Small Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Construction and Operation of an LNG Facility Off Massachusetts, 11328-11335 [E7-4538]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 48 (Tuesday, March 13, 2007)]
[Notices]
[Pages 11328-11335]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-4538]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 121406C]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Construction and Operation of an 
LNG Facility Off Massachusetts

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of receipt of application and proposed incidental take 
authorization; request for comments.

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SUMMARY: NMFS has received an application from Northeast Gateway Energy 
Bridge\TM\ L.L.C. (Northeast Gateway) and Algonquin Gas Transmission, 
L.L.C. (Algonquin) for an Incidental Harassment Authorization (IHA) to 
take small numbers of marine mammals, by harassment, incidental to 
construction and operation of an offshore liquefied natural gas (LNG) 
facility. Under the Marine Mammal Protection Act (MMPA), NMFS is 
requesting comments on its proposal to issue an authorization to 
Northeast Gateway/Algonquin to incidentally take, by harassment, small 
numbers of several species of marine mammals for a period of 1 year.

DATES: Comments and information must be received no later than April 
12, 2007.

ADDRESSES: Written comments on the application should be addressed to: 
Michael Payne, Chief, Permits, Conservation and Education Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225. The mailbox address 
for providing email comments is PR1.121406C@noaa.gov. Comments sent via 
e-mail, including all attachments, must not exceed a 10-megabyte file 
size. A copy of the application may be obtained by writing to this 
address or by telephoning the contact listed here and is also available 
at: https://

[[Page 11329]]

www.nmfs.noaa.gov/pr/permits/incidental.htmiha.
    The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) 
Final Environmental Impact Statement (Final EIS) on the Northeast 
Gateway Energy Bridge LNG Deepwater Port license application is 
available for viewing at https://dms.dot.gov under the docket number 
22219.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2289, ext 128.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking 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 issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    An authorization shall be granted if NMFS finds that the taking 
will have a negligible impact on the species or stock(s), will not have 
an unmitigable adverse impact on the availability of the species or 
stock(s) for certain subsistence uses, and that the permissible methods 
of taking and requirements pertaining to the mitigation, monitoring and 
reporting of such takings are set forth. NMFS has defined ``negligible 
impact'' in 50 CFR 216.103 as ''...an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Except with respect to certain activities not pertinent here, 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].
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
marine mammals. Within 45 days of the close of the comment period, NMFS 
must either issue or deny issuance of the authorization.

Summary of Request

    On October 30, 2006, NMFS received an application from Northeast 
Gateway and Algonquin for an IHA to take small numbers of several 
species of marine mammals, by Level B (behavioral) harassment, for a 
period of 1 year, incidental to construction and operation of an 
offshore LNG facility.

Description of the Project

    Northeast Gateway is proposing to construct, own, and operate the 
Northeast Gateway Deepwater Port (Port or Northeast Port) to import LNG 
into the New England region. The Port, which will be located in 
Massachusetts Bay, will consist of a submerged buoy system to dock 
specifically designed LNG carriers approximately 13 mi (21 km) offshore 
of Massachusetts in federal waters approximately 270 to 290 ft (82 to 
88 m) in depth.
    This facility will deliver regasified LNG to onshore markets via 
new and existing pipeline facilities owned and operated by Algonquin. 
Algonquin will build and operate a new, 16.06-mile (25.8 km) long, 24-
in (61-cm) diameter natural gas pipeline (called the Northeast Gateway 
Pipeline Lateral or Pipeline Lateral) to connect the Port to 
Algonquin's existing offshore natural gas pipeline system in 
Massachusetts Bay, called the HubLine.
    The Port will consist of two subsea Submerged Turret Loading 
(STL\TM\) buoys, each with a flexible riser assembly and a manifold 
connecting the riser assembly, via a steel flowline, to the subsea 
Pipeline Lateral. Northeast Gateway will utilize vessels from its 
current fleet of specially designed Energy-Bridge Regasification 
Vessels (EBRVs), each capable of transporting approximately 2.9 billion 
ft\3\ (Bcf; 82 million m\3\) of natural gas condensed to 4.9 million 
ft\3\ (138,000 m\3\) of LNG. Northeast Gateway will add vessels to its 
fleet that will have a cargo capacity of approximately 151,000 m\3\. 
The proposed mooring system to be installed at the Port is designed to 
handle both the existing vessels and any of the larger capacity vessels 
that may come into service in the future. The EBRVs will dock to the 
STLTM buoys which will serve as both the single-point mooring system 
for the vessels and the delivery conduit for natural gas. Each of the 
STL\TM\ buoys will be secured to the seafloor using a series of suction 
anchors and a combination of chain/cable anchor lines.
    The Pipeline Lateral joins the existing HubLine pipeline in waters 
approximately 3 mi (4.8 km) to the east of Marblehead Neck in 
Marblehead, Massachusetts. From the HubLine connection, the Pipeline 
Lateral route extends towards the northeast, crossing the outer reaches 
of territorial waters of the Town of Marblehead, the City of Salem, the 
City of Beverly, and the Town of Manchester-by-the-Sea for 
approximately 6.3 mi (10.1 km). The Pipeline Lateral route curves to 
the east and southeast, exiting Manchester-by-the-Sea territorial 
waters and entering waters regulated by the Commonwealth of 
Massachusetts. The Pipeline Lateral route continues to the south/
southeast for approximately 6.2 mi (10 km), where it exits state waters 
and enters federal waters. The Pipeline Lateral route then extends to 
the south for another approximately 3.5 mi (5.7 km), terminating at the 
Port.
    On June 13, 2005, Northeast Gateway submitted an application to the 
USCG and MARAD seeking a federal license under the Deep-Water Port Act 
to own, construct, and operate a deepwater port for the import and 
regasification of LNG in Massachusetts Bay, off of the coast of 
Massachusetts. Simultaneous with this filing, Algonquin filed a Natural 
Gas Act Section 7(c) application with the Federal Energy Regulatory 
Commission for a Certificate of Public Convenience and Necessity for 
the Pipeline Lateral that would connect the Northeast Gateway Port with 
the existing HubLine natural gas pipeline for transmission throughout 
New England. Because, as described later in this document, there is a 
potential for marine mammals to be taken, by harassment, incidental to 
construction of the facility and its pipeline and by the transport of 
LNG, Northeast Gateway/Algonquin have applied for a 1-year IHA for 
activities commencing around May, 2007. The following sections briefly 
describe the activities that might harass marine mammals. Detailed 
information on these activities can be found in the MARAD/USCG Final 
EIS on the Northeast Gateway Project (see ADDRESSES for availability).
Construction Activities
    Construction of the Pipeline Lateral and Northeast Gateway Port 
includes the installation of the ``hot tap'' on the existing HubLine 
pipeline; the lay, burial, and commissioning of the Pipeline Lateral 
commencing at the hot tap and extending to a location near the

