Small Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Construction and Operation of a Liquefied Natural Gas Facility off Massachusetts, 9092-9100 [E8-3021]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 33 (Tuesday, February 19, 2008)]
[Notices]
[Pages 9092-9100]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3021]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA81


Small Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Construction and Operation of a 
Liquefied Natural Gas Facility off Massachusetts

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

ACTION:  Notice; proposed incidental harassment authorization; receipt 
of application for letter of authorization; request for comments and 
information.

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SUMMARY: NMFS received an application from Neptune LNG, L.L.C. 
(Neptune) for take of marine mammals, by Level B harassment, incidental 
to construction and operation of an offshore liquefied natural gas 
(LNG) facility in Massachusetts Bay. Under the Marine Mammal Protection 
Act (MMPA), NMFS is requesting comments on its proposal to issue an 
incidental harassment authorization (IHA) to Neptune to incidentally 
take, by

[[Page 9093]]

harassment, small numbers of several species of marine mammals for a 
period of 1 year. NMFS is also requesting comments on its intent to 
promulgate regulations in 2008, governing the take of marine mammals 
over a 5-year period incidental to the same activities described 
herein.

DATES: Comments and information must be received no later than March 
20, 2008.

ADDRESSES: Written comments on the application should be addressed to: 
P. 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.XA81@noaa.gov. Comments sent via 
email, including all attachments, must not exceed a 10-megabyte file 
size. A copy of the application containing a list of references used in 
this document may be obtained by writing to this address, by 
telephoning the contact listed here (FOR FURTHER INFORMATION CONTACT) 
or online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. 
Documents cited in this notice may be viewed, by appointment, during 
regular business hours, at the aforementioned address.
    The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) 
Final Environmental Impact Statement (Final EIS) on the Neptune LNG 
Deepwater Port License Application is available for viewing at https://
dms.dot.gov under the docket number 22611.

FOR FURTHER INFORMATION CONTACT: Candace Nachman or Ken Hollingshead, 
Office of Protected Resources, NMFS, (301) 713-2289.

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 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 issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings may 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 subsistence uses, and that 
the permissible methods of taking and requirements pertaining to the 
mitigation, monitoring and reporting of such taking 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 establishes an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. Except 
for certain categories of 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 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny the authorization.

Summary of Request

    On December 27, 2007, NMFS received an application from Neptune 
requesting 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 of an offshore LNG facility. Since 
construction will not be completed before expiration of the IHA, 
additional construction and operational activities will need to be 
covered by a future MMPA authorization. Consequently, Neptune's 
application also serves as a request for a 5-year rule governing the 
issuance of letters of authorization for construction and operation of 
the port facility. Neptune is requesting to take several species of 
marine mammals, by Level B (behavioral) harassment, incidental to Port 
operations. During Port operations, the use of thrusters during docking 
will emit sounds that exceed the 120-dB threshold. More detailed 
information regarding Port operations and related effects will be 
described in NMFS' proposed rule Federal Register notice.

Description of the Project

    On March 23, 2007, Neptune received a license to own, construct, 
and operate a deepwater port (Port or Neptune Port) from MARAD. The 
Port, which will be located in Massachusetts Bay, will consist of a 
submerged buoy system to dock specifically designed LNG carriers 
approximately 22 mi (35 km) northeast of Boston, Massachusetts, in 
Federal waters approximately 260 ft (79 m) in depth. The two buoys will 
be separated by a distance of approximately 2.1 mi (3.4 km).
    Neptune will be capable of mooring LNG shuttle and regasification 
vessels (SRVs) with a capacity of approximately 140,000 cubic meters 
(m3). Up to two SRVs will temporarily moor at the proposed deepwater 
port by means of a submerged unloading buoy system. Two separate buoys 
will allow natural gas to be delivered in a continuous flow, without 
interruption, by having a brief overlap between arriving and departing 
SRVs. The annual average throughput capacity will be around 500 million 
standard cubic feet per day (mmscfd) with an initial throughput of 400 
mmscfd, and a peak capacity of approximately 750 mmscfd.
    The SRVs will be equipped to store, transport, and vaporize LNG, 
and to odorize, meter and send out natural gas by means of two 16-in 
(40.6-cm) flexible risers and one 24-in (61-cm) subsea flowline. These 
risers and flowline will lead to a proposed 24-in (61-cm) gas 
transmission pipeline connecting the deepwater port to the existing 30-
in (76.2-cm) Algonquin Hubline\SM\ (Hubline\SM\) located approximately 
9 mi (14.5 km) west of the proposed deepwater port location. The Port 
will have an expected operating life of approximately 20 years. Figure 
1-1 of Neptune's application shows an isometric view of the Port.
    On February 15, 2005, Neptune submitted an application to the USCG 
and MARAD under the Deepwater Port Act for all Federal authorizations 
required for a license to own, construct, and operate a deepwater port 
for the import and regasification of LNG off the coast of 
Massachusetts. 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 and 
regasification of LNG, Neptune has applied for a 1-year IHA and a 
subsequent 5-year letter of authorization for activities commencing in 
June 2008. The following sections

[[Page 9094]]

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 Neptune Project (see ADDRESSES for availability).

