMFS has received a request from Maine Department of
Transportation (ME DOT) for authorization to take marine mammals
incidental to Lubec Harbor Project in Lubec, Maine. Pursuant to the
Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its
proposal to issue an incidental harassment
[[Page 11263]]
authorization (IHA) to incidentally take marine mammals during the
specified activities. NMFS is also requesting comments on a possible
one-time, 1-year renewal that could be issued under certain
circumstances and if all requirements are met, as described in Request
for Public Comments at the end of this notice. NMFS will consider
public comments prior to making any final decision on the issuance of
the requested MMPA authorization and agency responses will be
summarized in the final notice of our decision.
DATES: Comments and information must be received no later than April 4,
2025.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service and should be submitted via email to
<a href="/cdn-cgi/l/email-protection#0d44595d23627a68637e4d63626c6c236a627b"><span class="__cf_email__" data-cfemail="d39a8783fdbca4b6bda093bdbcb2b2fdb4bca5">[email protected]</span></a>. Electronic copies of the application and supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>. In case of problems accessing these documents, please call
the contact listed below.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. All comments received are a part of
the public record and will generally be posted online at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All personal identifying
information (e.g., name, address) voluntarily submitted by the
commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
FOR FURTHER INFORMATION CONTACT: Summer Owens, Office of Protected
Resources, NMFS, and (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are proposed or, if the taking is limited to harassment, a notice of a
proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the monitoring and
reporting of the takings. The definitions of all applicable MMPA
statutory terms used above are included in the relevant sections below
and can be found in section 3 of the MMPA (16 U.S.C. 1362) and NMFS
regulations at 50 CFR 216.103.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
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 NAO 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has preliminarily determined
that the issuance of the proposed IHA qualifies to be categorically
excluded from further NEPA review.
Summary of Request
On August 29, 2024, NMFS received a request from ME DOT for an IHA
to take marine mammals incidental to construction activities in Johnson
Bay in Lubec, Maine. Following NMFS' review of the application, ME DOT
submitted a revised version on December 19, 2024. The application was
deemed adequate and complete on December 20, 2024. ME DOT's request is
for take of five species of marine mammals, by Level B harassment only.
Neither ME DOT nor NMFS expect serious injury or mortality to result
from this activity and, therefore, an IHA is appropriate.
Description of Proposed Activity
Overview
The Maine Department of Transportation and the Town of Lubec are
planning to construct a boat launch and breakwater structure that would
extend into Johnson Bay from the northern coast of Lubec. The Town was
once one of Maine's most active commercial fishing ports, consisting of
several large herring processing operations until the late 1970s. A
collapse of the herring fishery led to the closure of those processing
canneries; however, there is a rebound of the fishing industry in the
area due to lobster fishing, shellfish harvesting, and growth of salmon
farming. The project will address the lack of sheltered boat access and
safe launch locations. The breakwater is expected to provide a
sheltered area that mariners may launch behind and recover and moor
their vessels during periods of inclement weather. This project is
proposed in order to provide a safer harbor for the mariners and
townspeople of Lubec.
This construction project would include installation of a falsework
platform, a pile supported platform (PSP), and two floating docks. The
falsework platform will be installed using impact and vibratory pile
driving, while the PSP and floating docks will require DTH (down the
hole) drilling. ME DOT is requesting authorization of take by Level B
harassment for five marine mammal species over an estimated 234 days of
pile driving/drilling activities.
Dates and Duration
In-water construction at the Lubec Harbor is planned to start in
March 2025. The estimated maximum number of pile driving days is 234
with a maximum of 24 installation days per month. The PSP and floating
dock are estimated to include installation of half a pile per day, with
each full pile taking 780 minutes (13 hours) to install. The falsework
platform is estimated to include installation of five piles per day,
each requiring 30 minutes of vibratory pile driving following 150
impact hammer strikes per pile.
Specific Geographic Region
The Town of Lubec is a coastal town on a peninsula in Maine that is
[[Page 11264]]
surrounded by the Johnson, South, and Cobscook Bays to the north, the
Lubec and Quoddy Narrows and the United States-Canada border to the
east, and the Gulf of Maine to the south. Construction will take place
in Johnson Bay in Lubec, Maine. Previous efforts to install a marina at
Lubec, consisting of floating docks and floating breakwater units, have
failed. The excessive wind and wave action in Johnson Bay from severe
northeast storms have contributed to destruction of valuable
infrastructure.
The estimated extent of area in which noise will exceed the
relevant Level B harassment criterion, for DTH drilling only, extends
into Canadian territorial waters. See the Estimated Take section for
more detail. However, the MMPA does not apply in Canadian territorial
waters. NMFS has calculated the expected level of incidental take in
the entire activity area (including Canadian territorial waters) as
part of the analysis supporting our preliminary determination under the
MMPA that the activity will have a negligible impact on the affected
species (see Estimated Take and Negligible Impact Analysis and
Determination Sections). However, NMFS proposes to authorize only take
that is expected to occur in U.S. territorial waters.
Detailed Description of the Specified Activity
The proposed project will include vibratory pile driving and
removal, impact pile driving, and DTH drilling to install the PSP,
floating dock, and falsework platform. The falsework platform will
require impact and vibratory pile driving of five temporary 14-inch
steel H-piles. The falsework platform will be moved up to 13 times
throughout the project. The vibratory hammer will be used to upend the
piles and then vibrate them into the first few feet of the soil. The
vibratory pile driving will take about 30 minutes per pile. Impact
driving will be used to drive the pile to refusal and ensure the piles
are properly placed in the bedrock. Impact driving will need about 150
blows per pile. Due to the shallowness of the bedrock, the PSP will
require DTH of seventy-two 36-inch steel pipe piles and take 144 days
and up to 780 minutes (13 hours) per pile. The platform would extend
from the breakwater and have a bay-side concrete wave screen to protect
from wind and waves. The platform will also have a 28-foot wide travel
lane for vehicles. The floating docks will require DTH drilling of
thirty-two 24-30-inch steel pipe piles and take 64 days. These piles
could range in size anywhere from 24 to 30 inches, but 30-inch is
conservatively assumed for the purposes of this analysis. Floating dock
1 is attached to PSP and directly shore-side, while floating dock 2 is
located along the boat ramp and is connected to floating dock 1 along
the shore-side of the breakwater and PSP complex. The following
construction activities are anticipated for the project.
Table 1--Number and Types of Piles To Be Installed
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory DTH drilling
Number of Impact duration duration per Production
Project component Pile diameter and type piles strikes per pile pile rate (piles Days of installation
per pile (minutes) (minutes) per day)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pile Supported Platform.............. 36'' steel pipe pile.... 72 .......... .......... 780 0.5 144.
Floating Docks....................... 24-30'' steel pipe pile. 32 .......... .......... 780 0.5 64.
Falsework Platform................... 14'' steel H pile....... 65 150 30 ............ 5 13 Install, 13 Removal.
----------------------------------------------------------------------------------------
Total............................ ........................ 169 .......... .......... ............ ........... 234.
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Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Proposed
Mitigation and Proposed Monitoring and Reporting).
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 (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 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). While no serious injury or mortality is anticipated or proposed
to be authorized here, PBR and annual serious injury and mortality (M/
SI) 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 2 are the most
recent available at the time of publication and are available online
at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.
[[Page 11265]]
Table 2--Species Likely Affected 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/
\2\ abundance survey) \3\ SI \4\
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Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
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Family Balaenopteridae (rorquals):
Minke Whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31, 17,002, 170 9.4
acutorostrata. Coastal. 2021).
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Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Atlantic White-Sided Dolphin.... Lagenorhynchus acutus.. Western N Atlantic..... -, -, N 93,233 (0.71, 54,443, 544 28
2021).
Common Dolphin.................. Delphinus delphis...... Western N Atlantic..... -, -, N 93,100 (0.56, 59,897, 1,452 414
2021).
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):
Gray Seal....................... Halichoerus grypus..... Western N Atlantic..... -, -, N 27,911 (0.20, 23,624, 1,512 4,570
2021).
Harbor Seal..................... Phoca vitulina......... Western N 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://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>).
\2\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\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-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\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, ship strike). Annual M/SI (mortality/serious injury) often cannot be determined precisely and is in some cases presented as a
minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
As indicated above, all six species (with six managed stocks) in
table 2 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. All species that could
potentially occur in the proposed project area are included in table 3
of the IHA application. While fin whales, humpback whales, North
Atlantic right whales, sei whales, sperm whales, Atlantic spotted
dolphins, Risso's dolphins, common bottlenose dolphins, harp seals, and
hooded seals have been documented in the area, the temporal and/or
spatial occurrence of these species is such that take is not expected
to occur. Those species occur in the Gulf of Maine (GOM), but are
mainly migratory and/or present offshore and therefore should not be
present in the project area. Given that the project location is
situated in Johnson Bay, which is characterized by less than 15 meters
(m) of water depth and is separated from the GOM by the Lubec and
Quoddy Narrows, species which prefer deeper water (e.g., sperm whale,
Risso's dolphin, and hooded seal) are unlikely to occur in the Project
Area. Additionally, none of the 10 species mentioned above were
observed during the Eastport Breakwater Project (<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-maine-dot-eastport-breakwater-project">https://www.fisheries.noaa.gov/action/incidental-take-authorization-maine-dot-eastport-breakwater-project</a>), and they are not discussed further beyond
the explanation provided here.
Minke Whale
Minke whales in the area are from the Canadian Eastern Coastal
stock. Minke whales migrate seasonally and can be found both inshore
and offshore (NOAA Fisheries 2022). They are a cosmopolitan species and
can be found anywhere from polar, temperate, to tropical waters. Minke
whales are most commonly seen in Maine from June through September when
they are feeding and breeding (New England Eco Adventures 2023). During
the Eastport Breakwater Project from 2015-2017, 28 minke whales were
observed during the 2015-2016 construction season NOAA Fisheries 2017).
Atlantic White-Sided Dolphin
Atlantic white-sided dolphins in the area would be from the North
Atlantic stock. Atlantic white-sided dolphins have documented seasonal
movements, including shifting inshore and northwards in the summer,
then shifting offshore and southwards in the winter (NOAA Fisheries
2022). Atlantic white-sided dolphins are most commonly in the GOM in
late spring, summer, and fall (MARCO n.d.; NROC 2023), and are
typically found from Georges Bank north to the GOM from June through
September (BOEM 2013). During the Eastport Breakwater Project from 2015
to 2017 there were no Atlantic white-sided dolphins observed (NOAA
2017).