[[Page 11330]]

Northeast Port; and the installation of the Northeast Port buoys, 
risers, pipeline end manifolds (PLEMs), and flowlines. The Port and 
Pipeline Lateral will be constructed during the May to November, 2007 
timeframe.
Pipeline Construction
    In general, traditional marine pipeline construction vessels and 
equipment will be utilized to construct the Pipeline Lateral. The 
pipeline will be buried such that the top of the pipeline is a minimum 
of 1.5 ft (0.46 m) below the seabed with a target burial depth of 3 ft 
(.92 m). In limited areas and at any sites not feasible to plow due to 
unforeseen subsurface conditions, the pipeline will be laid on the 
surface and armored with rock or concrete mats. Pipeline trenching 
operations in the marine environment will cause a temporary re-
suspension of some bottom sediments off the seafloor and into the water 
column. The resulting sediment plumes are exposed to currents that have 
the potential to carry the plume short distances into the surrounding 
environment. Impacts to the water column, resulting from the presence 
of the sediment plume, are temporary and localized due to the nature of 
the plowing and backfill plowing activities, which are the least 
sediment-disturbing means of creating a trench for the pipeline and 
returning cover over the pipe in the trench. The spatial extent is also 
limited due to the short time period that material stays in the water 
column and rapid dilution in an open ocean setting. Jetting will only 
occur in short, discrete sections and will therefore only create 
localized and temporary plumes; however, these plumes would be more 
concentrated and larger than for plowing and backfill plowing.
    Delivery of pipe may require transiting through the Cape Cod Canal 
(Canal). If required, vessels will follow the westernmost route through 
Cape Cod Bay to avoid identified aggregations of whales in the eastern 
portion of Cape Cod Bay. To the extent practicable, pipe deliveries 
will be avoided during the January to May timeframe. In the unlikely 
event the Canal is closed during construction, the pipe haul barges 
would come around Cape Cod following the traffic separation scheme and 
appropriate measures agreed to for the EBRVs when transiting to the 
Port.
    The construction barges, which are used to fabricate and lay the 
pipeline on the seafloor, pull the pipeline plow along the laid 
pipeline, and pull the backfill plow along the trenched pipeline, will 
be positioned and advanced along the route using a series of anchors 
and cables. The anchors are positioned using anchor handling tugs, and 
mid-line buoys are used to help hold much of the cable off the 
seafloor. In addition to the barges and tugs, pipeline construction 
will require the use of pipe-haul barges pulled by tugs, crew and 
supply vessels, survey vessels, and dive support vessels (DSV). The 
types of vessels that are expected to be used in construction of the 
Pipeline Lateral are described in Table 1-1 in the IHA application.
    The operation of the Dynamically Positioned (DP) DSVs differs from 
the operation of the pipe lay/plow construction vessels in that this 
vessel will primarily hold its position at a single location. The 
vessel will periodically relocate from one position to another, but 
during the process of performing diving activities, the vessel is 
required to maintain its position at a single location. The DSV 
maintains its position or stationing with the use of thrusters. The 
importance of maintaining the position of the vessel cannot be 
compromised. As a DSV, most of its time will be spent providing the 
surface support for a diver or divers operating on the seabed. 
According to Northeast Gateway, the safety of the diver is paramount to 
the operation of the vessel and its station-keeping capabilities.
    In general, the DP vessels are fitted with three main types of 
thrusters: main propellers, tunnel thrusters, and azimuth thrusters. 
Main propellers, either single or twin screw, are provided in a similar 
fashion to conventional vessels. In addition to main propellers, a DP 
vessel must have well-positioned thrusters to control position. 
Typically, a conventional mono-hull type DP vessel will have six 
thrusters, three at the bow and three aft. Forward thrusters tend to be 
tunnel thrusters, operating athwart ships. Two or three tunnel 
thrusters are usually fitted in the bow. Stern tunnel thrusters are 
common, operating together but controlled individually, as are azimuth 
or compass thrusters aft. Azimuth thrusters project beneath the bottom 
of the vessel and can be rotated to provide thrust in any direction.
    Sounds generated by vessel and barge movements and the thrusters of 
DP vessels will be the dominant source of underwater sound during 
pipeline construction activities. Auxiliary equipment including onboard 
generators and compressors, winches, tensioners, cranes, pumps, and 
sonar and survey equipment are considered secondary in comparison, by 
at least one order of magnitude (Northeast Gateway, 2006). The sound 
energy generated by onboard mechanical equipment is effectively 
dampened by the hull of the vessel, in comparison to thruster and 
propeller sounds, which are occurring directly in the water. Sounds 
generated by construction activity occurring above water, including 
impact sounds, are subject to a large transmission loss when moving 
across the water-air interface from the in-air source to the underwater 
receiver due to the impedance mismatch between these two fluids.
Port Construction
    For each buoy, construction of the Northeast Port will involve the 
installation of the steel flowline section and eight mooring anchors, 
followed by installation of the PLEM, the STL buoy, and related parts. 
Conventional marine pipeline construction and installation techniques 
will be employed with consideration of site-specific conditions and 
requirements at the mooring locations. Northeast Gateway notes that 
development of the Gulf Gateway Deepwater Port and several projects in 
the North Sea, has provided them with extensive experience with these 
construction techniques.
    The proposed design for the STL\TM\ buoy incorporates eight mooring 
anchors in a spoked wheel-shaped array to hold the buoy in place. Final 
anchor placement will be accomplished using a DP anchor handling 
vessel. The preferred installation method for each of the STL\TM\ buoys 
involves transporting the buoy from an onshore mobilization site and 
pre-connecting all eight wire rope segments to the buoy while it is 
onboard the DSV. The buoy is placed in the water and temporarily 
secured with synthetic lines to two of the mooring chains already 
deployed on the seafloor during the suction anchor installation. When 
all eight mooring lines are connected by divers, the buoy is released 
to float at its submerged draft.
    The PLEM will either be lowered and embedded similar to the method 
used to install the mooring anchors or lowered and placed on the seabed 
with penetration accomplished by the dead weight of the PLEM. The PLEM 
will be set in place by an anchor-moored derrick barge. The PLEM end of 
the riser will be lowered to the seafloor, where divers will attach it 
to the PLEM.
    The types of vessels that will be used in construction of the Port 
are described in Table 1-2 in the IHA application.
Construction Noise
    As described in Section 1.1.1 of the IHA application, for the 
pipeline construction scenario, sounds generated by vessel and barge 
movements and the thrusters of DP vessels will be the

