Small Takes of Marine Mammals Incidental to Specified Activities; Port of Anchorage Marine Terminal Redevelopment Project, Anchorage, Alaska, 41318-41330 [E8-16489]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 139 (Friday, July 18, 2008)]
[Notices]
[Pages 41318-41330]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16489]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG36


Small Takes of Marine Mammals Incidental to Specified Activities; 
Port of Anchorage Marine Terminal Redevelopment Project, Anchorage, 
Alaska

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

ACTION:  Notice; issuance of incidental harassment authorization.

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SUMMARY:  In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), notification is hereby given that NMFS 
has issued an Incidental Harassment Authorization (IHA), to the Port of 
Anchorage (herein after ``Port'') and the U.S. Department of 
Transportation Maritime Administration (herein after ``MARAD'') to take 
small numbers of marine mammals, by Level B harassment, incidental to 
the first year of construction of its Marine Terminal Redevelopment 
Project (herein after ``Project'') at the Port, Anchorage, Alaska.

DATES: Effective from July 15, 2008 - July 14, 2009.

ADDRESSES:  A copy of the IHA, application, and Environmental 
Assessment (EA) prepared for this action are available by writing to 
Michael Payne, Chief, Permits, Conservation, and Education Division, 
Office of Protected Resources (OPR), National Marine Fisheries Service, 
1315 East-West Highway, Silver Spring, MD 20910-3225, or 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.

FOR FURTHER INFORMATION CONTACT:  Jaclyn Daly or Jolie Harrison, 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 (Secretary) 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) if certain findings are made and 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 certain subsistence uses, 
and if 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.
    Under 50 CFR 216.104(b) of NMFS' implementing regulations for the 
MMPA, NMFS must publish in the Federal Register a notice of a proposed 
IHA or a notice of receipt for a request for the implementation of 
regulations governing the incidental taking. Information gathered 
during the associated comment period is considered by NMFS in 
developing, if appropriate, IHAs and regulations governing the issuance 
of Letters of Authorizations (LOAs) for the proposed activity.

Summary of Request

     On February 20, 2008, NMFS received a complete application from 
the Port and MARAD requesting a one-year IHA to take, by Level B 
harassment, up to 34 Cook Inlet beluga whales (Delphinapterus leucas), 
20 harbor seals (Phoca vitulina), 20 harbor porpoises (Phocoena 
phocoena), and 20 killer whales (Orcinus orca) incidental to the 
Project. The content and proposed mitigation in the application was a 
result of numerous discussions between the applicants and NMFS. 
Harassment to marine mammals could result from exposure to noise from 
pile driving. While dredging and use of other heavy machinery (tugs, 
dump scowls, barge mounted hydraulic excavators or clamshell equipment) 
are also associated with the Project, these activities are not expected 
to result in harassment as marine mammals, in particular beluga whales.
    NMFS prepared an EA for the proposed action which thoroughly 
analyzes and discusses potential impacts on marine mammals and their 
habitat from the Project. Harassment from pile driving associated with 
the Project may result in short-term, mild to moderate behavioral and 
physiological responses. Anticipated behavioral reactions of marine 
mammals include altered headings, fast swimming, changes in dive, 
surfacing, respiration, and feeding patterns, and changes in 
vocalizations. Physiological impacts are expected to be mild stress 
responses. However, NMFS has determined harassment would be limited to 
Level B, will result in a negligible impact to affected marine mammal 
species or stocks, and will not have an unmitigable adverse impact on 
the availability of such species or stock for the taking for 
subsistence purposes.

Specified Activities

    A detailed description of the Project can be found in the 
application and the NMFS prepared EA. However, for purposes of this 
notice, a summary of activities is provided. According to the

[[Page 41319]]

application, the Project is designed to upgrade and expand the Port by 
replacing aging and obsolete structures and provide additional dock and 
backland areas. Located on the east bank of Knik Arm in upper Cook 
Inlet, the 129-acre port is operating at or above sustainable practical 
capacity. The expansion of the Port is necessary to adequately support 
the economic growth of Anchorage and the state of Alaska through 2025. 
The port currently serves 80 percent of Alaska's populated area, and it 
handles over 90 percent of consumer goods sold within the Alaskan 
Railroad distribution area (the Alaska Railroad runs from Seward 
through Anchorage, Denali, and Fairbanks to North Pole, with spurs to 
Whittier and Palmer (locally known as ``The Railbelt'').
    According to the application, the existing dock can no longer be 
widened nor salvaged due to its advanced age and state of disrepair. 
The dock supporting the three cranes today was completed in 1961. Its 
projected life expectancy was 25-30 years; therefore, a new port is in 
order. Construction necessitates use of impact and vibratory pile 
drivers to install open cell sheet, 36 inch steal, and H- piles to 
construct the waterfront bulkhead structure that will facilitate 
increased dock space and the fendering system. In-water pile driving 
would occur between April- October, annually, until the new port is 
completed (2012). The new dock face will include 7,430 ft (2,265 m) of 
vertical sheet pile wharf and 470 ft (143 m) for a dry barge berth; 
however, the entire sheet pile wall will extend 9,893 ft (3,015 m) 
parallel to the shore. The completed marine terminal will include seven 
modern dedicated ship berths; two dedicated barge berths; rail access; 
modern shore-side facilities; equipment to accommodate cruise 
passengers, cement bulk, roll on/roll off and load on/load off cargo, 
containers, general cargo, Stryker Brigade Combat Team deployments, 
general cargo on barges, and petroleum, oils, and lubricants; and 
additional land area to support expanding military and commercial 
operations.
    Installation of the sheet pile is a multi-phased process and 
requires the use of impact and vibratory pile driving. The process is 
as follows: (1) a template defining the curvature and shape of the cell 
face is placed on the ocean floor in the correct location; (2) the 
template is secured in place using up to four temporary pipe-piles, 
approximate driving time for each pile is 5 minutes; (3) adjacent sheet 
piles are then placed and ``stabbed'' over approximately half of the 
template, less if tidal currents are high at the time. Stabbing 
involves driving the pile a nominally short distance at reduced hammer 
energy to set the bottom of the pile deep enough into the soil to hold 
it in place while the next adjacent pile is started. Stabbing depths 
would be less than five feet, at reduced vibratory hammer energy; (4) 
once a pile-group is ``set'' on the template, the piles are driven in a 
stair-step method advancing one pile five feet, then moving the hammer 
to the next pile, advancing that pile five feet, moving to the next and 
so on. This process is repeated at 5-foot intervals without resting 
until all the sheet piles are at design depth. Advancing the sheet pile 
in increments reduces driving strain on the interlocks and provides 
better vertical placement control; (5) the next sheet pile-group is 
then ``set'' on the template with reduced energy in the adjacent 
location and the process repeated; and (6) tail walls that are driven 
in-water may similarly be driven in groups as well. During the 
``stabbing'' process, the Port has indicated that shut-down is not 
practicable. If the sheet pile wall is not secured in the ground before 
ceasing pile driving, it could easily break free, especially during 
periods of stronger currents. A free-floating sheet pile is both 
dangerous to the construction workers and could become a navigational 
hazard. Therefore, mitigation measures would apply to all pile driving 
operations except during the stabbing phase when a low, reduced energy 
vibratory hammer is used.
    The Port has indicated that approximately 550 hours of impact pile 
driving and 368 hours of vibratory pile driving will occur during the 
IHA timeframe. Using the best scientific data available, NMFS has 
determined that Level A harassment could occur if a pinniped or 
cetacean is exposed to sound levels at or above 190 and 180 dB re 1 
micro Pascal, respectively. For pulsed sounds, such as impact pile 
driving, exposure to sound levels at or above 160 dB re 1 micro Pascal 
(but below Level A harassment thresholds) could result in Level B 
harassment. For continuous noise (non-pulsed), such a vibratory pile 
driving, the Level B harassment threshold is 120 dB re 1 micro Pascal. 
Based on an acoustic study conducted at the Port in October 2007, it is 
expected that average sound levels of impact driving will be 
approximately 177 dB re 1 micro Pascal at 19m in the frequency range of 
100-15,000 Hz and vibratory pile driving sounds will be approximately 
162 dB re 1 micro Pascal at 20m in the frequency range of 400-2,500 Hz. 
Further empirical data were collected to identify Level A and Level B 
harassment isopleths (Figure 1). For impact pile driving, the 190, 180, 
and 160 dB re 1 micro Pascal isopleths are approximately 10m, 20m, and 
350m from the pile hammer. Vibratory driving isopleths for 190 and 180 
dB re 1 micro Pascal are both less than 10m, and 120 dB re 1 micro 
Pascal is 800m from the pile hammer. For comparative purposes, the 
distance across the Arm from the Port to Port MacKenzie (on the west 
side of Knik Arm) is approximately 4.88 km. The distance to the west 
bank directly across the Arm from the Port is approximately 4.17 km.