Construction Activities

    The offshore installation effort for Neptune will be accomplished 
in the following sequence: mobilize an anchored lay barge (or a dynamic 
positioning derrick barge) and support vessels (i.e., anchor handling 
tugs, oceangoing tugs, and survey/diver support vessel) for the 
Proposed Pipeline Route; install the flowline between the riser 
mainfolds; install the new gas transmission pipeline from the northern 
riser manifold to the transition manifold and the hot tap to the 
HubLine\SM\; install the two riser manifolds and the transition 
manifold; conduct pipeline hydrostatic testing; install the anchor 
piles and the lower portion of the mooring lines; connect the mooring 
lines to the unloading buoys and properly tension the mooring lines; 
and connect the two risers and control umbilicals between the unloading 
buoys and the riser manifolds. Construction will take place between 
June 2008 and June 2009 over approximately seven months. No 
construction activities will occur from December 2008 through April 
2009. See Figure 1-2 of Neptune's application for a full construction 
schedule.

Description of Construction Activities

Flowline and Manifolds

    A pipelaying vessel will install the two rise manifolds and install 
the flowline between the riser manifolds. The flowline will be a 24-in-
diameter (61-cm) line pipe with concrete weight coating and have a 
length of approximately 2.5 mi (4 km). The flowline will be buried to 
the top of the pipe. Trenching will begin approximately 300 ft (91.4 
ft) from the southern riser manifold and end approximately 300 ft (91.4 
ft) from the northern manifold to avoid damaging such structures. 
Transition sections will use suction pumps, jetting machines, airlifts, 
or submersible pumps as required. A post-trenching survey will be 
performed to verify that the proper depth is achieved. Subsequent 
trenching runs might be performed to further lower section that do not 
meet burial depth requirements.

Gas Transmission Pipeline to the HubLine\SM\

    The gas transmission pipeline would begin at the existing 
Hubline\SM\ pipeline approximately 3 mi (4.8 km) east of Marblehead 
Neck, Massachusetts. From this point, the pipeline would extend toward 
the northeast crossing the 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 6.4 mi (10.3 km). The 
transmission line route would continue to the southeast for 
approximately 4.5 mi (7.2 km) crossing state and Federal waters. The 
proposed location of the pipeline is shown in Figure 2-1 of Neptune's 
application.
    The transmission pipe (with concrete weight coating) will be 
transported from the temporary shore base to the operating site. The 
construction sequence for the transmission line will begin with plowing 
of the pipeline trench. A pipelaying vessel will install the 24-in-
diameter (61-cm) pipeline (which will be buried 3 ft (0.9 m) to the top 
of the pipe) from the northern riser manifold to the location of the 
transition manifold near the connection point to the HubLine\SM\. A 
site for the transition manifold will be dredged adjacent to the 
HubLine\SM\, the manifold will be laid in place, and the tie-in 
HubLine\SM\ to the will be completed. The gas transmission line will be 
buried from the transition manifold to the northern riser manifold. 
Trenching will begin approximately 300 ft (91.4 m) from the northern 
riser manifold and end approximately 300 ft (91.4 m) from the 
transition manifold to avoid damaging such structures. A post-trenching 
survey will be performed to verify that the proper depth is achieved. 
Subsequent trenching runs might be performed to further lower sections 
that do not meet burial depth requirements.

Pipeline Hot Tap Installation

    The hot tap fitting, which will not require welding, will provide 
full structural reinforcement where the hole will be cut in the 
HubLine\SM\. The tapping tool and actual hot tap procedure will be 
supplied and supervised by a specialist from the manufacturer. Prior to 
construction of the hot tap, divers will excavate the HubLine\SM\ tie-
in location using suction pumps. The concrete weight coating will be 
removed from the HubLine\SM\ and inspected for suitability of the hot 
tap. The hinged hot tap fitting will then be lowered and opened to fit 
over the 30-in (76.2-cm) HubLine\SM\. The hot tap fitting will then be 
closed around the pipeline, the clam studs and packing flanges will be 
tightened, and the fitting leak will be tested. The HubLine\SM\ then 
will be tapped, and the valves will be closed. The hot tap and exposed 
sections of the HubLine\SM\ will be protected with concrete mats until 
the tie-in to the transition manifold occurs.

Hydrostatic Pipeline Integrity Testing

    There will be one combined gas transmission line and flowline 
hydrotest, including flooding, cleaning, and gauging following pipelay, 
trenching, and burial. The whole system will be in-line and piggable, 
meaning that the pipeline can accept pigs, which are gauging/cleaning 
devices that are driven by pressure from one end of the pipe segment to 
the other without obstruction. The gas transmission line and flowline 
will require approximately three million gallons of filtered seawater, 
including complete flushing of the system and 676 gallons (2,559 
liters) of fluorescent dye (TADCO Tracer Fluro Yellow XL500-50 Liquid 
Dye or an approved equivalent). This volume assumes that no water will 
bypass the pigs and will include approximately 1,700 gallons (6,435 
liters) of water in front of the flooding pig and approximately 1,700 
gallons (6,435 liters) of water between other pigs (reduced from two 
hydrotests to one hydrotest). Flooding will take place from the 
southern riser manifold to the HubLine\SM\ hot tap manifold. All 
hydrotest water discharges will be in Federal waters, near the 
unloading buoys. The total pipeline system will be swab-dried using a 
pig train with slugs or glycol or similar fluid. The water content of 
the successive slugs will be sampled to verify that the total pipeline 
has been properly dried.

