Rule2025-22513
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Alaska LNG Project in Cook Inlet
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
December 11, 2025
Effective
January 1, 2026
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS, upon request from 8 Star Alaska, LLC (8 Star Alaska), which is jointly owned by Glenfarne and Alaska Gasline Development Corporation (AGDC), is promulgating regulations to govern the taking of marine mammals incidental to the Alaska Liquefied Natural Gas (LNG) project in Cook Inlet, Alaska, over the course of 5 years. These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during the specified activities in the specified geographical region during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
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[Federal Register Volume 90, Number 236 (Thursday, December 11, 2025)]
[Rules and Regulations]
[Pages 57546-57595]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-22513]
[[Page 57545]]
Vol. 90
Thursday,
No. 236
December 11, 2025
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to Alaska LNG Project in Cook Inlet; Final
Rule
Federal Register / Vol. 90 , No. 236 / Thursday, December 11, 2025 /
Rules and Regulations
[[Page 57546]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 251205-0179]
RIN 0648-BN50
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Alaska LNG Project in Cook Inlet
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of issuance of Letter of
Authorization.
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SUMMARY: NMFS, upon request from 8 Star Alaska, LLC (8 Star Alaska),
which is jointly owned by Glenfarne and Alaska Gasline Development
Corporation (AGDC), is promulgating regulations to govern the taking of
marine mammals incidental to the Alaska Liquefied Natural Gas (LNG)
project in Cook Inlet, Alaska, over the course of 5 years. These
regulations, which allow for the issuance of a Letter of Authorization
(LOA) for the incidental take of marine mammals during the specified
activities in the specified geographical region during the effective
dates of the regulations, prescribe the permissible methods of taking
and other means of effecting the least practicable adverse impact on
marine mammal species or stocks and their habitat, as well as
requirements pertaining to the monitoring and reporting of such taking.
DATES: Effective from January 1, 2026, through December 31, 2030.
ADDRESSES: Electronic copies of the application and supporting
documents, the proposed rule and associated public comments, 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-oil-and-gas">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-oil-and-gas</a>. In case of problems
accessing these documents, please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Kristy Jacobus, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose of Regulatory Action
These regulations, promulgated under the authority of the Marine
Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.), establish a
framework for NMFS to authorize the take of marine mammals incidental
to activities associated with the Alaska LNG Project in Cook Inlet,
Alaska.
Legal Authority for the Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce, 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
for up to 5 years if, after notice and public comment, the agency makes
certain findings and promulgates regulations that set forth permissible
methods of taking pursuant to that activity and other means of
effecting the ``least practicable adverse impact'' on the affected
species or stocks and their habitat (see Mitigation section), as well
as monitoring and reporting requirements.
Summary of Major Provisions Within the Rule
Following is a summary of the major provisions of this rule
regarding 8 Star Alaska's activities:
<bullet> NMFS may authorize, through a LOA, the take of small
numbers of marine mammals, by harassment only;
<bullet> Mitigation measures are required during certain activities
should a marine mammal be detected within identified zones; and
<bullet> Restrictions related to beluga whales are required during
summer months in the western portion of Cook Inlet.
Through adaptive management, the regulations will allow NMFS to
modify (e.g., remove, revise, or add to) the existing mitigation,
monitoring, or reporting measures summarized above and required by the
LOA, as appropriate.
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 promulgated or an incidental harassment authorization is issued.
The MMPA provides that 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
(collectively referred to 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.
Fixing America's Surface Transportation Act
This project is covered under Title 41 of the Fixing America's
Surface Transportation Act, or ``FAST-41.'' FAST-41 includes a suite of
provisions designed to expedite the environmental review for covered
infrastructure projects, including enhanced interagency coordination as
well as milestone tracking on the public-facing Permitting Dashboard.
8 Star Alaska's project is listed on the Permitting Dashboard.
Milestones and schedules related to the environmental review and
permitting for the Alaska LNG Project can be found at <a href="https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/alaska-lng-project">https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/alaska-lng-project</a>.
Summary of Request
On December 5, 2024, NMFS received a request from 8 Star Alaska for
regulations and a LOA to take marine mammals incidental to construction
of LNG facilities in Cook Inlet, Alaska. Following NMFS' review of the
application, 8 Star Alaska submitted a revised version on April 3,
2025, which was deemed adequate and complete. On April 8, 2025, NMFS
published a notice of receipt (NOR) of application in the Federal
Register (90 FR 15137), requesting comments and information during a
30-day public comment period related to 8 Star Alaska's request. NMFS
received one letter from the Center for Biological Diversity and Cook
Inletkeeper providing substantive comments and approximately 14,000
comments from members of the public expressing general opposition to 8
Star Alaska's proposed project but providing
[[Page 57547]]
no specific concerns relevant to the information contained within 8
Star Alaska's application or to NMFS' determination that the
application was adequate and complete. The comment letters from members
of the public followed a generic template format in which respondents
provided comments that were identical or substantively the same. NMFS
has reviewed the submitted material and considered it for promulgation
of these regulations. NMFS published a proposed rulemaking and request
for public comments in the Federal Register for 8 Star Alaska's project
on July 29, 2025 (90 FR 35762, July 29, 2025). All comments were
considered in development of this final rule (see Comments and
Responses section).
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). NMFS is authorizing take of 12 species
of marine mammals by Level B harassment and Level A harassment for a
subset of 3 of these species. Neither 8 Star Alaska nor NMFS expect
serious injury or mortality to result from the specified activities and
neither may be authorized. However, since 8 Star Alaska's LNG facility
construction activities are expected to last for 5 years, authorization
under section 101(a)(5)(A) is appropriate.
NMFS previously promulgated regulations and issued an LOA to AGDC
for the same work on September 15, 2020 (85 FR 59291, September 21,
2020), effective from January 1, 2021, through December 31, 2025.
However, no work has been conducted during the effective period of that
LOA, and none is planned prior to its expiration.
Description of the Specified Activity
8 Star Alaska will construct facilities to transport and offload
LNG in Cook Inlet, Alaska, for export. Project activities include the
construction of a Marine Terminal comprised of a temporary Marine
Terminal Material Offloading Facility (MOF) and a permanent Product
Loading Facility (PLF) on the east side of Cook Inlet, near Nikiski;
construction of a pipeline (referred to as the Mainline) across Cook
Inlet; and construction of a Mainline MOF on the west side of Cook
Inlet, north of Tyonek. The components of the construction activities
that have the potential to expose marine mammals to sound levels that
could result in take include vibratory and impact pile driving of steel
sheet piles and 24-, 48-, 60-, and 66-inch (61-, 122-, 152.4-, and
167.6-centimer [cm]) steel pipe piles, as well as the use of anchor
handling tugs (AHTs). The in-water work will occur over 5 years between
January 1, 2026, and December 31, 2030. The construction window is
based on the ice-free working window, which is from approximately April
1 through October 31 of each year. Pile driving will occur during
daylight hours and is estimated to occur 6 days per week. Work for
pipelaying will occur 24 hours per day, 7 days per week, and could
occur during periods of low visibility. In-water pile-driving is
expected to occur over an estimated 323 nonconsecutive days over the 5-
year period, and use of AHTs used for pipelaying in construction of the
Mainline is expected to occur over an estimated 55 nonconsecutive days
during Years 3 and 4 of the project, for a total of 378 construction
days over the 5 year period.
A detailed description of the planned construction project is
provided in the Federal Register notice for the proposed rule (90 FR
35762, July 29, 2025). Since that time, no changes have been made to
the planned activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specific activity.
Comments and Responses
NMFS published the proposed rule in the Federal Register on July
28, 2025 (90 FR 35762), beginning a 30-day comment period. It
described, in detail, 8 Star Alaska's specified activity, the marine
mammal species that may be affected by the activity, and the
anticipated effects on marine mammals. In that document, we requested
public input on the request for authorization described therein as well
as our analyses, preliminary determinations, and the proposed
regulations, and requested that interested persons submit relevant
information, suggestions, and comments.
During the 30-day public comment period, NMFS received letters from
the Marine Mammal Commission (the Commission), Alaska Department of
Fish & Game (ADF&G), Chickaloon Village Traditional Council
(Chicakaloon Village), and Defenders of Wildlife; a joint comment
letter from the Center for Biological Diversity, Alaska Wildlife
Alliance, Cook Inletkeeper, Fairbanks Climate Action Coalition, Pacific
Environment, the Alaska Center, and 350 Juneau (herein referred to as
CBD et al.); and multiple comments from private citizens. CBD et al.
gathered comments from their supporters and submitted a spreadsheet
with over 11,000 comments from the general public expressing general
opposition to the rule. All relevant substantive comments and NMFS'
responses are summarized below. We organize our comment responses by
major categories. The comments and recommendations are available online
at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-oil-and-gas">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-oil-and-gas</a>. Please see the comment
submissions for full details regarding the recommendations and
supporting rationale.
The Commission submitted comments on the 2020 Proposed Rule for the
Taking of Marine Mammals Incidental to Alaska LNG Project in Cook Inlet
and referenced this letter in their submittal for this rule. A summary
of their comments and NMFS' responses can be found in the notice of the
2020 final rule (85 FR 50720, August 17, 2020).
Impact Analysis
Comment 1: The Commission reviewed the datasets that NMFS used to
determine its proposed source levels of 213 decibels (dB) peak sound
pressure level (SPLpeak), 192 dB root-mean-square sound pressure level
(SPLrms,) and 179 dB single strike sound exposure level (SELs-s) (see
Estimated Take of Marine Mammals section in the proposed rule; 90 FR
35762, July 29, 2025) for impact installation of 48-inch (122 cm) steel
pipe piles and recommended instead that NMFS use the median source
levels of 209 dB SPLpeak, 195 dB SPLrms, and 181 dB SELs-s from
Caltrans (2020; Alameda, Vallejo, and Kitsap) and Austin et al. (2016),
while omitting certain datasets that the Commission stated are
inappropriate for use in informing appropriate proxy source levels. The
Commission also recommended that these source levels be used to re-
estimate Level A and Level B harassment zones for impact driving of 48-
inch steel pipe piles and associated take numbers and that these source
levels should be used for all future projects until NMFS finalizes
recommendations related to proxy source levels.
Response: NMFS has reviewed the aforementioned data sets and
partially concurs with the Commission's recommendation. NMFS agrees
with the
[[Page 57548]]
Commission that data from Antioch, Avon Wharf, and Navy Kitsap
(Caltrans, 2020) should be excluded from consideration and that data
from Austin et al. (2016) should be included. NMFS also agrees that
certain incorrect source levels from Illingworth and Rodkin (2017)
should not be used. However, NMFS disagrees that the source levels from
Illingworth and Rodkin (2017) should be entirely disregarded.
Therefore, for this final rule, NMFS has determined it appropriate to
use median values of 208 dB SPLpeak, 195 dB SPLrms, and 180 dB SELs-s
(Caltrans, 2020; Illingworth and Rodkin, 2017; Austin et al., 2016) as
source levels for impact installation of 48-inch steel pipe piles.
Level A and Level B harassment zones, take numbers, and relevant
shutdown zones were re-estimated for this final rule. See Estimated
Take of Marine Mammals and Mitigation sections below for these changes.
In general, NMFS plans to use these source levels as interim proxy
values for impact installation of 48-inch steel pipe piles for future
projects that do not have sound source level verification data
available until recommendations regarding proxy source levels are
finalized. However, final determinations regarding appropriate proxy
source levels will be made by NMFS, in coordination with applicants, on
a case-by-case basis for each project.
Comment 2: CBD et al. asserted that NMFS failed to consider whether
Cook Inlet beluga whales (CIBWs) or other marine mammals would be taken
incidental to geophysical surveys to be conducted using echosounders or
side-scan sonar before pipe-laying activities.
Response: NMFS considered these possible impacts to CIBWs and other
marine mammals. As described in the notice of the proposed rule (90 FR
35762, July 29, 2025), the planned acoustic survey equipment includes a
single-beam echosounder, a multi-beam echosounder, and a side-scan
sonar system, all of which operate at or above 200 kilohertz (kHz),
which is outside the general hearing range of marine mammals.
Therefore, take of marine mammals is not expected to result from the
use of these sources.
Comment 3: CBD et al. questioned the efficacy of a soft start as
mitigation, asserting that there is little information as to whether
animals move away from the source and that ``more harmful'' take may
occur despite the soft start requirement. CBD et al. stated both that
the ``efficacy of such measures is questionable,'' as well as that
``such measures may prevent injury or other more harmful impacts.'' CBD
et al. also stated that ``the efficacy of [soft starts] as mitigation
is questionable'' and therefore additional mitigation is needed. CBD et
al. further stated that NMFS failed to analyze potential take by Level
B harassment from the use of soft starts for impact pile driving.
Response: As pointed out by CBD et al., animal response to soft
starts is not completely understood. However, soft-start procedures are
reasonably expected to provide additional protection to marine mammals
by providing warning and/or giving marine mammals a chance to leave the
area prior to the hammer operating at full capacity. Soft starts are
required, among other reasons, to minimize the instances of Level A
harassment during exposure to impulsive sounds. NMFS agrees with the
comment that soft starts may prevent injury or other more harmful
impacts and is including soft start requirements for this project.
With regard to the commenters' assertion that additional mitigation
beyond soft start is needed, soft start is not the only mitigation
measure required for impact pile driving. The rule also includes a
requirement for 8 Star Alaska to implement shutdown zones as well as a
seasonal pile driving restriction for CIBW. If an animal were to elect
not to move away from the pile driving site during a soft start,
protected species observers (PSOs) would record the observation, and if
the animal were to enter the shutdown zone, the pile driving activity
would be shut down.
NMFS disagrees with the commenter that the agency did not analyze
potential take of marine mammals incidental to noise produced during
soft starts. Potential take is evaluated per 24-hour pile driving
period based on the most impactful activity occurring during that 24-
hour period. Therefore, because full-power pile driving necessarily
follows soft start, the likelihood of take is appropriately evaluated
based on the more impactful full-power pile driving period that began
with and includes the period of soft start, and take estimates are not
discounted based on the relatively lesser impact that occurs during
soft start.
Comment 4: CBD et al. asserted that NMFS failed to consider whether
dredging activities would result in take of CIBW or other marine
mammals and failed to account for the potential effects of dredging on
marine mammal habitat. They stated that dredging degrades water quality
which can harm prey and can stir up contaminants from the sea floor,
exposing CIBWs and their prey to toxins.
Response: As stated in the proposed rule, dredging activity would
occur during the construction of the Marine Terminal MOF using either a
hydraulic (cutter head) dredger or a mechanical dredger, and pipeline
trenching would occur during pipeline laying operations. These
activities typically have low noise levels (120-dB isopleths are
typically within 150 meters (m)). For example, URS (2007) measured
underwater sound level of 141 dB referenced to 1 micropascal (re 1
[mu]Pa) root-mean squared (rms) (at 12 m) associated with U.S. Army
Corps of Engineers (USACE) dredging activities at the Port of Alaska,
resulting in an estimated 120-dB RMS isopleth of 135 m. In addition,
these activities are typically associated with slow, predictable vessel
movements. As a result, regardless of source level, it is unlikely that
these activities would result in harassment of marine mammals, as
defined by the MMPA, and CBD et al. provide no evidence to the
contrary. While marine mammals may behaviorally respond in some small
degree to the noise generated by dredging operations, given the slow,
predictable movements of these vessels, and low source levels, NMFS
does not expect 8 Star Alaska's dredging to result in the take of
marine mammals.
Regarding potential impacts to water quality, approximately 42
hectares (103 acres) would be disturbed directly by dredging of the
Marine Terminal MOF and trenching for the Mainline crossing, and
another 486 hectares (1,200 acres) would be disturbed by the disposal
of dredged material. Approximately 26 hectares (64 acres) of seafloor
would be disturbed by installation of the Marine Terminal MOF, Mainline
MOF, and Mainline Crossing. Additional area would be indirectly
affected by the re-deposition of sediments suspended in the water
column by the dredging/trenching and dredge disposal. Existing benthic
communities would be temporarily lost during dredging in Cook Inlet,
but this temporary loss is not expected to be significant due to the
availability of additional benthic habitat in Cook Inlet. The physical
effects on the benthic habitat from dredging would likely be of short
duration due to the high energy and dynamic nature of the Cook Inlet
seafloor and water column in these open water areas. Dredging would
also temporarily increase turbidity in a localized area in Cook Inlet,
but turbidity modeling suggests that the turbidity would return to
baseline levels within 100 minutes (Federal Energy Regulatory
Commission, 2020). Therefore, disturbance from dredging is expected to
be temporary and mild.
Regarding contaminants, while the Recovery Plan for the Cook Inlet
Beluga Whale cited by CBD et al. identifies pollution as a threat, the
Recovery Plan
[[Page 57549]]
also notes that available information indicates that the magnitude of
the pollution threat to CIBW appears low, though not all pollutants to
which CIBW are exposed have been studied in that environment. For
example, chemical analyses of water and dredging sediments from Cook
Inlet found that contaminants analyzed were below management levels,
and some were below detection limits (Frenzel, 2002 and U.S. Army Corp
of Engineers, 2003 as cited in NMFS 2016). In addition, for the
contaminants that have been studied, CIBWs generally had lower
contaminant loads than did beluga whales from other populations (Becker
et al., 2000, Lebeuf et al., 2004, NMFS 2008b, Becker 2009, DFO 2012,
Reiner et al., 2011, Wetzel et al., 2010, Hoguet et al., 2013 as cited
in NMFS 2016).