[[Page 41320]]

[GRAPHIC] [TIFF OMITTED] TN18JY08.673

BILLING CODE 3510-22[nash]C

Marine Mammals and Habitat Affected by the Activity

    Cook Inlet is utilized by several species of marine mammals; 
however, upper Cook Inlet marine mammal species diversity is limited. 
The Cook Inlet beluga whale is the most prevalent marine mammal in the 
action area. Harbor seals, harbor porpoises, and killer whales are also 
found in upper Cook Inlet but sporadically and in low density. While 
Steller's sea lions (Eumetopias jubatus) are present in lower Cook 
Inlet to some degree, there have been no reported sightings of this 
species in Knik Arm. Only four Steller sea lions have been sighted 
since 1999 in the Susitina Rive mouth area (Barbara Mahoney, personal 
communications, June 20, 2008); therefore, Steller's sea lions are not 
anticipated to be affected by the Project and will not be included in 
any MMPA authorization for the proposed action nor considered in more 
detail in this analysis. More information on Alaskan marine mammals can 
be found at (https://www.fakr.noaa.gov/protectedresources.

Beluga Whales

    A detailed description of Cook Inlet beluga whales can be found in 
the application, EA, and the proposed IHA Federal Register notice (73 
FR 14443, March 18, 2008) and summaries of status, distribution, 
habitat use, and hearing are provided here. The Cook Inlet beluga whale 
population is a discrete population comprised of approximately 375 
individuals (NMFS, unpubl. data) as of 2008. This stock was listed as 
depleted under the MMPA and was proposed for listing as endangered 
under the ESA on April 20, 2007 (72 FR 19854). On April 22, 2008, NMFS 
published a notice in the Federal Register announcing a 6-month 
extension (to October 20, 2008 ) on the determination for listing the 
Cook Inlet beluga whale DPS as endangered under the ESA (73 FR 21578).
    In general, Cook Inlet beluga whales utilize Knik Arm during the 
spring, summer, and fall months and retreat to lower, ice-free portions 
of Cook Inlet during the winter. From April through November whales 
concentrate at river mouths and tidal flat areas, moving in and out 
with the tides (Rugh et al., 2000). In Knik Arm, beluga whales 
generally are observed arriving in May and often use the area all 
summer, feeding on the various salmon runs and moving with the tides. 
There is more intensive use of Knik Arm in August and through the fall, 
coinciding with the coho salmon run. Whales will gather in Eagle Bay 
(approximately 16 km north of the Port) and elsewhere on the east side 
of Knik Arm on the low tide. During high tides, beluga whales are 
generally concentrated around prime feeding habitats in the upper 
reaches of the Arm. No prime feeding habitats are located directly 
around the Port.
    Beluga whales frequently move in and out of deeper water and 
between feeding, calving, and nursery areas throughout the mid and 
upper Inlet. Open access to and between these areas is important. Knik 
Arm, Turnagain Arm, Chickaloon River and the Susitna River delta areas 
are used extensively. Besides localized prime foraging areas, it is 
possible these sites provide for other biological needs such as calving 
or molting but this has not been confirmed. Such use of habitat has 
been reported elsewhere in Alaska, although there is not adequate 
information to identify these calving and molting habitat attributes to 
Knik Arm. Further, only the upper reaches of Knik Arm, beginning at 
Eagle Bay, have been identified as prime foraging area, not the area 
around the Port.
    Opportunistic beluga whale sightings at or near the Port have been 
reported for years to the NMFS Alaska Region (AKR) (NMFS, unpubl. 
data). Sighting data have been collected by Port

[[Page 41321]]

authorities on land or crew aboard commercial vessels (e.g., tugs). 
Although behavioral data were not collected for all sightings, 
available reports indicate that traveling is the prevalent behavior of 
beluga whales around the Port. Out of the 60 sightings that had 
behavioral data associated with them, 47 groups, including individuals, 
were reported traveling. Other behaviors noted included feeding (n=4), 
possible feeding (n=2), transversing Knik Arm (n=3), and association 
with vessels (n=4) where n is equal to the number of groups sighted. 
Interestingly, two groups associated with vessels were highly vocal and 
the crew reported vocalization resonating though the tug. Based on 
these data, habitat use around the Port from April- October has been 
determined to be primarily traveling. Whales are using this area as a 
corridor to access the upper reaches of Knik Arm where fish runs are 
prevalent in the summer months. Dedicated beluga whale surveys around 
the Port have also indicated that the greatest use of habitat around 
the Port is during or around low tide (Funk et al., 2005, Ramos et al., 
2006, Cornick and Kendall, 2007).
    Beluga whales are characterized as mid-frequency odontocetes but 
are able to hear an unusually wide range of frequencies, covering most 
natural and man-made sounds. The hearing frequency range of this 
species is believed to be between 40 Hz-150 kHz with keen hearing at 
10-100 kHz. Above 100 kHz, sensitivity drops off very quickly (Au, 
1993), and below 16 kHz the decrease in sensitivity is more gradual at 
approximately 10 dB per octave (White et al., 1978; Awbrey et al., 
1988). Peak sensitivity range of this species is outside of most 
industrial sounds but studies have shown that beluga whales can hear 
and react to such low frequency noise, dependent upon intensity (i.e., 
decibels). However, masking of their high frequency communication and 
echolocation signals is likely limited when exposed to lower frequency 
sounds (Thomas et al., 1990). In addition, beluga whales are well 
adapted to change frequencies and intensities of their own calls to 
compensate for masking effects (Au et al., 1985, Lesege et al., 1999, 
Scheifele et al., 2005).