[[Page 11331]]

dominant source of underwater sound during Port construction 
activities.
    Acoustic analyses were completed for activities related to 
construction of the Port and Pipeline Lateral. Activities considered 
potential noise sources include trenching (plowing and jetting at 
isolated locations), lowering of materials (pipe, anchors, chains, 
PLEM, and spool pieces), and vessel operations (engine-driven vessel 
movements or maintaining station by use of thrusters). Of these 
potential noise sources, vessel movements and thruster use for dynamic 
positioning are the dominant sources by at least one order of 
magnitude. Simulated vessels were positioned at two discrete locations 
along the proposed pipeline alignment closest to the Stellwagen Bank 
National Marine Sanctuary (SBNMS), as well as centered on the easterly 
Port buoy location. (See Appendix A of the IHA application for a 
discussion of the acoustic modeling methodology used for this 
analysis.) Figure 1-1 in the IHA application presents the results of 
the acoustic modeling for construction vessels operating at two depth 
locations along the Pipeline Lateral (40 m and 80 m (131 ft and 262 
ft)) with source levels ranging from 140 to 160 dBL re 1 microPa at 1 m 
for construction vessel movements to 180 dBL re 1 microPa at 1 m for 
vessel thrusters used for dynamic positioning (L means linear broadband 
levels). Because sound propagation depends on water depth, the isopleth 
distances will vary with construction activities occurring in shallower 
depths resulting in increased impact distances. Figure 1-2 in the IHA 
application shows a similar acoustic impact analysis of construction 
vessels operating simultaneously at the Port with the same estimated 
construction source levels. The resultant contour plots (shown in 
Figure 1-2) present the worst-case instantaneous received sound level, 
the dominant source being the use of vessel thrusters.
    Thrusters used during construction activities are operated 
intermittently and only for short durations of time. For a water column 
depth of 80 m (262 ft), representative of the immediate area near the 
Deepwater Port, the linear distance to the 120 dBL isopleth would 
extend 2.56 km (1.6 mi), resulting in an area > 120 dBL ensonification 
of 20.6 km\2\. For a water column depth of 40 m (131 ft), 
representative of northern sections of the Pipeline Lateral, the linear 
distance to the 120 dBL isopleth is 3.31 km (2.0 mi) resulting in an 
area of esonification [gteqt]120 dB of 34.4 km\2\. The non-continuous 
short-term sounds generated by construction of the Pipeline Lateral 
will be above 120 dB, where there is a potential for Level B harassment 
from intermittent sound sources. Sound levels in excess of the 160 dB 
impulse criteria (defined as a brief sound with a fast rise time) will 
be very localized and will not extend beyond the immediate area where 
construction activities are occurring for both the Pipeline Lateral and 
Deepwater Port construction scenarios.
Operations
    As an EBRV makes its final approach to the Port, vessel speed will 
gradually be reduced to 3 knots (5.5 km/hr) at 1.86 mi (3 km) out to 
less than 1 knot (1.8 km/hr) at a distance of 1,640 ft (500 m) from the 
Port. When an EBRV arrives at the Port, it will retrieve one of the two 
permanently anchored submerged STL\TM\ buoys. It will make final 
connection to the buoy through a series of engine and bow and stern 
thruster actions. The EBRV will require the use of thrusters for 
dynamic positioning during docking procedure. Typically, the docking 
procedure is completed over a 10- to 30-min period, with the thrusters 
activated as necessary for short periods of time in second bursts, not 
a continuous sound source. Once connected to the buoy, the EBRV will 
begin vaporizing the LNG into its natural gaseous state using the 
onboard regasification system. As the LNG is regasified, natural gas 
will be transferred at pipeline pressures off the EBRV through the 
STL\TM\ buoy and flexible riser via a steel flowline leading to the 
connecting Pipeline Lateral. When the LNG vessel is on the buoy, it 
will be allowed to ``weathervane'' on the single-point mooring system 
(i.e., move with wind and water currents); therefore, thrusters will 
not be used to maintain a stationary position.
Port Operation Noise
    Underwater sound generated during Port operation is limited to 
regasification and EBRV maneuvering during coupling and decoupling with 
STL buoys. Sound propagation calculations (see section 1.1.3 of 
Northeast Gateway's IHA application for methodology and acoustic 
concepts) used source data including measurements collected on August 6 
to 9, 2006, from the Excelsior EBRV while it was moored at the 