Comment 5: Defenders of Wildlife and CBD et al. asserted that NMFS
failed to account for take of marine mammals due to vessel noise, aside
from tugs engaged in anchor handling. CBD et al. described what it
characterizes as ``behavioral responses to vessel noises'' and
described vessel noise as a stressor relevant to CIBW.
Response: NMFS disagrees that exposure to vessel noise would
generally be expected to result in responses that qualify as take as
defined under the MMPA. Vessel noise is generally transient, and NMFS
considers it to be part of the baseline soundscape. There are also
multiple contextual factors (including the signal characteristics
(i.e., impulsivity, intensity, frequency, and duration) and the spatio-
temporal (i.e., space and time) acoustic footprint of vessels as well
as bearing and distance, predictability of source movement, and
likelihood of habituation to routine vessel traffic) that minimize the
likelihood of behavioral disturbance even if a marine mammal is exposed
to elevated sound levels relative to background sound levels. As such,
take from vessel noise, with the exception of AHTs under load, is not
expected and was neither proposed nor will be authorized.
As explained in the proposed rule, given the slow, predictable, and
generally straight path (or stationary nature) of vessels associated
with the specified activity, the likelihood of these activities causing
responses that would qualify as harassment under the MMPA is considered
relatively low. Nevertheless, we have quantified the potential
exposures from tugs engaged in anchor handling activities, assumed that
these exposures would equate to take, and analyzed the impacts of the
assumed takes, which we authorize here. While CBD et al.'s comment
described behavior responses to vessel noise, allegedly a stressor, the
comment did not adequately support its contention that these effects
reasonably likely to result in take as defined under the MMPA.
Comment 6: CBD et al. recommended that NMFS consider using a dose-
response function to calculate take by Level B harassment, rather than
the single-threshold approach.
Response: NMFS acknowledges that the dose-dependent approach to
calculating estimated take by Level B harassment may be more reflective
of the complexity of real-world behavioral disturbance (Ellison et al.,
2012). As described in the proposed rule, based on the available
science and the practical need to use a threshold based on a metric
that is predictable, measurable, and simple to implement for most
activities, NMFS typically uses a generalized acoustic threshold based
on received level to estimate the onset of behavioral harassment via a
single received level (i.e., a step function), rather than employing a
more complicated dose-response function. Indeed, CBD et al. made no
specific recommendations regarding the details of any dose-response
function, and there is no scientific consensus regarding what criteria
might be more appropriate. Defining sound levels that disrupt
behavioral patterns is difficult because responses depend on the
context in which the animal receives the sound, including an animal's
behavioral mode when it hears sounds (e.g., feeding, resting, or
migrating), prior experience, and biological factors (e.g., age and
sex). Other contextual factors, such as signal characteristics,
distance from the source, and signal to noise ratio, may also help
determine response to a given received level of sound. Therefore,
levels at which responses occur are not necessarily consistent and can
be difficult to predict. The relatively simple step function criteria
adequately account for the potential for Level B harassment to occur.
NMFS recognizes the potential for Level B harassment at exposures
to received levels below 160 dB rms, in addition to the potential that
animals exposed to received levels above 160 dB rms will not respond in
ways constituting behavioral harassment. While in practice this
threshold works as a step-function, i.e., animals exposed to received
levels above the threshold are considered to be ``taken'' and those
exposed to levels below the threshold are not, it in fact represents a
mid-point of likely behavioral responses (which are extremely complex
depending on many factors including species, noise source, individual
experience, and behavioral context). The function recognizes that some
animals exposed to levels below the threshold will react in ways that
are appropriately considered take, while others that are exposed to
levels above the threshold will not. Use of the 160-dB threshold allows
for a workable quantitative estimate of take, while we qualitatively
address the variation in responses across different received levels in
our discussion and analysis.
Overall, while there may be methods of assessing likely behavioral
response to acoustic stimuli that better capture the variation and
context-dependency of those responses than the step-function used here,
there is no scientific consensus on what that method should be. For
future marine mammal behavioral criteria, NMFS will be exploring
various factors including the use of a dose-response function in
helping better predict behavioral disturbance and, as recommended by
CBD et al., will consider using a dose-response function in the future,
as available information allows.
Comment 7: Chickaloon Village and several members of the public
asserted that NMFS should not issue the incidental take regulations
without a scientific understanding of risks to the CIBW.
Response: NMFS shares the commenters' concern regarding the impacts
of human activities on CIBWs and is committed to supporting the
conservation and recovery of the species to the extent appropriate
under the MMPA. Under section 101(a)(5)(A) of the MMPA, NMFS considers
the at-risk status of CIBWs (and other species) in both the negligible
impact analysis and through consideration of impact minimization
measures that result in the least practicable adverse impact on those
species. For example, the mitigation measures include time-area
restrictions on pile driving and AHT activity to protect CIBWs, vessel
transit restrictions in the Susitna Delta area, and shutdown zones
equivalent to the Level B harassment zones for CIBWs. Section
101(a)(5)(A) also mandates that NMFS ``shall issue'' an Incidental Take
Authorization (ITA), provided the necessary findings are made for the
specified activity for which incidental take is requested.
In accordance with our implementing regulations at 50 CFR
216.104(c), we use the best available scientific evidence to determine
whether the taking by the specified activity within the specified
geographic region will have a negligible impact on the species or stock
and will not have an unmitigable adverse impact
[[Page 57550]]
on the availability of such species or stock for subsistence uses.
Based on the scientific evidence available, NMFS determined that the
impacts of the 8 Star Alaska facility construction activities would
meet these standards, and 8 Star Alaska has developed a suite of
rigorous monitoring and mitigation measures to reduce impacts to CIBWs
and other marine mammals to the lowest level practicable.
Our analysis indicates that issuance of these regulations will not
adversely affect annual rates of recruitment or survival of the CIBW.
Additionally, the Endangered Species Act (ESA) Biological Opinion
determined that the issuance of regulations is not likely to jeopardize
the continued existence of the CIBW or destroy or adversely modify CIBW
critical habitat. The Biological Opinion also outlined Terms and
Conditions and Reasonable and Prudent Measures to reduce impacts, which
have been incorporated into the rule. Therefore, based on the analysis
of potential effects, the parameters of the activity, and the rigorous
mitigation and monitoring program, NMFS determined that the activity
would have a negligible impact on CIBW.
As described in this notice, NMFS has made the necessary findings,
as required by Section 101(a)(5)(A) of the MMPA and NMFS' implementing
regulations, and therefore, the MMPA requires issuance of incidental
take regulations.
Monitoring and Reporting
Comment 8: The Commission recommended that NMFS specify in the
regulatory text that for all pile-driving activities, a minimum of two
PSOs must be on duty (1) at each specified pile-driving location at all
times when a single hammer is used and (2) to monitor the area around
each active hammer, totaling four PSOs at all times during concurrent
pile driving.
Response: NMFS partially concurs with the Commission's
recommendations. NMFS agrees that the location should be specified and
has edited the regulatory text to include location of pile driving
activities (i.e., on either the east or west side of Cook Inlet).
Although NMFS agrees with the Commission that the number of PSOs should
be increased for concurrent pile driving, NMFS has determined that a
minimum of three PSOs should be required for concurrent pile driving.
One PSO should be present for the near field for each active hammer.
Concurrent pile driving will occur at the same site, and the far field
will be virtually the same for both hammers. Therefore, NMFS has
determined that a minimum of one PSO should be sufficient to monitor
the far field. NMFS has therefore revised in the regulatory text of
this final rule that a minimum of three PSOs must be present for all
concurrent pile driving (See Sec. 217.45(6)(i)).
Comment 9: The Commission recommended that NMFS clarify in the
regulatory text that 8 Star Alaska conduct sound source verification
(SSV) measurements at the beginning of pile driving activities and
clarify that SSV measurements must be conducted at each location, given
that pile driving will occur on both the west side and east side of
Cook Inlet. The Commission also suggested that, in the regulatory text,
NMFS require 8 Star Alaska to monitor a minimum of two piles of each
size, type, and installation method with and without the sound
attenuation device at each location.
Response: NMFS concurs with the Commission that SSV should be
conducted at the beginning of pile driving activities at each location
and has made these corrections to the regulatory text in Sec. Sec.
217.44(n) and 217.45(b)(1) of this final rule.
NMFS agrees that in addition to the requirement to measure a
minimum of two piles of each type and size, installation method should
also be added to the regulatory text in Sec. 217.45(b)(1)(ii) of this
final rule. Pursuant to this change, 8 Star Alaska must monitor a
minimum of two piles of each size, type, and installation method with
and without the sound attenuation device at each location. 8 Star
Alaska will coordinate with NMFS to determine the appropriate methods,
such as conducting SSV on two piles with and two piles without the
sound attenuation device, or two piles total with the sound attenuation
device turned on and off and, as such, NMFS has not specified a method
in the regulatory text. NMFS will work with 8 Star Alaska during
development of the SSV plan to ensure that it will employ appropriate
methods to assess the effectiveness of the sound attenuation device.
Comment 10: The Commission recommended that SSV measurements must
be made on an appropriate number of each concurrent pile driving
scenario in consultation with NMFS and as specified in the final SSV
plan.
Response: NMFS has determined that SSV specific to concurrent pile
driving scenarios is not necessary, as Level A and Level B harassment
isopleths for concurrent pile driving may be estimated on the basis of
the SSV results for the single hammer pile driving scenarios and
methods as described in the Estimated Take of Marine Mammals in this
notice to estimate isopleths. Therefore, NMFS has not required SSV for
concurrent pile driving in the regulatory text.
If 8 Star Alaska decides to conduct SSV for concurrent pile
driving, NMFS will work with 8 Star Alaska during development of the
detailed SSV plan regarding the details of that effort.
Comment 11: The Commission recommended that NMFS provide the
detailed SSV plan to the Commission for review.
Response: NMFS declines to provide the Commission with the detailed
SSV plan for review. The objectives of the proposed acoustic monitoring
were explained in the proposed rule, the basic methodological details
will follow widely accepted practices, and NMFS believes that the
appropriate details regarding the SSV plans were noticed and believes
appropriate details of the SSV were provided during the rulemaking
process.
Comment 12: The Commission recommended that NMFS include in the
regulatory text the requirement that 8 Star Alaska report the extent of
the Level A and Level B harassment zones and transmission loss values
for attenuated and unattenuated impact and vibratory installation of
each pile size and type, including the concurrent pile driving
scenarios.
Response: NMFS agrees that 8 Star Alaska must report the results of
the SSV and has added a requirement to report transmission loss values
in Sec. 217.45(b)(1)(iv)(F). However, NMFS disagrees that a
requirement to report the exact numeric extent of the Level A and Level
B harassment zones for attenuated and unattenuated impact and vibratory
installation of each pile size/type needs to be reflected in the
regulatory text because the required data, including sound source
levels and transmission loss values, will allow for calculation of
these zones. As described in the preamble of the proposed rule, 8 Star
Alaska may propose revised estimated Level A and Level B harassment
zones (for the purpose of monitoring and reporting) and adjusted
shutdown zones for NMFS review and approval following the analysis of
SSV results. It is up to 8 Star Alaska if they would like to request
adjustments of Level A and Level B harassment zones, and, therefore, it
is not necessary to require that they report these zone sizes in the
regulatory text. When reviewing the detailed SSV plan, NMFS will ensure
that 8 Star Alaska provides the correct reporting elements in order to
request adjustment of the Level A and Level B harassment zones if they
so choose.
[[Page 57551]]
Mitigation and Least Practicable Adverse Impact
Comment 13: CBD et al. stated that NMFS previously stated that the
use of bubble curtains during vibratory pile driving is an effective
and important mitigation measure for CIBW (89 FR 85686, October 29,
2024) but failed to require bubble curtains as well as other noise
reduction technologies such as pile caps, dewatered cofferdams, and
other physical barrier mitigations.
Response: NMFS fully considered whether requiring the use of bubble
curtains or other sound attenuation methods was appropriate for this
rulemaking and included a requirement to use such methods if proven
effective in the project environment in both the proposed rule and this
final rule.
Where conditions are appropriate, bubble curtains and cofferdams
are generally the most common noise attenuation methods used in
construction projects. Pile caps are generally used, regardless of
regulatory requirements, to protect piles and equipment during impact
pile driving. While NMFS expects that pile caps will likely be used
during this project due to their common usage for the aforementioned
purposes, we do not typically consider pile caps to be an effective
noise mitigation method. They are typically made of wood or plastic and
are designed to compress and fracture during use, limiting their
consistency with respect to noise mitigation and potentially leading to
safety issues if replaced during hammer operations (Caltrans, 2020).
As described in the proposed rule and finalized here, 8 Star Alaska
will use a noise attenuation device, such as a bubble curtain, and test
it for effectiveness through SSV at the beginning of pile driving. If
the results show the device to be effective, i.e., at least a 2 dB
source reduction is achieved, the LOA will require 8 Star Alaska to use
the device throughout construction. If the device is not found to be
effective, 8 Star Alaska will not be required to use it. The use of
bubble curtains and other sound attenuation devices can be time
consuming and costly and, therefore, if not effective, the incidental
take regulations do not require their use.
NMFS acknowledges describing bubble curtains as effective and
important mitigation measures for CIBW, but that assertion was made in
regards to construction at the Port of Alaska in Anchorage. For the
Port of Alaska project, bubble curtains during vibratory pile driving
were expected to minimize the potential for impacts to CIBWs transiting
through the relatively narrow Knik Arm to critical foraging areas.
Further, outside this context, NMFS does not typically agree that use
of a sound attenuation device is warranted for vibratory pile driving
due to the lower potential for more harmful impact from vibratory pile
driving. Finally, a bubble curtain may not be effective at mitigating
impacts in the construction area at the Alaska LNG project sites given
the locations and the strong currents in Cook Inlet. Bubble curtains
create a ``wall'' of bubbles around the pile, allowing for attenuation
of sound. Strong currents, such as those in Cook Inlet, can disrupt the
barrier of bubbles, reducing or negating the expected sound attenuation
from the bubble curtain. 8 Star Alaska is required to test the
effectiveness of a bubble curtain or other sound attenuation device,
and the device will be used if it provides at least 2 dB reduction in
sound.
As described in the response to comment 17, when considering the
least practicable adverse impact, NMFS takes into consideration the
degree to which the implementation of the measure is expected to reduce
impacts and considers the practicability of the measures for applicant
implementation. 8 Star Alaska must complete construction during the
ice-free period. While certain additional sound attenuation devices,
such as dewatered cofferdams, are typically considered effective, use
of these devices would likely result in delays and extension of the
project, due to the time needed to construct them, rendering them
impracticable.
Comment 14: The Commission recommended that NMFS include in the
regulatory text the requirements that, if an unconfined or confined
bubble curtain is used, specific standard performance measures must be
met.
Response: NMFS agrees that any sound attenuation device must meet
minimum requirements to ensure that the sound attenuation device is
being used properly. Therefore NMFS has included a measure in Sec.
217.44(n)(1) of this final rule requiring that any sound attenuation
device used by 8 Star Alaska must meet minimum requirements as
determined by NMFS in the SSV plan.
Comment 15: The Commission noted that NMFS did not specify whether
the 2-dB attenuation from the sound attenuation device must be verified
in the near-field (at the 10 m distance), the far-field (1 kilometer
[km] or near the extent of the Level B harassment zone), or in both.
The Commission recommended that in the regulatory text NMFS require 8
Star Alaska to use the sound attenuation device if a reduction of at
least 2 dB is achieved in both the near and the far field.
Response: NMFS agrees that sound measurements should be conducted
in both the near field and the far field. When 8 Star Alaska is
developing its detailed SSV plan, NMFS will work with them to ensure
that these measurements adhere to available best practices and are
properly designed to evaluate the efficacy of the sound attenuation
device. However, NMFS disagrees that 8 Star Alaska should only be
required to use the sound attenuation device if at least 2 dB of sound
reduction is achieved in both the near-field and far-field.
Effectiveness of noise attenuation systems is traditionally measured in
the near field (e.g., 10 m) due to the complexity of sound propagation,
and in this case prevents noise contamination from other sources at
distance. NMFS additionally notes that the conservation value of a
bubble curtain is not quantified simply by the broadband sound
reduction, but by reduction of sound at specific frequencies to which
marine mammals are more sensitive. Therefore, NMFS finds that if at
least a 2-dB reduction of sound is measured in either the near- or far-
field, the selected bubble curtain or other sound attenuation device
would provide sufficient conservation benefit to warrant inclusion in
the suite of measures necessary to effect the least practicable adverse
impact on marine mammal species or stocks and should be employed for
the duration of impact pile driving.
Comment 16: CBD et al. stated that NMFS must include in the
regulatory text a prohibition on pile driving associated with the
Mainline MOF from June 1 to September 7 and a requirement that in-water
pile driving must only occur during daylight hours. CBD et al. also
recommended that NMFS prohibit all activities at night, in bad weather,
or other conditions when visibility is low.