Anchor Installation

    The prefabricated anchor piles will be installed offshore with a 
dynamic positioning derrick/anchored barge, anchor-handling vessel, or 
similar offshore construction equipment. The anchor points will be 
within a radius of 1,600 to 3,600 ft (487.7 to 1,097.3 m) of the center 
of each unloading buoy. The anchor system will be installed using 
suction pile anchors.

Unloading Buoys

    The unloading buoys will be offloaded near the designated site. An 
anchor-handling vessel or small derrick barge will connect the mooring 
lines from the anchor points to each unloading buoy and then adjust the 
mooring line tensions to the desired levels.

Risers

    The anchor-handling vessel or small derrick barge also will connect 
the riser and the control umbilical between each unloading buoy and the 
associated riser manifold, complete the hydrostatic

[[Page 9095]]

testing and dewatering of the risers, and test the control umbilicals.

Demobilization

    Upon completion of the offshore construction effort, sidescan sonar 
will be used to check the area. Divers will remove construction debris 
from the ocean floor. All construction equipment will leave the site.
Construction Vessels
    The derrick/lay barge, anchor-handling vessels, and survey/diver 
support vessel will each make two trips (one round trip) to and from 
the area of origin (likely the Gulf of Mexico) and will stay on station 
for the majority of the construction period. The supply vessels (or 
oceangoing tugs with cargo barges) and crew/survey vessel will make 
regular trips between the construction sites and mainly the port of 
Gloucester (approximately 8 mi (12.9 km)). During project installation, 
the supply vessel will make approximately 102 trips (51 round trips), 
and the crew/survey vessel will make approximately 720 trips (360 round 
trips) for a combined total of 822 construction-support-related 
transits (411 round trips).
    All of the construction and support vessels will be transiting 
Massachusetts Bay en route to the Port. While transiting to and from 
the construction sites, the supply vessel and crew/survey vessel will 
travel at approximately 10 knots (18.5 km/hr). While transiting to and 
from the Gulf of Mexico, the derrick/lay barge and anchor handling 
vessels will travel up to 12 and 14 knots (22.2 and 25.9 km/hr), 
respectively, but will operate either in place or at very slow speeds 
during construction. The survey/diver support vessel will travel at 
speeds up to 10 knots (18.5 km/hr) transiting to and from the 
construction area and between dive sites.
    Materials, including unloading buoys, mooring lines, risers, and 
control umbilicals, will be transported from the shore-based storage 
area to the operating site on deck cargo barges pulled by oceangoing 
tugs. Cargo barges will transport the concrete-coated line pipe and 
manifolds to the operating site.
    Approved construction procedures will be delivered to each 
construction vessel, and a kick-off meeting to review construction 
procedures, health and safety procedures, and environmental limitations 
will be held with key personnel prior to starting each construction 
activity.
Construction Sound
    Underwater acoustic analyses were completed for activities related 
to all aspects of Neptune construction. Activities considered to be 
potential sound sources during construction include: installation 
(plowing) of flowline and main transmission pipeline routes; lowering 
of materials (pipe, anchors, and chains); and installation of the 
suction pile anchors.
    Construction-related activities for the Port and the pipeline will 
generate sound exceeding the 120-dB threshold for continuous and 
intermittent noise at the source. The loudest source of underwater 
noise during construction of the Neptune Port will be the use of 
thrusters for dynamic positioning.

Marine Mammals Affected by the Activity

    Marine mammal species that potentially occur within the Neptune 
facility impact area include several species of cetaceans and 
pinnipeds: North Atlantic right whale, blue whale, fin whale, sei 
whale, minke whale, humpback whale, killer whale, long-finned pilot 
whale, sperm whale, Atlantic white-beaked dolphin, Atlantic white-sided 
dolphin, bottlenose dolphin, common dolphin, harbor porpoise, Risso's 
dolphin, striped dolphin, gray seal, harbor seal, harp seal, and hooded 
seal. Table 3-1 in the IHA application outlines the marine mammal 
species that occur in Massachusetts Bay and the likelihood of 
occurrence of each species. Information on those species that may be 
impacted by this activity are discussed in detail in the MARAD/USCG 
Final EIS on the Neptune 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 the 
NMFS Stock Assessment Reports (Waring et al., 2007), which is available 
at: https://www.nefsc.noaa.gov/nefsc/publications/tm/tm201/.
    In addition to the 16 species listed in Table 3-1 of Neptune's 
application, Massachusetts Bay is considered an extralimital habitat 
for ten other cetacean species, or their presence has only been 
recorded from strandings (Cardoza et al., 1999). The following six 
species of beaked whales are all pelagic and recorded mostly as 
strandings the northern bottlenose whale (Hyperoodon ampullatus), 
Cuvier's beaked whale (Ziphius cavirostris), Sowerby's beaked whale 
(Mesoplodon bidens), Blainville's beaked whale (M. densirostris), 
Gervais' beaked whale (M. europaeus), and true's beaked whale (M. 
mirus). Vagrants include the beluga whale (Delphinapterus leucas), a 
northern species with rare vagrants reported as far south as Long 
Island (Katona et al., 1993); the pantropical spotted dolphin (Stenella 
attenuata) and false killer whale (Pseudorca crassidens), which are 
primarily tropical species with rare sightings in Massachusetts waters 
(Cardoza et al., 1999); and the pygmy sperm whale (Kogia breviceps), 
which is generally an offshore species that occasionally wanders 
inshore. These vagrant species are not considered further in the 
analysis.