operational Gulf Gateway Deepwater Port located 116 mi (187 km) 
offshore in the Gulf of Mexico. The overall purpose of this survey was 
to verify measurements completed during the first sound survey 
completed March 21 to 25, 2005, when the Excelsior first visited the 
Port, and to further document sound levels during additional 
operational and EBRV maneuvering conditions, including the use of stern 
and bow thrusters required for dynamic positioning during coupling. The 
data were used to confirm theoretical calculations employed in 
supplemental submittals (for the USCG Draft EIS on this action) to 
assess sound energy generated during closed-loop versus open-loop 
regasification operations. In addition to normalizing complex sound 
components into source terms, data were used to confirm EBRV sound 
source energy generation and propagation characteristics, and the 
identification of near field and far sound fields under different 
operating and EBRV maneuvering procedures. These data were used to 
model underwater sound propagation at the Northeast Gateway site. The 
results of the field survey are provided as underwater sound source 
pressure levels (dB re 1 microPA at 1 m) as follows:
    (1) Sound levels during closed-loop regasification ranged from 104 
to 110 dBL. Maximum levels during steady state operations were 108 dBL.
    (2) Sound levels during coupling operations were dominated by the 
periodic use of the bow and stern thrusters and ranged from 160 to 170 
dBL.
    Figures 1-3 and 1-4 in the IHA application present the net acoustic 
impact of one EBRV operating at the Deepwater Port. Figure 1-3 in the 
IHA application presents the maximum received underwater sound levels 
impact during closed-loop EBRV regasification with a steady-state 
source level of 108 dBL re 1 microPa at 1 m. As shown in those figures, 
there is no area of ensonification above 120-dBL, where Level B 
harassment could potentially occur from intermittent sound sources. 
Figure 1-4 in the IHA application presents maximum underwater sound 
levels during EBRV maneuvering and coupling using a source level of 170 
dBL re 1 microPa at 1 m (thrusters used for dynamic positioning). 
Thrusters are operated intermittently and only for relatively short 
durations of time. The resultant area within the critical 120-dB 
isopleth is less than 1 km2 with the linear distance from the sound 
source to the critical isopleths extending 430 m (1,411 ft). The area 
of the 160-dB isopleth is very localized; it will not extend beyond the 
immediate area surrounding the EBRV while coupling operations are 
occurring.
Maintenance
    The specified design life of the Port is about 40 years, with the 
exception of the anchors, mooring chain/rope, and riser/umbilical 
assemblies, which are based

[[Page 11332]]

on a maintenance-free design life of 20 years. The buoy pick-up system 
components are considered consumable and will be inspected following 
each buoy connection, and replaced (from inside the STL compartment 
during the normal cargo discharge period) as deemed necessary. The 
underwater components of the Deepwater Port will be inspected once 
yearly using either divers or remotely operated vehicles to inspect and 
record the condition of the various STL\TM\ system components. These 
activities will be conducted using the Port's normal support vessel, 
and to the extent possible will coincide with planned weekly visits to 
the Port. Helicopters will not be used for marker line maintenance 
inspections. Northeast Gateway concludes that no noise sources related 
to the Project are likely to exceed ambient conditions during routine 
maintenance activities.

Marine Mammals Affected by the Activity

    Marine mammal species that potentially occur within the NE Gateway 
facility impact area include several species of cetaceans and 
pinnipeds: Atlantic white-sided dolphin, bottlenose dolphin, short-
beaked common dolphin, harbor porpoise, killer whale, long-finned pilot 
whale, Risso's dolphin, striped dolphin, white-beaked dolphin, sperm 
whale, minke whale, blue whale, humpback whale, North Atlantic right 
whale, sei whale, gray seal, harbor seal, hooded seal, and harp seal. 
Information on those species that may be impacted by this activity are 
discussed in detail in the USCG Final EIS on the Northeast Gateway LNG 
proposal. Please refer to that document for more information on these 
species and potential impacts from construction and operation of this 
LNG facility. In addition, general information on these marine mammal 
species can also be found in Wursig et al. (2000) and in the NMFS Stock 
Assessment Reports (Waring, 2006). This latter document is available 
at: https://www.nefsc.noaa.gov/nefsc/publications/tm/tm194/.