Response: NMFS agrees with the commenter that it is appropriate to
include the requirement that 8 Star Alaska must not conduct pile
driving associated with the Mainline MOF from June 1 to September 7 in
the regulatory text, and has made that addition under Sec. 217.44(f)
of this final rule.
NMFS disagrees with the recommendation to prohibit all activities
at night, in bad weather, or other conditions when visibility is low,
and has not adopted it. Some activities, such as dredging, are not
expected to result in take of marine mammals, and therefore
prohibitions related to these actions are not relevant. For other
[[Page 57552]]
activities for which take is expected, 8 Star Alaska needs to complete
work during the ice free season and therefore plans to conduct some
work at night, including dredging and pipelaying, as necessary to meet
that objective. 8 Star Alaska plans to conduct pile driving during
daylight hours, though it is unnecessary to preclude activity outside
of daylight hours should the need arise (e.g., on an emergency basis or
to complete driving of a pile begun during daylight hours, should the
construction operator deem it necessary to do so). If visibility
degrades such that the entirety of a corresponding shutdown zone is not
visible during impact pile driving, or at least 2 km during vibratory
pile driving, pile driving may continue only until the current segment
of the pile is driven, and no further sections or additional piles may
be driven until conditions improve such that the zones can be
effectively monitored. We note that NMFS' Biological Opinion, issued
pursuant to section 7 of the ESA, requires that pile driving only be
conducted during daylight hours, and 8 Star Alaska must abide by the
reasonable and prudent measures and terms and conditions of the
Biological Opinion and Incidental Take Statement issued by NMFS
pursuant to section 7 of the ESA.
Comment 17: CBD et al., citing Natural Resources Defense Council
(NRDC) v. Pritzker, 828 F.3d 1125, 1134 (9th Cir. 2016), and members of
the public asserted that NMFS failed to require mitigation measures
sufficient to ensure the least practicable adverse impact on marine
mammals including the CIBW. CBD et al. asserted that NMFS has conflated
the negligible impact determination and the separate least practicable
adverse impact requirement. CBD et al. also contended that the required
mitigation measures fail to ensure the least practicable adverse impact
as required by the MMPA. As part of its rationale, CBD et al. stated
that NMFS ``failed to include several mitigation measures required'' in
the 2020 rule. In a related comment, Defenders of Wildlife stated that
it generally supports the recommendations made by the Commission in its
comment letter on the proposed rule and that absent the recommended
changes to regulatory language regarding the use of sound attenuation
devices; the performance, reporting and use of SSV; and the number and
placement of PSOs, NMFS will have failed to include measures to ensure
the least practicable adverse impact as required by the MMPA.
Response: NMFS disagrees with CBD et al.'s unexplained assertion
that we have inappropriately conflated the negligible impact
determination with the separate least practicable adverse impact
requirement. NMFS concurs with CBD regarding the holding in NRDC v.
Pritzker that ``[c]ompliance with the `negligible impact' requirement
does not mean there [is] compliance with the `least practicable adverse
impact' standard.'' 828 F.3d at 1134. The ``negligible impact'' and
``least practicable adverse impact'' requirements are distinct, even
though both statutory standards refer to species and stocks.
The MMPA focuses on reducing impacts from human activities at the
species or stock (i.e., population) level. See 16 U.S.C. 1361 (finding
that species and population stocks are or may be in danger of
extinction or depletion; that species and population stocks should not
diminish beyond being significant functioning elements of their
ecosystems; and that species and population stocks should not be
permitted to diminish below their optimum sustainable population
level). Annual rates of recruitment (i.e., reproduction) and survival
are the key biological metrics used in the evaluation of population-
level impacts, and in practice these same metrics are also used in the
evaluation of population-level impacts for the least practicable
adverse impact standard. Recognizing this common focus of the least
practicable adverse impact and negligible impact provisions on the
``species or stock'' does not mean that NMFS conflates the two
standards; despite some common statutory language, we recognize the two
provisions are different and have different functions.
In NRDC v. Pritzker, the Ninth Circuit stated, ``[t]he statute is
properly read to mean that even if population levels are not threatened
significantly, still the agency must adopt mitigation measures aimed at
protecting marine mammals to the greatest extent practicable in light
of military readiness needs.'' Pritzker, 828 F.3d at 1134 (emphases
added). This statement is consistent with our understanding that even
when the effects of an action satisfy the negligible impact standard
(i.e., in the court's words, ``population levels are not threatened
significantly''), the agency must still prescribe mitigation under the
least practicable adverse impact standard. However, as the statute
indicates, the focus of both standards is ultimately the impact on the
affected ``species or stock''; the standards are not solely focused on
or directed at the impact on individual marine mammals.
While the Ninth Circuit's reference to ``marine mammals'' rather
than ``marine mammal species or stocks'' in the italicized language
above might be construed as a holding that the least practicable
adverse impact standard applies at the individual ``marine mammal''
level, i.e., that NMFS must require mitigation to minimize impacts to
each individual marine mammal unless impracticable, such an
interpretation does not accurately reflect the court's decision, which
turned on the court's determination that the agency had not given
separate and independent meaning to the least practicable adverse
impact standard apart from the negligible impact standard and its
conclusion that the agency had failed to meet the latter standard.
Moreover, the court's use of the term ``marine mammals'' was not
addressing the question of whether the standard applies to individual
animals as opposed to the species or stock as a whole.
We recognize that while consideration of mitigation can play a role
in a negligible impact determination, consideration of mitigation
measures extends beyond that analysis. In evaluating what mitigation
measures are appropriate, as required by the statute and implementing
case law NMFS considers the potential impacts of the specified
activity, the availability of measures to minimize those potential
impacts, and the practicability of implementing those measures.
Although some mitigation measures from the 2020 rule are not
included in the final rule, the final rule's mitigation measures ensure
the least practicable adverse impact on marine mammals as required by
the MMPA. As described in response to comment 18, shutdown zones have
been modified from that of the 2020 rule to reflect updated source
levels and changes to Level A and Level B harassment isopleths.
Additionally, NMFS did not carry forward a requirement that in-water
pile driving must occur only during daylight hours. As described in
response to comment 16, NMFS determined that it was not necessary to
preclude 8 Star Alaska from pile driving outside of daylight hours. If
visibility degrades such that the entirety of a corresponding shutdown
zone is not visible during impact pile driving, or at least 2 km during
vibratory pile driving, pile driving may continue only until the
current segment of the pile is driven, and no further sections or
additional piles may be driven until conditions improve such that the
zones can be effectively monitored. Finally, NMFS did not carry forward
a mitigation
[[Page 57553]]
measure that stated that, ``Other than in-water sheet pile driving and
pile removal, anchor handling, trenching, pipe laying, and vessel
transits related to these activities [8 Star Alaska] may not engage in
in-water sound producing activities within 10 miles (16 km) of the mean
higher high water (MHHW) line of the Susitna Delta (Beluga River to the
Little Susitna River) between April 15 and October 15 which produce
sound levels in excess of 120 dB rms re 1[micro]Pa @ 1 m.'' This
mitigation measure was replaced with a measure that prohibits pile
driving or AHT activities with Level B harassment isopleths that would
extend shoreward of the mean lower low water (MLLW) line in the Susitna
River Delta. The intent of this change was to enhance clarity and
protective value.
NMFS worked with 8 Star Alaska to develop a suite of rigorous
mitigation measures that NMFS has determined provide the means of
effecting the least practicable adverse impact on marine mammal species
or stocks and their habitat (see Mitigation section for a full
description of all mitigation measures).
As described in this notice and the proposed rule, NMFS considers
two primary factors when 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. These factors are:
(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, as
well as subsistence uses. This evaluation 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.
Taking these factors into consideration, NMFS has determined that
the mitigation measures provide the means of effecting the least
practicable adverse impact on the affected species and stocks,
including the CIBW. Please see NMFS responses to comments 13-15
regarding use of sound attenuation devices, comments 9-12 regarding
SSV, and comment 8 regarding number and placement of PSOs. Responses to
additional mitigation recommendations are included in responses to
comments 18-23.
Comment 18: CBD et al. stated that NMFS does not ensure the least
practicable adverse impact because it is requiring smaller shutdown
zones for this rule than that of the final rule for the Taking of
Marine Mammals Incidental to Alaska Liquefied Natural Gas Project in
Cook Inlet published on August 17, 2020 (85 FR 50720) (herein referred
to as the 2020 rule).
Response: Although the shutdown zones in this final rule differ
from those adopted in the 2020 rule, they meet the statutory standard
of ensuring the least practicable adverse impact. In this final rule,
for all species aside from CIBW, shutdown zones were prescribed to
avoid or minimize Level A harassment through consideration of the
estimated Level A harassment zone sizes in context of the expected
distance at which species are expected to be observable by PSOs. For
example, the record reflects that low frequency cetaceans could be
visible to PSOs up to 2,000 m away and high and very high frequency
cetaceans, phocids, and otariids could be visible up to 400 m away.
Therefore, when the Level A harassment zone was smaller than these
visible zones, the shutdown zone was set at approximately the estimated
Level A harassment zone distance. If the Level A harassment zone was
larger than the distance within which we expect these species to be
detectable under typical conditions, the shutdown zone was reduced to
that expected detection distance. There is thus no functional
distinction between these shutdown zone sizes. This approach is
consistent with CBD et al.'s statement that use of zones larger than
what can be observed is ``meaningless.''
For CIBW, shutdown zones were prescribed to avoid or minimize take
by Level A and Level B harassment, and therefore, shutdown zones were
aligned with the Level B harassment zones. Recognizing that some CIBW
shutdown zones are larger than what PSOs can reliably observe, these
zones are functionally equivalent to a requirement to shut down upon
detection at any distance (within the estimated harassment zones),
which is warranted based on the status of this stock (note that take by
Level B harassment of CIBW is authorized).
Some of the CIBW shutdown zones are smaller in this final rule than
in the 2020 rule as a result of our incorporation of updated scientific
information to our analysis. For example, for impact installation of
24-inch and 48-inch steel pipe piles, NMFS updated the sound source
levels used for pile driving in this rule from those used in the 2020
rule.
Furthermore, the 2020 final rule prescribed shutdown zones by
grouping piles based on location and installation method. For example,
in the 2020 final rule the Level B harassment zones for impact
installation of 48-inch and 60-inch pipe piles at the PLF were
determined to be 3,593 m and 2,254 m, respectively. The shutdown zones
were prescribed inclusive of both of these pile types, requiring a
3,600 m shutdown for CIBWs for impact installation of both 48- and 60-
inch steel pipe piles at the PLF, even though the Level B harassment
zone for impact installation of the 60-inch pipe pile is over 1,000 m
smaller than the shutdown zone. This larger shutdown zone does not
provide any further protective value for the CIBW, but was a simpler
way of prescribing a shutdown zone. Therefore, the Level B harassment
isopleths vary between the 2020 rule and this final rule. Nonetheless,
in both the 2020 final rule (85 FR 50720, August 17, 2020) and this
final rule, the CIBW shutdown zones were prescribed to avoid Level A
harassment and minimize Level B harassment for CIBW.
Comment 19: CBD et al. asserted that NMFS should restrict
construction and/or vessel traffic in areas of Cook Inlet other than
the Susitna River Delta, such as near the mouth of the Kenai River,
Trading Bay, or Tyonek. Further, NMFS included a mitigation measure
that prohibits pile driving or AHT activities with Level B harassment
isopleths that would extend shoreward of the MLLW line in the Susitna
Delta (Beluga River to the Little Susitna River) from April 15 through
October 15, and CBD et al. asserted that NMFS failed to ensure the
least practicable adverse impact because it did not prohibit these
activities throughout the project area Cook Inlet from April 15 through
October 15. Defenders of Wildlife recommended that NMFS consider
mitigation measures in other locations such as the Kenai River.
Response: Additional measures to restrict construction and/or
vessel traffic in other areas of Cook Inlet, as recommended by CBD et
al., do not provide sufficient mitigation benefit to warrant the
additional operational costs associated with implementation of the
measures, and so do not meet the least practicable adverse impact
requirement under the MMPA. The Susitna River Delta is a known hotspot
for CIBWs, particularly in the summer and fall months. Groups of 200 to
300
[[Page 57554]]
individuals, including adults, juveniles, and neonates, have been
observed in the Susitna River Delta area in recent years (McGuire et
al., 2014; McGuire et al., 2020). Acoustic recorders at the Little
Susitna River detected a peak concentration of CIBWs from late May to
early June, and a large peak from July through August (Castellote et
al., 2015). At the Beluga River, acoustic recorders detected three
peaks of occurrence: mid-February to early April, June to mid-July (the
strongest peak), and mid-November and December (Castellote et al.,
2016). The peaks in May and June appear to coincide with eulachon runs
(Vincent-Lang and Queral 1984), and the peaks from June and July
coincide with salmon runs (particularly silver and chinook salmon;
Brenner, et al., 2019). Given the high numbers of beluga whales and the
critical foraging in this area as well as the proximity of 8 Star
Alaska's project to the Susitna River Delta, NMFS deemed it appropriate
to require time/area restrictions and vessel speed restrictions for the
Susitna River Delta.
CIBWs were historically seen in and around the Kenai River during
June aerial surveys conducted by ADF&G in the late 1970s and early
1980s and by NMFS starting in 1993 (Shelden et al., 2015b). Despite the
historic sightings (1970s-1990s) of CIBWs throughout the summer (June-
August) in the area, recent visual and acoustic detections suggest the
presence of CIBWs in the fall and winter (late August through March)
(Kumar et al., 2024). Evaluation of photo-identification studies from
2005 to 2017 suggest that the presence of beluga whales in the Kenai
River Delta is much more sporadic than other areas (McGuire et al.,
2020), with beluga whales present one day and absent the next, and the
numbers present on any given day are not expected to rise to that of
other areas of Cook Inlet, such as thee Susitna River Delta. NMFS
further notes that although Level B harassment isopleths from vibratory
pile driving could reach Kenai River Delta, no construction is planned
in this area. Because of the expected low numbers of CIBWs and the
distance of construction to the Kenai River Delta (approximately 15 km
[9.3 mi]) additional mitigation measures in this area are not
warranted. In the 1970s and 1980s, CIBWs were seen in Trading Bay
during June aerial surveys, but from the early 1990s on, CIBWs were not
seen in this region during the June aerial surveys (Shelden et al.,
2015a). Acoustic monitoring conducted by Castellote et al. (2020)
detected the presence of CIBWs in the Trading Bay area in the winter
with a few detections in August-October. 8 Star Alaska's construction
is not expected to occur in Trading Bay, although it is possible that
some Level B harassment isopleths from vibratory pile driving at the
Marine Terminal near Nikiski may extend into parts of Trading Bay.
Furthermore, the numbers of CIBWs are not expected to be near that of
the Susitna River Delta and construction is expected to occur from
April to October, times in which CIBWs are not known to frequent
Trading Bay.
NMFS is aware that CIBWs may be seen near Tyonek. From December
2015 through January 2016, Tyonek Platform personnel observed 200 to
300 CIBWs regularly, in the open water areas between ice sheets,
although this was not previously a known area of occurrence (NMFS,
2019b). However, NMFS is not aware of such an occurrence near Tyonek
platform since 2016, and notes these observations of large numbers of
CIBWs occurred during a time of the year (winter) when 8 Star Alaska
does not plan to conduct construction. Movement data from 14 CIBWs
between May 1999 and March 2003 showed that CIBWs concentrated in areas
near Tyonek during the fall (NMFS, 2016). However, the CIBW
concentrations observed near Tyonek did not approach the levels that
have been observed in other areas of Cook Inlet, such as Susitna River
Delta, and subsequent studies have not shown substantial densities of
CIBWs at Tyonek. In their comment letter, CBD et al. asserted that
CIBWs are regularly seen feeding in the Tyonek area from June to
September. NMFS, however, is not aware of any data to support this
assertion, and citations provided by CBD ostensibly in support of this
assertion do not provide any such information. Further, given the
proximity of Tyonek to construction of the Mainline MOF and AHT
activity, the mitigation measures prohibiting pile driving associated
with the Mainline MOF from June 1 to September 7 and restricting pile
driving and AHT activities near the Susitna River Delta from April 15
to October 15 should also be protective of the Tyonek area.
NMFS acknowledges that CIBWs occur in areas of Cook Inlet aside
from the Susitna River Delta, including 8 Star Alaska's project area.
However, their occurrence is expected to be much more sporadic, and
there are no known areas in the project area with densities suggesting
that the importance of other areas is similar to that of the Susitna
River Delta. Restricting activities in other areas would thus provide
little benefit to marine mammals and the commenters do not provide
persuasive evidence to the contrary.
Furthermore, 8 Star Alaska's construction activities are based on
the ice-free working window, which extends approximately from April 1
through October 31. Imposing the limitations sought by the commenters
would restrict construction throughout 8 Star Alaska's project area and
would therefore not allow for the completion of 8 Star Alaska's
project. In context of the limited benefit of such a requirement, NMFS
has determined that these operational costs render such a requirement
impracticable.