The Western North Atlantic stock of Atlantic white-sided dolphins
ranges from Greenland to North Carolina. A current trend analysis has
not been conducted for this stock (Waring et al. 2016). Any Atlantic
white-sided dolphins encountered during the proposed project would
likely be part of the GOM population and are most common in continental
shelf waters from Hudson Canyon (approximately 39[deg] N) to Georges
Bank, and in the GOM and lower Bay of Fundy (Waring et al. 2016).
During January to May, low numbers of white-sided dolphins are found
from Georges Bank to Jeffrey's Ledge (off New Hampshire), with even
lower numbers south of Georges Bank (Waring et al. 2016). From June
through September, large numbers of white-sided dolphins are found from
Georges Bank to the lower Bay of Fundy. From October to December,
white-sided dolphins occur at intermediate densities from southern
Georges Bank to southern GOM (Payne and Heinemann 1990 as cited in
Waring et al. 2016). Atlantic white-sided dolphins are found in
temperate and sub-polar waters,
[[Page 11266]]
primarily in continental shelf waters to the 100-m contour and exhibit
seasonal movements between inshore northern waters and southern
offshore waters (Waring et al. 2016).
Common Dolphin
Common dolphins in the area would be from the western North
Atlantic stock. Common dolphins have a seasonal migration pattern,
usually spending January to May from Cape Hatteras to Georges Bank
(Hain et al. 1981; CETAP 1982; Payne et al. 1984). From mid-summer to
autumn the species moves from Georges Bank, the GOM, and the Scotian
Shelf. The species will be most prevalent in the project area from late
summer to fall when they are most common in the GOM (NOAA Fisheries
2022). No common dolphins were observed during the Eastport Breakwater
Project from 2015 to 2017 (NOAA 2017).
Harbor Porpoise
Harbor porpoises in the area would be from the GOM/Bay of Fundy
Stock. July through September harbor porpoises can be found in the
northern GOM, southern Bay of Fundy, and the southern tip of Nova
Scotian waters less than 150 m deep (Gaskin 1977; Kraus et al. 1983;
Palka 1995). They are more widely dispersed from Maine to New Jersey
during fall and spring. During the winter, they can be found as far
south as North Carolina (NOAA Fisheries 2022). Harbor porpoises were
the most commonly observed cetacean during the Eastport Breakwater
project, observing 76 in the 2015-2016 project season (NOAA 2017).
In the Western North Atlantic, the harbor porpoise stock is found
in U.S. and Canadian Atlantic waters. Any harbor porpoises encountered
during the proposed project would be part of the Gulf of Maine-Bay of
Fundy stock. A current trend analysis has not been conducted for this
stock (Waring et al. 2016). During the winter months (January to
March), medium densities are found in waters off of New Brunswick,
Canada to NY. During the spring (April to June) and fall (October to
December), harbor porpoises are widely dispersed from ME to NJ, with
lower densities farther north and south (Waring et al. 2016). In the
summer (July to September), harbor porpoises are concentrated in the
northern Gulf of Maine and southern Bay of Fundy region, generally in
waters less than 150 m deep (Gaskin 1977; Kraus et al. 1983; Palka
1995a, 1995b as cited in Waring et al. 2016), with a few sightings in
the upper Bay of Fundy and on Georges Bank (Palka 2000 as cited in
Waring et al. 2016). Harbor porpoises reside in northern temperate and
subarctic coastal and offshore waters. They are commonly found in bays,
estuaries, harbors, and fjords less than 200 m (650 feet) deep.
Gray Seal
Gray seals in the area would be from the Western North Atlantic
stock which ranges from New Jersey to Labrador (Davies 1957; Mansfield
1966; Katona et al. 1993; Lesage and Hammill 2001). Pupping occurs in
January and February and mainly occurs on rocky ledges in Maine (Kenny
2020). Over the past 30 years, gray seal pupping has increased in Maine
and Massachusetts (MA) (Wood et al. 2019), with 515 pups observed
between 2 sites in Maine 2008 (Kenny 2020), and 2 more additional
pupping sights identified in 2010 (Waring et al. 2010). After the
breeding season in January and February, gray seals have a pelagic
feeding period February through April, and then a molting period in
which they are hauled-out May through June (Kenny 2020). Harbor seals
and gray seals are frequently observed together (NOAA Fisheries 2022)
which is why in the Eastport monitoring project harbor and gray seal
observations were combined. During the 2015-2016 construction period,
916 harbor seals and gray seals were observed in the area (Maine DOT
2017). According to NMFS Northeast Fisheries Science Center (NEFSC),
there are two nearby haulouts, Quoddy Narrow Rocks and Spectacle Island
Ledge 2 (NEFSC 2025), but overall gray seals are not as commonly seen
in the project area as harbor seals.
Harbor Seal
Harbor seals in the project area would be from the Western North
Atlantic stock (Katona et al. 1993). This stock can be found from
Canada to the northern United States, but they mainly reside and
reproduce in Maine where they can be found year-round (Hayes et al.
2023). The number of harbor seals will likely increase in the project
area before and during pupping season which usually occurs May through
June (Temte et al. 1991, NOAA Fisheries 2021, Marine Mammals of Maine
2024). As previously mentioned, harbor seals and gray seals are
generally observed together, so their observations were combined in the
Eastport Breakwater Project. During the 2015-2016 construction period,
916 harbor seals and gray seals were observed, and during the 2016-2017
project season, 44 harbor seals were observed (NOAA 2017).
On the east coast, harbor seals range from the Canadian Arctic to
southern New England, New York, and occasionally the Carolinas. Seals
are year-round inhabitants of the coastal waters of Maine and eastern
Canada (Katona et al. 1993 as cited in Waring et al. 2016). Harbor
seals can be observed year-round in Cobscook Bay. According to NEFSC,
between 2010 and 2018 there was an average of 550 adults harbor seals
observed and around 100 pups observed each year in Cobscook Bay
(Sigourney et al. 2021).
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.). Subsequently, NMFS (2024) updated
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the ~65 decibel (dB)
threshold from composite audiograms, previous analyses in NMFS (2018),
and/or data from Southall et al. (2007) and Southall et al. (2019).
Marine mammal hearing groups and their associated hearing ranges are
provided in table 3.
[[Page 11267]]
Table 3--Marine Mammal Hearing Groups
[NMFS 2024]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Underwater
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 36 kHz.
whales).
High-frequency (HF) cetaceans (dolphins, 150 Hz to 160 kHz.
toothed whales, beaked whales, bottlenose
whales).
Very High-frequency (VHF) cetaceans (true 200 Hz to 165 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus cruciger &
L. australis).
Phocid pinnipeds (PW) (underwater) (true 40 Hz to 90 kHz.
seals).
Otariid pinnipeds (OW) (underwater) (sea 60 Hz to 68 kHz.
lions and fur seals).
------------------------------------------------------------------------
In-Air
------------------------------------------------------------------------
Phocid pinnipeds (PA) (true seals)......... 42 Hz to 52 kHz.
Otariid pinnipeds (OA) (sea lions and fur 90 Hz to 40 kHz.
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 may not be as broad. Generalized hearing range
chosen based on ~65 dB threshold from composite audiogram, previous
analysis in NMFS 2018, and/or data from Southall et al. 2007; Southall
et al. 2019. Additionally, animals are able to detect very loud sounds
above and below that ``generalized'' hearing range.
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2024) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
The Estimated Take of Marine Mammals section later in this document
includes a quantitative analysis of the number of individuals that are
expected to be taken by this activity. The Negligible Impact Analysis
and Determination section considers the content of this section, the
Estimated Take of Marine Mammals section, and the Proposed Mitigation
section, to draw conclusions regarding the likely impacts of these
activities on the reproductive success or survivorship of individuals
and whether those impacts are reasonably expected to, or reasonably
likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.
Description of Sound Sources
The marine soundscape is comprised of both ambient and
anthropogenic sounds. Ambient sound is defined as the all-encompassing
sound in a given place and is usually a composite of sound from many
sources both near and far (ANSI 1995). The sound level of an area is
defined by the total acoustical energy being generated by known and
unknown sources. These sources may include physical (e.g., waves, wind,
precipitation, earthquakes, ice, atmospheric sound), biological (e.g.,
sounds produced by marine mammals, fish, and invertebrates), and
anthropogenic sound (e.g., vessels, dredging, aircraft, construction).
The sum of the various natural and anthropogenic sound sources at
any given location and time which comprise ``ambient'' or
``background'' sound depends not only on the source levels (as
determined by current weather conditions and levels of biological and
shipping activity) but also on the ability of sound to propagate
through the environment. In turn, sound propagation is dependent on the
spatially and temporally varying properties of the water column and sea
floor, and is frequency-dependent. As a result of the dependence on a
large number of varying factors, ambient sound levels can be expected
to vary widely over both coarse and fine spatial and temporal scales.
Sound levels at a given frequency and location can vary by 10-20 dB
from day to day (Richardson et al., 1995). The result is that,
depending on the source type and its intensity, sound from the
specified activities may be a negligible addition to the local
environment or could form a distinctive signal that may affect marine
mammals.
In-water construction activities associated with the project would
include impact pile driving, vibratory pile driving, vibratory pile
removal, and DTH drilling. The sounds produced by these activities fall
into one of two general sound types: impulsive and non-impulsive.
Impulsive sounds (e.g., explosions, gunshots, sonic booms, impact pile
driving) are typically transient, brief (less than 1 second),
broadband, and consist of high peak sound pressure with rapid rise time
and rapid decay (ANSI, 1986; NIOSH, 1998; ANSI, 2005; NMFS, 2024). Non-
impulsive sounds (e.g., aircraft, machinery operations such as drilling
or dredging, vibratory pile driving, and active sonar systems) can be
broadband, narrowband or tonal, brief or prolonged (continuous or
intermittent), and typically do not have the high peak sound pressure
with rapid rise/decay time that impulsive sounds do (ANSI, 1995; NIOSH,
1998; NMFS, 2024). The distinction between these two sound types is
important because they have differing potential to cause physical
effects, particularly with regard to hearing (e.g., Southall et al.
2007).