Harbor Seals

    Harbor seals are not listed as ``depleted'' under the MMPA or 
listed as ``threatened'' or ``endangered'' under the ESA. Harbor seals 
haul out on rocks, reefs, beaches, and drifting glacial ice, and feed 
in marine, estuaries, and occasionally fresh waters (Bigg 1969, 1981). 
In Alaska, commonly eaten prey include walleye, pollock, Pacific cod, 
capelin, eulachon, Pacific herring, salmon, octopus, and squid. They 
are generally non-migratory, with local movements associated with such 
factors as tides, weather, season, food availability, and reproduction; 
however, some long-distance movements have been recorded from tagged 
animals with juveniles traveling farther than adults (Lowry et al. 
2001). The major haul-out sites for harbor seals are located in Lower 
Cook Inlet with the closest identified harbor seal haul-out site to the 
Port approximately 25 miles south along Chickaloon Bay in the southern 
portion of Turnagain Arm. However, harbor seals have been observed 
occasionally around the Port. In 2004-2005, 22 harbor seal sightings 
were reported over a 13-month period comprising of 14,000 survey hours. 
From these surveys, it is estimated that harbor seals occur in a 
density of approximately 1.7 animals per month in Knik Arm (LGL unpubl. 
data).
    Pinniped hearing is dependent upon the medium (i.e., air or water) 
in which they receive the sound. Most pinniped species have essentially 
flat audiograms from 1 kHz to 30 50 kHz with thresholds between 60 and 
85 dB re 1 micro Pascal. At frequencies below 1 kHz, thresholds 
increase with decreasing frequency (Kastak and Schusterman, 1998), that 
is, the sound must be louder in order to be heard. Harbor seals in-
water and in-air display significant disparities between hearing 
capabilites with hearing 25 30 dB better underwater than in air (Kastak 
and Schusterman, 1994).

Harbor Porpoise

    Harbor porpoises are found within Cook Inlet but in low abundance, 
especially in Knik Arm. Currently, the population estimate for the Gulf 
of Alaska harbor porpoise stock is 41,854 with a minimum population 
estimate of 34,740 (Angliss and Outlaw, 2006). However, density of 
harbor porpoise in Cook Inlet is only 7.2 per 1000 square kilometers 
(Dahlheim et al., 2000). The highest monthly count in upper Cook Inlet 
between April and October is 18 (Ramos et al., 2006). Interactions with 
fisheries and entanglement in gear is the prime anthropogenic cause of 
mortality for this stock (mean annual mortality of 67.8) (Angliss and 
Outlaw, 2006). Harbor porpoises are not killed for subsistence reasons.
    Harbor porpoise have the highest upper-frequency limit of all 
odontocetes studied. They have a hearing range of 250 Hz-180 kHz with 
maximum sensitivity between 16-140 kHz. There is no available data on 
high frequency cetacean reactions to pulse sounds (e.g., impact pile 
driving); however, numerous studies have been conducted in the field 
(Culik et al., 2001; Olesiuk et al., 2002; Johnston, 2002) and 
laboratory (Kastelein et al., 1995, 1997, 2000) for non-pulse sounds. 
The results of these studies demonstrate the harbor porpoise are quite 
sensitive to a wide range of human sounds at very low exposure levels: 
approximately 90 - 120dB re: 1microPa. However, most of these studies 
involved acoustic harassment devices (e.g., pingers) in the range of 10 
kHz which is 6-7 kHz greater than most industrial sounds, including 
pile driving.

Killer whales

    Killer whales in the Gulf of Alaska are divided into two ecotypes: 
resident and transient. Transients, or mammal-eating killer whales, are 
the only ecotype believed to occur in upper Cook Inlet. Killer whales 
are more common in lower Cook Inlet (at least 100 sightings from 1975 
to 2002), but in the upper Inlet, north of Kalgin Island, sightings are 
infrequent (18 sightings have been noted from 1976-2003) (Sheldon et 
al. 2003). Most observed killer whale/beluga whale interactions were in 
the upper Inlet; however, killer whale predation on beluga whales in 
Cook Inlet appears to be random and does not appear to be an 
influential factor on beluga distribution (Hobbs et al., 2006). 
However, a decrease in killer whale seal and sea lion prey in the Gulf 
of Alaska could result in killer whales moving from the southern 
portion of the Inlet to the northern portion in search of beluga prey.
    The hearing of killer whales is well developed and this species 
exhibits complex underwater communication structure. They have hearing 
ranges of 0.05 to 100 kHz, which is lower than many other odontocetes. 
Peak sensitivity is around 15 kHz. Mammal-eating killer whales (i.e. 
transients) limit their vocal communication and often travel in 
silence. This is in contrast to the very vocal fish eating (i.e., 
resident) killer whale pods who are constantly vocalizing. The 
difference for this behavior is that fish do not possess the advanced 
hearing capabilities as the target marine mammals, who can hear or 
eavesdrop on mammal eating killer whale calls and escape from being 
prey (Deecke et al., 2005).

Habitat

    Knik Arm is comprised of narrow channels flanked by large tidal 
benches composed of sand, mud, or gravel depending on location. Tides 
in Cook Inlet are semidiurnal, with two unequal high and low tides per 
tidal day (tidal

[[Page 41322]]

day = 24 h 50 min). The mean diurnal tidal range varies from roughly 6 
m (19 ft) at Homer to about 9.5 m (30 ft) at Anchorage (Moore et al. 
2000). Because of Knik Arm's predominantly shallow depths and narrow 
widths, tides here are greater than in the main body of Cook Inlet. The 
range of tides at Anchorage is extreme at about 29 feet and the 
observed extreme low water is 6.4 feet below mean low low water (MLLW) 
(KABATA 2007). Maximum current speeds in Knik Arm, observed during 
spring ebb tide, exceed 7 knots (12 feet/second). These extreme 
physical characteristics of Knik Arm increase ambient sound level.
    The habitat directly affected from the Project is the 135 acres of 
intertidal and subtidal wetlands filled to become useable land and 
facilitate the bulkhead structure and fendering systems of the dock. In 
addition, noise will be emitted into the waters surrounding the Port 
which will lead to some degree of temporary habitat degradation. With 
respect to habitat analysis, NMFS considered the impact elimination and 
degradation of this area would have to marine mammals (see Impacts to 
Habitat). That is, would the elimination and degradation of habitat 
impact the biological or physical environment to the extent that is 
would have an impact on marine mammals directly in the form of acoustic 
harassment, and indirectly, in the form of reducing availability of 
prey?