Comment 20: CBD et al. asserted that NMFS failed to ensure the
least practicable adverse impact because it did not include measures
that would require vessels to travel at reduced speeds at all times and
in all areas of Cook Inlet. In a related comment, Chickaloon Village
recommended that stricter vessel speed limits be required, although the
comment did not provide specific recommendations as to what those
requirements should be. Similar to their comment described in Comment
15, Defenders of Wildlife suggested that NMFS include a speed limit for
vessels operating near the mouth of the Kenai River.
Response: NMFS disagrees. As described in response to comment 13
and in the Mitigation section, NMFS takes into account (1) the manner
and degree to which the implementation is expected to reduce impacts to
marine mammals and (2) the practicability of the measures for applicant
implementation. The expected transiting speeds of the vessels used for
8 Star Alaska's planned construction range from less than 10 knots (for
vessels such as barges) to 26 knots, depending on the vessel (Federal
Energy Regulatory Commission, 2020). Reduction to a speed over ground
below 4 knots in the Susitna River Delta was determined to be an
important mitigation measure as this area is known to have high
densities of beluga whales. Speed reduction in other areas to 10 knots
or less during low visibility and to less than 5 knots when in
proximity to whales were required as these would be considered high
risk scenarios. Requiring speed reductions for the entirety of the
project area and at all times would not be expected to significantly
reduce the risk to marine mammals and would not be a practicable
measure.
8 Star Alaska will not have any vessels in or around the mouth of
the Kenai River, and therefore speed restrictions in this area are not
necessary.
[[Page 57555]]
Comment 21: CBD et al. asserted that NMFS failed to consider the
use of drones to detect the presence of marine mammals.
Response: NMFS agrees that drones can be an effective tool for
monitoring for marine mammals during certain projects. As CBD et al.
pointed out in their letter, NMFS uses drones in some marine mammal
surveys, and this technology could ``significantly reduce cost, risk,
and disturbance in marine mammal surveys'' (Alaska Fisheries Science
Center, 2019). However, the use of drones discussed in the above-
referenced article refers specifically to abundance and population
monitoring, rather than real time monitoring for purposes of mitigation
during construction. Visual monitoring and the related protocols
required by this final rule will effectively monitor the presence or
absence of marine mammals in the project area. The use of drones would
not substantially increase the effectiveness of the mitigation measures
or affect the least practicable adverse impact determination. The use
of drones is also not practicable for 8 Star Alaska to implement due to
operational constraints including line-of-sight limits for operating
drones, battery range/duration, the need for FAA licensed and trained
staff, and the distance limitations of some drones would render them
unusable for observing for long periods. Thus visual monitoring and
related protocols satisfy the MMPA's least practicable adverse impact
standard.
Comment 22: CBD et al. asserted that NMFS failed to consider the
use of passive acoustic monitoring (PAM) as a mitigation strategy, and
Chickaloon Village suggested that PAM should be required.
Response: PAM for real-time mitigation purposes has been used in
Cook Inlet for some studies. These efforts have generally not resulted
in successful deployment of PAM or useful detections of marine mammals
to inform mitigation and monitoring during the activities due to the
environmental conditions of the region (Austin and Zeddies, 2012;
Kendall et al., 2015). For example, background acoustic conditions,
including flow noise from strong currents, large tidal changes, and
weather along with additional noise from the project (e.g., vessel
noise, noise from project equipment) made it difficult to detect marine
mammals from a real-time PAM system implemented as part of the 2012
Apache 3D seismic survey program in lower- and mid-Cook Inlet (Austin
and Zeddies, 2012; Lomac-MacNair et al., 2013) and during the 2015
SAExploration Cook Inlet 3D seismic survey program (Kendall et al.,
2015). Further, environmental conditions restricted the type of PAM
systems that could be deployed during these programs to a single omni-
directional hydrophone lowered from the side of a vessel, which
restricted the possible range of detections. These factors suggest that
effective PAM monitoring in Cook Inlet can be challenging (Austin and
Zeddies, 2012).
As CBD et al. noted, academic researchers have begun to implement
more effective passive acoustic monitors for research purposes at
several places in Cook Inlet (e.g., Lammers et al., 2013; Castellote et
al., 2020; Castellote et al., 2024). However, the framework used by
those researchers is not practicable for 8 Star Alaska's planned
activity. An article on NOAA's website (<a href="https://www.fisheries.noaa.gov/science-blog/beluga-whale-acoustic-monitoring-survey-post-3">https://www.fisheries.noaa.gov/science-blog/beluga-whale-acoustic-monitoring-survey-post-3</a>)
illustrates the level of customization, expertise, and difficulty
required to assemble a passive acoustic mooring to then deploy in the
Inlet. Additionally, these instruments are stationary, which means to
effectively use these monitors as a means of avoiding harassment of
marine mammals during 8 Star Alaska's activities, 8 Star Alaska would
need to build and successfully deploy dozens (or more) stationary
monitors along a route of travel that is subject to change depending
upon weather or other environmental and shipping restrictions.
Additionally, the data stored on these types of moorings is not
accessible until they are retrieved by the researcher who deployed
them. In the future, if an established network of passive acoustic
monitors with shared access to the data is available, PAM could be a
useful tool for implementing mitigation measures, but it is currently
not practicable due to the feasibility issues described above as well
as the significant cost associated with the development of such a
system.
Comment 23: CBD et al. asserted that NMFS failed to separately
consider mitigation aimed at reducing impacts to the habitat of marine
mammals in Cook Inlet, citing particular concern for CIBW habitat.
Response: In order to promulgate a rulemaking under section
101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods
of taking pursuant to the activity and other means of effecting the
least practicable adverse impact on the species or stock and its
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance. Marine mammal habitat value is informed
by marine mammal presence and use and, in some cases, there may be
overlap in mitigation measures for the species or stock directly and
for use of habitat. As described in the proposed rule, with the
exception of CIBW habitat, there are no known habitats of particular
importance to marine mammals in the project area. Further, as described
in the Marine Mammal Habitat Effects section of the proposed rule,
impacts to marine mammal habitat would be localized and temporary. As
such, for species other than CIBW, additional mitigation aimed at
reducing habitat impacts is not warranted.
In this rule, NMFS has identified time/area restrictions and vessel
speed restrictions in the Susitna River Delta based on a combination of
factors that include higher densities and observations of specific
important behaviors of marine mammals themselves, but also that clearly
reflect preferred habitat. In addition to being delineated based on
physical features that drive habitat function (e.g., bathymetric
features, among others for some Biologically Important Areas (BIAs)),
the high densities and concentration of certain important behaviors
(e.g., feeding) in these particular areas indicate the presence of
preferred habitat. As described in response to Comment 15, the Susitna
River Delta is an area of high importance for the CIBW, particularly in
the summer to fall months. Therefore, as discussed in the Mitigation
section in the proposed rule and in this final rule, 8 Star Alaska must
implement time/area restrictions and vessel transit restrictions in the
area of the Susitna River Delta. Please see the Mitigation section of
this final rule for additional detail. The MMPA does not specify that
effects to habitat must be mitigated using separate measures, and NMFS
has identified measures that provide significant reduction of impacts
to both marine mammal species and stocks and their habitat, as required
by the statute.
Small Numbers and Negligible Impact
Comment 24: CBD et al. asserted that NMFS' interpretation of small
numbers is unlawful, that a number may be considered small only if it
is ``little or close to zero'' or ``limited in degree,'' and that NMFS'
small numbers determinations are arbitrary. Multiple members of the
public similarly asserted that NMFS' small numbers determinations are
improper and that NMFS is relying on an arbitrary threshold.
Separately, CBD et al. suggested that NMFS must consider the ``highly
imperiled status of the species'' in making a small numbers
determination specifically for CIBW.
[[Page 57556]]
Response: The proposed rule referenced an earlier rulemaking in
which we provided a full explanation of the agency's interpretation of
``small numbers'' (86 FR 5322, January 19, 2021). NMFS makes its small
numbers findings based on an analysis of whether the number of
individuals authorized to be taken annually from a specified activity
is small relative to the stock or population size. This relative
approach is consistent with the statement from the legislative history
that ``[small numbers] is not capable of being expressed in absolute
numerical limits'' (H.R. Rep. No. 97-228, at 19 (September 16, 1981)),
and relevant case law (Center for Biological Diversity v. Salazar, 695
F.3d 893, 907 (9th Cir. 2012) (holding that the U.S. Fish and Wildlife
Service reasonably interpreted ``small numbers'' by analyzing take in
relative or proportional terms)). Using a simple approach that
establishes equal bins corresponding to small, medium, and large
proportions of the population abundance, when the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers (86 FR at
5438).
Federal courts have upheld this proportional approach, which is
used by both NMFS and U.S. Fish and Wildlife Service for all ITAs
issued under the MMPA. See, e.g., Center for Biological Diversity, 695
F.3d at 906-907. NMFS has defended the approach successfully in court
where the issue has been raised in litigation for various
authorizations. See Melone v. Coit, 100 F.4th 21, 30-32 (1st Cir. 2024)
(upholding NMFS application of the proportional approach); Save Long
Beach Island v. U.S. Department of Commerce, 2025 WL 1829543, at *26
(D.N.J. 2025) (same); see also Native Village of Chickaloon v. NMFS,
947 F. Supp. 2d 1031, 1052-1053 (D. Alaska 2013) (upholding NMFS
finding that the non-lethal take of 30 beluga whales during seismic
surveys in Cook Inlet, Alaska, which amounted to 10 percent of the
total whale population, constitutes a small number).
Contrary to the commenters' definition-based argument, NMFS' small
numbers determination approach comports with dictionary definitions.
For example, the definition of ``small'' in Webster's New Collegiate
Dictionary (1981) included ``having little size, especially as compared
with other similar things.'' See also <a href="https://www.merriam-webster.com/dictionary/small">https://www.merriam-webster.com/dictionary/small</a> (defining ``small'' as ``having comparatively little
size''). These definitions are consistent with the small numbers
interpretation developed by NMFS, which utilizes a proportionality
approach.
Regarding CIBW, establishing a small numbers threshold on the basis
of stock-specific context is unnecessarily duplicative of the required
negligible impact finding, in which relevant biological and contextual
factors are considered in conjunction with the amount of take. See
Center for Biological Diversity, 695 F.3d at 907 (cautioning the U.S.
Fish and Wildlife Service to ``keep [ ] the standards distinct''). This
suggestion is not founded in any relevant requirement of statute or
regulation, discussed in relevant legislative history, or supported by
relevant case law.
Comment 25: ADF&G suggested that NMFS consider the likelihood of
repeat takes of harbor seals. ADF&G suggested that the large number of
estimated Level B harassment takes of harbor seals is misleading given
that only a few hundred harbor seals occur in middle and upper Cook
Inlet where activities will take place, and during the breeding season,
late spring and summer (when construction will occur) seals have strong
site fidelity. ADF&G stated that incidental take was calculated based
on daily impacts, which assumes that new seals will be present in the
affected areas each day, instead of taking into consideration site
fidelity (and thus likely repeat exposure) of individual seals.
Response: NMFS acknowledges that the number of total takes that was
estimated and authorized is significantly greater than the number of
individual seals that are likely to be impacted. As ADF&G points out,
harbor seals are generally non-migratory (Lowry et al., 2001; Small et
al., 2003; Boveng et al., 2012) and strong fidelity of individuals for
haulout sites during the breeding season has been documented for harbor
seals in Cook Inlet (Small et al., 2005; Pitcher and McAllister, 1981;
Boveng et al., 2012; Womble, 2012; Womble and Gende, 2013). Therefore,
some individual harbor seals will likely be taken by Level B harassment
more than once. However, NMFS must authorize the total number of takes
anticipated regardless of the number of anticipated individuals
affected. If some harbor seals were to incur multiple instances of
Level B harassment, we expect those instances to be of low intensity,
consisting of, at worst, temporary modification in behavior, and we
would not expect these instances to result in impacts on reproduction
or survival. We account for the fact that relatively few individuals
are expected to be impacted in comparison with the total number of
estimated takes in the negligible impact analysis for this stock.
Comment 26: Members of the public asserted that NMFS has not
considered cumulative effects to CIBWs and that NMFS should consider
all threats to CIBWs. Similarly, CBD et al. asserted that NMFS'
negligible impact determination is improper because it fails to take
into account impacts from the other ITAs NMFS has recently issued in
Cook Inlet (e.g., 90 FR 31756, July 15, 2025; 89 FR 77836, September
24, 2024; 89 FR 79529, September 30, 2024) and the cumulative impacts
of vessel noise already in Cook Inlet.
Response: Neither the MMPA nor NMFS' implementing regulations call
for consideration of the take resulting from other activities in the
negligible impact analysis. The preamble for NMFS' implementing
regulations (54 FR 40338, September 29, 1989) states, in response to
comments, that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors (such as incidental mortality in commercial fisheries,
Unusual Mortality Events (UMEs), and subsistence hunting); see the
Negligible Impact Analyses and Determinations section of this notice).
The 1989 final rule for the MMPA implementing regulations also
addressed public comments regarding cumulative effects from future,
unrelated activities. There, NMFS stated that such effects are not
considered in making findings under section 101(a)(5) concerning
negligible impact. In this case, this rule as well as other ITAs
currently in effect or proposed within the specified geographic region
are appropriately considered as authorizing activities unrelated to the
others in the sense that they are discrete actions under sections
101(a)(5)(A) or (D) issued to discrete applicants.
The Federal Energy Regulatory Commission (FERC) prepared an
Environmental Impact Statement (EIS) for the Alaska LNG Project that
considered cumulative effects of construction of the Alaska LNG Project
in Cook Inlet on marine mammals and concluded that cumulative impacts
would be unlikely or minor. Additionally, under the ESA, NMFS'
Biological Opinion independently
[[Page 57557]]
considered the reasonably foreseeable cumulative effects of activities
on ESA-listed species and determined that 8 Star Alaska's proposed
action is not likely to jeopardize the continued existence of ESA-
listed species in the action area.
As described in the Negligible Impact Analysis and Determination
section of this notice, our analysis indicates that issuance of these
regulations will not adversely affect marine mammals through effects on
annual rates or recruitment or survival and will have a negligible
impact on all marine mammal stocks, including CIBWs.
Comment 27: Members of the public asserted that NMFS is
underestimating the effects of noise and chronic stress from 8 Star
Alaska's activities over the course of 5 years and asserted that the
pile driving, vessel traffic, and anchor handling will drive the CIBWs
from prime habitat, disrupting feeding cycles, and threatening calf
survival.
Response: As discussed in the Negligible Impact Analysis and
Determination section of this notice, monitoring data from similar
regional activities suggest that the presence of tugs under load and
pile driving do not discourage CIBWs from transiting throughout Cook
Inlet and between critical habitat areas and that the whales do not
abandon critical habitat areas (e.g., Horsley and Larson, 2023, 2024,
61N Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard,
2022). In addition, large numbers of CIBWs have continued to use Cook
Inlet and pass through the area, likely traveling to critical foraging
grounds in upper Cook Inlet, while noise-producing anthropogenic
activities, including vessel use, have taken place during the past 2
decades (e.g., Shelden et al., 2013, 2015b, 2017, 2022; Shelden and
Wade, 2019; Goetz et al., 2023). Further, 8 Star Alaska will implement
time/area restrictions around the Susitna River Delta during critical
periods during the summer and fall for CIBWs (see the Mitigation
section for a full description). For these reasons, and the reasons
outlined in the Negligible Impact Analysis and Determination section,
NMFS disagrees that CIBWs will be driven from prime habitat or that
calf survival will be threatened.
Comment 28: CBD et al. asserted that NMFS' negligible impact
determination is unreasonable. For CIBW, CBD et al. stated that NMFS
overlooks that CIBWs are highly endangered, fails to properly recognize
the unique threat that noise pollution poses to CIBWs, and has no
rational basis for concluding that additional harassment by noise has a
negligible impact on the species. CBD et al. further stated that NMFS
ignores science that indicates that the CIBW population is declining
and that NMFS discounts the best available science for CIBWs. CBD et
al. asserted that NMFS' negligible impact conclusion is particularly
arbitrary because the project will occur within a year-round BIA for
CIBWs and in CIBW critical habitat. CBD et al. asserted that NMFS
incorrectly stated that that the project area is not known ``to be of
particular importance for feeding or reproduction.''
Response: The Description of Marine Mammals in the Area of
Specified Activities section of the proposed rule thoroughly described
the baseline conditions for marine mammals in the project area
including past (e.g., whaling) and ongoing stressors (e.g., noise,
subsistence use for some species) for all marine mammal species and
stocks, discussed where these stressors are most prevalent (e.g.,
ports, where subsistence hunting occurs, etc.), and described the
status of the species and stocks. The Potential Effects of Specified
Activities on Marine Mammals and Their Habitat section of the proposed
rule described, based on the best available science, the anticipated
effects of the specified activities on marine mammals, including a
discussion about habituation and sensitization of marine mammals to
their environment and the importance of context when predicting
impacts.
Between 1994 and 1998, the CIBW stock declined by approximately 50
percent due largely to unsustainable subsistence harvesting (NMFS,
2016). Since their listing as endangered under the ESA in October 2008,
there have been 95 confirmed dead stranded Cook Inlet beluga whales
(NMFS, 2022a). Live stranding effects were the leading cause of death
(23 percent, n=9) among belugas necropsied between 1998 and 2013
(n=38), though 29 percent (n=11) had unknown cause of death (Burek-
Huntington et al., 2015). Burek-Huntington et al. (2015) also noted
that disease may have contributed to cause of death in some events.