Potential Effects on Marine Mammals

    The effects of noise on marine mammals are highly variable, and can 
be categorized as follows (based on Richardson et al., 1995): (1) The 
noise may be too weak to be heard at the location of the animal (i.e., 
lower than the prevailing ambient noise level, the hearing threshold of 
the animal at relevant frequencies, or both); (2) The noise may be 
audible but not strong enough to elicit any overt behavioral response; 
(3) The noise may elicit reactions of variable conspicuousness and 
variable relevance to the well being of the marine mammal; these can 
range from temporary alert responses to active avoidance reactions such 
as vacating an area at least until the noise event ceases; (4) Upon 
repeated exposure, a marine mammal may exhibit diminishing 
responsiveness (habituation), or disturbance effects may persist; the 
latter is most likely with sounds that are highly variable in 
characteristics, infrequent and unpredictable in occurrence, and 
associated with situations that a marine mammal perceives as a threat; 
(5) Any anthropogenic noise that is strong enough to be heard has the 
potential to reduce (mask) the ability of a marine mammal to hear 
natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise; 
(6) If mammals remain in an area because it is important for feeding, 
breeding or some other biologically important purpose even though there 
is chronic exposure to noise, it is possible that there could be noise-
induced physiological stress; this might in turn have negative effects 
on the well-being or reproduction of the animals involved; and (7) Very 
strong sounds have the potential to cause temporary or permanent 
reduction in hearing sensitivity. In terrestrial mammals, and 
presumably marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any temporary threshold 
shift (TTS) in its hearing ability. For transient sounds, the sound 
level necessary to cause TTS is inversely related to the duration of 
the sound. Received sound levels must be even higher for there to be 
risk of permanent hearing impairment. In addition, intense acoustic (or 
explosive events) may cause trauma to tissues associated with organs 
vital for hearing, sound production, respiration and other functions. 
This trauma may include minor to severe hemorrhage.
    Northeast Gateway states that the potential impacts to marine 
mammals associated with sound propagation from vessel movements, pipe 
laying and installation of the Port, anchors, chains and PLEMs could be 
the temporary and short-term displacement of seals and whales from 
within the 120-dB zones ensonified by these noise sources. However, 
from the most precautionarily conservative estimates of both marine 
mammal densities in the Project area and the size of the 120-dB zone of 
(noise) influence (ZOI), the calculated number of individual marine 
mammals for each species that could potentially be harassed annually 
is: one right whale (1.23), seven dolphins, and three seals. 
Consequently, Northeast Gateway/Algonquin do not believe construction 
and operation of the Northeast Gateway Deepwater Port Project would 
constitute a population level harassment threat to local marine mammal 
stocks, but could result in small numbers of individual marine mammals 
being harassed as enumerated in this document.

Estimates of Take by Harassment

    There are three general kinds of sounds recognized by NMFS: 
continuous (such as shipping sounds), intermittent (such as vibratory 
pile driving sounds), and impulse. No impulse noise activities, such as 
blasting or standard pile driving, are associated with this project, 
thus NMFS' 160-dB threshold criterion for estimating Level B harassment 
from impulse sounds is not applicable for this activity. The noise 
sources of potential concern are regasification/offloading (which is a 
continuous sound) and dynamic positioning of vessels using thrusters 
(an intermittent sound). Based on research by Malme et al. (1983, 
1984), for both continuous and intermittent sound sources, Level B 
harassment is presumed to begin at 120-dB.
    None of the continuous sound sources associated with construction 
or operation of the Northeast Gateway Project is expected to exceed the 
120-dB threshold for Level B harassment. However, the intermittent 
noises from thruster use associated with dynamic positioning of vessels 
during either construction or operation (docking) may occasionally 
exceed this 120-dB threshold. Consequently, thruster use has the 
potential for a ``take'' by harassment of any marine mammal occurring 
with a zone of ensonification (greater than 120 dB) emanating from the 
sound source. This area, known as the ZOI, has a variable maximum 
radius dependent on water depth and associated differences in 
transmission loss (see Sections 1.1.3 and 1.2.1 in the IHA application 
for more detail):
     For shallow-water depths (40 m (131 ft)) representative of 
the northern segment of the Pipeline Lateral construction, the 120-dB 
radius is 3.31 km (2 mi)and associated ZOI is 34 km\2\.
     For moderate depths (80 m (262 ft)) representative of the 
Deepwater Port location and Pipeline Lateral segment nearest SBNMS, the 
120-dB radius is 2.56 km (1.6 mi) and associated ZOI is 21 km\2\.
     For deeper depths (120 m (394 ft)) representative of the 
deepest waters of

[[Page 11333]]