Potential Effects of Activities on Marine Mammals

    Marine mammals use sound for vital life functions, and introducing 
sound into their environment could be disrupting to those behaviors. 
Sound (hearing and vocalization/ echolocation) serves 4 main functions 
for odontocetes (toothed whales and dolphins). These functions include 
(1) providing information about their environment; (2) communication; 
(3) enabling remote detection of prey; and (4) enabling detection of 
predators. Sounds and non-acoustic stimuli will be generated and 
emitted into the aquatic environment by vehicle traffic, vessel 
operations, roadbed construction, and vibratory and impact pile 
driving. The distances to which these sounds are audible depend on 
source levels, ambient noise levels, and sensitivity of the receptor 
(Richardson et al., 1995). The Federal Register notice for the proposed 
IHA and the EA discuss in detail the potential impacts to marine 
mammals from exposure to pile driving.
    The implementation of the Project would result in the loss of 
intertidal and subtidal habitat used by marine mammals and exposure to 
loud noise could result in behavioral and mild physiological changes in 
marine mammals. Based on the activities described in the application, 
NMFS has determined that only in-water pile driving is likely to result 
in an adverse affect to marine mammals. Based on the best available 
science, as described in the EA, marine mammals exposed to pile driving 
noise at and above NMFS determined harassment thresholds, have the 
potential to undergo mild to moderate short term behavioral and 
physiological reactions. Anticipated behavioral reactions of marine 
mammals include altered headings, fast swimming, changes in dive, 
surfacing, respiration, and feeding patterns, and changes in 
vocalizations. Short-term stress response could include increase in 
stress hormone levels (e.g. norepinephrine, epinephrine, and dopamine). 
Beluga whales are expected to become accustomed to pile driving noise 
(Gisiner, 1998); however, they may slightly alter habitat usage so that 
the middle or west side of Knik Arm, where noise from pile driving 
would attenuate to baseline background levels, would be used more 
frequently as a migratory route to the northern feeding grounds.
    While dredging and fill compaction would also result in noise 
emittance into the environment, sound levels are not expected to result 
in harassment of marine mammals. Dredging has been occurring at the 
Port for decades and marine mammals, specifically beluga whales, have 
become habituated to this activity as indicated by their observed 
interaction with dredges and other commercial vessels (NMFS unpubl. 
data). Fill compaction requires the use of a vibratory pile driver; 
however, absorption of sound by the fill and sheet pile wall would 
reduce sound levels below harassment level thresholds. Because Cook 
Inlet is an already noisy environment (ambient levels around 115-133 dB 
(Blackwell 2004)), and with habituation likely and the required 
mitigation measures described below, NMFS believes harassment to marine 
mammals, including beluga whales, from pile driving will have a 
negligible impact on the affected species or stock of marine mammals.
    Several aspects of the planned monitoring and mitigation measures 
for this project are designed to detect marine mammals occurring near 
pile driving and to avoid the chance of them being exposed to sound 
levels which could result in injury or mortality (see Mitigation 
section). NMFS does not expect Level A harassment to occur.

Number of Marine Mammals Affected

    NMFS has authorized the take, by Level B harassment only, of 34 
Cook Inlet beluga whales, 20 harbor seals, 20 harbor porpoises, and 20 
killer whales over the course of the 1- year IHA. Because potential 
harassment to the Cook Inlet beluga whales was a concern, the Port was 
required, under mitigation in their initial U.S. Army Corps of 
Engineers (USACE) permit, as recommended by NMFS, to obtain three years 
of sighting data around the Port prior to construction. Data were 
collected during all months pile driving would take place (April-
October) and included information on beluga whale abundance, group size 
and composition, behavior, presence related to tidal cycle, and use of 
the area by commercial vessels (Funk et al., 2005, Ramos et al., 2006, 
Cornick and Kendall 2007). These data were then complied to calculate 
estimated monthly densities and expected monthly take based on pile 
driving hours (Table 1). A more detailed derivation of take numbers can 
be found in the application and EA prepared by NMFS for this action. 
While the calculated take estimate for beluga whales (21 for both 
impact and vibratory pile driving combined) is less than those 
authorized, take numbers were slightly inflated to compensate for 
natural ecology and behavior of beluga whales (e.g., large group size).

[[Page 41323]]



              Table 1. Calculated expected take from pile driving activities at the Port of Anchorage from July 15, 2008 to July 14, 2009.
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                                                      Port of Anchorage Take Table - 2008/2009 IHA
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                   Area within                 Area within
                                                                        Vibratory   Avg. Whales/     160 dB       Expected       120 dB       Expected
                         Month                          Impact Hours      Hours       hr/km\2\       Impact         Take        Vibratory       Take
                                                                                     nearshore*      (350m)       (impact)       (800m)      (vibratory)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         April                                   86            58         0.014         0.192         0.230        1.0048         0.809
                          May                                    60            39         0.006         0.192         0.064        1.0048         0.218
                         June                                    60            39         0.011         0.192         0.125        1.0048         0.423
                         July                                    86            58         0.004         0.192         0.066        1.0048         0.231
                        August                                   86            58         0.062         0.192         1.031        1.0048         3.633
                       September                                 86            58         0.043         0.192         0.718        1.0048         2.529
                        October                                  86            58         0.020         0.192         0.335        1.0048         1.179
                        Total*                                  550           368   ............  ............            8   ............           13
--------------------------------------------------------------------------------------------------------------------------------------------------------
*The total number of authorized take is calculated by rounding up each take per month (e.g., a take of 0.230 animals in April is equal to 1 take).

    Based on low sighting rates of other marine mammals around the 
Port, the number of other marine mammals that could be harassed from 
Project activities cannot be derived mathematically. Instead NMFS has 
estimated take to authorize a small number of takes, relative to the 
population size, for harbor seals (20), harbor porpoises (20), and 
killer whales (20).