Three types of hammers would be used on this project: impact,
vibratory, and DTH. Impact hammers operate by repeatedly dropping and/
or pushing a heavy piston onto a pile to drive the pile into the
substrate. Sound generated by impact hammers is characterized by rapid
rise times and high peak levels, a potentially injurious combination
(Hastings and Popper, 2005). Vibratory hammers install piles by
vibrating them and allowing the weight of the hammer to push them into
the sediment. Vibratory hammers produce significantly less sound than
impact hammers. Peak Sound Pressure Levels (SPLs) may be 180 dB or
greater, but are generally 10 to 20 dB lower than SPLs generated during
impact pile driving of the same-sized pile (Oestman et al., 2009). Rise
time is slower, reducing the probability and severity of injury, and
sound energy is distributed over a greater amount of time (Nedwell and
Edwards, 2002; Carlson et al., 2005). A DTH hammer is essentially a
drill bit that drills through the bedrock using a rotating function
like a normal drill, in concert with a hammering mechanism operated by
a pneumatic (or sometimes
[[Page 11268]]
hydraulic) component integrated into to the DTH hammer to increase
speed of progress through the substrate (i.e., it is similar to a
``hammer drill'' hand tool). The sounds produced by the DTH method
contain both a continuous, non-impulsive component from the drilling
action and an impulsive component from the hammering effect. Therefore,
we treat DTH systems as both impulsive and continuous, non-impulsive
sound source types simultaneously.
Potential or likely impacts on marine mammals from ME DOT's
proposed construction include both non-acoustic and acoustic stressors.
Non-acoustic stressors include the physical presence of equipment,
vessels, and personnel. However, impacts from ME DOT's proposed
construction is expected to primarily be acoustic in nature. Expected
stressors from ME DOT's proposed activities are expected to be a result
of heavy equipment operation for impact driving, DTH drilling, and
vibratory driving and removal.
Acoustic Impact
The introduction of anthropogenic noise into the aquatic
environment from pile driving and removal and DTH equipment is the
primary means by which marine mammals may be harassed from ME DOT's
specified activities. In general, animals exposed to natural or
anthropogenic sound may experience behavioral, physiological, and/or
physical effects, ranging in magnitude from none to severe (Southall et
al., 2007). Generally, exposure to pile driving and removal and DTH
noise has the potential to result in behavioral reactions (e.g.,
avoidance, temporary cessation of foraging and vocalizing, changes in
dive behavior) and, in limited cases, auditory threshold shifts (TS).
Exposure to anthropogenic noise can also lead to non-observable
physiological responses such as an increase in stress hormones.
Additional noise in a marine mammal's habitat can mask acoustic cues
used by marine mammals to carry out daily functions such as
communication and predator and prey detection. The effects of pile
driving and removal and DTH noise on marine mammals are dependent on
several factors, including but not limited to sound type (e.g.,
impulsive vs. non-impulsive), the species, age and sex class (e.g.,
adult male vs. mother with calf), duration of exposure, the distance
between the pile and the animal, received levels, behavior at time of
exposure, and previous history with exposure (Wartzok et al., 2003;
Southall et al., 2007). Here we discuss physical auditory effects (TSs)
followed by behavioral effects and potential impacts on habitat.
NMFS defines a noise-induced TS as a change, usually an increase,
in the threshold of audibility at a specified frequency or portion of
an individual's hearing range above a previously established reference
level (NMFS, 2024). The amount of TS is customarily expressed in dB. A
TS can be permanent or temporary. As described in NMFS (2024), there
are numerous factors to consider when examining the consequence of TS,
including, but not limited to, the signal temporal pattern (e.g.,
impulsive or non-impulsive), likelihood an individual would be exposed
for a long enough duration or to a high enough level to induce a TS,
the magnitude of the TS, time to recovery (seconds to minutes or hours
to days), the frequency range of the exposure (i.e., spectral content),
the hearing and vocalization frequency range of the exposed species
relative to the signal's frequency spectrum (i.e., how animal uses
sound within the frequency band of the signal; e.g., Kastelein et al.,
2014), and the overlap between the animal and the source (e.g.,
spatial, temporal, and spectral).
Permanent Threshold Shift (PTS)--NMFS defines PTS as a permanent,
irreversible increase in the threshold of audibility at a specified
frequency or portion of an individual's hearing range above a
previously established reference level (NMFS, 2024). Available data
from humans and other terrestrial mammals indicate that a 40 dB TS
approximates PTS onset (Ward et al., 1958; Ward et al., 1959; Ward,
1960; Kryter et al., 1966; Miller, 1974; Henderson et al., 2008). PTS
levels for marine mammals are estimates, because there are limited
empirical data measuring PTS in marine mammals (e.g., Kastak et al.,
2008), largely due to the fact that, for various ethical reasons,
experiments involving anthropogenic noise exposure at levels inducing
PTS are not typically pursued or authorized (NMFS, 2024).
Temporary Threshold Shift (TTS)--NMFS defines TTS as a temporary,
reversible increase in the threshold of audibility at a specified
frequency or portion of an individual's hearing range above a
previously established reference level (NMFS, 2024). Based on data from
cetacean TTS measurements (Southall et al., 2007), a TTS of 6 dB is
considered the minimum TS clearly larger than any day-to-day or
session-to-session variation in a subject's normal hearing ability
(Schlundt et al., 2000; Finneran et al., 2000; Finneran et al., 2002).
As described in Finneran (2016), marine mammal studies have shown the
amount of TTS increases with cumulative sound exposure level
(SEL<INF>cum</INF>) in an accelerating fashion: At low exposures with
lower SEL<INF>cum,</INF> the amount of TTS is typically small and the
growth curves have shallow slopes. At exposures with higher
SEL<INF>cum,</INF> the growth curves become steeper and approach linear
relationships with the noise SEL.
Depending on the degree (elevation of threshold in dB), duration
(i.e., recovery time), and frequency range of TTS, and the context in
which it is experienced, TTS can have effects on marine mammals ranging
from discountable to serious (similar to those discussed in Masking,
below). For example, a marine mammal may be able to readily compensate
for a brief, relatively small amount of TTS in a non-critical frequency
range that takes place during a time when the animal is traveling
through the open ocean, where ambient noise is lower and there are not
as many competing sounds present. Alternatively, a larger amount and
longer duration of TTS sustained during time when communication is
critical for successful mother/calf interactions could have more
serious impacts. We note that reduced hearing sensitivity as a simple
function of aging has been observed in marine mammals, as well as
humans and other taxa (Southall et al., 2007), so we can infer that
strategies exist for coping with this condition to some degree, though
likely not without cost.
Currently, TTS data only exist for four species of cetaceans
(bottlenose dolphin (Tursiops truncatus), beluga whale (Delphinapterus
leucas), harbor porpoise, and Yangtze finless porpoise (Neophocoena
asiaeorientalis) and five species of pinnipeds exposed to a limited
number of sound sources (i.e., mostly tones and octave-band noise) in
laboratory settings (Finneran, 2015). TTS was not observed in trained
spotted (Phoca largha) and ringed (Pusa hispida) seals exposed to
impulsive noise at levels matching previous predictions of TTS onset
(Reichmuth et al., 2016). In general, harbor seals and harbor porpoises
have a lower TTS onset than other measured pinniped or cetacean species
(Finneran, 2015). Additionally, the existing marine mammal TTS data
come from a limited number of individuals within these species. No data
are available on noise-induced hearing loss for mysticetes. For
summaries of data on TTS in marine mammals or for further discussion of
TTS onset thresholds, please see Southall et al. (2007), Finneran and
Jenkins (2012), Finneran (2015), and table 4 in NMFS Updated Acoustic
Guidance (2024).
[[Page 11269]]
Activities for this project include impact and vibratory pile
driving, vibratory pile removal, and DTH drilling. There would likely
be pauses in activities producing the sound during each day. Given
these pauses and the fact that many marine mammals are likely moving
through the project areas and not remaining for extended periods of
time, the potential for TS declines.
Behavioral Effects--Behavioral disturbance may include a variety of
effects, including subtle changes in behavior (e.g., minor or brief
avoidance of an area or changes in vocalizations), more conspicuous
changes in similar behavioral activities, and more sustained and/or
potentially severe reactions, such as displacement from or abandonment
of high-quality habitat. Behavioral responses to sound are highly
variable and context-specific, and any reactions depend on numerous
intrinsic and extrinsic factors (e.g., species, state of maturity,
experience, current activity, reproductive state, auditory sensitivity,
time of day), as well as the interplay between factors (e.g.,
Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007;
Weilgart, 2007; Archer et al., 2010). Behavioral reactions can vary not
only among individuals but also within an individual, depending on
previous experience with a sound source, context, and numerous other
factors (Ellison et al., 2012), and can vary depending on
characteristics associated with the sound source (e.g., whether it is
moving or stationary, number of sources, distance from the source).
Please see appendices B-C of Southall et al. (2007) for a review of
studies involving marine mammal behavioral responses to sound.
Habituation can occur when an animal's response to a stimulus wanes
with repeated exposure, usually in the absence of unpleasant associated
events (Wartzok et al., 2003). It is important to note that habituation
is appropriately considered as a ``progressive reduction in response to
stimuli that are perceived as neither aversive nor beneficial,'' rather
than as, more generally, moderation in response to human disturbance
(Bejder et al., 2009). Animals are most likely to habituate to sounds
that are predictable and unvarying. The opposite process is
sensitization, when an unpleasant experience leads to subsequent
responses, often in the form of avoidance, at a lower level of
exposure.
Available studies show wide variation in response to underwater
sound; therefore, it is difficult to predict specifically how any given
sound in a particular instance might affect marine mammals perceiving
the signal. If a marine mammal does react briefly to an underwater
sound by changing its behavior or moving a small distance, the impacts
of the change are unlikely to be significant to the individual, let
alone the stock or population. However, if a sound source displaces
marine mammals from an important feeding or breeding area for a
prolonged period, impacts on individuals and populations could be
significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC,
2005). However, there are broad categories of potential response, which
we describe in greater detail here, that include alteration of dive
behavior, alteration of foraging behavior, effects to breathing,
interference with or alteration of vocalization, avoidance, and flight.
Changes in dive behavior can vary widely, and may consist of
increased or decreased dive times and surface intervals as well as
changes in the rates of ascent and descent during a dive (e.g., Frankel
and Clark, 2000; Costa et al., 2003; Ng and Leung, 2003; Nowacek et
al., 2004; Goldbogen et al., 2013). Variations in dive behavior may
reflect interruptions in biologically significant activities (e.g.,
foraging) or they may be of little biological significance. The impact
of an alteration to dive behavior resulting from an acoustic exposure
depends on what the animal is doing at the time of the exposure and the
type and magnitude of the response.