Potential Effects on Marine Mammals

    The effects of sound on marine mammals are highly variable and can 
be categorized as follows (based on Richardson et al., 1995): (1) The 
sound 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 sound may be 
audible but not strong enough to elicit any overt behavioral response; 
(3) The sound 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 sound 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 sound 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 sound, it is possible that there could be 
sound-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

[[Page 9096]]

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 tissue associated with organs vital for hearing, 
sound production, respiration, and other functions. This trauma may 
include minor to severe hemorrhage.
    Construction and operation of the Neptune Port will occur 
consecutively, with no overlap in activities. During construction, the 
project activities will occur over a 2-year period with sound from Port 
and pipeline construction causing some possible disturbance to small 
numbers of both baleen and toothed whales. Pinnipeds are unlikely to be 
present during summer and will not be affected. The installation of the 
suction piles will produce only low levels of sound during the 
construction period and will not increase the numbers of animals 
affected. Modeling results indicate that noise levels would be below 90 
dB re 1 microPa within 0.2 mi (0.3 km) of the source.
    During construction of the Port and pipeline, underwater sound 
levels will be temporarily elevated. These elevated sound levels may 
cause some species to temporarily disperse from or avoid construction 
areas, but they are expected to return shortly after construction is 
completed.
    The likelihood of a vessel strike of a marine mammal during pipe 
laying and trenching operations is low since equipment will be towed at 
very slow speeds (approximately 5 ft (1.5 m) per minute). Any whales 
foraging near the bottom would be able to avoid collision or 
interaction with the equipment and displacement would be temporary for 
the duration of the plow pass.

Estimates of Take by Harassment

    There are three general types of sounds recognized by NMFS: 
continuous, intermittent (or transient), and pulsive. Sounds of short 
duration that are produced intermittently or at regular intervals, such 
as sounds from pile driving, are classified as ``pulsed.'' Sounds 
produced for extended periods, such as sound from generators, are 
classified as ``continuous.'' Sounds from moving sources, such as 
ships, can be continuous, but for an animal at a given location, these 
sounds are ``transient'' (i.e., increasing in level as the ship 
approaches and then diminishing as it moves away). Neither the 
construction nor operation of the Port will cause pulsive sound 
activities, including pile driving, seismic activities, or blasting.
    The sound sources of potential concern are continuous and 
intermittent sound sources, including underwater noise generated during 
pipeline/flowline construction. Both continuous and intermittent noise 
sources are subject to NMFS' 120 dB re 1 microPa threshold for 
determining levels of continuous underwater noise that may result in 
the disturbance of marine mammals.