the Project analysis area, the radius is 2.18 km (1.4 mi) and 
associated ZOI is 15 km\2\.
    The basis for Northeast Gateway's ``take'' estimate is the number 
of marine mammals that would be exposed to sound levels in excess of 
120 dB. Typically this is determined by multiplying the ZOI by local 
marine mammal density estimates, and then correcting for seasonal use 
by marine mammals, seasonal duration of noise-generating activities, 
and estimated duration of individual activities when the maximum noise-
generating activities are intermittent or occasional. In the case of 
data gaps, a conservative approach was taken by Northeast Gateway to 
ensure the potential number of takes is not underestimated, as 
described next.
    There are no valid marine mammal density estimates for the actual 
Northeast Gateway Project area. Studies in the nearest area 
(approximately 20 to 30 km (12 to 19 mi) south) where intensive marine 
mammal surveys have occurred (Cape Cod Bay) focused on individual right 
whales; no density estimates were calculated for other marine mammals. 
However, these Cape Cod Bay surveys, conducted by the Provincetown 
Center for Coastal Studies, involved a 100 percent survey coverage of 
the 1,500 km\2\ Bay (flying 1.5 km-wide strip transects) every 2 weeks 
from January to May for the years 2002 to 2005 (Brown et al. 2002, 
2003; Mayo et al. 2004; Jaquet et al. 2005). Consequently, density 
estimates can be calculated by dividing the number of animals of each 
species recorded by the total trackline surveyed from 2002 through 2005 
(57,500 km (35,729 mi)), then correcting for animals not at the surface 
(roughly 30 percent for species potentially subject to harassment by 
this activity).
    Table 6-1 in the IHA application provides corrected density 
estimates from the Cape Cod Bay studies. Because of the intensity of 
these studies, the near location of these studies to the Deepwater Port 
Project, and bathymetric similarity of the Project area and Cape Cod 
Bay, animal density data from Cape Cod Bay provide an adequate and 
conservative surrogate for marine mammals expected to inhabit the 
Project area. The Cape Cod Bay studies did not record gray seals during 
their aerial surveys, but they did record 352 unidentified seals, some 
of which may be gray seals. Also, many of the 969 harbor seals recorded 
during the surveys were presumably hauled out in large groups. 
Similarly, while 343 Atlantic white-sided dolphins and 83 common 
dolphins were recorded, 2,875 unidentified dolphins were also recorded; 
these were presumably either white-sided or common dolphins (because no 
other delphinid species were recorded), but the exact identity of these 
individuals was not determined. Thus, in a conservative attempt to 
ensure any given species is not underestimated, the unidentified seal 
numbers were added to both the harbor seal and gray seal numbers, and 
the unidentified dolphin numbers were added to both white-sided 
dolphins and common dolphin numbers in the density calculations.
    Although sound transmission loss, and therefore the ZOI, varies 
with water depth, Northeast Gateway provided the most conservative 
estimate of ``take'' by using the largest ZOI (34 km2) in their 
calculations. Table 6-1 in the IHA application provides their estimate 
of the number of marine mammals that could be harassed over the 1-year 
period for the proposed project's IHA.

Potential Impact on Habitat

Construction

    Construction of the Port and Pipeline Lateral will alter marine 
mammal habitat in several ways: disturbance of the seafloor, removal of 
sea water for hydrostatic testing, and generation of additional 
underwater noise. Although approximately 1,042 acres of seafloor (43 
acres for the Port; 999 acres for the Pipeline Lateral) will be 
disturbed during construction, the majority of this impact will be 
temporary. Seafloor disturbance will include plowing to construct a 
trench for the pipeline. The pipelay and plow vessels will be 
maneuvered using a multi-point anchor system. Although the anchor 
system will include mid-line buoys to minimize cable sweep of the 
seafloor, approximately 814 acres may be temporarily affected. Crossing 
of two existing cables will require armoring, a change in substrate 
conditions in an area about 0.14 acres in size.
    Once the lateral and flowlines are installed, about 3,100,000 
gallons of sea water will be withdrawn to be used for hydrostatic 
testing. This volume is small compared to the volume of Massachusetts 
Bay. Although the sea water will be returned to the environment, the 
associated plankton will be unlikely to survive. As circulation 
patterns in the Bay ensure that plankton will be transported into the 
Project area continuously, this hydrostatic test will not affect the 
sustainability of the plankton communities in the Bay.
    Construction of the Port and Pipeline Lateral will result in a 
reduction of benthic productivity in the Project footprint. Once the 
disturbance ceases, the substrate will be available for recruitment of 
benthic organisms. As some of the substrate will be converted from soft 
to artificial hard substrate, the soft-bottom benthic community may be 
replaced with organisms associated with naturally occurring hard 
substrate, such as sponges, hydroids, bryozoans, and associated 
species. In other areas, re-establishment of a benthic community 
similar to that in adjacent areas is expected to take a period of weeks 
to several years.

Operations

    Operation of the Port and Pipeline Lateral will result in long-term 
effects on the marine environment, including alteration of seafloor 
conditions, continued disturbance of the seafloor, regular withdrawal 
of sea water, and regular generation of underwater noise. A small area 
(0.14 acre) along the Pipeline Lateral will be permanently altered 
(armored) at two cable crossings. In addition, the structures 
associated with the Port (flowlines, mooring wire rope and chain, 
suction anchors, and PLEMs) will occupy 4.8 acres of seafloor. An 
additional area of the seafloor of up to 38 acres will be subject to 
disturbance due to chain sweep while the buoys are occupied. The 
benthic community in the up-to 38 acres of soft bottom that may be 
swept by the anchor chains while EBRVs are docked will have limited 
opportunity to recover, so this area will experience a long-term 
reduction in benthic productivity.
    Each EBRV will require the withdrawal of an average of 4.97 million 
gallons per day of sea water for general ship operations during its 8-
day stay at the Port. As with hydrostatic testing, plankton associated 
with the sea water will not likely survive this activity. Based on 
densities of plankton in Massachusetts Bay, it is estimated that sea 
water use during operations will consume, on a daily basis, about 3-200 
x 1,010 phytoplankton cells (about several hundred grams of biomass), 
6.5 x 108 zooplankters (equivalent to about 1.2 kg of copepods), and on 
the order of 30,000 fish eggs and 5,000 fish larvae. Also, the daily 
removal of sea water will reduce the food resources available for 
planktivorous organisms. However, the removal of these species is minor 
and unlikely to affect in a measurable way, the food sources available 
to marine mammals.