Other causes of death included trauma, malnutrition, and perinatal
mortality (fetus or neonatal calf mortality of unspecified cause). NMFS
recognizes that the CIBW population has not recovered from subsistence
harvest and that noise, among many other stressors such as disease,
contaminants, and natural live strandings, could be a contributing
factor impeding recovery. However, in the Negligible Impact Analysis
and Determination sections of the proposed rule and this final rule,
NMFS describes the various factors considered in our determination that
the specified activities, in combination with 8 Star Alaska's proposed
mitigation measures, would not appreciably contribute to existing noise
stressors such that they would affect the population through effects to
recruitment or survival.
The Negligible Impact Analysis and Determination section of the
proposed rule and this final rule describe the basis of NMFS' finding
that the total marine mammal take from the specified activity will have
a negligible impact on all affected marine mammal species or stocks.
These sections discuss the basis for this determination is based upon,
including the expected low intensity and duration of takes by Level B
harassment for all stocks consisting, of, at worst, temporary
modifications in behavior; that impacts are not expected to affect
reproduction or survival; that the project area represents a very small
portion of any stock's home range and available foraging area; and the
likelihood that required mitigation measures further lessen the
likelihood, magnitude, or severity of exposures. NMFS also considered
the status of each stock in its analysis.
NMFS' negligible impact finding considers a number of parameters
including, but not limited to, the nature of the activities (e.g.,
duration, sound source), effects/intensity of the taking, the context
of takes, and mitigation. For CIBWs, NMFS considered data from previous
similar activities. Monitoring data from similar regional activities
suggest that the presence of tugs under load does not discourage CIBWs
from transiting throughout Cook Inlet and between critical habitat
areas and that the whales do not abandon critical habitat areas (e.g.,
Horsley and Larson, 2023, 2024). Any disturbance that may occur is
anticipated to be limited to behavioral changes such as increased swim
speeds, changes in diving and surfacing behaviors, and alterations to
communication signals, not the loss of foraging capabilities or the
abandonment of critical habitat. Given these anticipated impacts, none
of which would be expected to impact the fitness or reproduction of any
individual marine mammal, much less adversely impact annual rates of
recruitment or survival of CIBWs, NMFS' independent evaluation of the
best scientific evidence in this case supports our negligible impact
determination.
Modeling by Warlick et al. (2024) projects that the CIBW population
will decline at an average rate of 1.6 percent per year in the coming
decades and modeling from Jacobson et al. (2020) suggests that low
survival may be
[[Page 57558]]
impeding recovery of the CIBW. Results of recent studies provide
evidence that the CIBW population increased between 2004 and 2010,
declined after 2010, and increased again from 2016 to 2022 (Shelden and
Wade, 2019; Goetz et al., 2023). Further, as discussed in the proposed
rule, findings from NMFS' aerial survey data from June 2021 and 2022,
which NMFS considers the best scientific information available,
indicate that the population may be increasing (Goetz et al., 2023).
Contrary to the commenter's assertions, NMFS acknowledges the earlier
studies described in its comment while also noting that more recent
science offers a more hopeful note. Additional data in the coming years
will help to inform whether the recent positive trend in the CIBW
population will continue.
NMFS acknowledges observation of two potential but unconfirmed
incidences of mating behavior in the Trading Bay area in 2014 (Lomac-
Macnair et al., 2015) and notes that no construction is planned to
occur in Trading Bay. Such behaviors have not been reported since 2014.
Surveys by NMFS or McGuire et al. (2020) have not yielded a comparable
sighting. Other key behaviors, such as calving and feeding, are
described in more detail below but are thought to occur primarily in
areas outside of 8 Star Alaska's action area.
We are unaware of any information regarding areas where CIBWs are
more likely to engage in mating behavior; however, what is known about
calving suggests that it is most concentrated in the upper Inlet, north
of 8 Star Alaska's project area. McGuire et al. (2020) characterized
habitat use by age class in northern Cook Inlet and documented the
majority of calves in the northernmost parts of Cook Inlet (e.g.,
Susitna Delta, Knik Arm, and Susitna Delta).
While feeding behaviors may occur in 8 Star Alaska's project area,
there are no known foraging hot spots in or near the project area.
CIBWs are expected to be transiting through the project area, headed to
or from the concentrated foraging areas farther north near the Beluga
River, Susitna Delta, and Knik and Turnagain Arms. Therefore, any
exposures are likely to be limited in duration and would take place in
a small portion of available foraging habitat. Any impacts on feeding
are expected to be minimal.
As described above, we have no reason to expect CIBWs to be
concentrated in the area of 8 Star Alaska's pile driving activities or
in the path of 8 Star Alaska's AHTs for the purposes of reproductive or
feeding behaviors, but if an instance occurs in which noise from pile
driving or AHTs briefly intersects with an individual CIBW engaged in
these behaviors, the anticipated short duration and low level
disturbance of any such encounter would not be likely to impact
reproductive or foraging success of any individuals.
While exposure to elevated noise levels associated with 8 Star
Alaska's activities may result in low-level behavioral changes in
marine mammals, NMFS' review of the best available scientific evidence,
as summarized and cited herein and including information included with
public comments, demonstrates that these responses do not rise to the
level of having adverse effects on the reproduction or survival of any
marine mammals, much less on rates of recruitment or survival of any
species or stock. 8 Star Alaska's project area is within the CIBW
critical habitat Area 2 which is largely based on dispersed fall and
winter feeding and transit areas in waters where whales typically occur
in smaller densities or deeper waters. Breeding and feeding were not
primary considerations in designation of this critical habitat area.
While 8 Star Alaska's project area does overlap ESA-designated critical
habitat for CIBWs and the CIBW small and resident BIA (Wild et al.,
2023), the impacts from the project are not expected to occur in areas
that are specifically important for feeding or reproduction for any
species, including CIBWs, nor are they anticipated to result in a loss
of prey or habitat.
NMFS has made, based on the best available science, the findings
required to promulgate this final rule. Further, the Biological Opinion
associated with this action concluded that 8 Star Alaska's activities
would not jeopardize the continued existence of ESA-listed species,
including CIBWs, or adversely modify critical habitat.
Comment 29: CBD et al. asserted that NMFS' negligible impact
determination for all species is improper because it relies, in large
part, on the presumed effectiveness of required mitigation measures.
CBD et al. suggested that the mitigation measures rely nearly
exclusively on the ability of PSOs to observe marine mammals and that
NMFS fails to acknowledge the difficulty of actually observing marine
mammals. Chickaloon Village similarly asserted that the mitigation
plan's reliance on PSOs is inadequate.
Response: NMFS disagrees with the comment. As NMFS stated in its
negligible impact analysis, consideration of the implementation of
prescribed mitigation is one factor but is not determinative in any
case. In certain circumstances, mitigation is more important in
reaching the negligible impact determination, e.g., when mitigation
helps to alleviate the likely significance of taking by avoiding or
reducing impacts in important areas. Our discussion in the Negligible
Impact Analysis and Determination section below contains the factors
NMFS considered in reaching its negligible impact determinations.
Although NMFS' implementing regulations at 50 CFR 216.104(c) state that
NMFS may incorporate successful implementation of mitigation measures
to arrive at a negligible impact determination, for promulgation of
regulations for 8 Star Alaska's pile driving and tugging activities,
NMFS did not rely upon an assumption of set level of effectiveness in
mitigation to make our negligible impact determinations. While NMFS
acknowledges that visual observations can be difficult in Cook Inlet
due to the extreme tidal range, harsh weather, turbid waters, and
seasonal ice presence (e.g., Castellote et al., 2020; Lammers et al.,
2013), prior monitoring efforts in Cook Inlet have shown that it is
possible to detect and identify marine mammals, including CIBWs, to the
species level several km away from the source, acknowledging that
visibility depends on several factors such as visual acuity, sea state,
glare, light, animal behavior/body type, speed of travel for vessel and
animal, etc. (Horsley and Larson, 2023). NMFS does not assume total
effectiveness of monitoring, but the demonstrated record of PSO
sightings for activities in Cook Inlet illustrates that visual
monitoring is appropriate for implementing mitigation in this case.
Other Comments
Comment 30: ADF&G provided comments indicating that it supports
issuance of the rule, concurring with NMFS' analyses and determinations
in the proposed rule. ADF&G identified that the proposed rule includes
numerous mitigation measures to avoid incidental serious injury or
mortality to marine mammals, which it stated helps ensure the
conservation of marine mammal stocks. Lastly, ADF&G stated that it does
not consider ongoing or proposed oil and gas activities, with
appropriate mitigation measures, to threaten the conservation or
sustainability of marine mammals in Cook Inlet.
Response: NMFS appreciates ADF&G's comments. All mitigation
measures that were discussed by ADF&G and contained within the proposed
rule have been carried over to this final rule.
[[Page 57559]]
Comment 31: CBD et al. asserted that NMFS' unmitigable adverse
impact determination is arbitrary and that the specified activity may
have an adverse impact on the availability of beluga whales, harbor
seals, Steller sea lions, and sea otters for subsistence harvest. They
assert that (1) any take of beluga whales has an adverse impact on
their availability for subsistence use; (2) the determination relies on
the mitigation measures in the proposed ITRs, but those measures are
inadequate; and (3) the determination relies on 8 Star Alaska's
stakeholder engagement plan that improperly delegates to the applicant
NMFS' statutory obligation to prescribe regulations setting forth means
of effecting the least practicable adverse impact on the availability
for subsistence uses. CBD et al. asserted that ``the [stakeholder
engagement] plan contains no information on how 8 Star Alaska will
respond to issues regarding how its activity may be impeding
subsistence activities.''
Response: As described in the proposed rule and this final rule, in
order to promulgate regulations, NMFS must find that the specified
activity will not have an ``unmitigable adverse impact'' on the
subsistence uses of the affected marine mammal species or stocks by
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50
CFR 216.103 as an impact resulting from the specified activity: (1)
that is likely to reduce the availability of the species to a level
insufficient for a harvest to meet subsistence needs by: (i) causing
the marine mammals to abandon or avoid hunting areas; (ii) directly
displacing subsistence users; or (iii) placing physical barriers
between the marine mammals and the subsistence hunters; and (2) that
cannot be sufficiently mitigated by other measures to increase the
availability of marine mammals to allow subsistence needs to be met.
Subsistence hunting of whales is not known to currently occur in
Cook Inlet. Specific to CIBW, in 2008, NMFS issued regulations (73 FR
60976; October 15, 2008) establishing long-term limits on the maximum
number of CIBWs that may be taken for subsistence by Alaska Natives.
These long-term harvest limits, developed for 5-year intervals, require
that the abundance estimates reach a minimum 5-year average of 350
belugas before hunting can take place (50 CFR 216.23(f)(2)(v)). No hunt
has been authorized since 2006. Therefore, given the current moratorium
on subsistence hunting of CIBWs, 8 Star Alaska's activities will not
reduce the availability of the species to a level insufficient for a
harvest to meet subsistence needs by: (i) causing the marine mammals to
abandon or avoid hunting areas; (ii) directly displacing subsistence
users; or (iii) placing physical barriers between the marine mammals
and the subsistence hunters.
Given the nature of the activity and the required mitigation
measures, serious injury and mortality of marine mammals is not
expected to occur. For most species, impacts to marine mammals will
include limited, temporary behavioral disturbance. Small numbers of
humpback whales, harbor porpoise, and harbor seals may incur slight
auditory injury. As described above, the required mitigation measures,
such as implementation of shutdown zones, are expected to reduce the
frequency and severity of takes of marine mammals.
The commenters did not provide support for the assertion that the
specified activity may have an adverse impact on the availability of
harbor seals, Steller sea lions, and sea otters for subsistence harvest
(of note, sea otters are managed by the U.S. Fish and Wildlife Service,
rather than NMFS, and as such, are not discussed in this rulemaking).
As noted in the Unmitigable Adverse Impact Analysis and Determination
section of the proposed rule and this final rule, subsistence hunting
in Cook Inlet consists mostly of opportunistic hunting of seals, which
may overlap 8 Star Alaska's pile driving and anchor handling
activities. Subsistence hunting occurs mostly nearshore and near river
mouths. The majority of anchor handling activities are expected to
occur offshore and are therefore expected to have little overlap with
subsistence hunting. Any harassment to harbor seals due to pile driving
is anticipated to be short-term, mild, and not result in any
abandonment or behaviors that would make the animals unavailable for
harvest, nor are the activities expected to directly displace
subsistence users or place physical barriers between the marine mammals
and the subsistence hunters.
Regarding stakeholder engagement, as described in the Unmitigable
Adverse Impact Analysis and Determination section of the proposed rule
and this final rule, 8 Star Alaska must coordinate with local
subsistence communities as described in their stakeholder engagement
plan, notify the communities of any changes in operation, and work with
communities to avoid or mitigate impacts to subsistence harvest through
pre-construction planning, communication, or other actions. This
measure ensures that impacts to subsistence harvest will be avoided or
entirely mitigated, while providing flexibility in how those impacts,
when identified, are avoided or mitigated.
As such, and as stated in the Unmitigable Adverse Impact Analysis
and Determination section of this final rule, NMFS has determined that
there would not be an unmitigable adverse impact on subsistence uses
from 8 Star Alaska's planned activities.
Comment 32: The Commission recommended that NMFS require 8 Star
Alaska to include in its stakeholder engagement plan which stakeholders
have been or will be contacted, a summary of input received, a schedule
for ongoing community engagement, and measures that would be
implemented to mitigate any potential conflicts with subsistence
hunting.
Response: NMFS generally concurs that the stakeholder engagement
plan should include elements identified by the Commission, though as
stated below, some specifics are not currently available given that 8
Star Alaska has not yet identified its construction schedule. 8 Star
Alaska initially submitted a draft stakeholder engagement plan dated
July 25, 2025. 8 Star Alaska expressed concerns about divulging
information publicly for the Tribes and subsistence groups that it had
contacted or engaged with and, therefore, did not include such
information in the stakeholder engagement plan. Following input from
NMFS, 8 Star Alaska submitted a revised stakeholder engagement plan
dated August 22, 2025. The revised stakeholder engagement plan includes
reference to the assessment of potential impacts to subsistence
communities in the 2020 Alaska LNG Final EIS (FEIS). This assessment
includes a description of the subsistence communities in the project
area, a list of stakeholders that have been contacted, including Tribes
and members of the subsistence community, dates of interaction and
input received. As stated in the stakeholder engagement plan, specific
future meetings have not yet been scheduled, but 8 Star Alaska plans to
continue engagement with stakeholders. Meetings will be scheduled once
the dates of construction have been identified and will include
meetings with communities prior to construction that will provide
schedule and contact information. Consistent with the Commission's
recommendations, and as described in the proposed and final
regulations, 8 Star Alaska must work with communities to avoid or
mitigate impacts to subsistence harvest through pre-construction
planning, communication, or other actions. The
[[Page 57560]]
stakeholder engagement plan describes such plans as well.
Comment 33: CBD et al. and a member of the public asserted that
NMFS cannot rely on the 2020 Alaska LNG FEIS because it fails to
consider a reasonable range of alternatives, including alternative
mitigation measures, and because it fails to consider new information.
CBD et al. therefore suggested that NMFS must conduct a supplemental
analysis for the EIS.
Response: NMFS disagrees with the commenters that a supplemental
EIS is warranted. Regarding the range of alternatives considered, NMFS
worked with the FERC and required a suite of monitoring and mitigation
measures that are the most protective to ensure the least practicable
adverse impact. While a range of alternatives concerning the scope of
the project was presented in the EIS, many of these project-related
alternatives were eliminated either because they provided no
environmental advantage or were impracticable for the project.
Regarding new information, NMFS prepared a supplemental information
report (SIR) which documents NMFS' decision regarding whether a
supplemental FEIS for its action (i.e., promulgation of regulations and
issuance of a 5-year LOA) is needed. The SIR considered new scientific
information since the publication of the 2020 Alaska LNG Project FEIS,
including relevant literature cited in CBD et al.'s public comment
letter, as well as minor changes to the project and analyses. As
described in the SIR, the minor changes to the project and new
scientific information do not amount to a substantial change relevant
to environmental concerns, and the new information does not alter the
significance of adverse effects that were identified in the 2020 Alaska
LNG FEIS.
Comment 34: CBD et al. asserted that NMFS cannot promulgate
regulations and issue an LOA to 8 Star Alaska for the taking of marine
mammals incidental to construction of the Alaska LNG Project in Cook
Inlet, AK until NMFS conducts a consultation under section 7 of the
ESA.
Response: As stated in the proposed rule, Section 7(a)(2) of the
ESA of 1973 (16 U.S.C. 1531 et seq.) requires that each Federal agency
ensure 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
promulgation of regulations, NMFS consults internally whenever we
propose to authorize take for endangered or threatened species. In this
case NMFS Office of Protected Resources (OPR) consulted with the Alaska
Regional Office (AKRO).