Disruption of feeding behavior can be difficult to correlate with
anthropogenic sound exposure, so it is usually inferred by observed
displacement from known foraging areas, the appearance of secondary
indicators (e.g., bubble nets or sediment plumes), or changes in dive
behavior. As for other types of behavioral response, the frequency,
duration, and temporal pattern of signal presentation, as well as
differences in species sensitivity, are likely contributing factors to
differences in response in any given circumstance (e.g., Croll et al.,
2001; Nowacek et al., 2004; Madsen et al., 2006; Yazvenko et al., 2007;
Melc[oacute]n et al., 2012). In addition, behavioral state of the
animal plays a role in the type and severity of a behavioral response,
such as disruption to foraging (e.g., Wensveen et al., 2017). An
evaluation of whether foraging disruptions would be likely to incur
fitness consequences considers temporal and spatial scale of the
activity in the context of the available foraging habitat and, in more
severe cases may necessitate consideration of information on or
estimates of the energetic requirements of the affected individuals and
the relationship between prey availability, foraging effort and
success, and the life history stage of the animal.
Masking--Sound can disrupt behavior through masking, or interfering
with, an animal's ability to detect, recognize, or discriminate between
acoustic signals of interest (e.g., those used for intraspecific
communication and social interactions, prey detection, predator
avoidance, navigation; Richardson et al. 1995). Masking occurs when the
receipt of a sound is interfered with by another coincident sound at
similar frequencies and at similar or higher intensity, and may occur
whether the sound is natural (e.g., snapping shrimp, wind, waves,
precipitation) or anthropogenic (e.g., pile driving, shipping, sonar,
seismic exploration) in origin. The ability of a noise source to mask
biologically important sounds depends on the characteristics of both
the noise source and the signal of interest (e.g., signal-to-noise
ratio, temporal variability, direction), in relation to each other and
to an animal's hearing abilities (e.g., sensitivity, frequency range,
critical ratios, frequency discrimination, directional discrimination,
age or TTS hearing loss), and existing ambient noise and propagation
conditions. Masking of natural sounds can result when human activities
produce high levels of background sound at frequencies important to
marine mammals. Conversely, if the background level of underwater sound
is high (e.g., on a day with strong wind and high waves), an
anthropogenic sound source would not be detectable as far away as would
be possible under quieter conditions and would itself be masked.
Airborne Acoustic Effects--Pinnipeds that occur near the project
site could be exposed to airborne sounds associated with pile driving
and removal that have the potential to cause behavioral harassment,
depending on their distance from pile driving activities. Cetaceans are
not expected to be exposed to airborne sounds that would result in
harassment as defined under the MMPA.
Airborne noise would primarily be an issue for pinnipeds that are
swimming near the project site within the range of noise levels
exceeding the acoustic thresholds. We recognize that pinnipeds in the
water could be exposed to airborne sound that may result in behavioral
harassment when looking with their heads above water. Most likely,
airborne sound would cause behavioral responses similar to those
discussed above in relation to underwater sound. For instance,
anthropogenic sound could cause pinnipeds to exhibit changes in their
[[Page 11270]]
normal behavior, such as reduction in vocalizations, or cause them to
temporarily abandon the area and move further from the source. However,
these animals would previously have been ``taken'' because of exposure
to underwater sound above the behavioral harassment thresholds, which
are in all cases larger than those associated with airborne sound.
Thus, the behavioral harassment of these animals is already accounted
for in these estimates of potential take. Therefore, we do not believe
that authorization of incidental take resulting from airborne sound for
pinnipeds is warranted, and airborne sound is not discussed further
here.
Anticipated Effects on Marine Mammal Habitat
The proposed activities at the project site would not result in
permanent impacts to habitats used directly by marine mammals, such as
haul-out sites, but may have potential short-term impacts to food
sources such as forage fish. There are no rookeries or major haul-out
sites nearby, foraging hotspots, or other ocean bottom structures of
significant biological importance to marine mammals that may be present
in the marine waters in the vicinity of the project area. Therefore,
the main impact issue associated with the proposed activity would be
temporarily elevated sound levels and the associated direct effects on
marine mammals, as discussed previously in this document. The most
likely impact to marine mammal habitat occurs from pile driving effects
on likely marine mammal prey (i.e., fish) near the pier and minor
impacts to the immediate substrate during installation of piles and
removal of the old structure during the breakwater replacement project.
In-Water Construction Effect on Potential Foraging Habitat
Benthic communities at the Project site would be disturbed by
construction of the Project due to seabed-disturbing activities such as
impact pile driving, vibratory driving, DTH drilling, and vessel
anchoring and spudding. However, the footprint of direct benthic
disturbances (about 0.0142 km\2\) is relatively small when compared to
the rest of Johnson Bay (about 11.53 km\2\) and the larger area of
available, suitable, marine mammal habitat. Benthic disturbance is not
expected to result in a significant permanent loss or alteration of
habitat for marine mammals or their prey. The greatest potential impact
on marine mammal habitat resulting from construction of the project
would be the temporary loss of habitat, short-term displacement, and
decrease in availability of prey due to elevated noise levels and
localized increased turbidity associated with pile installation
activities.
In-water pile driving and drilling activities associated with the
project will result in short-term increases in underwater noise levels.
Underwater sounds could have physiological and behavioral impacts on
fish, which are a primary dietary component of the marine mammals
discussed in this application. Additionally, pile installation and
vessel anchoring/spudding could cause temporary increases in turbidity
and loss of bottom habitat, which could impact fish, in addition to the
potential for direct injury or mortality to bottom-dwelling species
within the limits of disturbance. Given that the construction schedule
for the project is limited to 234 days of activity, permanent
deterrence of fish from the area for foraging would not occur. In
addition, noise impacts would be localized to the immediate vicinity of
the breakwater and associated project components. Similar habitat is
found throughout the surrounding bays; it is anticipated that displaced
fish species would find suitable habitat nearby during active
construction. Based on the short duration of pile driving and drilling
activities, the abundance of available fish habitat adjacent to the
project site, and implementation of mitigation and minimization
measures, impacts on fish and thereby cetacean foraging from in-water
construction would be short term and minor.
Effects on Potential Prey
Construction activities would produce both impulsive (i.e., impact
pile driving and DTH) and continuous (i.e., vibratory pile driving and
DTH) sounds. Fish react to sounds which are especially strong and/or
intermittent low-frequency sounds. Short duration, sharp sounds can
cause overt or subtle changes in fish behavior and local distribution.
Hastings and Popper (2005, 2009) identified several studies that
suggest fish may relocate to avoid certain areas of sound energy.
Additional studies have documented effects of pile driving (or other
types of continuous sounds) on fish, although several are based on
studies in support of large, multiyear bridge construction projects
(e.g., Scholik and Yan 2001, 2002; Popper and Hastings 2009). Sound
pulses at received levels of 160 dB re 1 [mu]Pa may cause subtle
changes in fish behavior. SPLs of 180 dB may cause noticeable changes
in behavior (Pearson et al. 1992; Skalski et al. 1992). SPLs of
sufficient strength may cause injury to fish and fish mortality. The
most likely impact to fish from pile driving at the project area would
be temporary behavioral avoidance of the area. The duration of fish
avoidance of this area after these activities stop is unknown, but a
rapid return to normal recruitment, distribution and behavior is
anticipated. In general, impacts to marine mammal prey species are
expected to be minor and temporary due to the short timeframe for the
pier replacement project.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
proposed for authorization through the IHA, which will inform NMFS'
consideration of ``small numbers,'' the negligible impact
determinations, and impacts on subsistence uses. Harassment is the only
type of take expected to result from these activities. Except with
respect to certain activities not pertinent here, section 3(18) of the
MMPA defines ``harassment'' as any act of pursuit, torment, or
annoyance, which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as
certain construction activities (i.e., pile driving and DTH drilling)
have the potential to result in disruption of behavioral patterns for
individual marine mammals. There is also some potential for auditory
injury (Level A harassment) to result, primarily for very high
frequency cetacean species and phocids because predicted auditory
injury zones are larger than for low-frequency and high-frequency
cetacean species. Auditory injury is unlikely to occur for low
frequency and high frequency cetacean species. The proposed mitigation
and monitoring measures are expected to minimize the severity of the
taking to the extent practicable.
As described previously, no serious injury or mortality is
anticipated or proposed to be authorized for this activity. Below we
describe how the proposed take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic criteria above which NMFS believes the best
available science indicates marine mammals will likely be behaviorally
harassed or incur some degree of auditory injury; (2) the area or
volume of water that will be ensonified above these levels in a day;
[[Page 11271]]
(3) the density or occurrence of marine mammals within these ensonified
areas; and, (4) the number of days of activities. We note that while
these factors can contribute to a basic calculation to provide an
initial prediction of potential takes, additional information that can
qualitatively inform take estimates is also sometimes available (e.g.,
previous monitoring results or average group size). Below, we describe
the factors considered here in more detail and present the proposed
take estimates.
Acoustic Criteria
NMFS recommends the use of acoustic criteria 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 auditory injury (AUD INJ) of some
degree (equated to Level A harassment). We note that the criteria for
AUD INJ, as well as the names of two hearing groups, have been recently
updated (NMFS 2024) as discussed below in the Level A harassment
section.
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (referenced
to 1 re 1 [mu]Pa) for continuous (e.g., vibratory pile driving,
drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-explosive
impulsive (e.g., seismic airguns) or intermittent (e.g., scientific
sonar) sources. Generally speaking, Level B harassment take estimates
based on these behavioral harassment thresholds are expected to include
any likely takes by TTS as, in most cases, the likelihood of TTS occurs
at distances from the source less than those at which behavioral
harassment is likely. TTS of a sufficient degree can manifest as
behavioral harassment, as reduced hearing sensitivity and the potential
reduced opportunities to detect important signals (conspecific
communication, predators, prey) may result in changes in behavior
patterns that would not otherwise occur.
ME DOT's proposed activity includes the use of continuous
(vibratory pile driving and removal and DTH drilling) and impulsive
(impact pile driving and DTH drilling), and therefore the RMS SPL
thresholds of 120 and 160 dB re 1 [mu]Pa are applicable.
Level A Harassment--NMFS' 2024 Updated Technical Guidance for
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing
(Version 3.0) (Technical Guidance, 2024) identifies dual criteria to
assess auditory injury (Level A harassment) to five different
underwater marine mammal groups (based on hearing sensitivity) as a
result of exposure to noise from two different types of sources
(impulsive or non-impulsive). ME DOT's proposed activity includes the
use of impulsive (impact pile driving and DTH drilling) and non-
impulsive (vibratory pile driving and removal) sources.
The 2024 Updated Technical Guidance criteria include both updated
thresholds and updated weighting functions for each hearing group. The
thresholds are provided in the table below. The references, analysis,
and methodology used in the development of the criteria are described
in NMFS' 2024 Updated Technical Guidance, which may be accessed at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance-other-acoustic-tools">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance-other-acoustic-tools</a>.