[[Page 11334]]

Marine Mammal Mitigation, Monitoring and Reporting

Port Construction Measures

Proposed Visual Program
    The Northeast Gateway Project will employ two qualified marine 
mammal/sea turtle observers on each lay barge, bury barge, and DSV for 
visual shipboard surveys during construction activities. Qualifications 
for these individuals will include direct field experience on a marine 
mammal/sea turtle observation vessel and/or aerial surveys in the 
Atlantic Ocean/Gulf of Mexico. The observers (one primary and one 
secondary) are responsible for visually locating marine mammals and sea 
turtles at the ocean's surface and, to the extent possible, identifying 
the species. The primary observer will act as the identification 
specialist and the secondary observer will serve as data recorder and 
also assist with identification. Both observers will have 
responsibility for monitoring for the presence of marine mammals and 
sea turtles. All observers will receive NMFS-approved marine mammal 
observer training and be approved in advance by NMFS after a review of 
their resume.
    The shipboard observers will monitor the construction area 
beginning at daybreak using 25x power binoculars and/or hand-held 
binoculars, resulting in a conservative effective search range of 0.5 
mile during clear weather conditions for the shipboard observers. The 
observer will scan the ocean surface by eye for a minimum of 40 minutes 
every hour. All sightings will be recorded on marine mammal field 
sighting logs. Observations of marine mammals and sea turtles will be 
identified to species or the lowest taxonomic level and their relative 
position will be recorded.
    During construction, the following procedures will be followed upon 
detection of a marine mammal or sea turtle within 0.5 mi (0.8 km) of 
the construction vessels:
    (1) If any marine mammals or sea turtles are visually detected 
within 0.5 mi (0.8 km) of the construction vessel, the vessel 
superintendent or on-deck supervisor will be notified immediately. The 
vessel's crew will be put on a heightened state of alert. The marine 
mammal will be monitored constantly to determine if it is moving toward 
the construction area. The observer is required to report all North 
Atlantic right whale sightings to NMFS, as soon as possible.
    (2) Construction vessel(s) in the vicinity of the sighting will be 
directed to cease any movement and/or stop noise emitting activities 
that exceed a source level of 120 dB in the event that a right whale 
comes to within 500 yds (457 m) of any operating construction vessel. 
For other cetaceans and sea turtles this distance will be established 
at 100 yds (91 m). Vessels transiting the construction area such as 
pipe haul barge tugs will also be required to maintain these separation 
distances.
    (3) Construction will resume after the marine mammal/sea turtle is 
positively reconfirmed outside the established zones (either 500 yds 
(457 m) or 100 yds (91 m), depending upon species).
Passive Acoustic Monitoring (PAM) Program
    In their IHA application, Northeast Gateway and Algonquin noted 
that they had engaged personnel from NMFS regarding available passive 
acoustic technology that could be utilized to enhance their monitoring 
Program. Northeast Gateway plans to continue its discussions and 
consultations with NMFS personnel to develop the appropriate level of 
inclusion of this technology. At the suggestion of NMFS, Northeast 
Gateway has engaged personnel from the Cornell University Bioacoustics 
Laboratory and the Woods Hole Oceanographic Institute as consulting 
partners to assist with the development of a passive acoustic system.
    More recently, a PAM program has been proposed to be implemented at 
the Northeast Gateway facility. A discussion on that program is 
provided later in this document (see MARAD Record of Decision).
Reporting
    During construction, weekly status reports will be provided to NMFS 
utilizing standardized reporting forms. In addition, the Northeast Port 
Project area is within the Mandatory Ship Reporting Area (MSRA), so all 
construction and support vessels will report their activities to the 
mandatory reporting section of the USCG to remain apprised of North 
Atlantic right whale movements within the area. All vessels entering 
and exiting the MSRA will report their activities to WHALESNORTH.

Port Operation Measures

    All individuals onboard the EBRVs responsible for the navigation 
and lookout duties on the vessel will receive training, a component of 
which will be training on marine mammal sighting/reporting and vessel 
strike avoidance measures. Crew training of EBRV personnel will stress 
individual responsibility for marine mammal awareness and reporting.
    If a marine mammal or sea turtle is sighted by a crew member, an 
immediate notification will be made to the Person-in-Charge on board 
the vessel and the Northeast Port Manager, who will ensure that the 
required reporting procedures are followed.
    The Northeast Gateway Port Project area is within the MSRA, so, 
similar to construction vessels, all EBRVs transiting to and from the 
MSRA will report their activities to the mandatory reporting section of 
the USCG to remain apprised of North Atlantic right whale movements 
within the area. All vessels entering and exiting the MSRA will report 
their activities to WHALESNORTH. Vessel operators will contact the USCG 
by standard procedures. As part of the Deepwater Port docking process, 
EBRV speed will gradually be reduced to approximately 3 knots (5.5 km/
hr) at 1.86 mi (2.99 km) out from the Northeast Port and to less than 1 
knot (1.8 km/hr) at a distance of 1,640 ft (500 m) from the Northeast 
Port.
MARAD Record of Decision
    On February 7, 2007, MARAD issued its Record of Decision on the 
Deepwater Port License Application of Northeast Gateway Energy Bridge 
LLC. In that document, MARAD listed additional measures designed to 
reduce impacts on North Atlantic right whales. These measures, which 
are also described in NMFS' Biological Opinion on this action, include:
    Detection Buoys in Boston Traffic Separation Scheme (TSS): Ten 
near-real-time acoustic detection buoys are to be located in the Boston 
TSS and should remain there at the expense of the licensee (or 
licensees) for the life of the deepwater port (subject to alternative 
technologies that would be approved by NOAA). A cost/benefit analysis 
that evaluates the effectiveness of these mitigation measures will be 
conducted at periodic intervals. Specific speed, visual awareness, and 
reporting provisions will be included in the Operations Manual.
    Use of Boston TSS: Northeast Gateway has voluntarily committed to 
using the Boston TSS on its approach to and departure from the 
deepwater port at the earliest practicable point of transit (subject to 
appropriate discretion of the ship's captain to respond to safety 
concerns or for safety reasons or exigent circumstances) to lower the 
risk of whale strikes.
    Speed Restrictions: Northeast Gateway has voluntarily agreed to 
follow any speed restrictions that may become mandatory for all vessel 
traffic