NMFS issued a Biological Opinion on June 3, 2020, concluding that
the issuance of an LOA for the same project activities in Cook Inlet
was not likely to jeopardize the continued existence of the threatened
and endangered species under NMFS' jurisdiction and was not likely to
destroy or adversely modify CIBW critical habitat. On July 14, 2025,
NMFS OPR reinitiated consultation with NMFS AKRO pursuant to Section 7
of the ESA on the promulgation of regulations and issuance of a
subsequent LOA to 8 Star Alaska. As described in this final rule, AKRO
issued a Biological Opinion on October 31, 2025, which found that the
Alaska LNG project is not likely to jeopardize the continued existence
of fin whales, humpback whales (Mexico and Western North Pacific
Distinct Population Segments (DPS)), beluga whales (Cook Inlet DPS),
and Steller sea lions (Western DPS).
Comment 35: Defenders of Wildlife suggested that these regulations
require significant revisions and therefore request that NMFS publish a
revised proposed rule before publishing a final rule.
Response: NMFS has considered the revisions suggested by the
commenter (as described in response to comments 5, 17, 19, and 20) and
disagrees that they are necessary. NMFS has made the necessary
revisions to the proposed rule, which are not significant enough to
warrant publishing a revised proposed rule.
Comment 36: NMFS received multiple comments from the public
expressing opposition to the killing of marine mammals.
Response: As described in this notice and the proposed rule, no
serious injury or mortality to marine mammals is anticipated or
authorized.
Changes From the Proposed Rule
Following a comment from the Commission, NMFS has determined it
appropriate to change the source levels for the impact installation of
48-inch (122 cm) steel pipe piles from 213 SPLpeak, 192 SPLrms, and 181
dB SELs-s included in the proposed rule to 209 dB SPLpeak, 195 dB
SPLrms, and 181 dB SELs-s (see comment 1 in Comments and Responses
section). These source levels have been used to recalculate the
estimated Level A and Level B harassment isopleths. Based on these
changes, estimated take numbers have changed for harbor seals only (See
Estimated Take of Marine Mammals section). Shutdown zones for impact
installation of 48-inch (122 cm) steel pipe piles have been changed as
appropriate based on the updated Level A and Level B harassment
isopleths (see Mitigation section).
The density for killer whale was inadvertently written as 0.0061
animals/km\2\ in the proposed rule, and it has been corrected to
accurately reflect the correct density used in the analysis of 0.00061
animals/km\2\.
NMFS has updated the regulatory text in several places.
NMFS has updated Sec. 217.44(f) to include a requirement that 8
Star Alaska must not pile drive in association with the Mainline MOF
from June 1 to September 7. Although this mitigation measure had been
discussed in the preamble to the proposed rule and proposed by 8 Star
Alaska in its application, it was inadvertently omitted from the
regulatory text in the proposed rule (See response to comment 16 in
Comments and Responses section).
NMFS has clarified in Sec. 217.44(n) that 8 Star Alaska must
conduct sound source verification measurements at the beginning of pile
driving, rather than prior to pile driving (see response to comment 9
in Comments and Responses section).
NMFS has added a requirement in Sec. 217.44(n)(1) that any sound
attenuation device used by 8 Star Alaska must meet minimum requirements
as determined by NMFS in the SSV plan (see response to comment 14
Comments and Responses section).
NMFS has clarified in Sec. 217.45(a)(6)(i) that for all single
hammer pile driving activities a minimum of two PSOs must be on duty
and has also specified locations of pile driving (see response to
comment 8 in Comments and Responses section).
NMFS has added a requirement in Sec. 217.45(a)(6)(ii) that for all
concurrent pile driving activities at the Marine Terminal near Nikiski
a minimum of three PSOs must be on duty at all times (see response to
comment 8 in Comments and Responses section).
NMFS has clarified in Sec. 217.45(b)(1) that SSV must be conducted
at each location and in Sec. 217.45(b)(1)(ii) that 8 Star Alaska must
measure a minimum of each type, size, and installation method for
single pile driving scenarios (see response to comment 9 in Comments
and Responses section).
NMFS has added a requirement in Sec. 217.45(b)(1)(iv)(F) that
transmission loss values for attenuated and unattenuated impact and
vibratory installation of each pile size and type
[[Page 57561]]
must be included in the SSV report (see response to comment 12 in
Comments and Responses section).
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 1 lists all species or stocks for which take is expected and
authorized for this activity and summarizes information related to the
population or stock, including regulatory status under the MMPA and ESA
and potential biological removal (PBR), where known. PBR is defined by
the MMPA as the maximum number of animals, not including natural
mortalities, that may be removed from a marine mammal stock while
allowing that stock to reach or maintain its optimum sustainable
population (as described in NMFS' SARs). While no serious injury or
mortality is anticipated or authorized here, PBR and annual serious
injury and mortality (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. Alaska and Pacific SARs. All values presented in table 1 are
the most recent available at the time of publication (including from
the draft 2024 SARs) and are available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.
Table 1--Species \1\ With Estimated Take From the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
Gray Whale...................... Eschrichtius robustus.. Eastern North Pacific.. -, -, N 26,960 (0.05, 25,849, 801 131
2016).
Family Balaenopteridae (rorquals):
Fin Whale....................... Balaenoptera physalus.. Northeast Pacific...... E, D, Y 11,065 (0.405 7,970, UND 0.6
2013) \5\.
Humpback Whale.................. Megaptera novaeangliae. Hawai'i................ -, -, N 11,278 (0.56, 7,265, 127 27.09
2020).
Humpback Whale.................. Megaptera novaeangliae. Mexico-North Pacific... T, D, Y N/A \6\ (N/A, N/A, UND 0.57
2006).
Humpback Whale.................. Megaptera novaeangliae. Western North Pacific.. E, D, Y 1,084 (0.088, 1,007, 3.4 5.82
2006).
Minke Whale..................... Balaenoptera Alaska................. -, -, N N/A \7\ (N/A, N/A, N/ UND 0
acutorostrata. A).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Killer Whale.................... Orcinus orca........... Eastern North Pacific -, -, N 1,920 (N/A, 1,920, 19 1.3
Alaska Resident. 2019).
Killer Whale.................... Orcinus orca........... Eastern North Pacific -, -, N 587 (N/A, 587, 2012).. 5.9 0.8
Gulf of Alaska,
Aleutian Islands and
Bering Sea Transient.
Pacific White-Sided Dolphin..... Aethalodelphis North Pacific.......... -, -, N 26,880 (N/A, N/A, UND 0
obliquidens. 1990).
Family Monodontidae (white whales):
Beluga Whale.................... Delphinapterus leucas.. Cook Inlet............. E, D, Y 331 (0.076, 311, 2022) ......... 0
Family Phocoenidae (porpoises):
Dall's Porpoise................. Phocoenoides dalli..... Alaska................. -, -, N UND \8\ (UND, UND, UND 37
2015).
Harbor Porpoise................. Phocoena phocoena...... Gulf of Alaska......... -, -, Y 31,046 (0.21, N/A, UND 72
1998).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
sea lions):
California Sea Lion............. Zalophus californianus. U.S.................... -, -, N 257,606 (N/A, 233,515, 14,011 >321
2014).
Steller Sea Lion................ Eumetopias jubatus..... Western................ E, D, Y 49,837 \9\ (N/A, 299 267
49,837, 2022).
Family Phocidae (earless seals):
Harbor Seal..................... Phoca vitulina......... Cook Inlet/Shelikof -, -, N 28,411 (N/A, 26,907, 807 107
Strait. 2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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>).
[[Page 57562]]
\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' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
\5\ The best available abundance estimate for this stock is not considered representative of the entire stock as surveys were limited to a small portion
of the stock's range.
\6\ NMFS's abundance estimate for this stock is greater than 8 years old and not considered current. PBR is therefore considered undetermined for this
stock, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimate as the
best available information.
\7\ Reliable population estimates are not available for this stock.
\8\ The best available abundance estimate is likely an underestimate for the entire stock because it is based upon a survey that covered only a small
portion of the stock's range.
\9\ Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys. Estimates provided are for the U.S.
only. The overall Nmin is 73,211 and overall PBR is 439.
A detailed description of the species likely to be affected by the
Alaska LNG project, including brief introductions to the species and
relevant stocks as well as available information regarding population
trends and threats, and information regarding local occurrence, were
provided in the proposed rule. Since publication of the proposed rule,
the Society for Marine Mammalogy Committee on Taxonomy (2025) updated
the genus for the Pacific white-sided dolphin from Lagenorhynchus to
Aethalodelphis, based on the work of Galatius et al. (2025) and Vollmer
et al. (2019). Therefore, the scientific name for the Pacific white-
sided dolphin will be referred to as Aethalodelphis obliquidens in this
notice. Aside from this change in scientific name, we are not aware of
any changes in the status of these species and stocks since publication
of the proposed rule; therefore, detailed descriptions are not provided
here. Please refer to the proposed rule for detailed descriptions.
Please also refer to NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized species accounts.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Generalized hearing ranges were
chosen based on the ~65 dB threshold from composite audiograms,
previous analyses in NMFS (2018), and/or data from Southall et al.
(2007) and Southall et al. (2019). We note that the names of two
hearing groups and the generalized hearing ranges of all marine mammal
hearing groups have been recently updated (NMFS 2024) as reflected
below in table 2.
Table 2--Marine Mammal Hearing Groups
[NMFS, 2024]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans 7 hertz (Hz) to 36 kHz.
(baleen whales).
High-frequency (HF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales,
beaked whales, bottlenose
whales).
Very High-frequency (VHF) 200 Hz to 165 kHz.
cetaceans (true porpoises,
Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) 40 Hz to 90 kHz.
(underwater) (true seals).
Otariid pinnipeds (OW) 60 Hz to 68 kHz.
(underwater) (sea lions and fur
seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges 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) and
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
The effects of underwater noise from 8 Star Alaska's construction
activities have the potential to result in harassment of marine mammals
in the vicinity of the project area. The proposed rule included a
discussion of the effects of anthropogenic noise on marine mammals and
the potential effects of underwater noise from 8 Star Alaska's
construction activities on marine mammals and their habitat. That
information and analysis is not repeated here.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
that may be authorized through issuance of a LOA, 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 will primarily be by Level B harassment, as
exposure to sound resulting from use of the acoustic
[[Page 57563]]
sources (i.e., pile driving and AHT activities) has the potential to
result in disruption of behavioral patterns for individual marine
mammals. We note here that given the slow, predictable, and generally
straight path of tugs towing and positioning, the likelihood of a
resulting disruption of marine mammal behavioral patterns that would
qualify as harassment is considered relatively low. However, in
consideration of the relatively louder sound produced by these tugs and
the sensitive context present in Cook Inlet, NMFS cannot consider the
likelihood of take to be discountable and considers it to be
sufficiently likely to justify an assumption that quantified exposures
above the generalized harassment threshold equate to take. Therefore,
we have quantified the potential exposures from this activity, assumed
that these exposures would equate to take, and analyzed the impacts of
the assumed takes. There is also some potential for auditory injury
(AUD INJ) (Level A harassment) to result due to impact pile driving,
primarily for mysticetes, very high frequency species, and phocids
because predicted AUD INJ zones are larger than for high-frequency
species and otariids. AUD INJ is unlikely to occur for high-frequency
species. The mitigation and monitoring measures are expected to
minimize the severity of the taking to the extent practicable.
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
take numbers 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 AUD INJ; (2) the area or volume of
water that will be ensonified above these levels in a day; (3) the
density or occurrence of marine mammals within these ensonified areas;
and, (4) the number of days of activities. We note that while these
factors can contribute to a basic calculation to provide an initial
prediction of potential takes, additional information that can
qualitatively inform take estimates is also sometimes available (e.g.,
previous monitoring results or average group size). Below, we describe
the factors considered here in more detail and present the take
estimates.
Acoustic 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 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 reflected 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 re 1 [mu]Pa
for continuous (e.g., vibratory pile driving, drilling) and above RMS
SPL 160 dB re 1 [mu]Pa for non-explosive impulsive (e.g., seismic
airguns) or intermittent (e.g., scientific sonar) sources. Generally
speaking, Level B harassment take estimates based on these behavioral
harassment thresholds are expected to include any likely takes by
temporary threshold shift (TTS) as, in most cases, the likelihood of
TTS occurs at distances from the source less than those at which
behavioral harassment is likely. TTS of a sufficient degree can
manifest as behavioral harassment, as reduced hearing sensitivity and
the potential reduced opportunities to detect important signals
(conspecific communication, predators, prey) may result in changes in
behavior patterns that would not otherwise occur.
8 Star Alaska's activity includes the use of continuous (vibratory
pile driving and AHTs engaged in anchor handling) and impulsive (impact
pile driving) sources, and therefore the RMS SPL thresholds of 120 and
160 dB re 1 [mu]Pa are applicable.
Level A Harassment--NMFS' Updated Technical Guidance for Assessing
the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version
3.0) (Updated Technical Guidance, 2024) identifies dual criteria to
assess AUD INJ (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).
8 Star Alaska's activity includes the use of impulsive (impact pile
driving) and non-impulsive (vibratory pile driving and use of AHTs)
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 3--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.
[[Page 57564]]
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 standards (ISO 2017). The subscript ``flat''
is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized
hearing range of marine mammals 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 noise from pile driving and AHTs engaging in
anchor handling from the project.
Pile Driving
8 Star Alaska will conduct vibratory pile installation and removal
and impact pile installation. Source levels for these activities are
based on reviews of measurements of sound source levels from the same
or similar types and dimension of piles available in the literature.
Source levels for each pile size and activity are presented in table 4.
Source levels for vibratory installation and removal of piles of the
same diameter are assumed to be the same.
8 Star Alaska will conduct concurrent pile driving during
construction of the combi-wall and coffer cells in the Marine Terminal
MOF. When two noise sources have overlapping sound fields, the sources
are considered additive and combined using the rules of dB addition.
For addition of two concurrent sources, the difference between the two
sound source levels is calculated, and if that difference is between 0
and 1 dB, 3 dB are added to the higher sound source levels; if the
difference is between 2 and 3 dB, 2 dB are added to the highest sound
source levels; if the difference is between 4 and 9 dB, 1 dB is added
to the highest sound source levels; and with differences of 10 or more
dB, there is no addition. For two concurrent sources of different type
(i.e., impact and vibratory driving), there is no sound source
addition. Combinations of concurrent pile driving and the predicted
source values are shown in table 5. All concurrent pile driving will
consist of two vibratory hammers.
Table 4--Sound Source Levels for Single Hammer Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source level (at 10 m)
---------------------------------------------------
Pile type Peak (dB re 1 SEL (dB re 1 RMS (dB re 1 Proxy Source
[mu]Pa) [mu]Pa2 sec) [mu]Pa)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sheet Pile............................... 205 180 190 24-inch (61-cm) AZ Sheet Caltrans (2015).
Pile.
24-inch Steel Pipe Pile.................. 203 177 190 24-inch (61-cm) Steel Pipe Caltrans (2015).
Pile.
48-inch Steel Pipe Pile *................ 208 180 195 48-inch (121.9-cm) Steel Caltrans (2020); Austin, et
Pipe Pile. al. (2016); Illingworth &
Rodkin (2017).
60-inch Steel Pipe Pile.................. 210 185 195 60-inch (152.4 cm) Steel Caltrans (2020).
Pipe Pile.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sheet Pile............................... N/A N/A 160 24-inch (61-cm) AZ Sheet Caltrans (2015).
Pile.
24-inch Steel Pipe Pile)................. N/A N/A 163 20- to 24-inch (50.8- to 61- U.S. Navy (2012, 2013),
cm) Steel Pipe Pile. (Miner, 2020).
66-inch Steel Pipe Pile.................. N/A N/A 170 49- to 72-inch (124.5-182.9- Caltrans (2020), Illingworth
cm) to Steel Pipe Piles & Rodkin (2021).
(average).
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Source levels for impact installation of 48-inch steel pipe piles have change since publication of the proposed rule due to comments received from the
Commission (see Comments and Responses section.)
Table 5--Concurrent Pile Driving Scenarios and Predicted Source Levels
[All vibratory hammers]
------------------------------------------------------------------------
Predicted RMS (dB re 1
Concurrent pile driving scenarios [mu]Pa) at 10 m
------------------------------------------------------------------------
66-inch Steel Pipe Pile x 2................... 173
66-inch Steel Pipe Pile with Sheet Pile....... 170
Sheet Pile x 2................................ 163
24-inch Steel Pipe Pile with Sheet Pile....... 165
24-inch Steel Pipe Pile x 2................... 166
------------------------------------------------------------------------
[[Page 57565]]
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
topography. The general formula for underwater TL is:
TL = B * Log10 (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.
Absent site-specific acoustical monitoring with differing measured
transmission loss, a practical spreading value of 15 is used as the
transmission loss coefficient in the above formula. Project and site-
specific transmission loss data for 8 Star Alaska's project area in
Cook Inlet are not available; therefore, the default coefficient of 15
is used to determine the distances to the Level A and Level B
harassment thresholds for all pile driving. All Level B harassment
isopleths are reported in table 7. However, as discussed in the
Monitoring and Reporting section, 8 Star Alaska will conduct SSV for
pile driving. Following the analysis of SSV results, 8 Star Alaska may
propose revised estimated Level A and Level B harassment zones (for the
purpose of monitoring and reporting) and adjusted shutdown zones
accordingly for NMFS review and approval.