Table 4--Thresholds Identifying the Onset of Auditory Injury
----------------------------------------------------------------------------------------------------------------
AUD INJ onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 222 dB; Cell 2: LE,LF,24h: 197 dB.
LE,LF,24h,: 183 dB.
High-Frequency (HF) Cetaceans.......... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,HF,24h: 201 dB.
LE,HF,24h: 193 dB.
Very High-Frequency (VHF) Cetaceans.... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,VHF,24h: 181 dB.
LE,VHF,24h: 159 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 223 dB; Cell 8: LE,PW,24h: 195 dB.
LE,PW,24h: 183 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 230 dB; Cell 10: LE,OW,24h: 199 dB.
LE,OW,24h: 185 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric criteria for impulsive sounds: Use whichever criteria results in the larger isopleth for
calculating AUD INJ onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure
level criteria associated with impulsive sounds, the PK SPL criteria are recommended for consideration for non-
impulsive sources.
Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
exposure level (LE,p) has a reference value of 1 [micro]Pa\2\s. In this table, criteria are abbreviated to be
more reflective of International Organization for Standardization (ISO) standards (ISO 2017; ISO 2020). The
subscript ``flat'' is being included to indicate peak sound pressure are flat weighted or unweighted within
the generalized hearing range of marine mammals underwater (i.e., 7 Hz to 165 kHz). The subscript associated
with cumulative sound exposure level criteria 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 criteria 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 criteria 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 proposed project.
Marine mammals are expected to be affected via sound generated by the
primary components of the project (i.e., pile driving and removal and
DTH drilling). The
[[Page 11272]]
maximum (underwater) area ensonified above the thresholds for
behavioral harassment referenced above is approximately 29 km\2\ for
the total area, and 11 km\2\ in U.S. waters.
The project includes vibratory pile installation and removal,
impact pile driving, and DTH drilling. Source levels for these
activities are based on reviews of measurements of the same or similar
types and dimensions of piles available in the literature and proxies
from similar, previous projects. Source levels for each pile size and
activity are presented in table 5. Source levels for vibratory
installation and removal of piles of the same diameter are assumed to
be the same.
Table 5--Proxy Sound Source Levels for Pile Installation Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source levels (re
Installation Distance to 1[micro]Pa)
Project component Pile type method Proxy Reference measurement --------------------------
(m) Peak SEL RMS
--------------------------------------------------------------------------------------------------------------------------------------------------------
PSP............................ 36'' Diameter DTH Drilling...... 25'' to 42'' piles NMFS 2022b, Denes 10 194 164 174
Steel Pipe Piles. et al. 2019,
Reyff and
Heyvaert 2019,
Reyff 2020.
Floating Docks................. 24-30'' Diameter
Steel Pipe
Piles.\2\
Falsework Platform............. 14'' Diameter Vibratory Pile 14'' steel H pile. Caltrans 2015, 10 ....... ....... 150
Steel H Piles. Driving. NMFS 2022a.
Impact Pile 10 200 183 170
Driving.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ As a conservative measure, the same proxy measurements were used for both the PSP and the floating docks due to their pile design and installation
method similarities.
\2\ For the purpose of this IHA, it is assumed that a 30-inch pile would be used to install the floating docks.
\3\ DTH drilling is considered an impulsive sound source for Level A harassment calculations, and a non-impulsive source for Level B harassment
calculations.
NMFS recommends treating DTH systems as both impulsive and
continuous, non-impulsive sound source types simultaneously. Thus,
impulsive thresholds are used to evaluate Level A harassment, and
continuous thresholds are used to evaluate Level B harassment. With
regards to DTH mono-hammers, NMFS recommends proxy levels for Level A
harassment based on available data regarding DTH systems of similar
sized piles and holes (Denes et al., 2019, Reyff and Heyvaert 2019,
Reyff 2020) (table 1 and table 6 includes number of piles and duration;
table 5 includes sound pressure and sound exposure levels for each pile
type).
ME DOT proposed to use bubble curtains for all PSP and floating
dock construction which will use DTH drilling. We assume here that use
of the bubble curtain would result in a reduction of 5 dB from the
assumed SPL (rms) and SPL (peak) source levels for these pile sizes,
and reduce the applied source levels accordingly.
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 x Log<INF>10</INF> (R<INF>1</INF>/R<INF>2</INF>),
where:
TL = transmission loss in dB
B = transmission loss coefficient
R<INF>1</INF> = the distance of the modeled SPL from the driven
pile, and
R<INF>2</INF> = 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
(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 3 dB in sound level
for each doubling of distance from the source (10*log [range]). A
practical spreading value of 15 is often used under conditions, such as
the project site, where water increases with depth as the receiver
moves away from the shoreline, resulting in an expected propagation
environment that would lie between spherical and cylindrical spreading
loss conditions. Practical spreading loss is assumed here.
The intensity of pile driving sounds is greatly influenced by
factors such as the type of piles, hammers, and the physical
environment in which the activity takes place. In order to calculate
the distances to the Level A harassment and the Level B harassment
sound thresholds for the methods and piles being used in this project,
the applicant 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 pile
installation of steel H piles and vibratory removal of steel H piles
and DTH drilling of 36-inch steel pipe piles and 24 to 30-inch steel
pipe piles. NMFS consulted multiple sources to determine valid proxy
source levels for the construction planned. This is the best available
data for pile source levels, and source levels for each pile size and
driving method are presented in table 5.
The ensonified area associated with Level A harassment is more
technically challenging to predict due to the need to account for a
duration component. Therefore, NMFS developed an optional User
Spreadsheet tool to accompany the 2024 Updated Technical Guidance that
can be used to relatively simply predict an isopleth distance for use
in conjunction with marine mammal density or occurrence to help predict
potential takes. We note that because of some of the assumptions
included in the methods underlying this optional tool, we anticipate
that the resulting isopleth estimates are typically going to be
overestimates of some degree, which may result in an overestimate of
potential take by Level A harassment. However, this optional tool
offers the best way to estimate isopleth distances when more
sophisticated modeling methods are not available or practical. For
stationary sources such as pile driving, the optional User Spreadsheet
tool predicts the distance at which, if a marine mammal remained at
that distance for the duration of the activity, it would be expected to
incur AUD INJ. Inputs used in the optional User
[[Page 11273]]
Spreadsheet tool, and the resulting estimated isopleths, are reported
below.
Table 6--User Spreadsheet Inputs for Calculating Level A and B Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
Weighting
factor Number of Number of Activity
Pile size and installation method Spreadsheet tab used adjustment strikes per piles per duration
(kHz) pile day (minutes)
----------------------------------------------------------------------------------------------------------------
14'' H Pile Vibratory Installation.. A.1 Vibratory pile 2.5 N/A 5 30
driving.
14'' H Pile Vibratory Removal....... A.1 Vibratory pile 2.5 N/A 5 30
driving.
14'' H Pile Impact Installation..... E.1 Impact pile 2 150 5 N/A
driving.
24''-30'' Steel Pipe Piles DTH E.2 DTH Drilling...... 2 N/A 0.5 780
Drilling.
36'' Steel Pipe Piles DTH Drilling.. E.2 DTH Drilling...... 2 N/A 0.5 780
----------------------------------------------------------------------------------------------------------------
Table 7--Calculated Level A and Level B Harassment Isopleths
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment (m) Level B
Broadband ------------------------------------------------ harassment
noise (m)
Project component Pile type Installation method Sound signal attenuation LF HF VHF PW ------------
\b\ (dB) cetaceans cetaceans cetaceans pinnipeds All marine
mammals
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
PSP & Floating Docks.\a\ 24-30'' Diameter Steel DTH Drilling............ Non-Impulsive & 5 1,243.6 158.7 1,924.5 1,104.8 18,478.5
Pipe Piles. Impulsive. (1,817.0) (6,335.9)
Falsework Platform................... 14'' Diameter Steel H Vibratory Pile Driving Non-Impulsive........... 0 3.1 1.2 2.6 4.0 1,000
Piles. and Removal.
Impact Pile Driving..... Impulsive............... 0 821.4 104.8 1,271.0 729.7 46.4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The isopleths for PSP & floating dock piles for Level A harassment (VHF cetaceans) and Level B harassment (all marine mammals) extend into Canadian waters. Isopleths in parentheses
represent the truncated radii within US waters only.
\b\ A NAS (noise attenuation system) will be deployed during all phases of PSP/floating dock pile installation. No NAS is planned during falsework platform installation and removal.
Table 8--The Calculated ZOIs (Zone of Influence) for Each Project Component and Installation and Removal Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A ZOI (km\2\) Level B ZOI
Broadband ------------------------------------------------ (km\2\)
Project component Pile type Installation method noise ------------
attenuation LF HF VHF PW All marine
\b\ (dB) cetaceans cetaceans cetaceans pinnipeds mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
PSP & Floating Docks.\a\......... 36'' Diameter Steel DTH Drilling....... 5 2.633 0.079 4.485 2.167 29.336
Pipe Piles. (4.480) (11.330)
24-30'' Diameter
Steel Pipe Piles.
Falsework Platform............... 14'' Diameter Steel Vibratory Pile 0 0.00003 0.000005 0.000021 0.00005 1.833
H Piles. Driving and
Removal.
Impact Pile Driving 1.337 0.035 2.726 1.121 0.007
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The ZOIs for PSP & floating dock piles for Level A VHF cetaceans and Level B harassment all marine mammals both extend into Canadian waters. ZOIs in
parentheses represent the truncated zones within US waters only.
\b\ A NAS will be deployed during all phases of PSP/floating dock pile installation. No NAS is planned during falsework platform installation and
removal.
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including density and other relevant information which
will inform the take calculations. Density estimates, scientific
literature, local information, and monitoring data from the previous
nearby Eastport Breakwater Project (Maine DOT 2015 & 2017) were used to
inform take calculations. Density estimates were calculated using the
2023 density models from the Duke University Marine Geospatial
Ecological Laboratory (Roberts et al., 2016, 2023). The density models
have 5 x 5 km spatial resolution cells with monthly density values for
each cell. At the mouth of the Quoddy Narrows Inlet, ME are three
density cells which represent the nearest density data to the project
location. The maximum monthly density data from these three cells were
used to determine density estimates for all cetacean species with
regular or common presence in the area, i.e., Atlantic white-sided
dolphin, minke whale, common dolphin, and harbor porpoise (table 9).