Construction-related Underwater Sound Effects

     Pipe-laying activities will generate continuous but 
transient sound and will likely result in variable sound levels during 
the construction period. Depending on water depth, the 120-dB contour 
during pipe-laying activities will extend from the source (the Port) in 
varying directions from 3.8 to 5.9 nm (7 to 10.9 km), encompassing an 
area ranging from 37 to 47 nm\2\ for the flowline at the Port and will 
extend from the pipeline route out 3.5 to 4.1 nm (6.5 to 7.6 km), 
encompassing an area from 35 to 44 nm\2\ for the pipeline route.
     Installation of the suction pile anchors at the Port will 
produce only low levels of underwater sound with no levels above the 
120-dB criterion for continuous sound. The 120-dB threshold would not 
be exceeded, and the 90-dB contour would occur only out to 300-1,000 ft 
(91.4-305 m) from the sound source. (See Appendix B of Neptune's 
application for a more detailed description.)
    The basis for Neptune's ``take'' estimate is the number of marine 
mammals that potentially could be exposed to sound levels in excess of 
120 dB. Typically, this is determined by applying the modeled zone of 
influence (e.g., the area ensonified by the 120-dB contour) to the 
seasonal use (density) of the area by marine mammals and correcting for 
seasonal duration of sound-generating activities and estimated duration 
of individual activities when the maximum sound-generating activities 
are intermittent to occasional. Nearly all of the required information 
is readily available in the MARAD/USCG Final EIS, with the exception of 
marine mammal density estimates for the project area.
    For the assessment of the biological noise effects of the Neptune 
Port construction and operation, LGL Limited (LGL; 2005 and 2006) 
evaluated the marine mammal density data available from the Cetacean 
and Turtle Assessment Program (1982) and the U.S. Navy's (USN) Marine 
Resources Assessment (MRA) for the Northeast Operating Areas (Dept. of 
the Navy, 2005). The results and methodologies used by both surveys are 
discussed in detail in Appendix B of Neptune's application.
    Using the results from the USN (2005) geospatial analysis model, 
LGL developed average density-indices for marine mammals known to occur 
in the proposed project area. The LGL analysis assumed that the USN-
adopted method of converting linear density-indices into areal density 
estimates was reasonable and assumed that the highest numbers of marine 
mammals in the density-index ranges would be present during Port 
construction and operations. Table 6-1 in the IHA application provides 
estimated densities for Massachusetts Bay. LGL cautions that the linear 
data identified by the USN in its MRA (2005) provide an index of 
abundance based on all of the usable available data. To convert the 
linear data into densities for the purpose of assessing the underwater 
sound effects of the construction and operation of the Neptune Port, it 
was assumed that the effective survey width was a 0.3-mi (0.5-km) strip 
on each side of the survey vehicle. Thus, each linear kilometer of 
survey would encompass an area of 1 km\2\. This is a gross 
oversimplification of reality. For most whale species, individuals are 
sighted well beyond the assumed distance of 0.3-mi (0.5 km) on each 
side of the trackline. Thus, the adopted approach overestimates the 
actual numbers of animals per square kilometer because the linear 
estimates actually include animals beyond the 0.3-mi (0.5-km) strip 
width. However, all surveys fail to detect a portion of the animals 
that are actually present on the surface or underwater. Therefore, the 
approach adopted here accounts for an unknown fraction of the missed 
animals. Because these biases cannot be quantified, it is important to 
treat the following numerical assessments as approximations.
    For construction-related effects, Neptune is requesting take of 
eight cetacean species. Table 6-1 in the IHA application and Table 1 
here provide Neptune's estimate of the number of marine mammals that 
could potentially be harassed during Port construction activities.

[[Page 9097]]



------------------------------------------------------------------------
                                                        Requested Take
                                                          Levels for
                      Species                            Construction
                                                          Activities
------------------------------------------------------------------------
             North Atlantic right whale                               4
                   Humpback whale                                     5
                     Fin whale                                        3
                     Sei whale                                        3
                    Minke whale                                       1
              Long-finned pilot whale                                44
          Atlantic white-sided dolphin\1\                            43
                  Harbor porpoise1                                   23
------------------------------------------------------------------------
Table 1. Requested take levels for marine mammals in Massachusetts Bay
  from construction of the Neptune Port
\1\ Dolphin distribution is generally patchy and with a few large pods
  being present rather than an even distribution.

    Based on weekly construction reports submitted to NMFS by another 
LNG facility in Massachusetts Bay, the take levels requested by Neptune 
seem a bit low. It is likely based on the observer data and further 
analysis, the numbers that would be authorized in the final IHA may be 
slightly higher than those in this notice of proposed IHA. NMFS 
biologists will analyze area density, the area to be ensonified to 160 
dB, and the number of days that construction activities will occur in 
order to derive more accurate take numbers during the time of Port 
construction. However, the numbers are expected to be small based on 
population sizes.