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 impact and vibratory pile driving and AHTs
engaged in anchor handling, 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 Spreadsheet tool are provided in table
6, and the resulting estimated isopleths are reported in table 7.
Table 6--User Spreadsheet Input Parameters Used for Calculating Level A Harassment Isopleths
[Source levels provided in Tables 4 and 5]
----------------------------------------------------------------------------------------------------------------
Duration to
Pile Piles per day Strikes per drive pile Weighting factor
pile (min) adjustment (WFA)
----------------------------------------------------------------------------------------------------------------
Impact
----------------------------------------------------------------------------------------------------------------
Sheet Pile................................... 30 1,000 N/A 2
24-inch Steel Pipe Pile...................... 4 1,000 N/A 2
48-inch Steel Pipe Pile...................... 3 1,000 N/A 2
60-inch Steel Pipe Pile...................... 4 1,000 N/A 2
----------------------------------------------------------------------------------------------------------------
Vibratory
----------------------------------------------------------------------------------------------------------------
Sheet Pile................................... 30 N/A 15 2.5
24-inch Steel Pipe Pile...................... 8 N/A 15 2.5
66-inch Steel Pipe Pile...................... 7 N/A 15 2.5
----------------------------------------------------------------------------------------------------------------
Concurrent Pile Driving with Two Vibratory Hammers
----------------------------------------------------------------------------------------------------------------
66-inch Steel Pipe Pile x 2.................. 1 N/A *105 2.5
66-inch Steel Pipe Pile with Sheet Pile...... 1 N/A *450 2.5
Sheet pile x 2............................... 1 N/A *450 2.5
24-inch Steel Pipe Pile with Sheet Pile...... 1 N/A *450 2.5
24-inch Steel Pipe Pile x 2.................. 1 N/A *120 2.5
----------------------------------------------------------------------------------------------------------------
* This value represents the maximum duration of concurrent activity.
Table 7--Calculated Distances to Level A and Level B Harassment Isopleths for Pile Driving
----------------------------------------------------------------------------------------------------------------
Level A harassment zone (m)
----------------------------------------------------------------- Level B
Pile VHF harassment
LF cetacean HF cetacean cetacean Phocids Otariids zone (m)
----------------------------------------------------------------------------------------------------------------
Impact
----------------------------------------------------------------------------------------------------------------
Sheet Pile........................ 6,061 773 9,380 5,385 2,007 1,000
24-inch Steel Pipe Pile........... 998 127 1,545 887 331 1,000
48-inch Steel Pipe Pile *......... 1,306 167 2,021 1,160 432 2,154
60-inch Steel Pipe Pile........... 3,408 435 5,274 3,028 1,120 2,154
----------------------------------------------------------------------------------------------------------------
Vibratory
----------------------------------------------------------------------------------------------------------------
Sheet Pile........................ 30 12 25 39 13 4,642
[[Page 57566]]
24-inch Steel Pipe Pile........... 20 8 16 26 9 7,356
66-inch Steel Pipe Pile........... 53 21 44 69 23 21,544
----------------------------------------------------------------------------------------------------------------
Concurrent Pile Driving with Two Vibratory Hammers
----------------------------------------------------------------------------------------------------------------
66-inch Steel Pipe Pile x 2....... 85 33 69 109 37 34,146
66-inch Steel Pipe Pile with Sheet 141 54 115 181 61 21,544
Pile.............................
Sheet Pile x 2.................... 48 19 39 62 21 7,356
24-inch Steel Pipe Pile with Sheet 32 12 26 41 14 11,659
Pile.............................
24-inch Steel Pipe Pile x 2....... 65 25 53 84 28 10,000
----------------------------------------------------------------------------------------------------------------
* The Level A and Level B harassment isopleths for impact installation of 48-inch steel pipe piles have changed
since the publication of the proposed rule due to changes in source levels since publication of the proposed
rule (see table 4).
Except for Level B harassment areas of ensonification for the
single hammer vibratory installation of 66-inch steel pipe pile, the
concurrent vibratory installation of two 66-inch piles, and the
concurrent vibratory installation of a 66-inch steel pipe pile with a
sheet pile, estimated areas of ensonification were calculated for pile
driving using the formula of \1/2\[pi]r\2\, where r is the respective
isopleth. For the single hammer vibratory installation of 66-inch steel
pipe pile, the concurrent vibratory installation of two 66-inch piles,
and the concurrent vibratory installation of a 66-inch steel pipe pile
with a sheet pile, the Level B harassment isopleths were truncated by
land, and therefore \1/2\[pi]r\2\ was not representative of the area of
ensonification. Therefore, mapping software was used to draw the
estimated area of ensonification. Estimated Level A and Level B
harassment areas of ensonification are in table 8.
NMFS used the following formula to estimate the area of
ensonification for AHTs engaged in anchor handling, where distance
traveled per day is the linear distance that the AHTs would be expected
to travel over the course of a day, and r is the radial distance of the
Level B harassment isopleth (3.85 km). 8 Star Alaska estimates the
pipelay rate to be 2,500 feet/day (0.762 km/day), so 0.762 km was used
as the distance traveled per day.
Area of ensonification = (Distance traveled per day x 2r) + [pi]r\2\
Table 8--Calculated Level A and B Harassment Areas of Ensonification
----------------------------------------------------------------------------------------------------------------
Level A harassment areas of ensonification (km\2\) Level B
----------------------------------------------------------------- harassment
Pile area of
LF cetacean HF cetacean VHF Phocids Otariids ensonification
cetacean (km\2\)
----------------------------------------------------------------------------------------------------------------
Impact
----------------------------------------------------------------------------------------------------------------
Sheet Pile..................... 57.7 0.94 138.21 45.47 6.33 1.57
24-inch Steel Pipe Pile........ 1.56 0.03 3.75 1.24 0.17 1.57
48-inch Steel Pipe Pile *...... 2.68 0.17 6.47 2.11 0.29 7.29
60-inch Steel Pipe Pile........ 18.24 0.3 43.69 14.4 2.0 7.29
----------------------------------------------------------------------------------------------------------------
Vibratory
----------------------------------------------------------------------------------------------------------------
Sheet Pile..................... 0.00 0.00 0.00 0.00 0.00 33.85
24-inch Steel Pipe Pile........ 0.00 0.00 0.00 0.00 0.00 24.89
66-inch Steel Pipe Pile........ 0.00 0.00 0.00 0.00 0.00 62.54
66-inch Steel Pipe Pile x 2.... 0.01 0.00 0.01 0.02 0.00 1,426.4
66-inch Steel Pipe Pile with 0.03 0.00 0.02 0.05 0.01 722.5
Sheet Pile....................
Sheet Pile x 2................. 0.00 0.00 0.00 0.01 0.00 85
24-inch Steel Pipe Pile with 0.01 0.00 0.00 0.01 0.00 157.08
Sheet Pile....................
24-inch Steel Pipe Pile x 2.... 0.00 0.00 0.00 0.00 0.00 213.5
----------------------------------------------------------------------------------------------------------------
AHTs
----------------------------------------------------------------------------------------------------------------
Anchor Handling................ 0.00 0.00 0.00 0.01 0.00 52.4
----------------------------------------------------------------------------------------------------------------
* Areas of ensonification for impact installation of 48-inch steel pipe piles have changed since the publication
of the proposed rule due to changes in the Level A and Level B harassment isopleths (see table 7).
Level A harassment zones are typically smaller than Level B
harassment zones. However, in some cases, the calculated Level A
harassment isopleth is greater than the calculated Level B harassment
isopleth. Calculation of Level A harassment isopleths include a
duration component, which in the case of impact pile driving, is
estimated through the total number of daily strikes and the associated
pulse duration. For a stationary sound source, we assume here that an
animal is exposed to all of the strikes expected within a 24-hour
period. Calculation of
[[Page 57567]]
a Level B harassment zone does not include a duration component.
Depending on the duration included in the calculation, the calculated
Level A harassment isopleths can be larger than the calculated Level B
harassment isopleth for the same activity.
Mainline Installation
8 Star Alaska intends to use AHTs to position a pipelaying barge in
order to install the pipe on the seafloor for the Mainline across Cook
Inlet. For the nearshore pipelay, planned for year 3, an AHT will
engage in anchor handling to moor a pull barge, and is expected to be
used for two days of work, one day on the west coast near Beluga and
one day on the east coast near Suneva Lake. For offshore pipelay, AHTs
will be engaged in anchor handling to repeatedly position the barge
during the duration of pipelay. Consistent with other tug activities,
including those for tugs towing a jack-up rig (Furie Operating Alaska,
LLC Natural Gas Activities, 89 FR 77836 (September 24, 2024); Hilcorp
Alaska, LLC, 89 FR 79529 (September 30, 2024)), NMFS anticipates that
the AHTs will operate at approximately 50 percent power during anchor
handling activities.
Because of the similarities to tugging activities planned by
Hilcorp in Cook Inlet (89 FR 79529, September 30, 2024), NMFS
determined it appropriate to adopt analysis provided for those
activities for 8 Star Alaska's planned tugging activities. In addition,
we refer here to an existing literature review of available source
level data for tugs under load in varying power output scenarios (87 FR
27597, May 9, 2022). Please see that notice for the detailed analysis.
While that analysis is for tugs under load towing a jack-up rig, NMFS
expects the AHT power output for the anchor handling is to be
consistent with that assumed for tugs towing a jack-up rig (Furie
Operating Alaska, LLC Natural Gas Activities, 89 FR 77836 (September
24, 2024); Hilcorp Alaska, LLC, 89 FR 79529 (September 30, 2024)), and,
therefore, NMFS determined that this analysis represents the best
scientific evidence available for considering the appropriate source
level proxy for 8 Star Alaska's AHT use during anchor handling.
In addition to the literature review referenced above, which
indicates that a source level of 180 dB for a single AHT would be
appropriate, we also consider other relevant information to adequately
consider 8 Star Alaska's planned use of three AHTs to handle anchors.
If all three tugs were operating simultaneously at 180 dB RMS, the
overall source emission levels would be expected to increase by
approximately 5 dB when logarithmically adding the sources (i.e., to
185 dB RMS). To further support this level as an appropriate proxy, an
SSV study performed by JASCO Applied Sciences (JASCO) in Cook Inlet in
October 2021 (Lawrence et al., 2022) measured the sound source level
from three tugs pulling a jack-up rig in Cook Inlet at various power
outputs. Lawrence et al. (2022) reported a source level of 167.3 dB RMS
for the 20 percent-power scenario and a source level of 205.9 dB RMS
for the 85 percent-power scenario. Assuming a linear scaling of tug
power, a source level of 185 dB RMS was calculated as a single point
source level for three tugs operating at 50 percent power output.
Therefore, the analyses presented below use a mean tug sound source
level scenario of 185 dB RMS to estimate distances to the 120 dB RMS
isopleth for three tugs operating at 50 percent power output. In
practice, the load condition of the three tugs is unlikely to be
identical at all times, so sound emissions would be dominated by the
single tug in the group that is working hardest at any point in time.
NMFS, therefore, has determined it appropriate to use the source level
of 185 dB RMS at 1 m to represent the use of three AHTs. Modeling using
this source level resulted in an estimated distance to the 120-dB
isopleth of 3,850 m. Please see 89 FR 79529 (September 30, 2024) for
full detail.
As noted previously, NMFS determined that Level A harassment would
not be a reasonably likely outcome of the use of AHTs. In order to
characterize the extent of the Level A harassment isopleths to provide
additional quantitative support for this determination, NMFS used the
NMFS user spreadsheet to calculate Level A harassment zones for each
hearing group for AHTs conducting anchor handling. NMFS used Tab A
(Non-Impulse-Stat-Cont) in the spreadsheet and used a WFA of 2, a 6-
hour duration of sound production within a 24-hour period, and a
propagation loss coefficient of 18.129. Weston and SLR (2022)
determined the average 120 dB isopleth was 3,850 m for a continuous
noise source of 185 dB rms SPL across 25 locations in middle Cook
Inlet. The coefficient is calculated as (185 dB-120 dB)/Log10(3850/1) =
18.129 dB per decade.)). Estimated Level A and Level B harassment
isopleths for AHTs engaged in anchor handling are reported in table 9.
Table 9--Level A and Level B Harassment Isopleths From AHTs Engaged in Anchor Handling
----------------------------------------------------------------------------------------------------------------
Level A harassment isopleths (m) \1\ Level B
----------------------------------------------------------------- harassment
Sound source isopleth
LF HF VHF Phocid Otariid (m) \2\
----------------------------------------------------------------------------------------------------------------
3 AHTs............................ 53 21 28 62 21 3,850
----------------------------------------------------------------------------------------------------------------
\1\ Level A harassment isopleths calculated using NMFS User spreadsheet.
\2\ Level B harassment isopleth determined using results from Hilcorp's modeling.
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information which
will inform the take calculations.
8 Star Alaska requested take of humpback whale, killer whale,
beluga whale, harbor porpoise, and harbor seal. In addition to those
species, NMFS determined that minke whale, gray whale, fin whale,
Dall's porpoise, Pacific white-sided dolphin, Steller sea lion, and
California sea lion are likely to occur in the project area during 8
Star Alaska's activities and, accordingly, is authorizing take for
these species.
Densities for marine mammals in Cook Inlet were derived from NMFS
AFSC's Marine Mammal Laboratory (MML) aerial surveys, typically flown
in June, from 2000 to 2022 (Rugh et al., 2005; Shelden et al., 2013,
2015b, 2017, 2022; Shelden and Wade, 2019; Goetz et al., 2023) except
for beluga whales, for which other density data exist, or for Steller
sea lions, fin whale, Pacific white-sided dolphins, and California sea
lions, which occur too rarely to support development of density
estimates. Total survey area was not reported for the 2021 or 2022
survey years (Shelden et al., 2022, Goetz et al., 2023) so total
[[Page 57568]]
survey area for 2021 and 2022 was estimated as 8,377.2 km\2\ for each
year based on previous reports. While the surveys are concentrated for
a few days in summer annually, which may skew densities for seasonally
present species, they represent the best available long-term dataset of
marine mammal sightings available in Cook Inlet. To estimate the
average density, the maximum number of individuals per species was
divided by the area surveyed, and NMFS used the average across all
survey years for each species.
CIBW densities estimated from the AFSC surveys across regions are
low; however, there is a known effect of seasonality on their
distribution. Thus, densities derived directly from these summer
surveys might underestimate the density of CIBWs in lower Cook Inlet at
other ice-free times of the year. Therefore, NMFS used the Goetz et al.
(2012a) habitat-based model to determine CIBW density. This model is
derived from sightings and incorporates depth soundings, coastal
substrate type, environmental sensitivity index, anthropogenic
disturbance, and anadromous fish streams to predict densities
throughout Cook Inlet. The output of this model is a density map of
Cook Inlet, which predicts spatially explicit density estimates for
CIBW. Using the resulting grid densities, average densities were
calculated for three regions applicable to 8 Star Alaska's operations
(table 10). The densities applicable to the area of activity (i.e., the
Marine Terminal near Nikiski, the Mainline in middle Cook Inlet, and
the Mainline MOF near Tyonek) are provided in table 10 and were carried
forward to the exposure estimates as they were deemed to be the most
representative estimates available.
Although data exists for Steller sea lions and fin whales in Cook
Inlet from AFSC aerial surveys, this data is based on sightings of
Steller sea lions and fin whales that were mostly observed in lower
Cook Inlet and is not representative of middle Cook Inlet, where 8 Star
Alaska plans to conduct construction. Therefore, in order to calculate
take of these species, NMFS used marine mammal occurrence.
For Steller sea lions, NMFS used monitoring data from the Port of
Alaska (POA) in Anchorage, as these animals would be expected to pass
through middle Cook Inlet and therefore be observed in 8 Star Alaska's
Project Area. In 2020-2022 and 2024 (61 North Environmental, 2021,
2022a, 2022b, 2025; Easley-Appleyard and Leonard, 2022), the maximum
number of Steller sea lions observed at POA was nine animals, eight
during Petroleum and Cement Terminal (PCT) observations (61 North
Environmental, 2022a) and one during NMFS 2021 monitoring effort
(Easley-Appleyard and Leonard, 2022). Therefore, NMFS anticipates that
up to nine Steller sea lions may occur in the project area per year
during the course of 8 Star Alaska's project.
During seismic surveys conducted in 2019 by Hilcorp in the lower
Cook Inlet, fin whales were recorded in groups ranging in size from one
to 15 individuals (Fairweather, 2020). During the NMFS aerial surveys
in Cook Inlet from 2000 to 2018, 10 sightings of 26 estimated
individual fin whales in lower Cook Inlet were observed (Shelden et
al., 2013, 2015, 2016, 2019). Therefore, NMFS anticipates that one
group of two fin whales (the lower end of the range of common group
sizes) may occur in the project area per year during the course of 8
Star Alaska's project.
No density estimates are available for Pacific white-sided dolphins
and California sea lions, as they are so infrequently sighted.
Therefore, NMFS is authorizing take of these species based on group
number (see table 11).
Due to the paucity of data of Pacific white-sided dolphins in this
region, there is no available density for Pacific white-sided dolphins.
They are considered rare in most of Cook Inlet, including in the lower
entrance, but their presence was documented in Iniskin Bay and mid-
inlet through passive acoustic recorders in 2019 (Castellote et al.,
2020). In 2014, during Apache's seismic survey program, three Pacific
white-sided dolphins were reported (Lomac-MacNair et al., 2014).