Local and recent monitoring data are available for harbor and gray
seals near the project area. For seals, sighting records from nearby
monitoring surveys are preferred because the data represent reliable
detections of local species and may provide more detail and context to
each sighting than what can be inferred from model results. Two nearby
monitoring reports have been reviewed, and each contain sufficient
detection data to calculate exposure estimates for this project (ME DOT
2015, 2017) (table 10 and table 11). Both monitoring reports contain
PSO (protected species observer) detections during breakwater
construction at Eastport, Maine, located in Washington County, in
Cobscook Bay and situated approximately 4.83 km (3 mi) from the Lubec
Safe Harbor Project Area.
[[Page 11274]]
Table 9--Maximum Estimated Densities (Animals/km\2\) Used for Exposure Estimation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monthly densities (animals/km\2\)
Species -----------------------------------------------------------------------------------------------------------------------
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke whale..................... 0.0001 0.0001 0.0002 0.002 0.005 0.009 0.008 0.007 0.004 0.003 0.0001 0.0001
Harbor seal \1\................. 0.128 0.162 0.120 0.134 0.228 0.855 1.268 1.037 0.669 0.473 0.043 0.063
Gray seal \1\................... 0.058 0.074 0.055 0.061 0.104 0.389 0.577 0.472 0.304 0.215 0.019 0.029
Harbor porpoise................. 0.073 0.102 0.099 0.116 0.101 1.661 2.951 3.205 2.531 1.966 1.743 0.050
Atlantic white-sided dolphin.... 0.021 0.017 0.013 0.017 0.032 0.049 0.038 0.025 0.037 0.054 0.033 0.033
Common dolphin.................. 0.005 0.001 0.001 0.001 0.003 0.005 0.008 0.014 0.015 0.017 0.019 0.016
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Roberts et al., 2016, 2023.
Note: Blue cells with bold values indicate the highest monthly density for each species.
\1\ Density was adjusted by their relative abundance.
Table 10--Individuals Observed per Month at Eastport, Maine Breakwater
Project 2015-2016 Season
------------------------------------------------------------------------
Month Number of seals observed
------------------------------------------------------------------------
July 2015.................................. 190
August 2015................................ 133
September 2015............................. 139
November 2015.............................. 170
December 2015.............................. 20
January 2016............................... 42
February 2016.............................. 13
March 2016................................. 27
April 2016................................. 22
May 2016................................... 3
June 2016.................................. 11
----------------------------
Total.................................. 916
------------------------------------------------------------------------
Table 11--Individuals Observed per Month at Eastport, Maine Breakwater
Project 2017 Season
------------------------------------------------------------------------
Month (2017) Number of seals observed
------------------------------------------------------------------------
January.................................... 0
February................................... 3
March...................................... 14
April...................................... 12
May........................................ 15
----------------------------
Total.................................. 44
------------------------------------------------------------------------
Take Estimation
Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and proposed for authorization.
ME DOT estimated the take of marine mammals for the Lubec Safe
Harbor Project using two different methods. Take for cetaceans was
calculated using the 2023 density models from Duke University Marine
Geospatial Ecological Laboratory (Roberts et al., 2016, 2023). Take for
seals was calculated based on monitoring data from two construction
seasons of the nearby Eastport Breakwater Project in Eastport, Maine
which is about 5 km away from Lubec.
As previously noted, NMFS cannot authorize incidental take under
the MMPA that may occur within the territorial seas of foreign nations
(from 0-12 nmi (nautical miles) (22.2 km) from shore), as the MMPA does
not apply in those waters. However, NMFS has still calculated the
estimated level of incidental take in the entire activity area
(including Canadian territorial waters) as part of the analysis
supporting our determination under the MMPA that the activity will have
a negligible impact on the affected species. The total estimated take
in U.S. and Canadian waters is presented in table 17 (see Negligible
Impact Analysis and Determination). Take calculations for cetaceans
used the maximum monthly density and equation 1 below. Take
calculations for gray and harbor seals used monitoring data recorded
from two construction seasons at the Eastport Breakwater Project and
equation 2 below.
(1) Estimated Take = maximum monthly density (table 9) x ZOI for
the specific pile-related activity (table 8) x total number of days of
specific pile-related activity (table 1).
(2) Estimated Take = average daily number of observed individuals
per month (table 13) x total number of days of specific pile-related
activity per month (table 14).
Minke Whale
A total of 28 minke whales were observed during the Eastport
Breakwater Project, and there is a small potential for them to overlap
with the Lubec Project area. Use of the information and equation
described above results in an estimated total of 56 minke whale takes,
by Level B harassment only. However, NMFS proposes to authorize only
the take of minke whales estimated to occur in US waters (23).
The largest Level A harassment zone for minke whales extends 1,244
m (table 7). ME DOT is planning to implement shutdown zones for low-
frequency cetaceans that exceed the Level A harassment isopleth for all
activities. Therefore, when considered in context of the expected low
occurrence of minke whales in the area, implementation of the proposed
shutdown zones is
[[Page 11275]]
expected to eliminate the potential for take by Level A harassment of
minke whales. Therefore, no take by Level A harassment is anticipated
or proposed for authorization for minke whales.
Atlantic White-Sided Dolphin
No Atlantic white-sided dolphins were observed during the Eastport
Breakwater Project, and there is a small potential for them to overlap
with the Lubec Project area. Use of the information and equation
described above results in an estimated total of 334 Atlantic white-
sided dolphin takes by Level B harassment only. However, NMFS proposes
to authorize only the take of Atlantic white-sided dolphins estimated
to occur in US waters (132). The largest Level A harassment zone for
Atlantic white-sided dolphins extends 159 m from the noise source
(table 7). ME DOT is planning to implement shutdown zones for high-
frequency cetaceans that exceed the Level A harassment isopleth for all
activities. Therefore, when considered in context of the expected rare
occurrence of Atlantic white-sided dolphins in the area, implementation
of the proposed shutdown zones is expected to eliminate the potential
for take by Level A harassment of Atlantic white-sided dolphins.
Therefore, no take by Level A harassment is anticipated or proposed for
authorization for Atlantic white-sided dolphins.
Common Dolphin
No common dolphins were observed during the Eastport Breakwater
Project, and there is a small potential for them to overlap with the
Lubec Project area. Use of the information and equation described above
results in an estimated total of 117 common dolphin takes by Level B
harassment. However, NMFS proposes to authorize only the take of common
dolphins estimated to occur in US waters (46).
The largest Level A harassment zone for common dolphins extends 159
m from the noise source (table 7). ME DOT is planning to implement
shutdown zones for high-frequency cetaceans that exceed the Level A
harassment isopleth for all activities. Therefore, when considered in
context of the expected rare occurrence of common dolphins in the area,
implementation of the proposed shutdown zones is expected to eliminate
the potential for take by Level A harassment of common dolphins.
Therefore, no take by Level A harassment is anticipated or proposed for
authorization for common dolphins.
Harbor Porpoise
A total of 76 harbor porpoises were observed during the Eastport
Breakwater Project, and they are expected to occur within the Lubec
Project area. Use of the information and equation described above
results in an estimated total of 17,580 harbor porpoise takes by Level
B harassment. However, NMFS proposes to authorize only the take of
harbor porpoises estimated to occur in US waters (5,473).
To estimate expected take by Level A harassment for species with
larger Level A harassment zones and which are expected to occur more
frequently (i.e., harbor porpoise and seals), while accounting for
implementation of shutdown zones (table 16), exposures within the
estimated Level A harassment zones but outside the shutdown zones
(where the Level A harassment zones are larger than the shutdown zones)
(table 12) were calculated. Proportions of the total Level A harassment
areas that are outside of the shutdown zones are shown in table 12.
These percentages are then applied to the total Level A harassment
estimates to calculate the expected instances of take by Level A
harassment that are proposed for authorization. Where the estimated
Level A harassment zones extend into Canadian waters, the associated
estimates of take by Level A harassment are adjusted as described above
for Level B harassment to ensure that only takes expected to occur
within U.S. waters are authorized. Use of the information and equation
described above results in an estimated total of 2,285 harbor porpoise
takes by Level A harassment. However, NMFS proposes to authorize only
the take of harbor porpoises estimated to occur in US waters (2,236).
Table 12--Proportion of Level A Harassment ZOIs Not Planned for Clearance and Shutdown Procedures \1\
----------------------------------------------------------------------------------------------------------------
Proportion of Level A
harassment areas outside of
shutdown zones
Project component Installation method -------------------------------
VHF cetaceans PW pinnipeds
(percent) (percent)
----------------------------------------------------------------------------------------------------------------
PSP & Floating Docks.......................... DTH Drilling.................... 72.48 (74.02) 54.74
Falsework Platform............................ Impact Pile Driving............. 60.66 31.48
----------------------------------------------------------------------------------------------------------------
\1\ The parenthetical percentage represent the proportion of ZOIs extending into Canadian waters and are not
planned for clearance and shutdown procedures. The rest of the percentages are indicative of US-waters only.
Gray Seal
A total of 916 seals were observed during the 2015-2016 Eastport
Breakwater Project 2015-2016 season. Seal data were combined as
observers had difficulty differentiating in the field between harbor
and gray seals. There is potential for gray seals to overlap with the
Lubec Project area. Use of the information and equation described above
results in an estimated total of 268 gray seal takes. However, NMFS
proposes to authorize only the take of gray seals estimated to occur in
US waters (132), with 92 (228 including Canadian waters) by Level B
harassment and 40 by Level A harassment. Instances of Level A
harassment versus Level B harassment was proportioned out by the number
of days per activity and proportion of Level A and B harassment zone
size. The number of days of DTH reflects 88.9% of activity while
vibratory and impact pile driving represent 5.5% each. Once take was
proportioned out into each activity it was further proportioned based
on the size of the Level A and Level B harassment zone. DTH has about
10.5% of its Level A harassment zone within the Level B harassment
zone, while due to shutdown procedures and zone size vibratory driving
will only cause potential take by Level B harassment and impact driving
will only cause potential take by Level A harassment.
Harbor Seal
A total of 916 seals were observed during the 2015-2016 Eastport
Breakwater Project 2015-2016 season, seal data were combined as
observers
[[Page 11276]]
had difficulty differentiating in the field between harbor and gray
seals. However, there were 44 harbor seals observed during the 2017
construction season of the Eastport Project. There is potential for
harbor seals to overlap with the Lubec Project area. Use of the
information and equation described above results in an estimated total
of 548 harbor seal takes. However, NMFS proposes to authorize only the
take of gray seals estimated to occur in U.S. waters (301), with 220
(548 including Canadian waters) by Level B harassment and 81 by Level A
harassment. Take by Level A versus Level B harassment was proportioned
out by the number of days per activity and proportion of Level A and B
harassment zone size. The number of days of DTH reflects 88.9% of
activity while vibratory and impact pile driving represent 5.5% each.