Impacts to Habitat

    As stated, NMFS considered habitat impacts in terms of marine 
mammal use and how the Project would affect marine mammal prey 
availability. The elimination of 135 acres of intertidal and subtidal 
habitat due to Port expansion would result in habitat loss and changes 
in this portion of Knik Arm. A new, extended dock face would replace 
existing acres of shallow slow moving water with deeper faster moving 
water across a sheer sheet pile face; however, models show current 
speed would not increase significantly. While these sheltered areas of 
slower moving water where juvenile fish tend to be more abundant would 
be eliminated, habitats with similar characteristics exist in other 
areas of Knik Arm. The clearer water microhabitats in the intertidal 
area that allow for visual feeding would be reduced but Houghton et al. 
(2005a,b) identified that these patches of clear water are random and 
also exist in the middle of the Arm. The concrete top deck of the 
extended dock would shade these naturally turbid waters which could 
further limit visual feeding opportunities for marine mammal prey; 
however, as shown in observations during the fish studies conducted at 
the Port, other waters surrounding the Port provide clear, less turbid 
waters in which feeding can take place.
    Otoliths for juvenile Chinook salmon sampled between Cairn Point 
and Point Woronzof showed that 80-85 percent of the fish were of 
hatchery origin (interpolated from Table 12 of Houghton et al., 2005a). 
This suggests that waters in this portion of upper Cook Inlet are very 
important to the hatchery produced Chinook salmon smolts from Ship 
Creek. The remaining 15-20 percent of the fish was not of hatchery 
origin suggesting that the area within the Project footprint also 
provides important habitat for wild Chinook, likely including fish from 
other Knik Arm tributaries. However, habitats in other portions of Knik 
Arm have the same or similar attributes which make them important 
nursery, rearing, and feeding areas (Houghton et al., 2005a,b). 
Furthermore, Ship Creek is stocked and would be continually 
replenished, minimizing impact to prey availability. Due to the natural 
ecology of the fish in Knik Arm (i.e., using habitats other than those 
to be filled), mitigation measures set in place by the USACE permit, 
and the fact that Ship Creek is stocked yearly, abundance and survival 
rates of fish are expected to be high and therefore availability of 
those fish as beluga whale prey would not be significantly negatively 
impacted.

Effects on Subsistence Needs

    Alaska Natives who reside in communities on or near Cook Inlet and 
some hunters who live in other Alaska towns and villages continue to 
subsistence harvest beluga whales. Until 1999, subsistence harvest of 
beluga whales was unregulated, which is believed to be the major reason 
for the recent beluga whale population decline. Since 1999, mandatory 
and voluntary moratoriums have been enacted prohibiting or minimizing 
take of beluga whales for subsistence needs. Since 2001, five beluga 
whales have been taken with none of those whales taken in 2006 or 2007. 
Scientists predicted that the beluga whale population would recover 
after the unregulated hunts ceased and a managed hunt was enacted. 
While the Cook Inlet beluga population appears to be on the increase 
since the lowest population estimate in 2006 when the population was 
estimated at 278 whales, this was only 2 years ago; therefore, a trend 
in recovery can not be discerned. While NMFS acknowledges that there 
are factors working against the recovery of the Cook Inlet beluga whale 
population in a manner scientists have yet to understand, NMFS is 
confident that, given mitigation, the small amount of harassment that 
whales could potentially be exposed to from the Project will not have 
an unmitigable adverse impact on the availability of beluga whales for 
subsistence uses. More information on use of beluga whales for 
subsistence purposes and proposed management plans can be found in the 
Cook Inlet Beluga Whale Subsistence Harvest Draft Supplemental 
Environmental Impact Statement (NMFS 2007).

Comments and Responses

    On March 18, 2008, NMFS published in the Federal Register a notice 
of a proposed IHA for the Port and MARAD's request to take marine 
mammals incidental to the Project and requested comments regarding this 
request (73 FR 14443). During the 30-day public comment period, NMFS 
received comments from the Marine Mammal Commission (Commission); the 
Center for Biological Diversity (CBD) on behalf of the CBD, Trustees 
for Alaska, and Cook Inlet Keeper; and the Kenaitze Indian Tribe. The 
Commission and CBD provided comments on seven

[[Page 41324]]

major topics: (1) take numbers; (2) NMFS negligible impact 
determination; (3) specified activities; (4) cumulative impacts; (5) 
mitigation; (6) ESA requirements; and (7) NEPA requirements. Because 
comments provided by the Commission and CBD on these topics were 
similar, they are addressed here by category. Other comments and those 
submitted by the Kenaitze Indian Tribe are also addressed here.