Potential Impact on Habitat from Port Construction

    Construction of the Neptune Port and pipeline will affect marine 
mammal habitat in several ways: seafloor disturbance, increased 
turbidity, and generation of additional underwater sound in the area. 
Proposed construction activities will temporarily disturb 418 acres 
(1.7 km\2\) of seafloor (11 acres (0.04 km\2\) at the Port, 85 acres 
(0.3 km\2\) along the pipeline route, and an estimated 322 acres (1.3 
km\2\) due to anchoring of construction and installation vessels). Of 
the proposed construction activities, pipeline installation, including 
trenching, plowing, jetting, and backfill, is expected to generate the 
most disturbance of bottom sediments. Sediment transport modeling 
conducted by Neptune indicates that initial turbidity from pipeline 
installation could reach 100 milligrams per liter (mg/L) but will 
subside to 20 mg/L after 4 hours. Turbidity associated with the 
flowline and hot-tap will be considerably less and also will settle 
within hours of the work being completed. Resettled sediments also will 
constitute to seafloor disturbance. When re-suspended sediments 
resettle, they reduce growth, reproduction, and survival rates of 
benthic organisms, and in extreme cases, smother benthic flora and 
fauna. Plankton will not be affected by resettled sediment. The project 
area is largely devoid of vegetation and consists of sand, silt, clay, 
or mixtures of the three.
    Recovery of soft-bottom benthic communities impacted by project 
installation is expected to be similar to the recovery of the soft 
habitat associated with the construction of the HubLine\SM\ (Algonquin 
Gas Transmission L.L.C., 2004). Post-construction monitoring of the 
HubLine\SM\ indicates that areas that were bucket-dredged showed the 
least disturbance. Displaced organisms will return shortly after 
construction ceases, and disrupted communities will easily re-colonize 
from surrounding communities of similar organisms. Similarly, 
disturbance to hard-bottom pebble/cobble and piled boulder habitat is 
not expected to be significant. Some organisms could be temporarily 
displaced from existing shelter, thereby exposing them to increased 
predation, but the overall structural integrity of these areas will not 
be reduced (Auster and Langton, 1998).
    Short-term impacts on phytoplankton, zooplankton (holoplankton), 
and planktonic fish and shellfish eggs and larvae (meroplankton) will 
occur as a result of the project. Turbidity associated with Port and 
pipeline installation will result in temporary direct impacts on 
productivity, growth, and development. Phytoplankton and zooplankton 
abundance will be greatest during the summer construction schedule. 
Fish eggs and larvae are present in the project area throughout the 
year. Different species of fish and invertebrate eggs and larvae will 
be affected by the different construction schedules.
    The temporary disturbance of benthic habitat from trenching for and 
burial of the transmission pipeline will result in direct, minor, 
adverse impacts from the dispersion of fish from the area and the 
burying or crushing of shellfish. In the short-term, there will be a 
temporary, indirect, and beneficial impact from exposing benthic food 
sources. Seafloor disturbance could also occur as a result of 
resettling of suspended sediments during installation and construction 
of the proposed Port and pipeline. Redeposited sediments will 
potentially reduce viability of demersal fish eggs and growth, 
reproduction, and survival rates of benthic shellfish. In extreme 
cases, resettled sediments could smother benthic shellfish, although 
many will be able to burrow vertically through resettled sediments.
    Construction activities will not create long-term habitat changes, 
and marine mammals displaced by the disturbance to the seafloor are 
expected to return soon after construction ceases. Marine mammals also 
could be indirectly affected if benthic prey species were displaced or 
destroyed by construction activities. Affected species are expected to 
recover soon after construction ceases and will represent only a small 
portion of food available to marine mammals in the area.

Marine Mammal Mitigation, Monitoring, and Reporting

Port Construction Minimization Measures

General
    Construction activities will be limited to a May through November 
time frame so that acoustic disturbance to the endangered North 
Atlantic right whale can largely be avoided.
Proposed Visual Monitoring Program
    The Neptune Project will employ two marine mammal observers (MMOs) 
on each lay barge, bury barge, and diving support vessel 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, one 
secondary) are responsible for visually locating marine mammals 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. All observers will receive NMFS-
approved MMO training and be approved in advance by NMFS after review 
of their resumes.
    The MMOs will be on duty at all times when each vessel is moving 
and at selected periods when the vessel is idle, including when other 
vessels move around the construction lay barge. The MMOs 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 mi (0.8 km) during clear weather conditions for the 
shipboard observers. The MMO will scan the ocean surface by eye for a 
minimum of 40 minutes every hour. All sightings will be recorded in 
marine

[[Page 9098]]