Once take was proportioned out into each activity it was further
proportioned based on the size of the Level A and Level B harassment
zone. DTH has about 10.5% of its Level A harassment zone within the
Level B harassment zone, while due to shutdown procedures and zone size
vibratory driving will only cause potential take by Level B harassment
and impact driving will only cause potential take by Level A
harassment.
Table 13--Average Daily Observed Individual Animals Detected per Month
at Eastport, Maine Breakwater Project
------------------------------------------------------------------------
Species detected at Eastport, Maine
Observation month -------------------------------------
Harbor seal Gray seal
------------------------------------------------------------------------
January........................... 0.96 0.88
February.......................... 0.84 0.68
March............................. 0.82 0.37
April............................. 0.88 0.34
May............................... 0.85 0.16
June.............................. 0.42 0.19
July.............................. 6.53 2.97
August............................ 5.08 2.31
September......................... 5.31 2.42
October........................... 5.02 2.28
November.......................... 6.87 3.13
December.......................... 1.15 0.52
------------------------------------------------------------------------
* Source Maine DOT
Table 14--Monthly Construction Schedule for the Safe Harbor Project
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of piles installed per month Number of
--------------------------------------- piles removed
per month Days of
Year Month Floating Falsework ---------------- activity per
PSP piles dock piles piles Falsework month
piles
--------------------------------------------------------------------------------------------------------------------------------------------------------
2025.......................................... March............................ 6 ........... 5 5 14
April............................ 6 ........... 5 5 14
May.............................. 6 ........... 5 5 14
June............................. 6 ........... 5 5 14
July............................. 6 ........... 5 5 14
August........................... 6 ........... 5 5 14
September........................ 6 ........... 5 5 14
October.......................... 6 ........... 5 5 14
November......................... 6 ........... 5 5 14
December......................... 6 8 5 5 30
January.......................... 6 8 5 5 30
2026.......................................... February......................... 6 8 5 5 30
March............................ ........... 8 5 5 18
----------------------------------------------------------------------
Total Piles............................... ................................. 72 32 65 65 234
----------------------------------------------------------------------
Total Days................................ ................................. 144 64 13 13 234
--------------------------------------------------------------------------------------------------------------------------------------------------------
The total take estimates that are proposed for authorization for
each species for the Lubec Harbor Project can be found below in table
15.
[[Page 11277]]
Table 15--Estimated Take by Level A and Level B Harassment by Species \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total proposed Proposed take
Stock take--U.S. percentage of
Common name Stock abundance Level A Level B waters stock in U.S.
authorized only waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke Whale................................ Canadian Eastern Coast........ 21,968 0 23 (56) 23 (56) <1
Atlantic White-Sided Dolphin............... Western North Atlantic........ 31,506 0 132 (334) 132 (334) <1
Common Dolphin............................. Western North Atlantic........ 93,100 0 46 (117) 46 (117) <1
Harbor Porpoise............................ Gulf of Maine/Bay of Fundy.... 85,765 2,236 (2,285) 5,473 (17,580) 7,709 (19,865) 9
Harbor Seal................................ Western North Atlantic........ 61,336 81 220 (467) 301 (548) <1
Gray Seal.................................. Western North Atlantic........ 394,311 40 92 (228) 132 (268) <1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The parenthetical number represents the total number of takes including those estimated to occur in Canadian waters.
Proposed Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, and impact on
operations.
Mitigation for Marine Mammals and Their Habitat
Implementation of Shutdown Zones--For all pile driving/removal
activities, ME DOT would implement shutdowns within designated zones.
The purpose of a shutdown zone is generally to define an area within
which shutdown of activity would occur upon sighting of a marine mammal
(or in anticipation of an animal entering the defined area).
Implementation of shutdowns would be used to avoid or minimize
incidental Level A harassment takes from vibratory, impact pile driving
and removal, and DTH drilling (table 16). For all vibratory pile
driving/removal activities, a minimum 10-m shutdown zone would be
established for marine mammals as outlined in ME DOT's IHA application.
Shutdown zones for impact pile driving and DTH drilling are based on
the Level A harassment zones and monitoring feasibility and therefore
vary by marine mammal hearing group (table 16). The shutdown zones for
DTH drilling for low frequency and high frequency cetaceans were
rounded up from the estimated Level A harassment zone for each
particular activity. The largest Level A harassment zone for low
frequency cetaceans from DTH is 1,244 m, and a shutdown zone of 1,245 m
is proposed, given the expected ability to detect those species at that
distance. The largest Level A harassment zone from DTH for high
frequency cetaceans is 159 m, and a shutdown zone of 160 m is proposed,
given the expected ability to detect those species at that distance.
The same methodology was used for impact pile driving for low frequency
and high frequency cetaceans. The largest Level A harassment zone for
low frequency cetaceans is 821 m, so a shutdown zone of 825 m is
proposed, given the expected ability to detect those species at that
distance. The largest Level A harassment zone for high frequency
cetaceans for impact pile driving is 105 m, so a shutdown zone of 105 m
is proposed, given the expected ability to detect those species at that
distance. The Level A harassment zones for DTH drilling and impact pile
driving for very high frequency cetaceans and phocids are considered
too large to effectively monitor (Table 7). Therefor a shutdown zone of
500m is proposed, as we consider that distance to be the largest
reasonable zone a PSO can monitor for more cryptic species like harbor
porpoises and seals in this circumstance. The placement of PSOs during
all pile driving activities (described in detail in the Monitoring and
Reporting section) would ensure the full extent of shutdown zones are
visible to PSOs.
Table 16--Proposed Shutdown and Clearance Zones (m) for Each Project Component
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shutdown & clearance distances
---------------------------------------------------
Project component Pile installation activity Bubble curtain used LF HF VHF PW
cetaceans cetaceans cetaceans pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
PSP..................................... DTH Drilling............... Yes.......................... 1,245 160 \1\ 500 \1\ 500
Floating Docks..........................
Falsework Platform...................... Vibratory Setting & Removal No........................... 10 10 10 10
Impact Hammer.............. No........................... 825 105 \1\ 500 \1\ 500
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Mitigation ranges were selected based on the acoustic isopleth results, plus an added buffer of rounding up to the nearest 5 m for PSO clarity.
[[Page 11278]]
\1\ It is NMFS' recommendation for this Project that a 500-m maximum shutdown and clearance zone be assumed for VHF cetaceans and pinnipeds for
monitoring feasibility.
Monitoring for Level A and Level B harassment--ME DOT has
identified monitoring zones correlated with the Level B harassment
zones. 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. PSOs would monitor the entire visible
area to maintain the best sense of where animals are moving relative to
the zone boundaries defined in table 16. A minimum of two PSOs will be
required to be on duty at all times during pile activity. ME DOT will
send a Marine Mammal Monitoring Plan 90 days prior to the project's
starting date with specific PSO locations.
Bubble Curtain--A bubble curtain would be used for all DTH drilling
activities for construction of the PSP and floating dock. Bubble
curtains are not proposed for installation or removal of the piles for
the falsework platform. Bubble curtains will be used to achieve a
broadband noise attenuation which will effectively minimize the extent
of the SELcum isopleths and reduce the sizes of the overall ZOIs. It is
anticipated that a 5-dB broadband attenuation level will consistently
be achieved; therefore, all exposure estimates and the resulting take
request account for all stages of structural pile installation
activities associated with this project and are based on 5 dB
attenuation (not including falsework pile installation and removal).
The bubble curtain must distribute air bubbles around 100 percent of
the piling circumference for the full depth of the water column. The
lowest bubble ring must be in contact with the substrate for the full
circumference of the ring, and the weights attached to the bottom ring
shall ensure 100 percent substrate contact. No parts of the ring or
other objects shall prevent full substrate contact. Air flow to the
bubblers must be balanced around the circumference of the pile.
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 would observe the shutdown and
monitoring zones for a period of 30 minutes. The shutdown zone would be
considered cleared when a marine mammal has not been observed within
the zone for that 30-minute period. If a marine mammal is observed
within the shutdown zone, a soft-start cannot proceed until the animal
has left the zone or has not been observed for 15 minutes. If the
monitoring zone has been observed for 30 minutes and marine mammals are
not present within the zone, soft-start procedures can commence and
work can continue. Pre-start clearance monitoring must be conducted
during periods of visibility sufficient for the lead PSO to determine
that the shutdown zones, indicated in table 16, are clear of marine
mammals. When a marine mammal for which take by Level B harassment is
authorized is present in the Level B harassment zone, activities may
begin. If work ceases for more than 30 minutes, the pre-activity
monitoring of both the monitoring zone and shutdown zone would
commence.
Soft Start--The use of a soft start procedure is believed to
provide additional protection to marine mammals by warning marine
mammals or providing them with a chance to leave the area prior to the
hammer operating at full capacity. ME DOT will utilize soft start
techniques for impact pile driving. We require an initial set of three
strikes from the impact hammer at reduced energy, followed by a 30-
second waiting period, then two subsequent three-strike sets. Soft
start will be required at the beginning of each day's impact pile
driving work and at any time following a cessation of impact pile
driving of 30 minutes or longer; the requirement to implement soft
start for impact driving is independent of whether vibratory driving
has occurred within the prior 30 minutes. Soft start is not required
during vibratory pile driving activities.
Based on our evaluation of the applicant's proposed measures, NMFS
has preliminarily determined that the proposed mitigation measures
provide the means of effecting the least practicable impact on the
affected species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.
Proposed Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the 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
activities would be conducted by PSOs meeting NMFS' standards and in a
manner consistent with the following:
<bullet> PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods;
<bullet> At least one PSO would have prior experience performing
the duties of a PSO during construction activity
[[Page 11279]]
pursuant to a NMFS-issued incidental take authorization;
<bullet> Other PSOs may substitute education (degree in biological
science or related field) or training for experience; and
<bullet> Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator would be designated. The lead
observer would be required to have prior experience working as a marine
mammal observer during construction.
<bullet> PSOs must be approved by NMFS prior to beginning any
activities subject to this IHA.
PSOs should have the following additional qualifications:
<bullet> Ability to conduct field observations and collect data
according to assigned protocols;
<bullet> Experience or training in the field identification of
marine mammals, including the identification of behaviors;
<bullet> Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
<bullet> Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when in-water construction
activities were conducted; dates, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
and marine mammal behavior; and
<bullet> Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
Monitoring would be conducted 30 minutes before, during, and 30
minutes after pile driving/removal 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/
removal 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.