Take Numbers

     The Commission believes that the manner in which takes are 
distributed among the population could be significant, that is, a 
single animal harassed 34 times could have different impacts than if 34 
animals were harassed one time;
     CBD states that NMFS' ``small numbers'' definition is 
conflated with ``negligible impact'' and that NMFS conducts its 
analysis according to this ``invalid standard''; CBD argues that ``the 
Project would expose 12-14% of the population of Cook Inlet beluga 
whales (identified as 278 animals) to noise which could cause 
harassment and this level of take could not be considered small'';
     ``NMFS's estimate that 34 belugas may be harassed under 
the requested IHA in the first year is based on the assumption that 
sounds below 160 dB re 1 microPa (rms) do not constitute harassment for 
any cetacean; ``for example, [in a recent IHA for oil and 
gas exploration,] NMFS imposed a 120 dB safety zone for aggregations of 
bowhead whales based on its finding that 'bowhead whales apparently 
show some avoidance in areas of seismic sounds at levels lower than 120 
dB'; and NMFS acknowledged in an IHA for the National 
Science Foundation ``that belugas can be displaced at distances of up 
to 20 km from a sound source'' and
     ``given louder sources of noise are planned in subsequent 
years of the Project, over the life of the proposed regulations well 
over half and perhaps the entire beluga population is likely to be 
exposed to harassment level sounds.''
    Response: Based on beluga behavior and group dynamics, NMFS does 
not believe that either of the extremes provided by the Commission are 
likely to occur. Instead, it is probable that takes will be distributed 
somewhat evenly among exposed individuals with the possibility that 
some individuals may be taken slightly fewer or more times than others. 
Beluga whales are not all individually identifiable and it is 
impossible to determine exactly how many times each and every 
individual is potentially harassed. However, due to beluga whale 
coloration disparities among different age classes, observers can 
identify how many times adults, juveniles, and calves are around the 
Port and have entered into the harassment zones.
    NMFS no longer relies on its regulatory definition, which was found 
to be invalid by a U.S. District Court. Instead, NMFS addresses ``small 
numbers'' in terms of relative to the species or stock size. CBD's 
argument that NMFS can not make a small numbers determination since 12 
percent of the population could be taken is faulty as CBD uses an 
outdated Cook Inlet beluga whale population estimate (i.e., 278) when 
the current population estimate is actually 375 whales. Therefore, 9 
percent of the population could potentially be harassed under the IHA, 
which is small relative to the population size. CBD is also incorrect 
in the statement that the estimate of the number of beluga whales 
authorized to be taken was derived based on the assumption that 
exposure to sounds at or above 160 dB re 1 micro Pascal constitute a 
``take.'' NMFS estimated take numbers based on potential exposure to 
both pulse (i.e., impact pile driving) and continuous (i.e., vibratory 
pile driving) noise, which is discussed thoroughly in both the proposed 
IHA Federal Register notice (73 FR 14443) and the Port's application. 
NMFS has implemented a 160 dB and 120 dB re 1 micro Pascal harassment 
zone for impact and vibratory pile driving, respectively. NMFS used 
three years of monitoring data to predict beluga whale density around 
the Port and then estimated potential take based on both the 160 dB and 
120 dB re 1 micro Pascal isopleths. A detailed description of how take 
was mathematically estimated can be found in the EA and the 
application. NMFS slightly inflated the number of whales authorized to 
be taken to account for realistic occurrences such as large groups; 
therefore, CBD is incorrect is stating the take numbers were 
underestimated.
    In referring to NMFS' IHA that acknowledged displacement of beluga 
whales up to 20 km from the sound source, CBD fails to consider the 
science of sound and its propagation characteristics underwater (e.g., 
sound type, source level, water depth, and other factors contributing 
to sound propagation and marine mammal harassment potential. Therefore, 
their arguments regarding impacts to marine mammals from noise as well 
as Level A harassment potential are flawed and unsupported. The NSF 
report CBD refers to in its comments concerns beluga whale responses to 
seismic surveys employing large moving ships operating an 8 airgun 
array configured as a four-G gun cluster with a total discharge volume 
of 840 in3 and a four Bolt airgun cluster with a total discharge volume 
of 2000 in3. The source output from that array was from 246 253 dB re 1 
micro Pascal and Level B harassment sounds were expected to range from 
4-7 kms. To compare potential reactions from that survey, or other 
seismic surveys, to stationary pile driving, which does not have a 
sound source level close to seismic survey output, is erroneous.
    NMFS is unaware where the CBD obtained information that ``louder 
sources of noise are planned in subsequent years of the project''. The 
Port has not indicated that louder sound would be emitted into the 
environment in subsequent years. In fact, the Port has identified that 
impact pile driving hours will likely be reduced in subsequent years 
and be replaced by vibratory pile driving; therefore, sound levels will 
actually likely be reduced in future years as sound source level using 
an impact hammer is louder than a vibratory hammer. The Port must 
employ impact pile driving to obtain depths at which vibratory methods 
are not possible and once the piles are at this depth they will switch 
to vibratory methods.

Negligible Impact

     The Commission and CBD both argue that NMFS can not make a 
negligible impact determination because the ``baseline status'' of the 
Cook Inlet beluga whale population is ``tenuous'' and ``is already 
having a more than negligible impact on this stock'';
     The Commission argues that because this population of 
beluga whales is ``dangerously low'', ``any increase in the level of 
disturbance experience by beluga whales in an important feeding area - 
regardless of how small the increase may be in and of itself- would 
have more than a negligible impact on the population of chances of 
recovery'';
     CBD argues that NMFS has no scientific justification for 
its Level A harassment thresholds, citing to two marine mammal 
stranding events where seismic surveys were occurring and where 
received sound levels ``were likely lower than 180 dB.''
    Response: NMFS' responsibility under section 101(a)(5)(d) of the 
MMPA is to authorize, subject to conditions as the Secretary may 
specify, the incidental but not intentional taking by harassment of 
small numbers of marine mammals of a species or population stock by US 
citizens while engaging in

[[Page 41325]]

a specified activity should the Secretary find, among other things, 
that such harassment will have a negligible impact on such species or 
sock. If such determination is made, there is no requirement that NMFS 
must deny an authorization request simply because the population is 
endangered or declining. NMFS acknowledges that the current status of 
the Cook Inlet beluga whale is below optimal levels, as it has been 
proposed for listing as endangered under the ESA, and that a variety of 
factors, including a previously unregulated subsistence harvest, 
coastal development, and introduction of anthropogenic noise into their 
environment, have been identified as potential factors contributing to 
the recent population decline, although no one factor has been 
identified as the sole cause. However, to comply with the MMPA and 
implementing regulations, NMFS is required to evaluate specific 
activities in relation to a species status, however small it may be, 
and make a finding as to whether the activity will have a negligible 
impact on that species or stock. Incidental take authorizations are not 
denied simply because a species is listed, proposed to be listed, or 
the population is in a deleterious state. NMFS determined, after 
careful review of the Project construction activities, beluga whale and 
fish monitoring studies, physical habitat models, background and pile 
driving acoustic studies, and a comprehensive review of literature 
regarding marine mammals and noise, that the Project will not result in 
an increased disturbance to marine mammals or their habitat such that 
would result in more than a negligible impact to the stock. 
Justification for these determinations can be found throughout Chapter 
4 of the EA prepared by NMFS for this action.
    NMFS has published several times in Federal Register notices that 
the evidence linking marine mammal strandings and seismic surveys 
remains tenuous at best (e.g., 73 FR 40512, July 15, 2008). No marine 
mammal strandings in the Arctic have been associated with exposure to 
seismic activity. Further, CBD provides no support for its assertion 
that the marine mammals involved in the referenced stranding events 
were exposed to sounds lower than 180 dB. Finally, this IHA does not 
involve authorization of harassment related to seismic activities. As 
explained in response to comments included in the ``take numbers'' 
category above, direct comparison of expected marine mammal reactions 
to exposure from pile driving to seismic surveys would be difficult to 
make.
    Based on the best available scientific literature investigating 
reactions of marine mammals to anthropogenically introduced sound and 
obtainable, unpublished data, anticipated reactions of beluga whales to 
pile driving sound are expected to be short term and behavioral and/or 
physiological (i.e., stress response) in nature. Mild to moderate 
behavioral reactions of marine mammals, including beluga whales, could 
involve short-term altered headings, fast swimming, changes in dive, 
surfacing, respiration, and feeding patterns, and changes in 
vocalization frequency and strength. As pile driving continues 
throughout the season and over the years, beluga whales are expected to 
habituate to these sounds as they have done for ship traffic. Further, 
given that travel is the primary behavior in the action area and that 
the west side of Knik Arm is approximately 4,170 m directly across from 
the Port, the width of the Arm marine mammals would be able to utilize 
where sound propagation from pile driving is below Level B harassment 
levels would be 3,820 m and 3,370 m for impact and vibratory pile 
driving, respectively. Based on these factors, and given that strict 
mitigation would be set in place (see Mitigation section), NMFS has 
made a finding that such activities will have a negligible impact on 
the Cook Inlet beluga whale stock.