mammal field sighting logs. Observations of marine mammals will be 
identified to species or the lowest taxanomic level and their relative 
position will be recorded. Night vision devices will be standard 
equipment for monitoring during low-light hours and at night.
    During all phases of construction, MMOs will be required to scan 
for and report all marine mammal sightings to the vessel captain. The 
captain will then alert the environmental coordinator that a marine 
mammal is near the construction area. The MMO will have the authority 
to bring the vessel to idle or to temporarily suspend operations if a 
baleen whale is seen within 0.6 mi (1 km) of the moving pipelay vessel 
or construction area. The MMO or environmental coordinator will 
determine whether there is a potential for harm to an individual animal 
and will be charged with responsibility for determining when it is safe 
to resume activity. A vessel will not increase power again until the 
marine mammal(s) leave(s) the area or has/have not been sighted for 30 
minutes. The vessel will then power up slowly.
    Construction and support vessels will be required to display lights 
when operating at night, and deck lights will be required to illuminate 
work areas. However, use of lights will be limited to areas where work 
is actually occurring, and all other lights will be extinguished. 
Lights will be downshielded to illuminate the deck and will not 
intentionally illuminate surrounding waters, so as not to attract 
whales or their prey to the area.
Distance and Noise Level for Cut-Off
    (1) During construction, if a marine mammal is detected within 0.5 
mi (0.8 km) of a 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 vessels will cease any movement in the 
construction area if a marine mammal other than a right whale is 
sighted within or approaching to a distance of 100 yd (91 m) from the 
operating construction vessel. Construction vessels will cease any 
movement in the construction area if a right whale is sighted within or 
approaching to a distance of 500 yd (457 m) from the operating 
construction vessel. Vessels transiting the construction area such as 
pipe haul barge tugs will also be required to maintain these separation 
distances. Activities will cease within these safety radii in order to 
avoid injury or mortality of any marine mammal.
    (3) Construction vessels will cease all activities that emit sounds 
reaching a received level of 120 dB re 1 microPa or higher at 100 yd 
(91 m) if a marine mammal other than a right whale is sighted within or 
approaching to this distance, or if a right whale is sighted within or 
approaching to a distance of 500 yd (457 m), from the operating 
construction vessel. The back-calculated source level, based on the 
most conservative cylindrical model of acoustic energy spreading, is 
estimated to be 139 dB re 1 microPa. Activities will cease within these 
safety radii in order to avoid injury or mortality of any marine 
mammal.
    (4) Construction may resume after the marine mammal is positively 
reconfirmed outside the established zones (either 500 yd (457 m) or 100 
yd (91 m), depending upon species).
Vessel Strike Avoidance
    (1) While under way, all construction vessels will remain 0.6 mi (1 
km) away from right whales and all other whales to the extent possible 
and 100 yd (91 m) away from all other marine mammals to the extent 
physically feasible given navigational constraints as required by NMFS.
    (2) MMOs will direct a moving vessel to slow to idle if a baleen 
whale is seen within 0.6 mi (1 km) of the vessel.
    (3) All construction vessels 300 gross tons or greater will 
maintain a speed of 10 knots (18.5 km/hr) or less. Vessels less than 
300 gross tons carrying supplies or crew between the shore and the 
construction site must contact the appropriate authority or the 
construction site before leaving shore for reports of recent right 
whale sighting and, consistent with navigation safety, restrict speeds 
to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of any recent 
sighting location.
    (4) Vessels transiting through the Cape Cod Canal and Cape Cod Bay 
(CCB) between January 1 and May 15 will reduce speeds to 10 knots (18.5 
km/hr) or less, follow the recommended routes charted by NOAA to reduce 
interactions between right whales and shipping traffic, and avoid 
aggregations of right whales in the eastern portion of CCB. To the 
extent practicable, pipe deliveries will be avoided during the January 
to May time frame. In the unlikely event the Canal is closed during 
construction, the pipe haul barges will transit around Cape Cod 
following the Boston Traffic Separation Scheme and all measures for the 
SRVs when transiting to the Port (see Appendix D of Neptune's 
application for Port Operation Minimization Measures).
    (5) Construction and support vessels will transit at 10 knots or 
less in the following seasons and areas:
     Southeast U.S. Seasonal Management Area (SMA) from 
November 15 through April 15, which is bounded by the shoreline, 
31[deg] 27' N. (i.e., the northern edge of the Mandatory Ship Reporting 
System (MSRS) boundary) to the north, 29[deg] 45' N. to the south, and 
80[deg] 51.6' W. (i.e., the eastern edge of the MSRS boundary);
     Mid-Atlantic SMAs from November 1 through April 30, which 
encompass the waters within a 30 nm (55.6 km) area with an epicenter at 
the midpoint of the COLREG demarcation line crossing the entry into the 
following designated ports or bays: (a) Ports of New York/New Jersey; 
(b) Delaware Bay (Ports of Philadelphia and Wilmington); (c) Entrance 
to the Chesapeake Bay (Ports of Hampton Roads and Baltimore) (d) Ports 
of Morehead City and Beaufort, North Carolina; (e) Port of Wilmington, 
North Carolina; (f) Port of Georgetown, South Carolina; (g) Port of 
Charleston, South Carolina; and (h) Port of Savannah, Georgia;
     CCB SMA from January 1 through May 15, which includes all 
waters in CCB, extending to all shorelines of the Bay, with a northern 
boundary of 42[deg] 12' N.;
     Off Race Point SMA year round, which is bounded by 
straight lines connecting the following coordinates in the order 
stated:
    42[deg] 30' N. 70[deg] 30' W.
    42[deg] 30' N. 69[deg] 45' W.
    41[deg] 40' N. 69[deg] 45' W.
    41[deg] 40' N. 69[deg] 57' W.
    42[deg] 04.8' N. 70[deg] 10' W.
    42[deg] 12' N. 70[deg] 15' W.
    42[deg] 12' N. 70[deg] 30' W.
    42[deg] 30' N. 70[deg] 30' W.; and
     Great South Channel SMA from April 1 through July 31, 
which is bounded by straight lines connecting the following coordinates 
in the order stated:
    42[deg] 30' N. 69[deg] 45' W.
    42[deg] 30' N. 67[deg] 27' W.
    42[deg] 09' N. 67[deg] 08.4' W.
    41[deg] 00' N. 69[deg] 05' W.
    41[deg] 40' N. 69[deg] 45' W.
    42[deg] 30' N. 69[deg] 45' W.

Passive Acoustic Monitoring (PAM) Program

    In addition to visual monitoring, Neptune will utilize a PAM system 
to

[[Page 9099]]