A minimum of two PSO would be on duty during all in-water
construction activities. Locations from which PSOs would be able to
monitor from will be determined by ME DOT 90 days prior to the start of
construction in their NMFS-approved Marine Mammal Monitoring Plan.
PSOs would scan the waters using binoculars or spotting scopes and
would use a handheld range-finder device to verify the distance to each
sighting from the project site. PSOs would be placed at the best
vantage point(s) practicable to monitor for marine mammals and
implement shutdown/delay procedures when applicable by calling for the
shutdown to the hammer operator via a radio.
Reporting--A draft marine mammal monitoring report would be
submitted to NMFS within 90 days after the completion of pile driving
and removal activities. It would 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 the number and type of piles driven or
removed and by what method (i.e., impact driving) and for each pile or
total number of strikes for each pile (impact driving).
<bullet> PSO locations during marine mammal monitoring.
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
<bullet> Upon observation of a marine mammal, the following
information: Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting; time of sighting; identification of the
animal(s) (e.g., genus/species, lowest possible taxonomic level, or
unidentified), PSO confidence in identification, and the composition of
the group if there is a mix of species; distance and bearing of each
marine mammal observed relative to the pile being driven for each
sighting (if pile driving was occurring at time of sighting); estimated
number of animals (min/max/best estimate); estimated number of animals
by cohort (adults, juveniles, neonates, group composition, etc.);
animal's closest point of approach and estimated time spent within the
harassment zone; 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 any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting changes in behavior of the
animal(s), if any.
If no comments are received from NMFS within 30 days, the draft
final report would constitute the final report. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments.
Reporting Dead or Injured Marine Mammals--In the event that
personnel involved in the construction activities discover an injured
or dead marine mammal, the Holder must report the incident to the
Office of Protected Resources (OPR), NMFS
(<a href="/cdn-cgi/l/email-protection#8adad8a4c3dedaa4c7e5e4e3fee5f8e3e4edd8effae5f8fef9cae4e5ebeba4ede5fc"><span class="__cf_email__" data-cfemail="b6e6e498ffe2e698fbd9d8dfc2d9c4dfd8d1e4d3c6d9c4c2c5f6d8d9d7d798d1d9c0">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="036a77732d6c74666d70436d6c62622d646c75">[email protected]</a>), and to the
Greater Atlantic Marine Mammal Stranding Network as soon as feasible.
If the death or injury was clearly caused by the specified activity,
the Holder must immediately cease the activities until NMFS OPR is able
to review the circumstances of the incident and determine what, if any,
additional measures are appropriate to ensure compliance with the terms
of this IHA. The Holder must not resume their activities until notified
by NMFS. The report must include the following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
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
[[Page 11280]]
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, the majority of our analysis applies to all
the species listed in table 2, 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.
Pile driving, removal, and DTH drilling activities associated with
the project as outlined previously, have the potential to disturb or
displace marine mammals. Specifically, the specified activities may
result in take, in the form of Level A harassment and Level B
harassment from underwater sounds generated from pile driving, removal,
and DTH drilling. Potential takes could occur if individuals of these
species are present in zones ensonified above the thresholds for Level
A or Level B harassment identified above when these activities are
underway.
Take by Level A and Level B harassment would be due to potential
behavioral disturbance, TTS, and PTS. No serious injury or mortality is
anticipated or proposed for authorization given the nature of the
activity and measures designed to minimize the possibility of injury to
marine mammals. Take by Level A harassment is only anticipated for
harbor porpoises, harbor seals, and gray seals. The potential for
harassment is minimized through the construction method (i.e.,
vibratory methods to the extent practical) and the implementation of
the proposed mitigation measures (see Proposed Mitigation section).
Behavioral responses of marine mammals to pile driving, removal,
and drilling at the project site, if any, are expected to be mild and
temporary. Marine mammals within the Level B harassment zone may not
show any visual cues that they are disturbed by activities or could
become alert, avoid the area, leave the area, or display other mild
responses that are not observable such as changes in vocalization
patterns. However, given the project schedule and appropriate
mitigation, any harassment would be temporary.
In addition to the expected effects resulting from Level B
harassment, we anticipate that harbor porpoises, harbor seals, and gray
seals may sustain some limited Level A harassment in the form of PTS.
However, any PTS is expected to be of a small degree (i.e., minor
degradation of hearing capabilities within regions of hearing that
align most completely with the energy produced by pile driving (below 2
kHz)) because animals would need to be exposed to higher levels and/or
longer duration than are expected to occur here in order to incur any
more than a small degree of PTS. If hearing impairment occurs, it is
most likely that the affected animal would lose a few decibels in its
hearing sensitivity, which in most cases is not likely to meaningfully
affect its ability to forage and communicate with conspecifics, as it
would be minor and not in the region of greatest hearing sensitivity.
Additionally, and as noted previously, some subset of the
individuals that are behaviorally harassed could also simultaneously
incur some small degree of TTS for a short duration of time. Because of
the small degree anticipated, though, any PTS or TTS potentially
incurred here would not be expected to adversely impact individual
fitness, let alone annual rates of recruitment or survival.
The pile driving activities are also not expected to have
significant adverse effects on these affected marine mammals' habitats.
The activities may cause some fish to leave the area of disturbance,
thus temporarily impacting marine mammals' foraging opportunities in a
limited portion of the foraging range; but, because of the short
duration of the activities and the relatively small area of the habitat
that may be affected (with no known particular importance to marine
mammals), the impacts to marine mammal habitat are not expected to
cause significant or long-term negative consequences.
In combination, we believe that these factors, as well as the
available body of evidence from other similar activities, demonstrate
that the specified activities will have only minor, short-term effects
on individuals that will not have any bearing on those individuals'
fitness. Thus the specified activities are not expected to impact rates
of recruitment or survival and will therefore have a negligible impact
on those species or stocks.
As described above, we propose to authorize only the takes
estimated to occur in United States waters (table 15); however, for the
purposes of our negligible impact analysis and determination, we
consider the total number of takes that are anticipated to occur as a
result of the entire project (including the portion of the Level B
harassment zone that extends into Canadian waters) (table 17).
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect any of the species
or stocks through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality is anticipated or
authorized;
<bullet> The anticipated incidents of Level B harassment consist
of, at worst, temporary modifications in behavior;
<bullet> The potential impacts of Level A harassment on harbor
porpoises, harbor seals, and gray seals are not anticipated to increase
individual impacts to a point where any population-level impacts might
be expected;
<bullet> The absence of any significant habitat within the
industrialized project areas, including known areas or features of
special significance for foraging or reproduction; and
<bullet> The presumed efficacy of the proposed mitigation measures
in reducing the effects of the specified activity to the level of least
practicable adverse impact.
<bullet> Effects on species that serve as prey for marine mammals
from the activities are expected to be short-term and, therefore, any
associated impacts on marine mammal feeding are not expected to result
in significant or long-term consequences for individuals, or to accrue
to adverse impacts on their populations from either project;
<bullet> The ensonified areas from the project are very small
relative to the overall habitat ranges of all species and
[[Page 11281]]
stocks, and will not cause more than minor impacts
<bullet> There are no ESA-designated critical habitat, Biologically
Important Areas, or any other areas of known biological importance near
the project site.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is less 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.
Table 17--Total Estimated Take Including Canadian Territorial Waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed take
Common name Stock Stock Level A Level B Total take percentage of
abundance stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke Whale............................... Canadian Eastern Coast...... 21,968 0 56 56 <1
Atlantic-White Sided Dolphin.............. Western North Atlantic...... 31,506 0 334 334 1
Common Dolphin............................ Western North Atlantic...... 93,100 0 117 117 <1
Harbor Porpoise........................... Gulf of Maine/Bay of Fundy.. 85,765 2,285 17,580 19,865 23.2
Harbor Seal............................... Western North Atlantic...... 61,336 81 467 548 <1
Gray Seal................................. Western North Atlantic...... 394,311 40 228 268 <1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 17 demonstrates the number of animals that NMFS anticipates
could be taken by Level A and Level B harassment for the proposed work.
Our analysis shows that at most 23.2 percent of each affected stock
could be taken by harassment. The numbers of animals proposed to be
taken for these stocks would be considered small relative to the
relevant stock's abundances, even if each estimated taking occurred to
a new individual, which is an unlikely scenario.
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals would be taken relative to the population
size of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency insure that any action it authorizes,
funds, or carries out is not likely to jeopardize the continued
existence of any endangered or threatened species or result in the
destruction or adverse modification of designated critical habitat. To
ensure ESA compliance for the issuance of IHAs, NMFS consults
internally whenever we propose to authorize take for endangered or
threatened species.
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this action.
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
issue an IHA to ME DOT for conducting the Lubec Safe Harbor Project in
Lubec, Maine from March 25, 2025 through March 24, 2026, provided the
previously mentioned mitigation, monitoring, and reporting requirements
are incorporated. A draft of the proposed IHA can be found at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>.
Request for Public Comments
We request comment on our analyses, the proposed authorization, and
any other aspect of this notice of proposed IHA for the proposed Lubec
Safe Harbor Project. We also request comment on the potential renewal
of this proposed IHA as described in the paragraph below. Please
include with your comments any supporting data or literature citations
to help inform decisions on the request for this IHA or a subsequent
renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, 1-year renewal
IHA following notice to the public providing an additional 15 days for
public comments when (1) up to another year of identical or nearly
identical activities as described in the Description of Proposed
Activity section of this notice is planned or (2) the activities as
described in the Description of Proposed Activity section of this
notice would not be completed by the time the IHA expires and a renewal
would allow for completion of the activities beyond that described in
the Dates and Duration section of this notice, provided all of the
following conditions are met:
<bullet> A request for renewal is received no later than 60 days
prior to the needed renewal IHA effective date (recognizing that the
renewal IHA expiration date cannot extend beyond 1 year from expiration
of the initial IHA).
<bullet> The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the
requested renewal IHA are identical to the activities analyzed under
the initial IHA, are a subset of the activities, or include changes so
minor (e.g., reduction in pile size) that the changes do not affect the
previous analyses,
[[Page 11282]]
mitigation and monitoring requirements, or take estimates (with the
exception of reducing the type or amount of take).
(2) A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
<bullet> Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
Dated: February 28, 2025.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2025-03542 Filed 3-4-25; 8:45 am]
BILLING CODE 3510-22-P
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