Specified Activities

     Comments were received regarding NMFS obligation to 
specify all activities which could potentially result in harassment to 
marine mammals, specifically beluga whales.
    Response: NMFS considered all activities identified as components 
of the Project and if each of the activities would result in harassment 
to marine mammals. Activities considered were: (1) pile driving, (2) 
dredging, (3) fill compaction, and (4) habitat destruction in terms of 
reducing availability of prey to marine mammals. As stated, pile 
driving is the only activity considered to result in potential 
harassment of marine mammals. While NMFS acknowledges that dredging 
releases sound into the environment, dredging has been occurring in the 
area for decades and beluga whales that utilize the area around the 
Port are most likely habituated to dredging operations as they have 
been seen interacting with these vessels on their own accord. Vibratory 
driving is required for fill compaction; however, the low source level 
of the hammer, combined with the fill and steel wall absorption 
capabilities, will reduce much of the sound levels below NMFS 
harassment threshold levels. Finally, based on habitat attributes, 
modeling studies, and required mitigation that the Port would abide by 
under their USACE permit, NMFS determined that fill and noise from pile 
driving would not result in decreased availability of prey for marine 
mammals. Justification for these determinations can be found in the EA. 
The IHA also contains a mitigation measure that restricts dredging and 
all heavy machinery operations if an animal comes within 50 m of the 
equipment to avoid the small chance of physical injury.

Mitigation

     Comments argue that the proposed IHA Federal Register 
notice mentions several types of activities that may take marine 
mammals, nevertheless, the notice only proposed mitigation measures 
related to pile driving and any IHA and needs to address mitigation 
measures for every type of activity that might result in a take;
     ``NMFS seems to be accepting as a given that only the very 
limited mitigation measures proposed by the POA will be applied''; and
     ``NMFS could require that pile driving only be allowed 
during the winter months when beluga whales are less likely to be in 
the area.''
    Response: According to the MMPA section 101(a)(5)(D)(ii), an IHA 
shall prescribe, where applicable, permissible methods of taking by 
harassment pursuant to such activity, and other means of effecting the 
least practicable impact on such species or stock and its habitat. NMFS 
has discretion in prescribing appropriate mitigation for a specified 
activity. As stated in response to comment 3, NMFS does not identify 
activities other than pile driving as potentially resulting in 
acoustic-based harassment to marine mammals; in addition NMFS also 
implemented a 50 m safety shut down when marine mammals approach heavy 
machinery to prevent injury. The Port's complete application was a 
result of numerous discussions with NMFS and therefore already 
incorporated many of NMFS suggested mitigation measures. In addition, 
NMFS has imposed additional mitigation measures (e.g., calf shut down) 
to minimize impacts from pile driving. A detailed list of these 
mitigation measures can be found in this notice and Chapter 4 of the 
EA. CBD's comments do not acknowledge all mitigation measures 
identified in the proposed IHA Federal Register notice. NMFS also notes 
that discussion with the Port about pile driving during

[[Page 41326]]

winter, a the period of lowest habitat use around the Port by beluga 
whales, occurred, but due to dangerous drifting ice conditions and 
frozen ground, it is not practicable to carry out pile driving in 
winter.

Cumulative Impacts

     Both the Commission and CBD claim that the Port's 
application is largely confined to looking at the immediate effects of 
construction and NMFS' has a responsibility to responsibility to 
consider cumulative impacts of the Project. The CBD states `` NMFS must 
consider these effects together with all other activities that affect 
these species, stocks and local populations, other anthropogenic risk 
factors such as oil and gas and other industrial development, climate 
change, and the cumulative effect of these activities over time.'' For 
example, the Commission links dredging and other Port development 
activities to increased sedimentation to which organic chemical may be 
absorbed by beluga whale prey and suggests it would be important to 
monitor contaminant availability, exposure, effects, and levels in the 
environment.
    Response: Section 101(a)(5)(D) of the MMPA allows citizens of the 
United States to take by harassment, small numbers of marine mammals 
incidental to a specified activity (other than commercial fishing) 
within a specified geographical region if NMFS is able to make certain 
findings. NMFS must issue an incidental harassment authorization if 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 if the permissible 
methods of taking and requirements pertaining to the mitigation, 
monitoring, and reporting of such takings are set forth. Under the 
MMPA, NMFS cannot issue an IHA if a negligible impact determination is 
not made for the specified activity.
    Pursuant to NEPA, NMFS is required to analyze the potential 
environmental effects of its actions. As part of the NEPA analysis 
(e.g., an EIS or EA), NMFS is required to consider the direct, indirect 
and cumulative impacts resulting from the proposed action along with a 
reasonable range of alternatives, including the proposed action. To 
comply with NEPA, NMFS investigated the potential for cumulative 
impacts in its EA. NMFS gave careful consideration to a number of 
issues and sources of information and assessed the cumulative impacts 
from past, present, and reasonably foreseeable actions in upper Cook 
Inlet and the effects of climate change in the context of the specified 
activity and impacts to marine mammals. NMFS recognizes that climate 
change is a concern for the sustainability of the entire Arctic 
ecosystem and has reviewed the available literature and stock 
assessment reports to support its negligible impact determination and 
finding of no significant impact. While NMFS acknowledges there is some 
uncertainty in the specific factors which have inhibited the Cook Inlet 
beluga whale population recovery, NMFS has determined that, via 
animals' natural reactions to avoidance of and habituation to loud 
sounds, the maintenance of a harassment free migration route to prime 
feeding ground, and comprehensive mitigation set in place for the 
Project, issuance of an IHA will result in a negligible impact to 
marine mammals. Any future coastal development projects, oil/gas and 
alternative energy exploration, or extraction activities in Arctic 
waters and permit reviews would be subject to similar analyses to 
determine how they may individually and cumulatively affect marine 
mammals.
    The Port of Anchorage is a highly industrialized area and has been 
in operation for decades. Maintenance of the Port requires routine 
dredging. Despite dredging and other Port activities, to date analyses 
of Cook Inlet beluga samples have found contaminant loads lower or 
equal to the other Alaska beluga whale populations (with the exception 
of copper levels, for which the toxicological implications are unknown) 
(Becker, 2000). Based on these samples, there is no evidence that 
dredging and Port activities will result in a higher contaminant risk.