aid in the monitoring and detection of vocalizing marine mammals in the 
proposed project area. Neptune has engaged personnel from NMFS and the 
Stellwagen Bank National Marine Sanctuary (SBNMS) regarding available 
passive acoustic technology that could be used to enhance the PAM 
program.
    The proposed PAM system will be capable of detecting, localizing 
(range and bearing), and classifying marine mammals in real-time. When 
combined with an action and communication plan, Neptune will have the 
capability to make timely decisions and undertake steps to minimize the 
potential for collisions between marine mammals and construction 
vessels. The PAM system proposed for the Neptune project will involve 
the installation of an array of auto-detection monitoring buoys moored 
at regular intervals in a circle surrounding the site of the terminal 
and associated pipeline construction. Buoys will be arranged to 
maximize auto detection and provide localization capability. With the 
existing technology, this would require six buoys moored every 5 nm 
(9.3 km) to provide some overlap in coverage. The buoys are designed to 
monitor the sound output from construction activities to ensure 
predicted levels are not exceeded and to detect the presence of vocally 
active marine mammals. Passive acoustic devices will be actively 
monitored for detections by a NMFS-approved bioacoustic technician.
Other Measures
    Mesh grates will be used during flooding and hydrostatic testing of 
the pipeline and flowlines to minimize impingement and entrainment of 
marine mammals. Operations involving excessively noisy equipment will 
``ramp-up'' sound sources, as long as this does not jeopardize the 
safety of vessels or construction workers, allowing whales a chance to 
leave the area before sounds reach maximum levels. Contractors will be 
required to utilize vessel-quieting technologies that minimize sound. 
Contractors will be required to maintain individual Spill Prevention, 
Control, and Containment Plans in place for construction vessels during 
construction.
    An environmental coordinator with experience coordinating projects 
to monitor and minimize impacts to marine mammals will be onsite to 
coordinate all issues concerning marine protected species, following 
all of the latest real-time marine mammal movements. The coordinator 
will work to ensure that environmental standards are adhered to and 
adverse interactions between project equipment and marine mammals do 
not occur.

Reporting

    During construction, weekly status reports will be provided to NMFS 
utilizing standardized reporting forms. In addition, the Neptune Port 
Project area is within the 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. During all phases of project 
construction, sightings of any injured or dead marine mammals will be 
reported immediately to the USCG and NMFS, regardless of whether the 
injury or death is caused by project activities. Any right whale 
sightings will be reported to the NMFS Sighting Advisory System.
    During all phases of Port construction, sightings of any injured or 
dead marine mammals must be reported to NMFS immediately, regardless of 
whether or not the injury or death was caused by project activities. 
Sightings of injured or dead marine mammals not associated with project 
activities can be reported to the USCG on VHF Channel 16 or to NMFS 
Stranding and Entanglement Hotline. In addition, if the injury or death 
was caused by a project vessel (e.g., SRV, support vessel, or 
construction vessel), USCG must be notified immediately, and a full 
report must be provided to NMFS, Northeast Regional Office. The report 
must include the following information: (1) the time, date, and 
location (latitude/longitude) of the incident; (2) the name and type of 
vessel involved; (3) the vessel's speed during the incident; (4) a 
description of the incident; (5) water depth; (6) environmental 
conditions (e.g., wind speed and direction, sea state, cloud cover, and 
visibility); (7) the species identification or description of the 
animal; and (8) the fate of the animal.
    An annual report on marine mammal monitoring and mitigation will be 
submitted to NMFS Office of Protected Resources and NMFS Northeast 
Regional Office within 90 days after the expiration of the IHA. The 
weekly reports and the annual report should include data collected for 
each distinct marine mammal species observed in the project area in the 
Massachusetts Bay during the period of LNG facility construction. 
Description of marine mammal behavior, overall numbers of individuals 
observed, frequency of observation, and any behavioral changes and the 
context of the changes relative to construction activities shall also 
be included in the annual report. Additional information that will be 
recorded during construction and contained in the reports include: date 
and time of marine mammal detections (visually or acoustically), 
weather conditions, species identification, approximate distance from 
the source, activity of the vessel or at the construction site when a 
marine mammal is sighted, and whether or not thrusters were in use and 
how many at the time of the sighting.

Endangered Species Act (ESA)

    On January 12, 2007, NMFS concluded consultation with MARAD and 
USCG under section 7 of the ESA on the proposed construction and 
operation of the Neptune LNG facility. The finding of that consultation 
was that the construction and operation of the Neptune 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 Neptune 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 Neptune.

National Environmental Policy Act

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the proposed Neptune LNG Deepwater Port. A notice of 
availability was published by MARAD on November 2, 2006 (71 FR 64606). 
The Final EIS/EIR provides detailed information on the proposed project 
facilities, construction methods, and analysis of potential impacts on 
marine mammals. The Final EIS/EIR is incorporated as part of the MMPA 
record of decision on this action.
    NMFS was a cooperating agency in the preparation of the EIS based 
on a Memorandum of Understanding related to the Licensing of Deepwater 
Ports entered into by the U.S. Department of Commerce along with 10 
other government agencies. 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 Neptune Project.

[[Page 9100]]

Preliminary Determinations

    NMFS has preliminarily determined that the impact of construction 
of the Neptune 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 Neptune LNG facility and 
associated pipeline during its construction. 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. The provision requiring that the activity not have an 
unmitigable adverse impact on the availability of the affected species 
or stock for subsistence use does not apply for this proposed action.
    This preliminary determination is supported by measures described 
earlier 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). The likelihood of such 
effects 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, the estimated number of marine mammals to be 
harassed is small.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Neptune for the taking (by Level B harassment only) 
during construction of the Neptune Port provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: February 12, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-3021 Filed 2-15-08; 8:45 am]
BILLING CODE 3510-22-S