While California sea lions are uncommon in Cook Inlet, two were
seen during the 2012 Apache seismic survey in Cook Inlet (Lomac-MacNair
et al., 2013). California sea lions in Alaska are typically alone but
may be seen in small groups usually associated with Steller sea lions
at their haul outs and rookeries (Maniscalco et al., 2004).
Table 10--Calculated Densities
------------------------------------------------------------------------
Density
Species (animals/
km\2\)
------------------------------------------------------------------------
Gray whale.............................................. 0.00070
Humpback whale.......................................... 0.00185
Minke whale............................................. 0.00003
Killer whale............................................ * 0.00061
Beluga whale (Marine Terminal).......................... 0.00016
Beluga whale (Mainline Crossing)........................ 0.01070
Beluga whale (Mainline MOF)............................. 0.03680
Dall's porpoise......................................... 0.00014
Harbor porpoise......................................... 0.00380
Harbor seal............................................. 0.26819
------------------------------------------------------------------------
* The density for killer whales in this table has changed from the
proposed rule to reflect the correct density (see Changes from
Proposed Rule section).
Table 11--Marine Mammal Occurrence *
------------------------------------------------------------------------
Expected
Species occurrence
(animals/year)
------------------------------------------------------------------------
Fin whale............................................... 2
Pacific white-sided dolphin............................. 3
California sea lion..................................... 2
Steller sea lion........................................ 9
------------------------------------------------------------------------
* Marine mammal occurrence is used when density data is unavailable or
not representative of the project area.
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 is authorized.
To estimate take by Level B harassment for all species except for
fin whale, Pacific white-sided dolphin, California sea lion, and
Steller sea lion, 8 Star Alaska multiplied the area (km\2\) estimated
to be ensonified above the Level B harassment thresholds (table 8) for
each activity by the duration (days) of that activity by the calculated
density for each species (number of animals/km\2\). As described above,
take of fin whale, Pacific white-sided dolphin, California sea lion,
and Steller sea lion were calculated using group numbers and estimated
frequency of occurrence (table 11).
For species where calculated take by Level B harassment was less
than the average group size for that species, NMFS rounded up the take
estimate to the anticipated group size as displayed in table 12 and
described below.
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BILLING CODE 3510-22-C
During Apache's 2012 seismic program, nine sightings of a total of
nine gray whales were observed in June and July (Lomac-MacNair et al.,
2013). In 2014, one gray whale was observed during Apache's seismic
program
[[Page 57574]]
(Lomac-MacNair et al., 2014) and in 2015, no gray whales were observed
during SAExploration's seismic survey (Kendall and Cornick, 2015). No
gray whales were observed during the 2018 Cook Inlet Pipeline (CIPL)
Extension Project (Sitkiewicz et al., 2018) or during the 2019 Hilcorp
seismic survey in lower Cook Inlet (Fairweather Science, 2020). The
greatest densities of gray whales in Cook Inlet occur from November
through January and March through May; the former are southbound, the
latter are northbound (Ferguson et al., 2015). Based on this
information, NMFS is authorizing three takes by Level B harassment
annually for gray whales. This is higher than the exposure estimate for
each to allow for the potential occurrence of a group, or several
individuals, per year.
During annual aerial surveys conducted in Cook Inlet from 2000 to
2016, humpback group sizes ranged from 1 to 12 individuals, with most
groups comprised of 1 to 3 individuals (Shelden et al., 2013). Three
humpback whales were observed in Cook Inlet during SAExploration's
seismic study in 2015: two near the Forelands and one in Kachemak Bay
(Kendall and Cornick, 2015). In total, 14 sightings of 38 humpback
whales (ranging in group size from 1 to 14) were recorded in the 2019
Hilcorp lower Cook Inlet seismic survey in the fall (Fairweather
Science, 2020). Two sightings totaling three individual humpback whales
were recorded near Ladd Landing north of the Forelands on the recent
Harvest Alaska CIPL Extension Project (Sitkiewicz et al., 2018). Based
on documented observations from the CIPL Extension Project, which is
the data closest to 8 Star Alaska's project area, NMFS is authorizing
three takes by Level B harassment for humpback whales for years 3 and
5. For years 1, 2, and 4, the calculated take exceeds the estimated
group size.
Groups of up to three minke whales have been recorded in recent
years, including one group of three southeast of Kalgin Island (Lomac-
MacNair et al., 2014). Other recent surveys in Cook Inlet typically
have documented minke whales traveling alone (Shelden et al., 2013,
2015, 2017; Fairweather Science, 2020). As the occurrence of minke
whales is expected to be lower in middle Cook Inlet than lower Cook
Inlet and considering the observed group sizes, NMFS is authorizing
three takes of minke whale by Level B harassment for each year of 8
Star Alaska's project.
Killer whale pods typically consist of a few to 20 or more animals
(NMFS, 2025b). During seismic surveys conducted in 2019 by Hilcorp in
lower Cook Inlet, 21 killer whales were observed. Although also
observed as single individuals, killer whales were recorded during this
survey in groups ranging in size from two to five individuals
(Fairweather Science, 2020). One killer whale group of two individuals
was observed during the 2015 SAExploration seismic program near the
North Foreland (Kendall and Cornick, 2015). Based on recent documented
sightings, observed group sizes, and the established presence of killer
whales in Cook Inlet, NMFS is authorizing 10 takes (2 groups of 5
animals, the upper end of recently recorded group size) by Level B
harassment for killer whales for years 2-5.
The 2018 MML aerial survey (Shelden and Wade, 2019) estimated a
median group size of approximately 11 beluga whales, although group
sizes were highly variable (2 to 147 whales) as was the case in
previous survey years (Boyd et al., 2019). Over 3 seasons of monitoring
at the Port of Alaska, 61 North reported groups of up to 53 belugas,
with a median group size of 3 and a mean group size of 4.4 (61 North
Environmental, 2021, 2022a, 2022b, 2022c). Additionally, vessel-based
surveys in 2019 observed beluga whale groups in the Susitna River Delta
that ranged from 5 to 200 animals (McGuire et al., 2022). The very
large groups seen in the Susitna River Delta are not expected in the
areas of 8 Star Alaska's construction. However, smaller groups (i.e.,
around the median group size) could be traveling through to access the
Susitna River Delta and other nearby coastal locations, particularly in
the shoulder seasons when belugas are more likely to occur in middle
Cook Inlet. Therefore, NMFS is authorizing 11 takes by Level B
harassment of beluga whale in years 1-3, and 5, in which calculated
exposures were below the median group size. Calculated takes of beluga
whales was greater than the median group size in year 4 and therefore
were not adjusted for group size.
Dall's porpoises are usually found in groups averaging between 2
and 12 individuals (NMFS, 2025a). During seismic surveys conducted in
2019 by Hilcorp in lower Cook Inlet, Dall's porpoises were recorded in
groups ranging from two to seven individuals (Fairweather Science,
2020). The 2012 Apache survey recorded two groups of three individual
Dall's porpoises (Lomac-MacNair et al., 2014). NMFS is authorizing six
takes by Level B harassment per year for Dall's porpoises. This is
greater than the exposure estimate for each year, but allows for at
least one group at the higher end of documented group size or a
combination of small groups.
8 Star Alaska will shut down at the Level A harassment isopleth for
all vibratory pile driving activities if a marine mammal is detected
approaching the Level A harassment zone. The largest Level A harassment
isopleth during vibratory pile driving is 181 m, and NMFS anticipates
that 8 Star Alaska will be able to adequately monitor these zones and
shutdown appropriately. NMFS, therefore, does not expect and does
authorize Level A harassment due to vibratory pile driving for any
species. As discussed in the Acoustic Impacts section, due to the
characteristics of noise produced by AHTs (e.g., low-intensity source
levels relative to impact pile driving, and transitory nature of
occurrence of marine mammal species in this area), auditory injury is
not a likely outcome of this activity. Therefore, NMFS does not expect,
and does not authorize, take by Level A harassment due to AHTs engaging
in anchor handling.
To estimate take by Level A harassment from impact pile driving, 8
Star Alaska multiplied the area (km\2\) estimated to be ensonified
above the Level A harassment thresholds (table 8) for each impact pile
driving activity by the duration (days) of that activity by the
calculated density for each species (number of animals/km\2\). Due to
the infrequency of occurrence of fin whales, Pacific white-sided
dolphins, California sea lions, and Steller sea lions in middle Cook
Inlet, NMFS does not expect these species to enter Level A harassment
zones for sufficient duration to incur injury, and is not authorizing
take by Level A harassment of these species.
When attributing take to respective humpback whale stocks for each
year, NMFS assumed that 89 percent of calculated take would be from the
Hawai[revaps]i stock, 10.7 percent would be from the Mexico-North
Pacific stock, and 0.3 percent would be from the Western North Pacific
stock, as described in Wade (2021) (see table 14). Although the number
calculated for the Western North Pacific stock is less than 0.5
animals, NMFS is conservatively attributing one take by Level B
harassment to the Western North Pacific stock of the humpback whale.
For species for which take by Level A harassment is anticipated,
those estimated takes by Level A harassment were subtracted from the
estimated takes by Level B harassment to avoid double-counting the same
exposures as both Level A and Level B harassment. Adjustments are
reflected in table 14.
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To inform both the negligible impact analysis and the small numbers
determination, NMFS assesses the maximum number of takes of marine
mammals that could occur within any given year. In this calculation,
the maximum number of Level A harassment takes in any one year is
summed with the maximum number of Level B harassment takes in any one
year for each species to yield the highest number of estimated take
that could
[[Page 57580]]
occur in any year (table 15) for each stock. Table 15 also depicts the
number of authorized takes relative to the abundance of each stock. We
note here that, as a result of the source level changes for impact
installation of 48-inch steel pipe piles (see Changes From the Proposed
Rule section) and resultant changes to harassment isopleths, the
maximum annual Level A takes of harbor seals changed from 176 in the
proposed rule to 180 in this final rule. This resulted in an increase
of the total maximum annual take of harbor seals from 9,181 in the
proposed rule to 9,185 in this final rule (see table 15).
Table 15--Maximum Annual Take Authorized and as a Percentage of Stock Abundance
----------------------------------------------------------------------------------------------------------------
Maximum
Maximum Maximum annual take
NMFS stock annual annual Maximum as a
Species Stock abundance Level A Level B annual take percentage
harassment harassment of stock
abundance
----------------------------------------------------------------------------------------------------------------
Gray whale................... Eastern North 26,960 0 3 3 0.01
Pacific.
Fin whale.................... Northeast UND 0 2 2 * N/A
Pacific.
Humpback whale............... Hawai'i......... 11,278 2 56 58 0.58
Mexico-North N/A 0 6 6 * N/A
Pacific.
Western North 1,084 0 1 1 0.09
Pacific.
Minke whale.................. Alaska.......... N/A 0 3 3 * N/A
Killer whale................. Eastern North 1,920 0 21 21 1.09
Pacific Alaska
Resident.
Eastern North 587 3.58
Pacific Gulf of
Alaska,
Aleutian
Islands, and
Bering Sea
Transient.
Pacific white-sided dolphin.. North Pacific... 26,880 0 3 3 0.01
Beluga whale................. Cook Inlet...... 331 0 30 30 9.06
Dall's porpoise.............. Alaska.......... UND 0 6 6 * N/A
Harbor porpoise.............. Gulf of Alaska.. 31,046 8 128 136 0.44
California sea lion.......... U.S............. 257,606 0 2 2 <0.01
Steller sea lion............. Western......... 49,837 0 9 9 0.02
Harbor seal.................. Cook Inlet/ 28,411 180 9,005 9,185 32.32
Shelikof Strait.
----------------------------------------------------------------------------------------------------------------
* See small numbers discussion below for additional information.
Mitigation
In order to promulgate a rulemaking under section 101(a)(5)(A) of
the MMPA, NMFS must set forth the permissible methods of taking
pursuant to the activity and other means of effecting the least
practicable adverse 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. NMFS regulations require
applicants for ITAs to include information about the availability and
feasibility (economic and technological) of equipment, methods, and
manner of conducting the activity or other means of effecting the least
practicable adverse impact upon the affected species or stocks and
their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat, as
well as subsistence uses. 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), and the likelihood of effective implementation
(probability implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
The mitigation requirements described below were proposed by 8 Star
Alaska in its adequate and complete application or are the result of
subsequent coordination between NMFS and 8 Star Alaska. 8 Star Alaska
has agreed that all of the mitigation measures are practicable. NMFS
has fully reviewed the specified activities and the mitigation measures
to determine if the mitigation measures will result in the least
practicable adverse impact on marine mammals and their habitat, as
required by the MMPA, and has determined the measures are appropriate.
NMFS describes these mitigation requirements below and has included
them in the regulations.
Shutdown and Clearance Zones
8 Star Alaska will establish shutdown zones for all pile driving
and removal activities. The purpose of a shutdown zone is generally to
define an area within which shutdown of the activity will occur upon
sighting of a marine mammal (or in anticipation of an animal entering
the defined area). Shutdown zones vary based on the activity type and
marine mammal hearing group (see table 16). A minimum shutdown zone of
10 m will be required for all in-water construction activities to avoid
physical interaction with marine mammals. Activity-specific shutdown
zones are based upon the estimated Level A harassment zones and
distances at which 8 Star Alaska expects PSOs will be able to observe
the relevant species, with the exception of CIBW.
For CIBWs, 8 Star Alaska will shut down at the estimated Level B
harassment isopleth, except when that isopleth is farther than the PSOs
can observe. 8 Star Alaska expects that PSOs could observe beluga
whales up to 2-3 km under typical conditions. When shutdown zones are
larger than the distance that PSOs will be able to observe, 8 Star
Alaska is expected to shut down if a beluga whale was observed at any
distance.
[[Page 57581]]
Table 16--Shutdown Zones for Pile Driving
[m]
----------------------------------------------------------------------------------------------------------------
Beluga
Activity LF Non-beluga whales VHF Phocid Otariids
HF \1\
----------------------------------------------------------------------------------------------------------------
Impact Pile Driving
----------------------------------------------------------------------------------------------------------------
Sheet Pile at Mainline MOF.................. 2,000 400 1,000 400 400 400
24-inch Pipe Pile at Marine Terminal MOF.... 1,000 130 1,000 400 400 350
48-inch Pipe Pile at PLF and Marine Terminal 1,300 170 2,160 400 400 400
MOF \2\....................................
60-inch Steel Pipe Pile at PLF.............. 2,000 400 2,160 400 400 400
----------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
Sheet Pile at Mainline MOF and Marine 30 20 4,642 30 40 20
Terminal MOF...............................
24-inch Steel Pipe Pile at Marine Terminal 20 10 7,356 20 30 10
MOF........................................
66-inch Steel Pipe Pile at Marine Terminal 60 30 21,544 50 70 30
MOF........................................
66-inch Steel Pipe Pile x 2 at Marine 90 40 34,146 70 110 40
Terminal MOF...............................
66-inch Steel Pipe Pile with Sheet Pile at 150 60 21,544 120 190 70
Marine Terminal MOF........................
Sheet Pile x 2 at Marine Terminal MOF....... 50 20 7,356 40 60 20
24-inch Steel Pipe Pile with Sheet Pile at 40 20 11,659 30 50 20
Marine Terminal MOF........................
24-inch Steel Pipe Pile x 2 at Marine 70 30 10,000 60 90 30
Terminal MOF...............................
----------------------------------------------------------------------------------------------------------------
\1\ When the shutdown zones for beluga whales are larger than what PSOs can observe, pile driving must be shut
down when beluga whales are visible within any distance.
\2\ Shutdown zones for LF, non-beluga HF, and beluga whales have changed for impact installation of the 48-inch
pipe pile from the proposed rule to this final rule due to changes in Level A and Level B harassment zones
(see table 7).
Pile driving will be halted upon observation of a marine mammal
entering or within the shutdown zone. If pile driving is halted or
delayed due to the presence of a marine mammal, the activity may not
commence or resume until either the animal has voluntarily left and has
been visually confirmed beyond the shutdown zone for 30 minutes (large
whales and beluga whales) or 15 minutes (pinnipeds and other cetaceans)
without re-detection of the animal within the shutdown zone. If work
ceases for more than 30 minutes, the shutdown zones must be cleared
again for 30 minutes prior to reinitiating pile driving. A
determination that the pile driving shutdown zone is clear must be made
during a period of good visibility.
If a PSO(s) can no longer effectively monitor the entirety of the
corresponding shutdown zone during impact pile driving, or at least 2
km during vibratory pile driving, due to environmental conditions
(e.g., fog, rain, wind), pile driving could continue only until the
current segment of the pile is driven; no additional sections of pile
or additional piles could be driven until conditions improve such that
zone could be effectively monitored. If the shutdown zone cannot be
monitored for more than 15 minutes, the entire zone will be cleared
again for 30 minutes prior to reinitiating pile driving.
If a species for which authorization has not been granted or a
species for which authorization has been granted but the authorized
takes have been reached is observed approaching, entering, or within
the corresponding zone, in-water work will be d
[…truncated; see source link]Indexed from Federal Register on December 11, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.