ESA Requirements

     Both the Commission and CBD provided comments concerning 
NMFS requirements, under the ESA, to initiate a conference under 
Section 7 and its implementing regulations and that the proposed action 
is likely to jeopardize the continued existence of Cook Inlet beluga 
whales, and
     The CBD argues that NMFS should refrain from issuing any 
take authorization until the ESA listing process is complete and 
consultation under Section 7 is undertaken.
    Response: Both the Commission and CBD hint that a jeopardy 
conclusion would be reached if a conference opinion or Section 7 
consultation was carried out; however, they provided no analysis to 
justify this statement. The ESA provides some protection for species 
which are proposed, but not yet listed, to be threatened or endangered. 
Section 7(a)(4) and 50 CFR 402.10 require an action agency to 
``confer'' with the Secretary when their actions are likely to 
jeopardize the continued existence of any species proposed to be listed 
under Section 4. The statute does not require a conference simply if 
the affected species is proposed to be listed as threatened or 
endangered, only if such action is likely to jeopardize. During the 
public comment period for the issuance of the USACE permit, NMFS AKR 
provided numerous comments and suggested, among other things, beluga 
whale mitigation measures. The USACE incorporated these suggested 
measures into their permit and therefore the NMFS AKR concurred that 
the action of the USACE (i.e., authorization to carry out Port 
construction activities) is not likely to jeopardize the continued 
existence of the Cook Inlet beluga whale; therefore a conference 
opinion was not deemed necessary. Because the impacts associated with 
NMFS' IHA are part of those already considered by the USACE (and NMFS 
has required additional mitigation in its IHA), NMFS OPR has determined 
that issuance of an IHA is also not likely to jeopardize the continued 
existence of the Cook Inlet beluga whale. If listed, Section 7 
consultation may be required for this action and future rulemaking.

NEPA Requirements

     The MMC takes issue with NMFS' preliminary negligible 
impact determination in its proposed IHA FR, given the fact that NMFS 
had indicated it was going to prepare its own EA because additional 
analysis was needed over and above the Port's and MARAD's EA. MMC 
believes this is inconsistent with NEPA;
     The CBD argues that NMFS must make the EA available for 
public comment, an EIS should have been prepared, and direct and 
indirect impacts from the Project should be analyzed in an EIS; and
     The CBD states that the proposed IHA will likely affect 
Steller sea lions; therefore, a Section 7 consultation must be 
initiated.
    Response: NMFS' MMPA preliminary negligible impact determination 
was based on the Port's MMPA IHA application, which included NMFS' 
recommended mitigation from preliminary discussions; NMFS' review of 
that application for completeness; supplemental information from the 
Port; and discussions with NMFS' AKR. The information from these 
sources was sufficient for NMFS to make its preliminary determination 
of negligible impact under the MMPA. With respect

[[Page 41327]]

to NMFS' NEPA responsibilities, NMFS determined additional NEPA 
analyses were necessary beyond the Port's EA; however, there is no 
requirement that NMFS complete an EA at the time it proposes its 
action. NMFS has prepared its EA and made a Finding of No Significant 
Impact.
    Neither NEPA nor the CEQ regulations explicitly require circulation 
of a draft EA for public comment prior to finalizing the EA. The 
federal courts have upheld this conclusion, and in one recent case the 
Ninth Circuit squarely addressed the question of public involvement in 
the development of an EA. In Bering Strait Citizens for Responsible 
Resource Development v. U.S. Army Corps of Engineers (9th Cir. 2008), 
the court held that the circulation of a draft EA is not required in 
every case; rather, federal agencies should strive to involve the 
public in the decision-making process by providing as much 
environmental information as is practicable prior to completion of the 
EA so that the public has a sufficient opportunity to weigh in on 
issues pertinent to the agency's decision-making process. In the case 
of the Port's MMPA IHA issuance, NMFS involved the public in the 
decision-making process by publishing its notice of a proposed IHA for 
a 30-day notice and comment period and also notified the public of the 
availability of the Port's MMPA application and other NEPA documents 
written for the Project and the Knik Arm Crossing (73 FR 14443, March 
18, 2008). The IHA application and FR notice contained information 
relating to the project and specifically requested information from the 
public. For example, the application and FR notice includes a project 
description, its location, environmental matters such as species and 
habitat to be affected by project construction, and measures designed 
to minimize adverse impacts to the environment. NMFS also incorporated, 
where appropriate, additional measures to reduce impacts to marine 
mammals resulting from the Project. The EA for this action is available 
at https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    While Steller sea lions are commonly seen in Lower Cook Inlet; 
their presence in upper Cook Inlet is rare. There have been only two 
opportunistic sightings of Steller sea lions in upper Cook Inlet since 
1999 (Barbara Mahoney, email correspondence, June 20, 2008). Both 
sightings, comprising a total of four individuals, were near the mouth 
of the Susitna River. No Steller sea lions sightings have been reported 
around the Port or elsewhere in Knik Arm. As such, NMFS believes its 
issuance of the IHA will have no effect on Steller sea lions.
    The following comments were provided by the Kenaitze Indian Tribe:
     ``We are opposed to the issuance of a one-year Incidental 
Harassment Authorization for the Port of Anchorage. The Cook Inlet is 
critical habitat for marine mammals, specifically beluga whales, harbor 
porpoise, killer whales, and harbor seals. Kenaitze and the Cook Inlet 
Marine Mammal Council (CIMMC) have requested the beluga be placed on 
the ESA in an effort to save this endangered species. CIMMC, which 
comprise of the seven tribes of the Cook Inlet, along with the Eskimo 
whalers who reside in the Cook Inlet, are restricted to one and a half 
beluga per year, i.e., one beluga whale one year and two beluga whales 
the next year. Our use does not comprise of want and waste'';
     ``The Kenaitze Indian Tribe questions the feasibility of 
the port of Anchorage expansion project, because there is a deep-water 
port in Whittier that does not have the silting problems as the Cook 
Inlet's Port of Anchorage. The deep-water port of Whittier has easy 
access to Anchorage via the Rail Road and/or tunnel access for trucking 
goods. The Port of Anchorage's estimated cost of construction is 
$700,000, with no guarantees that it will not silt up again and cause 
more problems and money. During World War II the engineer built the 
Whittier Port because they also recognized the problems that would be 
incurred by building a port in Anchorage and because Whittier is close 
and accessible to Anchorage;'' and
     ``The damage that will be incurred to the marine mammals 
and environment is not worth the expense of the proposed re-
construction of the Port of Anchorage.''
    Response: NMFS acknowledges the comments provided by the Kenaitze 
Indian Tribe; however, these comments are outside the scope of the NMFS 
jurisdiction when considering issuance of an incidental take 
authorization. Impacts to the availability of Cook Inlet beluga whales 
for subsistence hunting are addressed in this FR notice and the EA 
prepared for issuance of the Port's IHA. NMFS has determined that 
issuance of the IHA will not have an unmitigable adverse impact on the 
availability of marine mammals, including beluga whales, for taking for 
subsistence uses.

Mitigation Measures

    Mitigation measures outlined in the IHA application and proposed 
Federal Register notice were a result of numerous discussions between 
the applicants, the USACE, and NMFS. In addition, during NMFS' analysis 
of the proposed action, it implemented additional measures to further 
ensure that the Project would not result in more than a negligible 
impact to Cook Inlet beluga whales. Sound deterren