[[Page 11335]]

and to follow the proposed seasonal restrictions that may be adopted by 
regulation. EBRVs and support vessels will reduce travel speeds to 10 
knots (18.5 km/hr) maximum when transiting to/from the deepwater port 
outside the TSS; vessels will travel at speeds of 10 to 12 knots (18.5-
22 km/hr)(or less) in the vicinity of the deepwater port. EBRVs will 
reduce their transit speeds to 10 to 14 knots (18.5-26 km/hr)(10 knots 
between March 1 and April 30) or if required by NMFS, throughout the 
entire year in the proposed Off Race Point North Atlantic Right Whale 
Ship Strike Management Zone.
    Detection Buoys for Construction: Northeast Gateway will install 
and operate an array of six near-real-time acoustic detection buoys to 
localize vocally active marine mammals relative to construction-related 
sound sources.
    Noise Monitoring: Northeast Gateway will install and operate an 
array of autonomous recording units to monitor and evaluate underwater 
sound output from the project before construction and for at least five 
years of port operation.
    Protected Species: Avoidance Measures: Northeast Gateway will 
consult with NOAA (NMFS and the SBNMS) on harm avoidance for protected 
marine species and resources to include operating restrictions, 
equipment noise reduction, minimizing risk of entanglement, monitoring, 
training, and reporting requirements.
    Construction Restrictions: Northeast Gateway will restrict 
construction activities to the period between May 1 and November 30 so 
that acoustic sound disturbance to the endangered North Atlantic right 
whale can largely be avoided. Wherever practicable, Northeast Gateway 
should integrate studies, research, or surveys into construction or 
operations that maximize detection of whales and sea turtles and better 
determine direct effects of port operations.

Endangered Species Act (ESA)

    On February 5, 2007, NMFS concluded consultation with MARAD and the 
USCG, under section 7 of the ESA, on the proposed construction and 
operation of the Northeast Gateway LNG facility. The finding of that 
consultation was that the construction and operation of the Northeast 
Gateway LNG terminal may adversely affect, but is not likely to 
jeopardize, the continued existence of northern right, humpback, and 
fin whales, and is not likely to adversely affect sperm, sei, or blue 
whales and Kemp's ridley, loggerhead, green or leatherback sea turtles. 
Because the issuance of an IHA to Northeast Gateway under section 
101(a)(5) of the MMPA is a Federal action, NMFS has section 7 
responsibilities for its action. Consultation on the NMFS action will 
be concluded prior to its determination on the issuance of an IHA to 
Northeast Gateway.

National Environmental Policy Act

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the proposed Northeast Gateway Port and Pipeline Lateral. A 
notice of availability was published by MARAD on October 26, 2006 (71 
FR 62657). The Final EIS/EIR provides detailed information on the 
proposed project facilities, construction methods and analysis of 
potential impacts on marine mammal. The Final EIS/EIR is incorporated 
as part of the MMPA record of decision on this action.
    NMFS was a cooperating agency (as defined by the Council on 
Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft 
and Final EISs. NMFS is currently reviewing the Final EIS and will 
either adopt it or prepare its own NEPA document before making a 
determination on the issuance of an IHA for the Northeast Gateway 
Project.

Preliminary Determinations

    NMFS has preliminarily determined that the impact of construction 
and operation of the Northeast Gateway Port Project may result, at 
worst, in a temporary modification in behavior of small numbers of 
certain species of marine mammals that may be in close proximity to the 
Northeast Gateway LNG facility and associated pipeline during its 
construction and subsequent operation. These activities are expected to 
result in some local short-term displacement resulting in no more than 
a negligible impact on the affected species or stocks of marine 
mammals.
    This preliminary determination is supported by measures described 
in this document under ``Marine Mammal Mitigation, Monitoring and 
Reporting,'' and MARAD's Record of Decision (and NMFS' Biological 
Opinion on this action).
    As a result of the described mitigation measures, no take by injury 
or death is requested, anticipated or proposed to be authorized, and 
the potential for temporary or permanent hearing impairment is very 
unlikely due to the relatively low noise levels (and consequently small 
zone of impact) and would be avoided through the incorporation of the 
proposed shut-down mitigation measures mentioned in this document.
    While the number of marine mammals that may be harassed will depend 
on the distribution and abundance of marine mammals in the vicinity of 
the Port construction and operations, the estimated number of marine 
mammals to be harassed is small.

Proposed Authorization

    NMFS proposes to issue an IHA to Northeast Gateway and Algonquin 
for the taking (by Level B harassment) during construction and 
operation of the Northeast Gateway Port, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated. NMFS has preliminarily determined that the proposed 
activity would result in the harassment of small numbers of marine 
mammals; and would have no more than a negligible impact on the 
affected marine mammal stocks.

Information Solicited

    NMFS requests interested persons to submit written comments and 
information concerning this proposed IHA and the IHA application from 
Northeast Gateway (see DATES and ADDRESSES).

    Dated: March 7, 2007.
Angela Somma,
Acting Director,Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E7-4538 Filed 3-12-07; 8:45 am]
BILLING CODE 3510-22-S